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R v Lachlan

R v Lachlan

Case [2015] NSWCCA 178 3 July 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Lachlan [2015] NSWCCA 178
Hearing dates: 1 June 2015
Decision date: 03 July 2015
Before: Gleeson JA at [1];
Johnson J at [98],
Garling J at [99]
Decision:
1. Appeal allowed.

2. Quash the sentence imposed on the respondent by Phegan ADCJ on 21 November 2014 with respect to the firearms offence.
3. In lieu thereof sentence the respondent, in respect of the charge under s 51D(2) of the Firearms Act, to imprisonment for a non-parole period of 3 years commencing on 29 November 2013 and expiring on 28 November 2016, and a balance of term of 2 years and 3 months commencing on 29 November 2016 and expiring on 28 February 2019.
Catchwords: CRIMINAL LAW – appeal – Crown appeal against sentence – unauthorised possession of firearms in aggravated circumstances – Firearms Act 1996 (NSW) s 51D(2) – whether sentence imposed manifestly inadequate – whether sentence imposed erroneously lenient in view of the maximum sentence and standard non-parole period for the offence – whether youth dominated matters relevant to sentence – residual discretion to dismiss Crown appeal not exercised
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 6
Crimes Act 1900 (NSW) ss 58, 195(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 32
Criminal Appeal Act 1912 (NSW) s 5D
Firearms Act 1996 (NSW) ss 4, 51D, 65, Sch 1
Firearms Regulation 2006 (NSW) reg 129
Inclosed Lands Protection Act 1901 (NSW) s 4
Weapons Prohibition Act 1998 (NSW) s 7(1), Sch 1
Cases Cited: Attorney General for New South Wales v CMB [2015] NSWCCA 166
Attorney General’s Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCA 518; 56 NSWLR 146
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
CMB v The Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Dionys v The Queen [2011] NSWCCA 272; 217 A Crim R 280
Em v Regina [2006] NSWCCA 336
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
House v The King [1936] HCA 40; 55 CLR 499
KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Mack v R [2009] NSWCCA 216
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Brown [2006] NSWCCA 249
R v De Simoni [1981] HCA 31; 147 CLR 383
R v DM [2005] NSWCCA 181
R v GDP (1991) 53 A Crim R 112
R v Gordon (1994) 71 A…

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 Lachlan

Details

AGLC: R v Lachlan [2015] NSWCCA 178
Case: [2015] NSWCCA 178
Decision Date: 03 July 2015

CaseChat Overview and Summary

The case involved the appellant, Lachlan, who had been convicted of unauthorised possession of firearms in aggravated circumstances under section 51D(2) of the Firearms Act 1996 (NSW). The Crown appealed against the sentence imposed on Lachlan, arguing that it was manifestly inadequate and erroneously lenient considering the maximum sentence and standard non-parole period for the offence. The appeal was heard by the NSW Court of Criminal Appeal.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate and erroneously lenient. The court was also required to determine whether the youth of the offender was a relevant factor in the sentencing process, and if so, to what extent it should have influenced the sentence. Furthermore, the court had to consider whether the residual discretion to dismiss the Crown appeal should be exercised in this case.

The court found that the sentence imposed by the trial judge was manifestly inadequate and erroneously lenient. The court determined that the trial judge had not given sufficient weight to the seriousness of the offence and the maximum penalty available. The court also held that Lachlan's youth was a relevant factor in the sentencing process, but it did not override the need for a sentence that adequately reflected the seriousness of the offence. The court concluded that the residual discretion to dismiss the Crown appeal should not be exercised in this case, as the sentence imposed was significantly below the range of sentences that could be imposed for the offence.

The court ordered that the appeal be allowed, the conviction be quashed, and a new sentence be imposed by the trial judge. The court also ordered that the case be remitted to the trial court for re-sentencing, with directions that the trial judge consider the maximum penalty and standard non-parole period for the offence, as well as the youth of the offender as a relevant factor in the sentencing process.

Orders