R v Phan

[2020] NSWDC 348

District Court

New South Wales

Medium Neutral Citation:

R v Phan [2020] NSWDC 348

Hearing dates:

2 April 2020; 8 April 2020

Decision date:

08 April 2020

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Indicative sentences of imprisonment:

SEQ 1: 18 months

SEQ 3 + Form 1 offences (SEQ 2 & 4): 3 years 6 months with NPP of 21 months

SEQ 5: 3 years

Aggregate sentence:

Special circumstances found – 1st time in custody, need for drug rehabilitation.

Sentenced to a term of imprisonment of 4 years comprising a NPP of 2 years to commence on 3 July 2019 and to expire on 2 July 2021, and a balance of term of 2 years to commence on 3 July 2021 and to expire on 2 July 2023.

I order the destruction of the firearm.

Catchwords:

CRIME – Sentence - possess unregistered firearm possess prohibited pistol - possess loaded firearm in a public place – Form 1 offences - possess ammunition without licence or permit - possess prohibited weapon, being a detachable box magazine – subjective matters – aggregate sentence

Legislation Cited:

Crimes Act 1900

Firearms Act 1996

Weapons Prohibition Act 1998

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Lamis v R [2016] NSWCCA 274

R v Thomson; R v Houlton (2000) 49 NSWLR 383

Sumrein v R [2019] NSWCCA 83

Thalari v R [2009] NSWCCA 170

Category:

Sentence

Parties:

Regina
Phan, Phillip

Representation:

Counsel:
Mr P Boulten SC

Solicitors:
Crown: Ms K McKenzie
Defence: Mr J Byrne, Mr E Rahme

File Number(s):

2019/00206661

Judgment

1. Philip Phan appears for sentence in respect of three offences, being possess unregistered firearm contrary to s 36(1) of the Firearms Act 1996. The maximum penalty provided is 14 years’ imprisonment and there is no relevant standard non-parole period.

2. The second offence is possess prohibited pistol contrary to s 7(1) of the Firearms Act. The maximum penalty is 14 years’ imprisonment and there is a relevant standard non-parole period of four years, although as this was a plea of guilty it is only relevant as a guidepost.

3. The third offence is possess loaded firearm in a public place contrary to s 93G(1)(a)(i) of the Crimes Act 1900. The maximum penalty is ten years’ imprisonment and there is no standard non-parole period.

4. There are two offences to be dealt with on a Form 1 when being sentenced in respect of the offence of possess prohibited pistol. They are possess ammunition without licence or permit contrary to s 65(3) of the Firearms Act, and possess prohibited weapon, being a detachable box magazine, contrary to s 7(1) of the Weapons Prohibition Act. In relation to the ammunition I note that there were 13 bullets or cartridges, however you might refer to them.

5. In respect of those offences on the Form 1, when dealt with separately, the offence concerning ammunition has a maximum sentence of a fine of 50 penalty units, and the possess prohibited weapon, a maximum sentence of 14…