R v Pincham - [2000] NSWCCA 478

CITATION: R v PINCHAM [2000] NSWCCA 478

FILE NUMBER(S): CCA 60711/99

HEARING DATE(S): 20/11/2000

JUDGMENT DATE:
20 November 2000

PARTIES :

REGINA v Paul John PINCHAM

JUDGMENT OF: Barr J at 1; Carruthers AJ at 17

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/31/0122; 98/31/0268; 98/31/0192

LOWER COURT JUDICIAL
OFFICER : Morgan DCJ

COUNSEL : Crown: PG Berman SC
Applicant: DN Stewart

SOLICITORS: Crown: SE O'Connor
Applicant: Ross Hill & Associates

CASES CITED:
R v Close (1992) 23 NSWLR 743
R v Deeble, Court of Criminal Appeal, 19.9.91, unrep

DECISION: Leave to appeal granted; appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60711/99

BARR J
CARRUTHERS AJ
Monday, 20 November 2000

REGINA v Paul John PINCHAM

JUDGMENT

1   BARR J: The applicant Paul John Pincham seeks leave to appeal against sentences imposed upon him in the District Court. On 11 November 1999 her Honour Judge Morgan convicted the applicant of manufacturing a prohibited drug, namely methylamphetamine, possessing a firearm, namely a .32 calibre revolver without authority, and of firing a firearm in a manner likely to endanger the safety of a certain person.
2   On the first count her Honour took into account nine further matters, namely the possession of .32 calibre bullets suitable for use with the revolver, possessing a rifle without a licence, possessing a prohibited drug, possessing a further firearm, possessing yet another firearm unlicensed, assault constituted by pointing a rifle at another person, supplying cannabis, possessing cannabis and possessing pseudoephedrine.
3   The applicant had spent a discontinuous period totalling about one year in custody, bail refused on these matters, and her Honour took that into account.
4   On the first count, and taking into account the nine additional matters I have summarised, her Honour sentenced the applicant to imprisonment for a fixed term of three years from 9 November 1999 to 8 November 2002. On the second count her Honour imposed a fixed concurrent term of imprisonment of one year. On the third count her Honour imposed imprisonment for three years, comprising a minimum term of one year three months and an additional term of one year nine months. The sentence was accumulated upon the fixed term imposed on the first count and the result was an overall sentence of six years, comprising a minimum term of four years three months and an additional term of one year nine months.
5   The first count was based upon the activity of the applicant between May 1997 and January 1999 of manufacturing amphetamines for the purpose of supply. In June 1997 police searched his house at a rural district some twenty kilometres from Narrabri and found indicia of amphetamine manufacture and supply: beakers, syringes, needles, documentary evidence of purchase of chemicals, electronic scales, resealable plastic bags and other equipment. They also found firearms. The applicant was charged with supplying amphetamines, with firearms offences and was released on bail.
6   On 8 February 1998 Mr Stephen Wilson and Ms Abigail Batton went to the applicant’s property.…

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 Pincham

Details

AGLC: R v Pincham [2000] NSWCCA 478
Case: [2000] NSWCCA 478
Decision Date: 20 November 2000

CaseChat Overview and Summary

In the case of Regina v Paul John Pincham, the applicant sought leave to appeal against sentences imposed by the District Court. The applicant was convicted of manufacturing a prohibited drug, possessing a firearm without authority, and firing a firearm in a manner likely to endanger the safety of a person. The legal issue in this case was whether the applicant's sentences should have been backdated to take into account the time he had spent in custody prior to sentencing. The applicant argued that the sentences should have been backdated to the date of his most recent period of custody, which was 26 January 1999. The Court of Criminal Appeal held that although sentences should ordinarily be backdated, there may be reasons why the ordinary practice should not be followed in any particular case. In this case, the Court held that any backdating would have entailed further adjustments to the sentence in order to avoid a resulting sentence that was too short or too long. The Court held that the total effective sentence, taking into account pre-sentence custody, achieved what the District Court expressly intended to achieve and was appropriate to the serious criminality for which the applicant had to be sentenced. The Court granted leave to appeal but dismissed the appeal.

Orders