Weaver v R - [2021] NSWCCA 215

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Weaver v R [2021] NSWCCA 215
Hearing dates: 03 May 2021
Date of orders: 08 September 2021
Decision date: 08 September 2021
Before: Simpson AJA at [1]
Garling J at [6]
N Adams J at [131]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – Appeals – appeal against sentence –alleged incompetence of counsel resulting in a miscarriage of justice – tender of ERISP which adversely affected the applicant’s case – whether sentencing judge erred in assessing the objective seriousness of the offences – whether applicant was punished for an offence of which he had not been convicted – whether sentence is manifestly excessive – leave to appeal is granted – appeal dismissed

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Firearms Act 1996

Cases Cited:
Cassidy v R [2012] NSWCCA 68
Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312
Hanna v R [2017] NSWCCA 168
Hughes v R [2018] NSWCCA 2
R v Birks (1990) 19 NSWLR 677
The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
John Wayne Tsiakas v R [2015] NSWCCA 187

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Roger Byron Weaver (Applicant)
The Crown (Respondent)
Representation:
Counsel:
I Lloyd QC (Applicant)
M Milward (Respondent)
Solicitors:
Prof. D Accoto (Applicant)
C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/240991
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 September 2020

Before:

Lerve DCJ

File Number(s):

2019/240991

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Garling J, in which the relevant facts and circumstances are comprehensively stated. I agree with the orders proposed by his Honour and generally with his reasons. I wish to add only the following, which is relevant particularly to grounds 2 and 4 of the proposed appeal.
The first count on the indictment was brought under s 51D(2) of the Firearms Act 1996 (NSW). Section 51D(1) creates an offence, carrying a maximum penalty of imprisonment for 10 years, of being in possession of more than 3 unregistered firearms without a licence or permit. Subsection (2) of s 51D creates an offence, carrying a maximum penalty of imprisonment for 20 years, of being in possession of more than 3 unregistered firearms without a licence or permit, in circumstances where at least one of the firearms is a pistol or prohibited firearm. The difference in penalty is indicative of the seriousness with which the legislature views possession of pistols and prohibited firearms.
The first charge on the indictment to which the applicant pleaded guilty alleged possession of 31 unregistered firearms – that is, more than ten times the minimum number to constitute the offence – seven of which were prohibited firearms…

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 Weaver v R

Details

AGLC: Weaver v R [2021] NSWCCA 215
Case: [2021] NSWCCA 215
Decision Date: 08 September 2021

CaseChat Overview and Summary

In Weaver v R, the appellant, Weaver, was convicted of serious criminal offences and appealed against the sentence imposed by the sentencing judge. The primary contention was that the legal representation provided to Weaver during his trial was deficient, resulting in a miscarriage of justice. Specifically, it was argued that the trial counsel's decision to tender evidence that was potentially prejudicial to Weaver's case adversely affected the outcome. Weaver further contended that the sentencing judge erred in assessing the objective seriousness of the offences, that he was punished for an offence for which he had not been convicted, and that the sentence imposed was manifestly excessive.

The court considered whether the trial counsel's actions constituted incompetence and if such incompetence had indeed led to a miscarriage of justice. It also examined whether the sentencing judge had erred in evaluating the gravity of the crimes and if the sentence imposed was disproportionate. The court had to determine whether the sentence reflected the true seriousness of the offences and whether it was fair in all the circumstances. The appeal hinged on these legal issues, with Weaver arguing that his sentence should be reconsidered in light of the alleged trial counsel incompetence and the perceived errors in sentencing.

The court found that the trial counsel's actions did not amount to incompetence and did not result in a miscarriage of justice. It was determined that the sentencing judge had appropriately assessed the objective seriousness of the offences and that there was no basis to conclude that Weaver had been punished for an offence he had not been convicted of. The court also held that the sentence was not manifestly excessive, taking into account the nature and circumstances of the crimes committed. Despite the grant of leave to appeal, the appeal was ultimately dismissed, affirming the original sentence imposed by the lower court.

Orders