Police v KPB - [2009] NSWLC 11

Local Court of New South Wales

CITATION: R V Jamieson [2009] NSWLC 11

JURISDICTION: Criminal

PARTIES: Police
JAMIESON, Mark

FILE NUMBER:

PLACE OF HEARING: Downing Centre

DATE OF DECISION: 06/16/2009

MAGISTRATE: Magistrate Heilpern

CATCHWORDS: CRIMINAL LAW – Sentencing – Suspended Sentence – Sentence Correction

LEGISLATION CITED: ss 12 and 43 Crimes (Sentencing Procedure) Act 1999
Road Transport (Safety and Management) Act 1999
Road Transport (General) Act 2005

CASES CITED: R v Cooke; Cooke v R [2007] NSWCCA 184
Erceg v the District Court of New South Wales & Virgin v the District Court of New South Wales & Anor [2003] NSWCA 379

TEXTS CITED:

REPRESENTATION: Ms Kennedy, Police Prosecutor, for the Police
Mr Behan, Solicitor for the Jamieson, Aboriginal Legal Service

ORDERS: There has been a sentencing error, in that the maximum penalty for the offence was nine months imprisonment.

Reasons for Decision

1 Mark Jamieson has a significant criminal record, and comes before the court apparently in breach of a suspended sentence bond pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 due to the commission of fresh offences. He has pleaded guilty to these fresh offences. His solicitor Mr Behan has submitted that the sentence pursuant to s12 is in error, and ought to be corrected by this court prior to the defendant being sentenced for the fresh offences. Mr Behan makes preliminary submissions that the corrected sentence ought to be a bond pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999. If the corrected sentence is anything higher on the scale of penalties than that, Mr Behan has instructions to appeal that corrected sentence, and thus seeks to have the fresh matters adjourned pending that appeal. He also queries the starting date of any corrected sentence if it is a custodial sentence, suspended or otherwise.

2 The issues to be determined are

A. Has there been a sentencing error, and if so

B. Who should correct that error, and if this court

C. What is the effect of any correction

3 It is clear that the issue of the alleged sentencing error and any correction must be resolved prior to sentencing for the fresh offences - R v Cooke; Cooke v R [2007] NSWCCA 184.

4 Mr Jamieson’s has a lengthy prior criminal record (excluding Children’s Court matters) dating back to 1976. Relevant to the current issues are the following matters

1978 PCA Disqualified 18 months plus fine

1980 Drive Man Dangerous Disqualified 3 years plus fine

Drive Disqualified Disqualified 6 months plus fine

Unlicensed Fine

1990 Drive Manner Dangerous Disqualified 3 years plus s558 bond

1996 Unlicensed Disqualified 2 years plus fine

High Range PCA Disqualified 4 years plus CSO

2000 High Range PCA Disqualified 2 years plus CSO

Drive Disqualified Disqualified 2 years plus s9 Bond

22/9/2008 Unlicensed Disqualified 2 years plus fine

Unlicensed…

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.

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Details

Case: [2009] NSWLC 11
Decision Date: 28/04/2009

CaseChat Overview and Summary

Police v KPB was a case in which the defendant, KPB, faced charges related to firearms offences. The court heard that KPB had possessed a loaded firearm in a non-public place, which endangered life, possessed an unregistered firearm, possessed an unauthorised firearm, and failed to keep a firearm safely. The case was heard in the Supreme Court of New South Wales. The central legal issues revolved around the appropriate sentencing for each of the charges, considering the statutory scheme for sentencing, the impact of the offender's psychological difficulties, and the need for general deterrence.

The court had to weigh various factors in determining the sentences. These included the gravity of the offences, the circumstances of the death of a 14-year-old boy, the plea of guilty by the defendant, and the need for general deterrence. The court also considered the offender's psychological difficulties, which were seen as contributing to the offending behaviour, and the potential for extra-curial punishment to mitigate the sentence. The victims' impact statements and sentencing statistics were also taken into account. The court adopted an approach that emphasised the accumulation and totality of the offences, and the need for a sentence that would adequately reflect the seriousness of the crimes committed.

In its reasoning, the court determined that a combination of imprisonment and periodic detention would be appropriate. Each charge resulted in a specific term of imprisonment, with varying non-parole periods. The court emphasised the importance of general deterrence and the need to send a clear message about the consequences of firearms offences. The court also noted the hardship that the offences had caused to others, particularly the victim's family. The final orders included specific terms of imprisonment for each charge, to be served by way of periodic detention at the Metropolitan Periodic Detention Centre, Parramatta. The offender was also required to sign documents relating to his sentence before leaving the court premises.

Orders

Orders of the court

ORDERS: In respect of each charge the offender is convicted and sentenced to the following terms of imprisonment 1. As to the charge of possessing a loaded firearm in a non public place so as to endanger life, a term that consists of a non-parole period of 18 months and a total term of 2 years commencing on the 8 May 2009 and expiring on the 7 May 2011. He will be eligible for release subject to supervision on parole on the 7 November 2010.2. As to the charge of possessing an unregistered firearm, a term that consists of a non parole period of 18 months and a total term of 2 years commencing on the 8 May 2009 and expiring on the 7 May 2011. He will be eligible for release subject to supervision on parole on the 7 November 2010.3. As to the charge of possessing an unauthorised firearm, a term that consists of a non parole period of 11 months and 7 days and a total term of 15 months commencing on the 8 May 2009 and expiring on the 7 August 2010. He will be eligible for release subject to supervision on parole on the 14 April 2010.4. As to the charge of not keeping a firearm safely, a term that consists of a non parole period of 10 months and 15 days and a total term of 18 months commencing on the 7 May 2010 and expiring on the 6 November 2011. He will be eligible for release subject to supervision on parole on the 21 March 2011.5. All sentences are to be served by way of periodic detention at the Metropolitan Periodic Detention Centre, Parramatta. The offender must sign documents relating to his sentence before leaving the court premises.

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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CITATION:	R V Jamieson [2009] NSWLC 11
JURISDICTION:	Criminal
PARTIES:	Police JAMIESON, Mark
FILE NUMBER:
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	06/16/2009
MAGISTRATE:	Magistrate Heilpern
CATCHWORDS:	CRIMINAL LAW – Sentencing – Suspended Sentence – Sentence Correction
LEGISLATION CITED:	ss 12 and 43 Crimes (Sentencing Procedure) Act 1999 Road Transport (Safety and Management) Act 1999 Road Transport (General) Act 2005
CASES CITED:	R v Cooke; Cooke v R [2007] NSWCCA 184 Erceg v the District Court of New South Wales & Virgin v the District Court of New South Wales & Anor [2003] NSWCA 379
TEXTS CITED:
REPRESENTATION:	Ms Kennedy, Police Prosecutor, for the Police Mr Behan, Solicitor for the Jamieson, Aboriginal Legal Service
ORDERS:	There has been a sentencing error, in that the maximum penalty for the offence was nine months imprisonment.