R v Payne - [2014] NSWDC 264

District Court

New South Wales

Medium Neutral Citation: R v Payne [2014] NSWDC 264
Decision date: 06 November 2014
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
For the offence of unlawfully selling three or more firearms within a period of 12 months, a sentence of 4 years in full time custody. Non-parole period of 2 years.

Catchwords: CRIMINAL LAW – sentence – particular offence – unlawfully selling three or more firearms within a period of 12 months – acting as an agent for supplier - undercover operative – nature and circumstances of offender – motivated by financial gain - desire to be accepted by supplier - functionally illiterate – substance use disorder – post-traumatic stress disorder – acquired head injury - supportive family – prior criminal record – institutional misconduct - report of forensic psychiatrist – proposed treatment plan – opined good prospects of being successfully rehabilitated – plea of guilty at earliest opportunity – 25% discount – relevance of standard non-parole period - special circumstances for adjusting ratio between head sentence and non-parole period – first time in adult custody – need for structured supervision for rehabilitation on release – limited opportunities for employment in prison – significant reduction - emphasis placed on specific deterrence for this offender
Legislation Cited: Firearms Act 1996, s 51B(1)
Cases Cited: R v Howard [2004] NSWCCA 348
R v Mack [2009] NSWCCA 216
R v Parkinson [2010] NSWCCA 89
Category: Sentence
Parties: Regina (Crown)
Jack Mervyn James Payne (offender)
Representation:
Counsel:
B Bickford (offender)
Solicitors:
NSW Office of the Director of Public Prosecutions (Crown)

File Number(s): 2014/00091775

Judgment

I am sentencing a young man for a very serious crime. He is still only 25. His counsel Mr B Bickford, correctly summarised his client’s position in the following terms -

“Mr Payne is a disabled drug addict with a sad personal history. His motivation for this offence was driven by addiction and an obsession with wanting to fit in.”

The crime that Jack Mervyn James Payne has been charged with is unlawfully selling three or more firearms within a period of 12 months. It is a very serious offence. One can tell that because Parliament, in enacting the offence in s 51B(1) of the Firearms Act 1996, fixed a maximum penalty of 20 years to the crime and a standard non-parole period of 10 years.
Mr Payne pleaded guilty to the offence at what Mr Fitzhardinge, who appears for the Director of Public Prosecutions, agreed is the earliest opportunity and in due course he will receive a 25 per cent discount from the sentence I would otherwise impose upon him. That is because he has assisted the criminal justice system in a number of practical ways, by avoiding the need for a trial so that other matters can be heard.
I should say something about the crime which he committed. It is summarised in exhibit A, which is an agreed statement of facts. The crime comprised two sales of firearms by Mr Payne…

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 Payne

Details

AGLC: R v Payne [2014] NSWDC 264
Case: [2014] NSWDC 264
Decision Date: 06 November 2014

CaseChat Overview and Summary

The accused, Payne, was convicted of unlawfully selling three or more firearms within a period of 12 months. The case was heard by the Supreme Court of Victoria. Payne, acting as an agent for a supplier, sold firearms to an undercover operative. The central issue for the court was to determine an appropriate sentence, considering Payne's personal circumstances and the principles of sentencing.

The court had to assess the gravity of the offence and the nature of Payne's involvement, while also taking into account his personal background. Factors such as his motivation, influenced by financial gain and a desire for acceptance, were considered. The court also examined Payne's functional illiteracy, substance use disorder, post-traumatic stress disorder, and an acquired head injury. Additionally, the court reviewed his supportive family situation, prior criminal record, institutional misconduct, and a forensic psychiatrist's report, which outlined a proposed treatment plan and opined on good prospects of rehabilitation. Payne's plea of guilty at the earliest opportunity was also a mitigating factor.

The court determined that while the offence was serious, the standard non-parole period was not entirely appropriate due to special circumstances. Payne's unique personal situation warranted a significant reduction in the sentence to allow for structured supervision and rehabilitation upon release. The court emphasised the need for specific deterrence for this offender. Ultimately, the court sentenced Payne to four years in full-time custody, with a non-parole period of two years.

Orders

Orders of the court

For the offence of unlawfully selling three or more firearms within a period of 12 months, a sentence of 4 years in full time custody. Non-parole period of 2 years.

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 Payne [2014] NSWDC 264
Decision date:	06 November 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offence of unlawfully selling three or more firearms within a period of 12 months, a sentence of 4 years in full time custody. Non-parole period of 2 years.
Catchwords:	CRIMINAL LAW – sentence – particular offence – unlawfully selling three or more firearms within a period of 12 months – acting as an agent for supplier - undercover operative – nature and circumstances of offender – motivated by financial gain - desire to be accepted by supplier - functionally illiterate – substance use disorder – post-traumatic stress disorder – acquired head injury - supportive family – prior criminal record – institutional misconduct - report of forensic psychiatrist – proposed treatment plan – opined good prospects of being successfully rehabilitated – plea of guilty at earliest opportunity – 25% discount – relevance of standard non-parole period - special circumstances for adjusting ratio between head sentence and non-parole period – first time in adult custody – need for structured supervision for rehabilitation on release – limited opportunities for employment in prison – significant reduction - emphasis placed on specific deterrence for this offender
Legislation Cited:	Firearms Act 1996, s 51B(1)
Cases Cited:	R v Howard [2004] NSWCCA 348 R v Mack [2009] NSWCCA 216 R v Parkinson [2010] NSWCCA 89
Category:	Sentence
Parties:	Regina (Crown) Jack Mervyn James Payne (offender)
Representation:	Counsel: B Bickford (offender) Solicitors: NSW Office of the Director of Public Prosecutions (Crown)
File Number(s):	2014/00091775