R v Xavier

[2023] NSWDC 528

District Court

New South Wales

Medium Neutral Citation:

R v Xavier [2023] NSWDC 528

Hearing dates:

17 November 2023

Date of orders:

29 November 2023

Decision date:

29 November 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Garry Xavier is convicted.

2   The offender is sentenced to a fixed term of imprisonment of 4 months to date from 21 December 2020 and to expire on 21 April 2021.

Catchwords:

CRIME — Public justice offences — Conceal serious indictable offence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Commonwealth Places (Application of Laws) Act 1970 (Cth)

Cases Cited:

Mok v Director of Public Prosecutions (NSW) [2015] NSWCA 98

R v Borkowski (2009) 195 A Crim R 1

R v Olbrich (1999) 199 CLR 270

R v Potter [2001] NSWCCA 441

R v Thomson and Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

Rex (Crown)
Garry Xavier (Offender)

Representation:

Counsel:
P Lange (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Hanna Legal (Offender)

File Number(s):

2020/362148

Publication restriction:

None

JUDGMENT

Introduction

1. Gary Xavier (the offender) appears for sentence after pleading in the District Court to an offence of conceal serious indictable offence, contrary to s 316(1), Crimes Act 1900.

2. The maximum penalty for the offence is 5 years imprisonment.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The conduct constituting the offence occurred within the Bankstown Aerodrome. The offender was charged with a State offence, by application of s 4, Commonwealth Places (Application of Laws) Act 1970 (Cth). It was common ground that:

1. any law that is applied or deemed to be applied by s 4, becomes a Commonwealth law: R v Potter [2001] NSWCCA 441 at [35]-[43] (Spigelman CJ);

2. for the purposes of s 25A(1)(a), Crimes (Sentencing Procedure) Act 1999, the offence was an offence under a law of the Commonwealth: Mok v Director of Public Prosecutions (NSW) [2015] NSWCA 98;

3. the sentencing discounts for guilty pleas to indictable offences provided for in Division 1A of the Crimes (Sentencing Procedure) Act 1999 did not apply; and

4. the discount for the plea of guilty was to be determined by reference to s 22, Crimes (Sentencing Procedure) Act 1999 and common law principles: R v Thomson and Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1.

6. The offender entered a plea of guilty in the District Court to the indictment, which for the first time included the s 316 offence which…