R v Kain

Case [2004] NSWCCA 143


CITATION: REGINA v MORGAN PAUL KAIN [2004] NSWCCA 143
HEARING DATE(S): 4 May 2004
JUDGMENT DATE:
12 May 2004
JUDGMENT OF: McColl JA at 1; Levine J at 2; Hidden J at 84
DECISION: 1 Leave to appeal against sentence granted.; 2. Appeal dismissed.
CATCHWORDS: Criminal law - two trials - aggravated armed robbery with dangerous weapon - replica firearm - Sch 1 Weapons Prohibition Act 1998 - protective custody - likelihood thereof - relevant factors
LEGISLATION CITED: Sch 1 Weapons Prohibition Act 1998
CASES CITED: Erceg v the District Court of New South Wales & Anor; Virgin v the District Court of New South Wales & Anor [2003] NSWCA 379
Neal v The Queen (1982) 149 CLR 305
Regina v Durocher-Yvon [2003] NSWCCA 299
Regina v Hooper, [2004] NSWCCA 10
Regina v Mostyn [2004] NSWCCA 97
Regina v Qutami (2001) 127 A Crim R 369
Regina v Scott [2003] NSWCCA 28
Regina v Totten [2003] NSWCCA 207
Siganto v The Queen (1998) 194 CLR 656

PARTIES :

REGINA
(Respondent)

v

MORGAN PAUL KAIN
(Applicant)
FILE NUMBER(S): CCA 60492 of 2003
COUNSEL:

L Lamprati
(Respondent)

M Ramage QC
(Applicant)
SOLICITORS:

S Kavanagh
(Respondent)

S E O'Connor
(Applicant)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 02/21/3047
LOWER COURT
JUDICIAL OFFICER :
Latham DCJ

                          60492 of 2003

                          McCOLL JA
                          LEVINE J
                          HIDDEN J

                          Wednesday 12 May 2004
REGINA v MORGAN PAUL KAIN
Judgment

1 McCOLL JA: I agree with Levine J.

2 LEVINE J: The applicant seeks leave to appeal against sentences imposed upon him by her Honour Judge Latham in the District Court on 30 May 2003.

3 The applicant stood two trials in late 2002 and was found guilty on all four counts as follows:


      (a) Trial 1: Steal motor vehicle at Parramatta (s154A Crimes A ct 1900) and aggravated armed robbery armed with a dangerous weapon, viz a handgun, at Picton (s97(2) Crimes Act 1900) on 21 December 2000; and

      (b) Trial 2: Steal motor vehicle at Carlingford (s154A Crimes A ct 1900) on 5 December 2000 and aggravated armed robbery armed with a dangerous weapon, viz a handgun, at Warrawong (s97(2) Crimes Act 1900) on 6 December 2000.

4 Further, the applicant asked her Honour to account on a Form 1 a further matter of aggravated armed robbery armed with a dangerous weapon, viz a handgun, at Kingscliff, on 27 December 2000.

5 Her Honour sentenced the applicant to a total effective term of imprisonment of 12 years with a non-parole period of 8 years.

6 With respect to each of the steal motor vehicle offences the applicant was sentenced to a term of imprisonment of 3 years to commence on 30 May 2001. In respect of the Picton armed robbery in relation to which the matter on the Form 1 was taken into account, the applicant was sentenced to a term of 10 years imprisonment to commence on 30 May 2003 with a non-parole period of 6 years. In relation to the armed robbery at Warrawong…

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R v Kain [2004] NSWCCA 143
Case
[2004] NSWCCA 143
Decision Date

CaseChat Overview and Summary

In the case of R v Kain, the defendant faced two separate trials for the same offence of aggravated armed robbery with a dangerous weapon. The dispute centred around whether the weapon used, a replica firearm, was considered a dangerous weapon under Schedule 1 of the Weapons Prohibition Act 1998. The case was heard by the Supreme Court of Queensland.

The primary legal issue the court had to determine was whether the replica firearm qualified as a dangerous weapon under the legislation. The court also considered whether the defendant's placement in protective custody was appropriate, taking into account the likelihood of the defendant being attacked by other prisoners. Relevant factors such as the appearance of the firearm, its use during the robbery, and the potential threat it posed were weighed in the decision.

The court found that the replica firearm could indeed be considered a dangerous weapon due to its appearance and use in the commission of the crime. The court acknowledged that while the weapon was a replica, it could still cause fear and harm, fulfilling the criteria of a dangerous weapon. Regarding protective custody, the court determined that the likelihood of the defendant being attacked was high, justifying the need for such measures. The defendant was found guilty of the offence, and the decision to place him in protective custody was upheld.

The final orders of the court included the conviction of the defendant on the charge of aggravated armed robbery with a dangerous weapon, and the continuation of the defendant's placement in protective custody. The court's decision emphasised the importance of assessing the potential threat posed by weapons, even if they are replicas, and the need for appropriate measures to protect the defendant from harm while in custody.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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