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R v Tanti

R v Tanti

Case [2021] NSWDC 381 5 August 2021

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District Court

New South Wales

Medium Neutral Citation: R v Tanti [2021] NSWDC 381
Hearing dates: 5 August 2021
Date of orders: 5 August 2021
Decision date: 05 August 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 4 years 6 months with a non-parole period of 2 years 6 months.

Catchwords:
CRIME - Possess Shortened Firearm - Possess Defaced Firearm - Possess Loaded Firearm in Public Place - Supply prohibited drug - Drive whilst disqualified - Negligent driving
SENTENCING - Relevant factors on sentence - early plea - multiple offences - Forms 1 - s 166 summary matters - serving Local Court sentences - totality – application of Pearce v The Queen – long term drug addict – long record - escalation of seriousness of offending - some recent insight into need for rehabilitation programmes - community support

Legislation Cited:
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Criminal ProcedureAct1986
Drug (Misuse and Trafficking) Act 1985
Firearms Act 1996

Cases Cited:
Attorney General’s Application No 1 (2002) 56 NSWLR 146
Cahyadi v Regina [2007] NSWCCA 1 (2007) 168 A Crim R 41
Do v R [2010] NSWCCA 182
El Jamal v R [2017] NSW CCA 243
Markarian v the Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Lachlan [2015] NSW CCA 178
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Thurgar (1990) 51 A Crim R 109
Tran v R [2010] NSWCCA 183

Texts Cited:
D. Wetherburn & S. Rahman, The Vanishing Criminal, MUP, 2021
Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR

Category: Sentence
Parties: Matthew Tanti (the offender)
Director of Public Prosecutions
Representation: Solicitors:
Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender)
Ms A Kerr (for Director of Public Prosecutions)

File Number(s): 2021/00018485

sentence

Introduction

In May 2020 Matthew Tanti was released to parole. It was not the first time he had been to gaol. He had served a number of short sentences since 2006. He was then 32. He had a wife and two children and skills as a roof tiler. Unfortunately he also had a long term methylamphetamine addiction. By September he was in trouble again. It appears he was using ½ gram a day. He was arrested and bailed for driving while disqualified on both the 5^th and 22^nd September 2020. In December 2020 he was arrested for goods in custody and drug possession offences. On 18 January 2021 he committed a break and enter offence.
On 21 January 2021 Tanti was driving a car south on the Princes Highway near Kembla Grange. The car he was driving belonged to a man police knew was disqualified from driving. Unsurprisingly…

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 Tanti

Details

AGLC: R v Tanti [2021] NSWDC 381
Case: [2021] NSWDC 381
Decision Date: 05 August 2021

CaseChat Overview and Summary

The case of R v Tanti involved an individual who was charged with multiple criminal offences. The defendant was found to be in possession of a shortened firearm, a firearm with its serial number defaced, and a loaded firearm in a public place. Additionally, he was charged with supplying a prohibited drug and driving while disqualified and in a negligent manner. The matter was heard in the NSW Supreme Court.

The legal issues that the court had to determine were primarily focused on sentencing. The court had to consider the principles of totality and proportionality in sentencing, taking into account the defendant's early plea, multiple offences, and the need for rehabilitation. The court also had to consider the defendant's long criminal history, his status as a long-term drug addict, and the escalation in the seriousness of his offending over time. Furthermore, the court had to balance these factors against the need for general and specific deterrence, as well as the protection of the community.

The court found that the defendant's criminal history was extensive, with a pattern of escalating offending culminating in the current charges. However, the court also noted that the defendant had recently shown some insight into the need for rehabilitation programmes and had some community support. The court considered the defendant's early plea and the fact that he had been serving sentences in the Local Court, which would be taken into account in the calculation of the aggregate sentence. The court ultimately decided to impose an aggregate sentence of 4 years and 6 months, with a non-parole period of 2 years and 6 months. The court found that this sentence was proportionate to the seriousness of the offending and took into account all relevant factors.

The court ordered that the defendant be sentenced to a total of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months. The court noted that this sentence was arrived at by considering all relevant factors, including the defendant's early plea, multiple offences, and the need for rehabilitation. The court also noted that the sentence was proportionate to the seriousness of the offending and would provide general and specific deterrence, as well as protection for the community.

