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Court of Criminal Appeal 28 October 2015

Z v R

[2015] NSWCCA 274

Assault & violenceFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SHOOTING CAUSING GRIEVOUS BODILY HARM FIREARM OFFENCES ASSISTANCE TO AUTHORITIES

Citation: Z v R [2015] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 28 October 2015
Judges: Basten JA; Wilson J; R S Hulme AJ

Background

The applicant, a member of an Outlaw Motorcycle Gang (OMCG), was convicted after trial of causing grievous bodily harm with intent to do so, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW), after shooting a rival gang member twice at his suburban Doonside home in November 2010. The victim suffered serious injuries including fractures, wounds to the rectum, and bullets lodged near his spine and pelvis. The applicant also pleaded guilty (very late) to two counts of selling prohibited firearms and one count of possessing a prohibited firearm.

The sentencing judge in the District Court imposed an aggregate head sentence of 12 years imprisonment with a non-parole period of 7 years and 9 months. In doing so, her Honour applied a combined 50 per cent discount across all four offences, accounting for substantial assistance the applicant had provided to authorities and the late guilty pleas to the firearms offences.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal, arguing the sentences were manifestly excessive and that the sentencing judge had erred in applying two statutory aggravating factors.

  • Whether the shooting offence was properly found to be aggravated because it created a grave risk of death to the victim, within the meaning of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the shooting offence was properly found to be aggravated as having been committed without regard for public safety, under the same provision
  • Whether the overall sentence was manifestly excessive having regard to the discount for assistance, the late guilty pleas, and the totality of the offending

Decision

Grave risk of death (Ground 1): Wilson J dismissed this ground, finding that the sentencing judge was entitled to conclude that a grave risk of death arose from the shooting. The victim was shot twice in the thighs and sustained serious injuries including damage to the rectum and pelvis, with bullets lodged near the spine. The medical evidence supported the conclusion that death was a real possibility, and the judge's finding was open on the facts.

Without regard for public safety (Ground 2): Wilson J rejected this ground as well. The applicant argued that because he had specifically targeted the victim in a deliberate and controlled manner, no relevant risk to the general public existed. The Court accepted that any risk to persons other than the victim was slight, but declined to find the sentencing judge had erred. R S Hulme AJ agreed that, while the risk to bystanders (including the victim's wife) was limited, carrying a loaded firearm in a residential street carried some residual risk. Neither judge was satisfied that the aggravating factor had been made out, but Hulme AJ's additional remarks reflected that this finding had not materially affected the outcome.

Manifest excess: The Court found no error in the overall sentencing exercise. Wilson J noted the deliberate and premeditated nature of the shooting, the applicant's OMCG membership, his history of personal violence offences, and the serious objective gravity of all four offences. The 50 per cent combined discount was characterised by Hulme AJ as, if anything, unduly generous to the applicant. The Court declined to find the sentences manifestly excessive, and all grounds of appeal failed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing court's finding of a "grave risk of death" as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 will be upheld on appeal where the medical evidence supports it, even where the offender did not intend to kill.
  • Where a court finds an aggravating factor was not strictly made out, the appeal will still fail if the overall sentence cannot be shown to have miscarried as a result of that finding.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a 50 per cent combined discount for assistance to authorities and late guilty pleas may, in some circumstances, be characterised as generous rather than insufficient.
  • Membership of an OMCG, a history of personal violence, and the deliberate targeting of a victim at his home in the context of gang rivalry are factors that collectively support the objective seriousness of an offence and attract significant sentences.
  • R S Hulme AJ observed that offending of this nature is a persistent community problem and that sentences must operate as a real deterrent, though no variation to the sentence was ordered.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 60
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23; Div 1A, Pt 4
- Criminal Appeal Act 1912 (NSW), s 5
- Firearms Act 1996 (NSW), ss 7, 51

Cases
- Colomer v R [2014] NSWCCA 51
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Hampton v R [2010] NSWCCA 278; (2010) 208 A Crim R 478
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Ma and Pham v R [2007] NSWCCA 240
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Mitchell & Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
- R v Tuala [2015] NSWCCA 8