Darestani v R [2019] NSWCCA 248

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Darestani v R [2019] NSWCCA 248 Hearing dates: 21 August 2019 Date of orders: 21 October 2019 Decision date: 21 October 2019 Before: Hoeben CJ at CL at [1]; Price J at [2]; Lonergan J at [101] Decision: Grant leave to appeal against the convictions on the first and second counts of possess an imitation self-loading pistol without authorisation by license or permit contrary to s 7(1) of the Firearms Act 1996 (NSW). Allow the appeal. Quash the convictions on the first and second counts. Quash the aggregate sentence imposed in the District Court of New South Wales on 8 June 2018. For counts 3 and 4, the applicant is sentenced to an aggregate term of imprisonment consisting of a non-parole period of 11 months commencing on 27 July 2017 and expiring on 26 June 2018 with a balance of term of 11 months commencing on 27 June 2018 and expiring on 26 May 2019. Catchwords: CRIME – appeals – appeal against convictions for two counts contrary to s 7(1) of the Firearms Act 1996 – whether plastic pistols were imitation firearms – construction of s 4D(4) of the Firearms Act – meaning of "identified as a children's toy" – whether confined to matters intrinsic to the object – whether present use and intention may be taken into account – possession – consideration of Crown case at trial – whether verdicts on counts 1 and 2 were unreasonable – resentence – the ceiling principle – aggregate sentence for counts 3 and 4 Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13 Criminal Appeal Act 1912 (NSW) s 5 Criminal Appeal Rules r 4 Firearms Act 1996 (NSW) ss 3, 4D, 7 Cases Cited: Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981 Libke v R (2007) 230 CLR 559; [2007] HCA 30 Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4 Pearce v The Queen (1998) CLR 610; [1998] HCA 57 R H McL v The Queen (2000) 203 CLR 452 Sio v R [2015] NSWCCA 42 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Category: Principal judgment Parties: Makan Khalili Poor Darestani (Applicant) Regina (Respondent) Representation: Counsel: Mr T Quilter and Mr A Chhabra (Applicant) Mr D Patch (Respondent)