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.

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

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 R v Allsopp

Details

AGLC: R v Allsopp [2019] SASC 112
Case: [2019] SASC 112
Decision Date: 3 July 2019

CaseChat Overview and Summary

The applicant in the case of R v Allsopp was charged with multiple serious offences, including aggravated possession of a category H firearm, possessing a firearm while a firearms prohibition order was in force, and possessing a firearm without an identifying mark. The charges arose from an incident on 23 December 2018 when the applicant was found in possession of a concealed 9mm pistol loaded with live rounds. Additionally, he was charged with resisting a police officer. The legal issues before the court were whether the applicant qualified for bail under special circumstances and whether the severity of the charged offences justified denying bail.

The court considered the nature of the charged offences, particularly the possession of a loaded firearm in a public setting, and the fact that the applicant was subject to a firearms prohibition order. The court highlighted that the applicant’s actions posed a significant risk to public safety, and that the severity of the charges warranted stringent bail conditions. The court also noted that the applicant had little chance of receiving leniency if convicted, which further supported the denial of bail. The court rejected the reliance on recent sentencing remarks from the District Court, emphasizing the need to refer to Supreme Court judgments and decisions for a more accurate understanding of sentencing for firearms offences.

The court concluded that the applicant did not meet the criteria for bail under special circumstances, and denied his application. The court emphasized the need to protect the community from individuals who pose a significant risk due to the nature and severity of the charged offences. The final orders included the continuation of the applicant’s detention pending the resolution of his criminal charges.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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 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. 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. 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. 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).