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Court of Criminal Appeal 4 June 2010

Quealey v R

[2010] NSWCCA 116

Firearms & weapons
CRIMINAL LAW APPEAL AGAINS SENTENCE WHETHER DISPARITY OF SENTENCE WITH CO OFFENDER WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Quealey v R [2010] NSWCCA 116
Court: New South Wales Court of Criminal Appeal
Date: 4 June 2010
Judge(s): Giles JA, Hulme J, Latham J

Background

The appellant was a woman who, in October 2007, attended a home in Claymore where she had been drinking. After learning that her former de facto partner of 23 years had allegedly sexually abused her adult daughter, she obtained a 12-gauge double-barrel shotgun from a man she had only just met. She fired two separate shots at the premises where her former partner was staying, on two occasions within the same evening.

On the first occasion, the appellant discharged the firearm directly at the dwelling. Pellets penetrated the external cladding, passed through an internal wall, and dispersed through the lounge room and kitchen while four people were inside. On the second occasion, she returned to the premises in a vehicle and fired again. The second shot struck the upper cladding but did not penetrate the internal wall.

The appellant pleaded guilty to one count of possessing an unregistered firearm and two counts of firing a firearm at a dwelling house with reckless disregard for the safety of any person. She was sentenced in the District Court to an aggregate non-parole period of four years, with a balance of term of two years. She sought leave to appeal against those sentences.

  • Whether the sentencing judge erred in assessing the objective gravity of the two shooting offences under s 93GA(1) of the Crimes Act 1900
  • Whether the appellant's motive (a response to an allegation of sexual abuse against her former partner) reduced her moral culpability to a degree warranting a lower sentence
  • Whether there was a justifiable sense of grievance arising from a disparity between the appellant's sentence and that imposed on the co-offender in respect of the second shooting
  • Whether the sentences were manifestly excessive, including whether the removal of the appellant's granddaughter from her care constituted extra-curial punishment that should have been taken into account

Decision

The Court granted leave to appeal but unanimously dismissed the appeal, finding that the sentences were not manifestly excessive. Latham J delivered the principal judgment, with Giles JA agreeing. Hulme J agreed in substance while noting two specific reservations about the sentencing judge's reasoning.

Objective gravity: Hulme J expressed doubt that the second shooting fell "towards the upper end of the middle range of objective seriousness," noting that the pellets had not penetrated the internal wall, suggesting the appellant was at some appreciable distance from the premises. He also found no proper basis for treating the presence of the appellant's two-year-old granddaughter in the vehicle as an aggravating factor. Despite those observations, his Honour concluded that the commencing point for the shooting counts implied a starting figure of slightly less than seven years, or about half the maximum penalty of 14 years, and that the resulting sentences were not individually or in totality manifestly excessive.

Motive and moral culpability: Latham J accepted that the appellant's motive was connected to a distressing allegation of sexual abuse. However, her Honour found that this motive did not materially reduce her moral culpability. The appellant had enlisted the assistance of a stranger, armed herself, returned to the premises twice, and deliberately fired at an occupied dwelling on both occasions. The element of premeditation inherent in those steps limited the weight the motive could attract.

Parity with the co-offender: The co-offender, who had assembled the shotgun and placed a shell in it before handing it to the appellant for the second shot, received a lesser sentence for his role in that count. The Court found no justifiable sense of grievance, as the appellant's culpability for both shooting incidents was plainly greater than the co-offender's, and the sentencing judge had appropriately distinguished their respective roles.

Extra-curial punishment: The appellant argued that the removal of her granddaughter from her care following the offences constituted extra-curial punishment. Latham J declined to characterise the removal as such, because the child welfare authorities acted in the child's best interests rather than as a punitive response to the appellant's crimes. Even accepting Hulme J's view that it could be treated as extra-curial punishment, both judges agreed this was a case where it attracted little or no significant weight in the sentencing exercise.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sympathetic or understandable motive does not automatically reduce moral culpability where the offending involves deliberate, repeated steps to arm oneself and fire at an occupied dwelling.
  • A sentencing judge's miscalibration of the objective seriousness of a particular count does not necessarily produce a sentence that is manifestly excessive, provided the overall sentencing structure reflects an appropriate commencing point relative to the statutory maximum.
  • The presence of a young child near a discharged firearm is not, without more, a circumstance of aggravation in sentencing for these types of offences.
  • Where child welfare authorities remove a child from an offender's care in the child's best interests, that removal does not readily constitute extra-curial punishment; even where it does, it may attract little weight in determining the appropriate sentence, consistent with R v Daetz (2003) 139 A Crim R 398.
  • A parity argument requires a justifiable sense of grievance; where an appellant's culpability is clearly greater than a co-offender's, a higher sentence for the appellant does not establish such a grievance.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), s 36(1) (possession of an unregistered firearm; maximum 5 years imprisonment)
- Crimes Act 1900 (NSW), s 93GA(1) (firing a firearm at a dwelling with reckless disregard for safety; maximum 14 years imprisonment)

Cases
- R v Swan [2006] NSWCCA 47
- R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
- Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187
- R v Rayment [2010] NSWCCA 85
- R v Dole; R v Nguyen [2010] NSWCCA 101
- R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398