Carlin v The Queen - [2019] NSWCCA 130

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carlin v R [2019] NSWCCA 130
Hearing dates: 7 June 2019
Date of orders: 07 June 2019
Decision date: 20 June 2019
Before: Hoeben CJ at CL at [1];
White JA at [1];
Hamill J at [1]
Decision:
1. Extend the time for the applicant to file notice of intention to appeal or to apply for leave to appeal to 15 February 2019.
2. To the extent necessary give leave to the applicant to appeal against her conviction on Count 2 of the indictment dated 20 September 2017 namely, that the applicant, between 19 December 2015 and 21 January 2016 at Penrith in State of New South Wales possessed a prohibited firearm, namely, a shortened 20 Gauge Boito single barrel shotgun with serial number removed, not being authorised to do so by a licence or permit.
3. Allow the appeal in respect of the applicant’s conviction on that count and set aside the conviction.
4. Quash the aggregate sentence imposed on the appellant in the District Court on 18 June 2018.
5. Remit the matter to the District Court for sentence for the offences on Counts 1 and 3 of the indictment dated 20 September 2017 and the offences of possession of an unauthorised firearm and discharging a firearm in a public place and any offence with which the appellant might be charged for possession of a shortened firearm, contrary to s 62(1)(b) of the Firearms Act 1996, if the appellant pleads guilty to that offence.
6. It is noted that the non-parole period of the sentence that is now quashed would expire on 20 November 2019, and it is recommended that if possible the matter should be relisted before the Penrith District Court with priority.

Catchwords: CRIME — Appeals — Application for leave to appeal against sentence and conviction — Primary judge imposed aggregate sentence in respect of offences including offences of unauthorised possession of prohibited firearms contrary to s 7(1) of the Firearms Act 1996 (NSW) to which applicant pleaded guilty — Where one such offence charged under s 7(1) related to possession of a shortened 20-gauge BOITO single-barrel shotgun — Common ground on appeal that agreed description of shotgun did not disclose offence against s 7(1) and that consequentially the relevant count on the indictment and aggregate sentence imposed thereon ought to be quashed — Whether applicant could be resentenced on appeal pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) — No power for Court of Criminal Appeal to re-sentence where there was no other possible count on indictment on which a jury could have found applicant guilty — Proceedings remitted to District Court for re-sentencing
Legislation Cited: Crimes Act 1900 (NSW), s 96G
Criminal Appeal Act 1912 (NSW), s 7
Firearms Act 1996 (NSW), ss 7, 7A
Cases Cited: Baxter v R [2018] NSWCCA 281
Calabria v The Queen (1983) 151 CLR 670; [1983] HCA 33
Spies v The Queen…

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 Carlin v The Queen

Details

AGLC: Carlin v The Queen [2019] NSWCCA 130
Case: [2019] NSWCCA 130
Decision Date: 20 June 2019

CaseChat Overview and Summary

In the matter of Carlin v The Queen, the defendant appealed against both his sentence and conviction. The primary judge had imposed an aggregate sentence for various offences, including unauthorised possession of prohibited firearms under section 7(1) of the Firearms Act 1996 (NSW), to which the defendant had pleaded guilty. One such offence related to the possession of a shortened 20-gauge BOITO single-barrel shotgun. Both parties agreed that the description of the shotgun did not constitute an offence under section 7(1), and therefore, the relevant count on the indictment and the aggregate sentence imposed on it should be quashed. The issue before the court was whether the defendant could be resentenced on appeal under section 7(2) of the Criminal Appeal Act 1912 (NSW). The court found that there was no power for the Court of Criminal Appeal to re-sentence where there was no other possible count on the indictment on which a jury could have found the defendant guilty.

The court examined the legislative framework and noted that the primary judge had no power to re-sentence the defendant in the circumstances. The court held that the only option was to remit the proceedings to the District Court for re-sentencing. The court concluded that the appeal should be allowed, and the matter should be remitted to the District Court for re-sentencing. The court emphasised that the legislative framework did not provide for the Court of Criminal Appeal to re-sentence the defendant in the absence of any other possible count on the indictment on which a jury could have found the defendant guilty. The court's decision was based on the interpretation of the relevant statutory provisions and the absence of any other possible count on the indictment.

The court's reasoning was grounded in the statutory framework and the absence of any other possible count on the indictment. The court found that the primary judge had no power to re-sentence the defendant in the circumstances, and the only option was to remit the proceedings to the District Court for re-sentencing. The court's decision was based on the interpretation of the relevant statutory provisions and the absence of any other possible count on the indictment. The court's decision was clear and straightforward, and the outcome was that the appeal was allowed, and the matter was remitted to the District Court for re-sentencing. The court's decision provides guidance on the interpretation of the relevant statutory provisions and the circumstances in which the Court of Criminal Appeal can re-sentence a defendant.

Orders