District Court New South Wales Medium Neutral Citation: R v Farrell [2024] NSWDC 559 Hearing dates: 19/9/24, 20/9/24 Date of orders: 20/9/24 Decision date: 20 September 2024 Jurisdiction: Criminal Before: Bourke SCJ Decision: Convicted and sentenced to a term of imprisonment of 5 years 10 months with a NPP of 3 years 10 months (25/9/23-24/7/27). I find special circumstances. Form 1 taken into account. Catchwords: Crime – Sentence - Fire firearm at dwelling house with disregard for safety Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: 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 Category: Sentence Parties: NSW DPP – Crown Aaron Farrell - Offender Representation: Mr H Cavanagh for Crown Mr M Hawila for Offender File Number(s): 23/239019 Publication restriction: The names of any victims or alleged victims have been anonymised remarks on sentence 1. Mr Aaron Farrell is for sentence today in relation to an offence of discharging a firearm with reckless disregard for safety, that being an offence under s 93GA(1) of the Crimes Act 1900. That is an offence which carries a maximum penalty of 14 years imprisonment and which has a standard non-parole period specified, namely one of five years. The maximum penalty and the standard non-parole period are of course important guide posts in the sentencing exercise and I have had regard to them in that sense. 2. The offender pleaded guilty to the offence and is therefore entitled to a 25% discount by reason of that plea and its utilitarian value. In sentencing him for the offence he also asks that I take into account on a Form 1 document a further offence to which he admits that being an offence under s 154A subs (1) (b) of the Crimes Act of knowingly drive a stolen in conveyance. FACTS 1. The facts of the offences are agreed and relevantly summarised are as follows. 2. The victim of the sequence 5 which is the Form 1 matter offence was Mr DO. He was the owner of a 2012 model white Mitsubishi Triton which had certain distinctive modifications. On the evening of 6 October 2022 Mr DO parked the Mitsubishi in the carpark of a four wheel drive accessory store at Prestons. The intention was that staff of that store would carry out some work on the vehicle the next day. However, at 9am the next day Mr DO received a call from the shop asking whether he intended to bring the vehicle in, to which he replied that he had already left it in the carpark and that he had left the keys in a lockbox at the store. The staff of the store however confirmed that the vehicle was not there and nor were the keys. 3. The facts then lead into events which relate to 11 October 2022 in which the Mitsubishi plays a small part. It was on 11 October 2022 that the sequence 6 discharge firearm offence occurred. The victim of that offence in a direct sense was Mr MH, who at the time of the offence was inside a unit at 7/32 Park Road, Cabramatta. That unit was located within a social housing apartment complex which was surrounded by a carpark which serviced Cabramatta Plaza, which is a shopping mall which contains a Woolworths store as well as other stores. 4. On 10 October the facts note Ms KA, and I note that in any published version of these remarks on sentence her name will be anonymised, attended at unit 7/32 Park Road. She was a friend of Mr MH and also a friend of the offender. When she attended the unit on that afternoon she did not intend to stay the night. However, the statement of facts records that the persons inside the unit were consuming the drug Gamma-Hydroxybutyrate also known has GHB. The next agreed fact is that when Ms KA awoke in a bedroom inside unit 7 the next day which was 11 October she found that she was wearing no bra, pants or underwear. As a result of this, it seems at around 8.20am she sent text messages to this offender which said "azz - he geed me out". I take it that the reference to "azz" was some sort of nickname for the offender whose first name is Aaron. 5. It is an agreed fact that the expression "geed out" is a slang reference to a person being given GHB to the extent that they have become incapacitated. The offender responded to Ms KA's texts about at 12.40pm that day by asking "who?" to which Ms KA replied "him". The facts do not explain who was meant by "him". However, about five minutes after receiving this message the offender responded by texting "why haven't you came (sic) to me, I just woke up I haven't sleeped (sic) in five days" and also "where do I go". After this Ms KA called the offender and he collected her from a carpark next to 32 Park Road. While travelling in the car driven by the offender Ms KA started receiving photographs and videos from the lessee of unit number 7 at 32 Park Road that being Mr TE. These contained images of Ms KA being sexually assaulted by Mr TE. 6. When Ms KA showed these images to the offender he said "let's go back there right now. Let's get them from him". However, despite this suggestion, Ms KA and the offender did not return to 32 Park Road, but drove to the offender's residence in Liverpool. As I have already noted, these events took place on 11 October 2022. 