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Court of Criminal Appeal 7 May 2014

Powell v R

[2014] NSWCCA 69

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL APPEAL AGAINST SENTENCE

Citation: Powell v R [2014] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 7 May 2014
Judges: Basten JA; Button J; RS Hulme AJ

Background

The appellant was convicted after a judge-alone trial in the District Court on three counts: possessing an offensive weapon with intent to commit armed robbery, larceny, and firing a firearm into a dwelling house with reckless disregard for the safety of any person. The first two offences arose from an armed robbery at a family-owned supermarket, during which the appellant pointed a .22 calibre rifle at an elderly customer while his co-offender wielded a machete.

The third offence occurred the following evening. The appellant and his co-offender attended a residential property in Albion Park, where one boarder was home at the time. After a brief exchange at the front door, one or two shots were fired into the dwelling. A projectile was later found lodged in the kitchen/dining area wall. Ballistic analysis linked the shot to a shortened .22 calibre rifle found in a vehicle in which the appellant was arrested five days later.

The sentencing judge imposed a total head sentence of 11 years with a non-parole period of 7 years. For the firearm offence alone, the head sentence was 9 years with a non-parole period of 5 years. The appellant sought leave to appeal on the sole ground that the sentence on count three was manifestly excessive having regard to the objective seriousness of the offence.

  • Whether the 9-year head sentence imposed for the offence of firing a firearm into a dwelling house under s 93GA(1) of the Crimes Act 1900 (NSW) was manifestly excessive in light of the objective seriousness of the offence.

Decision

Button J (with whom Basten JA and RS Hulme AJ agreed) identified several factors going to objective seriousness. The homeowner had already retreated inside and was not in immediate view when the shot was fired. The trajectory of the projectile was somewhat above average head height, reducing (though not eliminating) the danger posed. Only one person was present in the dwelling, only one bullet was clearly established to have been fired into it, and the low calibre of the weapon was also relevant.

Button J also noted the limited nature of the planning. While the offenders had brought a shortened firearm to the premises, the evidence did not establish a settled plan to discharge it. The victim's distress, though real, was also somewhat moderated by the fact that he did not initially realise a shot had actually entered the home.

A significant factor was the JIRS sentencing statistics: the 9-year sentence was the longest imposed for this offence since the statistics commenced in 2006, across a pool of 19 sentences of imprisonment. Button J observed that it is not difficult to conceive of more serious examples of the offence, making the proximity of the head sentence to the 14-year maximum noteworthy. These considerations, taken together, persuaded the Court that the sentence exceeded the bounds of the sentencing discretion, though not to an extreme degree.

The Court re-sentenced the appellant on count three to a head sentence of 7 years with a non-parole period of 4 years, maintaining the same degree of accumulation adopted by the sentencing judge. The total head sentence across all counts became 9 years, with a total non-parole period of 6 years.

Orders Made

  • Leave to appeal granted with regard to count three.
  • Appeal allowed with regard to count three.
  • Sentence on count three quashed.
  • On count three, the appellant sentenced to a non-parole period of 4 years commencing 3 June 2013 and expiring 2 June 2017, with a balance of term of 3 years commencing 3 June 2017 and expiring 2 June 2020.
  • First date eligible for consideration for release: 3 June 2017.

Key Takeaways

  • A sentence for firing a firearm into a dwelling under s 93GA(1) of the Crimes Act 1900 (NSW) must reflect the actual objective seriousness of the specific conduct, including the trajectory of the projectile, the number of occupants present, the calibre of the weapon, and the degree of planning to discharge it.
  • Sentencing statistics from JIRS, while not determinative, are a legitimate reference point: the Court of Criminal Appeal treated the fact that this was the longest of 19 custodial sentences for the offence since 2006 as a factor warranting closer scrutiny.
  • Proximity of a head sentence to the statutory maximum carries weight where more serious instances of the offence are readily imaginable. A head sentence of 9 years against a maximum of 14 years suggested the sentencing judge assessed the conduct as more serious than the circumstances supported.
  • The Court of Criminal Appeal confirmed that offences involving the indiscriminate discharge of firearms at dwellings warrant "condign punishment," even as it reduced the sentence in this instance.
  • Where a ground of appeal is confined to manifest excess with respect to a single count, the appellate court's re-sentencing exercise is similarly confined; the degree of accumulation adopted at first instance need not be disturbed if it was otherwise appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(2), 93GA(1), 117
- Firearms Act 1996 (NSW), s 4

Cases:
No cases were cited in the portions of the judgment provided.