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Jacob v R

Jacob v R

Case [2014] NSWCCA 65 23 April 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jacob v R [2014] NSWCCA 65
Hearing dates: 14 February 2014
Decision date: 23 April 2014
Before: Ward JA at [1];
Johnson J at [21]
RS Hulme AJ at [117]
Decision:
(a) Grant leave to the Appellant to amend his Notice of Appeal by adding the further grounds.
(b) Allow the appeal against conviction.
(c) Quash the convictions and sentences imposed for Counts 1 to 4 on the indictment dated 17 September 2012.
(d) Convict the Appellant of a charge that on 22 December 2010 he did sell a prohibited weapon, viz. a slingshot.
(e) Convict the Appellant of a charge that on 31 January 2011 he did sell a prohibited weapon, viz. a "Jaguar" brand crossbow.
(f) Grant leave to appeal against sentence.
(g) Allow the appeal against sentence.
(h) Quash the sentence for possessing a slingshot, the subject of CAN H4399256/002.
(i) In respect of the offence of possessing a slingshot, the subject of CAN H4399256/002, sentence the Appellant to imprisonment for a fixed term of nine months commencing on 29 April 2013.
(j) In respect of the offence of, on 22 December 2010 selling a prohibited weapon, viz. a slingshot, sentence the Appellant to imprisonment for a fixed term of 14 months commencing on 29 July 2013.
(k) In respect of the offence of, on 31 January 2011, selling a prohibited weapon, viz. a crossbow, sentence the Appellant to imprisonment for a non-parole period of 12 months commencing on 29 January 2014, together with a further term of 18 months commencing on 29 January 2015.
(l) Record as the date upon which it appears to the Court that the Appellant shall become eligible for parole, 29 January 2015.

Catchwords:
CRIMINAL LAW - conviction appeal - appellant operated business selling prohibited weapons and firearms which became subject of controlled operation by police - appellant convicted of a number of possession and sale offences including selling prohibited weapons on three separate occasions during 12-month period contrary to Weapons Prohibition Act 1998, s.23B - appellant alleged to have sold two crossbows and one slingshot to undercover police officer - one crossbow unassembled at time of sale - whether unassembled parts capable of constituting crossbow for purposes of definition of crossbow in Weapons Prohibition Act 1998, Schedule 1 - appeal against conviction allowed - in its place appellant convicted of two offences of selling prohibited weapon contrary to Weapons Prohibition Act 1998, s.23A
CRIMINAL LAW - conviction appeal - appellant also convicted of three counts of possessing prohibited weapons (three crossbows) - whether metallic items in question consisted of a "bow fitted transversely on a stock" so as to fall within definition of crossbow in Weapons Prohibition Act 1998, Schedule 1 - appeal allowed and convictions quashed
CRIMINAL LAW - sentence appeal - appellant sentenced in District Court to concurrent fixed terms of 18 months' imprisonment in relation to offences of possessing and selling a rifle contrary to Firearms…

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 Jacob v R

Details

AGLC: Jacob v The Queen [2014] NSWCCA 65
Case: [2014] NSWCCA 65
Decision Date: 23 April 2014

CaseChat Overview and Summary

The appeal concerns the conviction and sentence of an individual who operated a business selling prohibited weapons and firearms. The appellant was convicted of several offences, including the sale of prohibited weapons and possession of prohibited weapons. The convictions and sentences were challenged on appeal to the court. The central issue was whether the items in question constituted crossbows under the Weapons Prohibition Act 1998. The court had to determine if the unassembled parts of a crossbow and the metallic items could be considered crossbows within the meaning of the Act. Another issue was whether the sentences imposed were manifestly excessive.

The court found that the unassembled parts of a crossbow did not constitute a crossbow under the definition in the Weapons Prohibition Act 1998, Schedule 1. Consequently, the appeal against the conviction for selling an unassembled crossbow was allowed, and the conviction was replaced with two offences of selling a prohibited weapon under section 23A. Regarding the three metallic items, the court determined they did not fit the definition of a crossbow as a "bow fitted transversely on a stock." Therefore, the convictions for possessing these items were quashed. In relation to the sentence, the court considered the sentences for possessing and selling a rifle and possessing a slingshot. The court concluded that the original sentences were manifestly excessive and re-sentenced the appellant to a total effective sentence of three-and-a-half years, with a non-parole period of two years.

In summary, the appeal against conviction was partially allowed, with the conviction for selling an unassembled crossbow being replaced with two offences of selling a prohibited weapon. The convictions for possessing three metallic items were quashed. The appeal against sentence was also allowed, and the appellant was re-sentenced to a total effective sentence of three-and-a-half years with a non-parole period of two years.

Orders