7. At 10pm in the evening of that same day the victim Mr MH attended unit 7 at 32 Park Road. At the time there were no other persons inside the unit. Commencing at about 10.58pm that night, CCTV recorded the Mitsubishi with its distinctive marks travelling east along Hughes Street in the direction of Park Road, Cabramatta. The offender was the driver at that time. 8. At about 11pm that night Mr Becker, who was a resident of the unit in Park Road, left his unit to collect his wife from work. Mr Becker walked across Park Road into the carpark next to the complex at 32 Park Road where he saw the stolen Mitsubishi. He then saw three males, one of whom was this offender, walk towards the apartment complex at 32 Park Road. Mr Becker then waited at the window of a real estate agent at the entrance to Cabramatta Plaza which backs onto 32 Park Road. Inside unit 7 of 32 Park Road, Mr MH was sitting on the lounge having returned from the bathroom. He then heard two knocks on the door and walked towards the door to answer it. On his approach to the door and while near the kitchen of the unit, Mr MH heard loud banging on the door. He began swearing at those on the other side of the door stating "you fucking trying to break the door". 9. At 11.05pm Mr Becker heard five "loud thumps" coming from 32 Park Road. He then heard a male yell "fuck off" and then heard another loud thump. Inside the unit, amongst the loud banging, Mr MH then felt the sensation of being "hit" and then realised that a bullet had entered his right shoulder. Mr Becker and his wife then walked back through the carpark located next to 32 Park Road, at which time the white utility with canopy, that being the Mitsubishi I assume, was no longer in the carpark. At 11.10pm Police were notified of the shooting and they attended the stairwell of the complex where they observed the victim Mr MH, who informed them that he had been shot through the door. Police observed three bullet holes in the door to unit 7 and, on entering the unit, observed a ricochet mark on the right hand side of the hallway consistent with the impact of a bullet fired from the direction of the front door and an impact mark on the wall directly opposite the hallway also consistent with the impact of a fired bullet. 10. Police identified three fired cartridge cases outside the front door of unit 7. These were determined to be consistent with formerly being a component of a complete .22 long/long rifle caliber CCI cartridge, and had each been discharged from the firearm. Mr MH was conveyed to Liverpool Hospital where his principal diagnosis was determined to be a single gunshot wound to the anterior chest overlying the right pectoralis anterior muscle. The bullet was removed on 12 October 2022 and he was discharged from Liverpool Hospital on that date. 11. At 6.25am on 12 October 2022 the offender was found lying on the footpath outside some premises in Charles Street, Liverpool with apparent bullet wounds to his leg. The offender was conveyed to Liverpool Hospital and underwent surgery. The offender has ongoing pain and may require further surgery. 12. The agreed facts then move to 9 July 2023. On that date, an undercover operative arranged via text message to meet with the offender to discuss a "work opportunity". At about 1pm on 10 July 2023 the undercover operative telephoned the offender while sitting in a parked car near Woolworths at Cabramatta Plaza which is adjacent to the housing complex where the shooting occurred. The offender got into the undercover operative's vehicle and told the undercover operative that he and another male who was armed with a .22 Caliber rifle had attended the Park Road address after being informed that Ms KA had been sexually assaulted inside the unit and that the other male had discharged the firearm towards the unit into the front door. 13. The agreed facts note that both the offender and the other person agreed to go to unit 7 at 32 Park Road with the intention of intimidating Mr TE. The offender was aware the other person would be armed with a rifle as part of the agreement to intimidate TE. The offender foresaw the possibility that the other person may discharge the rifle with reckless disregard to the safety of any person inside the unit in furtherance of the enterprise to intimidate Mr TE. 14. The offender was arrested on 27 July 2023. Those then are the facts upon which the offender is to be sentenced. OBJECTIVE SERIOUSNESS 1. I turn then to consider the objective seriousness of the offence. Any offence under s 93GA(1) is obviously a potentially very serious one. That much is clear from the maximum penalty of 14 years imprisonment and the fact that a standard non-parole period of five years has been specified. However the maximum penalty is reserved for the worst case and so it is important that I make an assessment of the relative seriousness of the particular offence before the Court by reference to its objective features. The discharge of a firearm towards a house with reckless disregard to the safety of others is an extremely dangerous and antisocial act which ordinarily requires serious punishment: Powell v R [2014] NSWCCA 69 at para [38]. 