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Sutton v R

Sutton v R

Case [2016] NSWCCA 249 9 November 2016

Criminal Liability

Sentencing

Firearms Act 1996 (NSW) s 7(1)

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sutton v R [2016] NSWCCA 249
Hearing dates: 26 October 2016
Decision date: 09 November 2016
Before: Gleeson JA at [1];
Fagan J at [65];
N Adams J at [66]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: CRIMINAL LAW – where aggregate sentence imposed for offences of knowingly taking part in drug supply and possession of firearm – Firearms Act 1996 (NSW) s 7(1) – plea of guilty – where guilt admitted to Form 1 offences – possession of ammunition without permit, possession of unregistered firearm and possession of prohibited weapon (silencer) – appeal against severity of sentence – where at relevant time applicable standard non-parole period for firearms offence was three years – where standard non-parole period misstated by primary judge as four years – Criminal Appeal Act 1912 (NSW) s 6(3) – whether error requires re-exercise of sentencing discretion – whether finding of special circumstances should be made on basis of ill-health – gallstones – objective seriousness – where offences committed whilst on parole for armed robbery conviction – where primary judge found another person left revolver at applicant’s home and no evidence of use or intended use by applicant – where pistol found with silencer and ammunition – where history of firearms and possession of prohibited weapon offences
Legislation Cited: Crimes Act 1900 (NSW) s 61N
Criminal Appeal Act 1912 (NSW) s 6
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 44, 53A, 54B
Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 (NSW) Sch 1 Pt 5
Drug (Misuse and Trafficking) Act 1985 (NSW) s 25
Firearms Act 1996 (NSW) ss 4C, 7, 36, 65
Cases Cited: AB v R [2014] NSWCCA 31
Abbas v R [2014] NSWCCA 188
Anastasiou v R [2010] NSWCCA 100
Baxter v The Queen (2007) 173 A Crim R 284; [2007] NSWCCA 237
Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455
House v R (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Leighton v R [2010] NSWCCA 280
Martin v R [2016] NSWCCA 104
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Badanjak [2004] NSWCCA 395
R v Brown [2006] NSWCCA 249
R v Farrell [2015] NSWCCA 68
R v Howard [2004] NSWCCA 348
R v Mahmud [2010] NSWCCA 219
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Smith (1987) 44 SASR 587
R v XX [2009] NSWCCA 115
Thalari v R [2009] NSWCCA 170
Category: Principal judgment
Parties: Applicant – Anthony Graham Sutton
Crown Respondent – Director of Public Prosecutions
Representation:
Counsel:
Applicant – Mr C Taylor
Crown Respondent – E. Balodis
Solicitors:
Applicant – YJP Legal
Crown Respondent – Solicitor for Public Prosecutions

File Number(s): 2014/220134
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Tamworth District Court

Jurisdiction:

Criminal

Date of Decision:

7 December 2015

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 Sutton v R

Details

AGLC: Sutton v R [2016] NSWCCA 249
Case: [2016] NSWCCA 249
Decision Date: 09 November 2016

CaseChat Overview and Summary

The appellant, Sutton, appealed against the severity of a sentence imposed for a range of drug and firearms-related offences. The case was heard in the Court of Criminal Appeal in New South Wales. Sutton pleaded guilty to charges including knowingly taking part in drug supply, possession of a firearm, possession of ammunition without a permit, possession of an unregistered firearm, and possession of a prohibited weapon (a silencer). The appeal focused on the severity of the aggregate sentence, particularly the application of the standard non-parole period for the firearms offence.

The legal issues before the court included whether the misstatement of the standard non-parole period for the firearms offence required a re-exercise of the sentencing discretion, and whether special circumstances existed to justify a departure from the sentencing norms. The court needed to determine whether the primary judge's error in stating the non-parole period as four years instead of three years warranted a new sentencing hearing. Additionally, the court had to assess the relevance of Sutton's ill-health, specifically gallstones, as a factor for special circumstances, alongside the objective seriousness of the offences and Sutton's criminal history.

The Court of Criminal Appeal found that the misstatement of the standard non-parole period was an error that necessitated a re-exercise of the sentencing discretion. The court also considered Sutton's ill-health, but concluded it did not constitute special circumstances warranting a departure from the sentencing norms. The objective seriousness of the offences, including the possession of a firearm with a silencer and ammunition, and Sutton's prior criminal history of firearms and prohibited weapon offences, were significant factors. The court determined that the sentence imposed was not manifestly excessive. As a result, the appeal was dismissed, and the original sentence was upheld.

Orders