New South Wales Court of Criminal Appeal CITATION: RICKABY v REGINA [2007] NSWCCA 288 HEARING DATE(S): 8 October 2007 JUDGMENT DATE: 10 October 2007 JUDGMENT OF: Giles JA at 1; Hulme J at 23; Hislop J at 24 DECISION: (1) Extend the time for filing the application for leave to appeal against sentence up to and including 30 May 2007; (2) Grant leave to appeal; (3) Dismiss the appeal. CATCHWORDS: SENTENCING - two offences - firing firearm in public place - possession of unregistered firearm - concurrency and accumulation - totality principle - whether error in partial accumulation or it was contrary to totality principle - distinct offences - could possess without firing - could fire registered firearm - firing was significant additional offence - no error shown. LEGISLATION CITED: Firearms Act 1996, s 4C CASES CITED: R v Cicekdag (2004) 158 A Crim R 299; R v Hammoud (2000) 118 A Crim R 66. PARTIES: Peter Kevine Rickaby - Applicant Crown - Respondent FILE NUMBER(S): CCA 3259/07 COUNSEL: A Djemal - Applicant T Thorpe - Crown SOLICITORS: Lawyers Corp Pty Ltd - Applicant Office of the Director of Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 06/11/0436 LOWER COURT JUDICIAL OFFICER: Hulme DCJ LOWER COURT DATE OF DECISION: 14 August 2006 (Sentence) IN THE COURT OF CRIMINAL APPEAL CCA 3259/07 DC 06/11/0436 GILES JA HULME J HISLOP J Wednesday 10 October 2007 Peter RICKABY v REGINA Judgment 1 GILES JA: On 7 August 2006 the applicant pleaded guilty before Hulme DCJ to the offences of firing a firearm in a public place ("the firing offence") and possessing an unregistered firearm in circumstances of aggravation ("the possession offence"). The firearm was a .22 calibre Erma-Werke pistol, and the aggravation was that the unregistered firearm was a pistol. The applicant asked that two further offences on a Form 1 be taken into account in the sentencing for the possession offence, being the offence of using an offensive weapon with intent to commit the indictable offence of intimidation and the offence of intimidation of one Michael Tamahaga. 2 The maximum penalty for the firing offence was ten years imprisonment. The maximum penalty for the possession offence was 14 years imprisonment. 3 On 14 August 2006 the judge sentenced the applicant for the firing offence to imprisonment for a non-parole period of one year and ten months commencing on 22 October 2005 and a balance of term of 8 months to commence on 22 August 2007, and for the possession offence and taking into account the offences on the Form 1 to imprisonment for a non-parole period of 2 years and 4 months to commence on 22 October 2006 and a balance of term of 1 year and 2 months to commence on 22 February 2009. There was partial accumulation by one year in the dates of commencement, with an overall non-parole period of 3 years and 4 months and an overall sentence of 4 years and 6 months. Because the later commencing sentence was the longer of the sentences, the non-parole period referable solely to the possession offence was 1 year and 6 months, followed by a further 1 year and 2 months parole period. 4 The applicant applied for leave to appeal against sentence on the grounds - "1. His Honour erred in imposing partially cumulative sentences by failing to have regard to the commonality of elements of the offences sentenced. 2. His Honour erred by failing to have regard to the principle of totality." The offences 5 At about 2 am on 22 October 2005 the applicant and two other men went to the Dragonfly Nightclub in Earl Place, Kings Cross. They were stopped at the entrance of the premises by security officers, and were refused entry because they did not have membership passes. 6 The applicant and the other men became aggressive with the security officers. They walked a short distance away before turning around and continuing to yell abuse at the security officers. The applicant then took a handgun from his jeans. As he held it he said to the security officers, "You guys think you're so tough". He raised the handgun and fired three times into the air. He and the other men then began walking towards the security guards with the applicant still holding the handgun in his hand. 7 Police officers a short distance away heard the sound of the shots and drove to the nightclub. The security officers pointed the applicant out to them. The applicant tried to hide the handgun and get away, but was apprehended. 8 The handgun was a .22 long rifle Erma-Werke self loading pistol. It is a prohibited pistol under s 4C of the Firearms Act 1996. It was found that its magazine contained two unfired .22 calibre cartridges. Three cartridge cases were located in Earl Place in the vicinity of where the shots had been fired, about 20 metres away from the nightclub. Ballistics analysis showed that they had been fired from the handgun. 9 The serial number of the handgun had been obliterated. The applicant was not authorised to possess it and it was not registered. 10 From these events came the charges of the firing offence and the possession offence, and the Form 1 offences concerning intimidation. The applicant's submissions 11 The applicant did not cavil with the sentences as sentences individually within the judge's sentencing discretion. He submitted that the judge erred in the partial accumulation, by failing to have regard to the common features of the offences whereby they were part of the one course of conduct and by failing to give effect to the principle of totality with recognition of that fact. 12 In the applicant's submission, on the facts at sentencing his possession of the handgun was no more than at the time he fired it and in the surrounding minutes, and the possession was effectively made out by the same acts as those which made out the firing. Yet, he said, on the judge's sentencing for the possession offence an additional non-parole period of imprisonment of 1 year 6 months was imposed, with a further 1 year and 2 months parole period. This, he submitted, disregarded the commonality of the events making up the offences and offended the principle of totality. The judge's reasons 13 The submissions at the sentencing hearing, on behalf of both the Crown and counsel for the applicant, made no reference to concurrency and accumulation, or to principles of totality. Save as next mentioned, the judge's remarks on sentence did not refer to those matters. 