2. In assessing the objective seriousness it is relevant to take into account the number of shots fired, the offender's role, the offender's knowledge about the presence of persons inside the premises as well as any planning: Quealey v R [2010] NSWCCA 116. In this matter the offender attended at the premises with two other persons knowing that one of those persons was armed with a .22 caliber rifle. The offender told the psychologist Anthony Diment that he "never intended this to happen. That's the shots being fired". However the statement of facts records that the offender was aware that the other person would be armed with a rifle and that he foresaw the possibility that the other person may discharge the rifle with reckless disregard for the safety of anyone inside the unit. It follows that I do not accept the offender's claim that he "never intended this to happen". 3. Having said that, I do not conclude that the offender attended the premises with a settled plan that the firearm would be discharged. There remains the reasonable possibility that the decision by the co-offender to fire the weapon was a spontaneous one. On the other hand, it cannot be said that the offender's decision to go to the premises with a person armed with a firearm was overly spontaneous or totally unplanned. The facts indicate that after learning what had happened to Ms KA the offender had placed himself in the company of two other persons, one of whom was armed with a rifle, and that he had then driven them all to the location where the shooting took place. While the offender was not the actual shooter, it follows from the agreed facts that he either believed that the weapon was loaded, or was aware of the risk that it was loaded. 4. Given the standard of proof that applies in finding aggravating matters, I proceed on the basis that I am satisfied beyond reasonable doubt that the offender knew there was at least the risk that the weapon was loaded and also, as I have said, that he foresaw the possibility of that weapon being discharged. 5. Another issue in the proceedings which is relevant to the objective seriousness of the offence and the offender's moral culpability is the question of his knowledge or belief about the likelihood that there would be or was in fact a person or persons inside the unit at the time. 6. The Crown argued that I would be satisfied that the offender did know or believe that there was or was likely to be a person or persons inside. In support of this argument the Crown submitted that the offender's purpose in going to the unit was to intimidate the occupant or occupants and that his attendance there was very proximate to his collecting Ms KA. 7. The Crown also pointed to the agreed fact that Mr MH heard two knocks on the door apparently before any shots were fired and also that he began swearing at those on the other side of the door stating "you fucking trying to break the door", together with the fact that Mr Becker at around the same time heard a male yell "fuck off". The Crown argued that what Mr Becker heard was either Mr MH shouting at the offenders from inside the unit or alternatively that the words "fuck off" were said by one of the offenders and were directed towards persons thought to be inside the unit. I have considered each of these arguments. 8. Firstly it seems improbable that the words Mr Becker heard were those of Mr MH given that MH was behind a closed door and Mr Becker it seems was away from the apartment block and waiting for his wife near the window of a real estate agent. It is more likely that the words that Mr Becker heard were uttered by one of the offenders, although it is not possible to say which one. The Crown argued that if it was one of the offenders who had shouted "fuck off", then that person must have been talking to someone and that I should conclude that the comment was directed towards persons thought to be inside unit 7. While that is a possibility it is highly speculative and is not a conclusion I can reach beyond reasonable doubt. 9. However and as already noted, the purpose in the offender attending at the unit was to intimidate Mr TE in retribution for a sexual assault which the offender apparently believed had been perpetrated by Mr TE on Ms KA. There was also the fact that one of the offenders, although which one I cannot say, knocked on the front door of the unit before the three shots were fired. Having regard to these matters and in particular the fact that the sole purpose in the offender going to the unit was to intimidate one of the suspected occupants, it is highly probable that the offender thought there was a person or persons inside the unit. I will proceed however on the basis that I am satisfied beyond reasonable doubt that the offender knew there was at least a possibility that a person or persons were present in the unit when the shots were fired. 10. Given that the shots were proceeded by knocking on the door, I am also satisfied beyond reasonable doubt that the offender must have known that there was at least a possibility that a person or persons may be in the vicinity of the door when the shots were fired. As I have noted numerous times, the offence involved not just one, but three shots apparently fired in quick succession. All three shots were however fired on the one occasion and did not involve "return visits", as in the case of Quealey v R to which I have made reference earlier. 