Baxter v R - [2018] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Baxter v R [2018] NSWCCA 281
Hearing dates: 8 October 2018
Date of orders: 07 December 2018
Decision date: 07 December 2018
Before: White JA
Walton J
Wilson J
Decision:
The Court orders:

(1) Give leave to the applicant to appeal against the conviction for offences of attempt to supply a prohibited firearm, and possess a prohibited firearm.

(2) Allow the appeal to the Court in respect of the convictions of those offences, and set aside the convictions.

(3) Quash the aggregate sentence imposed on the appellant in the District Court on 3 November 2017.
(4) Remit the matter to the District Court for sentence for the offence of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act. Offences contrary to ss 29(1)(a) and 65(3) of the Firearms Act are remitted to that Court for further order.
Catchwords: CRIME – appeal against sentence – aggregate sentence – firearms offences – concessions by the Crown – orders by consent – evidence not capable of establishing the firearms were “prohibited firearms” within the meaning of that expression in the Firearms Act 1996 (NSW) – consequences of quashing those the convictions – no lawful sentences exist for the remaining offences –leave to the applicant to appeal against the conviction – quash the aggregate sentence – remit the matter to the District Court for sentencing
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)
Firearms Regulation 2017 (NSW)
Cases Cited: DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Category: Principal judgment
Parties: Jamie Alan Baxter (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
C Curtis (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/239913
Decision under appeal

Court or tribunal:

Newcastle District Court

Jurisdiction:

Criminal

Date of Decision:

3 November 2017

Before:

Berman SC DCJ

File Number(s):

2016/239913

JUDGMENT

THE COURT: By a notice of appeal filed on 9 July 2018, Jamie Alan Baxter (“the applicant”) sought leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against a sentence imposed by Judge Berman SC in the Newcastle District Court on 3 November 2017.
The applicant was convicted of the following offences:

supply 210 grams of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (sequence 12);

attempted supply of a prohibited firearm (shortened single barrel 12 gauge shotgun) contrary to s 36(1) of the Firearms Act 1996 (NSW) (sequence 11);

supply (deemed) 22 grams of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act (sequence 6); and

possess a prohibited firearm (shortened single barrel 12 gauge shotgun) contrary to s 7(1) of the Firearms Act (sequence 2) (taking into account offences on a Form 1 document, including “not keep firearm safely” and “possess ammunition” contrary to ss 38(1)(a) and 65(3) of the Firearms Act

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 Baxter v R

Details

AGLC: Baxter v The Queen [2018] NSWCCA 281
Case: [2018] NSWCCA 281
Decision Date: 07 December 2018

CaseChat Overview and Summary

The appellant, Baxter, was convicted in the District Court of multiple firearms offences, including possessing prohibited firearms without a licence. The Crown appealed the sentence, and Baxter appealed both the sentence and the conviction. The High Court heard the case, considering the appeal against sentence and the appeal against conviction. The central legal issue was whether the evidence was sufficient to establish that the firearms were "prohibited firearms" as defined in the Firearms Act 1996 (NSW). If the convictions for possessing prohibited firearms were quashed, the court had to determine whether lawful sentences existed for the remaining offences.

The court found that the evidence was not sufficient to establish that the firearms were prohibited firearms within the meaning of the Firearms Act. Consequently, the convictions for possessing prohibited firearms were quashed. This resulted in no lawful sentences existing for the remaining offences. The court granted Baxter leave to appeal against the conviction, quashed the aggregate sentence, and remitted the matter to the District Court for sentencing. The court held that the evidence was insufficient to prove that the firearms were prohibited firearms and that the remaining offences did not carry lawful sentences without the quashed convictions.

Orders