Lambert v The Queen - [2020] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
LAMBERT v THE QUEEN
[2020] SASCFC 85
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Livesey and The Honourable Justice Bleby)
8 September 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence.
The appellant was sentenced for 23 offences contrary to the Firearms Act 2015 (SA), eight counts of theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) and two other offences, one for possession of a prohibited weapon contrary to s 21F(1)(b) of the Summary Offences Act 1953 (SA) and one offence of possessing a prescription drug not being a drug of dependence contrary to s 18(3) of the Controlled Substances Act 1984 (SA).
For the latter two summary offences and two offences of possessing firearms without identifying marks, the appellant was convicted without further penalty. For the remaining 29 offences, the appellant was sentenced to one term of imprisonment for six years with a non-parole period of four years.
On appeal, the respondent conceded that the Judge made a material error, in sentencing on the basis of incorrect maximum penalties, vitiating the exercise of sentencing discretion. Upon re-sentencing, a further issue arose as to the correct maximum penalty for the offence of theft.
Held per Kelly J (Livesey and Bleby JJ agreeing), allowing the appeal:
1. There is nothing in the text of s 134(1) of the CLCA to say that the maximum penalty changes depending on whether the offence is classified as summary or minor indictable (at [22]).
2. The Judge correctly had regard to the maximum penalty for the offence of theft prescribed by s 134(1) of the CLCA as 10 years (at [28]).
3. The sentence is set aside only in respect of the 29 offences for which one sentence was imposed by the Judge, being counts 1, 3 to 28, 30 and 31 (at [34]).
4. The conviction without further penalty for both the offences of possessing firearms without identifying marks is left undisturbed (at [35]).
5. As to the remaining 29 offences, the appellant is re-sentenced to one head sentence of seven years imprisonment, discounted by 40 per cent. After applying the discount, that leaves a head sentence of four years, two months, one week and six days. A non-parole period of three years is fixed. The head sentence and non-parole period are backdated to 7 October 2019 (at [36]-[37]).
Firearms Act 2015 (SA) s 9, s 29, s 31, s 35; Criminal Law Consolidation Act 1935 (SA) s 134; Summary Offences Act 1953 (SA) s 21F; Controlled Substances Act 1984 (SA) s 18; Criminal Procedure Act 1921 (SA) s 5, s 102, s 108, s 115, s 116, s 117; Juries Act

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 Lambert v The Queen

Details

AGLC: Lambert v The Queen [2020] SASCFC 85
Case: [2020] SASCFC 85
Decision Date: 8 September 2020

CaseChat Overview and Summary

In *Lambert v The Queen*, the Full Court of the Supreme Court of South Australia was asked to re-exercise the sentencing discretion of a trial judge. The appeal concerned the sentencing of the appellant for a total of 33 offences, primarily relating to the possession of numerous firearms and ammunition, some of which were stolen. The respondent conceded that the sentencing judge had made a material error by basing the sentence on maximum penalties that were substantially higher than those actually prescribed by law for several offences, thereby vitiating the exercise of discretion.

The legal issues before the Full Court included determining the correct maximum penalties for the offences of possessing a category H firearm without a licence, possessing a category H firearm without identifying characters, and possessing a category B firearm without a licence. Additionally, a further issue arose regarding the correct maximum penalty for the offence of theft, with the appellant arguing that the sentencing judge was constrained by section 5 of the *Criminal Procedure Act 1921* (SA) to impose a penalty not exceeding two years for these offences.

The Court accepted the respondent's concession that a material error had occurred in sentencing. Consequently, the Full Court was required to exercise the sentencing discretion afresh. In undertaking this task, the Court considered the correct statutory maximum penalties for the relevant offences. The appellant admitted to possessing all the firearms and ammunition, stating he had them from a period years earlier when he was heavily involved with drugs. The Court noted that most of the firearms found were stolen, and two of them lacked sufficient identifying characters.

The Full Court exercised the sentencing discretion afresh, imposing a new sentence that reflected the correct maximum penalties for the offences.

Orders

Orders of the court

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Background

Background to the litigation

The respondent conceded that, in sentencing for seven offences on the basis of a maximum penalty which was substantially higher than the penalty actually prescribed for those offences, the Judge had made a material error vitiating the exercise of sentencing discretion. It was, therefore, conceded that this Court should exercise the sentencing discretion afresh. Background On 7 October 2019, police went to the appellant’s premises at Elizabeth Grove and asked the appellant if he had anything to declare. He indicated that he did and showed the police two large sports bags which were stored in his bedroom. In the first bag, police found an Anschutz 54 single shot bolt action rifle, a Husqvarna 96 bolt action repeating rifle, a Howa 1500 bolt action repeating rifle, and a pump action rifle. In the same bag was a metal tube with a screw top containing four boxes with a total of 162 rounds of .22 ammunition suitable for use with the Anschutz and the pump action rifle. The ammunition found in that bag was also capable of being used in relation to two other firearms located on the premises that day. In the second sports bag, police found a Weatherby Vanguard bolt action repeating rifle, a Mauser MS420 bolt action repeating rifle, a Husqvarna M38 bolt action repeating rifle, a Weatherby Mark V bolt action repeating rifle, and a Fabrique Nationale European bolt action repeating rifle. In a satchel hanging in the wardrobe of one of the bedrooms, police found a Leige Bulldog double action revolver. Checks carried out by the police indicated that all of the firearms, with the exception of the pump action rifle and the Bulldog double action revolver, had been stolen. Both the pump action rifle and the Bulldog double action revolver did not have sufficient identifying characters on them. The appellant admitted to possessing all of the firearms and ammunition and told the police he had been in possession of them from a time, years earlier, when he was heavily involved with drugs. The Judge’s sentence The appellant was sentenced for a total of 33 offences. Those offences, save for the summary offences of possessing a prohibited weapon and possessing a prescription drug, and the penalties imposed by the Judge are set out in Annexure A to these reasons. It was not in dispute that at submissions the Judge had been provided with the incorrect maximum penalties for the offences of possessing a category H firearm without a licence (count 1) and possessing a category H firearm without identifying characters (count 2). It is not in dispute either that the Judge had regard to the incorrect maximum penalty for the offence of possessing a category B firearm without a licence (counts 10, 13, 16, 22 and 25). Discussion Upon re-sentencing, a further issue arose as to the correct maximum penalty for the offence of theft. The appellant submits that the Judge was constrained by virtue of the provisions of s 5 of the Criminal Procedure Act 1921 (SA) (‘the Criminal Procedure Act’), as amended, to impose a penalty for the theft offences, to which the appellant had pleaded guilty, of not greater than two years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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