Allsopp v The Queen
[2021] SASCA 34
•14 May 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ALLSOPP v THE QUEEN
[2021] SASCA 34
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Doyle)
14 May 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Appeal against sentence.
The appellant was convicted following pleas of guilty of three firearms offences. The offending related to one firearm, which was found in the appellant’s possession when he was running down a street in December 2018. At the time of the offending, the appellant was subject to a suspended sentence bond relating to driving offences and a firearms prohibition order.
One sentence was imposed for the three firearms offences. The appellant was sentenced on the basis that it was unknown how he came to be in possession of the firearm.
The sentencing Judge adopted a starting point of five years and six months imprisonment. This was reduced to three years, 10 months and six days imprisonment, on account of the appellant’s guilty pleas. The suspended sentence imposed in the Magistrates Court was revoked. The total head sentence became imprisonment for four years, one month and six days, with a non-parole period of three years, two months and 28 days.
The appellant now appeals against his sentence on the basis that the sentence is manifestly excessive. The appellant also contends that the sentencing Judge denied the appellant procedural fairness, by taking into account an inconsistency between the appellant’s evidence and his counsel’s submissions, despite the fact that it had not been put to the appellant during cross-examination.
Held (by the Court), refusing permission to appeal in respect of all grounds:
1. On any proper construction of the Judge’s sentencing remarks, the Judge only referred to the inconsistency between the appellant’s evidence and his counsel’s submissions in the context of reciting the history of the matter. The Judge gave cogent reasons for rejecting the appellant’s evidence without further reference to that particular inconsistency.
2. There was no obligation upon the Judge to give any indication in advance as to the weight he would attach to any particular inconsistency.
3. Having regard to the circumstances of the offence and the appellant’s personal circumstances, the sentence imposed was well within the sentencing discretion of the Judge. This is despite the limited factual basis upon which the appellant was sentenced.
Sentencing Act 2017 (SA) s 26; Firearms Act 2015 (SA), referred to.
R v Daniele [2014] SASCFC 22; R v Nozuhur [2013] SASCFC 81, discussed.
Allsopp v The Queen [2020] SASCFC 95; R v Grundy [2021] SASCA 4; R v Darling [2017] SASCFC 46; R v Fusco [2017] SASCFC 47; R v Capaldo [2015] SASCFC 56, considered.
ALLSOPP v THE QUEEN
[2021] SASCA 34
Court of Appeal – Criminal: Kelly P, Lovell and Doyle JJA
THE COURT:
On 3 April 2020, the appellant, Dean David Allsopp, was convicted of three firearms offences following pleas of guilty. Those offences were one count of aggravated possessing a prescribed firearm without a license, one count of contravening a firearms prohibition order and possession of a category H firearm without identifying marks. The three offences all related to one firearm, which was located in the possession of the appellant in December 2018.
The offending breached a suspended sentence bond imposed on 11 May 2018 in relation to three counts of driving disqualified. The sentence imposed for that was three months imprisonment, which had been suspended upon the appellant entering into a good behaviour bond for 18 months. The appellant was also subject to a firearms prohibition order, which was breached by the offending.
On 3 April 2020, the appellant was sentenced for the three firearms offences. He lodged an appeal against this sentence, which was conceded by the prosecution on the basis that the Judge erred in finding factual matters. The matter was remitted to the District Court with a direction that a different Judge determine the facts afresh and impose a fresh sentence.[1]
[1] See Allsopp v The Queen [2020] SASCFC 95.
On 15 January 2021, the appellant was sentenced by a different District Court Judge, to a head sentence of four years, one month and six days. A non-parole period of three years, two months and 28 days was imposed.
The appellant now appeals against the sentence imposed on 15 January 2021. The following grounds of appeal were advanced in the appellant’s Amended Notice of Appeal Against Sentence dated 1 March 2021:
1.The sentence was manifestly excessive.
2.The sentencing Judge erred in his approach to the appellant’s credibility, in that his Honour denied the appellant procedural fairness where his Honour found there were inconsistencies between the appellant’s evidence and his counsel’s submissions, although the alleged inconsistencies had not been the subject of cross-examination of the appellant.
