Carlin v R [2019] NSWCCA 130

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carlin v R [2019] NSWCCA 130 Hearing dates: 7 June 2019 Date of orders: 07 June 2019 Decision date: 20 June 2019 Before: Hoeben CJ at CL at [1]; White JA at [1]; Hamill J at [1] Decision: 1. Extend the time for the applicant to file notice of intention to appeal or to apply for leave to appeal to 15 February 2019. 2. To the extent necessary give leave to the applicant to appeal against her conviction on Count 2 of the indictment dated 20 September 2017 namely, that the applicant, between 19 December 2015 and 21 January 2016 at Penrith in State of New South Wales possessed a prohibited firearm, namely, a shortened 20 Gauge Boito single barrel shotgun with serial number removed, not being authorised to do so by a licence or permit. 3. Allow the appeal in respect of the applicant's conviction on that count and set aside the conviction. 4. Quash the aggregate sentence imposed on the appellant in the District Court on 18 June 2018. 5. Remit the matter to the District Court for sentence for the offences on Counts 1 and 3 of the indictment dated 20 September 2017 and the offences of possession of an unauthorised firearm and discharging a firearm in a public place and any offence with which the appellant might be charged for possession of a shortened firearm, contrary to s 62(1)(b) of the Firearms Act 1996, if the appellant pleads guilty to that offence. 6. It is noted that the non-parole period of the sentence that is now quashed would expire on 20 November 2019, and it is recommended that if possible the matter should be relisted before the Penrith District Court with priority. Catchwords: CRIME — Appeals — Application for leave to appeal against sentence and conviction — Primary judge imposed aggregate sentence in respect of offences including offences of unauthorised possession of prohibited firearms contrary to s 7(1) of the Firearms Act 1996 (NSW) to which applicant pleaded guilty — Where one such offence charged under s 7(1) related to possession of a shortened 20-gauge BOITO single-barrel shotgun — Common ground on appeal that agreed description of shotgun did not disclose offence against s 7(1) and that consequentially the relevant count on the indictment and aggregate sentence imposed thereon ought to be quashed — Whether applicant could be resentenced on appeal pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) — No power for Court of Criminal Appeal to re-sentence where there was no other possible count on indictment on which a jury could have found applicant guilty — Proceedings remitted to District Court for re-sentencing Legislation Cited: Crimes Act 1900 (NSW), s 96G Criminal Appeal Act 1912 (NSW), s 7 Firearms Act 1996 (NSW), ss 7, 7A Cases Cited: Baxter v R [2018] NSWCCA 281 Calabria v The Queen (1983) 151 CLR 670; [1983] HCA 33 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 Category: Principal judgment Parties: Sherrie Carlin (Applicant) Crown (Respondent) Representation: Counsel: S F Beckett (Applicant) G Newton (Crown)