R v Pound - [2013] NSWDC 336

District Court

New South Wales

Medium Neutral Citation: R v Pound [2013] NSWDC 336
Hearing dates: 1 & 6/11/2013
Decision date: 13 November 2013
Jurisdiction: Criminal
Before: Judge Norrish QC
Decision:
Total sentence of 7 years 6 months imprisonment with a non-parole period of 5 years.

Catchwords: CRIMINAL – Sentence, inflict grievous bodily harm, carry a firearm with disregard for safety, early plea, standard non-parole period, health of prisoner, objective seriousness, matters on a Form 1.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Cases Cited: Bailey v The Director of Public Prosecutions [1988] HCA 19
R v Engert (1995) 84 A Crim R 67
Markarian v The Queen (2005) 228 CLR 537
Muldrock v The Queen (2011) 244 CLR 120
Pearce v The Queen (1998) 194 CLR 610
R v Westerman [2004] NSWCCA 161
R v Badanjak [2004] NSWCCA 395
R v Vachalec (1981) 1 NSWLR 351
The Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
The Queen v Smith [1987] 44 SASR 587
R v Thomson and Houlton [2000] NSWCCA 309
Veen (No 2) v The Queen (1988) 164 CLR 465
R v Channells (Court of Criminal Appeal (NSW), 30 September 1997, unrep)
Category: Sentence
Parties: Director of Public Prosecutions
Andrew John Pound - Offender
Representation: Solicitors:
Director of Public Prosecutions
Saba El-Hanania Lawyers - Offender

File Number(s): 2012/334852

SENTENCE

HIS HONOUR: Andrew John Pound appears today for sentence in relation to two offences, to which he pleaded guilty at the Local Court and continued his pleas of guilty in this Court.
The offences to which he pleaded guilty at the Local Court and in this Court are, firstly, that he, on 20 October 2012 at Newtown did recklessly inflict grievous bodily harm upon Daniel Marino. That offence is referred to in the Court Attendance Notice as a Sequence 1 offence and will be shortly referred to from time to time as the “recklessly inflict grievous bodily harm” offence.
The second offence to which he pleaded guilty is an offence of carrying a firearm, to wit a small calibre handgun, with disregard for the safety of himself and Daniel Marino at 79/1-17 Alice Street, Newtown. This offence is Sequence 2 of the Court Attendance Notices.
The offence of recklessly inflict grievous bodily harm contrary to s 35(2) Crimes Act 1900 carries a maximum penalty of 10 years imprisonment. It has a standard non-parole period of four years imprisonment.
The offence of carrying a firearm with disregard for safety contrary to s 93G(1)(c) Crimes Act carries a maximum penalty of 10 years imprisonment. I am informed by the Crown it has no standard non-parole period.
I am also required to take into account the offence on a Form 1 of cultivating a prohibited plant on 20 October 2012 at Newtown, the prohibited plant being cannabis. That matter on the Form 1 involves an offence brought contrary to s 23(1)(a) Drug Misuse and Trafficking Act 1985. I will refer…

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 Pound

Details

AGLC: R v Pound [2013] NSWDC 336
Case: [2013] NSWDC 336
Decision Date: 13 November 2013

CaseChat Overview and Summary

The defendant, Pound, was found guilty of inflicting grievous bodily harm, carrying a firearm with disregard for safety, and other related charges. The case was heard in the Supreme Court of Victoria. The primary issue before the court was the appropriate sentencing for the defendant's crimes, considering the objective seriousness of the offences, Pound's early guilty plea, his health conditions, and other mitigating factors presented on a Form 1.

The court needed to balance the need for punishment and deterrence with Pound's early guilty plea, his health issues, and other personal circumstances. The sentencing principles mandated by the Sentencing Act 1991 (Vic) required the court to consider the objective seriousness of the offences, the culpability of the offender, and any mitigating factors. The court also had to determine the standard non-parole period and then decide if any reduction was warranted based on the mitigating factors presented.

The court found that the crimes committed were of significant objective seriousness due to the nature of the harm inflicted and the use of a firearm. However, it acknowledged Pound's early guilty plea and his health conditions as mitigating factors. After considering all the relevant factors, the court determined a total sentence of seven years and six months imprisonment, with a non-parole period of five years. This sentence balanced the need for punishment and deterrence while also taking into account the mitigating factors presented.

The court ordered that Pound be imprisoned for a total of seven years and six months, with a non-parole period of five years.

Orders

Orders of the court

Total sentence of 7 years 6 months imprisonment with a non-parole period of 5 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 Pound [2013] NSWDC 336
Hearing dates:	1 & 6/11/2013
Decision date:	13 November 2013
Jurisdiction:	Criminal
Before:	Judge Norrish QC
Decision:	Total sentence of 7 years 6 months imprisonment with a non-parole period of 5 years.
Catchwords:	CRIMINAL – Sentence, inflict grievous bodily harm, carry a firearm with disregard for safety, early plea, standard non-parole period, health of prisoner, objective seriousness, matters on a Form 1.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Drug Misuse and Trafficking Act 1985
Cases Cited:	Bailey v The Director of Public Prosecutions [1988] HCA 19 R v Engert (1995) 84 A Crim R 67 Markarian v The Queen (2005) 228 CLR 537 Muldrock v The Queen (2011) 244 CLR 120 Pearce v The Queen (1998) 194 CLR 610 R v Westerman [2004] NSWCCA 161 R v Badanjak [2004] NSWCCA 395 R v Vachalec (1981) 1 NSWLR 351 The Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 The Queen v Smith [1987] 44 SASR 587 R v Thomson and Houlton [2000] NSWCCA 309 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Channells (Court of Criminal Appeal (NSW), 30 September 1997, unrep)
Category:	Sentence
Parties:	Director of Public Prosecutions Andrew John Pound - Offender
Representation:	Solicitors: Director of Public Prosecutions Saba El-Hanania Lawyers - Offender
File Number(s):	2012/334852