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Court of Criminal Appeal 21 August 2024

Todd v Rex

[2024] NSWCCA 161

DrugsFirearms & weapons
CRIMINAL LAW CONVICTION APPEAL CONVICTIONS QUASHED MATTER REMITTED FOR RESENTENCE

Citation: Todd v Rex [2024] NSWCCA 161
Court: Court of Criminal Appeal, New South Wales
Date: 21 August 2024
Judges: Harrison CJ at CL; Wright J; Rigg J

Background

The applicant had pleaded guilty in the Local Court to a range of drug and firearms offences, and confirmed those pleas in the District Court. On 20 March 2023, English DCJ at the District Court in Lismore sentenced him to an aggregate term of eight years' imprisonment with a non-parole period of five years.

Two of the counts related to attempting to manufacture a pistol without a licence or permit under the Firearms Act 1996 (NSW). The sentencing proceeded on the basis of an Agreed Facts document, which was the only relevant evidence placed before the sentencing judge.

The applicant filed a notice of appeal out of time in July 2024, arguing that the Agreed Facts did not establish the elements necessary to support the two attempted-manufacture convictions. The Crown, notably, did not oppose this argument.

  • Whether the Agreed Facts before the sentencing judge were capable, as a matter of law, of establishing the elements of the offences of attempting to manufacture a pistol without a licence or permit under ss 50A(2) and 51CA of the Firearms Act 1996 (NSW).
  • Whether a miscarriage of justice had occurred such that the applicant should be permitted to withdraw his guilty pleas to those counts.
  • Whether the Court of Criminal Appeal should itself resentence the applicant or remit the matter to the District Court for resentencing.

Decision

The Court accepted, in light of the Agreed Facts and the Crown's own concession, that the admitted facts could not in law have supported convictions on counts 3 and 4. The Agreed Facts indicated only that the applicant had acquired four firearms already modified and had contemplated their future modification, intending to render them capable of discharging projectiles. That basis did not amount to an attempt to manufacture a pistol under the relevant provisions.

Applying the principle in Nassr v The Queen [2015] NSWCCA 284 and R v Liberti (1991) 55 A Crim R 120, the Court found that a miscarriage of justice would occur if the applicant were not permitted to withdraw his pleas of guilty to counts 3 and 4. Under s 6(1) of the Criminal Appeal Act 1912 (NSW), the Court is required to allow an appeal where it is of the opinion that there was a miscarriage of justice on any ground. The convictions on those counts were accordingly quashed, and the aggregate sentence set aside.

On the question of remittal, the Court exercised the broad discretion under s 12(2) of the Criminal Appeal Act. Wright J noted considerations drawn from R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280, including fairness and justice, likely delay, and the preservation of parties' appeal rights. Because charges had been withdrawn in the Local Court as a consequence of the guilty pleas now being set aside, and because there was likely to be little delay for a sentence hearing in Lismore, the Court remitted the matter to the District Court rather than proceeding to resentence itself.

Orders Made

  • Time extended for lodging the appeal.
  • Leave granted to amend the grounds of appeal.
  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions on counts 3 and 4 quashed.
  • Sentence imposed by English DCJ on 20 March 2023 set aside.
  • Matter remitted to the District Court at Lismore for mention on 21 August 2024 or such other date as the court may appoint.

Key Takeaways

  • A guilty plea cannot sustain a conviction where the agreed factual basis placed before the sentencing court does not, as a matter of law, establish each element of the offence charged. In such circumstances, a miscarriage of justice arises.
  • Contemplating future modification of already-modified firearms, with an intention to eventually render them capable of discharging projectiles, was found on these facts to fall short of what was required for an attempt to manufacture a pistol under ss 50A(2) and 51CA of the Firearms Act 1996 (NSW).
  • Under s 6(1) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal is obliged to allow a conviction appeal where it identifies a miscarriage of justice, regardless of the ground on which it arises.
  • The discretion to remit under s 12(2) of the Criminal Appeal Act is broad and case-dependent. Relevant factors here included the withdrawal of related charges following the original guilty pleas, the preservation of appeal rights, and the limited likely delay in obtaining a District Court hearing.
  • Where a Crown concession accepts that an agreed factual basis cannot support a conviction, that concession is a significant consideration in the Court's assessment, though the Court conducts its own review of the admitted facts.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b)-(c), 6(1)-(3), 12(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), ss 50A(2), 51CA, 51D(2)

Cases:
- Nassr v The Queen [2015] NSWCCA 284
- R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280
- R v Liberti (1991) 55 A Crim R 120