Orders

Orders of the court

Aggregate sentence of 4 years 6 months with a non-parole period of 2 years 6 months.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v Tanti [2021] NSWDC 381

Most Recent Citation

R v Gordon [2024] NSWDC 519

Cases citing this decision · 1 of 1 shown

R v Gordon
[2024] NSWDC 519 Para 75

…In R v Tanti [2021] NSWDC 381, the Offender held the gun for a friend but did not know why. There being no legitimate reason for possession of a shortened firearm, it was contemplated that the friend’s purpose was criminal. The serial number had been removed from the weapon, and it was working and readily available…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

Do v R
[2010] NSWCCA 182 Para 14

…are liable to be a source of great danger or damage. Their possession creates a high risk to the safety of the public and arresting officers: Do v R [2010] NSWCCA 182; Tran v R [2010] NSWCCA 183.…
Tran v R
[2010] NSWCCA 183 Para 14

…f great danger or damage. Their possession creates a high risk to the safety of the public and arresting officers: Do v R [2010] NSWCCA 182; Tran v R [2010] NSWCCA 183.…
Cahyadi v R
[2007] NSWCCA 1 Para 29

…ncing apply to each and those purposes overlap. The sentences should be partly cumulative but some require considerable concurrence: Cahyadi v Regina [2007] NSWCCA 1 (2007) 168 A Crim R 41. In particular I note that, the three firearms matters have a common element - the shotgun. To give proper effect to Pearce v…
Markarian v The Queen
[2005] HCA 25 Para 21

…The matters on the Form 1 operate to increase the sentence that would otherwise be appropriate for the offence for sentence: Markarian v the Queen (2005) 228 CLR 357. The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No 1 (20…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 21

…The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No 1 (2002) 56 NSWLR 146 at [39] – [42]. However, where a matter was also a circumstances aggravating the objective seriousness of a matter for sentence that factor should not…
R v Simpson
[2001] NSWCCA 534 Para 43

…ligible for release. That minimum period must also properly reflect the seriousness of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Regina v Simpson
[1999] NSWCCA 367 Para 43

…. That minimum period must also properly reflect the seriousness of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
R v Henry
[1999] NSWCA 111 Para 36

…igin or extent of the addiction, and any attempts to overcome it, impact upon the offender’s prospects of recidivism or rehabilitation: Henry v R (1999) 46 NSWLR 346 .…
Pearce v The Queen
[1998] HCA 57 Para 24

…t on the 21 January 2021. This means more than one offence must be charged and punishment exacted for each. As was made clear in Pearce v The Queen (1998) 194 CLR 610 at [40]:…
Postiglione v the Queen
[1997] HCA 26

…243 Markarian v the Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Lachlan [2015] NSW CCA 178 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Thurgar (1990) 51 A Crim R 109 Tran v R [2010] NSWCCA 183 Texts Cited: D. Weth…
Mill v The Queen
[1988] HCA 70 Para 27

…structure the sentences such that the aggregate sentence and time in custody is just and appropriate to the totality of his crimes : Mill v The Queen (1988) 166 CLR 59 at 62-63. This includes the sentences imposed by the Local Court.…

Legislation cited in this decision · 7

Confiscation of Proceeds of Crime Act 1989 (NSW)
1 mention (from Para 50)
Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 31)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 6)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 7)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 4)
Firearms Act 1996 (TAS)
1 mention (from Para 1)

Medium Neutral Citation:	R v Tanti [2021] NSWDC 381
Hearing dates:	5 August 2021
Date of orders:	5 August 2021
Decision date:	05 August 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 4 years 6 months with a non-parole period of 2 years 6 months.
Catchwords:	CRIME - Possess Shortened Firearm - Possess Defaced Firearm - Possess Loaded Firearm in Public Place - Supply prohibited drug - Drive whilst disqualified - Negligent driving SENTENCING - Relevant factors on sentence - early plea - multiple offences - Forms 1 - s 166 summary matters - serving Local Court sentences - totality – application of Pearce v The Queen – long term drug addict – long record - escalation of seriousness of offending - some recent insight into need for rehabilitation programmes - community support
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Criminal ProcedureAct1986 Drug (Misuse and Trafficking) Act 1985 Firearms Act 1996
Cases Cited:	Attorney General’s Application No 1 (2002) 56 NSWLR 146 Cahyadi v Regina [2007] NSWCCA 1 (2007) 168 A Crim R 41 Do v R [2010] NSWCCA 182 El Jamal v R [2017] NSW CCA 243 Markarian v the Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Lachlan [2015] NSW CCA 178 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Thurgar (1990) 51 A Crim R 109 Tran v R [2010] NSWCCA 183
Texts Cited:	D. Wetherburn & S. Rahman, The Vanishing Criminal, MUP, 2021 Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR
Category:	Sentence
Parties:	Matthew Tanti (the offender) Director of Public Prosecutions
Representation:	Solicitors: Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender) Ms A Kerr (for Director of Public Prosecutions)
File Number(s):	2021/00018485