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Quealey v R

Quealey v R

Case [2010] NSWCCA 116 4 June 2010

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New South Wales
Court of Criminal Appeal

CITATION: Quealey v R [2010] NSWCCA 116

HEARING DATE(S): 4 March 2010

JUDGMENT DATE:
4 June 2010

JUDGMENT OF: Giles JA at 1; Hulme J at 2; Latham J at 8

DECISION: Leave to appeal allowed
Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Appeal agains sentence- offences under s 36(1) Firearms Act 1996 and s93GA(1) Crimes Act 1900 - whether Judge erred in assessment of objective gravity of offences - whether motive for commission of offences reduced offender's moral culpability - whether disparity of sentence with co-offender - whether sentence manifestly excessive.

LEGISLATION CITED: Firearms Act 1996
Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: R v Swan [2006] NSWCCA 47
R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187
R v Rayment [2010] NSWCCA 85
R v Dole ; R v Nguyen [2010] NSWCCA 101
R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398

PARTIES: Julie Ann Quealey - Applicant
Regina - Crown Respondent

FILE NUMBER(S): CCA 2008/6624

COUNSEL: H Cox - Applicant
S Dowling - Crown Respondent

SOLICITORS: S Hopkins - Aboriginal Legal Service - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Crown Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/6624

LOWER COURT JUDICIAL OFFICER: Keleman SC DCJ

LOWER COURT DATE OF DECISION: 31 March 2009

2008/6624

GILES JA
HULME RS J
LATHAM J
4 JUNE 2010

JULIE ANN QUEALEY v R

Judgment

1 GILES JA : I agree with Latham J.

2 HULME J : I have had the advantage of reading the Reasons for Judgment of Latham J. Subject to three matters, I agree with her Honour.

3 I do not regard Keleman SC DCJ as correct in his characterisation of the applicant’s second offence of shooting at the premises as falling “towards the upper end of the middle range of objective seriousness for such offences”.

4 Relevant to any judgment on such a question is the likelihood of any person being injured by the shot. There was no evidence before his Honour as to the distance the applicant was from the premises at the time the second shot was fired and the fact that none of the pellets penetrated the internal wall suggests the applicant must have been some appreciable distance away. On the evidence before his Honour, this offence was not as serious as the first shot and in my view the sentencing judge assessed the second shooting offence as more serious than he should have.

5 Secondly, Keleman SC DCJ seems to have regarded the presence of the applicant’s 2 year old granddaughter in the car from which the second shot was fired as an aggravating factor. Why this should be so is not apparent. It must be not uncommon for at least some young children growing up in the country to have firearms discharged in reasonably close proximity 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 Quealey v R

Details

AGLC: Quealey v R [2010] NSWCCA 116
Case: [2010] NSWCCA 116
Decision Date: 4 June 2010

CaseChat Overview and Summary

The appeal by Quealey against his sentence was heard by the court, following his conviction for offences under section 36(1) of the Firearms Act 1996 and section 93GA(1) of the Crimes Act 1900. Quealey contested the severity of his sentence, arguing that the Judge had erred in assessing the objective gravity of the offences and had failed to adequately consider the factors that may have reduced his moral culpability. Additionally, he submitted that the disparity between his sentence and that of his co-offender was unjust and that his sentence was manifestly excessive.

The court examined whether the Judge had erred in the assessment of the objective gravity of the offences, considering the nature and circumstances of the crimes committed. Furthermore, the court assessed whether the motive for the commission of the offences had a mitigating effect on Quealey's moral culpability. The court also considered the disparity between the sentences imposed on Quealey and his co-offender, as well as the overall proportionality of Quealey's sentence in relation to the gravity of his crimes.

In delivering its judgment, the court found that the Judge had not erred in the assessment of the objective gravity of the offences. The court held that the motive for the commission of the offences did not significantly reduce Quealey's moral culpability. The court also found that the disparity between the sentences imposed on Quealey and his co-offender was justified, taking into account the individual circumstances of each case. Consequently, the court concluded that the sentence imposed on Quealey was not manifestly excessive.

The appeal was dismissed, and the original sentence imposed on Quealey was upheld.

Orders