R v Mirad - [2016] NSWDC 336

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Mirad [2016] NSWDC 336
Hearing dates: 21 November 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
(1) The offender is convicted and sentenced to an overall term of imprisonment of three years.
(2) The non-parole period to be served is two years, to commence from 24 March 2016;
(3) The non-parole period expires on 23 March 2018, and thereafter, the offender is to be released on parole to serve an additional term of one year imprisonment from 24 March 2018 to 23 March 2019 under supervision of Community Corrections.

Catchwords:
CRIMINAL LAW – possess unauthorised pistol - possess ammunition – not keep firearm safely – use, supply, acquire or possess defaced firearm – rationale behind s 7(1) of the Firearms Act 1996 (NSW)
SENTENCE – aggravating factors – previous convictions – mitigating factors – likelihood of reoffending
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 32, 21A(2), 21A(3), 44(2), 47(3)
Crimes Act 1900 (NSW) s 61
Firearms Act 1996 (NSW) s 7(1)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
R v Mirad [2004] NSWSC 701
R v Najem [2008] NSWCCA 32
Thalari v R [2009] NSWCCA 170
Category: Sentence
Parties: Regina (Crown)
Mr Sandro Mirad (Offender)
Representation:
Counsel:
Mr G Harrison (Offender)
Solicitors:
Ms C Kirkpatrick (Solicitor for the Office of the Director of Public Prosecutions)

File Number(s): 2016/91784
Publication restriction: Nil

Judgment

Mr Sandro Mirad appeared before me for sentence on 21 November 2016 having pleaded guilty to an offence of being in possession on 24 March 2016 at Bonnyrigg of a prohibited firearm being a .38 calibre Smith and Wesson revolver, not being authorised to do so by licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW). [1]
1. Hereinafter the “1996 Act”
The facts were that on 2 March 2016 police executed a search at the offender’s premises located at Bonnyrigg. Upon arrival, police knocked on the front door and introduced themselves and served a Weapons Prohibition Order and Firearms Prohibition Order on the offender. Upon arrival, police asked the offender whether he wanted to declare any firearms which he had in his possession. The offender said: “Yeah, there is one here you know that.”
The offender then escorted police to his bedroom and pointed to a Louis Vuitton bag on the top shelf of his wardrobe. Police opened the bag and located a Smith and Wesson .38 calibre revolver, along with 26 loose .38 calibre rounds. This was wrapped in a black cloth. A search of the firearm revealed it to be loaded with 6 unfired rounds, as well as having the identifying serial number ground off.
The offender was placed under arrest and cautioned. He was conveyed to Fairfield Police Station where he participated in an electronically recorded interview. The offender…

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 Mirad

Details

AGLC: R v Mirad [2016] NSWDC 336
Case: [2016] NSWDC 336
Decision Date: 02 December 2016

CaseChat Overview and Summary

In the case of R v Mirad, the defendant was charged with possession of an unauthorised pistol, possession of ammunition, failure to keep a firearm safely, and using, supplying, acquiring, or possessing a defaced firearm. These charges arose under the Firearms Act 1996 (NSW). The dispute hinged on whether the statutory provisions were correctly applied and whether the sentencing was appropriate given the circumstances. The court had to determine the rationale behind section 7(1) of the Act and weigh various aggravating and mitigating factors in the sentencing process.

The primary legal issues before the court involved the interpretation and application of section 7(1) of the Firearms Act 1996 (NSW), which prohibits the possession of firearms that are not registered, defaced, or kept unsafely. The court had to consider the defendant's actions in light of these statutory provisions and whether the prosecution had proven the charges beyond reasonable doubt. Additionally, the court needed to evaluate the aggravating and mitigating factors to determine an appropriate sentence.

The court found that the defendant's actions clearly contravened the provisions of section 7(1) of the Firearms Act 1996 (NSW). It was determined that the defendant possessed an unauthorised pistol, ammunition, and failed to keep the firearm safely, with the firearm also being defaced. The court emphasised the importance of the statutory provisions in regulating firearms to ensure public safety. In assessing the sentence, the court considered the defendant's previous convictions as an aggravating factor but also took into account the likelihood of reoffending as a mitigating factor. Ultimately, the court decided that an overall term of imprisonment of three years was appropriate, with a non-parole period of two years.

The court ordered that the offender be convicted and sentenced to a total term of imprisonment of three years. The non-parole period to be served was set at two years, commencing from 24 March 2016. The non-parole period was to expire on 23 March 2018, after which the offender would be released on parole to serve an additional term of one year imprisonment from 24 March 2018 to 23 March 2019 under the supervision of Community Corrections.

Orders

Orders of the court

(1) The offender is convicted and sentenced to an overall term of imprisonment of three years.

(2) The non-parole period to be served is two years, to commence from 24 March 2016;

(3) The non-parole period expires on 23 March 2018, and thereafter, the offender is to be released on parole to serve an additional term of one year imprisonment from 24 March 2018 to 23 March 2019 under supervision of Community Corrections.

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 Mirad [2016] NSWDC 336
Hearing dates:	21 November 2016
Date of orders:	02 December 2016
Decision date:	02 December 2016
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	(1) The offender is convicted and sentenced to an overall term of imprisonment of three years. (2) The non-parole period to be served is two years, to commence from 24 March 2016; (3) The non-parole period expires on 23 March 2018, and thereafter, the offender is to be released on parole to serve an additional term of one year imprisonment from 24 March 2018 to 23 March 2019 under supervision of Community Corrections.
Catchwords:	CRIMINAL LAW – possess unauthorised pistol - possess ammunition – not keep firearm safely – use, supply, acquire or possess defaced firearm – rationale behind s 7(1) of the Firearms Act 1996 (NSW) SENTENCE – aggravating factors – previous convictions – mitigating factors – likelihood of reoffending
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 32, 21A(2), 21A(3), 44(2), 47(3) Crimes Act 1900 (NSW) s 61 Firearms Act 1996 (NSW) s 7(1)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 R v Mirad [2004] NSWSC 701 R v Najem [2008] NSWCCA 32 Thalari v R [2009] NSWCCA 170
Category:	Sentence
Parties:	Regina (Crown) Mr Sandro Mirad (Offender)
Representation:	Counsel: Mr G Harrison (Offender) Solicitors: Ms C Kirkpatrick (Solicitor for the Office of the Director of Public Prosecutions)
File Number(s):	2016/91784
Publication restriction:	Nil