HAIDAR v R [2007] NSWCCA 95

New South Wales Court of Criminal Appeal

CITATION: HAIDAR v R [2007] NSWCCA 95

HEARING DATE(S): 16 March 2007

JUDGMENT DATE: 5 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J; Hislop J

DECISION: By majority leave to appeal granted; Appeal dismissed

PARTIES: Nicholis HAIDAR Regina

FILE NUMBER(S): CCA 2006/2736

COUNSEL: Crown: Ms N Noman Applicant: Ms A Francis

SOLICITORS: Crown: S Kavanagh Applicant: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0001

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

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McCLELLAN CJ AT CL HULME J HISLOP J

Thursday, 5 April 2007 Nicholas HAIDER v R Judgment 1 McCLELLAN CJ at CL: I have had the considerable benefit of reading in draft the reasons for judgment of Hulme J. I gratefully adopt his Honour's account of relevant factual matters and his analysis of the sentencing judge's reasons. However, I have concluded that this is not a matter where this Court should intervene. 2 Hulme J identifies the fact that the sentencing judge concluded that the applicant was not suffering from mental illness "such that he did not know what he was doing or the difference between right and wrong such would less the importance of general deterrence." This finding accords with the relevant evidence. 3 However, as Hulme J indicates this was not an end of the matter. There will be occasions where a defect in intellectual functioning may have the consequence that less weight should be given to general deterrence. As his Honour points out the rationale for that principle was explained by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at [254]. It derives from the fact that a person who suffers from a mental disorder or abnormality may by reason of a lack of normal cognitive faculties or emotional restraints have a limited appreciation of the wrongfulness of an act or its moral culpability. Although the sentencing judge did not address these matters, in my view, in this case they would not lead to a conclusion different to that determined by the sentencing judge. 4 The evidence disclosed that the applicant was a person with below average reasoning, information processing and impulse control. However, the fact that a person falls below the average in these functions does not, of itself, justify a more lenient sentence than is appropriate for a person who may be average or above average in these functions. A high level of cognitive reasoning and related functions is not required for a person to know that a firearm should not be discharged in a public street at night when his or her own security is not threatened, merely for the purpose of frightening another person. The applicant was a person who by reason of his occupation as a security guard was permitted to carry a loaded firearm. The evidence confirmed that he was able to perform satisfactorily in his employment. This must have involved him in making decisions about when to react to a variety of situations which he confronted, including when it was appropriate to discharge his firearm. 5 To my mind the fact that there does not seem to have been a high level of antagonism between the applicant and the person toward whom he fired increases the gravity of the applicant's offence. I do not believe it points to disadvantages suffered by the applicant which diminish the seriousness of the offence or require a more lenient sentence. 6 There are many people in the community who may legitimately carry firearms and, regrettably, others who carry them without lawful excuse. The discharge of a firearm at any time may be a serious danger to others. When, without legitimate reason, a firearm is discharged in a public place a sentence must be imposed which sends a message to all who carry firearms that their illegitimate use will bring a heavy penalty, unless other circumstances dictate a different outcome. 7 The review of previous decisions, which Hulme J has undertaken, confirms my view that no lesser penalty than that which was imposed by the sentencing judge was appropriate. 8 Although I would grant leave to appeal I would dismiss the appeal.