Regina v WM [2004] NSWCCA 53

New South Wales Court of Criminal Appeal

CITATION : Regina v WM [2004] NSWCCA 53 HEARING DATE(S) : 6 February 2004 JUDGMENT DATE : 12 March 2004

JUDGMENT OF : Grove J at 1; Sully J at 2; Bell J at 87 DECISION : Crown appeal allowed; Sentences passed in District Court quashed; Respondent re-sentenced as per paragrah 85 of judgment

Crimes (Sentencing Procedure) Act (NSW) LEGISLATION CITED : Crimes Act 1900 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Reg v Thomson and Houlton (2000) 49 NSWLR 383 CASES CITED : Reg v NP [2003] NSWCCA 195 Reg v Ellis (1986) 6 NSWLR 603 Reg v Hallacoglu (1992) 63 A Crim R 287 at 299 PARTIES : Regina WM FILE NUMBER(S) : CCA 60303/03 COUNSEL : M. Grogan - Crown M. Gelbert - Respondent SOLICITORS : S. Kavanagh - Crown S. O'Connor - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0133 FILE NUMBER(S) : LOWER COURT Blackmore DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60303/03

GROVE J SULLY J BELL J

12 March 2004 REGINA v WM Judgment 1 GROVE J: I agree with Sully J. 2 SULLY J: The Crown appeals against what it asserts to be the manifest inadequacy of sentences passed upon the respondent, WM, on 1 May 2003 by his Honour Judge Blackmore SC in the Sydney District Court. 3 The respondent was presented before Judge Blackmore on 4 April 2003. There was, initially, a deal of confusion as to the number of charges which were to be dealt with by his Honour. In the event, the respondent was formally arraigned before his Honour upon an indictment containing seven counts. The respondent pleaded guilty to each of the seven counts. He asked his Honour to take into account in connection with his sentencing for the offences charged in the indictment, a further eighteen offences the details of which were set out in a document conforming to Form F1 of the Forms prescribed in connection with section 32 of the Crimes (Sentencing Procedure) Act (NSW), (hereinafter "the Sentencing Procedure Act"). The offences charged in the indictment and the offences notified in the Form 1 were respectively charged and notified as having been committed on the following days: 30 September 2000; 19 October 2000; 7 December 2000; 29 December 2000; 11 February 2001; 21 March 2001; and 22 March 2001. 4 It will be necessary to look in due course at the detailed structuring of the sentences that were passed upon the respondent by Judge Blackmore. It is sufficient at this point to note that the effect of that structuring of sentences was to sentence the respondent to an effective term of imprisonment for five years commencing on 1 May 2003 and expiring on 30 April 2008, with an effective non-parole period of 2 years and 6 months commencing on 1 May 2003 and expiring on 31 October 2005. 5 It will be necessary to consider, also, in due course the effect of the respondent's criminal antecedents. Put very simply, there were two entries in the respondent's antecedent criminal record. The first concerned a charge of robbery, and a charge of robbery in company, for both of which the Lidcombe Children's Court dealt with the respondent on 14 April 1999. On each of those charges the respondent was ordered to perform 40 hours of community service, the community service order being made without conditions. The second, and much more serious, antecedent concerned two charges of malicious wounding and a charge of having fired a fire-arm, all three of which charges had been dealt with in the Sydney District Court, and by his Honour Judge Kinchington, on 6 September 2002. His Honour had then sentenced the respondent, for each of the two offences of malicious wounding, to imprisonment for 5 years commencing on 30 April 2001 and concluding on 29 April 2006, with a non-parole period of 2 years and 9 months to commence on 30 April 2001 and to conclude on 29 January 2004; and for the offence of firing a fire-arm to imprisonment for a fixed term of 2 years and 9 months to commence on 30 April 2001 and to conclude on 29 January 2004. His Honour ordered that the entirety of those three concurrent sentences should be served in a Juvenile Justice Centre. The offences in respect of which Judge Kinchington thus sentenced the respondent had been committed on the evening and early morning of 4/5 August 2000. 6 The respondent was born on 31 May 1983. He was aged, therefore, 17 years and some 10 months at the date of his re-arraignment before Judge Blackmore; and he was aged 17 and about 11 months as at the date on which he stood for sentence. He is now aged 18 years and some 9 months. 7 It is proposed, to the end of establishing a comprehensible overview of the respondent's objective criminality, to take, in chronological order, each of the days upon which offences were committed by the respondent, and to consider discretely the offences committed on that particular day. · 4/5 August 2000 8 As previously noted, the respondent was charged with two offences of malicious wounding and with one offence of firing a fire-arm in a public place. He was so charged jointly with two of his cousins, Manoa Sinamoni and Sione Sinamoni. All three co-accused pleaded not guilty. They were put, thereupon, upon their joint trial by jury; and the jury found each of them guilty as charged. 9 Each of the two offences of malicious wounding contravened section 35(1)(a) of the Crimes Act 1900 (NSW), and attracted upon conviction a statutory maximum penalty of imprisonment for 7 years. The offence of firing a fire-arm in a public place contravened section 93G(1)(b) of the Crimes Act, and attracted upon conviction a statutory maximum penalty of imprisonment for 10 years. 10 It is convenient to extract the relevant objective facts and circumstances from the remarks on sentence of his Honour Judge Kinchington: "On the night of the 4th/5th of August 2000 you had gone to the premises occupied by the Hot Chocolate Night Club at the Flemington Hotel to attend a social function which had been organised to raise money for a member of the Tongan community who was returning to Tonga. While the evidence discloses that during the course of the evening both Manoa and Sione Sinamoni had consumed alcohol and were well affected by it at the end of the evening it is not so clear whether …. (the respondent) …had consumed any alcohol or if so what quantity as at the end of the evening he was found unconscious on a path adjacent to the Night Club having sustained a serious head injury as a result of either being hit on the head with a blunt object or falling to the ground and hitting his head. In any event it is also clear from the evidence as to the events which took place at the Night Club on this night that sometime about midnight an incident involving at least the two Sinamoni brothers led to both of them and …(the respondent) … being told to leave the function and the premises which they did in a white car. It is also clear from the evidence that the jury were satisfied that the three offenders subsequently returned to the vicinity of the Night Club armed with a shotgun and rifle and that both weapons were discharged in the vicinity of the Club and that in particular the rifle was fired at the Night Club and resulted in two of the persons attending the function to which I have previously referred sustaining gunshot wounds to their legs which necessitated suturing in hospital. It is also clear from that evidence that the jury were satisfied that when the rifle was fired each of the offenders were engaged in a joint criminal enterprise involving the firing of that rifle and in particular that either Manoa Sinamoni or Sione Sinamoni were in possession of the rifle when some of those shots were fired. However it is also clear from the jury's verdicts that they were satisfied that while it was one or other of the Sinamoni brothers who fired the rifle that caused the wounds sustained by the two persons in the Club there is no direct evidence as to which one of them actually fired the rifle at that time. In addition it is also clear from the evidence herein that …(the respondent) … could not have fired the rifle at that time because he was observed to be lying unconscious on a pathway outside the Night Club at about this time. In any event it is clear from the jury's verdicts that each of the offenders after being expelled from the Night Club and told to leave left the area in a motor vehicle and a short time later returned thereto armed with a shotgun and rifle pursuant to a joint criminal enterprise to "shoot up the premises" occupied by the Night Club and pursuant to that joint criminal enterprise the rifle was fired by one of the Sinamoni brothers at the Night Club with the result that two persons inside the Night Club sustained wounds to their legs as a result thereof." 11 It is not necessary to look, at this point, at the detail of the subjective matters which Judge Kinchington took into account. It is sufficient to note that his Honour gave special weight to the respondent's youth, and to the fact that the respondent appeared to have "some remorse and contrition for the events of this night". · 30 September 2000 12 The offences are: