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District Court 17 April 2019

R v Ah-Keni

[2019] NSWDC 237

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCE USING AN UNATHORISED PISTOL FIRING A FIREARM IN A PUBLIC PLACE

Citation: R v Ah-Keni [2019] NSWDC 237
Court: District Court of New South Wales
Date: 17 April 2019
Judge(s): Colefax SC DCJ

Background

The offender, a 23-year-old man, was sentenced following guilty pleas to two firearms offences arising from a single incident in the early hours of 22 July 2018. Together with a co-offender, and while on a drug and alcohol binge, he booked a taxi with the stated intention of playing a prank on the driver by holding a gun to his head. The agreed facts accepted by the Crown were that the purpose was to frighten, not rob.

The victim, a taxi driver supporting his pregnant wife and two other children while studying, collected the pair from Yagoona and drove toward their stated destination. When the taxi stopped in Guildford, the offender produced a pistol, racked it (causing a round to fall to the floor), and pressed the barrel against the driver's neck. The driver grabbed the offender's arm in self-defence, a struggle ensued, and the gun discharged. The windscreen was damaged; no one was physically injured.

The offender was arrested three days later when he attended a police station to answer his bail on unrelated matters. He had been held in custody since that time.

  • What was the objective seriousness of each offence, and how should that be characterised for sentencing purposes?
  • What aggravating factors applied to the offending?
  • What weight should be given to the offender's subjective circumstances, including his background, mental health, and drug use?
  • Whether a 25% guilty plea discount applied, and whether special circumstances warranted a variation to the standard non-parole period ratio.
  • Whether the two sentences should be served concurrently or with some degree of accumulation.

Decision

His Honour assessed the offence of using an unauthorised pistol as above and into the upper range of objective seriousness for offences of that type. The offence of firing a firearm in a public place was assessed as mid-range. Four aggravating factors were identified: the severity of the victim's resulting post-traumatic stress disorder (exceeding what would ordinarily be expected), the grave risk of death to another person, the offending occurring while the offender was on conditional liberty (bail), and the vulnerability of the victim.

The offender's subjective case was assessed through a psychiatric report. His Honour noted a troubled background including a violent household and serious long-term drug abuse, but found no causal connection between those factors and the offending. Expressed remorse, conveyed through the psychiatrist's report and an unsworn document, was treated with considerable caution given the absence of sworn evidence. Conduct in custody, including possessing prohibited drugs, carrying an offensive weapon, and receiving unauthorised items from a visitor, led His Honour to characterise prospects of rehabilitation as guarded.

A 25% discount was applied to both sentences reflecting the early guilty plea in the Local Court. His Honour declined to make a finding of special circumstances, noting the Court of Criminal Appeal's caution that District Court judges too readily make such findings. The two offences were treated as one continuous act of criminality, and the sentences were ordered to run fully concurrently. By reference to totality, both sentences were backdated to 24 October 2018, the date the non-parole period on the bail offences expired.

Orders Made

  • Using an unauthorised pistol: sentenced to 5 years and 3 months imprisonment (pre-discount head sentence: 7 years), with a non-parole period of 3 years and 11 months commencing 24 October 2018 and expiring 23 September 2022; balance of term of 1 year and 4 months expiring 23 January 2024.
  • Firing a firearm in a public place: sentenced to 3 years imprisonment (pre-discount head sentence: 4 years), served as a fixed term commencing 24 October 2018 and expiring 23 October 2021.
  • Both sentences ordered to run concurrently.
  • Special circumstances: not found.

Key Takeaways

  • The District Court assessed using an unauthorised pistol in these circumstances as above and into the upper range of objective seriousness, reflecting the deliberate deployment of a loaded firearm against a vulnerable victim.
  • Four aggravating factors were identified collectively: elevated victim harm, risk of death to others, offending on bail, and the victim's vulnerability. The severity of the victim's psychological injury beyond typical expectations functioned as a distinct aggravating element.
  • Unsworn expressions of remorse relayed through a psychiatric report carry limited weight in sentencing; the absence of sworn evidence was treated as a reason for considerable caution.
  • No causal connection between an offender's mental health, drug use, or personal history and the offending will not, of itself, preclude those factors being considered in the subjective case, but it reduces their mitigating force.
  • Declining to find special circumstances, His Honour applied the Court of Criminal Appeal's warning in R v GWM [2012] NSWCCA 240 that District Court judges too readily depart from the standard non-parole period ratio without persuasive justification.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), s 7 (using an unauthorised pistol; maximum penalty 14 years; standard non-parole period 4 years)
- Crimes Act 1900 (NSW), s 93G(1)(b) (firing a firearm in a public place; maximum penalty 10 years; no standard non-parole period)

Cases:
- R v GWM [2012] NSWCCA 240 (caution against findings of special circumstances)