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Ericson v The King

Ericson v The King

Case [2023] SASCA 99 21 September 2023

Statutory Interpretation

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ERICSON v THE KING
[2023] SASCA 99
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
21 September 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Application for permission to appeal against sentence.
Following pleas of guilty, the appellant was convicted of one count of discharging a firearm to injure, annoy or frighten a person, contrary to s 32AA(1) of the Criminal Law Consolidation Act 1935 (SA) (Count 1), and one count of possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA) (Count 3).
The appellant’s offending involved the brief possession of a shotgun without a licence, and the use of that firearm to fire four shots at the front of the residential premises of a member of a rival motorcycle gang.
From notional starting points of four years imprisonment and three years imprisonment for Counts 1 and 3 respectively, and after reductions for guilty pleas, the sentencing judge indicated sentences of two years, seven months and seven days imprisonment for Count 1 and one year, 11 months and 13 days imprisonment for Count 3. Her Honour ordered that the sentence for Count 3 be served concurrently as to 11 months and 13 days, and hence cumulatively as to one year. That resulted in an overall head sentence of three years, seven months and seven days imprisonment. The judge fixed a non-parole period of two years and two months.
The appellant seeks permission to appeal on two grounds:
1.the sentencing judge erred by making the sentence imposed for Count 3 cumulative as to one year; and

2. the sentence is manifestly excessive.
Held (per the Court), granting permission to appeal but dismissing the appeal:
1.the overlap between the circumstances informing the seriousness of the two offences, and the consequential risk of double punishment, was adequately addressed through the mechanism of concurrency; and

2. the overall sentence imposed was within the sentencing judge’s discretion.
Criminal Law Consolidation Act 1935 (SA) ss 5AA, 32AA; Firearms Act 2015 (SA) s 9, referred to.
Allsopp v The Queen [2021] SASCA 34; Armistead v The Queen [2011] VSCA 84; Atkinson v The Queen [2021] VSCA 127; Berichon v The Queen (2013) 40 VR 490; Best v The Queen [2015] VSCA 151; Broughman v The King [2023] SASCA 75; Mile v The King [2023] SASCA 33; Pearce v The Queen (1998) 194 CLR 610; R v Cekic [2016] SASCFC 26; R v Cullen [2015] SASCFC 44; R v Daniele [2014] SASCFC 22; R v De…

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 Ericson v The King

Details

AGLC: Ericson v The King [2023] SASCA 99
Case: [2023] SASCA 99
Decision Date: 21 September 2023

CaseChat Overview and Summary

The appeal concerned the sentence imposed on Ericson for the offence of possessing a firearm. The King, representing the Crown, sought to appeal the sentence, arguing it was manifestly inadequate. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issue before the Full Court was whether the sentencing judge had erred in imposing a sentence that was manifestly inadequate, thereby requiring appellate intervention. This involved considering the principles governing the exercise of a sentencing judge's discretion and the grounds upon which the Crown may appeal against a sentence.

The Full Court acknowledged that a strong sentencing response was appropriate and indeed required in the circumstances of the offending. After considering all relevant factors, the Court concluded that the sentence imposed by the sentencing judge fell within the proper exercise of their discretion. Consequently, the Full Court granted permission to appeal but ultimately dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Bearing in mind all of the above, a strong sentencing response was appropriate, and indeed required. We are satisfied that the overall sentence imposed was within the sentencing judge’s discretion.Conclusion For the reasons set out, we would grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Ericson v The King [2023] SASCA 99

Most Recent Citation

R v MARRONE [2024] SASCA 99

Cases citing this decision · 1 of 1 shown

R v MARRONE
[2024] SASCA 99 Para 5

…fender from re-offending, the likelihood of the offender re-offending, and the offender’s prospects of rehabilitation. (Footnotes in original) [10] [2023] SASCA 99 at [75] (Livesey P, Doyle and David JJA). [11] R v Hunter [2022] SASCA 136 at [41]-[45] (Doyle, Bleby and David JJA). [12] R v Cekic [2016] SASCFC 26 a…

View all 1 citing cases →

Cases cited in this decision · 19 of 19 shown

Brougham v The King
[2023] SASCA 75 Para 29

…A 34 at [41] (Kelly P, Lovell and Doyle JJA). [26] Mile v The King [2023] SASCA 33 at [55] (Livesey P, Doyle and David JJA). [27] Brougham v The King [2023] SASCA 75 at [42] (Livesey P, Lovell and Doyle JJA).…
Mile v The King
[2023] SASCA 33 Para 29

…26] (Gray J, Kourakis CJ and Peek J agreeing). [25] Allsopp v The Queen [2021] SASCA 34 at [41] (Kelly P, Lovell and Doyle JJA). [26] Mile v The King [2023] SASCA 33 at [55] (Livesey P, Doyle and David JJA). [27] Brougham v The King [2023] SASCA 75 at [42] (Livesey P, Lovell and Doyle JJA).…
R v Hunter
[2022] SASCA 136 Para 1

…deter the offender from re-offending, the likelihood of the offender re-offending, and the offender’s prospects of rehabilitation. [28] R v Hunter [2022] SASCA 136 at [41]-[45] (Doyle, Bleby and David JJA). [29] R v Cekic [2016] SASCFC 26 at [30] (Vanstone J, Kelly J and David AJ agreeing). [30] R v Pishdari (2018…
Sabato v The Queen
[2021] SASCA 65 Para 39

….[4] [3] Pearce v The Queen (1998) 194 CLR 610 at [37] (McHugh, Hayne and Callinan JJ). [4] R v De Simoni (1981) 147 CLR 383; Sabato v The Queen [2021] SASCA 65 at [105] (Doyle JA, Kelly P and Bleby JA agreeing).…
Allsopp v The Queen
[2021] SASCA 34 Para 12

…ray J, Kourakis CJ and Peek J agreeing); R v Cullen [2015] SASCFC 44 at [22]-[27] (Gray J, Kourakis CJ and Stanley J agreeing); Allsopp v The Queen [2021] SASCA 34 at [41] (Kelly P, Lovell and Doyle JJA).…
Atkinson v The Queen
[2021] VSCA 127 Para 18

…sibility of addressing this concern through partial concurrency, or the modest accumulation of the sentences to be imposed. [22] Atkinson v The Queen [2021] VSCA 127 at [27]-[35] (Priest and T Forrest JJA); Berichon v The Queen (2013) 40 VR 490 at [25]-[30] (Redlich JA), [38]-[53] (Priest JA), [129]-[142] (Robson…
R v Cekic
[2016] SASCFC 26 Para 1

…fending, and the offender’s prospects of rehabilitation. [28] R v Hunter [2022] SASCA 136 at [41]-[45] (Doyle, Bleby and David JJA). [29] R v Cekic [2016] SASCFC 26 at [30] (Vanstone J, Kelly J and David AJ agreeing). [30] R v Pishdari (2018) 274 A Crim R 91 at [22]-[24] (Nicholson J, Kourakis CJ agreeing).…
Best v The Queen
[2015] VSCA 151

…2021] SASCA 34; Armistead v The Queen [2011] VSCA 84; Atkinson v The Queen [2021] VSCA 127; Berichon v The Queen (2013) 40 VR 490; Best v The Queen [2015] VSCA 151; Broughman v The King [2023] SASCA 75; Mile v The King [2023] SASCA 33; Pearce v The Queen (1998) 194 CLR 610; R v Cekic [2016] SASCFC 26; R v Cullen […
R v Cullen
[2015] SASCFC 44 Para 12

…ne of $35,000 or imprisonment for seven years. [21] R v Daniele [2014] SASCFC 22 at [25]-[26] (Gray J, Kourakis CJ and Peek J agreeing); R v Cullen [2015] SASCFC 44 at [22]-[27] (Gray J, Kourakis CJ and Stanley J agreeing); Allsopp v The Queen [2021] SASCA 34 at [41] (Kelly P, Lovell and Doyle JJA).…
Saner v The Queen
[2014] VSCA 134 Para 18

…]-[42], [82] (Ashley, Redlich and Priest JJA); Kruzenga v The Queen [2014] VSCA 10 at [12]-[21] (Wienberg JA, Redlich JA agreeing); Saner v The Queen [2014] VSCA 134 at [112]-[121], [166] (Tate JA, Redlich JA agreeing); Armistead v The Queen [2011] VSCA 84 at [8]-[12] (Redlich JA, Weinberg JA agreeing).…
R v Daniele
[2014] SASCFC 22 Para 12

…the unlicensed possession of a Category C or D firearm, the maximum penalty is a fine of $35,000 or imprisonment for seven years. [21] R v Daniele [2014] SASCFC 22 at [25]-[26] (Gray J, Kourakis CJ and Peek J agreeing); R v Cullen [2015] SASCFC 44 at [22]-[27] (Gray J, Kourakis CJ and Stanley J agreeing); Allsopp…
Kruzenga v The Queen
[2014] VSCA 10 Para 18

…3] (Priest JA), [129]-[142] (Robson AJA); Best v The Queen (2015) 46 VR 196 at [38]-[42], [82] (Ashley, Redlich and Priest JJA); Kruzenga v The Queen [2014] VSCA 10 at [12]-[21] (Wienberg JA, Redlich JA agreeing); Saner v The Queen [2014] VSCA 134 at [112]-[121], [166] (Tate JA, Redlich JA agreeing); Armistead v…
Berichon v The Queen
[2013] VSCA 319 Para 18

…accumulation of the sentences to be imposed. [22] Atkinson v The Queen [2021] VSCA 127 at [27]-[35] (Priest and T Forrest JJA); Berichon v The Queen (2013) 40 VR 490 at [25]-[30] (Redlich JA), [38]-[53] (Priest JA), [129]-[142] (Robson AJA); Best v The Queen (2015) 46 VR 196 at [38]-[42], [82] (Ashley, Redlich and…
Armistead v The Queen
[2011] VSCA 84 Para 18

…21] (Wienberg JA, Redlich JA agreeing); Saner v The Queen [2014] VSCA 134 at [112]-[121], [166] (Tate JA, Redlich JA agreeing); Armistead v The Queen [2011] VSCA 84 at [8]-[12] (Redlich JA, Weinberg JA agreeing).…
Johnson v The Queen
[2004] HCA 15 Para 4

…shment arising out of the commonality in the elements of the offences with which the appellant had been convicted and sentenced.[20] [18] Johnson v R (2004) 78 ALJR 616. [19] Sabato v The Queen [2021] SASCA 65. [20] Johnson v R (2004) 78 ALJR 616 at [1]-[3] (Gleeson CJ), [33]-[35] (Gummow, Callinan and Heydon JJ), [3…
Pearce v The Queen
[1998] HCA 57 Para 38

…lear that the appellant’s complaint is one of double punishment, contrary to the approach required by the High Court in Pearce v The Queen .[2] [2] Pearce v The Queen (1998) 194 CLR 610.…
R v Hoar
[1981] HCA 67 Para 1

…care should be manifest in the reasons of the sentencing judge. [11] Pearce v The Queen (1998) 194 CLR 610 at [120]-[121] (Kirby J). [12] R v Hoar (1981) 148 CLR 32 at 38. [13] R v De Simoni (1981) 147 CLR 383 at 389; R v Overall (1993) 71 A Crim R 170 at 173-174.…
R v De Simoni
[1981] HCA 31 Para 39

…llary of the principle in R v De Simoni .[4] [3] Pearce v The Queen (1998) 194 CLR 610 at [37] (McHugh, Hayne and Callinan JJ). [4] R v De Simoni (1981) 147 CLR 383; Sabato v The Queen [2021] SASCA 65 at [105] (Doyle JA, Kelly P and Bleby JA agreeing).…
Saner v The Queen
[2104] VSCA 134

…er [2022] SASCA 136; R v Overall (1993) 71 A Crim R 170; R v Pishdari (2018) 274 A Crim R 91; Sabato v The Queen [2021] SASCA 65; Saner v The Queen [2104] VSCA 134, considered.…

Legislation cited in this decision · 2

Criminal Law Consolidation Act 1935 (SA)
32AA, 5AA 3 mentions (from Para 1)
Firearms Act 2015 (SA)
9 2 mentions (from Para 1)