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District Court 13 November 2013

R v Pound

[2013] NSWDC 336

Assault & violenceFirearms & weapons
CRIMINAL

Citation: R v Pound [2013] NSWDC 336
Court: District Court of New South Wales
Date: 13 November 2013
Judge: Judge Norrish QC

Background

The offender, Andrew John Pound, appeared for sentencing on two charges arising from an incident in the early hours of 20 October 2012 at his flat in Newtown. He had invited a group of young men, including the victim Daniel Marino, into his unit after they returned from a night out at Kings Cross. The offender was not licensed to possess firearms in any capacity.

During the gathering, the offender produced an unlicensed .22 calibre Harrington and Richardson seven-shot revolver. After initially spinning the weapon around his finger, he later pointed it at the victim while holding it with his finger on the trigger. When the victim tapped the barrel, the firearm discharged. The projectile struck the victim above his left eye and fragmented, coming to rest behind both eyes.

The injuries were catastrophic and permanent. The victim lost sight in his left eye entirely, and suffered partial blindness in his right eye, along with physical deformation of the left eye and restricted eye movement. The offender called triple-zero immediately after the shooting. He was arrested six days later, having voluntarily attended Newtown Police Station. A search of his flat also uncovered six cannabis plants, which formed the basis of a further matter taken into account on a Form 1.

  • The appropriate sentence for recklessly inflicting grievous bodily harm under s 35(2) of the Crimes Act 1900, carrying a standard non-parole period of four years
  • The appropriate sentence for carrying a firearm with disregard for safety under s 93G(1)(c) of the Crimes Act 1900
  • How to account for the Form 1 cannabis cultivation offence in the overall sentence
  • The weight to be given to the offender's early guilty plea, poor health, and other subjective matters
  • The application of the totality principle to consecutive sentences, to ensure the combined sentence was not disproportionate

Decision

Judge Norrish characterised the Sequence 1 offence (recklessly inflicting grievous bodily harm) as involving serious objective criminality. The firearm had been produced during a social gathering without any legitimate purpose, pointed at another person, and discharged with catastrophic consequences. While the discharge was not deliberate, the handling was grossly reckless and resulted in permanent, severe injury. The standard non-parole period of four years was treated as a reference point consistent with the approach in Muldrock v The Queen.

The offender's subjective circumstances received some, but limited, weight. His early guilty plea, remorse, and cooperation were acknowledged. His health was considered, though the Court noted the prison system has the capacity to manage the conditions identified. His prior criminal history, which included an earlier conviction for possessing an unauthorised firearm and a conviction for assault occasioning actual bodily harm, reduced the leniency otherwise available. The Court also noted the importance of general deterrence in cases involving unlicensed firearms brought into social settings.

For the Sequence 2 offence (carrying the firearm with disregard for safety), the Court imposed a fully concurrent sentence, recognising the conduct arose from the same incident. The cannabis cultivation matter was taken into account on the Form 1 and factored into the Sequence 1 sentence. The Court rejected the submission that a suspended sentence was appropriate, observing that the totality of the criminality plainly required a custodial term.

Orders Made

  • Sequence 2 (carrying a firearm with disregard for safety): convicted and sentenced to 3 years and 6 months imprisonment, commencing 26 October 2012 and expiring 25 April 2016
  • Sequence 1 (recklessly inflicting grievous bodily harm, with Form 1 cannabis matter taken into account): convicted and sentenced to a non-parole period of 3 years and 6 months commencing 26 April 2014, expiring 25 October 2017, with a balance of term of 2 years and 6 months, expiring 26 April 2020
  • Total effective sentence: 7 years and 6 months imprisonment with a non-parole period of 5 years
  • Eligibility for release to parole on 25 October 2017, subject to determination by the Parole Authority

Key Takeaways

  • The District Court treated the standard non-parole period for recklessly inflicting grievous bodily harm (four years under s 35(2) of the Crimes Act 1900) as a legislative guidepost rather than a fixed starting point, consistent with the High Court's approach in Muldrock v The Queen (2011) 244 CLR 120.
  • An early guilty plea, genuine remorse, and cooperation with emergency services following the incident were accepted as mitigating factors, but their force was reduced by a significant prior criminal history that included prior firearms and violence offences.
  • A prisoner's poor health does not automatically reduce a custodial sentence; the court must consider whether the prison system can manage the relevant conditions, and in this case it found that it could.
  • Where multiple offences arise from a single course of conduct, the totality principle requires that consecutive sentences not produce an aggregate that is disproportionate to the overall criminality. Here, structuring the sentences with a degree of concurrency achieved a total sentence Judge Norrish considered appropriate.
  • Cannabis plants discovered during the investigation and charged separately were dealt with on a Form 1, adding to the Sequence 1 sentence rather than attracting a separate penalty, in accordance with standard New South Wales sentencing practice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 93G(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(1)(a)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 537
- Pearce v The Queen (1998) 194 CLR 610
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Bailey v The Director of Public Prosecutions [1988] HCA 19
- R v Thomson and Houlton [2000] NSWCCA 309
- The Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
- R v Engert (1995) 84 A Crim R 67
- R v Westerman [2004] NSWCCA 161
- R v Badanjak [2004] NSWCCA 395
- R v Vachalec (1981) 1 NSWLR 351
- The Queen v Smith [1987] 44 SASR 587
- R v Channells (NSW Court of Criminal Appeal, 30 September 1997, unreported)