CARNEY v REGINA [2008] NSWCCA 277

CARNEY v REGINA [2008] NSWCCA 277

The offence in Count 1 was within the higher range of objective seriousness because the applicant discharged a firearm at police at ground level and in a helicopter, creating grave risk. The sentencing judge did not err in the findings about the applicant's mental illness, though he erred by treating general deterrence as only marginally reduced. On the facts, that error was counter-balanced by the objective gravity of the offence and the importance of specific deterrence, including the need for adherence to treatment to reduce re-offending risk. The sentence was proportionate, a proper exercise of sentencing discretion, and no lesser sentence was warranted in law.

Jurisdiction
Australia
Judgment Date
25 November 2008
Procedural Posture
Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Pursuant to S.5(1)(c) of the Criminal Appeal Act 1912 (nsw) Against Sentences Imposed by the District Court of New South Wales
Outcome
Leave to appeal granted. Appeal dismissed.
Legal Topics
['severity Appeal' 'discharging Firearm With Intent to Prevent Lawful Apprehension' 'unauthorised Use of Firearm' 'unauthorised Possession of Firearm' 'mental Illness and Sentencing' 'general Deterrence' 'specific Deterrence' 'manifest Excess']
['criminal Law' 'sentencing'] ['severity Appeal' 'discharging Firearm With Intent to Prevent Lawful Apprehension' 'unauthorised Use of Firearm' 'unauthorised Possession of Firearm' 'mental Illness and Sentencing' 'general Deterrence' 'specific Deterrence' 'manifest Excess']

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Procedural Posture

Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Pursuant to S.5(1)(c) of the Criminal Appeal Act 1912 (nsw) Against Sentences Imposed by the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding that objectively the case was close to the worst case.' 'Whether the sentencing judge erred in finding that the operation of general deterrence was only slightly ameliorated in the circumstances of the case.' 'Whether the sentence was manifestly excessive.' "Whether the sentencing judge erred in findings concerning the applicant's mental illness."]

Ratio Decidendi

The offence in Count 1 was within the higher range of objective seriousness because the applicant discharged a firearm at police at ground level and in a helicopter, creating grave risk. The sentencing judge did not err in the findings about the applicant's mental illness, though he erred by treating general deterrence as only marginally reduced. On the facts, that error was counter-balanced by the objective gravity of the offence and the importance of specific deterrence, including the need for adherence to treatment to reduce re-offending risk. The sentence was proportionate, a proper exercise of sentencing discretion, and no lesser sentence was warranted in law.

Court Disposition

Leave to appeal granted. Appeal dismissed.

Orders

  • ['Leave to appeal be granted.' 'The appeal be dismissed.']