MP v Regina - [2009] NSWCCA 226

New South Wales
Court of Criminal Appeal

CITATION: MP v Regina [2009] NSWCCA 226

HEARING DATE(S): 02/09/2009

JUDGMENT DATE:
10 September 2009

JUDGMENT OF: Tobias JA at 1; Hoeben J at 2; RA Hulme J at 48

DECISION: Leave to appeal granted.
Appeal dismissed.

CATCHWORDS: Criminal law - sentence appeal - conspiracy to sell unregistered firearms - whether features identified as matters of aggravation were inherent in the offence - offence committed without regard to public safety - offence part of a planned or organised criminal activity - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Elyard v Regina [2006] NSWCCA 43
Regina v Howard [2004] NSWCCA 348
Regina v Yildiz (2006) 160 A Crim R 218
Ward v Regina (2007) 168 A Crim R 545

PARTIES: MP - Applicant
Regina - Respondent Crown

FILE NUMBER(S): CCA 2007/00003271

COUNSEL: S Odgers SC - Applicant
L Lamprati SC - Respondent Crown

SOLICITORS: Watsons - Applicant
S Kavanagh, Solicitor for Public prosecutions - Respondent Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1266

LOWER COURT JUDICIAL OFFICER: Boulton ADCJ

LOWER COURT DATE OF DECISION: 21/02/2007

2007/00003271

TOBIAS JA
HOEBEN J
RA HULME J
Thursday, 10 September 2009

MP v REGINA

Judgment

1 TOBIAS JA: I agree with Hoeben J.

2 HOEBEN J:

Offence and sentence

“Between 1 January 1998 and 31 December 2001 at Brisbane in the State of Queensland and Sydney in New South Wales with Michael John Stanbury, Edwin Miller, Zivco Stefanovski and others, conspired together amongst themselves to sell unregistered firearms to persons not authorised by licence or permit to possess the said firearms.”

3 The offence of conspiracy to sell firearms without authorisation is a common law offence, the maximum penalty for which is at large. On 21 February 2007 the applicant was sentenced to imprisonment for 13 years and 8 months, with a non-parole period of 5 years and 8 months. The sentence was to commence on 21 February 2007, with the non-parole period expiring on 22 October 2012 and the balance of term expiring on 22 October 2020. In passing that sentence, his Honour took into account that the applicant had already served 4 months in custody.

Factual background

4 The applicant and the two other principal conspirators, Miller and Stanbury, were residents of Queensland. In essence, handguns were purchased in Queensland and sold in New South Wales.

5 The genesis of the conspiracy was the purchase by Miller of a .38 calibre handgun from the applicant in the late 1990’s for $1000. Some time later Miller approached the applicant with a proposal to exploit a loophole in the Queensland legislative framework applying to handguns.

6 It seems that a pistol once deactivated (i.e. rendered permanently inoperable by a registered armourer) was of no further interest to Queensland Police once an armourer’s certificate to that effect…

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 MP v Regina

Details

AGLC: MP v Regina [2009] NSWCCA 226
Case: [2009] NSWCCA 226
Decision Date: 10 September 2009

CaseChat Overview and Summary

The case of MP v Regina involves an appeal against a sentence for conspiracy to sell unregistered firearms. The appellant, MP, had been found guilty of conspiring to sell unregistered firearms and was sentenced to a term of imprisonment. The appeal before the court was to determine whether the sentence was manifestly excessive.

The central legal issues in the appeal were whether the features identified by the trial judge as matters of aggravation were inherent in the offence, whether the offence was committed without regard to public safety, whether the offence was part of a planned or organised criminal activity, and whether the sentence was manifestly excessive. These issues required the court to consider the nature and circumstances of the offence, as well as the principles of sentencing in relation to criminal activity involving unregistered firearms.

The court considered that the trial judge had appropriately identified matters of aggravation, including the number of firearms involved and the potential for significant harm to public safety. The court found that the appellant's actions demonstrated a disregard for public safety and that the offence was part of a planned or organised criminal activity. However, the court also noted that the appellant had shown genuine remorse and had otherwise led a law-abiding life. After considering these factors, the court concluded that the sentence was not manifestly excessive and dismissed the appeal.

No further orders were made by the court beyond the dismissal of the appeal.

Orders