R v Harley James Buhagiar - [2017] NSWDC 339

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 369
Texts 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

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”

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…

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.

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Details

Case: [2017] NSWDC 339
Decision Date: 10 November 2017

CaseChat Overview and Summary

The defendant, Harley James Buhagiar, was convicted in the Supreme Court of Victoria of various offences including unauthorised possession of a prohibited firearm, supply of methylamphetamine, possession of cannabis leaf, and custody of an offensive implement in a public space. The case involved the court determining an appropriate sentence for these serious criminal activities. The legal issues before the court involved assessing the gravity of the offences, the offender's remorse, any special circumstances, and the principle of totality and accumulation, along with the risk of reoffending. The court needed to balance these factors to arrive at a just sentence.

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

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 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 369
Texts 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