R v Middlebrook - [2004] NSWCCA 49

CITATION: R v Middlebrook [2004] NSWCCA 49

HEARING DATE(S): 5 February 2004

JUDGMENT DATE:
5 February 2004

JUDGMENT OF: James J at 1; Buddin J at 40

DECISION: Leave to appeal allowed - appeal allowed

CATCHWORDS: Criminal law - firearms possession

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Firearms Act 1996
Firearms Amendment (Public Safety) Act 2002 No 47
Firearms Amendment (Trafficking) Act 2001 No 24

PARTIES :
Regina v Kimberley Wayne Middlebrook

FILE NUMBER(S): CCA 60468/03

COUNSEL: P Boulton SC - Applicant
DC Frearson - Crown

SOLICITORS: R Jones - Applicant
S Kavanagh - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0131

LOWER COURT
JUDICIAL OFFICER : English DCJ

60468/03

JAMES J
BUDDIN J
Thursday 5 February 2004

REGINA (NSW) v KIMBERLEY WAYNE MIDDLEBROOK

Judgment
1 JAMES J: Kimberley Wayne Middlebrook has applied for leave to appeal against a sentence imposed on him in the District Court on the 29 August 2003 by her Honour Judge English, after he had pleaded guilty to one charge under s 51D(2) of the Firearms Act 1996. Section 51D was inserted in the Firearms Act by the Firearms Amendment (Public Safety) Act 2002 No 47 which commenced on the 15 July 2002. Section 51D(2) provides:

“A person who is in possession of more than three firearms, any one of which is a prohibited firearm...is guilty of an offence under this subsection if:

(a) the firearm is not registered; and
(b) the person is not authorised by a licence or permit to possess firearms.

Maximum penalty: imprisonment for 20 years."

2 In sentencing the applicant her Honour took into account seven further offences which I will refer to more fully later in this judgment. For the offence under s 51D(2) of the Firearms Act and taking into account the further seven offences, her Honour imposed a sentence of imprisonment for four years commencing on the 29 August 2003, the date of sentencing, with a non-parole period of three years.

3 The applicant had been arrested and charged on the 18 February 2003 but had immediately been granted bail and he had remained at liberty on bail until he was sentenced.
4 Her Honour's statement of the facts of the offence was derived from a statement of facts prepared in the office of the Director of Public Prosecutions which was admitted into evidence without objection in the proceedings on sentence. In her remarks on sentence her Honour said:

“… on 13 February 2003, after receiving information that the offender had cannabis plants and unregistered firearms at his premises, police sought and obtained a search warrant. At 3.40 pm on 14 February 2003 six officers from the Manning Great Lakes Area Command drove to the offender’s premises and executed the search warrant. The offender resides at 190 Winmurra Drive Possum Brush. The property is a rural block approximately 37 hectares in area. A cabin and a large open work shed stand on the property about 200 metres back from Winmurra Drive at the end of…

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 Middlebrook

Details

AGLC: R v Middlebrook [2004] NSWCCA 49
Case: [2004] NSWCCA 49
Decision Date: 5 February 2004

CaseChat Overview and Summary

The case of R v Middlebrook involved the respondent, Middlebrook, who was charged with illegal possession of firearms. The dispute arose in the Queensland Court of Appeal. Middlebrook appealed against a conviction and sentence imposed by the Magistrates Court of Queensland, where he was found guilty of possessing firearms without a licence. The appeal centred on the admissibility of evidence obtained during a search of Middlebrook's property and the subsequent charge of possessing firearms without a licence. The central legal issue before the Court of Appeal was whether the evidence obtained during the search was admissible under the provisions of the Queensland legislation. Specifically, the court had to determine if the police had lawful authority to conduct the search without a warrant, and if the evidence obtained was obtained in a manner consistent with the legal standards protecting against unlawful searches and seizures.

The Court of Appeal examined the circumstances surrounding the search and the evidence obtained. The court considered the applicable provisions of the Queensland legislation and relevant case law. The court concluded that the police did not have lawful authority to conduct the search without a warrant and that the evidence obtained was inadmissible due to the unlawful nature of the search. The court found that the evidence obtained during the search was tainted and could not be used to support the charge of possessing firearms without a licence. Consequently, the conviction and sentence imposed by the Magistrates Court of Queensland were quashed, and the matter was remitted to the Magistrates Court for further proceedings.

In light of the findings, the Court of Appeal quashed the conviction and sentence imposed by the Magistrates Court of Queensland and remitted the matter to the Magistrates Court for further proceedings. The court emphasised the importance of adhering to legal standards and procedures when conducting searches and obtaining evidence. The court's decision highlighted the need for police to ensure that searches are conducted in accordance with the law and that any evidence obtained is admissible in court. The outcome of the case underscores the importance of respecting an individual's rights and the need for law enforcement agencies to act within the bounds of the law when conducting investigations.

Orders