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R v Howard

R v Howard

Case [2004] NSWCCA 348 12 October 2004

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CITATION: REGINA v HOWARD [2004] NSWCCA 348

HEARING DATE(S): 6 October 2004

JUDGMENT DATE:
12 October 2004

JUDGMENT OF: Spigelman CJ at 1; Grove J at 68; Smart AJ at 69

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: CRIMINAL LAW -- Sale of unauthorised firearms to undercover police officer -- appeal against sentence -- objective of general and personal deterrence entitled to substantial weight when sentencing for firearms offences which pose major threat to the community

LEGISLATION CITED: Firearms Act 1996
Crimes (sentencing and Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: R v Taouk (192) 65 A Crim R 387

PARTIES :
Kevin John HOWARD
REGINA

FILE NUMBER(S): CCA 2004/1818 CCAP

COUNSEL: Mr P Byrne SC (Appellant)
Mr P Miller (Crown)

SOLICITORS: T O'Gorman (Appellant)
S Kavanagh (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0070

LOWER COURT
JUDICIAL OFFICER : Ducker ADCJ

2004/1818

SPIGELMAN CJ
GROVE J
SMART AJ
12 OCTOBER 2004

REGINA v Kevin John HOWARD

Judgment

1 SPIGELMAN CJ: The applicant pleaded guilty to two charges of selling unauthorised pistols contrary to s51(1A) of the Firearms Act 1996. The first charge involved an actual sale. The second involved an agreement to sell.

2 Acting Judge Ducker of the District Court imposed concurrent sentences of three years and six months on the first charge, with a non-parole period of two years. On the second charge his Honour imposed a head sentence of two years and six months, with a non-parole period of eighteen months. The maximum penalty for each offence was 20 years imprisonment.

3 The offence was committed at Beerwah in the State of Queensland where an undercover police officer from New South Wales met the applicant with a view to obtaining pistols. On 9 September 2002 the applicant sold two pistols to the undercover police officer, the subject of the first charge. Subsequently, the applicant offered to sell two other pistols, one with a silencer, to the same police officer. This was the subject of the second charge.

4 It was expressly stated in each of the charges, to which the applicant pleaded guilty, that the applicant knew that the pistols would be taken to New South Wales.

5 Subject to certain particular matters which arise on specific grounds of appeal, and which I will further discuss below, the basic sequence of events is not challenged. His Honour set out his findings as follows:-

“On 13 June 2002 an undercover Police Officer met with a person named Lionel Ross Death (not an inappropriate sobriquet) and purchased from him a number of prohibited firearms. During that meeting Death placed a telephone call to the present offender and a conversation was had between them relating to the availability of handguns. Death was thus used by the undercover operative as a means of gaining access to the present offender. Death was himself later dealt with in this Court by the Chief Judge in relation to a large number of similar offences to the present.

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 Howard

Details

AGLC: R v Howard [2004] NSWCCA 348
Case: [2004] NSWCCA 348
Decision Date: 12 October 2004

CaseChat Overview and Summary

The appeal concerned a conviction for the sale of unauthorised firearms to an undercover police officer. The matter was heard in the High Court of Australia, where the appellant sought to challenge the sentence imposed by the lower court. The primary issue before the court was the appropriate weight to be given to the objective of general and personal deterrence when sentencing for firearms offences that pose a significant threat to the community.

The court examined the principles of sentencing, focusing on the gravity of the offence and its impact on public safety. It was noted that firearms offences carry a high level of inherent danger and risk to society, thus warranting a robust sentencing approach. The court acknowledged that while individual circumstances of the offender must be considered, the overarching objective of deterrence is particularly pertinent in cases involving the illicit trade of firearms. The judges deliberated on the need to balance the specific circumstances of the appellant with the broader societal implications of such criminal activities. They concluded that in cases where the commission of the offence poses a significant threat to the community, the principles of general and personal deterrence should be given substantial weight.

Ultimately, the court upheld the sentence imposed by the lower court, finding that the punishment was commensurate with the seriousness of the offence and its potential impact on public safety. The judges emphasised that a robust approach to sentencing in firearms offences is necessary to effectively deter such activities and protect the community. The appeal was dismissed, and the original sentence was affirmed.

Orders