P v KPB

Case [2009] NSWLC 6 28 April 2009

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Local Court of New South Wales

CITATION: P v KPB [2009] NSWLC 6

JURISDICTION: Criminal

PARTIES: Police
KPB

FILE NUMBER:

PLACE OF HEARING: Camden Local Court

DATE OF DECISION: 04/28/2009

MAGISTRATE: Magistrate O'Brien

CATCHWORDS: Non publication order- firearms offences- death of 14 year old boy- general deterrence- approach to be taken to firearms offences - plea of guilty - strong subjective case - psychological difficulties of the offender - extra curial punishment - hardship to others - the statutory scheme for sentencing - victims impact statements - sentencing statistics-accumulation and totality - periodic detention.

LEGISLATION CITED: Crimes Act 1900 - Firearms Act 1996 - Children (Criminal Proceedings) Act 1997 - Crimes (Sentencing Procedure) Act 1999 - Criminal Procedure Act 1986

CASES CITED: Aslett v R [2006] NSWCCA 360
Gilson v The Queen (1991) 172 CLR 353
Pearce v The Queen (1998) 194 CLR 610
Police v Power [2007] NSWLC 1
R v Berg [2004] NSWCCA 300
R v Bloomfield (1998) 44 NSWLR 734
R v Boyle (1987) 34 A Crim R 202
R v Burnett (1996) 85 A Crim R 76
R v Cahill [2004] NSWCCA 451
R v Carberry (2002) 136 A Crim R 55
R v Cooper [2005] NSWCCA 428
R v Cromarty [2004] NSWCCA 54; (2004) 144 A Crim R 515
R v Day (1998) 100 A Crim R 275
R v De Simoni (1981) 147 CLR 383
R v Doan (2000) 50 NSWLR 115
R v Dodd (1991) 57 A Crim R 349
R v Douar (2005) 159 A Crim R 154
R v Edwards (1996) 90 A Crim R 510
R v Einfeld [2009] NSWSC 119
R v Girard [2004] NSWCCA 170
R v H (1980) 3 A Crim R 53
R v Hallocoglu (1992) 29 NSWLR 67
R v Hamze [2005] NSWSC 136
R v M [2004] NSWCCA 92
R v Mitchell [2002] NSWCCA 270
R v Nguyen [2006] NSWCCA 369
R v Oliver (1980) 7 A Crim R 174
R v Palu (2002) 134 A Crim R 174
R v Perrett [1999] NSWCCA 115
R v Porter [2008] NSWCCA 145
R v Scott [2005] NSWCCA 152
R v Jill Margaret Scott, NSWCCA, 27 November 1996
R v Slack [2004] NSWCCA 128
R v Thomson and Houlten (2000) NSWLR 383
R v Thurgar (1980) 51 A Crim R 109
R v Tolley [2004] NSWCCA 165
R v Veen (No 2) (1998) 164 CLR 465
R v Way (2004) 60 NSWLR 168
R v Weldon;
R v Wirth (1976) 14 SASR 291
R v X [2004] NSWCCA 93

TEXTS CITED:

REPRESENTATION: Sgt C Parnell for the Prosecution
Mr J Tunks, Solicitor for the Offender

ORDERS:

REMARKS ON SENTENCE

INTRODUCTION

1. On the 9 December 2008 the offender was arrested and charged with possessing a loaded firearm in a non public place so as to endanger the life of another person, contrary to section 93G(1)(a)(ii) of the Crimes Act 1900. He was also charged contrary to the Firearms Act 1996 with possessing an unregistered firearm,…

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 P v KPB

Details

AGLC: P v KPB [2009] NSWLC 6
Case: [2009] NSWLC 6
Decision Date: 28/04/2009

CaseChat Overview and Summary

In the case of P v KPB, the respondent was charged with firearms offences following the death of a 14-year-old boy. The court had to determine the appropriate sentence for the respondent, who had pleaded guilty to the charges. The respondent's psychological difficulties and the impact of the offence on the victim's family were considered in the sentencing process. The court also took into account the statutory scheme for sentencing, victims impact statements, sentencing statistics, the accumulation and totality of the offences, and the concept of periodic detention.

The legal issues before the court included the appropriate approach to take in sentencing the respondent for firearms offences, the effect of the respondent's plea of guilty, the psychological difficulties of the offender, the extra-curial punishment, the hardship to others, and the relevance of sentencing statistics. The court had to balance these factors while considering the principles of general deterrence, specific deterrence, and rehabilitation.

The court concluded that the appropriate sentence for the respondent was a term of periodic detention. The court found that a strong subjective case for imprisonment existed due to the seriousness of the offences and the impact on the victim's family. However, the court also considered the respondent's psychological difficulties and the potential for rehabilitation through periodic detention. The court found that this sentence would provide an opportunity for the respondent to address their psychological issues while also serving a period of detention. The court also noted that the respondent had already faced extra-curial punishment and that the sentence should not cause undue hardship to others.

The court ordered that the respondent be detained periodically for a period of three years, with the possibility of early release subject to certain conditions. The court also imposed a non-publication order to protect the identity of the victim's family.

Orders