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, 65Cases 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 170Category: Principal judgment Parties: Applicant – Anthony Graham Sutton
Crown Respondent – Director of Public ProsecutionsRepresentation: Counsel:
Solicitors:
Applicant – Mr C Taylor
Crown Respondent – E. Balodis
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
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- Sutton v R [2016] NSWCCA 249
- Case
- [2016] NSWCCA 249
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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.
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.
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