R v Wilson (No.3)

[2021] NSWDC 174

District Court

New South Wales

Medium Neutral Citation:

R v Wilson (No.3) [2021] NSWDC 174

Hearing dates:

6 May 2021

Date of orders:

6 May 2021

Decision date:

06 May 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 90

Catchwords:

CRIME – sentencing – use of offensive weapon to intimidate – threat to damage property – unauthorised firearm possession – whether Bugmy principles engaged

Legislation Cited:

Crimes Act1900 (NSW) ss 33B, 199

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Crimes Sentencing Procedure Act 1999 (NSW) s 3A

Firearms Act1996 (NSW) ss 3, 7

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Dean v R [2020] NSWCCA 317

Filippou v R (2015) 256 CLR 47

RvMostyn (2004) 145 A Crim R 304

RvNajem [2008] NSWCCA 32

R v Perez (unrep, 11/12/91, NSWCCA)

R v Wilson (No.2) [2020] NSWDC 549

Strbak v The Queen [2020] HCA 10

Thurgar v R (1990) 51 A Crim R 109

Turnbull v R [2019] NSWCCA 97

Zreika v R (2012) 223 A Crim R 460

Texts Cited:

Nil.

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW)
Mr B Wilson (offender)

Representation:

Counsel:
Solicitor Advocate for the Director of Public Prosecutions (NSW)
Mr W Buxtom for the offender

Solicitors:
LegalAid for the offender

File Number(s):

2019/00248475

Publication restriction:

Nil.

EX TEMPORE SENTENCING REMARKS

Introduction

1. On 14 September 2020, the offender pleaded guilty to the two counts on an indictment that on 1 August 2019 at Thornton:

1. Count 1: he used an offensive weapon with intent to commit intimidation, contrary to s 33B(1)(a) of the Crimes Act1900 (NSW) (the ‘Weapon Use’ offence);

2. Count 3: without lawful excuse, he made a threat to Clayton Futcher to damage property belonging to Mrs Deborah Jeffress, with the intention of causing Clayton Futcher to fear that the threat would be carried out, contrary to s 199(1)(a) of the Crimes Act 1900 (NSW) (the ‘Property Damage threat’ offence).

2. That same day, he pleaded not guilty to count 2, being that on 1 August 2019 at Thornton he possessed a firearm, namely a pistol, not being authorised to do so by a licence or permit, contrary to s 7A(1) of the Firearms Act 1996 (the ‘Firearm offence).

3. For this charge, he was tried by me, sitting alone. It was agreed, as between the Crown and the offender, that in trying him for the Firearm Charge, the Court would hear evidence that related to the Property Damage threat offence and Weapon Use offence. Broadly speaking, this featured the use of a jerry can, and spilling of petrol, in or near the vicinity of the timber front door at the property where the offending conduct occurred. In this way, disputed facts relevant to sentencing could be determined at the same time as the adjudication of the question of the offender’s guilt in relation to Count 2.

4. On 18 September 2020, I found that the offender was also guilty of the Firearm Offence