Citation: DJ v R [2017] NSWCCA 319
Court: NSW Court of Criminal Appeal
Date: 15 December 2017
Judge(s): Macfarlan JA, Johnson J, R A Hulme J
Background
The applicant, DJ, was 16 years old when, in February 2016, he fired a shortened .22 calibre bolt-action rifle at a man during a street altercation in Mudgee, striking him in the left wrist and causing significant injuries including a fractured radius requiring surgery. The applicant had obtained the loaded firearm two to three months earlier, reportedly out of fear of the victim, who had a prior history of conflict with the applicant's family.
The applicant pleaded guilty in the Children's Court to discharging a firearm with intent to cause grievous bodily harm under s 33A(1)(a) of the Crimes Act 1900, a strictly indictable offence carrying a maximum of 25 years' imprisonment. He was committed to the District Court for sentence on that charge. At the request of both parties, two related offences were also placed before the District Court for sentencing by way of a certificate under s 166 of the Criminal Procedure Act 1986: possession of an unregistered prohibited firearm in a public place, and failing to keep a prohibited firearm safely.
The District Court imposed a total effective sentence of four years' imprisonment with a non-parole period of two years. The applicant sought leave to appeal, challenging both the availability of the s 166 certificate procedure for the related offences and the overall severity of the sentences.
Legal Issues
- Whether the s 166 certificate procedure under the Criminal Procedure Act 1986 was available to deal with the two related firearm offences in the District Court
- Whether, in sentencing on the related offences, the District Court was required to apply the provisions of the Children (Criminal Proceedings) Act 1987
- Whether the sentences imposed were manifestly excessive
Decision
On the first ground, the Court held that the s 166 certificate procedure was available for the related offences. Johnson J undertook a detailed analysis of the relevant provisions and concluded that there was no statutory bar to using the procedure in these circumstances, particularly given that both parties had requested it and the related offences arose from the same factual circumstances as the principal charge.
On the second ground, the Court found that the sentencing judge had properly applied the Children (Criminal Proceedings) Act 1987 when dealing with the related offences. The principal sentence for the s 33A(1)(a) offence was ordered to be served in a juvenile institution, and the Court was satisfied the sentencing judge had appropriately treated the applicant's youth as a significant mitigating factor throughout.
On manifest excess, the Court rejected the third ground. Johnson J noted that the principal offence was objectively serious: the applicant had armed himself with a shortened firearm weeks in advance and chose to retrieve and use it during the altercation. The Court observed, drawing on R v Lachlan [2015] NSWCCA 178, that shortened firearms have no legitimate purpose and are especially dangerous because of their capacity for concealment. The sentencing judge had weighed the objective gravity of the offences against the applicant's youth and the absence of any prior criminal history, and the accumulation of sentences was considered appropriate given the distinct nature of the possession offence.
The Court granted leave to appeal but dismissed the appeal. The Court also noted that even if any error had been established in relation to the s 39(1)(a) offence, no lesser sentence would have been warranted in law under s 6(3) of the Criminal Appeal Act 1912.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the s 166 certificate procedure under the Criminal Procedure Act 1986 is available to deal with related offences in the District Court where the principal charge is a strictly indictable offence committed for sentence, including where an offender is a juvenile.
- Under the Children (Criminal Proceedings) Act 1987, the standard non-parole period does not apply to offenders who were under 18 at the time of the offence, even for serious firearms charges carrying maximum penalties of 25 years' imprisonment.
- A shortened firearm has no legitimate purpose and its capacity for concealment is an aggravating feature that can properly inform the degree to which sentences for possession and use are accumulated.
- No error was established in the sentencing judge's approach to balancing the objective seriousness of firearms offences against the recognised mitigating weight of youth and a clean criminal history.
- In dismissing the appeal, the Court applied s 6(3) of the Criminal Appeal Act 1912, noting that even where a ground of appeal might otherwise succeed, the Court will not intervene if no lesser sentence would have been warranted in law.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A, s 19
- Crimes Act 1900 (NSW), s 33A(1)(a), s 93I(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3)
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AD, 6(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), s 39(1)(a)
- Justice Legislation Amendment Act 2017 (NSW)
Cases:
- R v Lachlan [2015] NSWCCA 178
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- BT v R (2012) 227 A Crim R 354; [2012] NSWCCA 276
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Zreika v R (2012) 223 A Crim 460; [2012] NSWCCA 44
- Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- R v Farrell (1976) 2 NSWLR 498
- Allina Pty Limited v Federal Commissioner of Taxation (1991) 99 ALR 295