Brougham v The King - [2023] SASCA 75

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BROUGHAM v THE KING
[2023] SASCA 75
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)
29 June 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - GENERALLY
During a Firearms Prohibition Order compliance check, police located a loaded rifle secreted with the roof of the applicant's garden shed. The rifle's serial number was ground off.
The applicant was found guilty by a jury of four firearms offences relating to the rifle, including possession of a firearm and ammunition whilst subject to an FPO (Counts 3 and 4). The sentencing Judge imposed a single head sentence of four years and four months' imprisonment with a non-parole period of two years, seven months and seven days.
The applicant appeals against the sentence imposed. The issue on appeal is whether the notional starting points indicated for Counts 3 and 4 are excessive, such that the overall head sentence is manifestly excessive.
Held, per the Court, granting leave to appeal but dismissing the appeal:
1. The notional starting points imposed in relation to Counts 3 and 4 were manifestly excessive.
2. However, in all of the circumstances, it cannot be said that the head sentence itself, although at the upper end of the range of available sentences, was manifestly excessive.
Firearms Act 2015 (SA) ss 9, 29(5), 44, 45; Sentencing Act 2017 (SA), referred to.
Calabrese v The Queen [2022] SASCA 26; Cocks v The Queen [2022] SASCA 21; Lloyd v The King [2023] SASCA 19; Mile v The King [2023] SASCA 33; R v Daniele [2014] SASCFC 22; R v Gasmier [2011] SASCFC 43; R v Ioannidis [2015] SASCFC 158; R v Simpson (2016) 125 SASR 352; Warne v The Queen [2020] SASCFC 124; White (a pseudonym) v The Queen [2022] SASCA 78, considered.

BROUGHAM v THE KING
[2023] SASCA 75
Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA

THE COURT: In the course of a Firearms Prohibition Order (FPO) compliance check, police located a loaded rifle secreted within the roof of the applicant’s garden shed. The firearm’s identifying serial number had been ground off. The applicant was found guilty by a jury of four firearms offences relating to the firearm, including possession of a firearm whilst subject to an FPO and possession of ammunition whilst subject to an FPO.
After indicating notional sentences for each offence, the sentencing Judge imposed a single head sentence of four years and four months’ imprisonment and fixed a non-parole period of two years, seven months and seven days. In doing so, he considered the notional sentences would run wholly concurrently as the offending…

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.

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Details

AGLC: Brougham v The King [2023] SASCA 75
Case: [2023] SASCA 75
Decision Date

CaseChat Overview and Summary

The applicant, Brougham, appealed against a sentence imposed by the Supreme Court of South Australia following his conviction by a jury on four firearms offences. These offences related to the discovery of a loaded rifle with its serial number ground off, secreted in the roof of his garden shed, while he was subject to a Firearms Prohibition Order (FPO). The sentencing judge imposed a head sentence of four years and four months' imprisonment with a non-parole period of two years, seven months and seven days.

The central issue on appeal was whether the notional starting points determined by the sentencing judge for the offences of possessing a firearm and ammunition whilst subject to an FPO were manifestly excessive, thereby rendering the overall head sentence manifestly excessive. The applicant did not challenge the notional sentences for the other two offences: aggravated possession of a Category A firearm and possessing a firearm without a lawful identifying mark.

The Court of Appeal found that the notional starting points for the FPO breach offences were indeed manifestly excessive. However, despite this finding, the Court concluded that the overall head sentence, when considered in light of all the circumstances of the offending and the applicant's personal history, was not manifestly excessive. The Court noted that while the sentencing judge had imposed concurrent sentences, a combination of partial and full concurrency would have better reflected the aggravating features of the charges, which included the possession of a loaded firearm with a removed serial number, and the breach of the FPO.

Consequently, the Court of Appeal granted leave to appeal but dismissed the appeal, upholding the head sentence imposed by the sentencing judge.

Orders