11. The fact that there were three shots fired clearly increased the risk that someone inside the unit would be injured or killed, and indeed that risk materialised in that Mr MH, who was not even the intended target of the intimidation, was hit in the shoulder by one of the shots. He had to be taken to hospital where the bullet was removed and he was discharged the next day. The area of the body where he was hit was his upper chest, so it was only a matter of luck that he was not more seriously injured or killed. The premises in question were also a part of a social housing complex and so there was also some risk posed to others who may have been in that complex. 12. It was agreed in the sentencing hearing yesterday that there is no prohibition, in a R v De Simoni sense, on my taking into account the injuries suffered by Mr MH. The offender argued that the nature of the weapon, being a .22 rifle, reduced the objective seriousness when compared with the use of some other weapons such a machine gun or a shot gun. I do not however accept that this necessarily follows. Much depends on the circumstances. This would include how close the weapon is to the premises when it is discharged. It will depend also on the physical nature and structure of the particular portion of the premises at which the weapon is discharged. For example whether it is a glass window, a wooden door, or a brick wall. It will depend also on the penetrating capacity of the projectile involved. 13. It is well known I think that while a shotgun discharged at medium or close range at a human body will usually be of lethal effect, the same discharge from a shotgun is likely to have minimal penetrating impact when fired at a residential building, even at fairly close range. An example of this is provided by the circumstances of the second shot directed at the residence in Quealey (see para (16) of that case). In the matter before the Court however it is clear that the rifle was discharged in very close proximity to the front door of the premises. I draw this conclusion from the agreed fact that three discharged cartridges were found "outside the front door", that there were "three bullet holes in the door", and that one of the bullets penetrated not only the door, but also Mr MH's upper chest. 14. The fact therefore that the weapon was a .22 rifle does not in my view reduce the seriousness of the offence. The fact that the offender was not the one who pulled the trigger places the offender at a lower level of criminality to his co-offender who actual fired the shots. However and while the disparity between their respective criminality is for this reason significant, it is not overly large. I come to this view by reason of the various matters to which I have referred above and in particular my findings that the offender attended the premises with the intention to intimidate, that he had knowledge that his co offender was armed, knew of the risk that the weapon was loaded and may well be discharged, and was aware of at least the possibility that there were persons inside the premises. 15. The offender argued as a matter of mitigation that his motive in committing the offence reduces his moral culpability and the objective seriousness of the offence because there was some provocation arising from the belief that a friend had been sexually assaulted in the house. The relevance of motive will vary depending on the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. However the more serious the offence the less weight that can be given to motive as a mitigating factor: R v Mitchell [2007] NSWCCA 296. But the existence of a motive may be relevant to other factors which may impact on the sentencing discretion. In some cases such as where an offender has no prior offences it may indicate that little or no weight should be attached to personal deterrence: R v Mitchell previously citied; see also R v Swan [2006] NSWCCA 47. 16. In the case now before the Court I accept that the offender's motive provides context and some explanation for his conduct. However it provides little if any mitigation because the random nature of shooting at the door clearly involved a serious risk to anyone inside the house regardless of whether or not they were implicated in any sexual assault. Furthermore, vigilantism such as this, with its potential to harm innocent bystanders and lead to "tit for tat" responses, cannot be tolerated in a civilised society: Barlow v R [2008] NSWCCA 96. It is for this reason that general deterrence is ordinarily very important in such cases. Also I am of the view that personal deterrence remains important in this case given the offender's previous history of multiple appearances before the Courts. 17. Having regard to the various matters I have mentioned, I am of the view that this was a serious example of the type of offence caught by s 93GA(1). I assess it as being within the mid-range of objective seriousness. I assess the offender's moral culpability as being moderately high. MENTAL HEALTH 1. It was argued on behalf of the offender that the offence and his moral culpability are mitigated because of a suggested connection between his mental health and the offence. In this regard, the psychologist Mr Diment speaks about a "likely nexus" between the offender's anxiety and depression and heightened emotional arousal in his commission of the shooting offence. 