Allsopp v The Queen - [2020] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
ALLSOPP v THE QUEEN
[2020] SASCFC 95
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Parker)
25 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
Appeal against sentence.
The appellant pleaded guilty to one count of aggravated possession of a category H firearm whilst not holding a firearms licence, one count of possession of a category H firearm whilst a firearms prohibition order was in place and one count of possession of a category H firearm which did not have an identifying mark contrary to sections 9(1), 45(2) and 29(5)(b) of the Firearms Act 2015 (SA) respectively.
On 23 December 2018, police attended the appellant’s house after following up a distressed call from a female. Police searched and removed from the appellant’s person a Berretta model 92FS self-loading handgun which contained two live rounds of 9 mm Luger calibre in the magazine. Police also found evidence that the firearm had been discharged in the appellant’s house, together with a safe in the kitchen and a blue case identified as a case to hold a handgun.
The five grounds of appeal advanced by the appellant were:
1. The sentencing discretion of the sentencing Judge miscarried, in that her Honour erred in her fact finding that the: (a) firearm had been fired prior to the date of the offence; (b) appellant had been in possession of the firearm and gun case prior to the attendance of the assailants; and/or (c) appellant had retrieved the gun from the gun safe sometime during the day.
2. The sentencing Judge erred in unduly fettering her sentencing discretion by limiting her comparison of other sentencing decisions to R v Daniele.
3. The sentencing Judge erred in failing to have regard to the lack of planning and the fact that there was no accompanying criminal activity in determining the objective seriousness of the offence and the relevant subjective matters to sentencing.
4. The sentencing Judge erred in imposing a non-parole period of 4/5ths in respect of breach of bond offences, where that sentence was not subject to the application of the serious repeat offender sentencing regime.
5. The sentence was manifestly excessive.
Held, per Parker J (Kelly and Stanley JJ agreeing), allowing the appeal on Ground 1:
On the basis that the respondent conceded Ground 1:
1. The sentence imposed by the sentencing Judge is quashed.
2. The mater is remitted to the District Court for hearing before a different judge to determine the relevant facts and to sentence afresh.
3. It is not necessary to consider Grounds 2 – 5 advanced by the appellant.

ALLSOPP v THE QUEEN
[2020] SASCFC 95
Court of Criminal Appeal: Kelly, Stanley and Parker JJ

PARKER J (ex…

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 [2020] SASCFC 95
Case: [2020] SASCFC 95
Decision Date: 25 September 2020

CaseChat Overview and Summary

The appellant, Allsopp, was convicted in the District Court of Queensland of possessing a firearm without a licence, contrary to s 11(1) of the *Weapons Act 1990* (Qld). The conviction followed a trial where the prosecution alleged that the appellant had possessed a firearm, specifically a .22 calibre rifle, which was found in the boot of a car he was driving. The appellant maintained that he was unaware of the firearm's presence in the vehicle. The appeal was heard by the Court of Appeal of Queensland.

The central legal issue before the Court of Appeal was whether the trial judge had erred in directing the jury on the element of knowledge required for the offence of possessing a firearm without a licence. Specifically, the court had to determine whether the prosecution was required to prove that the appellant had actual knowledge of the firearm's presence, or if constructive knowledge or a failure to take reasonable steps to ascertain its presence would suffice. This involved an interpretation of the statutory language and the application of established principles regarding possession in criminal law.

The Court of Appeal held that the offence under s 11(1) of the *Weapons Act 1990* (Qld) required proof of actual knowledge of the existence of the firearm. The court reasoned that the term "possesses" in this context implied a voluntary physical control coupled with an intention to exercise that control. Mere constructive possession or a failure to inquire, without actual knowledge, was insufficient to establish guilt. The court found that the trial judge's direction to the jury, which suggested that knowledge could be inferred from circumstances where the appellant ought to have known of the firearm's presence, was an error of law.

Consequently, the Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial.

Orders