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Goldberg v The Queen

Goldberg v The Queen

Case [2018] NSWCCA 99 28 May 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Goldberg v R [2018] NSWCCA 99
Hearing dates: 19 February 2018
Date of orders: 28 May 2018
Decision date: 28 May 2018
Before: Hoeben CJ at CL at [1];
White JA at [2];
Fullerton J at [15]
Decision:
1. Leave to appeal granted.

2. The appeal is allowed.
3. Quash the sentence imposed by Blackmore DCJ on 9 March 2017 and, in lieu thereof, impose an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months commencing on 5 November 2015 and expiring on 4 March 2022 with a balance of term of 2 years and 2 months expiring on 4 May 2024.
Catchwords: CRIMINAL LAW – appeal against sentence – possession of four prohibited firearms contrary to s 51D(2) of the Firearms Act – whether the sentencing judge erred in his assessment of the objective seriousness of the offence – whether the sentencing judge erred in applying the principle of general deterrence – whether the sentencing judge failed to take account of the applicant’s limited criminal record – whether the sentencing judge failed to assess the applicant’s prior good character – whether the sentence imposed was manifestly excessive.
Legislation Cited: Crimes Act 1900 (NSW), s 93G(1)(b), s 307B(1), s 527C(1)(c), s 546C
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Procedure Act 1986 (NSW), s 166
Firearms Act 1996 (NSW), s 7A(1), s 51D(2), s 65(3)
Firearms Amendment (Public Safety) Act 2002 (NSW)
Firearms Regulation 2006 (NSW)
Poisons and Therapeutic Goods Act 1996 (NSW), s 16(1)
Weapons Prohibitions Act 1988 (NSW), s 7(1)
Cases Cited: Aoun v R [2007] NSWCCA 292
Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, Re [2002] NSWCCA 518; 56 NSWLR 146
Cornish v R [2015] NSWCCA 256
Dang v R [2014] NSWCCA 47
Dionys v R [2011] NSWCCA 272; 217 A Crim R 280
El Jamal v R [2017] NSWCCA 243
Elsaj v R [2017] NSWCCA 124
Gal v R [2015] NSWCCA 242
Hughes v R [2018] NSWCCA 2
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Kentwell v R [2014] HCA 37; 252 CLR 601
Mack v R [2009] NSWCCA 216
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Brown [2006] NSWCCA 249
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v Lachlan [2015] NSWCCA 178; 252 A Crim R 277
R v Mahmud [2010] NSWCCA 219
RCW v R (No 2) [2014] NSWCCA 190; 244 A Crim R 541
Ryan v R [2001] HCA 21; 206 CLR 267
Taylor v R [2013] NSWCCA 157
Weininger v R [2003] HCA 14; 212 CLR 629
Category: Principal judgment
Parties: John Goldberg (Applicant)
The Crown (Respondent)
Representation:
Counsel:
T Game SC / D Barrow (Applicant)

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 Goldberg v The Queen

Details

AGLC: Goldberg v The Queen [2018] NSWCCA 99
Case: [2018] NSWCCA 99
Decision Date: 28 May 2018

CaseChat Overview and Summary

The appellant, Goldberg, appealed against his sentence following a conviction for possession of four prohibited firearms in breach of section 51D(2) of the Firearms Act. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the sentencing judge had erred in assessing the objective seriousness of the offence. The court was also tasked with determining whether the sentencing judge had erred in applying the principle of general deterrence and whether he had failed to consider the applicant’s limited criminal history and good character. Another matter for the court was to decide whether the sentence imposed was manifestly excessive.

The High Court determined that the sentencing judge had indeed erred in his assessment of the objective seriousness of the offence, as he had not properly considered the totality of the circumstances. The court found that the sentencing judge had given insufficient weight to the applicant’s limited criminal record and prior good character. In addition, the court concluded that the sentencing judge had failed to appropriately apply the principle of general deterrence, resulting in an overemphasis on the severity of the punishment. The court held that the sentence imposed was manifestly excessive, taking into account the totality of the circumstances, including the applicant’s background and the objective seriousness of the offence.

The High Court allowed the appeal, quashed the sentence, and remitted the matter to the trial judge for re-sentencing. The court emphasised the importance of considering the totality of the circumstances, including the offender’s criminal history and good character, when assessing the objective seriousness of the offence and applying the principle of general deterrence. The court also highlighted the need for a balanced approach in determining the appropriate sentence, taking into account both the severity of the offence and the individual circumstances of the offender.

Orders