R v West - [2019] NSWDC 838

District Court

New South Wales

Medium Neutral Citation: R v West [2019] NSWDC 838
Hearing dates: 6 December 2019
Decision date: 06 December 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of five years and two months. Non-parole period of three years and two months.

Catchwords: SENTENCING – Fire firearm – intimidation – possess firearm.
SENTENCING - Relevant factors on sentence – early offer to plea accepted after arraignment – parity – first adult offence – multiple Children’s Court offences – immature offender – use of background reports – history of disadvantage – never lived a normal life in the community – lack of insight – need for assistance – protection of the community – need for assistance in custody and monitoring on release.
Legislation Cited: Crimes (Administration of Sentences) Act 1999
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing and Procedure) Act 1999
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1988
Firearms Act 1996
Road Transport Act 2013
Cases Cited: Crimes (Administration of Sentences) Act 1999
DM v R [2005] NSWCCA 181
DPP v De La Rosa [2010] NSWCCA 194
Elliot and Blessington [2006] NSW CCA 305
Hearne (2001) 124 A Crim R 451
JM v R [2012] NSWCCA 83
KT v R (2008) 182 A Crim R 571
R v Engert (1995) 84 A Crim R 67
R v Oinonen (1999) NSWCCA 310
R v Williams (2019) NSWDC 804
The Queen v De Simoni (1981) 147 CLR 383
Slade v The Queen [2005] NZ CA 19
Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited: Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011
Category: Sentence
Parties: Christopher West (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defender (for the offender)
Ms A Hughes, Solicitor Advocate, Director of Public Prosecutions
Solicitors:
Legal Aid (NSW) (for the offender)

File Number(s): 2018/00113932

SENTENCE – EX TEMPORE REVISED

Introduction

At about 3.30am on Monday 9 April 2018, a car was stolen from a garage in Cordeaux Heights. About 12 hours later that vehicle pulled up outside a home in Northcliffe Drive, Berkeley. Christopher West was driving. With him was his friend Joshua Williams. The home was where West's former partner, Ms Poole lived with her family. A number of family members and friends were present that afternoon. Ms Poole saw the care arrive. She saw two men in the car and went over to it. It was then that she recognised West. He began to yell:

"Youse are all fucking dogs and your family is gone. You think I'm a joke? You think this is a joke? I'm going to fucking start shooting. I'm going to blow your heads off and I'll kill your whole family. I'll spray your house with bullets. I'll kill you Brooke, I'm not joking."

She saw that West had gloves on. He moved his hand and started unwrapping something. What he was unwrapping was a firearm. He…

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 West

Details

AGLC: R v West [2019] NSWDC 838
Case: [2019] NSWDC 838
Decision Date: 06 December 2019

CaseChat Overview and Summary

In the case of R v West, the defendant was convicted of firing a firearm in an intimidating manner and possessing a firearm. The matter was heard in the Supreme Court of Victoria. The key issues before the court were the appropriate sentencing principles to apply and the factors that should be considered in determining the sentence, particularly in light of the defendant's background and circumstances.

The court considered various factors, including the defendant's early offer to plead guilty which was accepted after arraignment, the defendant's first adult offence contrasted with multiple prior offences in the Children's Court, and the defendant's history of disadvantage and lack of a normal life in the community. The court also took into account the defendant's immaturity, lack of insight, and the need for assistance both in custody and upon release. The sentencing also needed to ensure the protection of the community.

After weighing these considerations, the court determined an aggregate sentence of five years and two months, with a non-parole period of three years and two months. The sentence reflects the need to balance the defendant's rehabilitation needs with the need to protect the community from serious criminal behaviour.

Orders

Orders of the court

Aggregate sentence of five years and two months. Non-parole period of three years and two months.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v West [2019] NSWDC 838
Hearing dates:	6 December 2019
Decision date:	06 December 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of five years and two months. Non-parole period of three years and two months.
Catchwords:	SENTENCING – Fire firearm – intimidation – possess firearm. SENTENCING - Relevant factors on sentence – early offer to plea accepted after arraignment – parity – first adult offence – multiple Children’s Court offences – immature offender – use of background reports – history of disadvantage – never lived a normal life in the community – lack of insight – need for assistance – protection of the community – need for assistance in custody and monitoring on release.
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing and Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1988 Firearms Act 1996 Road Transport Act 2013
Cases Cited:	Crimes (Administration of Sentences) Act 1999 DM v R [2005] NSWCCA 181 DPP v De La Rosa [2010] NSWCCA 194 Elliot and Blessington [2006] NSW CCA 305 Hearne (2001) 124 A Crim R 451 JM v R [2012] NSWCCA 83 KT v R (2008) 182 A Crim R 571 R v Engert (1995) 84 A Crim R 67 R v Oinonen (1999) NSWCCA 310 R v Williams (2019) NSWDC 804 The Queen v De Simoni (1981) 147 CLR 383 Slade v The Queen [2005] NZ CA 19 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011
Category:	Sentence
Parties:	Christopher West (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Ms A Hughes, Solicitor Advocate, Director of Public Prosecutions Solicitors: Legal Aid (NSW) (for the offender)
File Number(s):	2018/00113932