Allsopp v The Queen - [2021] SASCA 34

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 The suspended sentence imposed in the Magistrates Court was revoked.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 –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allsopp v The Queen

Details

AGLC: Allsopp v The Queen [2021] SASCA 34
Case: [2021] SASCA 34
Decision Date: 14 May 2021

CaseChat Overview and Summary

The case of *Allsopp v The Queen* concerned an appeal against sentence. The appellant was convicted of an offence involving the possession of a firearm, a circumstance compounded by the fact that he was subject to a firearms prohibition order. The central dispute revolved around the sentencing judge's assessment of the appellant's evidence and the subsequent sentence imposed.

The legal issues before the Court were whether the sentencing judge erred in his approach to the appellant's evidence, specifically concerning inconsistencies between the appellant's sworn testimony and his counsel's earlier submissions, and whether the sentence imposed was manifestly excessive or inadequate given the circumstances of the offence and the appellant's personal situation. The Court was required to determine if the judge had an obligation to foreshadow the weight he would place on any particular inconsistency in the appellant's account.

The Court reasoned that the sentencing judge had properly considered the appellant's evidence within the broader context of the sentencing process. The judge's remarks regarding the inconsistency between the appellant's evidence and his counsel's submissions were found to be a recital of the factual history, not the sole basis for rejecting the appellant's account. Cogent reasons were provided for rejecting the appellant's evidence independently of this specific inconsistency, and there was no requirement for the judge to pre-emptively indicate the weight to be given to such discrepancies. The Court concluded that, notwithstanding the limited factual basis upon which the appellant was sentenced, the imposed sentence fell within the proper exercise of the sentencing judge's discretion, considering both the offence and the appellant's personal circumstances.

Permission to appeal was refused on all grounds.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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