Dixon v R

HOEBEN CJ at CL:

The applicant seeks leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

The hearing on sentence proceeded on the basis of agreed facts which were set out at p 9 of the appeal book as follows:

As a preliminary matter, the sentencing judge noted that on the original indictment the applicant had been charged with a separate break and enter offence, occurring on 24 April 2017, where it was alleged that he in company with two others had arrived with a shortened shotgun and attempted to break into the victim’s apartment, contrary to s 112(3) of the Crimes Act. The maximum penalty for that offence was 25 years with a standard non-parole period of 7 years. After negotiation this charge was not proceeded with. The charge which continued to be pursued by the Crown was count 2 on the present indictment, i.e. fire a firearm at a dwelling house with disregard for safety, contrary to s 93GA(1) of the Crimes Act.

It was common ground that it was only after the two break and enter charges contrary to s 112(3) of the Crimes Act had been withdrawn that the applicant pleaded guilty to the Counts 1 and 2 on the present indictment.

The Crown accepted that in respect of counts 1, 3 and 4 on the present indictment, the applicant was entitled to a 25 per cent discount but in respect of Count 2, the Crown submitted that the discount for the plea should be in the order of 5 to 10 per cent.

The sentencing judge decided that issue against the Crown and allowed a discount of 25 per cent in respect of Count 2. His Honour cited his decision in R v Lambell [2019] NSWDC 78 at [4] as authority for that finding.

The sentencing judge continued:

When considering the objective seriousness of the offending, the sentencing judge cited the following observations by Rothman J in R v Campbell; R v Smith [2019] NSWCCA 1 at [9]:

The sentencing judge also noted an earlier observation of Rothman J to the effect that traditionally the courts had treated firearm offences “far too leniently” (at [5]).

It was against that background that his Honour determined that the offence in Count 2 was the most serious. Having set out the relevant agreed facts, his Honour found:

His Honour assessed the objective seriousness of Count 2 at midrange. In reaching that conclusion, his Honour had regard to Powell v R [2014] NSWCCA 69 (Powell), a decision of Button J (with whom Basten JA and R A Hulme J agreed). It was an appeal asserting manifest excess. The facts were that the applicant and another man attended a house where a number of boarders lived. As a result of dogs barking and seeing the co-offender through a window, the home owner opened the door. There was some conversation and the co-offender walked off. The home owner returned to his lounge room and then heard one or two shots causing him to throw himself to the ground. Several days later, police identified a small hole in the blinds of the front window. A projectile was found lodged in a section of gyprock in the kitchen/dining area. The applicant was charged with an offence contrary to s 93GA(1). At the time the applicant was sentenced, the offence was not subject to a standard non-parole period.

His Honour assessed the offending in Count 2 as objectively more serious than that in Powell because the victim suffered a cut to the left side of his face from splinters of glass caused by the shot and its aftermath. His Honour observed that the victim was very lucky that he was not standing at the time the shot was fired. His Honour found that the indiscriminate discharge of a shotgun into the residence had the potential to maim or kill the victim.

Powell had originally been sentenced to a head sentence of 9 years with a non-parole period of 5 years. He was successful in his manifest excess appeal with the sentence being reduced to 7 years with a non-parole period of 4 years. The sentencing judge noted that although Powell did not set out any binding principles, Button J had said at [30]:

The sentencing judge concluded his consideration of Count 2 by observing:

In relation to Count 1, his Honour found:

The sentencing judge found that the offending in Count 1 was below midrange in that “the rifle was produced for a short period of time and the offender left immediately after the victim told him to” (Sentence judgment 11.2). In relation to Counts 3 and 4, the sentencing judge said:

Having assessed the objective seriousness of the offending, the sentencing judge reviewed the applicant’s subjective case. Because the applicant did not give evidence, his Honour relied on a report from Mr Machlin, a clinical psychologist. The applicant was born in Sydney and raised in the Liverpool area. His mother is of Aboriginal descent and he identified as Aboriginal. The applicant’s father had ongoing problems with alcoholism. From the age of ten, the applicant recalled recurrent domestic violence perpetrated by his drunken father against his mother. He recalled being sent away with his siblings to stay with other family members when his mother was recovering from these violent episodes. The applicant had a troubled relationship with his father.

When the applicant reached his teens he tried to protect his mother which caused his father to direct his violence towards him. This caused the applicant to “take off and hang out in the streets”. By the time he turned 15, his parents had separated and he was already getting into trouble with the law and spending time in boys’ homes. It was common ground that the applicant had spent a majority of his adult life in prison.

The sentencing judge set out the following extract from the report of Mr Machlin:

Under the heading “Relationship and Children”, Mr Machlin reported that the applicant had been with the same partner, Sarah, for the past 20 years since the age of 16. Together they had a daughter aged 16 and two sons aged 10 and five. The three children reside with their mother in Macquarie Fields and the applicant’s mother provides some domestic help.

