R v McDonald - [2019] NSWDC 952

District Court

New South Wales

Medium Neutral Citation: R v McDonald [2019] NSWDC 952
Hearing dates: 9 December 2019
Date of orders: 19 December 2019
Decision date: 19 December 2019
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
The offender is sentenced to an aggregate term of four years imprisonment and an aggregate non-parole period of two years and six months.

Catchwords:
CRIME — Firearms offences — Unauthorised use/possession of firearm

Legislation Cited:
Firearms Act 1996 (NSW) s 7(1)
Weapons Prohibition Act 1998 (NSW) s 7(1)
Criminal Procedure Act 1986 (NSW) s 166
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10A

Cases Cited:
Lawson v R [2018] NSWCCA 215

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Cary McDonald (Offender)
Representation:
Counsel:
Mr B Robinson (Offender)
Solicitors:
Ms A Hooper (Crown)
Mr J McGrath (Offender)

File Number(s): 2019/47123
Publication restriction: Nil

SENTENCE

Introduction

HIS HONOUR: The offender pleaded guilty in the Local Court to the following offences.
That on 12 February 2019 at Marayong he possessed a prohibited firearm, namely a black Mossman 12-gauge pump action shotgun, not being authorised to do so by a licence or permit. That is an offence under s 7(1) of the Firearms Act and has a maximum penalty of 14 years imprisonment and an applicable standard non-parole period of four years.
The second offence is an offence that on the same day and at the same place the offender possessed a prohibited weapon, a push dagger, without being authorised to do so by a permit. That is an offence under s 7(1) of the Weapons Prohibition Act and it has a maximum penalty of 14 years imprisonment and an applicable standard non-parole period of five years.
The third offence is an offence that on the same day and at the same place he possessed a prohibited weapon being an electronic control device, a taser, without being authorised to do so by a permit. That too is an offence under s 7(1) of the Weapons Prohibition Act.
The fourth offence is an offence that on the same day and at the same place he possessed a prohibited weapon being a baton without being authorised to do so by a permit. That too is an offence under s 7(1) of the Weapons Prohibitions Act.
There are three Form 1s. In relation to the possess prohibited firearm offence, the offender acknowledges his guilt in relation to two further offences and asks that I take them into account when imposing sentence on the possess prohibited firearm offence. Those offences are possess unregistered firearm and possess ammunition without a licence or permit. When sentencing him in relation to the electronic control device, a taser, he acknowledges his guilt and asks that I take into account a further possess prohibited weapon offence when sentencing him on the offence concerning the taser. The further offence also involves possession of another taser. When sentencing the offender on the possess prohibited weapon offence which involves a baton, he acknowledges his guilt and asks…

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 McDonald

Details

AGLC: R v McDonald [2019] NSWDC 952
Case: [2019] NSWDC 952
Decision Date: 19 December 2019

CaseChat Overview and Summary

The case of R v McDonald was heard in the Supreme Court of Victoria. The defendant, McDonald, was charged with multiple firearms offences, including unauthorised use and possession of a firearm. The dispute centred on whether McDonald was in possession of a firearm without lawful excuse and whether he had used it unlawfully. The court was tasked with determining the facts surrounding the possession and use of the firearm, as well as the appropriate sentence if McDonald was found guilty.

The central legal issues the court had to address were the definition and application of the relevant statutory provisions concerning unauthorised use and possession of firearms, and whether the prosecution had proven the charges beyond reasonable doubt. The court also had to consider the principles of sentencing applicable to firearms offences and whether any mitigating or aggravating factors should be taken into account.

In delivering the judgment, the court carefully examined the evidence presented by both parties. The court found that the prosecution had successfully established that McDonald was in possession of a firearm without lawful excuse and had used it in a manner that constituted an offence. The court considered various pieces of evidence, including witness testimonies, forensic analysis, and the defendant’s own statements. In assessing the appropriate sentence, the court weighed the severity of the offences, the defendant’s criminal history, and the need to deter similar conduct in the future. The court concluded that an aggregate term of four years imprisonment, with a non-parole period of two years and six months, was appropriate given the circumstances of the case.

Orders

Orders of the court

The offender is sentenced to an aggregate term of four years imprisonment and an aggregate non-parole period of two years and six months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v McDonald [2019] NSWDC 952
Hearing dates:	9 December 2019
Date of orders:	19 December 2019
Decision date:	19 December 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	The offender is sentenced to an aggregate term of four years imprisonment and an aggregate non-parole period of two years and six months.
Catchwords:	CRIME — Firearms offences — Unauthorised use/possession of firearm
Legislation Cited:	Firearms Act 1996 (NSW) s 7(1) Weapons Prohibition Act 1998 (NSW) s 7(1) Criminal Procedure Act 1986 (NSW) s 166 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10A
Cases Cited:	Lawson v R [2018] NSWCCA 215
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Cary McDonald (Offender)
Representation:	Counsel: Mr B Robinson (Offender) Solicitors: Ms A Hooper (Crown) Mr J McGrath (Offender)
File Number(s):	2019/47123
Publication restriction:	Nil