R v Allsopp

[2019] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v ALLSOPP

[2019] SASC 112

Reasons for Decision of The Honourable Justice Peek

3 July 2019

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

This application to review an order of a Magistrate refusing bail on firearms charges was governed by s 10A of the Bail Act 1985. Whether the applicant had established the existence of special circumstances justifying his release on bail. Whether the length of time the applicant was likely to remain in custody on remand if bail was not granted was so oppressive that special circumstances could be found to exist.

Held (dismissing the application):

1. Established prosecutorial delay may militate in favour of a finding of “special circumstances” but all of the other circumstances must be taken into account before such a finding is made.

2. While cases may readily be envisaged where delay could be so oppressive that opposing factors militating against bail being granted are overwhelmed, such a situation is not here demonstrated.

3. The applicant has not established the existence of special circumstances justifying his release on bail.

Firearms Act 2015 (SA) ss 9, 32, 35; Bail Act 1985 (SA) ss 10, 10A, 11; Sentencing Act 2017 (SA) ss 49, 50, 51; Criminal Procedure Act (SA) s 127; Summary Offences Act 1953 (SA) s 6(2), referred to.
R v Capaldo [2015] SASCFC 56; R v Cekic (2014) 244 A Crim R 462; R v Daniele [2014] SASCFC 22; R v Lombardi (2013) 115 SASR 577; R v Pepper [2018] SASC 184; R v Tamas [2017] SASC 12, discussed.

R v ALLSOPP
[2019] SASC 112

Reasons for Decision

PEEK J.

1. The applicant applies for review of a Magistrate’s decision to refuse bail. 

2. The applicant is charged with offences arising out of an incident on 23 December 2018 when he was found by police on a public street in Hillbank in possession of a concealed 9mm centre fire pistol, it being loaded with two live rounds in the magazine; the pistol is clearly a working class H firearm with its serial number obliterated. There are three Major Indictable Offences charged: aggravated possession of a category H firearm contrary to s 9(1) of the Firearms Act 2015 (the Act); possessing that pistol whilst a firearms prohibition order was in force contrary to s 45(2) of the Act; and possessing that pistol, it not having an identifying mark contrary to s 29(5)(b) of the Act. He was also charged with resisting a police officer in the execution of his duty contrary to s 6(2) of the Summary Offences Act 1953.

   The facts and circumstances

3. A female occupant of premises at Hillbank has stated to Police that at about 4:00pm on Sunday, 23 December 2018 a man (to be referred to as “Mr X”) knocked on her door and said to her ‘Help me, someone is trying to kill me’. Mr X was out of breath and bleeding from his right arm. The female occupant advised him that she would call police and did so. Police subsequently attended and Mr X correctly identified himself. He was then bleeding heavily from his head and from a slash to his arm. Police searched his pockets, with his consent, and found a roller door remote control attached to a blue key which was later found to be linked to a White Holden 2001 model (Registration number identified). Mr X was taken to hospital.

4. At about 5.22pm, while taking a statement from the female occupant, police observed the applicant running towards a nearby paddock. As he came closer, he slowed to a walk, looking in the direction of police a number of times, before looking away. Because of this behaviour, police spoke with him and asked for his name and whether everything was okay. He was evasive and eventually began to run toward the paddock. Police gave chase and despite their demands to stop, he did not comply. However, he then turned and began to move towards the police whilst putting his hand into his pockets; the police suspected that he was about to assault them and sprayed him with pepper spray. The applicant continued to ignore police directions and was observed with his left hand on his left leg, appearing to grab at something. He was pepper sprayed again and restrained. While trying to handcuff him, police observed a black firearm poking through the left side of his shorts and removed the pistol from his shorts. It had two live rounds of 9mm Luger calibre in the magazine.

5. At the same time as the applicant was being arrested, other police officers attended at his home and there located Mr X’s white Holden vehicle parked outside the house. A search of the house was conducted due to the observed presence of a significant amount of blood outside the premises, including on the bonnet of a vehicle parked outside (a Toyota sedan registered to the accused and another person); a blood trail leading from the vehicle to the front door; and blood on a meat cleaver which was found at the front door. Police observed other blood droplets and stains throughout the house. On searching the applicant’s home, police found, inter alia, the following:

   -A blue case designed to hold a handgun of similar dimensions to that found on the applicant. It was open and empty.

   -Item 29, a single unfired 9mm Luger cartridge.

   -Item 28, a spent cartridge case in one room. 

   -Item 30, a single spent 9mm bullet (fired projectile) in a closet in another room, with apparent aligned bullet holes through the wall and the door of the closet.

6. The applicant was arrested and conveyed to hospital for treatment.  I am told by the prosecution that during an interview the following morning (24 December 2018) the applicant said to police, inter alia, that:

   -the firearm was not his and that it belonged to a third party (but he would not name the person);

   -he did not know how he came to be in possession of the firearm;

   -he did not know who the owner of the firearm was;

   -he did not know who gave him the firearm;

   -he did not know anything about the ammunition found in the house (or presumably any bullet holes in a wall or wardrobe), stating it was a rental property; and

   -his lack of recall was because of his intoxication from being on drugs.

7. Mr X has apparently declined to provide a statement to police.

   The applicant’s antecedents

8. The applicant was born on 31 July 1991. He is now just short of 29 years of age and has a significant criminal record. Relevantly, he has some six convictions for failing to comply with bail agreements. He has also been the subject of some five first instance warrants issued by the Parole Board and one first instance warrant issued by the Elizabeth Magistrates Court. He has convictions for recklessly causing harm and carry offensive weapon.

9. As to firearms offences, the applicant has convictions for possess firearm without a licence; possess unregistered firearm; and failure to store ammunition separately from firearms, all committed on 5 January 2012. For those offences (together with other serious drug offences) he was sentenced in the District Court on 7 August 2013 to a total head sentence of two years four months and was disqualified from holding a firearms licence until further order. On 2 February 2013, the applicant was served at the Adelaide Remand Centre with a Firearms Prohibition Order relating to those firearms offences.

10. On 11 May 2018 the applicant was convicted of three Counts of driving while under suspension and was sentenced to three months imprisonment suspended upon entering a bond for one year six months. He will be in breach of that bond if convicted of the present offences.

    The period of custody on the present charges

11. The applicant has been in custody in relation to the present charges since his arrest on 23 December 2018. He was refused bail initially by a Magistrate on 25 January 2019 and seeks review of the more recent decision by a Magistrate to refuse bail on 6 June 2019. He maintains that he wishes to plead not guilty and wants a trial as soon as possible.

    The submissions for the applicant

12. Counsel for the applicant, Mr Kimber SC, seeks bail on strict home detention conditions, offering suitable premises and the applicant’s mother as guarantor. He did not dispute that the applicant is a prescribed applicant under s 10A of the Bail Act 1985 (the Bail Act).

13. Counsel relied upon the length of time the applicant was likely to remain in custody on remand if bail was not granted. He submitted that, due to the provisions of the Criminal Procedure Act 1921 and the attitude of the prosecution, “Mr Allsopp faces a delay of some 12 months between arrest and arraignment and a further eight months between that arraignment and his trial”, a period of about one year and eight months from arrest to likely trial date.

14. Counsel sought to compare that period of custody with the likely sentence that might be imposed should the applicant be eventually convicted. In the affidavit sworn by the applicant's instructing solicitor relied upon at the hearing, reference was made to four recent sentences passed in the District Court, copies of which I have been provided.

15. Counsel also sought to rely upon statements of this Court in R v Cekic,[1] R v Tamas,[2] and R v Pepper[3] concerning prosecutorial delay as possibly constituting “special reasons”.

    [1] (2014) 244 A Crim R 462.

    [2] (2013) 115 SASR 577, 583 [22].

    [3] [2018] SASC 184.

    Consideration

16. One purpose of s 10A of the Bail Act is to protect the community from bail applicants who pose, or may pose, a relatively greater risk than normal to the public’s safety. The applicant is not to be granted bail unless he establishes the existence of special circumstances justifying his release. As Kourakis CJ observed in R v Lombardi, “the term ‘special circumstances’ will ultimately take its meaning and content from the context of the provision in which it appears. It connotes circumstances which take the particular case outside of the contemplated scope of the statutory provision. ...”.[4]

    [4] (2013) 115 SASR 577.

17. As to the four recent sentences passed in the District Court referred to above, I simply observe that in each of them, the respective firearms were found stored at premises in an unloaded condition. This is a very different scenario from the present case of carrying a loaded 9mm pistol in a public street. Further, none of them involved a person at the time of the relevant offending being subject to a Firearms Prohibition Order as the applicant was. And finally, in each of those cases, the defendant pleaded guilty with the consequent entitlement to a reduction of sentence for that plea, to which the present applicant will not be entitled if he pleads not guilty. Indeed, were the applicant to be convicted, he would have very little claim to leniency on grounds such as being a first offender, youth, contrition, co-operation with police or an early plea of guilty. Indeed, the prosecution contend that he would be sentenced as a serious repeat offender, which engages a rigorous regime including a mandatory minimum 80 per cent non-parole period, but I do not need to express a final view as to that contention.

