R v Green - [2022] NSWDC 749

District Court

New South Wales

Medium Neutral Citation: R v Green [2022] NSWDC 749
Hearing dates: 17 June 2022
Decision date: 08 July 2022
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted. Special circumstances found – age, mental health issues, drug abuse & poor prospects of rehabilitation and to provide for a more significant period of supervised parole within the community.
Indicative sentences:
2021/00039156
SEQ 6 - 3 years - NPP 1 year, 6 months + Form 1 Matters 2021/00039156 Seq 7 + 9
2021/100940
SEQ 1 – 3 years – NPP: 1 year, 6 months + Form 1 matters 2021/100940 SEQ 2 + 3 + 4
2021/100940
SEQ 12 – 2 years, 3 months
2021/00039156
SEQ 1 – 1 year, 6 months + Form 1 matters 2021/00039156 SEQ 2 + 3
Aggregate sentence:
Sentenced to a term of imprisonment of 5 years comprising a NPP of 2 years and 6 months commencing on 11 February 2021 and expiring on 10 August 2023, upon which date the offender will become eligible for parole, and a balance of term of 2 years and 6 months to commence on 11 August 2023 and to expire on 10 February 2026.

Catchwords:
CRIMINAL – sentence - possess unauthorised pistol - not keep firearms safely, pistol - possess more than three unregistered firearms, including pistol or prohibited firearm - possess ammunition without holding licence, permit or authority - supply prohibited drugs on an ongoing basis – Form 1 matters in addition to each offence , s166 matter – seriousness of offences - committed whilst on 4 Community Correction Orders – specific & general deterrence – role of offender – subjective matters

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985.
Firearms Act 1996

Cases Cited:
Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518
BP v R [2010] NSWCCA 159
Bugmy v R (2013) 249 CLR 571
Bullock v R [2016] NSWCCA 131
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCA 194
R v Way (2004) 60 NSWLR 168

Category: Sentence
Parties: Regina
Green, Alex
Representation:
Counsel:
Def: Mr B Barrack
Solicitors:
Cr: Mr J McMillan, ODPP (NSW)
Def: Mr A Dib, Dib & Associates

File Number(s): 2021/00100940

JUDGMENT

HIS HONOUR: Alex Green appears for sentence in relation to a number of offences. The first is possess unauthorised pistol contrary to s 7(1) of the Firearms Act 1996. The maximum penalty provided is 14 years’ imprisonment and there is a relevant standard non-parole period of four years’ imprisonment. In addition, when being sentenced in respect of that offence, he asks for two further offences to be taken into account, contained on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. Those offences are not keep firearms safely, pistol, contrary to s 39(1)(a) of the Firearms Act 1996, and possess unregistered firearm - prohibited firearm - contrary to s 36(1) of the Firearms Act.
The first of…

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 Green

Details

AGLC: R v Green [2022] NSWDC 749
Case: [2022] NSWDC 749
Decision Date: 08 July 2022

CaseChat Overview and Summary

The case of R v Green came before the court where the defendant was convicted of multiple serious criminal offences. The defendant, Green, was found guilty of possessing an unauthorised pistol, failing to keep firearms safely, possessing more than three unregistered firearms including a pistol or prohibited firearm, possessing ammunition without holding a licence, permit, or authority, and supplying prohibited drugs on an ongoing basis. These offences were compounded by additional Form 1 matters concerning each offence and a s166 matter. The court had to determine the seriousness of the offences, which were committed while Green was on four Community Correction Orders, and consider the principles of specific and general deterrence as well as the role of the offender and subjective matters such as age, mental health issues, drug abuse, and prospects of rehabilitation.

The legal issues before the court involved assessing the severity of Green's criminal activities and the necessity for both punitive and rehabilitative measures. The court considered the impact of Green's actions on the community, the likelihood of reoffending, and the potential for rehabilitation. The court also had to determine an appropriate sentence that balanced the need for deterrence with the possibility of reintegrating Green into society in a supervised manner. This included evaluating the special circumstances presented by Green's age, mental health issues, drug abuse, and poor prospects of rehabilitation.

In delivering the sentence, the court recognised the severity of Green's criminal behaviour but also acknowledged the special circumstances. The court found that these factors warranted a more significant period of supervised parole within the community. The aggregate sentence comprised several indicative sentences for the various offences, which were then combined to form a total sentence. The final sentence was a term of imprisonment of 5 years, consisting of a non-parole period of 2 years and 6 months, followed by a balance of term of 2 years and 6 months. The court's decision aimed to ensure public safety through deterrence while also providing an opportunity for Green's rehabilitation.

The final orders mandated that Green serve a total sentence of 5 years, with a non-parole period of 2 years and 6 months commencing on 11 February 2021 and expiring on 10 August 2023, after which Green will become eligible for parole. The remaining term of 2 years and 6 months will commence on 11 August 2023 and expire on 10 February 2026. This sentence reflects the court's balanced approach to addressing the gravity of Green's offences and the need for rehabilitation.

Orders

Orders of the court

Convicted. Special circumstances found – age, mental health issues, drug abuse & poor prospects of rehabilitation and to provide for a more significant period of supervised parole within the community.

Indicative sentences:

2021/00039156

SEQ 6 - 3 years - NPP 1 year, 6 months + Form 1 Matters 2021/00039156 Seq 7 + 9

2021/100940

SEQ 1 – 3 years – NPP: 1 year, 6 months + Form 1 matters 2021/100940 SEQ 2 + 3 + 4

2021/100940

SEQ 12 – 2 years, 3 months

2021/00039156

SEQ 1 – 1 year, 6 months + Form 1 matters 2021/00039156 SEQ 2 + 3

Aggregate sentence:

Sentenced to a term of imprisonment of 5 years comprising a NPP of 2 years and 6 months commencing on 11 February 2021 and expiring on 10 August 2023, upon which date the offender will become eligible for parole, and a balance of term of 2 years and 6 months to commence on 11 August 2023 and to expire on 10 February 2026.

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 Green [2022] NSWDC 749
Hearing dates:	17 June 2022
Decision date:	08 July 2022
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – age, mental health issues, drug abuse & poor prospects of rehabilitation and to provide for a more significant period of supervised parole within the community. Indicative sentences: 2021/00039156 SEQ 6 - 3 years - NPP 1 year, 6 months + Form 1 Matters 2021/00039156 Seq 7 + 9 2021/100940 SEQ 1 – 3 years – NPP: 1 year, 6 months + Form 1 matters 2021/100940 SEQ 2 + 3 + 4 2021/100940 SEQ 12 – 2 years, 3 months 2021/00039156 SEQ 1 – 1 year, 6 months + Form 1 matters 2021/00039156 SEQ 2 + 3 Aggregate sentence: Sentenced to a term of imprisonment of 5 years comprising a NPP of 2 years and 6 months commencing on 11 February 2021 and expiring on 10 August 2023, upon which date the offender will become eligible for parole, and a balance of term of 2 years and 6 months to commence on 11 August 2023 and to expire on 10 February 2026.
Catchwords:	CRIMINAL – sentence - possess unauthorised pistol - not keep firearms safely, pistol - possess more than three unregistered firearms, including pistol or prohibited firearm - possess ammunition without holding licence, permit or authority - supply prohibited drugs on an ongoing basis – Form 1 matters in addition to each offence , s166 matter – seriousness of offences - committed whilst on 4 Community Correction Orders – specific & general deterrence – role of offender – subjective matters
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985. Firearms Act 1996
Cases Cited:	Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518 BP v R [2010] NSWCCA 159 Bugmy v R (2013) 249 CLR 571 Bullock v R [2016] NSWCCA 131 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCA 194 R v Way (2004) 60 NSWLR 168
Category:	Sentence
Parties:	Regina Green, Alex
Representation:	Counsel: Def: Mr B Barrack Solicitors: Cr: Mr J McMillan, ODPP (NSW) Def: Mr A Dib, Dib & Associates
File Number(s):	2021/00100940