Regina v RK [2003] NSWCCA 389

New South Wales Court of Criminal Appeal

CITATION : Regina v RK [2003] NSWCCA 389 HEARING DATE(S) : 08/12/2003 JUDGMENT DATE : 8 December 2003

JUDGMENT OF : Hidden J at 1; Smart AJ at 11 DECISION : See para 10

CATCHWORDS : CRIMINAL LAW: Application for leave to appeal against sentence - serious offences, but valuable assistance to authorities - applicant in danger - reduction of non-parole period. LEGISLATION CITED : Crimes Act 1900 Firearms Act 1996 PARTIES : Crown RK FILE NUMBER(S) : CCA 60387/03 COUNSEL : S Kluss - Applicant P Power SC - Crown SOLICITORS : Ross Hill & Associates - Applicant CK Smith - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0987 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60387/03

HIDDEN J SMART AJ

Monday, 8 December, 2003 REGINA v RK Judgment 1 HIDDEN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court in respect of charges of using a firearm without a permit and malicious wounding. The first charge is brought under s 7(1) of the Firearms Act 1996 and carries a maximum sentence of imprisonment for fourteen years. The second charge is brought under s 35 of the Crimes Act 1900 and carries a maximum sentence of imprisonment for seven years. 2 On the first charge, that is the firearm charge, the learned sentencing judge sentenced him to imprisonment for one year to date from 13 October 2001. On the second charge of malicious wounding he was sentenced to an accumulative term of imprisonment for two years, dating from 13 October 2002, with a non-parole period of fifteen months. That non-parole period would expire on 12 January next. Overall, then, the effective sentence was three years with a non-parole period of two years and three months. 3 Given the manner in which the application has unfolded, it is sufficient to refer to the facts very briefly indeed. The applicant fired three shots at the victim of the malicious wounding charge in the area of Bradfield Park at Milson's Point. The victim was hit three times in the leg, lost a large amount of blood and required hospitalisation. The circumstances of the malicious wounding itself are serious enough but the same must be said independently of the circumstances of the firearm charge involving, as it did, the firing of a weapon in a public place. 4 It is unnecessary to turn to the applicant's background or his criminal antecedents. What is of crucial significance for the present case is that he has since provided assistance to the authorities in relation to a number of outstanding matters which the learned sentencing judge described as "extraordinarily valuable". Indeed, what had been before her Honour was some information in sealed envelopes which we have inspected and we would entirely endorse her Honour's description of that assistance. 5 Her Honour had also regard to the applicant's pleas of guilty and found him to be remorseful. Aggregating the discounts to which she felt he was entitled, because of the pleas of guilty and assistance to the authorities, she reduced the sentences which she would otherwise have passed by sixty percent: in anybody's terms a substantial discount, but one which was well merited by the circumstances of the case. It follows that her Honour's global starting point for the two offences, although she did not specify it, must have been something of the order of seven and a half years imprisonment. That is high but in the circumstances of this case I would not be prepared to say it is such as would of itself warrant the intervention of this court. These were serious offences, and again in all the circumstances some measure of accumulation was appropriate. In fixing the non-parole period in respect of the second charge, that is fifteen months, as against a head sentence of two years, her Honour found special circumstances but only such as to enable the overall proportion between the effective sentence and non-parole period to remain at 75 percent. 6 One of the arguments which has been mounted before us is that her Honour should have afforded further leniency by way of reduction of the effective non-parole period because of the applicant's assistance to authorities, his need for protection and in particular, because of evidence which was before her Honour of his having been seriously assaulted while in custody and still being in some danger. Indeed, the evidence before her Honour was that upon his release, whenever that might be, the applicant will be entering a Witness Protection Program. 7 It is this aspect of the case which has troubled me, primarily because we now have before us an affidavit of the applicant fleshing out somewhat the material which was before her Honour and to some extent adding to it. That affidavit discloses that there was yet another assault upon the applicant of which apparently there was no evidence before her Honour, that is, an assault in custody. It also confirms in fairly dramatic terms the fears which the applicant was known to entertain at the time of the sentence, setting out continued threats to the applicant's family by, presumably, the persons who are the targets of the investigations in which he has provided assistance. 8 It is in the light of that additional material, casting light upon and amplifying the material which was before her Honour, that it appears to me that some modest adjustment to the non-parole period is appropriate and I propose an adjustment of the non-parole period which would have the effect of enabling his release at the end of this week. 9 The orders I propose are these. 10 I would confirm the sentence on the first count. I would confirm the head sentence on the second count but I would specify a non-parole period of fourteen months, to expire on 12 December 2003, in lieu of the non-parole period fixed by her Honour. I would direct his release on parole at the expiration of that period. 11 SMART AJ: I agree. 12 HIDDEN J: The orders of the court are those which I have proposed. **********