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R v Irwin

R v Irwin

Case [2019] NSWCCA 133 24 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Irwin [2019] NSWCCA 133
Hearing dates: 27 May 2019
Date of orders: 24 June 2019
Decision date: 24 June 2019
Before: Simpson AJA at [1]
Walton J at [8]
Adamson J at [151]
Decision:
The Court makes the following orders:

(1) Appeal allowed;

(2) Quash the sentence imposed by English DCJ on 14 December 2018;

(3) In lieu thereof, sentence the respondent to an aggregate term of imprisonment of 7 years which commences on 17 May 2018 and concludes on 16 May 2025 with a non-parole period of 4 years 8 months concluding on 16 January 2023;

(4) Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the indicative sentences for each sequence of offence (having regard to charges under Form 1 with respect to sequences 4, 8 and 16) are as follows:

(a) sequence 1: 6 months;

(b) sequence 4: 18 months;

(c) sequence 8: 4 years 6 months;

(d) sequence 11: 3 years;

(e) sequence 13: 18 months;

(f) sequence 14: 2 years;

(g) sequence 15: 2 years;

(h) sequence 16: 3 years with a non-parole period of 2 years;

(i) sequence 18: 4 years with a non-parole period of 2 years and 8; months;
(j) sequence 20: 3 years.
Catchwords: CRIMINAL LAW – sentencing – Crown appeal – whether sentence manifestly inadequate – objective seriousness – indicative sentences -- totality – double counting – accumulation – subjective features – Bugmy principles – residual discretion – appeal allowed – resentencing
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Court Act 1998 (NSW)
Firearms Act 1996 (NSW)
Weapons Prohibition Act 1998 (NSW)
Cases Cited: Ayshow v R [2011] NSWCCA 240
Baxter v R [2018] NSWCCA 281
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Bungie v R [2015] NSWCCA 9
Buxton v R [2017] NSWCCA 169
CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Edwards v R [2017] NSWCCA 160
El Jamal v R [2017] NSWCCA 243
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
Gardener v R [2015] NSWCCA 170
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Greentree v R [2018] NSWCCA 227
Griffiths v The Queen (1977) 137 CLR 293
Herod v R [2010] NSWCCA 17
Hili v The Queen (2010) 242 CLR 520; [2010] HCA
House v The King (1936) 55 CLR 499; [1936] HCA 40
JL v R [2014] NSWCCA 130
Judge v R [2018] NSWCCA 203
Katsis v R [2018] NSWCCA 9
Kentwell v R (No 2) [2015] NSWCCA 96
Krivosic v R [2017] NSWCCA 167
Lambert v R [2015] NSWCCA 22
Linden v R [2017] NSWCCA 321
Luu v R [2008] NSWCCA 285
Markarian v The Queen (2005) 228…

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 Irwin

Details

AGLC: R v Irwin [2019] NSWCCA 133
Case: [2019] NSWCCA 133
Decision Date: 24 June 2019

CaseChat Overview and Summary

In the case of R v Irwin, the respondent was convicted of possessing a prohibited weapon and possessing a firearm with intent to cause fear. The Crown appealed the sentence, arguing it was manifestly inadequate. The appeal was heard by the Court of Criminal Appeal in New South Wales. The Crown argued that the sentence failed to reflect the objective seriousness of the respondent's offending, did not align with indicative sentences, and failed to consider the totality principle correctly. The Crown further submitted that the accumulation of subjective features was not justified and that the sentencing judge had not properly exercised the residual discretion under the Bugmy principles.

The court was required to determine whether the sentence imposed by the primary judge was manifestly inadequate. This involved assessing the objective seriousness of the respondent's offending, evaluating whether the sentence aligned with indicative sentences for similar offences, and examining the application of the totality principle. The court also had to consider whether the sentence adequately reflected the subjective features of the case and whether the judge had correctly exercised the residual discretion in accordance with the Bugmy principles.

The court found that the sentence imposed was manifestly inadequate. The primary judge had failed to adequately reflect the objective seriousness of the respondent's offending. The sentence did not align with indicative sentences for similar offences and did not properly apply the totality principle. The court further found that the respondent's subjective features had not been appropriately weighed, and the residual discretion was not exercised in accordance with the Bugmy principles. As a result, the appeal was allowed, and the case was remitted for resentencing.

Orders