Regina v Ensby [2004] NSWCCA 196

New South Wales Court of Criminal Appeal

CITATION : Regina v Ensby [2004] NSWCCA 196 HEARING DATE(S) : 16/06/04 JUDGMENT DATE : 24 June 2004

JUDGMENT OF : Bryson JA at 1; James J at 2; Kirby J at 3 DECISION : 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS : Criminal Practice & Procedure - sentence - whether sentence for assault with offensive weapon excessive - health of offender - special circumstances. Crimes Act 1900 LEGISLATION CITED : Firearms Act 1996 Crimes (Sentencing Procedure) Act 1999 R v Smith (1987) 27 A Crim R 315 CASES CITED : Phelan v The Queen (1993) 66 A Crim R 446 R v Fidow [2004] NSWCCA 172 R v Simpson (2001) 53 NSWLR 704 PARTIES : Regina Raymond John Ensby FILE NUMBER(S) : CCA 60073/04 COUNSEL : D Frearson (Resp/Crown) Ms S Kluss (Appl) SOLICITORS : S Kavanagh (Resp/Crown) Ralph James (Appl)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/51/0184 FILE NUMBER(S) : LOWER COURT Ducker DCJ JUDICIAL OFFICER :

- IN THE COURT OF CRIMINAL APPEAL 60073/04

BRYSON JA JAMES J KIRBY J

Thursday 24 June 2004 REGINA v Raymond John ENSBY Judgment 1 BRYSON JA: I agree with Kirby J. 2 JAMES J: I agree with Kirby J. 3 KIRBY J: On 12 April 2002 Raymond John Ensby ("the applicant") was arrested at Casino. He was charged with having used an offensive weapon with intent to commit the indictable offence of assault (contrary to s33B(1)(a) Crimes Act 1900). The maximum penalty for that offence is 12 years imprisonment. 4 On 25 November 2002 the applicant was arraigned in the District Court. He pleaded guilty. On 12 June 2003 he was sentenced by Acting Judge Ducker. He asked that the sentencing Judge take account of a further offence on a Form 1, namely, possessing a shortened firearm (not being a pistol) without authority (contrary to the Firearms Act 1996). His Honour imposed a sentence of five years imprisonment, with a non parole period of three years and nine months. The sentence was backdated (to 2 March 2003) to take account of 102 days in custody before Mr Ensby was given bail. 5 The applicant asserts that the learned sentencing Judge was in error in three respects: · First, the sentence was excessive. · Secondly, the sentencing Judge failed to give appropriate weight to the applicant's subjective circumstances. · Thirdly, the sentencing Judge should have found special circumstances. 6 Before considering each ground, I should briefly state the circumstances in which the offence was committed.