3.The sentencing Judge erred in his approach to fact finding in that his Honour, having rejected the appellant’s evidence, failed to find (and provide sufficient reasons for finding) the factual basis upon which the appellant was to be sentenced.
4.In the alternative, insofar as the factual basis for sentence was articulated, the sentencing Judge failed to adequately articulate that he was imposing a sentence that reflected his finding that the appellant engaged in only a limited handling of the firearm.
The application for permission to appeal was referred to the Court of Appeal for determination of the permission argument and the appeal proper.
Factual basis of the offending
The objective factual basis of the offending, as set out in the Prosecution Factual Summary dated 24 November 2019, was non-contentious. We summarise those facts below.
On Sunday, 23 December 2018, a man identified as Matthew Koop knocked on the front door of a Hillbank home. A female occupant of the home opened the door and Mr Koop said, ‘Help me, someone is trying to kill me.’ He was out of breath and bleeding from his right arm. The female occupant said she would call police. Police subsequently attended the premises. Mr Koop was bleeding heavily from his head and arm and was conveyed to hospital.
Police commenced a search of the area and noticed a trail of blood leading back to the adjacent street and into a driveway and house. The house was occupied by the appellant and his girlfriend.
While obtaining a civilian statement, police observed the appellant running toward a paddock on the western side of the road. He was sweating and out of breath. He slowed down when he neared police. He looked in the direction of police a number of times and then looked away.
Due to the appellant’s behaviour, police spoke with him. The appellant was evasive and continued walking towards the paddock. He then began to run towards the paddock and police gave chase.
The appellant was eventually apprehended. He was non-compliant and was forcibly restrained. While handcuffing the appellant, police located a Beretta handgun in the left leg of his shorts. The firearm was fully operational and contained two live nine-millimetre rounds of ammunition. Police observed that there were grinding marks on the firearm, where a serial number would have been.
The appellant’s house was subsequently searched. The appellant’s girlfriend was found unresponsive due to a suspected drug overdose. There was also a significant amount of blood droplets and stains throughout the house. A blue case used to hold a handgun, similar to that located on the appellant, was found in the kitchen. The case was open and empty. On a bottom shelf in the kitchen, there was an open safe.
There was also evidence that the firearm found on the appellant had been discharged at some stage, as there were holes in the walls of the house. Spent cartridge and a spent bullet, confirmed to have been fired from the firearm located on the appellant, were also located in the house.
The appellant was interviewed by police the following morning after being cautioned. He stated that the firearm belonged to a third party who he did not know, that he did not know how he came to be in possession of the firearm and that he did not know anything about the ammunition found in the house. He told police that his lack of recall was due to him being intoxicated by drugs.
It was not in dispute that, at the time of the offending, the appellant did not have a license to possess the firearm and that he was subject to a firearms prohibition order dated 23 January 2013, due to offending in January 2012.
The appellant’s evidence
The appellant’s version of events was initially conveyed in the District Court during sentencing submissions on 26 November 2019. The appellant’s counsel submitted that Mr Koop was known to the appellant and had entered the appellant’s house with the firearm in a box. Two other men then entered the house and assaulted Mr Koop. The firearm was discharged in the course of the assault, and Mr Koop left the house seeking refuge. It was submitted that the appellant then panicked, picked up the firearm and went in search of Mr Koop.
At the request of the Judge, the appellant gave evidence on oath, which was tendered at a disputed facts hearing before the sentencing Judge on 9 December 2020. As noted by the sentencing Judge, there were inconsistencies between his evidence and the earlier submissions of counsel.
The appellant gave evidence that on the day of the offending, he was drug affected and sleep deprived. He was in the lounge room when his friend, Mr Koop, attended the house unexpectedly. Mr Koop looked distressed and was saying ‘help’. A short time later, two people followed Mr Koop into the house and started attacking Mr Koop. The appellant found his partner and took her to a back bathroom. While hiding in the bathroom, they heard a gunshot being fired. They stayed in the bathroom until it went quiet.
The appellant then exited the bathroom and saw blood through the hallway and out the front of the house. He saw a gun in the hallway on the floor, which he picked up before going to look out the front of the house. The two men were still assaulting Mr Koop. The appellant then went to check on his partner, who had fainted in the bedroom. When he went back to the front of the house, a police car pulled up. The appellant panicked and ran out of the back door and jumped over the back fence. He was still holding the gun. He stated that he did not know why he ran out of the back door or why he took the gun with him. He denied that he left the house in an attempt to locate his friend.
The appellant gave evidence that the firearm did not belong to him and that he had never seen the blue box located in the kitchen before. This included prior to the offending and on the day of the offending. He also stated that he had not seen Mr Koop with a firearm or the blue box at any time. In relation to the safe, he stated that it was for the float from his snack bar business and for important documents including his passport.
Counsel for the appellant submitted that the appellant should be sentenced on the above factual basis, which was highly mitigatory. The prosecution did not agree to any aspect of the appellant’s version of events and submitted that the sentencing Judge should not accept his evidence on the balance of probabilities.
Sentencing of the appellant
In sentencing the appellant, the Judge took into account a range of matters including the appellant’s personal circumstances, the factual basis of the offending and the evidence of the appellant.
After summarising the appellant’s antecedents, his Honour considered the history of the matter before the Court and the accounts given by the appellant at different stages.
In rejecting the appellant’s evidence on the balance of probabilities, his Honour stated:
Regrettably, your evidence and your version of the events is beset with inconsistencies, incongruities and unlikelihoods. Firstly, your evidence on oath is completely inconsistent with what you told the police in your formal interview. That interview was a considered one by you. It was the following day and after you had received legal advice. To explain the inconsistency your position was that what you told the police was untrue. So on anyone’s analysis you are either repeatedly lying to the police wen being required to formally answer questions pursuant to the firearms legislation, or lying to the court.
Secondly, in your evidence you repeatedly said you didn’t know why you did things which if you actually did those things you would be likely to remember why. These were not minor issues. They included picking up a firearm which for all you knew was loaded in light of the fact you say you had just heard gunfire, when you had previously been imprisoned for possessing an unexplained firearm and ammunition and were under a firearms prohibition order.
Thirdly, on a number of occasions you said that you didn’t know the reason why you did something and moments later you gave a reason for doing it.
Fourthly, there were numerous unlikelihoods in your story. For example, that the man would attend your house uninvited for no reason just at the point when he was then attacked by some other men also for some reason unknown to you. That someone would take the trouble to bring a loaded and fully operational Beretta handgun to your house, fire it and just leave it on the ground in your hallway when they left. That a gun case that you had not seen any of the men carrying when they entered and you had never seen before materialised in the kitchen after this event, which gun case happened to have the same brand as the pistol located in your shorts by police. That you would then wait, panicking, for 40 minutes before then leaving the house which at one point you again said you did not know why you did. That even though you said you had done nothing wrong at the house you would not call an ambulance or any other kind of assistance in relation to your friend who from what you saw had been attacked and likely badly hurt, even though in other answers you maintained you had done nothing wrong and there was nothing at the house that would get you into trouble.
…
The appellant was sentenced on the basis that there was no explanation for how he came into possession of the firearm. He was also sentenced on the basis that the offending was ‘very serious’, that the weapon could have no conceivable legitimate use and that he was ‘fully aware’, from his prior offending and the firearms prohibition order, that his offending was serious. Furthermore, the appellant was subject to a good behaviour bond at the time.
The sentence
As the offending was deemed to be a single course of conduct, one sentence was imposed for the three offences pursuant to s 26 of the Sentencing Act 2017 (SA). Taking into account all the material and submissions put before the Court, his Honour took the view that the starting point should be five years and six months imprisonment.
By virtue of the applicable sentencing discount provisions, the appellant was entitled to a reduction of up to 30 per cent on account of his guilty pleas, resulting in a sentence of three years, 10 months and six days imprisonment. As a serious repeat offender, his non-parole period was required to be at least four-fifths of the head sentence. Accordingly, a non-parole period of three years and 28 days was fixed.
The suspension of the sentence imposed in the Magistrates Court for the three counts of driving disqualified was revoked. The total head sentence, therefore, became imprisonment for four years, one month and six days. A non-parole period of three years, two months and 28 days was set.
The appellant, being a serious firearms offender, was treated by the sentencing Judge as not eligible for a suspended sentence or home detention bail.[2]
[2] In light of this Court’s decision in R v Grundy [2021] SASCA 4, the appellant was, strictly speaking, eligible for home detention bail. For good reason, it was not contended on appeal that the Judge erred in not utilising this sentencing option.
Both the sentence and non-parole period were backdated to commence on 23 December 2018, the day that the appellant was taken into custody.
The appellant’s arguments on appeal
The main issue agitated on the hearing of the appeal was the appellant’s complaint that the sentence imposed by the Judge was manifestly excessive. The appellant argued that, in circumstances where the prosecution had conceded its inability to prove beyond reasonable doubt how and when the appellant came into possession of the firearm, and in circumstances where the appellant’s evidence on that topic was rejected, the Judge was required to sentence the appellant on the basis that this was unexplained, short lived offending. There was no evidence as to how the firearm came to be in the appellant’s possession and therefore, on the appellant’s submission, the offending did not extend beyond the fact that the appellant was found running down the road with a loaded firearm. It is clear from the following remarks of the sentencing Judge that this was, in fact, the basis on which the appellant was sentenced:
Accordingly, the court must proceed on the basis there is simply no explanation as to how you came into possession of the firearm.
This is, of course, very serious offending. You were running down a street with a loaded gun concealed on your person. That was a fully operational Beretta semi-automatic handgun with the identifying serial numbers removed. Such a weapon can have no conceivable legitimate use. You were significantly affected by drugs. You were fully aware, both from your prior offending and from the firearms prohibition order you were subject to, just how seriously your behaviour is regarded by the law. Further compounding the seriousness of your conduct, you were on a bond to be of good behaviour at the time.
In these circumstances, the appellant argued that the starting point of the Judge was plainly outside the range available to him.
Allied to this submission was the complaint that the appellant was denied procedural fairness arising out of the Judge’s finding that there was an inconsistency between the appellant’s evidence in court and the submissions which had been made by his counsel when the appellant had never been cross-examined about that particular inconsistency.
The complaint as to the denial of procedural fairness arises out of the remarks made by the Judge during the setting out of the history of the matter in which context he noted the inconsistency between the account which was given by the appellant’s counsel and the evidence subsequently given by the appellant on the topic of how and when the appellant came into possession of the firearm.
It can be observed from the whole of the Judge’s sentencing remarks that the inconsistency between the appellant’s evidence and his counsel’s submissions was one of numerous inconsistencies referred to by the Judge in his remarks. In the context of rejecting the appellant’s evidence as a whole, he referred to the many and varied incredulities, inconsistencies and implausible aspects of the appellant’s various accounts. Significantly, he did not refer again to the inconsistency noted earlier between the appellant’s counsel’s submissions at the hearing and the appellant’s evidence.
One significant inconsistency which was relied upon by the Judge was the difference between what the appellant told the police the day after the offence and what he later said in evidence about how he came to be in possession of the firearm. This, and the many other inconsistencies referred to by the sentencing Judge when explaining his reasons for rejecting the appellant’s evidence,[3] really overwhelmed the one earlier inconsistency complained about by the appellant. The fact that neither the prosecution nor the defence had mentioned that particular inconsistency is of no moment against the compelling and overwhelming number of other inconsistencies on which the Judge expressly relied on in concluding that the appellant’s evidence was, in effect, fanciful. To put it another way, the Judge gave cogent reasons for rejecting the appellant’s evidence.
[3] See [25] of these reasons.
In these circumstances, we consider that the complaint that the appellant was denied procedural fairness is without merit. The fact is, that all of the submissions made by both counsel and all of the evidence given by the appellant was before the sentencing Judge. There was no obligation upon the Judge to give any indication in advance as to the weight he would attach to any particular inconsistency.
Overall, on any proper construction of the Judge’s sentencing remarks, it can be seen that he referred to that earlier inconsistency only in the context of reciting the history of the matter. We would refuse permission to appeal in respect of this ground.
As to the argument that the sentence is manifestly excessive in light of the findings at the disputed facts hearing, it is not necessary, in our view, to consider in any detail the authorities relied on by the appellant to support the submission that the Judge’s starting point was manifestly excessive.
This is because, on the view which we take of the facts, and contrary to the appellant’s submission, the Judge was correct to be guided by the case of R v Daniele.[4] It is not correct to say that the sentencing Judge impermissibly fettered his discretion by having regard to that case. The Judge correctly recognised that there was no particular tariff applicable to the offences committed by the appellant. However, the authority of Daniele enunciates the fundamental principle that the purpose of the Firearms Act 2015 (SA) is to protect the public by controlling the possession and use of firearms, which ties into the need for general deterrence when sentencing, given the danger of firearms and the damage that can be done.
[4] [2014] SASCFC 22.
In Daniele, Mr Daniele was stopped by police in the street with a loaded and working sawn-off shotgun in his possession. He was convicted of aggravated possessing a firearm without a license and failing to store ammunition separately from firearms. It was accepted that the firearm was loaded, however it was in two pieces and until those pieces were joined together, the firearm could not be fired. There was evidence that Mr Daniele had a high risk of reoffending. The offending breached a suspended sentence bond but Mr Daniele was not subject to a firearms prohibition order at the time of the offending. A starting point of five years imprisonment was set for Mr Daniele’s two firearm offences. The Court of Criminal Appeal (Kourakis CJ, Gray and Peek JJ) held that the starting point was within the sentencing discretion of the Judge.
Here, the appellant’s much more serious antecedent history, which includes firearms offences, the fact that he was carrying a loaded firearm that was easily accessible and capable of being discharged immediately, and the fact that he was subject to a firearms prohibition order, made his offending at least as serious, if not more so, than in the case of Mr Daniele. In addition, the firearm located on the appellant was an untraceable firearm, as the serial number was ground off. The fact that the appellant may have better prospects of rehabilitation than Mr Daniele did, does not detract from these distinguishing features.
In most of the authorities cited by the appellant, the facts were relevantly less serious, in that the firearms the subject of the charges were hidden at premises and not being carried in public at the time.[5] As submitted by the respondent, this distinction is important when considering the objective seriousness of the offence and the danger to the community.
[5] For example, see R v Darling [2017] SASCFC 46; R v Fusco [2017] SASCFC 47; R v Capaldo [2015] SASCFC 56.
In the case of R v Nozuhur,[6] Mr Nozuhur was sentenced on two separate occasions after hidden firearms were located at his premises. The second offending occurred in breach of bail granted in respect of the first set of offending. He was sentenced to three years for the first offending and four years for the second offending. On appeal, the Court of Criminal Appeal, per Gray and David JJ (Nicholson J dissenting), held that the sentences imposed were appropriate and within the sentencing Judge’s discretion, despite Mr Nozuhur being a young man with no relevant prior convictions.
[6] [2013] SASCFC 81.
Taking into account the fact that the appellant was here to be sentenced for three very serious firearms offences, and given his prior history, considerations of both general and personal deterrence were very important in this case. In these circumstances, a starting point of approximately five and a half years for the three offences could not be said to be outside the range available to the sentencing Judge.
Having regard to the circumstances of the offence and the appellant’s personal circumstances, we consider the sentence imposed to be well within the sentencing discretion of the Judge. Our view remains the same despite the fact that the appellant was sentenced on a ‘limited’ factual basis. For these reasons, we would refuse permission to appeal in respect of all grounds.
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