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District Court 20 September 2024

R v Steven HIRMIZ

[2024] NSWDC 532

Assault & violenceFirearms & weaponsPublic order & justice offences
SENTENCING CRIMES ACT 1900 (NSW) S 93GA(1B) FIRING AT DWELLING HOUSES OR BUILDINGS

Citation: R v Steven Hirmiz [2024] NSWDC 532
Court: District Court of New South Wales
Date: 20 September 2024
Judge: Buscombe DCJ

Background

The offender was convicted by jury of firing a firearm at a dwelling house in Canley Vale on 9 April 2022, in the course of an organised criminal activity, with reckless disregard for the safety of another person. He committed the offence as part of a joint criminal enterprise with a co-offender, Regan Yousiph, driving past a residential address in a hired utility vehicle shortly before 11pm and discharging two 9-millimetre pistols at the front of the home. The parents of a police officer occupied the front bedroom of the house at the time.

The offender had organised the hire of the utility through an associate, taped over the vehicle's plates and signage before the shooting, and coordinated the operation through telephone communications with co-offenders over the preceding days. One of the pistols used was later recovered from the co-offender's home; the second was never found.

The offender was separately sentenced for a guilty plea to possessing a prohibited firearm (a replica pistol) at Abbotsbury on 4 August 2022. That matter was unrelated to the shooting offence and involved a replica pistol that the Crown accepted was essentially a toy.

  • What facts could be established consistently with the jury's verdict, applying the appropriate standards of proof for adverse and favourable findings?
  • What objective seriousness should be attributed to the shooting offence, having regard to the elements of the offence under s 93GA(1B) of the Crimes Act 1900 (NSW)?
  • What weight should be given to the standard non-parole period of six years for the shooting offence and four years for the firearm possession offence?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio.
  • How parity principles applied to sentencing for the replica pistol offence, given the sentence imposed on a co-accused in the Local Court.

Decision

Buscombe DCJ found that the shooting offence was serious. The offender had planned and organised the attack over at least two days, secured a hire vehicle through an associate, purchased tape to conceal the vehicle's identity, and drove with his co-offender to the target address in a suburban street. The occupants of the dwelling were foreseeably at home at that late hour, and the offender had subjectively appreciated the substantial risk to their safety.

The court found beyond reasonable doubt that the offender was an active participant in the joint criminal enterprise, including having a role in organising and facilitating the commission of the offence, though it could not find beyond reasonable doubt that the offender was the person who physically discharged a firearm. The court determined the overall sentence for the shooting offence should be greater than that imposed on the co-offender Yousiph, reflecting the offender's organisational role.

For the replica pistol offence, the court applied parity principles by reference to the sentence imposed on the offender's brother in the Local Court for the same incident, noting the Crown's acceptance that the weapon was essentially a toy. The court concluded that a community correction order was appropriate for that offence, consistent with both parties' agreement that imprisonment was not the only suitable sentence.

The court found special circumstances justifying departure from the standard non-parole period ratio, resulting in a non-parole period of five years against a total sentence of seven and a half years for the shooting offence.

Orders Made

  • Shooting offence (s 93GA(1B), Crimes Act 1900): imprisonment for 7 years and 6 months, comprising a non-parole period of 5 years and a balance of term of 2 years and 6 months, commencing 4 August 2022 and expiring 3 February 2030; non-parole period expires 3 August 2027.
  • Possess prohibited firearm (replica pistol): community correction order for 2 years, commencing 20 September 2024 and expiring 19 September 2026.
  • Earliest parole eligibility date: 3 August 2027.

Key Takeaways

  • Under s 93GA(1B) of the Crimes Act 1900 (NSW), the offence of firing at a dwelling house in the course of organised criminal activity carries a maximum penalty of 16 years imprisonment and a standard non-parole period of 6 years, which the sentencing court treats as a legislative guidepost rather than a fixed starting point.
  • Where an offender is sentenced after trial, adverse findings of fact must be established beyond reasonable doubt, while findings favourable to the offender need only be established on the balance of probabilities.
  • An offender's organisational and facilitative role in a joint criminal enterprise (hiring a vehicle, coordinating co-offenders, purchasing materials used in the offence) can justify a higher sentence than that imposed on a co-offender who participated in the actual shooting.
  • Parity principles apply across co-accused sentenced in different courts: the District Court took into account the Local Court sentence imposed on the offender's brother for the same replica pistol incident when determining the appropriate sentence for the possession offence.
  • Special circumstances can justify departing from the standard non-parole period ratio, producing a longer balance of term relative to the non-parole period than the statutory default.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93GA(1B)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5AA, 21A(2)(e)

Cases:
- White v R [2016] NSWCCA 190