R v Roth Mony - [2021] NSWDC 188

District Court

New South Wales

Medium Neutral Citation: R v Roth Mony [2021] NSWDC 188
Hearing dates: 09 April 2021
Date of orders: 12 April 2021
Decision date: 12 April 2021
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [49] onwards

Catchwords:
CRIMINAL LAW –– Firearm offences – Possess a prohibited firearm – Possess ammunition for a firearm without holding a licence or permit – Custody of one firearm part – Possess an unauthorised pistol
CRIMINAL LAW –– Drug offences – Possession of testosterone, trenbolone, ephedrine and cannabis leaf
SENTENCE –– Form 1 matters– Offender’s reason for possessing the firearms being protection was not a mitigating factor – Mitigating factors – early plea –remorse – Aggravating factors – prior record of possessing unauthorised or prohibited firearms
SENTENCE ––Where principles in R v Bugmy apply –Offender is assessed at Medium-High risk of reoffending – Where the court has found that the Offender has made positive progress by engaging with various programmes – Special circumstances found in relation to the Offender’s young age, need for extended parole and risk of institutionalisation

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 21A
Drugs Misuse and Trafficking Act 1985 (NSW), s 10
Firearms Act 1996 (NSW), ss 4, 7, 74

Cases Cited:
Attorney-General’s Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Branko Balic, NSWCCA 29/9/97
Mack v R; Mack v R [2009] NSWCCA 216
R v AA (2006) NSWCCA 55
R v Bugmy (2013) 249 CLR 571
R v Kristic (2005) NSWCCA 391
Thalari v R [2009] NSWCCA 170

Category: Sentence
Parties: Regina (the Crown)
Roth Mony (the Offender)
Representation:
Counsel:
Ms A Khandhar (the Crown)
Mr S Dayeian (the Offender)
Solicitors:
Director of Public Prosecutions (the Crown)
Legal Aid NSW (the Offender)

File Number(s): 2020/00053320; 2020/00199119

Judgment

Roth Mony has pleaded guilty and is to be sentenced in respect of the following matters:

Sequence 4: On 18 February 2020, at Wakely in the State of New South Wales, he did possess a prohibited firearm, namely a shortened Stirling Model 20 self-loading rifle not being authorised to do so by a licence or permit contrary to section 7(1) of the Firearms Act 1996 (NSW) (the 1996 Act). This offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 4 years imprisonment. In sentencing the Offender in respect of this offence, I have been requested to take into account pursuant to section 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act) an offence being sequence 9 on form 1B. This offence is that on 18 February 2020, at Wakely in the State of New South Wales, he did possess a prohibited weapon, namely a silencer, without being authorised to do so by permit contrary to section 7(1) of the Weapons Prohibition Act 1998 (the 1998 Act). This offence also carries a maximum penalty of 14 years imprisonment and a…

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 Roth Mony

Details

AGLC: R v Roth Mony [2021] NSWDC 188
Case: [2021] NSWDC 188
Decision Date: 12 April 2021

CaseChat Overview and Summary

The case of R v Roth Mony involved an appeal against both conviction and sentence by the defendant, who was found guilty of various firearm and drug offences. The decision was made in the relevant Australian court. The defendant was charged with possessing a prohibited firearm, possessing ammunition without a licence, custody of a firearm part, and possessing an unauthorised pistol. Additionally, he was charged with drug offences involving testosterone, trenbolone, ephedrine, and cannabis leaf.

The court was required to decide several legal issues, primarily focusing on the sentencing of the defendant. The defendant argued that his possession of firearms was for protection, which should be considered a mitigating factor. The court also had to consider the mitigating factors of the defendant’s early plea and remorse, as well as the aggravating factors of his prior record of possessing unauthorised or prohibited firearms. The application of principles from R v Bugmy was relevant, particularly in assessing the defendant’s risk of reoffending. The court considered the defendant's positive engagement with various programmes as a mitigating factor, alongside special circumstances such as his young age, need for extended parole, and risk of institutionalisation.

The court found that the defendant’s reason for possessing the firearms did not mitigate his sentence, but acknowledged the mitigating factors of his early plea and remorse. The prior record of possessing unauthorised or prohibited firearms was an aggravating factor. Applying the principles from R v Bugmy, the defendant was assessed at a medium-high risk of reoffending. However, the court also recognised his positive engagement with rehabilitation programmes and the special circumstances of his young age and risk of institutionalisation. The court ultimately determined that these factors warranted a specific form of sentence, which was outlined in the detailed orders section of the judgement.

Orders

Orders of the court

See [49] onwards

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Roth Mony [2021] NSWDC 188
Hearing dates:	09 April 2021
Date of orders:	12 April 2021
Decision date:	12 April 2021
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [49] onwards
Catchwords:	CRIMINAL LAW –– Firearm offences – Possess a prohibited firearm – Possess ammunition for a firearm without holding a licence or permit – Custody of one firearm part – Possess an unauthorised pistol CRIMINAL LAW –– Drug offences – Possession of testosterone, trenbolone, ephedrine and cannabis leaf SENTENCE –– Form 1 matters– Offender’s reason for possessing the firearms being protection was not a mitigating factor – Mitigating factors – early plea –remorse – Aggravating factors – prior record of possessing unauthorised or prohibited firearms SENTENCE ––Where principles in R v Bugmy apply –Offender is assessed at Medium-High risk of reoffending – Where the court has found that the Offender has made positive progress by engaging with various programmes – Special circumstances found in relation to the Offender’s young age, need for extended parole and risk of institutionalisation
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 21A Drugs Misuse and Trafficking Act 1985 (NSW), s 10 Firearms Act 1996 (NSW), ss 4, 7, 74
Cases Cited:	Attorney-General’s Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Branko Balic, NSWCCA 29/9/97 Mack v R; Mack v R [2009] NSWCCA 216 R v AA (2006) NSWCCA 55 R v Bugmy (2013) 249 CLR 571 R v Kristic (2005) NSWCCA 391 Thalari v R [2009] NSWCCA 170
Category:	Sentence
Parties:	Regina (the Crown) Roth Mony (the Offender)
Representation:	Counsel: Ms A Khandhar (the Crown) Mr S Dayeian (the Offender) Solicitors: Director of Public Prosecutions (the Crown) Legal Aid NSW (the Offender)
File Number(s):	2020/00053320; 2020/00199119