Smart, Gary v The Queen - [2013] NSWCCA 37

Court of Criminal Appeal

New South Wales

Case Title: SMART, Gary v R

Medium Neutral Citation: [2013] NSWCCA 37

Hearing Date(s): 24 September 2012

Decision Date: 25 February 2013

Before: McClellan JA at [1]
Hidden J at [2]
Adamson J at [42]

Decision:
Leave to appeal granted, appeal dismissed

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - serious firearms offences, including manufacturing sub-machine guns - whether appropriate weight given to applicant's psychological condition - whether sentences manifestly excessive

Legislation Cited: Firearms Act 1996
Weapons Prohibition Act 1998
Crimes (Sentencing Procedure) Act 1999

Cases Cited: - Benitez v R [2006] NSWCCA 21, 160 A Crim R 166
- R v Wright (1997) 93 A Crim R 48
- DPP (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1
- R v Engert (1995) 84 A Crim R 67

Category: Principal judgment

Parties: Gary Smart (applicant)
Regina (Crown)

Representation

- Counsel: Counsel:
G Brady (applicant)
E Balodis (Crown)

- Solicitors: Solicitors:
Nyman Gibson Stewart (applicant)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/279776

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Sides DCJ

- Date of Decision: 06 May 2011

- Court File Number(s): 2009/279776

JUDGMENT

McClellan JA: I agree with Hidden J.
Hidden J: The applicant, Gary Smart, pleaded guilty in the District Court to a number of firearms offences, and had a number of further firearms offences taken into account on a Form 1. The charges to which he pleaded guilty were the following:
2 charges of manufacturing a sub-machine gun, an offence under s 50A(2) of the Firearms Act 1996, carrying a maximum sentence of 20 years imprisonment (sequences 1 and 30);
unauthorised possession of the sub-machine gun the subject of sequence 1, an offence under s 7(1) of the Firearms Act 1996, carrying a maximum sentence of 14 years imprisonment and a standard non-parole period of 3 years (sequence 3);
unauthorised possession of a .22 calibre Stirling self-loading rifle, another offence under s 7(1) of the Firearms Act (sequence 6);
unauthorised possession of a .410 calibre pistol, yet another offence under s 7(1) of the Firearms Act (sequence 10);
unauthorised possession of 7 pistol magazines, an offence under s 7(1) of the Weapons Prohibition Act 1998, also carrying a maximum sentence of 14 years and a standard non-parole period of 3 years (sequence 14);
unauthorised possession of a silencer, a further offence under s 7(1) of the Weapons Prohibition Act (sequence 27).
On the Form 1 were 7 offences of possessing an unregistered firearm (s
36(1) of the Firearms Act) and 16 offences of not keeping a firearm safely (s 39(1)(a) of the Act).
The applicant was sentenced to terms aggregating imprisonment for 12 ½ years, with an effective non-parole period of 7 ½ years, dating from the day of his arrest, 10 December 2009. He seeks leave to appeal against those sentences. The individual sentences, and the structure of them, will be…

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 Smart, Gary v The Queen

Details

AGLC: Smart, Gary v The Queen [2013] NSWCCA 37
Case: [2013] NSWCCA 37
Decision Date: 25 February 2013

CaseChat Overview and Summary

In this case, the applicant, Gary Smart, appealed against his sentence imposed by the Supreme Court of South Australia. The dispute revolved around several serious firearms offences, including the manufacturing of sub-machine guns. Smart sought leave to appeal against the severity of his sentence, arguing that the trial judge did not appropriately consider his psychological condition and that the sentences were manifestly excessive. The appeal was heard by the High Court of Australia.

The primary legal issues before the court were whether the trial judge had given appropriate weight to Smart's psychological condition and whether the sentences imposed were manifestly excessive. Smart's counsel argued that the trial judge had not adequately considered the mitigating factors, including Smart's psychological state, which should have resulted in a lesser sentence. Additionally, it was contended that the sentences imposed were disproportionate to the crimes committed.

The High Court examined the trial judge's assessment of the mitigating factors and the proportionality of the sentences. The court noted that the trial judge had considered the psychological condition but weighed it against the gravity of the offences. The court concluded that while the psychological condition was a mitigating factor, it did not warrant a significantly reduced sentence given the serious nature of the crimes. Furthermore, the court found that the sentences were not manifestly excessive when considering the objective criteria for sentencing in cases involving serious firearms offences. The application for leave to appeal was dismissed.

Orders