Cunningham v The Queen - [2005] NSWCCA 416

CITATION:
Cunningham v R [2005] NSWCCA 416

HEARING DATE(S): 30 November 2005

JUDGMENT DATE:

30 November 2005

JUDGMENT OF:
Studdert J at 1; Whealy J at 40; Howie J at 41

DECISION:
Leave to appeal granted; appeal dismissed.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act, s 32
Drug Misuse and Trafficking Act, s 25
Firearms Act, s 51
Weapons Prohibition Act

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610
R v Thomson (2000) 49 NSWLR 383

PARTIES:
Brenton Cunningham v Regina

FILE NUMBER(S):
CCA 2005/389

COUNSEL:
App: In person
Crown: J. Bennett SC

SOLICITORS:
App: In person
Crown: S. Kavanagh

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/31/0389

LOWER COURT JUDICIAL OFFICER:
Patten DCJ

2005/389

STUDDERT J
WHEALY J
HOWIE J
Wednesday 30 November 2005

BRENTON CUNNINGHAM v REGINA

Judgment

1 STUDDERT J: The applicant, Brenton Paul Cunningham, seeks leave to appeal against sentences imposed by his Honour Judge Patten in the District Court at Gosford on 23 April 2004. The offences for which sentences were imposed were two counts of supplying a prohibited drug, namely cannabis leaf, selling a prohibited pistol to a person not authorised to purchase it, and possessing a prohibited weapon without authority. The judge was also asked to take account of additional charges listed pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. Those offences were the following:

(a) unauthorised sale of a box of Winchester .22 ammunition;

(b) goods in custody, being motor vehicle registration plates;

2 The sentences imposed were as follows:

(a) for the earlier offence of supplying cannabis leaf, a term of imprisonment of twelve months to date from 10 October 2003;

(b) for the later offence of supplying cannabis leaf, a term of imprisonment of twelve months to date from 10 October 2004;

(c) for the offence of sale of the prohibited weapon, taking into account the offences included in the Form 1, imprisonment for a non parole period of two years and a total term of four years to date from 10 October 2005;

3 In summary then, the judge accumulated the sentences for the supply of cannabis leaf and the offence concerning the sale of the pistol, but made the sentence in respect of the silencer wholly concurrent with the sentence for the sale of the pistol.

4 Hence, the effective total term was six years with a non parole period of four years. This followed a finding of special circumstances.

5 The sentences were imposed following pleas of guilty first entered in the Local Court and adhered to when the applicant came before the District Court.

6 Each of the offences of supplying cannabis was in a category for which s 25(1) of the Drug Misuse and Trafficking Act provided a maximum penalty of ten years imprisonment. The offence of selling…

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 Cunningham v The Queen

Details

AGLC: Cunningham v The Queen [2005] NSWCCA 416
Case: [2005] NSWCCA 416
Decision Date: 30 November 2005

CaseChat Overview and Summary

In the case of Cunningham v The Queen, the applicant, Brenton Paul Cunningham, sought leave to appeal against the sentences imposed by his Honour Judge Patten in the District Court at Gosford on 23 April 2004. The applicant was found guilty of multiple offences, including supplying cannabis, selling a prohibited pistol, possessing a prohibited weapon, and additional charges listed under s 32 of the Crimes (Sentencing Procedure) Act 1999. The sentences imposed were a total of six years imprisonment with a non parole period of four years. The applicant argued that the sentencing judge erred in various aspects, including not finding that the offences were committed while he was overcome by fear of another individual, misdirecting himself as to the seriousness of the firearms offences, not allowing an appropriate discount for the plea of guilty, not making all sentences concurrent, not taking into account the assistance given by the applicant, and considering the sentence to be manifestly excessive.

The Court of Criminal Appeal considered each ground of appeal. The court found that the sentencing judge's findings of fact, such as not accepting the applicant's evidence that he committed the crimes while his will was overborne by fear, were not open to challenge. The court also held that the sentencing judge's observations on the seriousness of the firearms offences were appropriate and that the discount of twenty percent for the plea of guilty was within the judge's discretion. Furthermore, the court found no error in the judge's decision to accumulate the sentences for the supply offences and the sale of the prohibited pistol. The court also concluded that the judge was entitled to find that the applicant did not provide useful assistance to the police, and the submission that the sentence was manifestly excessive was not established. Ultimately, the Court of Criminal Appeal granted leave to appeal but dismissed the appeal, upholding the original sentences imposed by the District Court.

Orders