Under the heading “Substance Abuse”, Mr Machlin reported that the applicant started smoking marijuana at 13. He has struggled with heroin addiction all his life since the age of 15. Although the applicant had tried other drugs including amphetamines, methamphetamine and cocaine he did not persist with them. His drug of choice had been heroin. He had completed methadone and buprenorphine programs while in custody on other occasions. He had participated in the Drug Court Program some years before but was terminated after nine months. He had attended the EQUIPS Program which targeted addiction a number of times without any perceived benefit.

The applicant was born in October 1982 and was aged 37 at the time of sentencing. He had an extensive criminal history. He was unable to estimate how many times he had been sent to prison when asked by Mr Machlin. The applicant thought that the longest period during which he had been out of prison was in 2012 when he was part of the Drug Court Program for nine months. The usual pattern was for him to be free for only a few months before being arrested again for committing offences to support his heroin habit.

The applicant had been in custody for two years since his arrest for these offences. He found that the absence of his family was the most difficult part of being in prison. The applicant told Mr Machlin about his gratitude for his partner’s ongoing support and his hopes that he could be rehabilitated.

His Honour accepted the diagnosis by Mr Machlin that the applicant had a substance use disorder in that he had sustained an opiate addiction through most of his adult life to the severe detriment of his lifestyle and family functioning. Mr Machlin found that longstanding family dysfunction, exposure to violence and the chronic impact of incarceration had almost certainly affected the applicant’s personality and mood functioning and that it was quite likely that he had experienced stress, anxiety and depression on the scale of a clinical condition at various times in his life.

Under the heading “Conclusion and Recommendations”, Mr Machlin opined:

In a letter to the court, his long term partner said:

In relation to the applicant’s criminal record, his Honour noted that he first appeared before the Children’s Court in 1996 when he was aged 13 and had appeared before the courts on at least 45 occasions since then. His longest sentence was 4 years with a non-parole period of 2 years and 6 months imposed by the Parramatta Drug Court on 24 September 2013. His Honour concluded that his criminal record disentitled him to leniency and that his prospects of rehabilitation were “bleak”.

The sentencing judge dealt specifically with the effects of the applicant’s upbringing as follows:

His Honour found special circumstances because of the applicant’s need for assistance in reintegrating with the community and to deal with the risk of institutionalisation. His Honour noted that protection of the community and rehabilitation were not necessarily opposites when considering what was appropriate for the applicant.

It was agreed between the parties that the sentence should be backdated so as to commence on 1 May 2017.

His Honour noted that there should be a notional accumulation between all of the offences, including Counts 3 and 4 because separate firearms were involved.

The applicant pleaded guilty to Count 2 on the basis that he and the other two offenders had been involved in a joint criminal enterprise to discharge the firearm. In written submissions in the sentence proceedings, the applicant submitted:

The sentencing judge did not accept that submission. His reasons are set out at [11] hereof. His Honour found as a fact that it was the applicant who had discharged the shotgun towards the victim’s house.

The applicant submitted that it was not open to the sentencing judge to make that finding beyond reasonable doubt. The applicant submitted that his Honour erred when he set out as one of his reasons for making the impugned finding that “there is no evidence to suggest that Mr Zabakly or the [third] man were in possession of the shotgun on 24 April 2017.”

The applicant submitted that this was because the agreed facts when summarising the evidence of Glen Freeman recited:

While I have my doubts as to whether reasons 1 – 5 were sufficient to establish beyond reasonable doubt that the applicant was the shooter, it is clear that reason 6 is incorrect. Because of the observation attributed to Mr Freeman concerning the production of a shotgun by the tallest of the offenders, his Honour’s finding that the applicant was the shooter cannot stand.

It is also clear that this finding by his Honour played an important part in his Honour’s assessment of the indicative sentence for Count 2. The error is such as to place in doubt the appropriateness of the aggregate sentence given that Count 2 played such an important part in its formulation.

I am also somewhat concerned at the weight given to the decision of Powell. An important difference between Powell and this case was that the sentence in Powell was imposed after a trial. There was no discount for an early plea. Moreover, a single decision, such as Powell, does not provide any guidance as to what is an appropriate range of sentences for offending of this kind.

Accordingly, I have concluded that House v The King (1936) 55 CLR 499; [1936] HCA 40 error has occurred and that in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 it is necessary for the applicant to be re-sentenced in this matter.

The applicant submitted that his Honour erred in the assessment of the objective seriousness of the criminality in Counts 1, 3 and 4 because too much weight was given to the decision in R v Campbell; R v Smith [2019] NSWCCA 1. The applicant submitted that apart from a general similarity in the offending, there were significant differences between that case and this one. In R v Campbell; R v Smith a Form 1 was involved and the overall circumstances were far more serious than the factual scenario in this case. The applicant submitted that this was particularly so when the only basis for liability in relation to Counts 3 and 4 was the depiction of the applicant in a staged photograph found on his girlfriend’s phone.

