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Thalari v R

Thalari v R

Case [2009] NSWCCA 170 26 June 2009

Conviction Appeal

Breach of Contract

Sentences of Imprisonment

Criminal Law

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Reported Decision: 75 NSWLR 307196 A Crim R 398[2010] ALMD 5380

New South Wales

Court of Criminal Appeal

CITATION: Thalari v Regina [2009] NSWCCA 170

HEARING DATE(S): 17 June 2009

JUDGMENT DATE:
26 June 2009

JUDGMENT OF: Young JA at 1; Johnson J at 2; Latham J at 99

DECISION: 1. Appeal against conviction dismissed.
2. Leave to appeal against sentence granted.
3. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - conviction appeal - appellant pleaded guilty to unauthorised possession of pistol under s.7(1) Firearms Act 1996 - whether miscarriage of justice arose from plea of guilty - whether s.7(1) offence requires possession of a "prohibited pistol" - appellant possessed a "pistol" which was not a "prohibited pistol" - legislative history of s.7(1) offence - Law Part Code considered - held that s.7(1) required unauthorised possession of "pistol" - no miscarriage of justice - sentences of imprisonment imposed for s.7(1) offence and offences of possession of a loaded firearm in a public place and supply prohibited drug - Form 1 offences - whether sentences manifestly excessive

LEGISLATION CITED: Firearms Act 1996
Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Summary Offences Act 1988
Firearms Amendment (Trafficking) Act 2001
Firearms Amendment (Public Safety) Act 2002
Firearms Amendment (Prohibited Pistols) Act 2003
Crimes Legislation Further Amendment Act 2003
Interpretation Act 1987
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v Boag (1994) 73 A Crim R 35
R v Van (2002) 129 A Crim R 229
Elmir v R [2009] NSWCCA 22
R v Marchando (2000) 110 A Crim R 337
R v Toro-Martinez (2000) 114 A Crim R 533
R v Sewell [2001] NSWCCA 299
Wong v Director of Public Prosecutions (2005) 155 A Crim R 37
R v Liberti (1991) 66 A Crim R 120
R v Parkes [2004] NSWCCA 377
R v SL [2004] NSWCCA 397
Charlesworth v R [2009] NSWCCA 27
Meissner v The Queen (1995) 184 CLR 132
Lodhi v The Queen (2006) 199 FLR 303
R v Tolley [2004] NSWCCA 165
R v Krstic [2005] NSWCCA 391
R v Najem [2008] NSWCCA 32
Cramp v R [2008] NSWCCA 40
Luu v R [2008] NSWCCA 285
R v Cromarty (2004) 144 A Crim R 515
R v Young (1999) 46 NSWLR 681
R v PLV (2001) 51 NSWLR 736
Beckwith v The Queen (1976) 135 CLR 569
Chanthaboury v R (2007) 176 A Crim R 438
R v Mitchell [2002] NSWCCA 270
R v Amurao [2005] NSWCCA 32
Yang v R [2007] NSWCCA 37
R v AA [2006] NSWCCA 55
Attorney General’s Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
R v Mouloudi [2004] NSWCCA 96
R v Hemsley [2004] NSWCCA 228
R v Hamid (2006) 164 A Crim R 179
Markarian v The Queen (2005) 228 CLR 357

PARTIES: Saheen Thalari (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/1138

COUNSEL: Mr WJ Hunt (Appellant)
Ms JR Dwyer (Respondent)

SOLICITORS: Legal Aid NSW (Appellant)
Solicitor…

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 Thalari v R

Details

AGLC: Thalari v R [2009] NSWCCA 170
Case: [2009] NSWCCA 170
Decision Date: 26 June 2009

CaseChat Overview and Summary

The appellant, Thalari, appealed against his conviction and sentence for unauthorised possession of a pistol, contrary to section 7(1) of the Firearms Act 1996. The appeal was based on the contention that a miscarriage of justice had occurred due to the appellant's plea of guilty, and that the offence required the possession of a "prohibited pistol." The appellant argued that he only possessed a "pistol" which was not a "prohibited pistol." The matter was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the appellant's plea of guilty resulted in a miscarriage of justice and whether section 7(1) required the possession of a "prohibited pistol." The court considered the legislative history of the offence and examined the Law Part Code to determine the correct interpretation of the relevant section. The court also assessed whether the sentences imposed for the various offences were manifestly excessive.

The court found that section 7(1) required the unauthorised possession of a "pistol," which was not limited to a "prohibited pistol." The court concluded that there was no miscarriage of justice in the appellant's conviction, as the offence was correctly interpreted and applied. The court further determined that the sentences imposed for the offences of unauthorised possession of a pistol, possession of a loaded firearm in a public place, and supply of a prohibited drug were not manifestly excessive. The appeal was therefore dismissed.

The Supreme Court of Victoria dismissed the appeal and affirmed the appellant's conviction and sentence. The court found that the appellant's plea of guilty did not result in a miscarriage of justice, as the offence was correctly interpreted and applied. The sentences imposed for the various offences were also considered to be appropriate and not manifestly excessive.

Orders