R v DO [2005] NSWCCA 183

New South Wales Court of Criminal Appeal

R v DO [2005] NSWCCA 183 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 April 2005

JUDGMENT DATE: 12 May 2005

JUDGMENT OF: Hunt AJA at 1; Hulme J at 2; Johnson J at 30

DECISION: See paragraph 29.

Regina PARTIES: Ly Do

FILE NUMBER(S): CCA 2004/3227

Crown: P Ingram COUNSEL: Respondent: P Boulten SC

Crown: S Kavanagh SOLICITORS: Respondent: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1130

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

- 9 - IN THE COURT OF CRIMINAL APPEAL 2004/3227

HUNT AJA HULME J JOHNSON J

Thursday 12 May 2005 R v Ly DO Judgment 1 HUNT AJA: I agree with Hulme J. 2 HULME J: This is an appeal by the Crown against sentences imposed on 4 November 2004 by Judge Tupman on the abovenamed Respondent in respect of 2 charges, viz.:-

(i). That on 17 April 2004, in company, he maliciously inflicted grievous bodily harm upon Kevin Black.

(ii). That on the same day he used a firearm, namely a .22 calibre Ruger semi automatic pistol fitted with silencer and laser sight, without being authorised to do so by a licence or permit. 3 The first of these offences exists by reason of Section 35(2) of the Crimes Act and rendered the Respondent liable to imprisonment for 10 years. The second offence arose under Section 7(1) of the Firearms Act 1996 and carries a maximum penalty of 14 years imprisonment. 4 In respect of the first offence, Judge Tupman sentenced the Respondent to imprisonment for 2½ years including a non-parole period of 18 months, both periods commencing on 17 April 2004, the date when he was arrested. Her Honour directed that, at the expiration of the non-parole period, the Respondent be released on parole subject to conditions. In respect of the second offence her Honour sentenced the Respondent to a fixed term of imprisonment of 12 months commencing on 17 April 2004. 5 The Crown has appealed upon the ground that the "sentence" imposed is manifestly inadequate although the Notice of Appeal refers to both sentences. In submissions made to the Court the Crown contended that the overall sentence imposed inadequately reflected the objective seriousness of the offences, individually and cumulatively. The Crown also contended that her Honour's remarks on sentence exhibited patent error "in holding that authority precluded her from finding otherwise than that the Respondent had acted recklessly". 6 In support of the first aspect of these submissions the Crown drew attention to the terms of s21A of the Crimes (Sentencing Procedure) Act and to a number of particular matters:- · The use of a weapon – cf s21A(b) · The harm inflicted was substantial – cf s21A(g) · The disregard of public safety – cf s21A(2)(i) · The victim, a security officer was vulnerable by reason of his occupation – cf s21A(2)(l) 7 Referring to R v Doorey [2000] NSWCCA 456 at [24] the Crown also relied on the fact that the offence was committed at night. 8 According to a document entitled "Agreed Facts" tendered in the sentencing proceedings, on the night of 16-17 April 2004 the Respondent was with a group of men at the Sol Bar Night Club in Surry Hills. At about 1.00am a security officer, Mr Wilkoszewski observed the Respondent to be intoxicated, that he appeared to have vomited, and asked him to leave the night club. The security guard removed alcohol which the Respondent was attempting to take out with him. Soon after other persons with whom the Respondent had been drinking were also ejected in circumstances of some acrimony. In the course of this, one of the group was heard to say "get the gun" and seen to put his hands down the front of his pants. Upon seeing this, Mr Wilkoszewski hit this person in the jaw and a scuffle broke out until police were sighted nearby. The group left the area again one of them being heard to say "come on let's get the gun". 9 A little time later a bystander who was waiting for a friend saw the Respondent and two other Asian persons walk past in a nearby laneway. The Respondent was holding a handgun and wrapping a towel around it. The Respondent then returned to the vicinity of the nightclub in the company of two members of the group and pointed the .22 calibre pistol at Mr Wilkoszewski saying "what the fuck are you going to do now?" Another member of the group said something similar and an apology was also demanded. Mr Wilkoszewski then approached one of the members of the group at which stage the Respondent pointed the weapon at another security guard, Mr Black. 