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Court of Criminal Appeal 31 August 2020

R v Askarou

[2020] NSWCCA 222

Assault & violenceFirearms & weapons
CRIME CROWN APPEAL AGAINST SENTENCE WHERE ASSERTED MANIFEST INADEQUACY SHOOT WITH INTENT TO MURDER CRIMES ACT 1900 (NSW) S 29 RESIDUAL DISCRETION

Citation: R v Askarou [2020] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 31 August 2020
Judge(s): Gleeson JA; Rothman J; Price J

Background

The respondent was convicted by a District Court jury in August 2019 of shooting with intent to murder, contrary to s 29 of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 25 years and a standard non-parole period of 10 years. On 6 March 2020, the trial judge sentenced the respondent to 15 years and 6 months imprisonment, with a non-parole period of 10 years and 6 months, backdated to 12 January 2018.

The shooting occurred late at night in July 2016, when the respondent lay in wait outside the victim's home wearing a face covering, then fired three shots at close range as the victim approached his front door. One bullet struck the victim in the torso, severing his spinal cord and puncturing his lung. The victim sustained catastrophic and permanent injuries, including complete loss of lower limb function, impaired bowel and sexual function, and permanent reliance on a wheelchair.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW) on the ground that the sentence was manifestly inadequate. The Court of Criminal Appeal unanimously allowed the appeal and re-sentenced the respondent.

  • Whether the sentence of 15 years and 6 months imprisonment was manifestly inadequate for an offence of shooting with intent to murder falling within the high range of objective seriousness.
  • Whether, having found error, the Court should exercise its residual discretion to decline to re-sentence.
  • What sentence was appropriate on re-sentencing, having regard to the objective gravity of the offence and the respondent's subjective circumstances.

Decision

The Court found that the sentence imposed at first instance was manifestly inadequate. The sentencing judge had correctly identified the offence as falling within the high range of objective seriousness, and had acknowledged a substantial list of aggravating factors: the premeditated, execution-style nature of the attack; the use of a firearm; planning and preparation including a disguise and a getaway vehicle; the catastrophic and permanent consequences for the victim; and the respondent's commission of the offence while on conditional liberty for drug offences. Despite all of this, the resulting sentence did not adequately reflect that assessment.

The Court accepted the sentencing judge's findings on the respondent's subjective circumstances, which were described as generally not positive. The respondent maintained his innocence, expressed no contrition, and had attempted to rely on false alibi evidence at trial. His prospects of rehabilitation were described as guarded, given the cold-blooded nature of the offending and his history of drug offences. Limited weight was given to the respondent's affidavit concerning difficult conditions of incarceration and the effect of COVID-19 restrictions on rehabilitation programs and family contact.

No basis was found to exercise the residual discretion to decline to intervene. The Court held that both a longer head sentence and a longer non-parole period were required to reflect the gravity of the offending, provide general deterrence, denounce the conduct, and recognise the permanent and devastating harm caused to the victim. A finding of special circumstances was maintained, consistent with the sentencing judge, on account of the respondent's relatively young age and the fact that this was his first period of custody, allowing for a longer parole period to promote rehabilitation.

Orders Made

  • Crown appeal against sentence allowed.
  • Sentence imposed by Judge Bourke SC on 6 March 2020 set aside.
  • Respondent re-sentenced to 19 years imprisonment, comprising:
  • A non-parole period of 13 years commencing 12 January 2018 and expiring 11 January 2031.
  • A balance of term of 6 years commencing 12 January 2031 and expiring 11 January 2037.
  • Respondent eligible for release on parole on 11 January 2031.

Key Takeaways

  • A sentence may be manifestly inadequate even where the sentencing judge correctly identifies the objective seriousness of the offence, if the penalty ultimately imposed does not correspond with that assessment when weighed against the full constellation of aggravating factors.
  • Where a victim suffers catastrophic and permanent physical consequences, including paraplegia and lifelong care needs, courts treating that harm as a significant aggravating feature will expect sentencing outcomes to give it substantial weight.
  • The Court of Criminal Appeal confirmed that a respondent's attempt to manufacture a false alibi through witnesses at trial is relevant to rehabilitation prospects, the need for personal deterrence, and community protection, even if it does not separately operate as an aggravating factor.
  • Under s 5D of the Criminal Appeal Act 1912 (NSW), the Crown must establish manifest inadequacy before the Court of Criminal Appeal will intervene; once error is established, the Court then considers whether residual discretion warrants declining to re-sentence.
  • A finding of special circumstances, justifying a longer balance of term relative to the non-parole period, remains available to a first-time custodial offender of relatively young age even where the offending is extremely grave and subjective circumstances are otherwise unfavourable.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 29, 33A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, ss 3A, 21A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Chaouk v R [2017] NSWCCA 295
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Devaney v R [2012] NSWCCA 285
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Haines v R [2012] NSWCCA 238
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Melbom v R [2011] NSWCCA 22
- Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Jennar [2014] NSWCCA 331
- R v Koloamatangi [2011] NSWCCA 288
- R v Reeves [2014] NSWCCA 154
- R v WC [2008] NSWCCA 268
- Williams v R [2012] NSWCCA 172