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NSW Police v FA

NSW Police v FA

Case [2017] NSWLC 6 24 January 2017

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Local Court

New South Wales

Medium Neutral Citation: NSW Police v FA [2017] NSWLC 6
Hearing dates: 24 November 2016
Decision date: 24 January 2017
Jurisdiction: Criminal
Before: DCM C O’Brien
Decision:
1. On each of sequences 10, 12, and 14, the defendant is convicted:
(i) Re sequence 10 – he is sentenced to a term of imprisonment consisting of a non-parole period of 18 months and a total term of 2 years, both to date from the 31 December 2016. He will be eligible for release subject to supervision on parole on 30 June 2018.
(ii) Re sequence 12 – pursuant to s 10A there is no further penalty. I order that the drug is to be destroyed
(iii) Re sequence 14 – he is sentenced to a fixed term of imprisonment of 10 months commencing on 31 December 2016 and expiring on 30 October 2017.
2. Sequences 8, 11 and 13 have been taken into account on a Form 1 in the sentence imposed for sequence 10 pursuant to s 32, Crimes (Sentencing Procedure) Act 1999.

Catchwords: SENTENCE – possess unauthorised firearm – possess prohibited weapons – possess prohibited drug – Form 1 offences – general principles regarding sentencing for firearms and prohibited weapons offences - discounts for plea of guilty and assistance to authorities - weight not given to self-serving and untested out of court statements - suitable for intensive correction order but order not appropriate - purposes of sentencing - need for general and specific deterrence - no finding of special circumstances
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 9, 10A, 21A, 23, 32
Drug Misuse and Trafficking Act 1985, s 10
Firearms Act 1996, ss 7, 7A, 39, 65
Weapons Prohibition Act 1998, s 7
Cases Cited: AK v R [2016] NSWCCA 238
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
R v A2; R v Magennis; R v Vaziri (No. 24) [2016] NSWSC 737
R v AA [2006] NSWCCA 55
R v Borkowski (2009) 195 A Crim R 1
R v Cromarty [2004] NSWCCA 54: (2004) 144 A Crim R 515
R v Doan (2000) 50 NSWLR 115
R v Egan [2016] NSWCCA 285
R v Hamze [2005] NSWSC 136
R v Krstic [2005] NSWCCA 391
R v Najem [2008] NSWCCA 32
R v Qutami [2001] NSWCCA 353
R v Tolley [2004] NSWCCA 165
Rios v R [2012] NSWCCA 8
Thalari v R [2009] 75 NSWLR 307
Category: Sentence
Parties: NSW Police (prosecution)
FA (the defendant)
Representation:
Sgt Drake (police prosecutor, NSW Police)

Counsel:
T Gartelmann SC (for the defendant)
Solicitors:
Mr W O’Brien (for the defendant)

File Number(s): 2016/103747
Publication restriction: The defendant is anonymised – assistance to authorities

Judgment

The defendant is before the Court today for sentence in respect of a number of serious offences. He has pleaded guilty to one charge of possessing an unauthorised firearm contrary to section 7A(1) of the Firearms Act 1996, one charge of possessing prohibited weapons contrary to…

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 NSW Police v FA

Details

AGLC: NSW Police v FA [2017] NSWLC 6
Case: [2017] NSWLC 6
Decision Date: 24 January 2017

CaseChat Overview and Summary

NSW Police v FA involved the defendant being charged with multiple offences including possession of an unauthorised firearm, possession of prohibited weapons, and possession of a prohibited drug. The matter was heard in the District Court of New South Wales. The defendant was sentenced following convictions on three separate charges, while other charges were taken into account during sentencing.

The legal issues the court had to address included the principles of sentencing for firearms and prohibited weapons offences, the applicability of discounts for a plea of guilty and assistance to authorities, and the appropriateness of an intensive correction order. The court also had to consider the purposes of sentencing, which include general and specific deterrence. The court determined that no special circumstances existed that would warrant a departure from the usual sentencing approach.

The court found that while the defendant was suitable for an intensive correction order, such an order was not appropriate given the nature of the offences and the need for general and specific deterrence. The court also emphasised that self-serving and untested out-of-court statements would not be given any weight. The court sentenced the defendant to a term of imprisonment for the most serious charge, with concurrent and consecutive sentences for the other charges. The sentences were designed to reflect the seriousness of the offences and the need to deter both the defendant and the community from similar conduct.

The court's final orders included a conviction and a sentence of imprisonment for the defendant on three separate charges. The sentences were tailored to ensure that the defendant was held accountable for his actions while also serving the broader purposes of sentencing. The court also ordered the destruction of the drug in question and took into account certain prior convictions during the sentencing process.

Orders

Orders of the court

1. On each of sequences 10, 12, and 14, the defendant is convicted:

(i) Re sequence 10 – he is sentenced to a term of imprisonment consisting of a non-parole period of 18 months and a total term of 2 years, both to date from the 31 December 2016. He will be eligible for release subject to supervision on parole on 30 June 2018.

(ii) Re sequence 12 – pursuant to s 10A there is no further penalty. I order that the drug is to be destroyed

(iii) Re sequence 14 – he is sentenced to a fixed term of imprisonment of 10 months commencing on 31 December 2016 and expiring on 30 October 2017.

2. Sequences 8, 11 and 13 have been taken into account on a Form 1 in the sentence imposed for sequence 10 pursuant to s 32, Crimes (Sentencing Procedure) Act 1999.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

NSW Police v FA [2017] NSWLC 6

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 14 of 14 shown

R v Egan
[2016] NSWCCA 285 Para 34

…the period during which the defendant must remain in custody should be varied. It can only be varied if there are special circumstances. In R v Egan [2016] NSWCCA 285 at [161], Bellew J had the following to say on this issue:…
Ak v R
[2016] NSWCCA 238 Para 27

…ould in my view be treated by the court with caution bordering on circumspection and given little if any weight: R v Qutami [2001] NSWCCA 353; AK v R [2016] NSWCCA 238 at [99]. Despite the fact that the defendant was not subject to cross examination in respect of his affidavit the court is not bound to automatically…
R v A2; R v Magennis; R v Vaziri (No. 24)
[2016] NSWSC 737 Para 30

…the court being placed into some sort of sentencing straightjacket. So much was made clear by Johnson J in R v A2; R v Magennis; R v Vaziri (No. 24) [2016] NSWSC 737 in dealing with a positive home detention assessment. The court must still have regard to all of the relevant objective and subjective factors and to…
Rios v R
[2012] NSWCCA 8 Para 33

…is to be a 32.5% discount, which after rounding down in accordance with what Adamson J (with whom Bathurst CJ and Simpson J agreed) said in Rios v R [2012] NSWCCA 8 at [42]-[43] means that the total sentence to be imposed upon the defendant is one of 2 years imprisonment. So far as the possess prohibited weapons…
Thalari v R
[2009] NSWCCA 170 Para 18

…The principles in R v Krstic and R v AA were again confirmed by the Court of Criminal Appeal in Thalari v R [2009] 75 NSWLR 307. In Thalari v R the court observed (at [88]) that the fact that a firearm is loaded with live rounds of ammunition bears upon the seriousness of the possession. Plainly this is a relev…
R v Najem
[2008] NSWCCA 32 Para 14

…of public safety by the imposition of strict controls on firearms and the promotion of safe and responsible storage and use of them. In R v Najem [2008] NSWCCA 32 Hulme J explained (at [40]) the rationale underlying the seriousness with which firearm offences are to be treated as “ a recognition that firearms and p…
R v AA
[2006] NSWCCA 55 Para 17

…In R v AA [2006] NSWCCA 55 the respondent had possession of a prohibited pistol for self-protection following a severe assault, a circumstance not dissimilar to that which is said to be the circumstance pertaining to this defendant, where it is suggested that he had a pistol for self-protection following a series o…
R v Krstic
[2005] NSWCCA 391 Para 16

…y of the legislature evinced by the enactment of the offence and maximum penalty is to deter and punish the possession of firearms per se: R v Krstic [2005] NSWCCA 391 at [14].…
R v Hamze
[2005] NSWSC 136 Para 15

…The fact of there being “no criminal purpose” for the possession of firearms is not a decisive consideration. In R v Hamze [2005] NSWSC 136, Howie J dealt with, amongst other things, an offence under section 7 of the Firearms Act 1996. While the firearm offence in this case is one contrary to s 7A(1) of the Act, hi…
R v Tolley
[2004] NSWCCA 165 Para 14

…duty. It is also relevant to consider the principles and objects of the Firearms Act 1996 “which the courts must seek to implement” : R v Tolley [2004] NSWCCA 165 at [53]. The principles of the Act include confirming that firearm possession is a privilege that is conditional on the overriding need for public safety…
R v Cromarty
[2004] NSWCCA 54

…R v A2; R v Magennis; R v Vaziri (No. 24) [2016] NSWSC 737 R v AA [2006] NSWCCA 55 R v Borkowski (2009) 195 A Crim R 1 R v Cromarty [2004] NSWCCA 54: (2004) 144 A Crim R 515 R v Doan (2000) 50 NSWLR 115 R v Egan [2016] NSWCCA 285 R v Hamze [2005] NSWSC 136 R v Krstic [2005] NSWCCA 391 R v Najem [2008] NSWCCA 32 R v…
R v Doan
[2003] NSWSC 345 Para 14

…he legislature and of the comments made in the sentencing authorities concerning such offences. They are offences to which the principles in R v Doan (2000) 50 NSWLR 115 apply, and the seriousness of the offending is to be assessed by reference to the maximum penalty prescribed and not the jurisdictional limit of the…
R v Qutami
[2001] NSWCCA 353 Para 27

…have to his offending, should in my view be treated by the court with caution bordering on circumspection and given little if any weight: R v Qutami [2001] NSWCCA 353; AK v R [2016] NSWCCA 238 at [99]. Despite the fact that the defendant was not subject to cross examination in respect of his affidavit the court is…
Williams v Spautz
[1992] HCA 34 Para 27

…s asserted therein, particularly so far as they seek to link his mental condition to his offending conduct. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, Kirby P while setting out a number of principles governing the functions of prosecutors and judges in sentencing proceedings said as follows (at 606…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
10A, 21A, 23, 32, 3A, 5, 9 8 mentions (from Para 12)
Firearms Act 1996 (TAS)
39, 65, 7, 7A 5 mentions (from Para 1)
Drug Misuse and Trafficking Act 1985 (NSW)
10 2 mentions (from Para 1)
Weapons Prohibition Act 1998 (NSW)
7 2 mentions (from Para 1)

Medium Neutral Citation:	NSW Police v FA [2017] NSWLC 6
Hearing dates:	24 November 2016
Decision date:	24 January 2017
Jurisdiction:	Criminal
Before:	DCM C O’Brien
Decision:	1. On each of sequences 10, 12, and 14, the defendant is convicted: (i) Re sequence 10 – he is sentenced to a term of imprisonment consisting of a non-parole period of 18 months and a total term of 2 years, both to date from the 31 December 2016. He will be eligible for release subject to supervision on parole on 30 June 2018. (ii) Re sequence 12 – pursuant to s 10A there is no further penalty. I order that the drug is to be destroyed (iii) Re sequence 14 – he is sentenced to a fixed term of imprisonment of 10 months commencing on 31 December 2016 and expiring on 30 October 2017. 2. Sequences 8, 11 and 13 have been taken into account on a Form 1 in the sentence imposed for sequence 10 pursuant to s 32, Crimes (Sentencing Procedure) Act 1999.
Catchwords:	SENTENCE – possess unauthorised firearm – possess prohibited weapons – possess prohibited drug – Form 1 offences – general principles regarding sentencing for firearms and prohibited weapons offences - discounts for plea of guilty and assistance to authorities - weight not given to self-serving and untested out of court statements - suitable for intensive correction order but order not appropriate - purposes of sentencing - need for general and specific deterrence - no finding of special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 9, 10A, 21A, 23, 32 Drug Misuse and Trafficking Act 1985, s 10 Firearms Act 1996, ss 7, 7A, 39, 65 Weapons Prohibition Act 1998, s 7
Cases Cited:	AK v R [2016] NSWCCA 238 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 R v A2; R v Magennis; R v Vaziri (No. 24) [2016] NSWSC 737 R v AA [2006] NSWCCA 55 R v Borkowski (2009) 195 A Crim R 1 R v Cromarty [2004] NSWCCA 54: (2004) 144 A Crim R 515 R v Doan (2000) 50 NSWLR 115 R v Egan [2016] NSWCCA 285 R v Hamze [2005] NSWSC 136 R v Krstic [2005] NSWCCA 391 R v Najem [2008] NSWCCA 32 R v Qutami [2001] NSWCCA 353 R v Tolley [2004] NSWCCA 165 Rios v R [2012] NSWCCA 8 Thalari v R [2009] 75 NSWLR 307
Category:	Sentence
Parties:	NSW Police (prosecution) FA (the defendant)
Representation:	Sgt Drake (police prosecutor, NSW Police) Counsel: T Gartelmann SC (for the defendant) Solicitors: Mr W O’Brien (for the defendant)
File Number(s):	2016/103747
Publication restriction:	The defendant is anonymised – assistance to authorities