Z v R

Case [2015] NSWCCA 274 28 October 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Z v R [2015] NSWCCA 274
Hearing dates: 21 August 2015
Decision date: 28 October 2015
Before: Basten JA at [1];
Wilson J at [2];
R S Hulme AJ at [137]
Decision:
Leave to appeal is refused.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – shooting causing grievous bodily harm – firearm offences – assistance to authorities – late guilty plea – seriousness of offences – organised criminal activity – whether offence aggravated by conduct that resulted in a grave risk of death to victim – whether offence aggravated as committed without regard for public safety – applicant’s involvement in OMCG – previous personal violence offences – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 33, 60
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 21A, 23; Div 1A, Pt 4
Criminal Appeal Act 1912 (NSW), s 5
Firearms Act 1996 (NSW), ss 7, 51
Cases Cited: Colomer v R [2014] NSWCCA 51
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hampton v R [2010] NSWCCA 278; (2010) 208 A Crim R 478
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ma and Pham v R [2007] NSWCCA 240
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Mitchell & Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R
R v Dinsdale [2000] HCA 52; (2000) 202 CLR 321
94
R v Tuala [2015] NSWCCA 8
Texts Cited: Sentencing Bench Book (Judicial Commission of New South Wales)
Category: Principal judgment
Parties: Z (Applicant)
Regina (Respondent Crown)
Representation:
Counsel:
Mr G R James AM QC (Applicant)
Mr Huw Baker (Respondent Crown)
Solicitors:
McGirr Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/00017190
Publication restriction: The name of the applicant is not to be published; the applicant has been allocated a pseudonym.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal Law

Date of Decision:

16 December 2014

Before:

Woodburne SC DCJ

File Number(s):

2011/00017190

Judgment

BASTEN JA: I agree with Wilson J.
WILSON J: This is an application pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 for leave to appeal against sentences imposed by her Honour Judge Woodburne SC in the District Court at Sydney on 16 December 2014.
Her Honour sentenced the applicant in relation to two related sets of offences. The first offence in time related to the shooting of a man at Doonside on 29 November 2010 (“the shooting offence”); the second set of offences concerned three firearm offences.
The applicant pleaded not guilty in relation to the shooting offence. His trial with respect to that matter commenced on 18 March 2014. On 4 April 2014 the jury returned a verdict of not guilty of causing grievous bodily harm with intent to murder, but guilty of an alternative charge of causing…

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 Z v R

Details

AGLC: Z v R [2015] NSWCCA 274
Case: [2015] NSWCCA 274
Decision Date: 28 October 2015

CaseChat Overview and Summary

In the case of Z v R, the applicant, a member of an organised motorcycle gang, appealed against the sentence imposed for his involvement in the shooting of a victim, causing grievous bodily harm. The shooting was part of a feud between two organised motorcycle gangs. The applicant was convicted of multiple firearm offences and sentenced to a lengthy term of imprisonment. The applicant sought to appeal the severity of the sentence, arguing that it was manifestly excessive given the circumstances of the case.

The legal issues before the court included whether the seriousness of the offence was properly considered, particularly in light of the applicant's assistance to the authorities and his late guilty plea. The court also needed to determine if the offence was aggravated by the conduct that resulted in a grave risk of death to the victim, and if the offence was committed without regard for public safety. Additionally, the court had to consider the applicant's involvement in an organised criminal gang, his previous personal violence offences, and whether these factors warranted a harsher sentence.

The court examined the applicant's cooperation with authorities and his late guilty plea as mitigating factors. However, it found that the seriousness of the offence, the grave risk of death to the victim, and the applicant's involvement in organised criminal activity warranted a significant sentence. The court held that the sentence was not manifestly excessive, taking into account all relevant factors, including the public safety concerns arising from the applicant's conduct.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence was proportionate to the gravity of the offences committed, and that the mitigating factors did not outweigh the aggravating circumstances. The court's decision reaffirmed the importance of deterrence and public safety in sentencing for serious organised crime and firearm offences.

Orders