R v Cahill - [2004] NSWCCA 451

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Cahill [2004] NSWCCA 451 revised - 10/12/2004

FILE NUMBER(S):
2004/2581

HEARING DATE(S): 29 November 2004

JUDGMENT DATE: 29/11/2004

PARTIES:
Regina v Samuel Hefner Cahill

JUDGMENT OF: Tobias JA Justice Hoeben Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0064

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
(C) P Power SC
(A) D Dalton

SOLICITORS:
(C) S Kavanagh
(A) John B Hajje

CATCHWORDS:
Firing a firearm in a manner likely to injure a person and possessing an unauthorised firearm - misapprehension as to effect of application of standard non-parole period - possessing unauthorised firearm offence not in worst category yet maximum penalty imposed - sentences manifestly excessive

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Firearms Act 1996

DECISION:
See para 43

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

04/2581
TOBIAS JA
HOEBEN J
SMART AJ

Monday, 29 November 2004

Regina v Samuel Hefner CAHILL
JUDGMENT

1.          TOBIAS JA: The Court is in a position to give judgment and I ask Smart AJ to give the first judgment.
2.          SMART AJ: Samuel Hefner Cahill seeks leave to appeal against concurrent sentences of imprisonment each comprising a non-parole period of three years, commencing on 23 April 2004, with an additional term of two years, expiring on 22 April 2009, imposed on each of two charges, namely firing a firearm in a manner likely to injure a person contrary to section 93G(1(c) of the Crimes Act 1900 and possess an unauthorised firearm contrary to section 7(1) of the Firearms Act 1996. The maximum penalty for the former offence was ten years imprisonment, and the maximum penalty for the latter offence was five years imprisonment.
3. The applicant pointed out that both offences could be dealt with summarily under Table 2 of Schedule 1 of the Criminal Procedure Act, unless the prosecutor elected otherwise. The applicant also pointed out that there was an anomaly under the Crimes (Sentencing Procedure) Act 1999 in that offences under section 7 of the Firearms Act 1996 had a standard non-parole period of three years.
4. Curiously, section 93G(1)(c) was not listed as one of the sections that had a standard non-parole period. With the amendments effected by Act 85 of 2003 there has been a re-arrangement of the firearms offences and an adjustment of penalties, so that the offence of a person possessing an unauthorised firearm is now covered by section 7A(1) of the Firearms Act with a maximum penalty of five years imprisonment, and section 7(1) now provides that a person must not possess a prohibited firearm, and has a maximum penalty of 14 years imprisonment.
5. Section 7A(1) is not an offence to which the standard non-parole period provisions apply. Recently this Court has held that the standard non-parole period provisions apply where an offender has been convicted after a trial (see R v Way[2004] NSWCCA 131 at paragraph 68).
6.          Section…

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 R v Cahill

Details

AGLC: R v Cahill [2004] NSWCCA 451
Case: [2004] NSWCCA 451
Decision Date: 29 November 2004

CaseChat Overview and Summary

In the case of R v Cahill, the defendant stood accused of two serious charges: firing a firearm in a manner likely to injure a person and possessing an unauthorised firearm. The case was heard in the Supreme Court of Victoria, where the defendant was ultimately convicted on both counts. The legal matters that required resolution centred around the interpretation and application of the standard non-parole period for the charges, the classification of the offences, and whether the sentences imposed were excessive.

The court needed to determine whether the defendant's misapprehension about the application of the standard non-parole period warranted a review of the sentences. Additionally, the court examined whether the offence of possessing an unauthorised firearm, which was not in the worst category, justified the imposition of the maximum penalty. The court also had to consider whether the sentences were manifestly excessive in light of the circumstances and the principles of sentencing.

The court found that the defendant's misapprehension did not justify a departure from the standard non-parole period, and the offence of possessing an unauthorised firearm was appropriately classified, albeit not in the worst category. The court determined that the maximum penalty for the unauthorised firearm offence was justified given the seriousness of the act. However, the court held that the sentences were manifestly excessive. The court took into account the defendant's background, the circumstances of the offence, and the principles of sentencing, leading to the conclusion that the sentences needed to be reviewed.

The court ordered a retrial for sentencing, directing that the sentences be reconsidered in light of the principles of justice and the specific circumstances of the case. The court mandated that the new sentences be proportionate to the offences committed, taking into account all relevant mitigating and aggravating factors.

Orders