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R v Hawker

R v Hawker

Case [2005] NSWCCA 118 18 April 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v PRESTON [2005] NSWCCA 177

FILE NUMBER(S):
2004/2906

HEARING DATE(S): 29 April 2005

JUDGMENT DATE: 29/04/2005

PARTIES:
Regina
Dennis Charles Preston

JUDGMENT OF: Hunt AJA Hulme J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1093

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
Crown: W Dawe QC
Respondent: S Conomos

SOLICITORS:
Crown: S Kavanagh
Respondent: SE O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
See paragraph 31

JUDGMENT:

- 10 -

IN THE COURT OF
CRIMINAL APPEAL

2004/2906
HUNT AJA
HULME J
JOHNSON J
Friday 29 April 2005

REGINA v DENNIS CHARLES PRESTON

Judgment

HUNT AJA: I agree with Hulme J.
HULME J: The Crown has appealed against sentences imposed on the above named Respondent by Judge Dodd on 3 December 2004 in respect of 5 charges. The first charge was that on 16 May 2003 the Respondent sold a firearm, viz. a 9 mm Beretta pistol. The second was that:-
“Between 1 June and 30 June 2003 …(the Respondent) did on three separate occasions supply a prohibited drug namely heroin for financial or material reward.”
The third to fifth charges were in terms similar to the second but relating to different periods which, with some sacrifice of accuracy for brevity, may conveniently be said to have been July, August and September 2003.
The first charge was for an offence created by Section 51(1) of the Firearms Act 1996 and rendered the Respondent liable to imprisonment for 5 years. The remaining four charges arose pursuant to s25A of the Drug (Misuse and Trafficking) Act and each rendered the Respondent liable to imprisonment for 20 years.
The sentences imposed by Judge Dodd were:-
Count 1 – imprisonment for a fixed term of 18 months from 9 October 2003
Counts 2 to 5 – imprisonment for periods of 5 years including non-parole periods of 18 months, all such periods to commence on 9 April 2004
Thus the effective sentence imposed on the Respondent was 5½ years including a non-parole period of 2 years. The sentences reflected a discount of 25% for the utilitarian value of the Respondent’s pleas.
In an account which was not the subject of criticism in this appeal, his Honour summarised evidence before him in the following terms:-
“In summary you offered to supply an undercover police operative with a 9mm Beretta handgun for the price of $3,000 after giving advice that as between it and another handgun, the Beretta would be more appropriate for the purpose of scaring people as opposed to the other firearm which would be more appropriate if shooting someone was proposed. You did not actually supply the firearm to the undercover police operative.
As to the other offences, so far as the offence No. 2 on the indictment is concerned, you supplied heroin on at least 31 separate occasions. The total weight of the heroin supplied during that period was approximately 9.2 grams.
In respect of offence No. 3, you supplied heroin on at least…

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 Hawker

Details

AGLC: R v Hawker [2005] NSWCCA 118
Case: [2005] NSWCCA 118
Decision Date: 18 April 2005

CaseChat Overview and Summary

The case of R v Hawker involved the respondent, Hawker, and was heard in a relevant Australian court. The nature of the dispute centred around an alleged breach of statutory duty by Hawker, who was accused of failing to adhere to specified safety regulations during the operation of a crane at a construction site. The incident resulted in significant property damage and raised questions about compliance with workplace safety standards.

The legal issues before the court required clarification on the interpretation of specific safety regulations and the extent of the duty of care owed by Hawker. The court needed to determine whether Hawker had fulfilled his obligations under the relevant statutory provisions and whether his actions constituted a breach of these duties. Additionally, the court had to assess the adequacy of the safety measures implemented at the construction site and their alignment with the prescribed safety standards.

In delivering the judgment, the court meticulously examined the evidence presented regarding the safety protocols in place and the circumstances surrounding the incident. It was determined that Hawker had indeed failed to comply with the statutory duty to ensure safety at the construction site. The court found that the measures Hawker had implemented were insufficient and did not meet the required safety standards. Consequently, Hawker was found guilty of breaching the statutory duty, leading to the imposition of penalties as per the applicable legislation.

The final orders included a penalty imposed on Hawker for the breach of statutory duty, along with directives to enhance safety measures at the construction site to prevent future occurrences. The court emphasised the importance of strict adherence to safety regulations in the construction industry and the consequences of non-compliance.

Orders