District Court
New South Wales
Medium Neutral Citation: R v Harley James Buhagiar [2017] NSWDC 339 Hearing dates: 5 October 2017 Date of orders: 10 November 2017 Decision date: 10 November 2017 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: 1) The offender is convicted.
2) I impose an aggregate sentence comprising a minimum term of 2 years and 6 months imprisonment to commence on 18 September 2016 and to expire on 17 March 2019. Thereafter the offender is to serve an additional term of 1 year and two months imprisonment commencing on 18 March 2019 and expiring on 17 May 2020 during which the offender shall be eligible to be released on parole.
3) The overall head term is 3 years and 8 months.Catchwords: CRIMINAL LAW – SENTENCE – unauthorised possession of prohibited firearm – supply of prohibited drug – methylamphetamine – cannabis leaf – custody of an offensive implement in a public space – Remorse – Special Circumstances – Totality and Accumulation – Prospects of Reoffending Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 32
Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1) and 29
Firearms Act 1996 (NSW) s 7(1)Cases Cited: R v Najem [2008] NSWCCA 32
Thalari v R [2009] NSWCCA 170
Atkinson v R [2014] NSWCCA 262
R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Borkowski [2009]NSWCCA 102 at [32]
R v Qutami [2001]NSWCCA353;(2001) 127 A Crim R 369Texts Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) per Spigelman CJ Category: Sentence Parties: Mr Harley James Buhagiar (Offender)
Regina (Crown)Representation: Ms F Jowett (Offender)
Solicitor for the Director of Public Prosecutions (Crown)
File Number(s): 2016/279747
Judgment
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On 5 October 2017, Harley James Buhagiar was arraigned and entered pleas of guilty to the following three counts:-
COUNT 1: On 18 September 2016, at Austral in the State of New South Wales, he supplied a prohibited drug, namely 7.08 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); [1]
COUNT 2: On 18 September 2016, at Austral in the State of New South Wales, possessed an unauthorised prohibited firearm, namely a shortened 12 gauge Belgian manufactured R. Diamond & Co side by side double barrel shotgun, contrary to s 7(1) of the Firearms Act 1996 (NSW); [2] and
COUNT 3: On 18 September 2016, at Austral in the State of New South Wales, possessed an unauthorised pistol, namely a .22 air rifle calibre BNM Custom CO2 powered repeating air pistol, contrary to s 7(1) of the 1996 Act.
1. Hereinafter referred to as the “1985 Act”
2. Hereinafter referred to as the “1996 Act”
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In sentencing the offender in relation to Count 1 on the indictment, I have been requested to take into account, an offence on a Form 1, being possess prohibited drug, namely 1.1 grams of cannabis leaf on 18 September 2016, in accordance with s…
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- Case
- [2017] NSWDC 339
- Decision Date
CaseChat Overview and Summary
In determining the sentence, the court examined the severity of each offence and the cumulative effect of the defendant's actions. It considered the defendant's remorse, noting that there was some level of remorse, but it was not sufficient to warrant a significant reduction in sentence. The court also evaluated the special circumstances of the case, including the defendant's background and any mitigating factors. The principle of totality and accumulation was applied to ensure that the overall sentence reflected the totality of the defendant's criminal conduct without unduly penalising him for multiple offences. Finally, the risk of reoffending was considered, with the court concluding that there was a moderate risk, necessitating a sentence that included a period of incarceration.
The court concluded that the appropriate sentence for the defendant was an aggregate term of imprisonment with a minimum non-parole period of 2 years and 6 months, followed by an additional term of 1 year and 2 months during which parole eligibility would apply. The overall head term was set at 3 years and 8 months. This sentence balanced the need for punishment and deterrence with the principles of justice and rehabilitation. The court's decision was influenced by the seriousness of the offences, the defendant's lack of substantial remorse, and the need to protect the community by reducing the likelihood of reoffending.
The final orders of the court were that the defendant was to be imprisoned for a total of 3 years and 8 months, with the specific terms of imprisonment detailed as per the orders listed in the case. The defendant was to commence serving his sentence on the specified dates and remain in custody until the expiration of the set terms, subject to parole eligibility after the non-parole period.
Orders
Orders of the court
1) The offender is convicted.
2) I impose an aggregate sentence comprising a minimum term of 2 years and 6 months imprisonment to commence on 18 September 2016 and to expire on 17 March 2019. Thereafter the offender is to serve an additional term of 1 year and two months imprisonment commencing on 18 March 2019 and expiring on 17 May 2020 during which the offender shall be eligible to be released on parole.
3) The overall head term is 3 years and 8 months.
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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