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District Court 20 September 2024

R v Farrell

[2024] NSWDC 559

Assault & violenceFirearms & weapons
CRIME SENTENCE

Citation: R v Farrell [2024] NSWDC 559
Court: District Court of New South Wales
Date: 20 September 2024
Judge: Bourke SC DCJ

Background

The offender was sentenced for one count of discharging a firearm with reckless disregard for safety, contrary to s 93GA(1) of the Crimes Act 1900. The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of five years. A further offence of knowingly driving a stolen conveyance was taken into account on a Form 1.

The events arose on the evening of 11 October 2022. The offender and another male attended a unit at a social housing complex in Cabramatta, motivated by information that a friend of the offender had been drugged and sexually assaulted inside that unit. The agreed facts established that the offender knew his companion was armed with a .22 calibre rifle, and foresaw the possibility that the rifle would be discharged with reckless disregard for the safety of any person inside, as part of a plan to intimidate the occupant.

Three shots were fired through the front door of the unit. The victim, who was inside at the time, was struck by a bullet to the right shoulder. He was hospitalised and the bullet was surgically removed the following day. The offender, notably, was himself found the next morning with bullet wounds to his leg and later underwent surgery. He was ultimately arrested in July 2023 following a controlled undercover operation.

  • The appropriate sentence for an offence under s 93GA(1) of the Crimes Act 1900, having regard to the maximum penalty and standard non-parole period
  • The objective seriousness of the offending, including the offender's role as an accessory rather than the shooter
  • The weight to be given to the offender's subjective circumstances, including mental health, childhood trauma, and time in custody
  • Whether a 25% utilitarian discount for the guilty plea was warranted
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • The sentencing effect of the Form 1 offence (knowingly driving a stolen conveyance)

Decision

His Honour found the offending to be of significant objective seriousness. The discharge of a firearm into an occupied dwelling, resulting in actual injury to the victim, placed the conduct toward the more serious end of the spectrum for this type of offence. His Honour noted that comparable cases generally did not involve a victim being struck by a bullet, which distinguished the present matter from much of the available sentencing data.

While the offender was not the shooter, his liability arose through a joint criminal enterprise. His Honour found that the offender's awareness of his companion's rifle, and his foresight that it might be discharged, engaged his criminal responsibility under the agreed facts. The retributive motive, responding to the reported assault of a friend, was acknowledged as context but did not significantly diminish the objective gravity of the conduct.

On subjective matters, the court accepted evidence of the offender's difficult upbringing, mental health conditions, and the fact that this was his longest period of full-time custody. A finding of special circumstances was made on this basis, justifying a modest adjustment to the standard non-parole period ratio. The 25% guilty plea discount was applied.

The Form 1 offence, involving a separately stolen vehicle used during the broader sequence of events, was treated as warranting a slight increase to the overall sentence, particularly to address personal deterrence and community expectations of retribution.

Orders Made

  • Head sentence of five years and ten months imprisonment, commencing 25 September 2023 and expiring 24 July 2029
  • Non-parole period of three years and ten months, expiring 24 July 2027
  • The Form 1 offence (knowingly driving a stolen conveyance) taken into account
  • Published versions of the remarks on sentence to be anonymised with respect to victim and witness names

Key Takeaways

  • A finding of special circumstances in sentencing is available where an offender's mental health difficulties and the length of their current custodial term together justify a departure from the standard non-parole period ratio.
  • Participation in a joint criminal enterprise to intimidate, where the offender was aware his companion was armed and foresaw the possibility of discharge, can ground liability for the principal offence even where the offender was not the shooter.
  • The District Court treated the fact that a victim was actually struck by a bullet as a distinguishing feature that placed the conduct toward the upper range for offences under s 93GA(1), relative to comparable decided cases.
  • Under the Crimes (Sentencing Procedure) Act 1999, a Form 1 matter does not automatically increase the sentence for the substantive offence; the sentencing judge retains discretion to assess whether an increase is warranted in the individual case.
  • A motive grounded in retaliation for an assault on a friend, while providing some context for the offending, does not substantially reduce the objective seriousness of discharging a firearm into an occupied dwelling.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93GA(1), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Barlow v R [2008] NSWCCA 96
- Dixon v R [2020] NSWCCA 123
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Powell v R [2014] NSWCCA 69
- Quealey v R [2010] NSWCCA 116
- R v Mitchell [2007] NSWCCA 296
- R v Swan [2006] NSWCCA 47
- Zabakly v R [2021] NSWCCA 155