DJ v R

Case [2017] NSWCCA 319 15 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DJ v R [2017] NSWCCA 319
Hearing dates: 4 October 2017
Date of orders: 15 December 2017
Decision date: 15 December 2017
Before: Macfarlan JA at [1]
Johnson J at [2]
R A Hulme J at [111]
Decision:
1. Grant leave to appeal against sentence.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - 16-year old applicant pleads guilty to discharging a (shortened) firearm with intent to cause grievous bodily harm - committed for sentence to District Court - applicant and Crown request District Court to pass sentence for related offences on certificate under s.166 Criminal Procedure Act 1986 - offences of possession of an unregistered firearm and failing to keep a prohibited firearm safely - sentences of imprisonment imposed for offences - argued on appeal that s.166 certificate procedure not available for related offences - held s.166 certificate procedure was available - whether sentences manifestly excessive - held sentences not manifestly excessive - appeal dismissed
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Firearms Act 1996
Justice Legislation Amendment Act 2017
Cases Cited: Allina Pty Limited v Federal Commissioner of Taxation (1991) 99 ALR 295
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
BT v R (2012) 227 A Crim R 354; [2012] NSWCCA 276
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
R v Farrell (1976) 2 NSWLR 498
R v Lachlan [2015] NSWCCA 178
Zreika v R (2012) 223 A Crim 460; [2012] NSWCCA 44
Texts Cited: Pearce and Geddes, “Statutory Interpretation in Australia”, 8th edn, 2014, LexisNexis
Category: Principal judgment
Parties: DJ (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr KH Averre MBE (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/35706
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

---

Citation:

---

Date of Decision:

13 December 2016

Before:

His Honour Judge Lerve

File Number(s):

2016/35706

Judgment

MACFARLAN JA: I agree with Johnson J.
JOHNSON J: The Applicant, DJ, seeks leave to appeal with respect to sentences imposed at the Dubbo District Court on 13 December 2016 for a number of firearm offences. The Applicant is not identified in this judgment as he was 16 years old at the time of the offences: s.15A Children (Criminal Proceedings) Act 1987.
The Applicant pleaded guilty to an offence of discharging a firearm (a shortened .22 calibre bolt-action rifle) with intent to cause grievous bodily harm contrary to s.33A(1)(a) Crimes Act 1900, for which the maximum penalty is imprisonment for 25 years. The standard non-parole period of nine years did not apply to the…

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 DJ v R

Details

AGLC: DJ v R [2017] NSWCCA 319
Case: [2017] NSWCCA 319
Decision Date: 15 December 2017

CaseChat Overview and Summary

The case of DJ v R involved a 16-year-old applicant who pleaded guilty to discharging a shortened firearm with intent to cause grievous bodily harm. The matter was remitted to the District Court for sentencing, where both the applicant and the Crown requested the court to pass a sentence for related offences based on a certificate under section 166 of the Criminal Procedure Act 1986. The related offences included possession of an unregistered firearm and failing to keep a prohibited firearm safely. The District Court imposed sentences of imprisonment for these offences, and the applicant subsequently appealed against the severity of the sentences.

The legal issues before the court were whether the certificate procedure under section 166 was applicable to the related offences and whether the sentences imposed were manifestly excessive. The applicant argued that the certificate procedure was not available for the related offences, and that the sentences were manifestly excessive. The Crown, on the other hand, contended that the certificate procedure was available and that the sentences were appropriate.

In dismissing the appeal, the court held that the certificate procedure under section 166 was indeed applicable to the related offences, as the applicant's involvement in the commission of the principal offence made the related offences relevant. The court further found that the sentences imposed were not manifestly excessive, taking into consideration the seriousness of the principal offence, the age of the applicant, and the need for deterrence and rehabilitation. The court's reasoning was grounded in the need to balance the interests of justice with the welfare of the young offender.

The final orders of the court were to dismiss the appeal and uphold the sentences imposed by the District Court. This decision underscores the importance of considering the totality of the circumstances in sentencing young offenders and the availability of the certificate procedure under section 166 for related offences.

Orders