Pound v R [2015] NSWCCA 54

Pound v R [2015] NSWCCA 54

The finding of a high degree of recklessness was open because the applicant had loaded the firearm some days earlier, forgot that it was loaded, and while intoxicated pointed it at the victim with his finger on the trigger without checking whether it remained loaded. However, the sentencing judge erred in partially accumulating the sentences because, in the circumstances of this case, the offence of recklessly causing grievous bodily harm wholly comprehended the elements and criminality of the firearm offence. The appeal was therefore allowed, the District Court sentences were quashed, and the applicant was resentenced with the sentences commencing on the same date.

Jurisdiction
Australia
Judgment Date
02 April 2015
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court of NSW
Outcome
Leave to appeal granted; appeal allowed; sentences imposed in the District Court quashed; appellant resentenced.
Legal Topics
['recklessly Inflict Grievous Bodily Harm' 'carry Firearm With Disregard for Safety' 'recklessness' 'concurrency and Accumulation of Sentences' 'totality Principle' 'manifest Excess']
['criminal Law' 'sentencing'] ['recklessly Inflict Grievous Bodily Harm' 'carry Firearm With Disregard for Safety' 'recklessness' 'concurrency and Accumulation of Sentences' 'totality Principle' 'manifest Excess']

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court of NSW

Legal Issues

  1. 1 ["Whether the sentencing judge erred in finding that the applicant's conduct revealed a high degree of recklessness." 'Whether the sentence for carrying a firearm with disregard for safety should have been accumulated with the sentence for recklessly inflicting grievous bodily harm.' 'Whether the extent of accumulation was excessive or otherwise erroneous.' 'Whether the individual sentences and total effective sentence were manifestly excessive.']

Ratio Decidendi

The finding of a high degree of recklessness was open because the applicant had loaded the firearm some days earlier, forgot that it was loaded, and while intoxicated pointed it at the victim with his finger on the trigger without checking whether it remained loaded. However, the sentencing judge erred in partially accumulating the sentences because, in the circumstances of this case, the offence of recklessly causing grievous bodily harm wholly comprehended the elements and criminality of the firearm offence. The appeal was therefore allowed, the District Court sentences were quashed, and the applicant was resentenced with the sentences commencing on the same date.

Court Disposition

Leave to appeal granted; appeal allowed; sentences imposed in the District Court quashed; appellant resentenced.

Orders

  • ['Leave to appeal granted.' 'Allow the appeal.' 'Quash the sentences imposed in the District Court.' 'Count 2 – a fixed term of imprisonment of 3 years and 6 months commencing 26 October 2012 and expiring 25 April 2016.' 'Count 1 and taking into account the matter on the Form 1 – a non-parole period of 4 years...