R v Finigan - [2019] NSWDC 590

District Court

New South Wales

Medium Neutral Citation: R v Finigan [2019] NSWDC 590
Hearing dates: 20 September 2019; 22 October 2019
Date of orders: 22 October 2019
Decision date: 22 October 2019
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
You are convicted of the offences of:

(1) possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996 (NSW); and

(2) supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

Taking into account the matters on the Form 1, you are sentenced to an aggregate term of imprisonment of 3 years 9 months. The aggregate sentence I impose consists of a non-parole period of 2 years 2 months commencing from 5 February 2019 and a head sentence of 3 years 9 months. You will become eligible to be released on parole on 4 April 2021. I have deviated from the statutory ratio of 75% because I have found special circumstances.

If separate sentences had been imposed instead of an aggregate sentence, for the offence of possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996, I would have imposed a head sentence 9 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you for 12 months.

For the offence of supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, I would have imposed a sentence of 3 years 4 months and the non-parole period would have been 2 years 2 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you to a period of imprisonment of 4 years 6 months.
I direct that the report of Dr Adams dated 22 August 2019 be put on the Justice Health file of the offender.
Catchwords: SENTENCING – possess unregistered firearm – supply large commercial quantity (5.484 kilograms) of methylamphetamine – minor role of ‘storeman’ but large commercial quantity of drugs – plea of guilty entered early – constellation of mental health issues – special circumstances found – full-time custody
Legislation Cited: Firearms Act 1996 (NSW) section ss36(1), 39(1), 65(3)
Drug Misuse and Trafficking Act 1985, s25(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss3A, 5, 21A, 53A
Cases Cited: Cahyadi v R [2007] NSWCCA 1
DPP v De La Rosa (2010) 79 NSWLR 1
Muldrock v The Queen (2011) 244 CLR 120
Markarian v The Queen [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
R v Jarrold [2010] NSWCCA 69
Veen v The Queen (No 2) (1988) 164 CLR 465
Category: Sentence
Parties: Crown
Mr Finigan (Offender)
Representation: Solicitors:
Mr K. Ng (Crown)
Mr G. Goold (Offender)

File Number(s): 2019/39563
Publication restriction: Nil

Judgment

Introduction

The offender, born in 1988, is…

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 Finigan

Details

AGLC: R v Finigan [2019] NSWDC 590
Case: [2019] NSWDC 590
Decision Date: 22 October 2019

CaseChat Overview and Summary

Finigan was convicted of possessing an unregistered firearm and supplying a large commercial quantity of methylamphetamine. The matter was heard and determined in the District Court of New South Wales. The legal issues before the Court involved determining the appropriate sentence for these serious offences, taking into account the defendant's mitigating factors and the principles of sentencing.

The Court considered the defendant's role in the drug supply chain, finding that although Finigan acted as a storeman, the quantity of drugs involved was significant. Additionally, the Court acknowledged the defendant's early guilty plea, which warranted a discount in the sentencing. The defendant's mental health issues were also considered, with the Court finding these to constitute special circumstances that warranted a departure from the statutory sentencing ratio. The Court determined that the appropriate sentence was an aggregate term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years and 2 months.

In reaching this decision, the Court applied the principles of sentencing as outlined in relevant case law and legislation. The Court found that the statutory ratio of 75% was not appropriate due to the special circumstances present in this case. The Court also took into account the defendant's early guilty plea, which resulted in a discount of 25% to the head sentence. The Court directed that a report of Dr Adams dated 22 August 2019 be placed on the defendant's Justice Health file. The Court's decision reflects a balanced approach to sentencing, taking into account both the seriousness of the offences and the defendant's mitigating factors.

Orders

Orders of the court

You are convicted of the offences of:

(1) possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996 (NSW); and

(2) supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

Taking into account the matters on the Form 1, you are sentenced to an aggregate term of imprisonment of 3 years 9 months. The aggregate sentence I impose consists of a non-parole period of 2 years 2 months commencing from 5 February 2019 and a head sentence of 3 years 9 months. You will become eligible to be released on parole on 4 April 2021. I have deviated from the statutory ratio of 75% because I have found special circumstances.

If separate sentences had been imposed instead of an aggregate sentence, for the offence of possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996, I would have imposed a head sentence 9 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you for 12 months.

For the offence of supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, I would have imposed a sentence of 3 years 4 months and the non-parole period would have been 2 years 2 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you to a period of imprisonment of 4 years 6 months.

I direct that the report of Dr Adams dated 22 August 2019 be put on the Justice Health file of the offender.

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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Medium Neutral Citation:	R v Finigan [2019] NSWDC 590
Hearing dates:	20 September 2019; 22 October 2019
Date of orders:	22 October 2019
Decision date:	22 October 2019
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	You are convicted of the offences of: (1) possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996 (NSW); and (2) supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Taking into account the matters on the Form 1, you are sentenced to an aggregate term of imprisonment of 3 years 9 months. The aggregate sentence I impose consists of a non-parole period of 2 years 2 months commencing from 5 February 2019 and a head sentence of 3 years 9 months. You will become eligible to be released on parole on 4 April 2021. I have deviated from the statutory ratio of 75% because I have found special circumstances. If separate sentences had been imposed instead of an aggregate sentence, for the offence of possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996, I would have imposed a head sentence 9 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you for 12 months. For the offence of supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, I would have imposed a sentence of 3 years 4 months and the non-parole period would have been 2 years 2 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you to a period of imprisonment of 4 years 6 months. I direct that the report of Dr Adams dated 22 August 2019 be put on the Justice Health file of the offender.
Catchwords:	SENTENCING – possess unregistered firearm – supply large commercial quantity (5.484 kilograms) of methylamphetamine – minor role of ‘storeman’ but large commercial quantity of drugs – plea of guilty entered early – constellation of mental health issues – special circumstances found – full-time custody
Legislation Cited:	Firearms Act 1996 (NSW) section ss36(1), 39(1), 65(3) Drug Misuse and Trafficking Act 1985, s25(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss3A, 5, 21A, 53A
Cases Cited:	Cahyadi v R [2007] NSWCCA 1 DPP v De La Rosa (2010) 79 NSWLR 1 Muldrock v The Queen (2011) 244 CLR 120 Markarian v The Queen [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 R v Jarrold [2010] NSWCCA 69 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Crown Mr Finigan (Offender)
Representation:	Solicitors: Mr K. Ng (Crown) Mr G. Goold (Offender)
File Number(s):	2019/39563
Publication restriction:	Nil