AB v Regina [2007] NSWCCA 129

New South Wales Court of Criminal Appeal

CITATION: AB v Regina [2007] NSWCCA 129 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 May 2007

JUDGMENT DATE: 10 May 2007

JUDGMENT OF: Campbell JA at 1 & 34; James J at 33; Smart AJ at 2

DECISION: Leave to appeal against sentence granted; appeal dismissed.

CATCHWORDS: Discharging firearm in public place and affray - co-offenders - serious offences - moderate sentences imposed on juvenile offender - no marked disparity in sentences - difficulities in applying parity principles where co-offenders dealt with on significantly different charges.

LEGISLATION CITED: Crimes Act 1900 (93G(1) & s 93C(1)

CASES CITED: Postiglione v TheQueen (1996-1997) 189 CLR 295 R v Watson 25/2/1992 CCA

PARTIES: AB v Regina

FILE NUMBER(S): CCA 2007/861

COUNSEL: (A) C Smith (C) W Dawe QC

SOLICITORS: (A) C Tawagi (LAC) (C) S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3119

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 19/12/06

IN THE COURT OF CRIMINAL APPEAL

2007/861 CAMPBELL JA JAMES J SMART AJ Thursday, 10 May 2007

AB v Regina JUDGMENT

1. CAMPBELL JA : I will ask Justice Smart to deliver the first judgment. 2. SMART AJ: AB seeks leave to appeal against a sentence of imprisonment comprising a non-parole period of six months commencing on 19 December 2006 and balance of term of 12 months expiring on 18 June 2008 for the offence of discharging a firearm (a rifle) in a public place and against a further concurrent sentence of imprisonment for a fixed term of six months commencing on 19 December 2006 for the offence of affray. 3. The maximum penalty for each offence is 10 years imprisonment (see section 93G(1)(b) and section 93C(1) of the Crimes Act 1900). 4. At the date of the offences, namely 3 July 2005, AB was aged 16 years and six months being born on 28 December 1988. 5. There was an agreed statement of facts which sets out the background to these offences. It is not necessary to rehearse it in detail. Suffice it to say that there was a fight involving the victim and certain other males. The co-offender Wilson and a man called Phalome made a number of telephone calls to a number of men including AB and the co-offender Pou. AB responded to that call. Phalome collected AB. Pou was also in that vehicle. 6. Omitting the intermediate details, groups of males had gathered in Guise Avenue, Casula. The victim drove to that street on route to his house. He was confronted in that street. AB had found a rifle and some ammunition in the vehicle in which he was a passenger. He loaded the rifle. AB had secreted the loaded rifle in his pants. He had gathered with the other males in Guise Avenue. AB, standing about 10 to 15 metres away from the victim on the roadway, discharged the gun to the right of the victim in the direction of the houses in Randwick Close. AB then pointed the gun in the direction of the victim who took evasive action. 7. A number of other males, one carrying a baseball bat, a couple armed with knives and Pou holding a knife, converged on the victim who tried to start his car and engage the gears. The co-offender Pou repeatedly stabbed the victim in the back and arm inflicting three discrete wounds. The victim drove his car for about 20 metres before collapsing and slumping over the wheel. He required and received emergency attention. He was hospitalised, the wounds were explored and closed in theatre and he was discharged the next day. 8. AB complains that the judge imposed, effectively, the same sentences on him and Pou. Both Pou and AB received the same length of sentence on the charge of affray, namely a fixed term of six months. Pou was not charged with discharging a firearm, but on the charge of wounding in company Pou received a sentence comprising a nonparole period of six months and a balance of term of 12 months. The sentences were concurrent. 9. AB stated that he used the firearm in an attempt to scare the victim, but conceded that this may have exacerbated the situation. 10. The judge was satisfied that AB was somewhat contrite. AB has never been in custody before and, except for the offence of driving a vehicle on the road never being licensed, he had no previous convictions. The judge assessed AB's prospect of rehabilitation as reasonable. The judge allowed a discount for his guilty plea "towards the top of the range available". 11. The judge made these further observations: