Allsopp v The Queen
[2020] SASCFC 95
•25 September 2020
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 95Court of Criminal Appeal: Kelly, Stanley and Parker JJ
PARKER J (ex tempore): This is an appeal against the sentence imposed by the District Court following the appellant's plea of guilty to the offences of aggravated possession of a prescribed firearm without a licence, contravention of a firearms prohibition order and possession of a category H firearm without identifying marks. These offences all occurred during the one event.
The appellant has been granted permission to appeal on grounds one, four and five. Permission to appeal has been refused by a judge of this court on grounds two and three. However, the appellant has filed an application for permission to appeal in respect of grounds two and three to be determined by the Court of Criminal Appeal.
The sentence was imposed after a disputed facts hearing. The respondent has quite properly conceded, in relation to ground one of the notice of appeal, that the sentencing judge had erred in respect of two factual findings made following the disputed facts hearing.
The first error conceded by the respondent is that the sentencing judge erred in finding that the firearm possessed by the appellant must have been fired in his home on one or more occasions prior to the incident on 23 December 2018. The respondent has stated that the issue of whether or not the firearm had been fired previously in the house prior to the date of the offending was not the subject of a submission by either the prosecution or the defence, nor was the appellant asked about this issue in evidence.
The second error conceded by the respondent is that the judge also erred in finding that the appellant was in possession of the firearm prior to Mr Koop and his two assailants entering his home. A further aspect of this second conceded error is the finding by her Honour that the appellant had stored the firearm in a blue case which he had retrieved from the safe in his home.
The respondent has observed that it is not clear whether the sentencing judge treated the two erroneous factual findings as matters of aggravation that had been proved to her Honour's satisfaction beyond reasonable doubt, or whether she found these facts proved on the balance of probabilities so as to displace the version put in mitigation by the appellant.
Given the concession by the respondent that the judge erred in making findings of fact relevant to sentence, the appropriate course is for this court to uphold the appeal against sentence, quash the sentence and remit the matter for hearing before a different judge of the District Court to determine the relevant facts and to impose sentence afresh.
I would join in an order to that effect. It is not necessary to consider the other grounds advanced by the appellant.
KELLY J: I agree with those extempore observations of Parker J.
STANLEY J: I agree with the reasons of Parker J and the order that he proposes.
KELLY J: Therefore, the order of the court is the appeal is allowed; the sentence imposed by the District Court judge is quashed; the matter is remitted to the District Court for hearing before a different judge to determine the relevant facts and to sentence afresh.