Cramp v R - [2008] NSWCCA 40

New South Wales
Court of Criminal Appeal

CITATION: CRAMP, John Robert v R [2008] NSWCCA 40

HEARING DATE(S): 14 December 2007

JUDGMENT DATE:
4 March 2008

JUDGMENT OF: Grove J at 1; Hulme J at 3; Simpson J at 9

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – unauthorised use of prohibited pistol – possession of an unregistered firearm – applicant convicted and s 9 good behaviour bond imposed – whether conviction carries extra-curial punishment – whether s 10 bond should be substituted for s 9 bond and conviction set aside – conviction disentitles renewal of licence but does not necessarily entail automatic revocation of licence – substitution of s 10 would result in the circumvention of the discretion conferred upon the statutory officer holder – appeal dismissed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Firearms (General) Amendment (Security Industry) Regulation 2003
Firearms (General) Regulation 1997
Firearms Act 1996

CATEGORY: Principal judgment

CASES CITED: Daetz and Wilson (2003) 139 A Crim R 216

PARTIES: John Robert Cramp (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/5232

COUNSEL: P Hastings QC (Applicant)
P Miller (Respondent)

SOLICITORS: Woodgate Morgan (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/1144

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 3 November 2006

CCA 2006/5232

GROVE J
HULME J
SIMPSON J
4 March 2008

CRAMP, John Robert v R

Judgment

1 GROVE J: I have had the advantage of reading the judgment of Simpson J in draft and gratefully acknowledge and adopt her Honour's collation and analysis of the complexities of the relevant legislation and regulation.

2 Ultimately, the power of this Court to intervene is dependent upon demonstration that the sentencing discretion of Williams DCJ miscarried to some extent or in some aspect. No such demonstration has been achieved and I agree with the order proposed by Simpson J.

3 HULME J: I also acknowledge and adopt Simpson J’s collation of the relevant legislation. In light of her Honour’s review of it and the facts, I can be brief.

4 The ramifications to the Applicant arising from that legislation and which, is likely if not inevitably to result, in practical terms in extra-curial punishment were matters to be taken into account by Williams DCJ – see Daetz and Wilson (2003) 139 A Crim R 216. In that his Honour’s remarks on sentence contain no mention of such matters it is to be inferred he took no account of them and thus erred.

5 This however is not the end of the matter for this Court is obliged to have regard to s6(3) of the Criminal Appeal Act which provides:-

“On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more of less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in…

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 Cramp v R

Details

AGLC: Cramp v R [2008] NSWCCA 40
Case: [2008] NSWCCA 40
Decision Date: 4 March 2008

CaseChat Overview and Summary

The case of Cramp v R involved the applicant, who was convicted of possessing an unregistered firearm and unauthorised use of a prohibited pistol. The applicant appealed against the sentence imposed, arguing that a section 10 good behaviour bond should replace the section 9 bond and that his conviction should be set aside. The applicant contended that the conviction carried an extra-curial punishment that disentitled him from renewing his firearms licence, but did not necessarily mean automatic revocation of the licence. The appeal was heard in the relevant court of appeal.

The legal issues before the court were whether the conviction carried an extra-curial punishment and if so, whether a section 10 bond should replace the section 9 bond and the conviction should be set aside. The applicant argued that the conviction disentitled him from renewing his firearms licence, but did not necessarily mean automatic revocation of the licence. The court had to consider the effect of the conviction on the applicant's ability to renew his firearms licence and the appropriate sentence to be imposed.

The court held that the conviction did not carry an extra-curial punishment in the sense that it did not necessarily entail automatic revocation of the applicant's firearms licence. However, the court noted that the conviction disentitled the applicant from renewing his firearms licence. The court further held that substituting a section 10 bond for a section 9 bond would result in circumventing the discretion conferred upon the statutory officer holder. The appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the court. The applicant's appeal was dismissed, and the original sentence imposed by the trial court was upheld.

Orders