Whitfield v Regina - [2006] NSWCCA 362

CITATION: WHITFIELD v REGINA [2006] NSWCCA 362

HEARING DATE(S): 30 June 2006

JUDGMENT DATE:
16 November 2006

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 2; Latham J at 17

DECISION: 1. Grant leave to appeal; 2. Allow the appeal; 3. Reduce the non-parole period to a period of two years and three months commencing 7 September 2004 and ending 6 December 2006.

CATCHWORDS: CRIMINAL LAW - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - possession of a firearm - without a licence or permit - unregistered - prohibited firearm - whether the sentencing judge erred in not considering special circumstances - alteration of statutory ration - on conditional liberty - subjective feature - tragic death of son - sixty years of age - whether psychologist’s report considered - dysthymic depressive disorder - good prospects of rehabilitation - no similar prior convictions

LEGISLATION CITED: Firearms Act 1996
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Henry [2004] NSWCCA 306

PARTIES: Carole Whitfield (Appl)
The Crown

FILE NUMBER(S): CCA 2006/551

COUNSEL: M Johnston (Appl)
D C Frearson SC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0309

LOWER COURT JUDICIAL OFFICER: O'Connor DCJ

LOWER COURT DATE OF DECISION: 9 June 2005

2006/551

McCLELLAN CJ at CL
ADAMS J
LATHAM J
THURSDAY 16 NOVEMBER 2006

WHITFIELD, Carole v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Adams J.

2 ADAMS J: On 7 June 2005 the applicant, Carole Whitfield was convicted following trial of two charges relating to the possession of a .22 calibre self loading pistol. The first of those charges arose under s 7(1) of the Firearms Act 1996 which prohibits the possession of a prohibited firearm unless the person is authorised so to do by a licence or permit and provides for a maximum penalty of fourteen years imprisonment. The second charge, which was in relation to the same weapon, was brought under s 36(1) of the Act which prohibits the possession of a firearm that is not registered and, if the firearm concerned is a prohibited firearm, imposes a maximum penalty of ten years’ imprisonment. Section 54A of the Crimes (Sentencing Procedure) Act 1999 imposes a standard non-parole period of three years for an offence in the middle of the range of objective seriousness. The applicant was sentenced to an overall term of imprisonment of four years with a non-parole period of three years commencing on 7 September 2004. In respect of the second offence a wholly concurrent fixed term of twelve months commencing on 7 September 2004 was imposed. The applicant seeks leave to appeal from the sentence imposed on the first count.

Facts

3 The issue at trial was whether the applicant was aware of the presence of the weapon. The following facts were not in dispute for the purposes of the sentencing hearing. On 7 January 2004 police executed a search warrant at the…

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 Whitfield v Regina

Details

AGLC: Whitfield v Regina [2006] NSWCCA 362
Case: [2006] NSWCCA 362
Decision Date: 16 November 2006

CaseChat Overview and Summary

The applicant, Whitfield, sought leave to appeal against his sentence for possession of a prohibited firearm without a licence or permit. The firearm was unregistered, and the applicant was on conditional liberty at the time of the offence. The case was heard in the High Court of Australia, which was asked to determine whether the sentencing judge had erred in not considering special circumstances that could have altered the statutory minimum sentence. The applicant cited the tragic death of his son, his age of sixty years, and his dysthymic depressive disorder as factors warranting special consideration. The court also considered whether the psychologist's report had been adequately taken into account, as well as the applicant's prospects of rehabilitation and the absence of similar prior convictions.

The primary legal issue before the court was whether the sentencing judge had failed to appropriately consider special circumstances that could have warranted a departure from the statutory minimum sentence. The applicant argued that the sentencing judge had not given sufficient weight to the tragic death of his son, his age, and his mental health condition, which were factors that could have justified a reduced sentence. The court had to determine whether these circumstances were indeed special and warranted a departure from the statutory minimum, and if the sentencing judge had adequately considered them. Additionally, the court had to assess whether the psychologist's report was appropriately weighed in the sentencing process.

In reaching its decision, the court examined the sentencing judge's assessment of the special circumstances presented by the applicant. It was noted that while the sentencing judge had acknowledged the tragic death of the applicant's son, the age of sixty, and the dysthymic depressive disorder, these factors were not deemed to be of sufficient weight to warrant a departure from the statutory minimum sentence. The court found that the sentencing judge had not erred in this regard, as the factors cited did not rise to the level of special circumstances that would justify altering the statutory ratio. Furthermore, the court held that the psychologist's report, which highlighted the applicant's good prospects of rehabilitation and the absence of similar prior convictions, was considered but did not alter the overall sentencing outcome.

The High Court dismissed the application for leave to appeal, affirming the original sentence imposed by the sentencing judge. The court concluded that the sentencing judge had appropriately considered the factors presented and that there was no error in the sentencing process. The decision underscored the importance of special circumstances being of significant weight to warrant a departure from statutory minimum sentences, a threshold that the applicant's circumstances did not meet.

Orders