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R v Graham

R v Graham

Case [2007] VSCA 252 13 November 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 115 of 2007

THE QUEEN

PAUL ANTHONY GRAHAM

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JUDGES:	VINCENT, REDLICH and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2007
DATE OF JUDGMENT:	13 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 252

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CRIMINAL LAW – Sentence – Possession of illegal firearm by prohibited person – s 5(1A) Firearms Act 1996 – Possession not in furtherance of any criminal purpose – Prior convictions of limited relevance – Sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Brugman Mellas Solicitors

VINCENT JA:

I will invite Redlich JA to deliver the first judgment.

REDLICH JA:

On 4 May 2007, the appellant was sentenced to 18 months' imprisonment, with a non-parole period of nine months' imprisonment, on a count of being a prohibited person carrying an unregistered firearm. He was granted leave to appeal against that sentence on the sole ground that the sentence imposed was manifestly excessive.

The appellant was aged 40 at the time of this offence and admitted a number of prior convictions, including a conviction that on 3 July 2001 he took part in the manufacture of methylamphetamine, for which he was sentenced to a term of imprisonment of three years and ten months with a non-parole period of two years and three months. The appellant was, by reason of his prior convictions, a prohibited person in respect of the firearm as defined by s 3 of the Firearms Act1996. The appellant's criminal record was otherwise of limited relevance, the sentencing judge noting in his remarks that the appellant had no prior convictions for violence involving the use of a weapon.

The appellant had acquired the gun, a .22 short-calibre Walther model SOSP self-loading target pistol, in about 2003. He had previously been the holder of a shooter's licence, which had been cancelled when he was sentenced to the term of imprisonment to which I have referred. Since he had acquired the gun, he had kept it in an unloaded condition in a locked safe under the matrimonial bed. The key to the safe was kept in the bedroom.

The sentencing judge accepted the appellant's explanation given to investigating police that he had retained the gun and kept it in the safe for peace of mind and to protect the family. It appears that in August 2006, as a consequence of unhappy differences between the appellant and his wife, the gun was taken from the locked safe by the appellant's wife and was handed to her father, who in turn handed it to officers of the Victoria Police. The appellant's wife gave evidence on the plea and informed the court that she had taken the gun from the safe and handed it to her father because she was in an emotional, jealous rage.

It is clear from these facts that the count correctly expressed…

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 Graham

Details

AGLC: R v Graham [2007] VSCA 252
Case: [2007] VSCA 252
Decision Date: 13 November 2007

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Graham, the defendant was convicted of possessing an illegal firearm as a prohibited person under section 5(1A) of the Firearms Act 1996. The crux of the case lay in the sentence imposed on Graham, which he contested as being manifestly excessive, especially given the absence of evidence suggesting the possession was for any criminal purpose. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court.

The legal issues before the court involved the interpretation and application of section 5(1A) of the Firearms Act 1996, which mandates a penalty for possessing an illegal firearm. Graham's defence argued that the sentence was disproportionate, particularly since there was no evidence of the firearm being used or intended to be used in any criminal activity. The court had to determine whether the sentence was appropriate, considering the nature of the offence and the absence of any criminal intent demonstrated by the defendant.

The court held that the sentence was indeed manifestly excessive. It was noted that Graham's prior convictions were of limited relevance in this context, as they did not provide a sufficient basis for a harsher sentence. The absence of any evidence showing that the possession was for a criminal purpose was a critical factor. The court emphasised the importance of proportionality in sentencing and the necessity of ensuring that the sentence reflects the actual circumstances of the offence. Consequently, the court ordered a reduction in the sentence imposed on Graham.

Orders