18. I must say that I find the instructing solicitor’s reliance in her affidavit on some recent sentencing remarks in the District Court, as presented on the Courts SA website, to be somewhat limiting. It is not difficult to search for the judgments of the Supreme Court concerning sentencing for firearms offences, for decisions of both single Judges and the Full Court, by using free search engines such as or by reference to publications such as Criminal Law South Australia.[5]

    [5]    Looseleaf publication by LexisNexis.

19. Mr Kimber did refer to several other sets of District Court sentencing remarks, but with respect I do not think that they have a close bearing here. The only decision of the Court of Criminal Appeal to which he referred was that of R v Capaldo,[6] but again that involved a plea of guilty concerning a firearm in storage. It was “in a picnic style bag in a loft inside the garage.  The loft area could only be reached by climbing on furniture stored in the garage.  There was no ladder or direct access to the loft.”[7] Further, the case was very fact sensitive concerning, inter alia, the defendant’s mental state at the time of the offending and her personal circumstances and is of very little present assistance.

    [6] [2015] SASCFC 56.

    [7] [2015] SASCFC 56, [4] (Gray and Sulan JJ).

20. I would have thought that the decision of the Court of Criminal Appeal in R v Daniele[8] is very much closer to the present facts. Gray J there summarised the essential facts as follows:

    8. On 22 November 2012, a police patrol was driving along Leslie Avenue, Blair Athol.  The police officers noticed the defendant walking in the same direction on the footpath and carrying a brown female’s handbag over his shoulder.  The police vehicle performed a U-turn.  The police officers observed the defendant place the handbag on the ground in the driveway of a house and continue walking.  The police officers asked the defendant to stop, which he did.  A search of the handbag revealed that it contained a sawn-off shotgun with one live shell in the chamber.  The shotgun was found in two pieces and it was agreed before the Judge that the shotgun could not be immediately fired in that state without further assembly.  Another eleven shells and a pair of motorcycle gloves were also located in the handbag.  The defendant was arrested.  The defendant did not have a licence to carry the shotgun, which was a prescribed firearm as it was less than the minimum length.

    [8] [2014] SASCFC 22.

21. In Daniele, the firearm was a prescribed firearm (a shortened shotgun) and thus the maximum penalty for the aggravated charge (it being “loaded”) was imprisonment for 15 years or a $75,000 fine whereas the maximum penalty for an aggravated charge (it being “loaded”) for a class H firearm (pistol) as in the present case is imprisonment for 10 years or a $50,000 fine. However, having said that, in fact the present applicant is in a worse position than Daniele because he was subject to a firearms prohibition order at the time of the possession whereas Daniele was not. The maximum penalty for this particularly serious offence under s 45(2) is imprisonment for 15 years or a $75,000 fine. Further, the matter of the obliterated serial number is also to be taken seriously; the maximum penalty for this additional serious offence under s 29(5)(b) is imprisonment for 7 years or a $35,000 fine.

22. One also notes that in Daniele there was no element of flight and resistance as there is in the present case. And although there was one cartridge “in the chamber” in Daniele, the “chamber” there was no more than one end of the separated two joined parallel pipes open at each end (the double barrel), with no discharge possible until the gun was assembled, only then forming an actual chamber closed by the breech block. The position in the present case of a loaded magazine fully inserted in a semi-automatic pistol was the much more dangerous situation in that a cartridge could be charged into the breech from the magazine by a simple and very quick movement of the slide backwards and letting it go forwards, a matter of literally a second or so. That would enable the first cartridge to be fired by a simple pull of the trigger; and the second cartridge could be fired immediately thereafter with no more than a second pull of the trigger.

23. Coincidentally, just as in the present case, Daniele’s offending breached an earlier suspended sentence bond for a relatively short period of imprisonment, four months compared to three months in the present case.

24. In Daniele, the District Court Judge took as his starting point a sentence of five years. He reduced it for the guilty plea to three years and nine months to which was then added the four months for the previous suspended sentence, but that reduction has no bearing here because the defendant is pleading not guilty. On an appeal by the defendant, the Court of Criminal Appeal declined to interfere with the sentence.

25. Finally, it is to be noted that, if convicted, the applicant will also be subject to the “Serious Firearm Offenders Regime” under ss 49 to 51 of Sentencing Act 2017 but it is not necessary to dwell on the details of that for present purposes.   

