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Court of Criminal Appeal 2 April 2015

Pound v R

[2015] NSWCCA 54

Assault & violenceFirearms & weapons
CRIMINAL LAW SENTENCING RECKLESSLY CAUSE GRIEVOUS BODILY HARM CARRY FIREARM WITH DISREGARD TO SAFETY HIGH DEGREE OF RECKLESSNESS FOUND WHETHER ACCUMULATION APPROPRIATE

Citation: Pound v R [2015] NSWCCA 54
Court: Court of Criminal Appeal, NSW
Date: 2 April 2015
Judge(s): R A Hulme J, Davies J, Bellew J

Background

The applicant pleaded guilty to two offences arising from an incident in October 2012. He had invited a group of acquaintances, including the victim, into his Newtown unit in the early hours of the morning. During what appears to have been playful banter, the applicant produced a .22 calibre revolver, held it with his finger on the trigger, and the weapon discharged when the victim tapped the barrel.

The applicant had found the unlicensed firearm years earlier and, crucially, had loaded it two days before the incident. He claimed he forgot he had done so. The discharge was not deliberate, but the victim suffered catastrophic injuries: permanent blindness in one eye, partial damage to the other, and ongoing psychological harm that ended his apprenticeship.

In the District Court, Judge Norrish QC sentenced the applicant to a total effective sentence comprising a non-parole period of five years and an additional term of two and a half years. The applicant sought leave to appeal, challenging the characterisation of his recklessness, the partial accumulation of the two sentences, and the overall length of the sentences.

  • Whether the sentencing judge's finding of a high degree of recklessness was open on the facts
  • Whether the firearms offence (carrying a firearm with disregard for safety) was wholly subsumed within the reckless GBH offence, such that separate or accumulated sentences were inappropriate
  • Whether the partial accumulation of the two sentences was an error in principle
  • Whether the individual sentences and total effective sentence were manifestly excessive

Decision

On the degree of recklessness: The Court of Criminal Appeal accepted that the finding of a high degree of recklessness was open to the sentencing judge. The applicant had loaded the revolver two days before the incident, handled it recklessly while intoxicated in a confined space with other people present, and pointed it at the victim with his finger on the trigger. The combination of these circumstances supported the characterisation, even though the discharge was not deliberate.

On accumulation and the relationship between the two offences: The applicant argued that the firearms offence was wholly encompassed within the conduct constituting the reckless GBH offence, relying on the principle in Pearce v The Queen that sentences for offences arising from the same conduct should generally be concurrent. The Court agreed that, on the particular facts, the carrying offence was not truly separate in character from the GBH offence. The conduct underlying both charges was the same act of handling the loaded firearm at the time of the shooting. Accordingly, accumulation was not appropriate, and the sentences should run concurrently rather than in partial accumulation.

On manifest excess: The Court found that the individual sentence for Count 1 (reckless GBH) was manifestly excessive when the revised approach to accumulation was applied. The grievous bodily harm offence was described as "a very serious offence of its type," and the Court assessed that a sentence of less than six years was not warranted. However, the original non-parole period of five years (which reflected the partial accumulation) was excessive in circumstances where the sentences should run wholly concurrently. The firearms sentence of three years and six months was not disturbed.

The Court restructured the sentences so that both ran concurrently from 26 October 2012, with the GBH sentence reduced to a non-parole period of four years and an additional term of two years. The total effective sentence became six years, expiring in October 2018.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed
  • Applicant resentenced as follows:
  • Count 2 (carry firearm with disregard for safety): fixed term of 3 years and 6 months, commencing 26 October 2012 and expiring 25 April 2016
  • Count 1 (reckless GBH, with Form 1 cannabis cultivation offence taken into account): non-parole period of 4 years commencing 26 October 2012 and expiring 25 October 2016, with an additional term of 2 years expiring 25 October 2018

Key Takeaways

  • The Court of Criminal Appeal confirmed that a finding of high recklessness can be sustained where an offender loads a weapon days before an incident, then handles it while intoxicated and pointed at another person, even where no deliberate discharge was intended.
  • Where two offences arise from the same act or course of conduct, accumulation of sentences requires a principled basis. Partial accumulation will be erroneous where the firearm offence adds nothing in substance beyond the conduct already captured by the GBH offence.
  • Applying Pearce v The Queen, the Court held that separate sentences for the two offences should run concurrently where the carrying of the firearm and the infliction of GBH are effectively constituted by the same physical act.
  • A manifest excess ground framed by reference to a notional starting point remains misconceived in NSW, consistent with Piscitelli v R and SZ v R. The appropriate analysis focuses on the total effective sentence and the individual terms actually imposed.
  • Significant subjective factors, including a difficult childhood, mental health issues, genuine remorse, and an early guilty plea, were weighed but did not alter the Court's conclusion that the GBH offence demanded a non-parole period of at least four years given the severity and permanence of the victim's injuries.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Piscitelli v R [2013] NSWCCA 8
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- House v The King (1936) 55 CLR 499
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947
- Mulato v R [2006] NSWCCA 282
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66