14 With appropriate reference to authority, the judge said of the offences on the Form 1 that they could cause the sentence for the possession offence to exceed the range otherwise appropriate by a very considerable margin if that were necessary "in order to properly take into account the total criminality". He continued - However, in this case the offences of the Form 1 are closely related to the commission of the offences on the indictment. They disclose additional criminality but the extent of it is not as great as otherwise might be the case if, for example, they were entirely separate and discrete offences." 15 In his Honour's consideration of special circumstances he concluded that a basis had not been laid for the applicant requiring any longer period on parole than the statutory proportions would allow. He then added - "There will need to be some adjustment to the proportions in the individual sentences so as to retain the statutory proportion in the overall sentence because I propose a measure of partial accumulation." 16 The applicant submitted that, while properly seeing commonality between the offences on the indictment and the offences on the Form 1, the judge had failed to give effect to like commonality in determining the partial accumulation, and that his Honour did not in relation to accumulation give the requisite attention to analysis of the commonality and the totality principle. The Crown submitted that it was clear that the judge had turned his mind to concurrency or accumulation, and that, having adverted to the applicant's total criminality with respect to the Form 1 offences it was inconceivable that he had failed to have it in mind in relation to accumulation. Disposition 17 In determining whether or not to accumulate sentences imposed for two or more offences, it is relevant to consider features common to the offences and features of each alone, and whether the offences were committed in the one course of conduct: R v Hammoud (2000) 118 A Crim R 66. Features common to two or more offences may come about because the offences are part of the one course of conduct, but it is not necessarily so. Equally, that events revealing two or more offences happen in the one course of conduct or over a short time does not necessarily mean commonality whereby concurrent sentences must be imposed. Simply because offences are committed simultaneously does not mean that the sentences must be concurrent, if the offences are distinct and separate; further, questions of totality require not only that the overall sentencing not exceed the totality criminality, but also that it must be sufficient to reflect the total criminality involved: R v Cicekdag (2004) 158 A Crim R 299. 18 The offences of firing a firearm in a public place and possession of an unregistered firearm are distinct. The legislature has provided a severe penalty for the latter offence, regarding it as a more serious offence than the former. The possession of an unregistered firearm is of itself serious because of the potential for misuse. Actual misuse brings significant additional criminality. 19 The applicant committed the possession offence by his possession of the handgun. Possessing it did not mean that he had to fire it; but he did, three times, and (as the judge found) with lack of regard to public safety because of high rise apartment blocks in the vicinity of the nightclub. In order to fire a firearm, the applicant had to have it in his possession, but the firearm in his possession may have been a registered firearm which he was authorised to hold; conversely, if he had an unregistered firearm in his possession he could have refrained from using it in the manner he used the handgun. Using the handgun was a significant additional offence. Correctly viewed, the offences were not part of the one course of conduct or with commonality in their elements. 20 In my opinion, it was well within the judge's discretion to accumulate the sentences in the manner he did. It is not to the point to complain, as the applicant did, that the sentencing imposed an additional 1 year and 6 months non-parole period for the few minutes of possession of the handgun. First, the possession offence called for a condign sentence and can not be dismissed as only a few minutes of possession; and it should not be overlooked that the sentence for the possession offence took into account the offences on the Form 1, which although not to the extent of entirely separate and discrete offences added to the total criminality and could significantly increase that sentence. Secondly, the result was a proper reflection of the overall criminality. The judge could have made the sentence for the possession offence commence on 22 October 2005, but in that event it would have been well open to him to commence the sentence for the firing offence later in order to meet the overall criminality, with the same result of an overall non-parole period of 3 years and 4 months. 21 As I have said, the judge was not assisted by submissions concerning accumulation and totality. He was left to exercise his sentencing discretion, and chose to structure the sentences by making the sentence for the firing offence commence on 22 October 2005. Error has not been shown. Orders 22 A short extension of the time to apply for leave to appeal was required, and was not opposed by the Crown. I propose the orders - 1. Extend the time for filing the application for leave to appeal against sentence up to and including 30 May 2007. 2. Grant leave to appeal. 3. Dismiss the appeal. HULME J : I agree with Giles JA. HISLOP J : I agree with Giles JA. ********** 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.