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Court of Criminal Appeal 11 June 2020

Ah-Keni v R

[2020] NSWCCA 122

Firearms & weapons
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE PISTOL DISCHARGED SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL DISMISSED.

Citation: Ah-Keni v R [2020] NSWCCA 122
Court: Court of Criminal Appeal, New South Wales
Date: 11 June 2020
Judges: Hoeben CJ at CL; Harrison J; Wilson J

Background

The appellant pleaded guilty in the Local Court to two firearms offences arising from an incident in the early hours of 22 July 2018. He and a co-offender, while on an extended session of illicit drug use, decided it would be amusing to hold a gun to a taxi driver's head as a prank. They booked a taxi and, once in the vehicle, the appellant produced a loaded pistol and pressed the barrel to the neck of the driver.

The driver instinctively grabbed the appellant's forearm. During the resulting struggle, the pistol discharged. By chance, no one was struck. The driver, who was working to support his pregnant wife and young family, subsequently developed profound post-traumatic stress disorder.

The appellant was sentenced in the Parramatta District Court on 17 April 2019. He received a non-parole period of 3 years and 11 months for using an unauthorised pistol (under the Firearms Act 1996 (NSW), carrying a maximum of 14 years), and a concurrent fixed term of 3 years for discharging a firearm in or near a public place (under the Crimes Act 1900 (NSW), carrying a maximum of 10 years). He sought leave to appeal those sentences to the Court of Criminal Appeal.

  • Whether the sentencing judge incorrectly assessed the objective seriousness of the offences
  • Whether the sentences imposed were manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, unanimously upholding both sentences.

On the objective seriousness ground, the Court found that the sentencing judge's assessment was correct. The first offence (use of an unauthorised pistol) was placed in the upper range of seriousness. The Court accepted the sentencing judge's reasoning: the appellant had wracked the pistol, an unfired round fell out, and the only rational inference was that the appellant knew the weapon could still be loaded when he pressed it to the driver's neck. The second offence (discharging the firearm) was assessed at the midrange.

On manifest excess, the Court applied orthodox principles: a sentence is only manifestly excessive if it falls outside the range reasonably open to the sentencing judge, not merely because comparable cases might appear to have produced lighter sentences. The Court noted that the sentencing judge had properly identified four aggravating factors: the severity of the victim's psychological harm beyond what was ordinarily expected, the risk of death created for another person, the commission of the offences while the appellant was on bail, and the vulnerability of the victim. The appellant's subjective circumstances, including a difficult upbringing, substance abuse history, and limited prior criminal record, had already been taken into account.

Harrison J added a separate observation that characterising the conduct as a prank was very difficult to accept given the pistol was actually loaded. His Honour noted that the Crown's agreement to that characterisation was as fortunate for the appellant as the fact that no one was killed or injured.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence will not be found manifestly excessive simply because an appellant can identify other cases where offenders were treated more leniently. The relevant question is whether the sentence fell outside the range reasonably open to the sentencing judge.
  • Where a sentencing judge draws rational inferences from agreed facts to assess an offender's knowledge and the gravity of the conduct, this does not constitute error, even where those inferences go beyond the formal agreed statement of facts.
  • A victim's psychological injury that exceeds what would ordinarily be expected from an offence of the relevant kind can properly be treated as an additional aggravating factor in sentencing.
  • The Court confirmed that a sentencing judge may place considerable weight on general deterrence when sentencing for serious firearms offences committed in public involving an innocent and vulnerable victim.
  • Harrison J's separate remarks signal that courts may look sceptically at agreed characterisations of serious firearms conduct as a "prank," particularly where the weapon is loaded, even if the sentencing outcome proceeds on the agreed facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)
- Evidence Act 1995 (NSW), s 136
- Firearms Act 1996 (NSW), ss 3, 7(1)

Cases
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Miller v R [2015] NSWCCA 86
- Mulato v Regina [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pham v R [2014] NSWCCA 115
- R v DO [2005] NSWCCA 183
- R v GWM [2012] NSWCCA 240
- Vandeventer v R [2013] NSWCCA 33