R v Munoz [2003] NSWCCA 133

New South Wales Court of Criminal Appeal

CITATION : R v Munoz [2003] NSWCCA 133 revised - 09/05/2003 HEARING DATE(S) : 30/4/03 JUDGMENT DATE : 30 April 2003

JUDGMENT OF : Wood CJ at CL at 1, 28; Simpson J at 27 DECISION : Leave to appeal granted. Appeal dismissed.

CATCHWORDS : CRIMINAL LAW - appeal against severity of sentence - using an offensive weapon with intent to prevent a member of the Police Service from investigating an act reasonably calling for investigation - discharging a firearm in a manner likely to endanger the safety of others - importation of cocaine into Australia. Appeal dismissed. LEGISLATION CITED : Crimes Act 1900 Customs Act (Cth) 1901 R v Bahsa [2003] NSW CCA 36 R v Bazzi [1999] NSWCCA 346 CASES CITED : R v Greene [2001] NSWCCA 258 R v Hamilton (1993) 66 A Crim R 575 Pearce v The Queen (1998) 194 CLR 610 R v Watts [2000] NSWCCA 167 PARTIES : Regina David Alexander Munoz FILE NUMBER(S) : CCA 60029/03 COUNSEL : L M B Lamprati (Crown) A C Haesler (Applicant) SOLICITORS : S E O'Connor D J Humphreys

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0323; 01/11/1248 FILE NUMBER(S) : LOWER COURT Holt DCJ JUDICIAL OFFICER :

- 2 - IN THE COURT OF CRIMINAL APPEAL 60029/03

WOOD CJ at CL SIMPSON J

Wednesday 30 April 2003 Regina v David Alex Munoz Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence of imprisonment for a fixed term of two years for an offence of using an offensive weapon with intent to prevent a member of the Police Service from investigating an act reasonably calling for investigation. Such offence is one for which the maximum available sentence pursuant to s 33B of the Crimes Act is imprisonment for twelve years. 2 At the same time he was sentence to a cumulative fixed term of two years for an offence under s 93G of the Crimes Act for discharging a firearm in a manner likely to endanger the safety of others; and to two separate terms of six years, each cumulative upon the State offences, but concurrently with each other, for offences of having been knowingly concerned in the importation of cocaine into Australia contrary to s 233B of the Customs Act 1901. 3 The total sentence was accordingly one of ten years with an effective non-parole period of six years and nine months. The non-parole period was expressed to commence at the expiration of the fixed terms for the two State offences. 4 The application for leave to appeal is confined to the s 33B offence, it being submitted that the accumulation of sentences in relation to the two State offences resulted in a sentence that was manifestly excessive. Otherwise it was accepted that the sentences were appropriate. 5 The firearms offences were extremely serious having regard to the circumstances in which they were committed. On 15 July 2001, a resident of the premises in McGirr Parade, Warwick Farm, was seriously assaulted by a group of men. The applicant, who lived in premises in the same street, took it upon himself, the following day, to mount an attack upon the unit in which he believed the men responsible for the assault were living. This he did by firing a number of shots in its direction, initially from a distance, and later at close quarters. He used a rifle and a shortened firearm for this purpose. 6 He managed at some stage to enter the building and whilst inside he discharged more shots. Police were called and set up a perimeter and an operation to defuse the siege which developed. 7 After a standoff lasting approximately seven hours, during which police endeavoured to negotiate with the applicant, both by loudhailer and telephone, he eventually surrendered. However, this was not before a total in excess of 140 shots were fired. 8 Fortuitously no one was hurt in the incident. No shots were fired directly at police but clearly the presence of the applicant in the building, and the discharge of weapons while the police were outside, effectively prevented them from safely investigating the incident; safely, I say, not only for their own personal health, but also for that of other residents inside the building or indeed the residents of other nearby premises. 9 At the time of these events the applicant was suffering from symptoms which were considered to have been consistent with a major depressive episode. He was on bail for the Customs Act offences when he engaged in each of the s 33B and s 93G offences. Additionally, as a matter of some seriousness in relation to these offences, he had a prior record which included offences against public order, as well as offences of assaulting police and resisting arrest. 10 It was accepted by the applicant that the s 33B offence was extremely serious, but it is also contended that the two years' accumulation of sentence was excessive, and that sentence itself was excessive, for a case where: