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R v Kember

R v Kember

Case [2020] NSWDC 101 14 February 2020

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kember [2020] NSWDC 101
Hearing dates: 27 May 2019, 14 February 2020
Decision date: 14 February 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of two years and nine months imprisonment. Non-parole period of 1 year 5 months.

Catchwords: SENTENCING – disputed facts – fact finding - applicable principle applied – defence version rejected - prosecution version proved beyond reasonable doubt – facilitated supply of Ruger pistol.
SENTENCING – relevant factors on sentencing – firearms and prohibited weapon offences - late guilty plea – Form 1 matters – parity - maximum penalty and standard non-parole period considered - Intensive Corrections Order not appropriate.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Firearms Act 1996
Weapons Prohibition Act 1998
Cases Cited: Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application No. 1: (2002) 56 NSWLR 146
Fox v Percy (2003) 214 CLR 118
Grube v R [2005] NSWCCA 140
Howard v R [2004] NSWCCA 348
Markarian v The Queen (2005) 228 CLR 357
Muldrock v The Queen (2011) 244 CLR 120
Olbrich v The Queen (1999) 199 CLR 270
Pullen v R [2018] NSWCCA 26
R v Mohamad [2005] NSWCCA 204
R v Storey [1998] 1 VR 359
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228
Tripodi v. The Queen (1961) 104 CLR 1
Category: Sentence
Parties: Shane Kember (Offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr B Murray (for the offender - 27 May 2019)
Mr J Glissan QC (for the offender- 14 February 2020)
Mr D Scully, Deputy Senior Crown Prosecutor (for the Director of Public Prosecutions)
Solicitors:
Clowry & Associates Lawyers (for the offender)

File Number(s): 2016/00263947

SENTENCE

Introduction

On 1 September 2016, Shane Kember was arrested and charged with a number of offences pursuant to the Firearms Act 1996 and Weapons Prohibition Act 1998. He was also charged with other serious offences which were later discontinued. He said he was not guilty to all matters.
The trial was listed at Wollongong District Court on 20 May 2019. The parties properly continued to discuss and negotiate the matters pending trial.
On 14 May 2019, the prosecution sought leave to present a fresh Indictment. Leave was not opposed. Kember then said he was guilty of two offences -

Count 1: supply a (Ruger) pistol to person unauthorised to possess it : s51(1A) (c) Firearms Act – maximum penalty 20 years imprisonment- standard non-parole period 10 years, and

Count 2: possess a prohibited weapon (a silencer) without a permit- maximum penalty 14 years imprisonment: 7(1) Weapon’s Prohibition Act.

Kember also admitted his guilt to and asked that; seven (7) Possess unauthorised firearm offences and one (1) Possess ammunition without holding a licence, permit or authority offences, be taken into account when I sentence for the supply firearm offence, on a ss 32 & 33 Crimes (Sentencing Procedure) Act 1999, Form 1. It…

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 Kember

Details

AGLC: R v Kember [2020] NSWDC 101
Case: [2020] NSWDC 101
Decision Date: 14 February 2020

CaseChat Overview and Summary

The defendant, Kember, was convicted for facilitating the supply of a Ruger pistol, and the matter was before the court for sentencing. The primary dispute revolved around the facts surrounding the offence and the appropriate sentence to be imposed. The court had to determine whether the defence's version of events was credible or if the prosecution's account was proven beyond reasonable doubt. Additionally, the court had to weigh various sentencing factors, including the maximum penalty, the standard non-parole period, and the appropriateness of an Intensive Corrections Order.

The court found that the prosecution's version of events was proven beyond reasonable doubt, rejecting the defence's account. This conclusion was based on the evidence presented and the court's assessment of the credibility of the witnesses. The court then turned to the sentencing issues, considering the seriousness of the offence, the defendant's culpability, and the need for deterrence and retribution. The court noted that the offence involved firearms and a prohibited weapon, which are significant aggravating factors. The defendant's late guilty plea and the absence of mitigating factors such as genuine remorse or cooperation with authorities were also taken into account.

Given the seriousness of the offence and the lack of mitigating factors, the court determined that an Intensive Corrections Order was not appropriate. Instead, the court imposed an aggregate sentence of two years and nine months imprisonment, with a non-parole period of one year and five months. This sentence reflected the gravity of the offence and the need to uphold public confidence in the justice system. The court emphasised the importance of deterrence and the need to protect the community from the potential harm caused by the illegal supply of firearms.

The court's decision was final, with no further appeals possible. The defendant was to serve the specified sentence, with the possibility of parole after serving the non-parole period. This outcome balanced the need for punishment and deterrence with the principles of justice and proportionality.

Orders

Orders of the court

Aggregate sentence of two years and nine months imprisonment. Non-parole period of 1 year 5 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Kember [2020] NSWDC 101

Most Recent Citation

Kember v The Queen [2020] NSWCCA 152

Cases Citing This Decision

Kember v The Queen [2020] NSWCCA 152
Citation 1

…under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2020] NSWDC 101 Date of Decision: 14 February 2020 Before: His Honour Judge Haesler SC…

See all citing cases →

Cases Cited

Moore v R [2018] NSWCCA 26
Citation 1 (Para 88)

…re-offending. It can operate differently in different circumstances. It is a broad concept. Community safety, as Harrison J pointed out in Pullen v R [2018] NSWCCA 26 , is not achieved simply by locking someone up. Many studies have shown that in such cases incarceration can have the opposite effect.…
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Citation 2

…Procedure) Act 1999 Evidence Act 1995 Firearms Act 1996 Weapons Prohibition Act 1998 Cases Cited: Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Fox v Percy (2003) 214 CLR 118 Grube v R [2005] NSWCCA 140 Howard v R [2004] NSWCCA 348 Markarian v The Que…
Muldrock v The Queen [2011] HCA 39
Citation 3

…46 Fox v Percy (2003) 214 CLR 118 Grube v R [2005] NSWCCA 140 Howard v R [2004] NSWCCA 348 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 Olbrich v The Queen (1999) 199 CLR 270 Pullen v R [2018] NSWCCA 26 R v Mohamad [2005] NSWCCA 204 R v Storey [1998] 1 VR 359 R v War Pensions Entitlement Ap…
Harris v R [2005] NSWCCA 204
Citation 4 (Para 51)

…An intermediary who arranges the unauthorised purchase or sale of firearms may not be substantially less culpable than the principal: R v Mohamad [2005] NSWCCA 204. Where an offender acts as an agent for others engaged this will have a variant on the determination of the objective seriousness of the offence. That sa…
Markarian v The Queen [2005] HCA 25
Citation 5 (Para 65)

…generally do operate to increase the sentence that would otherwise be appropriate. So much was made clear by the High Court in Markarian v The Queen (2005) 228 CLR 357. The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence. The guideline judgment of 2002. A Co…
R v Grube [2005] NSWCCA 140
Citation 6 (Para 66)

…y increase in the sentence can be substantial, that was made clear in Attorney General’s Application No. 1 : (2002) 56 NSWLR 146 at [18]; Grube v R [2005] NSWCCA 140…
R v Howard [2004] NSWCCA 348
Citation 7 (Para 93)

…s must be strictly regulated. Any breach of the law is regarded as a very serious offence that must be reflected in the sentences imposed: Howard v R [2004] NSWCCA 348, at [66]. A Court, by the severity of the sentences imposed, has to give proper weight to the guidance to which I have earlier referred.…
Fox v Percy [2003] HCA 22
Citation 8

…t 1998 Cases Cited: Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Fox v Percy (2003) 214 CLR 118 Grube v R [2005] NSWCCA 140 Howard v R [2004] NSWCCA 348 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 Olbrich v The Que…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 9 (Para 66)

…clearing up minor matters. Sometimes any increase in the sentence can be substantial, that was made clear in Attorney General’s Application No. 1 : (2002) 56 NSWLR 146 at [18]; Grube v R [2005] NSWCCA 140…
R v Olbrich [1999] HCA 54
Citation 10 (Para 15)

…rned. I am obliged to make my own assessment of the evidence as part of my overall synthesis of the relevant factors. As the High Court made clear in Olbrich v The Queen (1999) 199 CLR 270, matters in mitigation must be established on the balance of probabilities, matters of an aggravation of penalty must be established beyo…
Tripodi v the Queen [1961] HCA 22
Citation 11 (Para 17)

…, that Lawrence and Ayres were making representations, arrangements or statements in furtherance for common purpose with Kember: Tripodi v. The Queen (1961) 104 CLR 1.…
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 33
Citation 12

…018] NSWCCA 26 R v Mohamad [2005] NSWCCA 204 R v Storey [1998] 1 VR 359 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 Tripodi v. The Queen (1961) 104 CLR 1 Category: Sentence Parties: Shane Kember (Offender) Director of Public Prosecutions Representation: Counsel: Mr B Murray (for the…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Evidence Act 1995 (Cth)
1 mention
Firearms Act 1996 (TAS)
1 mention (from Para 1)
Weapons Prohibition Act 1998 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Kember [2020] NSWDC 101
Hearing dates:	27 May 2019, 14 February 2020
Decision date:	14 February 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of two years and nine months imprisonment. Non-parole period of 1 year 5 months.
Catchwords:	SENTENCING – disputed facts – fact finding - applicable principle applied – defence version rejected - prosecution version proved beyond reasonable doubt – facilitated supply of Ruger pistol. SENTENCING – relevant factors on sentencing – firearms and prohibited weapon offences - late guilty plea – Form 1 matters – parity - maximum penalty and standard non-parole period considered - Intensive Corrections Order not appropriate.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Firearms Act 1996 Weapons Prohibition Act 1998
Cases Cited:	Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Fox v Percy (2003) 214 CLR 118 Grube v R [2005] NSWCCA 140 Howard v R [2004] NSWCCA 348 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 Olbrich v The Queen (1999) 199 CLR 270 Pullen v R [2018] NSWCCA 26 R v Mohamad [2005] NSWCCA 204 R v Storey [1998] 1 VR 359 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 Tripodi v. The Queen (1961) 104 CLR 1
Category:	Sentence
Parties:	Shane Kember (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr B Murray (for the offender - 27 May 2019) Mr J Glissan QC (for the offender- 14 February 2020) Mr D Scully, Deputy Senior Crown Prosecutor (for the Director of Public Prosecutions) Solicitors: Clowry & Associates Lawyers (for the offender)
File Number(s):	2016/00263947