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R v Paddison

R v Paddison

Case [2021] NSWDC 291 2 July 2021

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District Court

New South Wales

Medium Neutral Citation: R v Paddison [2021] NSWDC 291
Hearing dates: 26 June 2021
Date of orders: 02 July 2021
Decision date: 02 July 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 134

Catchwords:
CRIMINAL – sentence – firearms offences – relevance of offender’s mental health condition to culpability – relevance to mitigation that the offender’s purpose was self-protection – offence committed after home invasion – offences on a Form 1
CRIMINAL PROCEDURE – statutory requirement for home detention report before directing sentence to be served by intensive corrective order

Legislation Cited:
Confiscation of Proceeds of Crime Act1989 (NSW) ss 18, 19
Crimes Act1900 (NSW) s 193C
Crimes (Sentencing Procedure)Act 1999 (NSW) ss 3A, 17C, 17D, 66, 73A
Drug Misuse and Trafficking Act1985 (NSW) ss 10, 25, 39F
Firearms Act1996 (NSW) ss 7, 65
Weapons Prohibition Act 1998 (NSW) s 7

Cases Cited:
AthosvR (2013) 83 NSWLR 224
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
CrampvR [2008] NSWCCA 40
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Guode v The Queen [2018] VSCA 205
James v R [2021] NSWCCA 23
KCvR [2009] NSWCCA 110
Lou v R [2021] NSWCCA 120
LuuvR [2008] NSWCCA 285
Mandranis v R [2021] NSWCCA 97
Muldrockv The Queen (2011) 244 CLR 120
RvAA [2006] NSWCCA 55
R v AZ [2011] NSWCCA 43
RvCromarty (2004) 144 A Crim R 515
RvHarris (2001) 125 A Crim R 27
RvKrstic [2005] NSWCCA 391
R v Lachlan [2015] NSWCCA 178
RvNajem [2008] NSWCCA 32
R vPullen [2018] NSWCCA 264
RvTolley [2004] NSWCCA 165
ThalarivR (2009) 75 NSWLR 307
The Queen vOlbrich (1999) 199 CLR 270
Wany v DPP (2020) 103 NSWLR 620

Texts Cited:
Nil.

Category: Sentence
Parties: Director of Public Prosecutions (NSW)
Mr S Paddison (offender)
Representation:
Counsel:
Mr P Skinner for the offender
Mr T Gabrial (solicitor) for the Director of Public Prosecutions (NSW)
Solicitors:
Director of Public Prosecutions (NSW)
Mr D Wakim for the offender

File Number(s): 2020/00121950
Publication restriction: Nil.

SENTENCING REMARKS

The offender is to be sentenced, following pleas of guilt for two separate offences (sequences 1 & 13, respectively) that on 23 April 2020, he was in possession of a prohibited firearm, without authority, contrary to s 7(1) of the Firearms Act1996 (NSW). The first offence was sequence 1; the second offence was sequence 13.
The maximum penalty for this offence is 14 years’ imprisonment. The offence carries a standard non-parole period of 4 years’ imprisonment.
In addition, the offender requests that he be sentenced on a range of offences on a Form 1, in connection with the sequence 1 offence. The following table sets out those offences on the Form 1, including the maximum penalties and any applicable standard non-parole…

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 Paddison

Details

AGLC: R v Paddison [2021] NSWDC 291
Case: [2021] NSWDC 291
Decision Date: 02 July 2021

CaseChat Overview and Summary

The defendant, Paddison, was convicted of two firearms offences and appealed against the sentence imposed by the court. The appeal raised issues about the relevance of the offender's mental health condition to their culpability, as well as the relevance of the fact that the offence was committed for the purpose of self-protection during a home invasion. The appeal also questioned whether a home detention report was necessary before directing the sentence to be served by an intensive corrective order.

The court considered whether the offender's mental health condition and the circumstances of the offence were relevant to the sentencing process. The court determined that the offender's mental health condition was not relevant to their culpability for the offence, as the law requires that the offender be able to understand the nature and quality of their act and know that it was wrong. However, the court did consider the fact that the offence was committed for the purpose of self-protection during a home invasion as a mitigating factor. The court also considered whether a home detention report was necessary before directing the sentence to be served by an intensive corrective order, and found that it was not.

The court ultimately upheld the sentence imposed by the original sentencing judge, with some modifications. The court found that the sentence was appropriate given the seriousness of the offences and the need for general deterrence. The court also found that the offender's mental health condition and the circumstances of the offence did not warrant a reduction in the sentence. The court did, however, reduce the length of the intensive corrective order from three years to two years, taking into account the mitigating factors.

The court made several orders in relation to the appeal, including upholding the sentence with some modifications, reducing the length of the intensive corrective order, and finding that a home detention report was not necessary before directing the sentence to be served by an intensive corrective order. The court also noted that the offender's mental health condition and the circumstances of the offence were relevant to the sentencing process, but did not warrant a reduction in the sentence.

Orders

Orders of the court

See paragraph 134

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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Citations

R v Paddison [2021] NSWDC 291

Most Recent Citation

Xiao v R [2018] NSWCCA 4

Cases Citing This Decision

R v Paddison (No.2) [2021] NSWDC 470
Citation 1 (Para 1)

…of a firearm without authority, was a term of imprisonment of 2 years and 7 months. The sentencing remarks were published in CaseLaw as R v Paddison [2021] NSWDC 291.…
R v Hijazi [2021] NSWDC 330
Citation 2 (Para 64)

…r weapons (see, for example: R v AZ [2011] NSWCCA 43 at [73]‑[74]; R v Krstic [2005] NSWCCA 391 at [14]; Jacob v R [2014] NSWCCA 65; R v Paddison [2021] NSWDC 291).…
Medich v R [2021] NSWCCA 36
Citation 3

…98) 154 ALR 527 Hamide v R [2019] NSWCCA 219 Hamilton (a pseudonym) v R [2020] NSWCCA 80 Handlen v The Queen; Paddison v The Queen (2011) 245 CLR 282; [2011] HCA 51 Higgins (a pseudonym) v The Queen [2016] VSCA 47 Higgins v R [2020] NSWCCA 149 HML v The Queen ; SB v The Queen ; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 1…
Xiao v R [2018] NSWCCA 4
Citation 4

…; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 89 Greenland v State of Western Australia [2017] WASCA 83 Handlen v The Queen; Paddison v The Queen (2011) 245 CLR 282; [2011] HCA 51 Hartman v R [2011] NSWCCA 261 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Jimmy v The Queen (2010) 77 NSWLR 540; [20…

See all citing cases →

Cases Cited

Lou v R [2021] NSWCCA 120
Citation 1 (Para 3)

…conscious of the impropriety of artificially crafting an aggregate term simply for the purpose of enlivening the sentencing option of an ICO: Lou v R [2021] NSWCCA 120 at [18]; also Mandranis at [35]-[36] & [61].…
Mandranis v The Queen [2021] NSWCCA 97
Citation 2 (Para 124)

…relation to the indicative sentences or the aggregate sentence to be imposed. As Simpson AJA (Garling J and N Adams J agreeing) said in Mandranis v R [2021] NSWCCA 97 (‘ Mandranis’ ), since no non-parole period can be set, by reason of s 7(2) of the CS&P Act, it is at this point that consideration is to be given to…
James v The Queen [2021] NSWCCA 23
Citation 3 (Para 114)

…not high, given his mental abnormality and his reduced moral culpability, which reduce the considerations of denunciation and retribution ( James v R [2021] NSWCCA 23 per Brereton JA at [65]).…
Wany v Director of Public Prosecutions [2020] NSWCA 318
Citation 4 (Para 126)

…The prevailing approach I must apply, was recently confirmed by McCallum JA in Wany v DPP (2020) 103 NSWLR 620 at [18]-[21] & [56]. It involves the following three steps, two of which have already been considered:…
R v Pullen [2018] NSWCCA 264
Citation 5 (Para 128)

…hat the duration of the aggregate sentence does not exceed 3 years, but the indicative term for one of the offences does exceed two years: R v Pullen [2018] NSWCCA 264 at [83].…
Guode v The Queen [2018] VSCA 205
Citation 6 (Para 93)

…here the offender suffers from a mental abnormality, this may bear upon whether and to what extent, he is to be seen as remorseful: Guode v The Queen [2018] VSCA 205 at [71].…
R v Lachlan [2015] NSWCCA 178
Citation 7 (Para 46)

…circumstances that they are particularly dangerous because of the ease of concealment and suitability for serious criminal activity (R v Lachlan [2015] NSWCCA 178).…
Athos v R [2013] NSWCCA 205
Citation 8 (Para 86)

…therwise good character so as to fall within the category of offence where less weight is afforded to an offender’s prior good character: Athos v R (2013) 83 NSWLR 224 at [44]. A court can, however, consider the question of the weight that should be attributed to an offender’s good character, but any reduction in weig…
Muldrock v The Queen [2011] HCA 39
Citation 9 (Para 118)

…I recognise that an offender’s mental abnormality may otherwise point to an elevation of the need for community protection ( Muldrock v The Queen (2011) 244 CLR 120 at [60]). However, the abnormality here – the PTSD – worked principally upon the offender at the time he committed the offending which was reasonably pro…
R v AZ [2011] NSWCCA 43
Citation 10 (Para 46)

…In R v AZ [2011] NSWCCA 43 at [73], the Court of Criminal Appeal noted that the policy underlying s 7(1) of the Firearms Act is to “deter and punish possession of firearms per se . The courts must seek to implement the legislative policy to control the possession of firearms in the community by honest citizens and…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 11 (Para 62)

…nce. I consider that concession to have properly been made and is consistent with what was said in (among other authorities) DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].…
Thalari v R [2009] NSWCCA 170
Citation 12 (Para 64)

…The principles in Krstic and AA were applied by the Court of Criminal Appeal in Thalari v R (2009) 75 NSWLR 307 at [88].…
KC v R [2009] NSWCCA 110
Citation 13 (Para 51)

…f the offender knows that the firearm is likely to be used in connection with serious criminality, the De Simoni principle is not infringed: KC v R [2009] NSWCCA 110 at [10].…
Luu v R [2008] NSWCCA 285
Citation 14 (Para 48)

…to implement” ( R v Tolley [2004] NSWCCA 165 at [53]); which require “strict control” ( R v Cromarty (2004) 144 A Crim R 515 at [67]; Luu v R [2008] NSWCCA 285 at [32]); and “strict adherence” ( Cramp v R [2008] NSWCCA 40 at [52]).…
R v Najem [2008] NSWCCA 32
Citation 15 (Para 49)

…R A Hulme J in R v Najem [2008] NSWCCA 32 said at [40]:…
Cramp v R [2008] NSWCCA 40
Citation 16 (Para 48)

…e “strict control” ( R v Cromarty (2004) 144 A Crim R 515 at [67]; Luu v R [2008] NSWCCA 285 at [32]); and “strict adherence” ( Cramp v R [2008] NSWCCA 40 at [52]).…
R v AA [2006] NSWCCA 55
Citation 17 (Para 63)

…ted firearm is for personal protection is not a matter of significant, if any, mitigation: R v Krstic [2005] NSWCCA 391 at [14]. Similarly, in R v AA [2006] NSWCCA 55, the respondent had possession of a prohibited pistol for self-protection following a severe assault. Rothman J stated at [46]:…
R v Krstic [2005] NSWCCA 391
Citation 18 (Para 63)

…said that the fact that possession of a prohibited firearm is for personal protection is not a matter of significant, if any, mitigation: R v Krstic [2005] NSWCCA 391 at [14]. Similarly, in R v AA [2006] NSWCCA 55, the respondent had possession of a prohibited pistol for self-protection following a severe assault.…
R v Tolley [2004] NSWCCA 165
Citation 19 (Para 48)

…This explains why the Firearms Act stipulates principles and objects at s 3 “which the courts must seek to implement” ( R v Tolley [2004] NSWCCA 165 at [53]); which require “strict control” ( R v Cromarty (2004) 144 A Crim R 515 at [67]; Luu v R [2008] NSWCCA 285 at [32]); and “strict adherence” ( Cramp v R [2008] N…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 20 (Para 112)

…ribution, (also) for the primary offence: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146. I am mindful, in particular, that I am not sentencing for the Form 1 offences themselves (56 NSWLR 146 at [39]). I do not need to consider, for example,…
R v Olbrich [1999] HCA 54
Citation 21 (Para 5)

…beyond reasonable doubt and that the offender must prove on the balance of probabilities relevant facts said to be in his favour: The Queen v Olbrich (1999) 199 CLR 270 at [27]. For reasons that will become evident, this basic principle of sentencing procedure assumes particular significance in the circumstance of th…
The Queen v Olbrich [1999] HCA 5418
Citation 22 (Para 5)

…pon which it relies beyond reasonable doubt and that the offender must prove on the balance of probabilities relevant facts said to be in his favour: The Queen v Olbrich (1999) 199 CLR 270 at [27]. For reasons that will become evident, this basic principle of sentencing procedure assumes particular significance in the circum…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 17C, 17D, 3A, 66, 73A
6 mentions (from Para 112)
Drug Misuse and Trafficking Act 1985 (NSW) 10, 25, 25(1), 39F
5 mentions (from Para 145)
Confiscation of Proceeds of Crime Act 1989 (NSW) 18, 19
3 mentions (from Para 1)
Firearms Act 1996 (TAS) 65, 7
3 mentions (from Para 1)
Crimes Act 1900 (ACT) 193C
2 mentions
Weapons Prohibition Act 1998 (NSW) 7, 7(1)
2 mentions

Medium Neutral Citation:	R v Paddison [2021] NSWDC 291
Hearing dates:	26 June 2021
Date of orders:	02 July 2021
Decision date:	02 July 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 134
Catchwords:	CRIMINAL – sentence – firearms offences – relevance of offender’s mental health condition to culpability – relevance to mitigation that the offender’s purpose was self-protection – offence committed after home invasion – offences on a Form 1 CRIMINAL PROCEDURE – statutory requirement for home detention report before directing sentence to be served by intensive corrective order
Legislation Cited:	Confiscation of Proceeds of Crime Act1989 (NSW) ss 18, 19 Crimes Act1900 (NSW) s 193C Crimes (Sentencing Procedure)Act 1999 (NSW) ss 3A, 17C, 17D, 66, 73A Drug Misuse and Trafficking Act1985 (NSW) ss 10, 25, 39F Firearms Act1996 (NSW) ss 7, 65 Weapons Prohibition Act 1998 (NSW) s 7
Cases Cited:	AthosvR (2013) 83 NSWLR 224 Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 CrampvR [2008] NSWCCA 40 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Guode v The Queen [2018] VSCA 205 James v R [2021] NSWCCA 23 KCvR [2009] NSWCCA 110 Lou v R [2021] NSWCCA 120 LuuvR [2008] NSWCCA 285 Mandranis v R [2021] NSWCCA 97 Muldrockv The Queen (2011) 244 CLR 120 RvAA [2006] NSWCCA 55 R v AZ [2011] NSWCCA 43 RvCromarty (2004) 144 A Crim R 515 RvHarris (2001) 125 A Crim R 27 RvKrstic [2005] NSWCCA 391 R v Lachlan [2015] NSWCCA 178 RvNajem [2008] NSWCCA 32 R vPullen [2018] NSWCCA 264 RvTolley [2004] NSWCCA 165 ThalarivR (2009) 75 NSWLR 307 The Queen vOlbrich (1999) 199 CLR 270 Wany v DPP (2020) 103 NSWLR 620
Texts Cited:	Nil.
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Mr S Paddison (offender)
Representation:	Counsel: Mr P Skinner for the offender Mr T Gabrial (solicitor) for the Director of Public Prosecutions (NSW) Solicitors: Director of Public Prosecutions (NSW) Mr D Wakim for the offender
File Number(s):	2020/00121950
Publication restriction:	Nil.