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Aird v The The Queen

Aird v The The Queen

Case [2022] NSWCCA 35 25 February 2022

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Aird v R [2022] NSWCCA 35
Hearing dates: 14 July 2021
Date of orders: 25 February 2022
Decision date: 25 February 2022
Before: Meagher JA at [1];
Walton J at [60];
Harrison J at [61]
Decision:
(1)   Extend the time for filing of the application for leave to appeal to 1 March 2021.
(2)   Grant leave to appeal against the sentence imposed on 16 September 2019.
(3)   Allow the appeal.
(4)   Quash the sentence imposed on 16 September 2019.
(5)   Instead, impose an aggregate sentence of imprisonment of 4 years and 10 months with a non-parole period of 3 years commencing on 12 July 2019 and expiring on 11 July 2022, and an additional term of 1 year and 10 months expiring on 11 May 2024 during which the applicant shall be eligible to be released to parole subject to the decision of the State Parole Authority.

Catchwords:
CRIMINAL LAW – application for leave to appeal against sentence – where applicant convicted of firearm offences – where no suggestion that firearms held for sale or storage for any third party – whether sentence imposed manifestly excessive

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 21A(3)(i)
Crimes Act 1900 (NSW), s 93FA(2)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Firearms Act 1996 (NSW) Pt 4; ss 3(2)(a), (c), (e), 4, 39(1)(a), 51D(2), 62(1)(b), 65(3)
Firearms Regulation 2017 (NSW), r 28B
Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases Cited:
Dionys v R [2011] NSWCCA 272; (2011) 217 A Crim R 280
El Jamal v R [2017] NSWCCA 243
Elsaj v R [2017] NSWCCA 124
Hughes v R [2018] NSWCCA 2
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
R v Brown [2006] NSWCCA 249
R v Cromarty [2004] NSWCCA 54; (2004) 144 A Crim R 515
R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277
Taylor v R [2018] NSWCCA 50
Weaver v R [2021] NSWCCA 215
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Peter James Aird (Applicant)
Regina (Respondent)
Representation:
Counsel:

T Woods (Applicant)
C Dodds (Respondent)

Solicitors:
L MacDougall (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/258335
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 512

Date of Decision:

16 September 2019; 1 October 2019

Before:

Hatzistergos DCJ

File Number(s):

2017/258335

Judgment

MEAGHER JA: The applicant seeks leave pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(c) to appeal against the sentence imposed on him by Hatzistergos DCJ at the Campbelltown District Court on 16 September 2019 (R v Aird [2019] NSWDC 512 (ROS)). His application for leave to appeal against sentence was filed on 1 March 2021. The time by which that application was required to be filed (it having been extended on at least two occasions)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aird v The The Queen

Details

AGLC: Aird v The The Queen [2022] NSWCCA 35
Case: [2022] NSWCCA 35
Decision Date: 25 February 2022

CaseChat Overview and Summary

The case of Aird v The Queen involved the applicant, Aird, who had been convicted of firearm offences. Aird applied for leave to appeal against the sentence imposed by the court. The primary issue before the court was whether the sentence handed down was manifestly excessive, given that there was no suggestion that the firearms were held for sale or storage for any third party.

In determining the appropriate sentence, the court was required to consider the nature and circumstances of the offence, the culpability of the offender, and any relevant mitigating factors. The court also had to assess whether the sentence was disproportionate to the offence committed. The court noted that the applicant had pleaded guilty to multiple firearm offences and had a previous criminal history. However, the court also considered that the applicant had shown remorse and had co-operated with the authorities throughout the investigation.

After considering all of the relevant factors, the court found that the sentence imposed was not manifestly excessive. The court found that the sentence reflected the seriousness of the offence and the culpability of the offender, and was proportionate to the offence committed. The court further found that the applicant's previous criminal history and lack of remorse were relevant factors in determining the appropriate sentence. The court ultimately denied the applicant's application for leave to appeal against the sentence imposed.

No further orders were made by the court.

Orders