2. This suggestion however has to be considered alongside the comments in the Sentencing Assessment Report where it is noted that the offender "repeatedly stated that he could not specifically recall the events prior to or during his offences due to his high level of substance use" and that he was only able to recall his general attitudes regarding factors which contributed to his offending. Given this evidence, and the absence of any evidence from the offender on sentence, I do not accept that there was any direct connection between his mental health and the offending. I do however accept that the offender's mental health was a contributing factor in the sense that it made him more prone to making bad decisions including his involvement in this offence and his choice to continue taking drugs. SUBJECTIVE MATTERS 1. Turning then to subjective matters relating to Mr Farrell himself. He is now aged 27. His criminal history does not assist him. It is fairly lengthy for a man of his age, and it is indicative of someone with a long-term drug problem. The Court has been informed about his background and current circumstances by means of the psychological report of Anthony Diment. The offender was born in Sutherland. Although his family life appears to have been fairly stable, he spent a lot of time with his grandparents because his mother and father were off working. He did not report any history of domestic violence or parental drug or alcohol abuse. He struggled at school however, and in mid high school was sent to a "behavioural school" until he left in Year 10 when he was about 16. 2. He reported having been diagnosed with Attention Deficit Hyperactivity Disorder when he was seven or eight and being placed on Ritalin which he said did not really help. After leaving school he did labouring jobs and started a course in mechanics, but he did not finish it. He suffered depression and anxiety since childhood, but denied having received any consistent treatment from psychologists or psychiatrists. The offender has a history of drug use from about 15 years of age which commenced with cannabis, but since about 18 he has been using ice and heroin. He told the psychologist that since being in custody and off drugs he feels much better and would like to stay off drugs. Whether he can do so remains to be seen and is essentially a matter for him. 3. The offender also told the psychologist about an incident about two years ago where he was shot in the leg while walking in the street. It is apparent that this is the same incident that is referred to in the agreed statement of facts wherein the offender was found in the street at about 6.25am the morning after the offence with bullet wounds to his leg. It was argued on behalf of the offender that this should be taken into account as a form of extra curial punishment in that it was a form of "payback" for the offender's involvement in shooting at the door of unit 7 the night before. However there is little if any evidence to support this conclusion, aside from the proximity in time and the fact that both incidents involved guns. The agreed statement of facts say nothing about any connection between the two incidents, and while the offender spoke about his own shooting to the psychologist the report of the psychologist says nothing about any connection between the incidents. Furthermore the offender gave no evidence in the sentence hearing yesterday. I am therefore not satisfied that the shooting of the offender amounts to extra curial punishment. However this incident continues to have its effects on the offender by reason of nerve damage to his leg and also recurrent anxiety and dreams about being chased and shot. I have therefore taken this into account as part of his general subjective circumstances. 4. Ultimately the psychologist reached the conclusion that the offender suffers the following conditions: Post-Traumatic Stress Disorder, persistent Depressive Disorder with anxiety and Substance Use Disorder. I take this into account generally, but also in the sense that I accept that it has and will continue to make his time in custody more difficult. In that regard I cite the well-known case of DPP (Cth) v De La Rosa [2010] NSWCCA 194. REMORSE AND REHABILIATION 1. Turning to questions of remorse. The offender told the psychologist that he regretted becoming involved in the offences and that he feels bad for the victim of the shooting. He also told the psychologist that he became annoyed when he thought his friend had been sexually assaulted and that he went with the other guy, but never intended for the shots to happen. I have earlier in these remarks said that I am satisfied beyond reasonable doubt that the offender knew there was at least the risk that the weapon was loaded, and that he foresaw the possibility of the weapon being discharged. 2. The offender also told the psychologist that he feels bad about the victim of the shooting and regrets what happened to him, but said he was himself on drugs at the time and was not thinking clearly. This is consistent with the Sentencing Assessment Report which notes that the offender said he was embarrassed and sorry for what he had done and that he was not considering the consequences due to his being affected by drugs. While the offender did not give evidence on sentence, I do accept based on the offender's comments to the psychologist and to the author of the Sentencing Assessment Report, that there is some genuine remorse in this case. 3. Turning then to questions of future risk and prospects of rehabilitation. The offender has been assessed as a medium risk on the LSI-R assessment tool which is noted in the Sentencing Assessment Report. The psychologist points to a number of matters that he suggests support positive prospects of rehabilitation, including his remorse and the fact that he has stable accommodation available with his parents in Bundeena. The other matters referred to by the psychologist are at the moment however no more than expressed intentions of the offender, and the question of whether he is able to put these intentions into effect is yet to be seen. Given his criminal history, which includes offences committed after the offence before the Court, as well as his long term drug and other problems, I think he remains at least a medium risk of reoffending. I am unable to reach a favourable view of his prospects of rehabilitation, which are at best uncertain. DETERMINATION 1. In coming to the ultimate sentence I have had regard of course to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which I do not intend to recite. All of them are important in my view in this case. 2. I have earlier said that general deterrence is a fundamentally important aspect in sentencing for offences of this kind. However I do accept that by reason of the offender's apparent long term mental health problems that the importance of general deterrence is reduced to some degree in his case. I am satisfied for the purposes of the s 5 of that same Act that no penalty other than imprisonment is appropriate. 3. In determining the ultimate sentence I have had regard not only to the maximum penalty and the standard non-parole period, but also to statistics prepared by the Judicial Commission and also to a number of decisions of the New South Wales Court of Criminal Appeal. Those cases have included Quealey v R which I have earlier citied, Powell v R which I have earlier citied, Dixon v R [2020] NSWCCA 123 and Zabakly v R [2021] NSWCCA 155. I do not suggest that any of those cases are directly comparable. Their objective facts and the subjective features of each offender are of course different. The first two cases that I referred to were before the standard non-parole period applied, and in Powell and in Zabakly, the offender had been found guilty after trial. On the other hand none of these cases involved a situation where an occupant of the house was actually hit by a bullet. Nonetheless these cases and the statistics to which I have referred have provided some broad assistance. 4. As earlier noted, there is a Form 1 offence to be taken into account and I note that it is an offence that involves a completely separate piece of offending. As is well known, Form 1 matters may have the effect of increasing the sentence for a substantive offence. That does not necessarily flow and in each case it really is a matter for the individual Judge to assess whether or not that should occur. In this matter it seems to me that the Form 1 should have some effect in increasing slightly the ultimate sentence to be imposed by reason of the need for personal deterrence and the community's entitlement to extract retribution for serious offences. 5. I have made a determination of special circumstances to some extent in this case. I base that upon the offender's mental health issues and this being his longest period in full time custody. 6. I impose a head sentence of five years ten months. I impose a non-parole period of three years ten months. Those will each date from the agreed date which is 25 September 2023. The head sentence therefore will expire on 24 July 2029 and the non-parole period on 24 July 2027. 7. Anything that the advocates need to raise about any of those dates or anything else? 8. HAWILA: Not from the defence your Honour. 9. CAVANAGH: No your Honour. 10. HIS HONOUR: Is there a need for any non-publication orders in relation to some of those names like Mr TE and Ms KA, are there trials outstanding or something or-- 11. HAWILA: Your Honour as I understand it no one's been charged in relation to any of the offending referred to in the facts generally-- 12. HIS HONOUR: Alright. 13. HAWILA: It's in those circumstances where perhaps so as not compromise if any potential action which might be taken in relation to other conduct which motivated or the co-accused or potential co-accused perhaps it might be wise at least in respect of names. I hadn't turned my mind to it-- 14. HIS HONOUR: Any version of that sentence which is published will be anonymised certainly in respect of those names of any victims or alleged victims. 15. HAWILA: I'm grateful. 16. HIS HONOUR: Thank you, the Court will adjourn. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2024