The applicant submitted that a finding that the objective seriousness of those counts was “below the midrange” was too high and that the objective criminality for Counts 3 and 4 should have been assessed as low range.

This Court has stated on a number of occasions that a finding of objective seriousness is a matter classically within the discretion of the sentencing judge and that this Court will be slow to set aside such a finding: Mulato v Regina [2006] NSWCCA 282 at [37]; Ali v R [2010] NSWCCA 35 at [33]; Karout v R [2019] NSWCCA 253 at [40].

Applying the principles in those cases, it cannot be said that his Honour erred in finding that the objective seriousness of the offending in Count 1 was below midrange. That part of the Ground of Appeal has not been made out.

The assessment of the objective seriousness of the offending in Counts 3 and 4 is, however, in a different category. The information concerning those offences is sparse. Taken with the use of a firearm in Count 1, it can be accepted that the applicant had access to at least one firearm. The evidence is, however, silent as to the nature of that access. All that we know in relation to Counts 3 and 4 is that the applicant had possession of the two firearms for a time on that day. There is no evidence as to ownership or accessibility. There is no evidence as to the use of those firearms by the applicant except Count 1. Apart from this episode of offending, there is no association with firearms in any of the applicant’s extensive offending before these incidents.

It follows that despite the heavy burden of establishing House v The King error, insofar as Counts 3 and 4 are concerned, I have concluded that such error has been established and that the objective seriousness of these offences should be characterised as low range. It follows that this will need to be taken into account on re-sentence.

The applicant submitted that it was established that:

The applicant noted that Mr Machlin had found that because of long standing family dysfunction and exposure to violence, there was likely to be an adverse effect on his general personality and mood functioning and “It [was] quite likely that he had experienced stress, anxiety and depression on the scale of a clinical condition at various times throughout his history”.

The applicant submitted that his background, criminal record, circumstances and overall offending were not in those circumstances such as would deprive him of Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 considerations. Even so his Honour appreciated that those considerations had to be balanced against the need to protect the community. On that issue his Honour said:

It is clear from the emphasis given by his Honour to the applicant’s deprived and violent upbringing that his Honour was very conscious of the relevance of those matters to an assessment of the applicant’s moral culpability for his offending. His Honour set out in considerable detail the assessment of Mr Machlin of those matters and their effect on the applicant and the observations of the applicant’s partner. His Honour also dealt with the Bugmy issue quite separately as a part of his judgment.

When taking into account the Bugmy factors, his Honour could not ignore that while the applicant’s deprived and violent upbringing reduced his moral culpability, the sheer volume and consistency of his offending had to be balanced against those considerations. His Honour clearly engaged in that difficult balancing task when reaching his conclusion as to sentence. There is no suggestion in anything that his Honour said that he had concluded that the protection of the public prevented him from taking into account the effect of the applicant’s upbringing on his moral culpability. As often happens in sentencing, his Honour had a difficult balancing task to perform in reconciling competing considerations.

This ground of appeal has not been made out.

Given that the applicant will have to be re-sentenced, there is no useful purpose to be served in dealing with this Ground of Appeal.

As indicated above, there was an issue in the sentence proceedings as to whether the 25 per cent discount for the utilitarian value of an early plea of guilty should apply to Count 2. His Honour concluded that it should because of his reading of the decision in R v Dib [2003] NSWCCA 117. I agree with the conclusion arrived at by the sentencing judge, particularly when the Crown appears to have conceded that proposition in the course of the sentence hearing.

Although being part of a joint criminal group responsible for the discharge of a firearm at a dwelling with reckless disregard for safety, is objectively serious, it is not as serious as being the member of such a group who actually discharged the firearm. Accordingly, that difference needs to be kept in mind on re-sentence. Similarly, the Bugmy considerations have to be taken into account but balanced against the inevitable risk to the public inherent in the applicant’s offending. Because there were four offences, considerations of accumulation and concurrency, together with totality, also have to be kept in mind. In this case, specific deterrence is important because of the applicant’s criminal record.

Despite the applicant not being identified as the shooter, I would still characterise the objective seriousness of this offending in respect of Count 2 as midrange, albeit not as serious as if he was the person who had discharged the shotgun. While general deterrence also has a part to play, the application of that principle needs to be tempered by the hardships surrounding the applicant’s early years. On re-sentence it is also necessary to have regard to the conclusions arrived at in relation to the Grounds of Appeal. In that regard, the assessment of the objective seriousness of Counts 3 and 4 is important.

Taking all those matters into account, by way of an instinctive synthesis I have concluded that the aggregate sentence imposed by the sentencing judge should be quashed and in lieu thereof, the applicant should be sentenced to an aggregate sentence of imprisonment for 8½ years with a non-parole period of 5 years.

The indicative sentences are as follows:

Accordingly, the orders which I propose are:

HARRISON J: I agree with Hoeben CJ at CL.

BEECH-JONES J: I agree with Hoeben CJ at CL.