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District Court 13 February 2020

R v Birchell

[2020] NSWDC 69

Firearms & weaponsPublic order & justice offences
CRIME SENTENCE

Citation: R v Birchell [2020] NSWDC 69
Court: District Court of New South Wales
Date: 13 February 2020
Judge: Colefax SC DCJ

Background

The offender was a man in his mid-forties who had been working informally as a driver, essentially providing a private ride service for small cash payments. In September 2018, he drove a man named Chandler to a home unit without knowing the purpose of the trip. Chandler was carrying a concealed firearm, which the offender did not see or know about.

Chandler went inside and shot another man, Pillay, in the leg over a drug-related dispute. When Chandler and a companion returned to the car, the offender still had no knowledge of what had occurred. At this point, he remained entirely innocent of any offending.

Approximately 15 minutes into the return journey, the offender asked what had been going on and was told by Chandler that he had just shot Pillay. Despite learning this, the offender completed the journey and dropped them off, without any compulsion to do so. That decision formed the basis of his criminal liability.

  • Whether the offender's conduct after learning of the shooting constituted being an accessory after the fact of the discharge of a firearm intended to cause grievous bodily harm, contrary to ss 33A(1)(a) and 344 of the Crimes Act 1900 (NSW).
  • Where on the range of objective seriousness this offending fell.
  • What sentence was appropriate given the offender's subjective circumstances, criminal history, and plea of guilty.
  • Whether a period of actual imprisonment was required, as submitted by the Crown, or whether a community correction order was available.

Decision

Colefax SC DCJ accepted the agreed facts and found the offending was clearly established. The offender became liable only from the moment he learned of the shooting and nonetheless continued to assist Chandler by completing the journey. His conduct before that disclosure attracted no criminal responsibility whatsoever.

On objective seriousness, the court placed the offending towards, if not at, the bottom of the range for this type of offence. The offender had no knowledge of the shooting until after it had occurred, had not been involved in any planning, and had completed only a very short remaining distance after learning the truth.

Turning to subjective circumstances, the court noted several significant factors in the offender's favour. He had a long history of employment, was an accomplished professional boxer and trainer, had made impressive community contributions particularly in guiding young Aboriginal men, was genuinely remorseful, and carried only one dated prior conviction from 2006 (which was not treated as an aggravating factor). His prospects of rehabilitation were assessed as extremely good. The early guilty plea attracted a 25 percent discount.

The court declined to follow the Crown's submission that a period of imprisonment was unavoidable. Taking the objective seriousness of the offending together with the offender's strong subjective circumstances, the court found a community correction order was the appropriate sentence.

Orders Made

  • The offender was sentenced to a community correction order for a period of 2 years.
  • Standard conditions applied: the offender must not commit any offence and must appear before the court if called upon during the term of the order.
  • No supervision requirement was imposed.
  • An additional condition required the offender to notify the registrar in writing of any change of residential address during the term of the order.

Key Takeaways

  • Liability as an accessory after the fact requires knowledge of the principal offence. The District Court confirmed that the offender bore no criminal responsibility for anything that occurred before he was told about the shooting.
  • Under s 344 of the Crimes Act 1900 (NSW), completing an act of assistance after acquiring knowledge of a serious offence is sufficient to constitute accessorial liability, even where the assistance involves only a short further car journey.
  • A sentencing court retains discretion to impose a community correction order rather than a custodial sentence, even where the Crown submits that imprisonment is necessary, provided the objective seriousness and subjective circumstances together support the less severe outcome.
  • Exceptional community contributions, strong rehabilitation prospects, genuine remorse, and an early guilty plea can collectively justify a non-custodial sentence for an offence carrying a maximum of five years' imprisonment.
  • A single dated prior conviction, where not treated as an aggravating factor, does not automatically deny an offender all benefit of character evidence, though it does preclude the leniency available to a true first offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33A(1)(a) (discharge of firearm with intent to cause grievous bodily harm)
- Crimes Act 1900 (NSW), s 344 (accessory after the fact)

Cases cited: None stated in the judgment.