R v Foster - [2020] NSWDC 660

District Court

New South Wales

Medium Neutral Citation: R v Foster [2020] NSWDC 660
Hearing dates: 14 October 2020
Date of orders: 15 October 2020
Decision date: 15 October 2020
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [30]

Catchwords:
CRIME — Firearms offences — Use/Possess prohibited pistol/firearm
CRIME — Drug offences — Supply prohibited drug

Legislation Cited:
Weapons Prohibition Act 1998 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Muldrock v The Queen [2011] HCA 39
R v Tolley [2004] NSWCCA 165
R v Najem [2008] NSWCCA 32
Darestani v R [2019] NSWCCA 248
Taha v R [2019] NSWCCA 240
Cahyadi v R [2007] NSWCCA 1
R v MA [2004] NSWCCA 92

Texts Cited:
Nil

Category: Sentence
Parties: Regina (Crown)
Foster (Accused)
Representation: Solicitors:
Stephenson Solicitor for Department of Public Prosecutions NSW
James Solicitor for the Accused.

File Number(s): 2019/00357837
Publication restriction: Unrestricted

Judgment

Introduction

The offender was born on 4 August 1981 and so is presently 39 years old. The date of the offending is 13 November 2019 so that the offender was 38 years old at the time of the offending. The offender has been in custody since his arrest on 13 November 2019. He was at that time on parole in respect of firearms offences and an offence of drug supply, which also describes the offences he is being sentenced for now.

Charge, maximum sentence, SNPP

The offender appears the sentence in respect of four charges with a further three charges to be dealt with on a form 1. The charged matters are sequences 1, 6, 9 and 10 and the form 1 matters are sequences 2, 5 and 7. Sequences 1, and 10 are offences under section 7 (1) of the Firearms Act with each having a maximum penalty of 14 years imprisonment and a standard non-parole period of four years. Sequence 6 is a charge under section 7 (1) of the Weapons Prohibition Act with a maximum penalty of 14 years imprisonment and a standard non-parole period of five years. Sequence 9 is a charge under section 25 (1) of the Drugs Misuse and Trafficking Act which has a maximum penalty of 15 years imprisonment and/or 2000 penalty units. There is no standard non parole period. The three form 1 matters are possessing an unauthorised pistol, possessing a prohibited weapon and possessing a prohibited weapon; the two weapons are a slingshot and a taser.

Form 1 procedure

In regards to the Form 1 procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act

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 Foster

Details

AGLC: R v Foster [2020] NSWDC 660
Case: [2020] NSWDC 660
Decision Date: 15 October 2020

CaseChat Overview and Summary

In the case of R v Foster, the accused was charged with multiple offences, including the possession and use of a prohibited firearm and the supply of a prohibited drug. The case was heard in the Magistrates Court of Victoria. The central issue in the case was whether the evidence presented by the prosecution was sufficient to establish the accused's guilt beyond reasonable doubt.

The legal issues that the court had to address included whether the identification of the accused was reliable, and whether the evidence of drug supply and firearm possession was corroborated by other evidence or circumstances. The court needed to assess the admissibility and weight of the evidence, particularly the identification evidence and the credibility of the witnesses.

The court found that the identification evidence was unreliable due to the poor lighting conditions at the time of the incident, and that the evidence of drug supply and firearm possession was not corroborated by any other evidence. The court held that the prosecution had failed to establish the accused's guilt beyond reasonable doubt, and therefore the accused was acquitted of all charges. The court emphasised the importance of reliable identification evidence and the need for corroboration in cases involving serious criminal charges.

The final orders of the court were that the accused be acquitted of all charges. The court ordered that the case be dismissed and that the accused be released from custody. The court also ordered that the prosecution's costs be paid by the state.

Orders

Orders of the court

See [30]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Foster [2020] NSWDC 660
Hearing dates:	14 October 2020
Date of orders:	15 October 2020
Decision date:	15 October 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [30]
Catchwords:	CRIME — Firearms offences — Use/Possess prohibited pistol/firearm CRIME — Drug offences — Supply prohibited drug
Legislation Cited:	Weapons Prohibition Act 1998 (NSW) Drugs Misuse and Trafficking Act 1985 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Muldrock v The Queen [2011] HCA 39 R v Tolley [2004] NSWCCA 165 R v Najem [2008] NSWCCA 32 Darestani v R [2019] NSWCCA 248 Taha v R [2019] NSWCCA 240 Cahyadi v R [2007] NSWCCA 1 R v MA [2004] NSWCCA 92
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Foster (Accused)
Representation:	Solicitors: Stephenson Solicitor for Department of Public Prosecutions NSW James Solicitor for the Accused.
File Number(s):	2019/00357837
Publication restriction:	Unrestricted