AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
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: Court of Criminal Appeal
Date: 28 October 2015
Judge(s): Basten JA at [1]; Wilson J at [2]; R S Hulme AJ at [137]

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 (Crimes Act 1900, s 33), arising from a shooting at a victim's home in Doonside on 29 November 2010. The applicant approached the victim on his porch in disguise and fired two shots into his thighs, causing serious injuries including fractures, rectal wounds, and a bullet lodged near the spine.

Separately, the applicant pleaded guilty, very late, to three firearms offences: selling a semi-automatic pistol and a home-made sub-machine gun to an undercover operative, and possessing a loaded shortened rifle found under his car seat. All offences were committed while the applicant was subject to three good behaviour bonds for earlier violent offences.

At sentencing in December 2014, the District Court applied a combined discount of 50 per cent for assistance to authorities and the late guilty pleas, resulting in a total effective head sentence of 12 years imprisonment with a non-parole period of 7 years and 9 months. The applicant sought leave to appeal that sentence on six grounds.

Legal Issues

  • Whether the sentencing judge erroneously made a statutory finding of aggravation under s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (grave risk of death) when assessing the shooting offence
  • Whether the sentencing judge erroneously made a statutory finding of aggravation under s 21A(2)(i) (offence committed without regard for public safety) in the same context
  • Whether the sentencing judge improperly treated the applicant's OMCG membership as a form of double punishment when sentencing for the firearm possession offence
  • Whether the sentencing judge erroneously relied on s 21A(2)(d) (prior personal violence offences) when referring to the applicant's criminal history
  • Whether the individual sentence for the shooting offence was manifestly excessive
  • Whether the overall sentence of 12 years was manifestly excessive

Decision

Ground 1: Grave risk of death as a statutory aggravating feature

Wilson J held that the sentencing judge was not purporting to make a formal statutory finding under s 21A(2)(ib). Her Honour was assessing the objective gravity of the offence, not ticking off a listed aggravating factor, and made no reference to s 21A or the word "aggravation" in that passage (at [70]-[76]). Even if the remark was intended as a statutory finding, it would not have been erroneous: the act of discharging a firearm directly at a person carries a grave risk of death regardless of the injuries actually inflicted or the availability of medical treatment, and this applicant fired twice into the victim's body at close range (at [77]-[79]).

Hulme AJ, while declining to endorse a blanket rule that every use of a gun involves a grave risk of death, observed that the extent and location of the victim's injuries demonstrated the weapon was not used with sufficient precision to avoid that risk, and that death had only been averted by medical treatment (at [138]). Ground 1 was refused.

Ground 2: Offence committed without regard for public safety

The Court found the sentencing judge's remarks about the risk to persons other than the victim were again part of her assessment of objective gravity, not a statutory finding under s 21A(2)(i) (at [85]-[87]). The Court declined to read Tuala [2015] NSWCCA 8 as establishing a rigid rule that only a daytime offence in a public place can qualify. The particular circumstances here, including a loaded firearm discharged in a residential street at night with the victim's wife and children nearby, were sufficient to support a conclusion that the conduct paid no regard to the safety of others who might be in the vicinity (at [92]-[94]). Ground 2 was refused.

Ground 3: Double punishment for OMCG membership in the possession offence

The applicant argued the sentencing judge improperly characterised the possession offence as advancing gang interests, amounting to double punishment. The Court rejected this, holding that the broader context of the applicant's gang membership and demonstrated willingness to use firearms for criminal ends was a proper and relevant consideration when assessing the possession offence. An approach that limited the factual background to the mere discovery of the firearm under a car seat would itself have been erroneous (at [99]-[102]). Ground 3 was refused.

Ground 4: Reliance on prior personal violence offences as statutory aggravation

The Court found the sentencing judge's reference to the applicant's prior offending as "serious personal violence offences" was an observation about criminal history made in context, not a finding that s 21A(2)(d) was satisfied. The phrase "personal violence offence" carries an ordinary meaning beyond its statutory definition under the Crimes (Domestic and Personal Violence) Act 2007, and the impugned remark was something of an aside (at [110]-[114]). No error was established. Ground 4 was refused.

Ground 5: Manifestly excessive individual sentence for the shooting offence

The applicant relied on Judicial Commission statistics to argue the notional starting point was at the very top of the sentencing range. The Court reaffirmed that statistics alone say nothing about whether a particular sentence is manifestly excessive (at [118]-[119]). The shooting was assessed as falling towards the higher end of objective seriousness, given the planning, disguise, gang context, double shooting of an already-fallen victim, and the serious injuries caused (at [121]-[123]). No error was established. Ground 5 was refused.

Ground 6: Manifestly excessive overall sentence

The Court found the total effective sentence of 12 years (non-parole period 7 years and 9 months) was well within the proper exercise of sentencing discretion (at [133]-[134]). The sentencing judge had considered all four grave offences, each committed in the context of gang activity and in breach of conditional liberty, and had given appropriate weight to general deterrence (at [126]-[128]). The applicant had not established the sentence was unreasonable or unfair as required by Dinsdale (at [129]). Hulme AJ added that the 50 per cent discount for the shooting offence was unduly generous and the degree of concurrency significant, such that even had a ground succeeded he would have been disposed to offset any benefit against those factors (at [148]-[149]). Ground 6 was refused.

Orders Made

  • Leave to appeal is refused.

Key Takeaways

  • Discharging a firearm directly at a person carries a grave risk of death as a matter of fact, regardless of the actual injuries caused or the availability of subsequent medical treatment. A sentencing judge's observation to that effect need not constitute a formal statutory finding of aggravation under s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (at [77]-[79]).

  • Remarks about objective gravity made during a sentencing judgment are not automatically to be read as formal findings of statutory aggravating factors under s 21A. The Court of Criminal Appeal emphasised that the two inquiries are distinct and should not be conflated in the absence of explicit findings by the sentencing judge (at [87]).

  • A firearms possession offence is not assessed in a factual vacuum. The sentencing court properly considered the offence against the full background of the offender's gang membership and demonstrated criminal use of weapons, rather than confining the inquiry to the bare circumstances of discovery (at [99]-[102]).

  • Sentencing statistics published by the Judicial Commission, standing alone, do not establish that a sentence is manifestly excessive. The Court reiterated that such statistics say nothing definitive about the appropriateness of a sentence in a particular case (at [118]-[119]).

  • In dismissing all six grounds, the Court of Criminal Appeal observed that the 50 per cent combined discount for assistance and late guilty pleas applied to the shooting offence was itself unduly generous, and that the sentences imposed were notable for their leniency given the gravity of the conduct (at [134], [148]).

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), s 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
- R v Dinsdale [2000] HCA 52; (2000) 202 CLR 321
- 94
- R v Tuala [2015] NSWCCA 8