R v Tomkins, John - [2009] NSWDC 95

CITATION: R v Tomkins, John [2009] NSWDC 95

HEARING DATE(S): 09/03/2009 and 10/03/2009

JUDGMENT DATE:
16 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Discharged pursuant to s.10 Crimes (Sentencing Procedure) Act 1999 conditional upon entering into bonds to be of good behaviour.

CATCHWORDS: Criminal Law - Sentencing - Firearm offences- possessing four unregistetred firearms including prohibited firearm - regional NSW - one firearm unlawfully taken as consequence of insecure storaage - unsafe storage of ammunition - explanation for sawn-off barrell - objectives of firearm legislation - assessing objective criminality against purpose of Act - very strong subjective case

LEGISLATION CITED: Firearms Act 1996
Crimes (Sentencing Procedure) Act
Criminal Procedure Act

CASES CITED: R v Rushby (1977) NSWLR 597
R v Hayes [1984] 1 NSWLR 740
R v Cuthbert (1967) 2 NSWR 329
Regina v Cromarty (2004) 144 A Crim R 515 referred to
Regina v Brown (2006) NSWCCA 249 referred to
R v Paris [2001] NSWCCA 83
R v Piccin (No. 2) [2001] NSWCCA 323
Walden v Hensler (1987) 163 CLR 561 referred to.
Attorney General's application under section 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305.

PARTIES: Regina
John Henry Tomkins

FILE NUMBER(S): 2009/00002822

COUNSEL: Defence: C Taylor

SOLICITORS: Crown: Ms K Healey

JUDGMENT

1. John Henry Tomkins has reached the sunset years of his life without a blemish on his record. He leaves in his wake community achievement after community achievement. For more than 55 years he has been a farmer and grazier on the lands his family tended since his ANZAC father was injured and returned to Pokataroo in 1916.

2. John Tomkins took over the property in 1952. Since 1960 he has been a Justice of the Peace. He fought his first rural fire in 1947 and thereafter was actively involved in the Rural Fire Service as a president and vice captain. In all, 61 years of service.

3. He has been president and held various other positions in the Collarenebri Tennis Club during the past 50 years. He was heavily involved in the Collarenebri Air Service, and instrumental in that community building an air landing strip to open Collarenebri to air traffic. He was a foundation member of the Scouts, and built a hall for the Red Cross. As he approaches his four score years all the honours, achievements and fulfilments to be savoured by one who has lived his life so well must taste like ashes in his mouth as he stands today accountable for possessing four unregistered firearms, including a prohibited firearm, on the thirtieth of August 2008 at his home at Pokataroo.

4. As sentencing judge it falls to me to resolve a number of competing contentions as I strive to determine the appropriate sentence outcome for the offence before the court committed by this offender in his community.

5. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters…

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 Tomkins, John

Details

AGLC: R v Tomkins, John [2009] NSWDC 95
Case: [2009] NSWDC 95
Decision Date: 16 March 2009

CaseChat Overview and Summary

The case involved the defendant, John Tomkins, who was charged with possessing four unregistered firearms, including a prohibited firearm, in regional New South Wales. One of the firearms was unlawfully taken as a consequence of insecure storage. The defendant also faced charges related to the unsafe storage of ammunition. The court was tasked with determining an appropriate sentence for these firearm offences. The legal issues at the heart of the case centred on the objectives of firearm legislation, particularly the need to assess the objective criminality against the purpose of the Act. The court also needed to consider the defendant's explanation for the sawn-off barrel of one of the firearms.

The court examined the objectives of firearm legislation, which include preventing the unlawful use of firearms and ensuring public safety. The court assessed the defendant's explanation for the sawn-off barrel of one of the firearms, weighing it against the very strong subjective case against him. The court found that the defendant's actions demonstrated a clear disregard for the law and public safety, given the insecure storage and the presence of a prohibited firearm. However, the court also considered the defendant's background and the possibility of rehabilitation. Ultimately, the court decided that a conditional discharge under section 10 of the Crimes (Sentencing Procedure) Act 1999, with the requirement to enter into bonds to be of good behaviour, was an appropriate sentence in this case.

The court's reasoning was grounded in the need to balance the objectives of firearm legislation with the potential for rehabilitation. The court found that the defendant's actions demonstrated a clear disregard for the law and public safety, but also acknowledged the possibility of rehabilitation. The court's decision to discharge the defendant conditionally, with the requirement to enter into bonds to be of good behaviour, reflected this balance. This outcome provided an opportunity for the defendant to demonstrate his commitment to rehabilitation and reintegration into society, while also serving as a deterrent to others who might engage in similar unlawful activities.

Orders

Orders of the court

Discharged pursuant to s.10 Crimes (Sentencing Procedure) Act 1999 conditional upon entering into bonds to be of good behaviour.

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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CITATION:	R v Tomkins, John [2009] NSWDC 95
HEARING DATE(S):	09/03/2009 and 10/03/2009
JUDGMENT DATE:	16 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Discharged pursuant to s.10 Crimes (Sentencing Procedure) Act 1999 conditional upon entering into bonds to be of good behaviour.
CATCHWORDS:	Criminal Law - Sentencing - Firearm offences- possessing four unregistetred firearms including prohibited firearm - regional NSW - one firearm unlawfully taken as consequence of insecure storaage - unsafe storage of ammunition - explanation for sawn-off barrell - objectives of firearm legislation - assessing objective criminality against purpose of Act - very strong subjective case
LEGISLATION CITED:	Firearms Act 1996 Crimes (Sentencing Procedure) Act Criminal Procedure Act
CASES CITED:	R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert (1967) 2 NSWR 329 Regina v Cromarty (2004) 144 A Crim R 515 referred to Regina v Brown (2006) NSWCCA 249 referred to R v Paris [2001] NSWCCA 83 R v Piccin (No. 2) [2001] NSWCCA 323 Walden v Hensler (1987) 163 CLR 561 referred to. Attorney General's application under section 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305.
PARTIES:	Regina John Henry Tomkins
FILE NUMBER(S):	2009/00002822
COUNSEL:	Defence: C Taylor
SOLICITORS:	Crown: Ms K Healey