Ericson v The King

Case [2023] SASCA 99


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…

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Ericson v The King [2023] SASCA 99
Case
[2023] SASCA 99
Decision Date

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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