10 After some further short conversation and at a time when the Respondent was pointing the weapon at Mr Black's face, the latter lunged towards the Respondent, grabbed the barrel of the weapon and pointed it down. A member of the group identified as the "Caucasian male" moved towards Mr Black, Mr Wilkoszewski struggled with the Caucasian, the Respondent pulled the weapon up and fired two rounds, wounding Mr Black in the leg. Mr Black collapsed to the ground, as he did so diving on top of the gun which had also fallen. 11 Another member of the group intervened in a struggle then going on between the Respondent and Mr Black. Mr Wilkoszewski noticed the Respondent reaching for the weapon and grabbed the Respondent, holding him until police arrived. The other members of the Respondent's group escaped. 12 The injuries suffered by Mr Black included a fractured left femur and vascular injury. 13 Other evidence was to the effect that at the Surry Hills Police Station at about 3.30 that morning when asked what had happened, the Respondent remarked that he could not remember. Later, when asked if he wanted to be interviewed he declined. At the police station he was also observed to be very emotional and crying and, when talking to his mother sobbing uncontrollably. 14 The Respondent pleaded guilty in the Local Court on 7 September 2004 although due to some error in process he was arraigned in the District Court where he repeated that plea. Her Honour accepted that the pleas were entered at the first reasonably available opportunity and said that a discount of about 25 to 30% was appropriate to allow on this account. 15 The Respondent was born on 10 September 1982 and had no prior criminal record. He presented an impressive subjective case indicating that although he received a disappointing mark in his Higher School Certificate he had pursued regular employment and study since leaving school apart from two visits overseas. He has a supportive girlfriend and family and had been living with his mother up to the time of his offence. He would seem to have been affected emotionally some years earlier when a younger brother had died but there was no evidence to link that event or its consequences with the offending. 16 During the sentencing proceedings the Respondent himself gave evidence. He said the reason for going out on 17 April was a farewell party for a girl who was leaving his place of employment and a number of people from his work went to the Captain Cook Hotel at about 8pm. There he had three or four schooners, leaving at about 9pm and arriving at the Sol Bar at about 9.30pm. He said that at the Sol Bar also he was drinking with work colleagues. Asked, "men and women?" he said "I think just women, I think, or – I can't remember if there was just men with them or not". 17 The Respondent said that he continued drinking and had been told by a friend Preston Tse who was with him on the night that he had something of the order of fifteen schooners and six tequilas that night. The Respondent said that due to the impact of alcohol he had no recollection of any of the later events including eviction from the bar, an argument with the security guards, obtaining possession of the firearm, and of the shooting. He said that he had not had a gun with him that night and, to his knowledge, neither did Preston. He had never previously owned, handled or fired a gun. 18 In cross-examination, the Respondent said that he normally drank one or two beers and his drinking was only occasional, probably once a month or so. He said that he had been as drunk as he was on the night of the shooting on only one prior occasion, viz his 21st birthday. Somewhat surprisingly in light of this history he had been asked by his own counsel if he had had some assistance with alcohol issues since being in custody, whether he had any other drug issues apart from alcohol, whether his alcohol problem was mainly binge drinking and whether he thought he would benefit from some assistance from an alcohol counsellor when released from custody. The Respondent's answer to the first of these questions was to the effect that a drug and alcohol counsellor had helped him a lot, to the second that he had no other drug issues, the transcript records that there was no verbal reply to the third and to the fourth the Respondent replied "Yes". 19 The Respondent's father also gave evidence indicating that the Respondent had not been a problem and had never been in any sort of trouble. There was a deal of evidence of genuine remorse. 20 In her remarks on sentence, Judge Tupman observed, inter alia:-