Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Powell v R [2014] NSWCCA 69 Hearing dates: 14 March 2014 Decision date: 07 May 2014 Before: Basten JA at [1]; Button J at [2]; RS Hulme AJ at [42] Decision: (1) Leave to appeal granted with regard to count three. (2) Appeal allowed with regard to count three. (3) Sentence on count three quashed. (4) On count three, the applicant is sentenced to a non-parole period of 4 years to date from 3 June 2013 and expire on 2 June 2017, with a balance of term of 3 years to commence on 3 June 2017 and expire on 2 June 2020. (5) The first date upon which the applicant will be eligible for consideration for release is 3 June 2017. Catchwords: CRIMINAL - appeal against sentence - offence of firing a firearm at a dwelling house with reckless disregard for the safety of any person pursuant to s 93GA(1) of the Crimes Act 1900 (NSW) - whether sentence manifestly excessive in light of objective seriousness Legislation Cited: Crimes Act 1900 (NSW), ss 33B(2), 93GA(1), 117 Firearms Act 1996 (NSW), s 4 Category: Principal judgment Parties: Kiall Stephen Powell (Applicant) Regina (Respondent) Representation: Counsel: R Pontello (Applicant) V Lydiard (Respondent) Solicitors: Benjamin & Leonardo (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/184064 Decision under appeal Date of Decision: 2012-07-13 00:00:00 Before: Judge Conlon File Number(s): 2011/184064 Judgment 1BASTEN JA: I agree with the orders proposed by Button J and with his reasons. 2BUTTON J: On 13 July 2012, Judge Conlon SC sentenced the applicant to imprisonment for three offences on which verdicts of guilty had been returned at the end of a trial by judge alone in the District Court of New South Wales. The first count averred that, whilst in company, the applicant possessed an offensive weapon with intent to commit a serious indictable offence; namely, armed robbery. That count was brought pursuant to s 33B(2) of the Crimes Act 1900 (NSW), and carried a maximum penalty of imprisonment for 15 years. The second count was larceny. It was brought pursuant to s 117 of the Crimes Act, and carried a maximum penalty of imprisonment for five years. The third count was firing a firearm into a dwelling house with reckless disregard for the safety of any person. It was brought pursuant to section 93GA(1) of the Crimes Act, and carried a maximum penalty of imprisonment for 14 years. None of the offences attracted a standard non-parole period. 3I shall recount the overarching sentence structure in more detail shortly, but it suffices to stay at this stage that his Honour imposed a total head sentence of imprisonment for 11 years with a total non-parole period of 7 years. On count three, a head sentence of imprisonment for 9 years with a non-parole period of 5 years was imposed. 4A single ground of appeal has been notified: The sentence with respect to count three was manifestly excessive having regard to the objective seriousness of the offence. 5It can be seen that the ground is not directed towards any aspect of the sentences imposed on counts one and two. Nor does the ground focus on the place of the sentence imposed for count three in the overall sentence structure, and the degree to which that sentence is cumulative upon the other sentences. Accordingly, I shall recount the facts of those two matters very briefly. 6About 6:25 PM on 13 April 2011, the applicant and his co-offender, Ian Curran, entered a family owned supermarket. The co-offender was armed with a machete. The applicant was disguised by way of a balaclava and was armed with a .22 calibre rifle. The applicant pointed the rifle at an elderly customer and said "Don't do anything stupid" (count one). Meanwhile, the proprietor had concealed herself. The offenders grabbed $70 in cash and ran from the premises (count two). 7I turn to the facts underpinning count three. The next evening, 14 April 2011, the applicant and Mr Curran attended a home at Albion Park. A number of boarders lived there, though it seems that only the homeowner was present at the time. Barking dogs caused the homeowner to look through the side glass panels of his front door. There he saw the co-offender wearing a "hoodie" and carrying something that looked to the homeowner to be a machete or a knife. The homeowner opened the door, and the co-offender said to him "Is Brian there, I heard he was living here". The homeowner replied in the negative, and the co-offender walked off. The homeowner heard the co-offender engage in a conversation with another male person who was out of sight. The homeowner returned to his lounge room, and it was at that stage that he heard one or two shots. In response, the homeowner went to ground for 10 to 15 seconds. Several days later, the police identified a small hole in the blinds of the front bedroom window. A projectile was found lodged in a section of gyprock in the kitchen/dining area. 8Five days later, the applicant was arrested in a motor vehicle in Nowra. Located in that vehicle was a large machete and a shortened .22 calibre rifle. Subsequent ballistic analysis proved that the projectile located in the home at Albion Park had been fired from that rifle. 9His Honour found that, although it was "a little difficult to determine the level of planning involved", nevertheless a shortened firearm was taken to the location, and it was not possible to characterise the offence as a "random attack". He also referred to the fact that the offence must have caused distress, not only to the homeowner, but also to neighbours who either heard the shot or shots being fired or subsequently found out what had happened. 10Turning to subjective features, the applicant was 25 years of age when he stood for sentence. His parents separated when he was five, and he left home at 14 years of age. That was the end of his formal education, and he commenced to work as, amongst other things, a shearer. From the age of 11, he abused prohibited drugs, and before the proceedings on sentence he had told a probation officer that he had used "every drug known". He had failed in a drug rehabilitation centre, having found it "too hard". As I have said, the convictions arose at the end of a trial, and the applicant expressed no remorse after that process ended adversely to him. In custody he was said to be compliant and quiet. 11His criminal record began when he was a child, was not short, and featured a number of offences with a flavour of violence. Importantly, in 2006, the applicant had been sentenced to imprisonment for an armed robbery by way of a head sentence of imprisonment for 4 years 6 months with a non-parole period of 2 years 6 months. In 2011, he was sentenced to imprisonment for 1 month for possessing a shortened firearm; namely, a .22 calibre rifle. 12With regard to count three, his Honour said that "the indiscriminate use [discharge] of a firearm into the victim's residence had the potential to maim or kill." His Honour also remarked that "the indiscriminate use of firearms at domestic dwellings requires stern punishment." 13Turning to the structure of the sentences, for the count of larceny, his Honour imposed a fixed term of imprisonment for 15 months to commence on 3 June 2011. 14For possession of an offensive weapon with intent to commit an armed robbery, his Honour imposed a head sentence of imprisonment for 4 years 8 months with a non parole-period of 3 years 6 months. That sentence commenced on the same date, namely 3 June 2011. 15For the discharge of the firearm, his Honour imposed a head sentence of imprisonment for 9 years, with a non parole-period of 5 years, to date from 3 June 2013. 16The accumulation of sentences and a finding that the applicant needed an extended period of supervision to assist his reintegration back into the community led to Judge Conlon SC making a finding of special circumstances. The Crown did not challenge this finding during the hearing of the Appeal. 17A number of aspects of the sentence structure are noteworthy. First, the fixed term for the larceny is wholly concurrent with and subsumed by the non parole-period of the sentence for the possession of the weapon with intent. Secondly, the sentence for discharging the firearm is cumulative upon the non-parole period of the offence of possessing the weapon by two years. Thirdly, the ratio between the non-parole period and the head sentence imposed for discharging the firearm is 55%. Fourthly, the ratio between the total non parole-period and the total head sentence is 64%. Submissions 18In support of the proposition that the sentence imposed on count three was manifestly excessive, counsel for the applicant focused upon a number of discrete aspects of the objective seriousness of the offence. 19First, one could not be satisfied that more than one shot was fired "at" the home (and therefore constituted the offence). Secondly, only one person was present within the home when the shot was fired into it. Thirdly, the trajectory of the projectile (namely, somewhat above the height of the average person) made the criminal act somewhat less dangerous than it might otherwise have been. Fourthly, the applicant would not have expected to harm the homeowner, in light of the homeowner's position when last seen and the entry point of the projectile. Fifthly, the low calibre of the firearm also made the act somewhat less dangerous. Sixthly, whilst conceding that there was a plan to confront the man Brian with the shortened firearm, counsel for the applicant submitted that one could not be satisfied that there was a settled plan to use the weapon in the sense of discharging it. Seventhly, in light of the fact that the victim did not realise that the projectile had in fact been fired into his home until sometime later, his resultant distress would have been somewhat less. 20Counsel for the applicant concluded by pointing to the fact that statistics maintained by the Judicial Information Research System (JIRS) demonstrate that this is the longest sentence imposed for this offence since 2006 (the year in which the statistics commence). 21The Crown submitted that nothing would lead this Court to intervene. 22First, it said that whether one or two bullets were fired was not to the point; the simple fact was that a projectile with the capacity to travel a long distance and to maim or kill was fired into a private home. 23Secondly, it accepted that the evidence of the homeowner was that he was the only person at home. But the point was made that the applicant was not to know that at the time. 24Thirdly, the Crown accepted that injury "may have been unlikely" in the event, but said that the trajectory was consistent with a reckless disregard for the consequences, which after all is the gravamen of the mental element of the offence. 25Fourthly, the Crown did not accept that there must have been an expectation on the part of the applicant that the homeowner was not at the window through which the projectile travelled. The submission was that the applicant would have had no idea of the location of the homeowner within the premises when the shot was fired. 26Fifthly, as for the calibre of the weapon and the projectile, the Crown submitted that, in fact, the definition of a "firearm" within s 4 of the Firearms Act 1996 (NSW) draws no distinction on the basis of the calibre of the weapon. In any event, what is important is the objective seriousness of what actually occurred, not whether there may be more serious offences to do with machine guns and the like. 27Sixthly, it submitted that the elements of the offence were made out whether or not planning could be demonstrated. Quite apart from that, emphasis was placed upon the finding of his Honour that a loaded firearm had been taken to the premises. 28Seventhly, it submitted that the fact that the undoubted initial belief of the homeowner that his home was being fired upon was not confirmed until some days later hardly calls into question the objective seriousness of the offence. 29In short, the Crown submitted that there is no basis upon which this Court would say that the sentence actually imposed was outside the proper exercise of his Honour's discretion and therefore manifestly excessive. Determination 30The imposition of a lengthy sentence for this dangerous and antisocial criminal act was inevitable. The question is whether the sentence actually imposed is so severe as to fall outside the legitimate exercise of the discretion reposed in the learned sentencing judge. 31Some of the submissions made by counsel for the applicant are not persuasive. For example, a .22 calibre projectile can certainly be lethal. As well as that, a trajectory that is slightly above the height of the average person is hardly lacking in danger. Nor, to my mind, is it anything other than a matter of good luck that no-one was injured or killed as a result of the actions of the two offenders. At the time of the shooting, the homeowner, by his actions, demonstrated that he believed that there was a real possibility that his home was under attack. 32On the other hand, it is true that one could not be satisfied beyond reasonable doubt that the applicant and the co-offender attended the home with a settled plan to discharge the firearm. In other words, it is reasonably possible that the decision to fire was a spontaneous one. 33It is not clear whether two shots were fired; even if that were the case, the count was founded upon the one projectile proven to have been fired "at" the home. 34Whilst the usefulness of a statistical analysis in support of the contention that a sentence is manifestly excessive is subject to well-known limitations, the fact that this is the longest of 19 sentences of imprisonment imposed since 2006 for this offence gives one pause for thought about the sentence. 35Finally, the head sentence of imprisonment for 9 years, when compared with the maximum penalty of imprisonment of 14 years, is noteworthy, in light of the fact that one can, without difficulty, bring to mind a range of more serious examples of the offence. 36To my mind, those factors are supportive of the error for which the applicant contends. 37I have come to the view that the sentence imposed exceeded the bounds open to the discretion of the learned sentencing judge, though not to an extreme degree. I consider that the ground has been made out; it follows from the nature of the ground itself that I am persuaded that a lesser sentence is warranted in law. 38Having said that, I respectfully agree with the learned sentencing judge that offences of this kind require condign punishment. 39In re-sentencing, I have taken into account the brief affidavit of the applicant, not disputed by the Crown, which shows that he has been making reasonable progress in custody. 40I consider that the sentence for count three should comprise a head sentence of imprisonment for 7 years with a non-parole period of 4 years. I would not interfere with the degree of accumulation that his Honour adopted; accordingly, the sentence will commence on 3 June 2013, that date being two years after the commencement of the sentences on the other two counts. It follows that the total head sentence will be imprisonment for 9 years with a total non-parole period of 6 years. Finally, it can be seen that I have virtually replicated the ratio between the total head sentence and the total non-parole period; it becomes 67%. 41I propose the following orders: (1)Leave to appeal granted with regard to count three. (2)Appeal allowed with regard to count three. (3)Sentence on count three quashed. (4)On count three, the applicant is sentenced to a non-parole period of 4 years to date from 3 June 2013 and expire on 2 June 2017, with a balance of term of 3 years to commence on 3 June 2017 and expire on 2 June 2020. (5)The first date upon which the applicant will be eligible for consideration for release is 3 June 2017. 42RS HULME AJ: I agree with the orders proposed by Button J and with his Honour's reasons. ********** 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. Decision last updated: 07 May 2014