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…
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
AGLC
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.