26. As to prosecutorial delay constituting “special reasons”, Cekic and Tamas were decided in the very different context of a specific regime established by s 3A of the Bail Act concerning persons who were determined to be serious and organised crime suspects; the legislation included the provision in s 3A(2) that a determination that a person is a serious and organised crime suspect ceased to apply after six months if by that time, the person had not been tried, or was not on trial, for the offence (and the trial of the offence was not subject to a determination of the Supreme or District Court under s 127 of the Criminal Procedure Act 1921).

27. It was in that context that in Cekic¸ Kelly J held that the term “special circumstances” is wide enough to encompass the situation of persons who were determined to be serious and organised crime suspects but were being detained in custody pending a trial long after the expiration of the specified six month period.[9] I note that of the three applicants in Cekic, the first was said to be “still a young man with a negligible prior criminal history … with no suggestion that [he] poses a flight risk”.[10] The second had a minor criminal history with two very minor breaches of bail conditions with negligible risk involved in releasing him on bail.[11] The third, Dettman, had an extensive criminal history such that it did not give her Honour “any confidence in him complying with any bail conditions”.[12] Her Honour granted bail to the first two, but not to Dettman. Although the record of the present applicant is not as bad as that of Dettman, it appears to be closer to him than to the first two applicants in Cekic.

    [9] (2014) 244 A Crim R 462, 471 [43].

    [10] (2014) 244 A Crim R 462, 474 [64], [67].

    [11] (2014) 244 A Crim R 462, 475 [73] – [76].

    [12] (2014) 244 A Crim R 462, 475 [77].

28. In Tamas, Blue J took a similar approach to that of Kelly J. His Honour stated:[13]

    In considering whether special circumstances are established, it is relevant to take into account the fact that the original serious and organised crime suspect determination has expired and the matter did not reach trial within the requisite six months during the operation of that determination. It is relevant to take into account that this state of affairs is the result of the prosecuting authorities not having taken sufficient steps to expedite the preparation and service of declarations and an expedited committal hearing. These matters in themselves do not result in a conclusion that special circumstances justify the grant of bail, but they are important matters to be taken into account. [Citations omitted.]

    [13] [2017] SASC 12, [57].

29. However, while there are legitimate analogies to be drawn, the approach taken in both Cekic and Tamas is to be seen in the context of the provisions of s 3A of the Bail Act (as it then was), a very different context to that applicable in the present proceedings. In this regard, I note the comments of Stanley J in R v Pepper.[14]

    [14] [2018] SASC 184, [17] – [28].

30. As to the relative periods of custody awaiting trial, as between Pepper and the present case, it appears that the applicant in Pepper was arrested on 19 August 2018 and was in custody from then to the date of the judgment in Pepper on 4 December 2018 with a possible arraignment in the District Court of April 2019 and a hoped for trial date eight to nine months after that, a total period from arrest to trial of about one year and four months. In the present case, as noted above, Mr Kimber stated that the applicant faces a delay of about one year and eight months from arrest to likely trial date, comparable to the period in Pepper.

1. Of course, these periods are obviously too long and I accept, as did Stanley J in Pepper, that as observed in Cekic and Tamas, “there may come a time when delay becomes so oppressive that special circumstances could be found to exist”.[15] However, again like Stanley J, I consider that that stage has not yet been reached in this case.

   [15] [2018] SASC 184, [30].

2. In the present case, Mr Kimber expressly declined to say anything about what defence the applicant might have to any of the charges and it is, of course, generally the applicant's legal right to keep his proposed defence to himself to the last moment. However, there may be possible consequences of taking this attitude on a bail application such as this where the prosecution case appears strong and clear cut and the applicant faces the significant hurdle of having to establish special circumstances under s 10A of the Bail Act.

3. In circumstances where it is difficult to know what the defence may be, one consequence is that the articulation of a strong and clear prosecution case is not impinged upon by any articulation of a defence, thus militating against a finding of special circumstances. Additionally, this applicant may be taken to be well aware of the strength of the prosecution case and also of the high likelihood of a substantial custodial sentence being imposed in the circumstances referred to above, if convicted. In these circumstances, and in view of the defendant’s poor bail and parole records, it is legitimate to take into account the real risk that, as the date for trial draws nigh, the applicant may abscond from bail rather than face that likely substantial custodial sentence.

4. The cumulative effect of all of the above reasons precludes the finding of special circumstances here.

5. I dismiss the application to review and refuse to grant bail.