Appeal Against Conviction and Sentence for Aggravated Use of Offensive Weapon Dismissed

The Court of Criminal Appeal dismissed an appeal against conviction and sentence for the aggravated use of an offensive weapon to prevent lawful apprehension, finding the evidence supported the conviction and the sentence was within the legal range.

[ADDRESS] of Criminal Appeal

CITATION: [NAME] v R [2006] NSWCCA 255

HEARING DATE(S): 9 June 2006

JUDGMENT DATE: 23 August 2006

JUDGMENT OF: McClellan CJ at [NAME] at 1; [NAME] at 2; Latham J at 76

DECISION: 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence allowed, but appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - aggravated use of offensive weapon to prevent lawful apprehension contrary to s.33B(2) Crimes Act 1900 - whether verdict cannot be supported having regard to evidence - appeal against conviction dismissed - application for leave to appeal against sentence - whether use of offensive weapon erroneously taken into account as aggravating factor under s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999 - whether prior criminal record erroneously taken into account as aggravating factor under s.21A(2)(d) - whether there was failure to make due allowance for assistance to authorities - whether there was failure to take account of extra curial punishment (gun shot wound to the leg sustained during commission of offence) - significance of general deterrence in sentencing for s.33B offence - sentence appeal dismissed

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999

R v [NAME] and [NAME] (1985) 19 A Crim R 360 R v Kyriakou (1987) 29 A Crim R 50 R v O'Donoghue (1988) 34 A Crim R 397 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Seymour v R [2006] NSWCCA 206 R v Chahine [2006] NSWCCA 99 [NAME] (1998) 194 CLR 610 R v McNaughton [2006] NSWCCA 242 [NAME] v The Queen (No. 2) (1988) 164 CLR 465 CASES CITED: R v Allpass (1993) 72 A Crim R 561 R v [NAME] (2003) 139 A Crim R 398 Sharwood v R [2006] NSWCCA 157 R v Cunningham [2006] NSWCCA 176 R v Webb [2004] NSWCCA 330 R v Azar [2004] NSWSC 797 R v Qutami (2001) 127A Crim R 369 R v Palu (2002) 134 A Crim R 174 R v Hamilton (1993) 66 A Crim R 575 R v Barton (2001) 121 A Crim R 185 R v [NAME] (NSWCCA, [NAME] and [NAME], 11 December 1991, [ID])

PARTIES: [NAME] (Appellant) Regina (Respondent)

FILE NUMBER(S): CCA 2006/405

COUNSEL: [redacted] Mr P [NAME] ([NAME])

SOLICITORS: [redacted] [NAME] ([NAME])

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1175

LOWER COURT JUDICIAL OFFICER: [NAME] OF DECISION: 29 April 2004 (conviction) 18 November 2004 (sentence)

LOWER COURT MEDIUM NEUTRAL CITATION: N/A

IN THE COURT OF CRIMINAL APPEAL

2006/405 McCLELLAN CJ at [NAME] J

23 August 2006

[NAME] v [NAME]

1 McCLELLAN CJ at [NAME]: I agree with [NAME]. 2 [NAME]: The Appellant, [NAME], was convicted in the Sydney District Court after trial before [NAME] and a [NAME] in respect of two offences:

(a) aggravated break, enter and steal (in company): s.112(2) Crimes Act 1900 (maximum penalty: 20 years' imprisonment);

(b) aggravated use of an offensive weapon to prevent lawful apprehension (in company): s.33B(2) Crimes Act 1900 (maximum penalty: 15 years' imprisonment). 3 On 20 April 2004, the Appellant was arraigned with [NAME] before [NAME] at the Sydney District Court. The indictment alleged that the Appellant committed the following offences:

(a) on 15 January 2002 at Kelso in the State of New South Wales, break and enter the warehouse known as [NAME] and then in the said warehouse commit a serious indictable offence, namely steal electrical items, the property of [COMPANY] trading as [NAME], Bathurst, in circumstances of aggravation, namely whilst he was in company with other persons [NAME] and [NAME] (s.112(2) count);

(b) on 15 January 2002 at Kelso in the State of New South Wales, whilst in the company of [NAME] and [NAME], threaten to use an offensive weapon with intent to prevent the lawful apprehension of himself (s.33B(2) count). 4 The Appellant was convicted following trial on 29 April 2004. On 18 November 2004, the Appellant was sentenced by [NAME] in respect of the s.112(2) count to imprisonment for four years and three months to date from 29 January 2005 and to expire on 28 April 2009 with a non-parole period of two-and-a-half years to date from 29 January 2005 and to expire on 28 July 2007. In respect of the s.33B(2) count, the Appellant was sentenced to imprisonment for a term of two years to date from 29 April 2004 and to expire on 28 April 2006 with a non-parole period of 18 months to date from 29 April 2004 and to expire on 28 October 2005.

Accordingly, the Appellant's overall sentence was one of five years' imprisonment to date from 29 April 2004 with a non-parole period of three years and three months to date from 29 April 2004 and to expire on 28 July 2007. 5 The Appellant appeals against conviction upon the s.33B(2) count. He has abandoned his appeal against conviction in relation to the s.112(2) count. He seeks leave to appeal against sentence with respect to the s.33B(2) count. He has abandoned his sentence appeal upon the s.112(2) count except to the extent that any adjustment to the commencement date arises from his appeal concerning the s.33B(2) count. 6 The co-accused, [NAME], was convicted on the s.112(2) count but the [NAME] could not agree as to a verdict on the s.33B(2) count.

The Conviction Appeal 7 There is a single ground of appeal against conviction with respect to the s.33B(2) count. The ground contends that the [NAME]'s finding in respect of this count is not supported by the evidence. 8 To place this ground into context, it is appropriate to refer concisely to the [NAME] case against the Appellant.

The [NAME] 9 The [NAME] case on the s.33B(2) count relied almost entirely upon the evidence of [NAME], a licensed security guard. [NAME] gave evidence that, shortly after 4.00 am on 15 January 2002, he attended the [NAME] in his work vehicle after receiving a notification from his base. The work vehicle bore the sign "security" and carried roof lights, strobe lights and flashing lights. [NAME] was wearing his work uniform which consisted of a pair of dark navy trousers, a blue short-sleeved shirt, epaulettes and the name badge of the security firm. He was armed with a hand gun for work purposes. He was clearly identifiable as a security officer. Upon arrival, [NAME] went to the rear of the premises. He had his lights on full beam and the spot lights were illuminated as well. He noticed the airconditioning unit ripped out of the wall at the side of the building. [NAME] saw three men jumping out of a hole in the wall. At that stage, he could not say what they were wearing or give any other description of them. 10 The men appeared to see [NAME] and ran away from him down the fence line towards the [ADDRESS]. [NAME] reversed his vehicle and headed down the side of the warehouse towards the highway. As he reversed his car, he called the base for back-up and for the police. [NAME] next saw the men at the front of the warehouse. This area was quite well lit, but [NAME] still could not observe anything in relation to the men's clothing or give any other description of them. [NAME] said that, once the men reached the [ADDRESS], they headed towards the gates and ran onto vacant premises next door to the [NAME] premises. 11 [NAME] entered this area with his spot light on and observed the men against the bushes. At this point, from about eight to 10 metres away, he noticed that all three of the men were wearing balaclavas. At about this time, [NAME] called out for the first time "Security, stop". He repeated these words several times thereafter. Two of the men ran away whilst one of them turned towards [NAME], who opened the driver's side door of his vehicle, emerged and commenced to chase the men. 12 The men ran away from him, out the gate, back up the [ADDRESS] towards a caravan park. [NAME] was in pursuit, gaining on the men. They were heading towards the [NAME]. 13 The [NAME] at the rear turned around and produced a crow bar. He appeared to threaten [NAME] with it. [NAME] told him to "drop it". When the [NAME] did not put the crow bar down, [NAME] fired a shot which missed the [NAME]. The [NAME] with the crow bar then turned and ran towards the other two men. 14 The three men stopped at the gateway to the Motel. [NAME] ran towards the men. As he did so, all three of them raised their arms, carrying bars, similar to the crow bar or jemmy bar he saw with the first [NAME]. When he was about seven metres away from the men, something was thrown at [NAME], but he did not know what it was. None of the men said anything to [NAME], but he gave evidence that he felt from their actions that they were threatening him with the bars. He asked the men to drop the bars, but when that did not happen, he fired a second shot which struck the Appellant. 15 After he fired the second shot, [NAME] approached the Appellant and saw the other two men take off. The Appellant screamed and was rummaging through his jacket as he was lying face down. [NAME] said that, at the time, he thought the Appellant was reaching for a firearm, so he approached him from behind and had his own firearm pointed at the Appellant from behind. He said to the Appellant "show me your hands now or I will shoot you". When the Appellant showed his hands, [NAME] saw that he did not have a firearm. However, the Appellant was holding a small portable radio and he was talking to someone on the radio. Whilst this happened, the other two men came back down the driveway towards [NAME] and the Appellant. [NAME] held his firearm towards the men and told them to stop. They did so, then turned and ran. 16 [NAME] handcuffed the Appellant. The Appellant was wearing thick gloves. [NAME] pulled the balaclava off the Appellant's head. The police arrived a few minutes later. A jemmy bar was located on the ground near the location where the Appellant was arrested. 17 Given the issue raised in the conviction appeal, reference should be made to the statement of [NAME] which, by consent, was read to the [NAME] (Exhibit U, T19, 22 April 2004). [NAME] is a general surgeon. He examined the Appellant at about 5.00 am on 15 January 2002 in the Emergency Department at [COMPANY]. He observed a one-inch triangular wound laterally on the Appellant's left leg, approximately 15 centimetres above the knee and a one-centimetre wound posteriorly on the left thigh at about the mid-thigh level. There was a large haematoma in the line joining the two wounds. There was no apparent neuro-vascular compromise and a CT revealed multiple metallic fragments. [NAME] expressed the opinion that the Appellant had been struck by a high-velocity projectile which had fragmented during its passage through his left thigh and concluded that "the wounds are consistent with an entry and exit wound but I am uncertain as to which is which" (Exhibit U, paragraph 5).

The Appellant's Case 18 The Appellant gave evidence at the trial. Put shortly, he asserted that he had an innocent reason for being in the vicinity of the warehouse and was caught up innocently in the events that followed upon the security guard's discovery and pursuit of the burglars. The Appellant said that, after the security guard had fired the first shot, he turned and ran and soon after a second shot was fired which hit him in the back of the leg (T17-18, 23 April 2004). He denied that he had participated in the burglary and denied holding a crow bar or jemmy and brandishing it towards the security guard. 19 [NAME], forensic pathologist, was called as a witness in the Appellant's case. [NAME] did not physically examine the Appellant at any time. He examined the hospital notes, x-ray reports and a number of photocopied coloured photographs of the Appellant's leg injuries together with the statement of [NAME]. Having undertaken that task, [NAME] expressed the opinion that the entry wound was at the back of the Appellant's thigh and the exit wound was on the outside or lateral aspect of the thigh (T27, 23 April 2004).

The Appeal Against Conviction 20 The sole ground of appeal against conviction is that the [NAME]'s verdict in respect of the s.33B(2) count is not supported by the evidence. The Appellant does not assert any error in the conduct of the trial nor in the summing up. 21 The [NAME] submitted that this ground of appeal falls to be determined by application of the principles in R v [NAME] and [NAME] (1985) 19 A Crim R 360 at 372-373; R v Kyriakou (1987) 29 A Crim R 50 at 60-61; R v O'Donoghue (1988) 34 A Crim R 397 at 401, namely that it is for the Appellant to establish that there was no evidence to support a particular finding, or the evidence was all one way and that a miscarriage of justice has resulted. The principles arising from these cases have application where challenge is made to a trial judge's findings of fact. However, the conviction ground here contends that the verdict of the [NAME] cannot be supported having regard to the evidence. Section 6(1) Criminal Appeal Act 1912 provides that this Court should allow an appeal if it is of the opinion that the verdict of a [NAME] cannot be supported having regard to the evidence. I will approach this ground of appeal in accordance with the principles in M v The Queen (1994) 181 CLR 487 at 492-495 and MFA v The Queen (2002) 213 CLR 606 at 614-615, 621, 623-624 which were summarised recently in the following way in Seymour v R [2006] NSWCCA 206 at paragraph 58. [ADDRESS] must make its own independent assessment of the evidence and then consider whether, notwithstanding that as a matter of law there was evidence to sustain the [NAME]'s verdict, it was nevertheless open to the [NAME] on the whole of the evidence to be satisfied beyond reasonable doubt that the Appellant was guilty, paying full regard to the circumstances that the [NAME] is the body entrusted with the primary responsibility of determining the issue of guilt and that they have the benefit of having seen and heard the witnesses. [ADDRESS] must be satisfied that the evidence on which the [NAME] case relied was cogent and unequivocal, and that it was not inherently implausible. Where the evidence appears on a reading of the record to contain discrepancies, display inadequacies, or lack probative force, its apparent lack of credibility may in many cases be explained by that advantage enjoyed by the [NAME]. But, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, this Court is entitled and obliged to act on its own assessment of the nature and quality of the evidence if it is satisfied that, even making full allowance for the advantage enjoyed by the [NAME], there is a significant possibility that an innocent person has been convicted. 22 [NAME], for the Appellant, submits that the evidence of [NAME], which was not challenged in cross-examination, supports a conclusion that the Appellant was facing away from [NAME] at the time when the second gun shot was fired which struck the Appellant. Based upon this evidence, it was submitted that it was not open to the [NAME] to accept [NAME]'s evidence that the three men, including the Appellant, stood facing [NAME] and brandishing crow bars or jemmies before the second shot was fired. It was submitted that the conviction of the Appellant for the s.33B(2) offence required acceptance of [NAME]'s evidence to this effect. The fact that, according to the evidence of [NAME], the bullet entered the rear of the Appellant's leg supported a conclusion that the Appellant was facing away from [NAME] at the time when the shot was fired. On this analysis, it was submitted that it was not open to the [NAME] to convict Appellant of this offence. 23 It was common ground that the [NAME] did not rely upon joint criminal enterprise with respect to the s.33B(2) count and that the [NAME] had been so directed (T1-2, 29 April 2004). To convict the Appellant of the s.33B(2) count, it was necessary for the [NAME] to be satisfied beyond reasonable doubt that the Appellant, whilst in company of other persons, threatened to use an offensive weapon and did so with the intention of preventing his lawful apprehension. In the circumstances of this case, it was necessary for the [NAME] to prove beyond reasonable doubt that the Appellant brandished a crow bar or jemmy in the manner described by [NAME] before the second shot was fired. 24 The [NAME] submitted that there was ample evidence to support the conviction for the s.33B(2) count in this case. This was so even if [NAME]' evidence was accepted concerning the entry wound in the Appellant's leg. In support of this submission, the [NAME] referred to portions of the evidence given by [NAME] concerning this part of the incident. 25 In examination in chief, [NAME] said that, following the first gun shot, each of the three men was holding a bar which each of them raised towards him (T29-30, 20 April 2004). When the three men were about seven metres from [NAME], he "asked them to drop them and they didn't drop so I fired the shot, the second shot" (T30.52, 20 April 2004). [NAME] had aimed for the legs of "the closest one" who turned out to be the Appellant (T31.11, 20 April 2004). 26 [NAME] cross-examined [NAME] concerning events immediately prior to the second gun shot (T57.53, 20 April 2004): "Q. Now the circumstances surrounding my client being shot you say, do you, immediately prior to [NAME] being shot -- A. Mm hmm. Q. -- and correct me if I'm wrong, that the persons raised their bars and you fired a second shot? A. That's right. Q. So are you saying that all three persons raised their bars? A. That's right. Q. And you fired the second shot? A. That's right. Q. You shot my client in the back of the leg, do you agree with that? A. Well I heard eventually, at the end, yeah. Q. So he wasn't facing you at the time that -- A. They were facing me at the time. Q. Well how do you explain he was shot in the back of the leg? A. Dark place, could've tripped, anything could've happened, it happened pretty quick. Q. Well were you looking at him when you shot him? A. I certainly was. Q. Well he wasn't facing you? A. They were facing me at the time. When I had my firearm out pointed at him they were facing me. Q. Do you agree you've come to find out that he was shot in the back of the leg? A. Yes, that's right, I found out later. Q. I'm putting to you that [NAME] was running away from him (as said) because you were running at him screaming and you shot him whilst he was running away -- A. I was running, I was screaming at them at the time to stop and put down the bars they had and they wouldn't so I let a second shot go. Q. And you're certain it was when he was facing you? A. I'm positive. Q. Now when you did shoot [NAME] you approached him, is that correct? A. Yes that's right. Q. And you did not remove a balaclava? A. I ripped it off, I did." 27 Later in cross-examination, counsel for the Appellant asked [NAME] (T4.48, 21 April 2004): "Q. [NAME], after you had shot him and you approached him and after he went into his jacket and appeared to be speaking on this radio --- A. Yep. Q. He did not have on his person at that time a crowbar, did he? A. I can't recall that, no, I'm not too sure on that one. Q. He didn't have on his person at any time when you saw him a crowbar or a jemmy bar? A. Before I shot him, yes, he did. Q. Well where did it go? A. I don't know. Don't know. Q. You see I'm putting to you that you're mistaken about that? A. No, positive. Q. You saw these other persons with crowbars and in the frenzied activity of that particular incident you made an assumption? A. No. Q. Because indeed you didn't take from [NAME] a crowbar, did you? A. No, didn't see no crowbar after I shot him, nothing. Q. That's right, and he fell where you shot him immediately, didn't he? A. No, he scrambled a couple more metres, tried to run and then fell." 28 A jemmy bar was located on the ground near the location where the Appellant was arrested. 29 The [NAME] submitted that the [NAME] was entitled to convict the Appellant of the s.33B(2) count based upon [NAME]'s evidence that the Appellant (and the two co-offenders) each brandished a crow bar or jemmy towards [NAME] prior to the second gun shot. It was submitted that the [NAME] was entitled to find that this conduct involved a threat by the Appellant to use an offensive weapon with the intention of preventing his lawful apprehension and that this act occurred whilst the Appellant was in company. It was the continuing brandishing of the jemmies or crow bars by the three men towards [NAME] that led him to discharge the firearm a second time.

Accordingly, the [NAME] submitted that a clear foundation existed for the [NAME] to convict the Appellant of this offence. Under cross-examination, [NAME] did not accept that there was an inconsistency between his evidence and the suggested entry point of the bullet in the Appellant's leg.

Resolution of Competing Submissions on Conviction Appeal 30 The evidence of [NAME] supported a clear prima facie case against the Appellant for the s.33B(2) count. Clearly, the Appellant was in company with two other persons. Against the background of an ongoing incident in which [NAME] had identified himself as a security officer, had called upon the three men to stop and had discharged his firearm, the three men, on his evidence, confronted [NAME] with each of them brandishing a crow bar or jemmy. Clearly, it was open to the [NAME] to conclude that the conduct of the Appellant constituted a threat to use an offensive weapon and that this was done with the intention of preventing his lawful apprehension by [NAME]. 31 Accordingly, as a matter of law, there was evidence to sustain the [NAME]'s verdict. It is necessary for this Court to make its own independent assessment of the evidence and to consider whether it was open to the [NAME] on the whole of the evidence to be satisfied beyond reasonable doubt that the Appellant was guilty, paying full regard to the advantages of the [NAME] in exercising its function at the trial. 32 [NAME] maintained that each of the three men was brandishing a crow bar or jemmy prior to the discharge of the second shot. It was this conduct on the part of the three men which explained how he came to discharge his firearm a second time. On his account, the s.33B(2) offence was complete prior to the time when the second shot was fired. Under cross-examination, the Appellant's trial counsel invited [NAME] to explain how the Appellant could come to be shot in the back of the leg on his account. In response, [NAME] indicated that the Appellant could have tripped. He left open the scenario that the Appellant himself had changed his position prior to the time when the bullet struck him in the leg.

Accordingly, there is no irreconcilable inconsistency between [NAME]'s evidence concerning the actions of the Appellant prior to the second shot being fired and the hypothesis advanced by [NAME] that the entry point was in the back of the Appellant's leg. 33 [NAME] reminded the [NAME] in the summing up of the evidence concerning the point of entry of the bullet in the Appellant's leg from [NAME] and [NAME]. It was a matter for the [NAME] to consider that issue in the light of [NAME]'s direct examination of the Appellant soon after the incident and [NAME]' assessment based on reports, photographs and x-rays made some time after the event. 34 It was open to the [NAME] to be satisfied beyond reasonable doubt that the Appellant had brandished a crow bar or jemmy towards [NAME], but that the Appellant had moved or commenced to move shortly prior to the second shot being fired. The bullet passed through the Appellant's leg. 35 The Appellant was wearing a balaclava and gloves, consistent with his part in the burglary offence. After falling to the ground, the Appellant used the two-way radio which he was carrying to contact one or other of his co-offenders. A jemmy was found on the ground in the vicinity and it was open to the [NAME] to conclude that this had been the item held by the Appellant. 36 It was understandable that the [NAME] rejected the Appellant's implausible account that he was present at the scene of the burglary innocently and that he became an innocent victim of the incident. The Appellant's evidence concerning his actions prior to the second gun shot would have carried little or no weight in the eyes of the [NAME], and rightly so. 37 This is not a case where acceptance that the entry point of the wound was in the rear of the Appellant's leg undermined the [NAME]'s verdict on the s.33B(2) count. In my view, the evidence of [NAME] was not inherently implausible. The [NAME] had the advantage of observing [NAME] give evidence. I am satisfied that it was open to the [NAME] on the whole of the evidence to be satisfied beyond reasonable doubt the Appellant was guilty of the s.33B(2) offence. The verdict of guilty on this count can be supported having regard to the evidence: s.6(1) Criminal Appeal Act 1912; M v The Queen; [NAME] v The Queen; R v Chahine [2006] NSWCCA 99 at paragraphs 23-25. 38 I would reject the sole ground of appeal against conviction.

Application for Leave to Appeal Against Sentence 39 The Appellant abandoned his appeal against severity of sentence imposed with respect to the s.112(2) offence apart from any adjustment in dates which may flow from his appeal against conviction and sentence on the s.33B(2) count. 40 It is appropriate to refer to the Appellant's background and subjective circumstances and a number of the findings made by [NAME] on sentence. 41 The Appellant was born on [DATE] and was 33 years old at the time of the offences. [NAME] recounted the Appellant's criminal history which commenced in 1988 and included entries for break, enter and steal (in 1991), for accessory after the fact to break, enter and steal (in 1992) and for kidnapping and maliciously destroying property by fire (in 1994). For the 1994 offences, the Appellant was sentenced to imprisonment for seven years with a non-parole period of five years. The non-parole period expired on 18 August 2001, some five months before the commission of the present offences. 42 According to a pre-sentence report dated 28 July 2004, the Appellant had been unemployed since 1993. He was placed on a disability support pension in 1999 following a diagnosis of post-traumatic stress disorder. He left school in 1985 and held employment in a variety of fields, including [NAME], security and as a forklift operator. The Appellant had a close relationship with his mother until her death in May 2003. She was a paraplegic who relied heavily on her family for support. 43 The diagnosis of post-traumatic stress disorder was said to arise from the custodial sentence imposed upon the Appellant in 1994 and subsequent treatment and harassment experienced by him whilst in custody. The Appellant is homosexual and, according to a report of [NAME], psychologist, dated 12 July 2004, this aspect of his life has given rise to difficulties whilst in custody. 44 [NAME] had regard to the issues of accumulation, concurrence and totality in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610. There was partial accumulation, with the sentence for the s.112(2) offence commencing on 29 January 2005, some nine months after the commencement date for the s.33B(2) offence.

Grounds of Appeal Against Sentence 45 The Appellant relies upon five grounds of appeal with respect to the sentence imposed on the s.33B(2) count. They are:

(1) her Honour erred in taking into account the use of a weapon as an aggravating feature under s.21A Crimes (Sentencing Procedure) Act 1999 ;

(2) her Honour erred in treating the Appellant's criminal record as an aggravating factor under s.21A Crimes (Sentencing Procedure) Act 1999 ;

(3) her Honour failed to make allowance for assistance rendered by the Appellant as allowed for by s.23(2)(b) Crimes (Sentencing Procedure) Act 1999 ;

(4) her Honour failed to take sufficient account of extra-curial punishment inflicted upon the Appellant in the form of a gun shot wound;

(5) the penalty imposed in all the circumstances was too severe.

Ground (1) - The Use of a Weapon as an Aggravating Factor 46 In her remarks on sentence, [NAME] said (ROS 19.5): "In deciding the appropriate sentence to impose on [NAME] I have regard to section 21A of the Crimes (Sentencing Procedure) Act 1999 and the aggravating factors, the second offence upon which [NAME] was found guilty by the [NAME] involved the use of a weapon and [NAME] has a record of previous convictions. I also consider the offence was part of a planned or organised criminal activity and that [NAME] was the prime mover, together with the [NAME]." 47 [NAME] submits that the learned sentencing Judge has erred in treating as an aggravating factor the use of a weapon for the purposes of s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999 when the threat to use an offensive weapon is an element of the offence under s.33B(2) Crimes Act 1900.

Accordingly, it was submitted that the Court ought not to have additional regard to such an aggravating factor in sentencing given that the factor is an element of the offence: s.21A(2). 48 The [NAME] conceded that it would be erroneous to have additional regard to the threatened use of a weapon (under s.21A(2)(c)) where that feature was an element of the offence under s.33B(2). In this case, there was a bare reference by her Honour to the use of a weapon as an aggravating factor for the s.33B(2) offence. Even if error was demonstrated in this regard, the [NAME] submitted the Court would not intervene as no lesser sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. 49 It would be impermissible to have additional regard to the threatened use of a weapon as an aggravating factor in this case given that the threat to use an offensive weapon is an element of a s.33B(2) offence. Her Honour appears to have used s.21A as a type of check list in which all aspects of the case which may be considered to be aggravating or mitigating factors are noted in passing. There was a bare reference to the threatened use of a weapon in the s.21A context. Her Honour did not elaborate upon this statement nor identify or quantify the manner in which the factor was taken into account in the fixing of an ultimate sentence. 50 It would be erroneous to have additional regard to this factor in these circumstances. It is not clear to me, however, that her Honour did have additional regard to the use of a weapon in a manner prohibited by s.21A(2) of the Act. As indicated, there was a bare passing reference to the weapon in the passage under challenge. If error occurred (and it is not clear to me that it has), an issue remains whether a lesser sentence is warranted and should have been passed. I will return to this question later in this judgment. Ground (2) - Use of the Appellant's Criminal Record as an Aggravating Factor 51 In the passage from the remarks on sentence set out in paragraph 46 above, [NAME] identified the Appellant's record of previous convictions as an aggravating factor, apparently for the purposes of s.21A(2)(d) Crimes (Sentencing Procedure) Act 1999. [NAME] submits that, in taking this course, her Honour fell into error. 52 The principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions: R v McNaughton [2006] NSWCCA 242 at paragraphs 24-25. The reference to prior convictions in s.21A(2)(d) should be interpreted as referring to the use of that consideration in a manner consistent with the proportionality principle: R v McNaughton at paragraphs 30-33. 53 There is no doubt that the Appellant had a significant history of convictions for serious offences. These included burglary, kidnapping and arson offences. He was sentenced to a lengthy term of imprisonment in 1994 and had completed his parole period only three months before the commission of the present offences in January 2002. This is a criminal record which does not operate to assist the Appellant on sentence for the present offences. 54 There is nothing to suggest that her Honour applied the Appellant's prior record as an "objective" circumstance of the offence, nor is there anything to suggest that this factor was applied to expand the bounds of the sentence beyond that proportionate to those circumstances: R v McNaughton at paragraph 35. Her Honour's remarks, properly understood, do not suggest any infringement of the principle of proportionality established in [NAME] v The Queen (No. 2) (1988) 164 CLR 465; R v McNaughton at paragraph 41. The Appellant's prior convictions were pertinent to where, within the boundary set by the objective circumstances, a sentence should lie by reference to his attitude of disobedience towards the law and increased weight to be given to retribution, personal deterrence and the protection of society: R v McNaughton at paragraph 26. 55 I am not satisfied that any error has been demonstrated. I reject this ground of appeal.

Ground (3) - Failure to Make Allowance for Assistance to Authorities 56 An affidavit of assistance sworn by [NAME] on 24 September 2004 was tendered on the Appellant's behalf on sentence. Annexed to that affidavit was a report from [NAME] dated 22 September 2004 which set out certain information provided by the Appellant in February 2004 concerning the criminal activities of another person. As [NAME] noted (ROS 18.5), it was the evaluation of [NAME] that the Appellant's assistance was somewhat helpful although the full value of the assistance could not be tested due to his incarceration. [NAME] expressed the view that the Appellant was motivated to give this information to police with the view to receiving a letter of assistance. 57 [NAME] noted that a mitigating factor to be taken into account in the Appellant's favour under s.21A(3)(m) and s.23 Crimes (Sentencing Procedure) Act 1999 was the Appellant's assistance to [NAME] (ROS 19.8). Her Honour considered the matters referred to in s.23(2) of the Act and concluded that the only one which was relevant in this case was the probability that the Appellant would suffer harsh custodial conditions as a consequence (s.23(2)(g)).

Accordingly, her Honour determined the appropriate discount for assistance as being in the order of 15% (ROS 20.2). 58 It was submitted for the Appellant that her Honour had failed to make allowance for the assistance given by the Appellant by reference to the significance and usefulness of the Appellant's assistance to the authorities in accordance with s.23(2)(b) of the Act. 59 The [NAME] submitted that no error was revealed in this approach and that, even if error was demonstrated, no lesser sentence is warranted. 60 In describing the evidence concerning the Appellant's assistance to authorities, her Honour referred to the tentative and guarded assessment concerning its value as offered by investigating police. Nevertheless, her Honour had regard to the terms of s.23 of the Act and identified that a 15% discount ought be extended to the Appellant upon the basis of one statutory factor in s.23(2). In my view, it was open to her Honour to conclude that only that factor, in the circumstances of the case, ought give rise to a discount on sentence. However, even if it might be concluded that some allowance should have been made for the significance and usefulness of the assistance for the purpose of s.23(2)(b) of the Act, it is difficult to see how, given the evidence concerning the assistance, any total discount for assistance could have reasonably extended beyond 15%. I am not satisfied that this ground has been made good.

Ground (4) - Failure to Take Sufficient Account of Extra-Curial Punishment 61 The Appellant complains that the learned sentencing Judge fell into error in failing to takes sufficient account of extra-curial punishment inflicted upon him in the form of the gun shot wound to his leg inflicted by [NAME] on 15 January 2002. [NAME] noted the defence submission that regard should be had to the injury sustained by the Appellant when he was shot by the security guard (ROS 19.2). It was submitted, however, that her Honour did not expressly take this factor into account in passing sentence. 62 The [NAME] submitted that the Appellant was shot as a natural and direct consequence of his offending. There was no evidence of ongoing disability on the Appellant's part following his discharge from hospital on 17 January 2002. In these circumstances, the [NAME] submitted that this factor did not operate to mitigate sentence and that no error had been demonstrated on the part of the sentencing Judge. 63 Conduct which constitutes a form of extra-curial punishment of an [NAME] has been taken into account in an [NAME]'s favour in passing sentence: R v Allpass (1993) 72 A Crim R 561 at 567. Sometimes, such extra-curial punishment takes the form of acts of retribution directed to [NAME] for having committed the offence: Allpass at 566; R v [NAME] (2003) 139 A Crim R 398 at 402ff; Sharwood v R [2006] NSWCCA 157 at paragraphs 65-67; R v Cunningham [2006] NSWCCA 176 at paragraph 67. On occasions, acts of retribution occur soon after the offence: [NAME]. At other times, they occur at a time more remote from the offence: Allpass; Sharwood. 64 Where serious injury has been sustained by an [NAME] in the course of an offence, it has been submitted that the extra-curial punishment principle should be invoked in [NAME]'s favour on sentence: R v Webb [2004] NSWCCA 330 at paragraphs 22-24; R v Azar [2004] NSWSC 797 at paragraphs 31-33. In Webb, [NAME] was shot five times by police in the course of being arrested. Significant and ongoing disabilities were demonstrated as flowing from these injuries. The injuries were taken into account in [NAME]'s favour on sentence. In Azar, injuries were sustained by [NAME] when he was repeatedly struck with a pistol by another person immediately after shooting dead a third person. [NAME] J observed that it was not suggested that the actions of the person who struck [NAME] with a pistol were unreasonable. [NAME] received a number of blows to the head. However, the consequences were short-lived and there was no permanent injury. [NAME] J observed that, whilst it was a matter that should perhaps be taken into account, it should be given little weight (paragraph 33). 65 In the present case, there was limited evidence concerning the consequences of the gun shot wound to the Appellant. He was hospitalised for four days and was then released. The pre-sentence report and psychologist's report tendered on sentence did not refer to any ongoing physical disability. The psychologist noted that the Appellant reported that he was again experiencing symptoms of post-traumatic stress disorder as a result of his being shot at the time of these offences. The Appellant did not give evidence in the sentencing proceedings. Very little weight could be given to evidence of alleged symptoms presented through the psychologist's report only: R v Qutami (2001) 127A Crim R 369 at 377, 380; R v Palu (2002) 134 A Crim R 174 at 184-185. 66 In my view, it could not be suggested in this case that the actions of [NAME] were unreasonable. He was acting in the discharge of his duties as a security officer. He was confronted by the Appellant and two other men armed with crow bars or jemmies who had just broken into business premises. [NAME] was alone in a country town before dawn. The discharge of his firearm on the first occasion had not led to the surrender of the three men nor their retreat. Consistent with the [NAME]'s verdict, the Appellant brandished a weapon towards [NAME] with the intent of avoiding arrest by him. In this context, he fired his gun a second time. Thirteen bullets remained in the firearm. As the [NAME] pointed out, [NAME] restrained himself from any further discharge of the firearm. 67 In the circumstances of this case, I am not satisfied that the injury sustained by the Appellant was such as ought to have led to a discount in sentence by way of extra-curial punishment. Apart from hospitalisation for four days, there was no reliable evidence of any disability resulting from the injury. The injury sustained by the Appellant as a result of the gun shot involved a passing physical injury with a suggestion, unsupported by any satisfactory evidentiary foundation, of post-traumatic stress disorder (which condition appears to relate principally to the Appellant's incarceration). Even if these circumstances attracted the extra-curial punishment principle, this evidence would provide very little assistance to the Appellant on sentence. I am not satisfied that this ground has been established.

Ground (5) - The Sentence Imposed was Manifestly Excessive 68 [NAME] submitted that the sentence imposed for the s.33B(2) offence was manifestly excessive. This was especially so, it was submitted, when appropriate credit was given to the Appellant for the matters touched upon in Grounds (3) and (4) above. 69 The [NAME] submitted that the sentence was not manifestly excessive having regard to the maximum penalty prescribed by law and the circumstances of the particular offence and of [NAME]. [ADDRESS] has observed that offences against s.33B are to be regarded extremely seriously: R v Hamilton (1993) 66 A Crim R 575 at 581; R v Barton (2001) 121 A Crim R 185 at 191. These observations have been made in the context of s.33B offences committed against police officers. In Hamilton, [NAME] observed at 581 that it was incumbent upon the Court in dealing with offences of this nature to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task. 71 In the present case, the s.33B offence was committed against a security officer who was attempting, in the discharge of his duties, to effect the lawful apprehension of the Appellant and his co-offenders. Of course, s.33B is not confined to apprehension by police officers. The security officer in this case was in uniform and was driving a marked vehicle. From his words and conduct, it was apparent to the Appellant that [NAME] was seeking to exercise his lawful functions with respect to persons who had been caught in the act of committing a serious crime. In my view, the serious approach adopted by the courts with respect to s.33B offences committed against police officers extends to such offences committed against security officers in the exercise of their lawful duties. 72 General deterrence must play a significant role in the sentencing of offenders for offences contrary to s.33B: R v [NAME] (NSWCCA, [NAME] and [NAME], 11 December 1991, [ID] at page 21). 73 The Appellant was convicted of the aggravated offence under s.33B(2) given that the offence was committed in company and thus the maximum penalty was imprisonment for 15 years. In my opinion, the imposition of a term of imprisonment of two years with a non-parole period of 18 months was well within the available range of sentence having regard to the circumstances of the offence and [NAME]. 74 I would reach the same conclusion even if the Appellant had demonstrated error in any or each of the ways complained of in Grounds (1) to (4) concerning sentence. I am not satisfied that any lesser sentence is warranted and should have been passed: s.6(3) Criminal Appeal Act 1912.

Conclusion 75 I propose the following orders:

(a) the appeal against conviction is dismissed;

(b) leave to appeal against sentence is allowed, but the appeal is dismissed. 76 LATHAM J: I agree with [NAME]. **********

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