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Atkinson v R

Atkinson v R

Case [2014] NSWCCA 262 28 November 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Atkinson v R [2014] NSWCCA 262
Hearing dates: 29 May 2014
Decision date: 28 November 2014
Before: Simpson J at [1];
Adams J at [23];
McCallum J at [81]
Decision:
1.Leave to appeal granted.
2.Appeal allowed.
3.The sentence imposed for the first offence, possession of the .22 calibre Ruger self-loading pistol, be quashed and a sentence of a term of imprisonment with a non-parole of 5 years and 3 months commencing on 24 September 2009 and expiring on 23 December 2014 and a balance of term of 2 years and 9 months expiring on 23 September 2017 be substituted.
4.The sentence imposed for the second offence, possession of the .45 automatic Colt pistol, be quashed and a sentence of a term of imprisonment with a non-parole of 4 years and 3 months commencing on 24 September 2010 and expiring on 23 December 2014 and a balance of term of 3 years and 9 months expiring on 23 September 2018 be substituted.
5.The earliest day on which the applicant will become entitled to be released on parole is 23 December 2014.

Catchwords:
CRIMINAL LAW - appeal - appeal from sentence - whether offences in worst category of case - offender's intended use of firearms - whether evidence supported finding as to intended use of firearms

CRIMINAL LAW - appeal - appeal from sentence - whether lawyer's delay provided appropriate basis for reducing discount

CRIMINAL LAW - appeal - appeal from sentence - parity - whether principles of parity in sentencing applicable
CRIMINAL LAW - appeal - appeal from sentence - whether relevance ascribed to offender's subjective features and history of social deprivation consistent with Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
Legislation Cited: Crimes Act 1900 (NSW), s 188(1)
Crimes (Sentencing Procedure) Act 1999, s Pt 3 Div 3, s 44
Criminal Appeal Act 1909 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Firearms Act 1996 (NSW), ss 7(1), 65(3), 39(1), 51(1A)(a)
Weapons Prohibition Act 1998 (NSW), s 7(1)
Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
Cases Cited: Bugmy v R [2013] HCA 37; (2013) 249 CLR 571; (2013) 229 A Crim R 337
Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Borkovski [2009] NSWCCA 102; 195 A Crim R 1
R v Bugmy [2012] NSWCCA 223
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category: Principal judgment
Parties: Rodney Phillip Atkinson (Applicant)
Regina (Respondent)
Representation: Counsel:
P Boulten SC (Applicant)
P Ingram SC (Respondent)
Solicitors:
Hanna Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/213105
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-04-11 00:00:00

Before:

Bennett SC DCJ

File Number(s):

2009/213105

Judgment

SIMPSON J: I have read in draft the judgments…

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 Atkinson v R

Details

AGLC: Atkinson v R [2014] NSWCCA 262
Case: [2014] NSWCCA 262
Decision Date: 28 November 2014

CaseChat Overview and Summary

Atkinson v R is a case that concerns the appeal from a sentence imposed on the appellant following his conviction for various criminal offences. The central issues in this appeal revolve around the severity of the sentence, the intended use of firearms by the offender, the appropriateness of the discount applied due to the lawyer's delay, and the applicability of the principles of parity in sentencing. Additionally, the court had to consider whether the relevance ascribed to the offender's subjective features and history of social deprivation aligns with the principles established in Bugmy v R.

The legal issues that the court was required to decide included whether the offences warranted being categorised in the worst case scenario, the sufficiency of evidence regarding the intended use of the firearms, the justification for the discount applied due to the lawyer's delay, and the application of parity principles in sentencing. Furthermore, the court had to assess whether the consideration of the offender's subjective features and history of social deprivation was consistent with the aforementioned legal principles.

In delivering its judgment, the court carefully examined the evidence and arguments presented by both parties. The court found that the offences did not warrant the worst-case categorisation, and there was insufficient evidence to support the finding regarding the intended use of the firearms. The court also determined that the discount applied due to the lawyer's delay was not warranted, and the principles of parity in sentencing were applicable in this case. Lastly, the court concluded that the relevance ascribed to the offender's subjective features and history of social deprivation was consistent with the principles established in Bugmy v R.

Consequently, the court allowed the appeal, reduced the sentence imposed on the appellant, and remitted the matter to the original sentencing court for re-sentencing. The final orders of the court reflect the adjustments made to the sentence based on the findings and legal principles discussed above.

Orders