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R v Farrell

R v Farrell

Case [2015] NSWCCA 68 21 April 2015

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Farrell [2015] NSWCCA 68
Hearing dates: 18 March 2015
Date of orders: 21 April 2015
Decision date: 21 April 2015
Before: Simpson J at [1]
Rothman J at [2]
Bellew J at [14]
Decision:
The Crown appeal is dismissed

Catchwords: CRIMINAL LAW – Appeal – Crown appeal against inadequacy of sentence imposed for the possession of an unauthorised pistol – Where sentencing judge found that the respondent had come into possession of the firearm essentially by chance and not as a consequence of deliberately sourcing it – No evidence that the respondent possessed the firearm for any intended criminal purpose – No evidence that he was intending to use it – No evidence that he was proposing to sell it – Where sentencing judge found no evidence to support the conclusion that the offending was objectively serious or grave – Where sentencing judge found the offending fell below the mid-range of objective seriousness - Where respondent was sentenced to 2 years imprisonment to be served by way of Intensive Correction Order – Where respondent had already spent 9½ months in custody solely in respect of the same charge – Sentence not manifestly inadequate – Crown appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 317 ALR 308
Cranssen v The Queen [1936] HCA 42; (1936) 55 CLR 509
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Everett v R [1994] HCA 49; (1994) 181 CLR 295
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
Griffiths v R [1977] HCA 44; (1977) 137 CLR 293
House v the King [1936] HCA 40; (1936) 55 CLR 499
R v Farrell [2014] NSWCCA 30
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372.
R v Thalari [2009] NSWCCA 170; (2009) 75 NSWLR 307
Category: Principal judgment
Parties: Regina – Appellant
Representation:
Counsel:
Mr K McKay – Appellant
Mr G James QC and Mr E James - Respondent
Solicitors:

File Number(s): 2013/36983
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

/

Before:

Hanley SC DCJ

Judgment

SIMPSON J: I agree with Bellew J.
ROTHMAN J: I have had the benefit of the reasons for judgment of Bellew J and his thorough analysis of the issues. I agree with his conclusion that the appeal should be dismissed, but I do so on a different basis.
The offence with which the respondent was charged is the possession of an unauthorised pistol, the maximum sentence for which is 14 years’ imprisonment, with a standard non-parole period of 3 years. Each is a guidepost 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 R v Farrell

Details

AGLC: R v Farrell [2015] NSWCCA 68
Case: [2015] NSWCCA 68
Decision Date: 21 April 2015

CaseChat Overview and Summary

In the case of R v Farrell, the respondent was convicted of possessing an unauthorised pistol. The Crown appealed against the sentence imposed by the sentencing judge, arguing that it was inadequate. The Crown submitted that the respondent had come into possession of the firearm essentially by chance, not as a consequence of deliberately sourcing it. There was no evidence that the respondent possessed the firearm for any intended criminal purpose, nor that he intended to use it, sell it, or cause harm with it.

The legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly inadequate. The court had to determine if the sentencing judge had erred in finding that the offending was not objectively serious or grave, and whether the sentence fell below the mid-range of objective seriousness. The court also had to consider whether the sentence was appropriate in the circumstances, taking into account the respondent's already spent time in custody.

The court found that the sentencing judge's assessment of the objective seriousness of the offending was not flawed, and that the sentence imposed was not manifestly inadequate. The court held that the respondent had come into possession of the firearm by chance, and there was no evidence to support the conclusion that the offending was objectively serious or grave. The court further found that the sentence of 2 years imprisonment, to be served by way of an Intensive Correction Order, was appropriate in the circumstances. The court noted that the respondent had already spent 9½ months in custody solely in respect of the same charge, and that the sentence did not result in double punishment for the same offence.

The court dismissed the Crown's appeal against the sentence, holding that it was not manifestly inadequate. The court found that the sentence imposed by the sentencing judge was appropriate and reflected the circumstances of the case.

Orders