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Laspina v R

Laspina v R

Case [2016] NSWCCA 181 19 August 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Laspina v R [2016] NSWCCA 181
Hearing dates: 20 July 2016
Decision date: 19 August 2016
Before: Hoeben CJ at CL at [1];
Rothman J at [2];
R A Hulme J at [9]
Decision:
1. Grant leave to appeal against sentence.
2. Allow the appeal.
3. Quash the sentence imposed in the District Court on 14 August 2015 for the offence of ongoing supply of firearms contrary to s 51B(1) of the Firearms Act.
4. In lieu, sentence the offender to imprisonment comprising a non-parole period of 3 years 8 months with a balance of the term of the sentence of 2 years 4 months. The sentence will date from 5 February 2015. The non-parole period will expire on 4 October 2018 at which time the offender will become eligible for release on parole.

Catchwords: CRIMINAL LAW – appeal against sentence – ongoing supply of firearms – s 51B(1) of the Firearms Act 1996 (NSW) – where judge found causal connection between psychiatric conditions and offending conduct – judge failed to adequately take that finding into account in assessment of moral culpability and in moderating weight given to general deterrence – necessary to re-exercise sentencing discretion – appeal allowed
Legislation Cited: Crimes Act 1900 (NSW) s 527C
Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
Firearms Act 1996 (NSW) ss 51B, 51BA
Weapons Prohibition Act 1998 (NSW) s 7(1)
Cases Cited: Aslan v R [2014] NSWCCA 114
Athos v R [2013] NSWCCA 205
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lachlan v R [2015] NSWCCA 178
Ngati v R [2014] NSWCCA 125
R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
R v Howard [2004] NSWCCA 348
R v Pitt [2005] NSWCCA 304
R v Wright (1997) 93 A Crim R 48
Category: Principal judgment
Parties: Mario Antonio Laspina (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr A Chhabra (Applicant)
Ms V Lydiard (Crown)
Solicitors:
Campbell Paton & Taylor
Solicitor for Public Prosecutions

File Number(s): 2014/38399
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

14 August 2015

Before:

Lerve DCJ

File Number(s):

2014/38399

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
ROTHMAN J: I have had the advantage of reading in draft the judgment of R A Hulme J and his reasons for judgment. It is therefore unnecessary to deal at any length with any of the major issues raised by the parties.
It is often slightly unfair, when dealing with an experienced criminal judge, as was his Honour below, to find error based upon a failure to expressly deal with a particular point, particularly one that would be well-known to the judicial officer. Nevertheless, it is also inappropriate to treat judicial officers who are experienced differently from judicial officers who are not.
As a consequence, even though it seems to me the issues of mental illness have probably been taken into account…

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 Laspina v R

Details

AGLC: Laspina v R [2016] NSWCCA 181
Case: [2016] NSWCCA 181
Decision Date: 19 August 2016

CaseChat Overview and Summary

In the matter of Laspina versus The Queen, the appellant, Laspina, appealed against his sentence for the ongoing supply of firearms. The case was heard in the Court of Criminal Appeal. The appellant was convicted by the Supreme Court of New South Wales of various charges related to the supply of firearms, and was sentenced to a term of imprisonment with a non-parole period. The legal issues that the Court of Criminal Appeal had to address were whether the trial judge erred in failing to adequately take into account the causal connection between the appellant's psychiatric conditions and his offending conduct in the assessment of his moral culpability and in moderating the weight given to general deterrence.

The Court of Criminal Appeal held that the trial judge failed to adequately take into account the causal connection between the appellant's psychiatric conditions and his offending conduct. The Court found that the judge did not give sufficient weight to the appellant's psychiatric conditions in assessing his moral culpability, and did not adequately moderate the weight given to general deterrence in light of the causal connection. The Court held that the trial judge should have re-exercised his sentencing discretion in light of these errors. The Court allowed the appeal and remitted the matter to the Supreme Court for re-sentencing.

The Court of Criminal Appeal did not make any final orders in the case. The matter was remitted to the Supreme Court for re-sentencing in light of the Court's findings. The Court held that the trial judge should have adequately taken into account the causal connection between the appellant's psychiatric conditions and his offending conduct in the assessment of his moral culpability and in moderating the weight given to general deterrence. The Court held that the trial judge's failure to do so amounted to an error of law that required the appeal to be allowed and the matter to be remitted for re-sentencing.

Orders