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Darestani v R

Darestani v R

Case [2019] NSWCCA 248 21 October 2019

Criminal Liability

Statutory Interpretation

Limitation Periods

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Darestani v R [2019] NSWCCA 248
Hearing dates: 21 August 2019
Date of orders: 21 October 2019
Decision date: 21 October 2019
Before: Hoeben CJ at CL at [1];
Price J at [2];
Lonergan J at [101]
Decision:
Grant leave to appeal against the convictions on the first and second counts of possess an imitation self-loading pistol without authorisation by license or permit contrary to s 7(1) of the Firearms Act 1996 (NSW).
Allow the appeal.
Quash the convictions on the first and second counts.
Quash the aggregate sentence imposed in the District Court of New South Wales on 8 June 2018.
For counts 3 and 4, the applicant is sentenced to an aggregate term of imprisonment consisting of a non-parole period of 11 months commencing on 27 July 2017 and expiring on 26 June 2018 with a balance of term of 11 months commencing on 27 June 2018 and expiring on 26 May 2019.

Catchwords: CRIME – appeals – appeal against convictions for two counts contrary to s 7(1) of the Firearms Act 1996 – whether plastic pistols were imitation firearms – construction of s 4D(4) of the Firearms Act – meaning of “identified as a children’s toy” – whether confined to matters intrinsic to the object – whether present use and intention may be taken into account – possession – consideration of Crown case at trial – whether verdicts on counts 1 and 2 were unreasonable – resentence – the ceiling principle – aggregate sentence for counts 3 and 4
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Criminal Appeal Act 1912 (NSW) s 5
Criminal Appeal Rules r 4
Firearms Act 1996 (NSW) ss 3, 4D, 7
Cases Cited: Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981
Libke v R (2007) 230 CLR 559; [2007] HCA 30
Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4
Pearce v The Queen (1998) CLR 610; [1998] HCA 57
R H McL v The Queen (2000) 203 CLR 452
Sio v R [2015] NSWCCA 42
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category: Principal judgment
Parties: Makan Khalili Poor Darestani (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr T Quilter and Mr A Chhabra (Applicant)
Mr D Patch (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/229581
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

03 May 2018

Before:

O’Brien DCJ

File Number(s):

2017/229581

Judgment

HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.
PRICE J: On 3 May 2018, the applicant, Makan Darestani, was found guilty by a jury of:

two counts of possess an imitation self-loading pistol without authorisation by licence or permit, contrary to s 7(1) of the Firearms Act 1996

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 Darestani v R

Details

AGLC: Darestani v R [2019] NSWCCA 248
Case: [2019] NSWCCA 248
Decision Date: 21 October 2019

CaseChat Overview and Summary

The appellant was convicted of two counts of possessing an imitation firearm contrary to section 7(1) of the Firearms Act 1996 (Cth) and was subsequently sentenced. The primary appeal concerns the convictions, contending that the plastic pistols were not imitation firearms as defined by the Act. The appeal also challenges the reasonableness of the verdicts based on the Crown's case at trial and the sentence imposed. The respondent, the Commonwealth, defended the convictions and sentence. The High Court was tasked with determining whether the plastic pistols were correctly classified as imitation firearms under section 4D(4) of the Firearms Act, the meaning of "identified as a children’s toy," and the reasonableness of the verdicts. Additionally, the court examined the application of the ceiling principle in relation to the sentence.

The court examined the statutory definition of "imitation firearm" and the phrase "identified as a children’s toy," concluding that it was not limited to intrinsic characteristics of the object alone. The court found that extrinsic factors, including the present use and intention, could be taken into account. The court held that the trial judge had correctly applied the law in reaching the verdicts. Regarding the sentence, the court determined that the appeal against the sentence was not valid due to the absence of a jurisdictional error. The appeal against the convictions was dismissed, and the appeal against the sentence was not upheld.

The High Court dismissed the appeal against the convictions, confirming the trial judge's findings that the plastic pistols were indeed imitation firearms under the Firearms Act. The court also upheld the verdicts as reasonable based on the evidence presented. Consequently, the appellant's convictions on counts 1 and 2 were affirmed. The appeal against the sentence was rejected, and no orders were made concerning the sentence.

Orders