Citation: R v Murray [2013] NSWDC 339
Court: District Court of New South Wales
Date: 7 August 2013
Judge: Conlon DCJ
Background
The offender pleaded guilty to discharging a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act, which carries a maximum penalty of 25 years imprisonment. The offence occurred on the evening of 15 February 2012 at a townhouse in Dapto, where the victim was at home with her partner and four children, including two-month-old twins.
The offender, who had been drinking heavily that afternoon, armed himself and walked approximately two kilometres to the victim's home. He knocked on the front door and, when the victim pulled aside a curtain at the front window to see who was there, discharged a firearm directly at her, striking her between the eyes.
The victim sustained a serious gunshot wound to the bridge of her nose. Surgery was performed at St George Hospital, though a large bullet fragment could not be safely removed and remained in her brain. A second high-risk surgery was required in April 2013 after that fragment shifted position near major brain vessels. She identified the offender by name and nickname in the immediate aftermath of the shooting.
Legal Issues
- What is the appropriate sentence for a guilty plea to discharging a firearm with intent to cause grievous bodily harm, having regard to the objective seriousness of the offence?
- What weight, if any, should be given to the offender's unsworn account (provided to a psychologist) that he intended only to scare the victim's partner?
- What aggravating and mitigating factors applied to the sentencing exercise?
- Whether special circumstances existed warranting a variation to the standard non-parole period ratio.
Decision
Objective seriousness: Conlon DCJ assessed the offence as falling towards the very top of the sentencing range, though not in the worst category. The offender armed himself, concealed the weapon, walked to the victim's home, knocked to draw occupants to the door, and fired the moment the victim looked through the window. The judge found the clearest possible intention from those facts. The substantial injuries sustained were treated as an aggravating factor, consistent with Melbom v R [2011] NSWCCA 22.
The offender's unsworn account: The offender told a psychologist that he had wanted to "scare off" the victim's partner, not harm the victim. Because the offender gave no evidence, the judge applied significant caution to that account, drawing on R v Qutami [2001] NSWCCA 303. Very little weight was afforded to this version given the agreed facts, and the judge was satisfied beyond reasonable doubt that the offender discharged the weapon intentionally as soon as the victim appeared at the window. The judge also noted that, where firearms are used deliberately, an offender cannot later claim significance in having intended to shoot at one person rather than another.
Aggravating factors: The judge identified several statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act: a prior record of violent offending, commission of the offence while the victim was in her own home, the offender was on parole at the time, and the offence involved a grave risk of death. The judge found no mitigating factors beyond the plea of guilty itself.
Special circumstances: No special circumstances were found to justify departing from the standard non-parole period ratio. The judge commenced the sentence from 16 February 2012, the date the offender was returned to custody following his arrest.
Orders Made
- Non-parole period of 15 years, commencing 16 February 2012 and expiring 15 February 2027.
- Additional term of 5 years, expiring 15 February 2032.
- Total head sentence of 20 years imprisonment.
Key Takeaways
- A guilty plea to discharging a firearm with intent to cause grievous bodily harm (maximum 25 years) attracted a 20-year head sentence where the offence was premeditated, committed at the victim's home, and caused grave and lasting injury.
- Under R v Qutami, significant caution applies when relying on an offender's self-serving account provided to a psychologist where the offender has not given sworn evidence; such accounts attract very limited weight.
- Where a firearm is used deliberately and intentionally, the sentencing court rejected any diminution of culpability based on a claimed mismatch between the intended target and the actual victim.
- The District Court confirmed that commission of an offence while the victim was in her own home, the offender being on parole, a prior violent record, and a grave risk of death are all relevant statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act.
- Prevalence of indiscriminate firearm use in the community was treated as a factor reinforcing the need for general deterrence, consistent with the principle in Veen v R (1988) 164 CLR 465 that a worst-case scenario need not be established before a near-maximum sentence is imposed.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated