Raad v R

1. [1]

   BATHURST CJ: I agree with the orders proposed by Davies J and with his Honour’s reasons.

2. [2]

   HIDDEN J: I agree with Davies J.

3. [3]

   DAVIES J: On 9 May 2013 the Applicant was charged with firing a firearm at a dwelling house with reckless disregard for the safety of any person. The maximum sentence for this offence is 14 years imprisonment. There is a standard non-parole period of 5 years. He was subsequently charged with two offences of possessing a prohibited drug, being an amount of cannabis and 1.2 grams of amphetamine, and an offence of assault occasioning actual bodily harm in company.

4. [4]

   He pleaded guilty to the firearm offence on 3 February 2014 at Burwood Local Court and was committed to the District Court for sentence. He was sentenced by Madgwick ADCJ on 23 June 2014 after a sentence hearing involving both the applicant and the co-offender in the firearm offence, Mohamad Ojaghi, on 20 June 2014. The offences of assault occasioning actual bodily harm and possession of drugs were dealt with by two Form 1 documents.

5. [5]

   The Applicant was sentenced to a non-parole period of three years and six months commencing 9 May 2013 and expiring 8 November 2016 with an additional term of two years and six months expiring 8 May 2019.

6. [6]

   The Applicant now appeals on one ground as follows:

Facts

1. [7]

   The facts involving the offence may be briefly stated. The Applicant involved himself in a long-running dispute between the Hamze family and the Goktas family. That dispute commenced with Hasan Goktas stabbing Ibrahim Hamze when they were school students in February 2011. Hasan Goktas was dealt with by a custodial sentence that expired shortly before 28 August 2012.

2. [8]

   On 28 August 2012 Hasan Goktas was at Auburn Railway Station. He was approached by another person who made a number of phone calls that brought the Applicant and another person to the station. Those three persons then violently assaulted Hasan Goktas.

3. [9]

   Hasan Goktas informed his father Hakan of the assault, and the pair then travelled to the townhouse complex in which Ibrahim and Bilal Hamze lived with their mother. Hasan Goktas was shot in the abdomen and attempts were made to shoot Hakan Goktas. The Applicant was present at the complex at that time.

4. [10]

   On 9 March 2013 Mrs Maha Hamze, the mother of Bilal and Ibrahim, was shot outside their residence. At the time the telephones of the Applicant and the co-offender were being intercepted by the police, and tracking devices had been installed on a car that the Applicant was driving.

5. [11]

   On the day of the shooting of Mrs Hamze the Applicant received a phone call telling him about the shooting and that he had to do something about it. It was believed by the caller and subsequently by the Applicant and the co-offender that the Goktas family was responsible for the shooting of Mrs Hamze. In fact, the Gotkas family were not in any way involved in the shooting.

6. [12]

   In the result the Applicant drove with the co-offender in the front passenger seat to the Goktas residence in Auburn. The co-offender had a .45 automatic calibre pistol. As they drove past the house, with the Applicant telling the co-offender to shoot, the co-offender fired at the Goktas residence at least eight times. Some of the bullets hit the Goktas residence while others hit the house next door. At the time of the shooting there were people including children in both properties. The people who lived in the adjoining residence were not associated with the Goktas family in any way.

7. [13]

   The offenders were arrested on 9 May 2013. The cannabis and amphetamine were found during the execution of a search warrant at the Applicant’s premises on that day.

Remarks on Sentence

1. [14]

   In his Remarks on Sentence his Honour said that general deterrence and the necessity for a resounding denunciation of the criminality involved in the shooting demanded that condign sentences be imposed. His Honour described the assault on Hasan Goktas as appalling.

2. [15]

   His Honour said that there were matters in the background of the Applicant that compelled a degree of mercy. He detailed those matters. In summary they were that the Applicant’s father was a heroin addict and provided no support of any sort to the family. The children were brought up by the mother in difficult economic circumstances. The Applicant was diagnosed with Attention Deficit Hyperactivity Disorder. His mother was unable to afford treatment so he did not have it. He was suspended from school on a number of occasions and ultimately expelled in year 9 at the age of 14. He was allowed back to school in year 10 but was expelled in the first week. He then attended TAFE to undertake training as a spray painter but was expelled from that. His Honour said, nevertheless the Applicant had shown a capacity for hard work and had the continuing support of a girlfriend of some four years.

3. [16]

   His Honour noted that the Applicant was born prematurely and was likely to have had impaired cognitive skills as a result of his premature birth. He took to drug use from the age of 15 to the point where at 17 he was using cannabis on a daily basis and also abusing benzodiazepines. He had unresolved feelings of hate and anger towards his father.

4. [17]

   His Honour noted his custody record which he said was not such as to induce great confidence for the future. That custody record shows a number of offences including drug offences.

5. [18]

   His Honour noted a report from Dr John Roberts who considered that the Applicant’s substance abuse problem was at the root of the Applicant’s other problems.

6. [19]

   Having detailed the subjective matters his Honour then said this:

7. [20]

   His Honour then turned to deal with the co-offender. Having considered matters relevant to him he concluded by saying:

Submissions

1. [21]

   The Applicant submitted that the Sentencing Judge made no reference to the plea of guilty or any discount although at the outset of his reasons his Honour referred to the committal in the Local Court. The Applicant submitted that the Reasons plainly showed an intention on his Honour’s part to allow some benefit for subjective matters. The Applicant submitted that when an allowance is made for subjective matters it appears that either the discount for the plea of guilty has been lost or the benefit of the subjective matters has been lost or subsumed in the ultimate sentence. The Applicant submitted that the result deprived the Applicant of the full benefit of the statutory entitlements under s 22 and s 21A (3)(k) of the Act.

2. [22]

   The Applicant relied on what this Court said in Wei v R [2015] NSWCCA 66 at [24] – [31] as to the criteria the Court should apply when seeking to ascertain whether an unspecified discount for a plea indicated that the judge did not properly take the discount into account. The Applicant submitted that the focus should be on the reasoning of the Sentencing Judge. It was important, it was submitted, for it to be known generally that a discount is given for an early plea to encourage others.

Consideration

1. [23]

   The sentence hearing took place on a Friday. At the conclusion of the hearing his Honour indicated what the sentences would be for the Applicant and the co-offender. He said he would give his reasons the following Monday. Those reasons were given and the sentences formally imposed.

2. [24]

   It is significant to note the following exchanges between counsel for the Applicant (Mr Clark) and the co-offender (Mr Radojev) on the one hand and his Honour on the other during the sentence hearing:

3. [25]

   It may be noted that neither at the conclusion of the hearing on 20 June nor when the sentence was formally imposed on 23 June did either counsel say anything to his Honour to suggest that he had overlooked the early plea.

4. [26]

   In RCW v R (No. 2) [2014] NSWCCA 190 R A Hulme J (with whom Bathurst CJ and Adams J agreed) said:

5. [27]

   In my opinion, the exchanges set out above may be taken into account, not the least reason for which is that his Honour, shortly after they occurred, said that he would sentence the offenders as he had indicated in the exchange. When his Honour was discussing the matter with Mr Radojev it is clear that the 25% discount brought the notional eight years starting point to six years which was ultimately imposed.

6. [28]

   It cannot be said that the subjective matters have thereby been lost. The starting point of eight years is referred to after the co-offender’s subjective matters had been identified by Mr Radojev. His Honour dealt at length with the subjective matters and employed some of them in adjusting the statutory ratio between the non-parole period and the overall sentence particularly for the purposes of rehabilitation as Dr Roberts had suggested.

7. [29]

   No assistance can be derived from Wei. It is apparent that if the sentence in that case had not been discounted for the early plea the sentence would have been manifestly excessive: see at [27] and [31]. In the present case the Applicant expressly declined any suggestion that the sentence imposed was manifestly excessive. Quite apart from what has already been discussed concerning the way the sentence was reached by the Sentencing Judge, the absence of any manifestly excessive sentence prevents any inference being drawn from the sentence itself that the discount was overlooked.

8. [30]

   In my opinion, the Sentencing Judge did not overlook nor fail to apply the discount for the early plea.

9. [31]

   Further, even if error is identified in the way asserted, consideration would need to be given to whether any lesser sentence was warranted. The Applicant submitted that a starting point of seven years taking into account his subjective considerations was appropriate. The 25% discount would then reduce that to an overall sentence of five years three months with a corresponding reduction in the non-parole period.

10. [32]

    This was a very serious offence requiring condign sentences as the Sentencing Judge observed. The eight bullets fired penetrated two houses where persons including children were present. Such offences were prevalent as the Sentencing Judge noted. The Form 1 offence of assault occasioning actual bodily harm was also at a high level of objective seriousness. The Applicant’s subjective matters could only mitigate the appropriate sentence in a small way.

11. [33]

    In my opinion no lesser sentence than a six year sentence was warranted in all the circumstances. In dealing with the matter in that short hand way I do not overlook what was said in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [43] and by R A Hulme J in Thammavongsa v Regina [2015] NSWCCA 107 at [16]-[25].

12. [34]

    I would propose the following orders: