R v BAKER - [2015] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAKER
[2015] SASCFC 110
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
13 August 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
Appeal against sentence. The appellant pleaded guilty to the offences of possessing methylamphetamine, trafficking in methylamphetamine and possessing a firearm without a licence. He was sentenced to imprisonment of three years and three months, with a non-parole period of 18 months.
On appeal, it was argued that the sentence was manifestly excessive; that the sentence imposed lacked parity with the sentence of the appellant's co-offender and that the Judge made an error of fact in the sentencing process.
Held per the Court: Appeal dismissed. The head sentence was not manifestly excessive. There was a proper basis on which to differentiate between the appellant and his co-offender. On the evidence, it was open to the Judge to make the factual finding that he did in relation to the firearm offence.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Violi [2015] SASCFC 2; Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606, applied.
Pearce v The Queen (1998) 194 CLR 610; Berichon v R; Houssein v R [2013] VSCA 319; House v The King (1936) 55 CLR 499; Bugmy v The Queen (2013) 249 CLR 571, discussed.
R v Kong (2013) 115 SASR 425; R v Nozuhur [2013] SASCFC 81; R v Scarpantoni [2013] SASCFC 120; R v Lutze (2014) 121 SASR 144, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "parity"

R v BAKER
[2015] SASCFC 110
Court of Criminal Appeal: Nicholson, Parker and Lovell JJ
THE COURT.
Overview

On 27 July 2012, as a result of information received, police raided the appellant’s property. The appellant and his female co-offender were living in a shed situated at the rear of the property. Upon searching the property the police discovered drugs, ammunition and a prescribed firearm, namely a sawn-off shotgun. Also located were scales containing traces of amphetamine, tick lists, pre-sealed bags and cutting agents.
A tub containing 1.3 grams of methylamphetamine (0.56 grams pure) was found in a bag belonging to the appellant. Two other tubs found on a microwave oven contained a total of 3.66 grams of methylamphetamine (1.16 grams pure). A sawn-off shotgun was found by police inside a box in the living area of the shed. The gun was in three pieces at the time it was located.
The appellant pleaded guilty on the morning of trial in the District Court to one count of possessing methylamphetamine (tub containing 1.3 grams of methylamphetamine), one count of trafficking methylamphetamine (tubs containing 3.66 grams of methylamphetamine) and one count of possessing a firearm without a licence (sawn-off shotgun). His co-offender also pleaded guilty to one count of trafficking methylamphetamine.
The learned sentencing Judge used section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed a single term of imprisonment in respect of all the offending. The appellant was sentenced to imprisonment for three years and three months, reduced from a starting point of four years on account of his guilty pleas. Both the sentence and non-parole period of 18 months were further reduced by four months to take into account time spent in custody and on home detention bail. The sentence commenced from 26 March 2015. The Judge also ordered the forfeiture of the drugs and sawn-off shotgun and disqualified the appellant from holding or obtaining a firearms licence until further order.
The Appeal
There were three grounds of appeal as follows:
1(a)the sentence imposed was manifestly excessive as the starting point was too high;
1(b)the sentence imposed lacked parity with the sentence imposed on the appellant’s female co-offender; and
2.the learned sentencing Judge erred in finding beyond reasonable doubt that the appellant was to be sentenced on the basis that the possession of a disassembled firearm was related to the drug offending thereby causing a further circumstance of manifest excess.
It is more convenient to deal with them in reverse order.
Ground 2
As mentioned earlier a sawn-off shotgun was located by the police in the shed where the appellant was living. It was in three pieces. During the course of his sentencing remarks the Judge said:
The shotgun had been broken down into three pieces, but by the look of it it could have been quickly reassembled and put to use to frighten any would-be drug thieves, or to enforce drug debts.
It was submitted that there was no evidence upon which the Judge could find that the sawn-off shotgun could be “quickly reassembled”. It was submitted that the Judge made a significant error of fact. It was further submitted that having made that finding the Judge erred in linking the possession of the firearm to the drug offending.
That there was no direct evidence as to the time it took to assemble the firearm can be accepted. However, in order to appreciate how the Judge arrived at this finding, it is necessary to understand how the issue was dealt with before him.
The appellant pleaded guilty to the two charges on the morning of trial namely 24 September 2014. The matter was adjourned to a date to be fixed for submissions. Eventually submissions were heard on 26 March 2015. Having heard the submissions the Judge remanded the appellant in custody for sentence on 31 March 2015. The sentencing did not proceed on that day as the Judge required further submissions as to why the appellant “retained the shotgun”. The appellant submitted through his counsel Mr Williams that it was “simply an omission on his part that he hadn’t handed it in”.
The Judge then observed:
Mr Williams, he had it readily to hand, it could have been reassembled very quickly. There was ammunition for it and he is not storing it safely. In those circumstances, unless he gives evidence to the contrary, I will be sentencing on the basis that it was connected with his trafficking activities. Do you want some time to take instructions?
After a short adjournment the appellant gave evidence. The appellant gave evidence as to how he came into possession of the gun and why he did not dispose of it earlier. The Judge rejected his evidence. The question of whether the firearm could be assembled quickly was not the subject of any evidence. The evidence of the appellant was that he, having found it, paid no attention to it.
During the course of further submissions the following exchange took place:
His Honour: And by the look of it the sawn-off shotgun could have been reassembled very quickly and it is plainly a handy weapon in a confined space.
Mr Williams: We can’t deny that that’s the case.
There was evidence before the Judge that the firearm could be assembled. The declaration of Brevet Sergeant Tobiasen established that the firearm had been assembled and was found to fire correctly.
It was open for the Judge to infer from the photographs that were before him in addition to Brevet Sergeant Tobiasen’s declaration that the shotgun could be reassembled quickly. Further the Judge identified the issue and the appellant, during the course of submissions, accepted that such a finding was open.
In our view no error is shown in the approach of the Judge to this issue.
The appellant pointed to the fact that he had in his legitimate possession a registered rifle and shotgun both of which were properly secured in a gun safe. It was submitted that if under threat from thieves, rather than have to reassemble a firearm, the appellant could have more easily accessed his legitimate firearms. Thus it was submitted that the Judge’s finding that the sawn-off shotgun was related to the drugs could not be sustained. The Judge in his sentencing remarks dealt with the appellant’s possession of the two registered firearms. He noted that even in its disassembled state the unlawful firearm could “well act as a deterrent to anyone who noticed it while they were in your shed”. He further noted that the offence of trafficking in drugs when accompanied by possession of a firearm was both serious and an aggravating feature in sentencing for both crimes “irrespective of whether or not the precise nature of the connection between the two of them is shown”. This observation of the Judge is consistent with the remarks made by the Chief Justice in R v Violi.[1]
[1] [2015] SASCFC 2 [33].
Having rejected the appellant’s evidence it was open for the Judge to find that the appellant’s possession of the sawn-off shotgun was related to his possession of the drugs. No error of approach by the Judge has been established and we dismiss this ground of appeal.
Ground 1(b)
The appellant submitted that his sentence lacked parity with that of the co-accused.
The co-accused pleaded guilty to one count of trafficking in methylamphetamine. Whilst she was originally charged with possession of the same firearm a nolle prosequi was entered in relation to that charge. The appellant also pleaded guilty to the further charge of simple possession of methylamphetamine. The co-accused did not face that charge.
The co-accused was sentenced on the basis that she was involved in “cutting” the drugs obtained by the appellant. For assisting the appellant in that way she was able to stay in the shed and receive amphetamine for her own use. The appellant accepted before the Judge that submission of his co-accused.
At the time of the offending the co-accused was 18 years and six weeks old. She had no relevant prior involvement with the law other than some minor traffic matters.
The “parity principle” requires that like offenders should be treated in a like manner. However, the sentences must also reflect the different degrees of culpability and/or different circumstances and background of the offenders.[2] On appeal a court will interfere in a case where it considers that the disparity is such as to give rise to a justifiable sense of grievance in that justice is not seen to have been done. However, a court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.[3]
[2] Green v The Queen (2011) 244 CLR 462.
[3] Lowe v The Queen (1984) 154 CLR 606.
There was some commonality in the background of the appellant and the co-accused. Both suffered from a dysfunctional upbringing and indeed met whilst both were living “on the streets”; both were addicted to methylamphetamine.
However, there were significant differences that the Judge was required to take into account. At the time of the offending the co-accused had only just turned 18 years of age; the appellant was 25 years old. The role of the co-accused in the offending was less than that of the appellant. Further there was a significant discrepancy in their prior involvement with the law. As mentioned the co-accused had no relevant prior convictions. The appellant however had been convicted of a number of prior offences, although it must be acknowledged that many of them are minor. The appellant’s most serious offending occurred whilst on bail for these matters. Those matters, of course, are subsequent convictions but they can be taken into account, as the Judge has done, when considering the question of his rehabilitation prospects.
When sentencing the appellant the Judge used section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed one sentence for all of the offending. The co-accused was only sentenced for the trafficking offence. The Judge did not nominate a notional sentence for the trafficking offence (nor was he required to). It is therefore unknown what allowance the Judge may have made for the differences between the appellant and the co-accused. However, the Judge had to sentence the appellant for a firearms offence which in itself was very serious. Assuming for the moment that the Judge did allow some discrepancy between the sentences to take into account the parity principle there was ample justification for him doing so. Given the seriousness of the firearm offending it is likely that there was only a relatively small difference in the starting point for the sentence in relation to the trafficking offence.
We dismiss this ground of appeal.
Ground 1(a)
As mentioned the Judge used section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed one sentence in relation to the three offences. The Judge started with a sentence of four years imprisonment and to take into account the appellant’s pleas of guilty he reduced the sentence to three years and three months imprisonment. He fixed a non-parole period of 18 months and then reduced both the head sentence and the non-parole period by four months to take into account time spent in custody and some time on home detention bail. On appeal there was no complaint about the reduction in the sentence for the guilty pleas. It was submitted on appeal that the starting point of four years imprisonment was too high taking into account the circumstances of the offending and the background of the appellant.
The maximum penalty for possession of methylamphetamine is imprisonment for two years or a fine of $2000 or both. For trafficking in methylamphetamine the maximum penalty is 10 years imprisonment or a fine of $50,000 or both and for possessing a firearm without a licence the maximum penalty is 10 years imprisonment or a fine of $50,000.
The appellant suffered from a dysfunctional upbringing and did not complete his education. The appellant lived on the streets after leaving school until he was taken in by his uncle. He commenced working at a young age and qualified as a boilermaker. Up until the time he became addicted to methylamphetamine, he had a good employment history and was able to purchase a block of land on which he built the shed. In 2011 as a result of a relationship breakdown the appellant’s life went into a downward spiral. The appellant was unable to maintain the mortgage repayments after his arrest resulting in the bank foreclosing on the mortgage. The bank is still owed over $80,000. At the time of sentencing, the appellant was living with his parents and in a new and stable relationship. He was in employment and his partner was pregnant. References tendered spoke highly of him and the Judge was prepared to infer that he was at that time “drug-free”.
The Judge accepted that the appellant’s rehabilitation was heading in the “right direction”. The Judge also noted that the crimes of trafficking and possession of the sawn-off shotgun were to be regarded as serious and that the deterrence of others must “be a predominant consideration in fixing sentence for crimes such as these”. The Judge stated that despite the appellant’s progress with his rehabilitation, the seriousness of the trafficking and firearm offences was such that he was unable to find “good reason” to suspend the sentence.
The appellant submitted on appeal that the offending in relation to the drugs was at the “lower end of the scale”. Mr Stewart, on behalf of the appellant, pointed to the fact that it was accepted before the sentencing Judge that the appellant and his co-accused were selling only to friends, that the amounts were small, and the conduct had only been occurring for about two weeks. Further, the appellant and the co-accused were selling only to support their addiction. Mr Stewart also submitted that the appellant had no prior convictions for drug offending.
The difficulty facing the appellant is the presence of the sawn-off shotgun in the shed and the finding by the Judge that, to some extent at least, the gun was relevant to the drug charge.
The importance of general deterrence in the sentencing of commercial drug offending has been recently emphasised by this Court.[4] The Court has also recently emphasised the importance of general deterrence in the sentencing of offenders who commit offences against the Firearms Act 1977 (SA).[5]
[4] R v Kong (2013) 115 SASR 425; R v Violi [2015] SASCFC 2.
[5] R v Nozuhur [2013] SASCFC 81.
In R v Violi[6] the Chief Justice discussed the approach to be adopted when there is a relationship between a firearm and drugs. He noted that the illegal possession of firearms by drug traffickers must be “strongly deterred”. He observed that there was “very little reason for concurrency between the sentence imposed for the two kinds of offences”.[7] He further observed that possession of drugs and firearms is serious, and an aggravating factor in sentencing for both offences whether or not the precise nature of the connection between the two could be shown. Of course a sentencing Judge must be careful not to punish an offender twice for the same conduct.[8] The punishment to be exacted should reflect what the offender has done.
[6] [2015] SASCFC 2.
[7] R v Violi [2015] SASCFC 2 [34].
[8] Pearce v The Queen (1998) 194 CLR 610; Berichon v R; Houssein v R [2013] VSCA 319.
When considering whether a sentence is manifestly excessive an appellate court should consider a number of factors including, the maximum penalty for the offence, the range of sentencing customarily observed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.[9] In this case no factual error or error of legal principle has been demonstrated by the appellant.
[9] R v Scarpantoni [2013] SASCFC 120.
However, a court may interfere if, notwithstanding that a particular error is not identifiable, the decision of a judge is so unreasonable or unjust as to imply that the decision must have been affected by error of some kind.[10] To succeed on this basis the appellant must establish that the sentencing Judge’s discretion miscarried because in the result the Judge imposed a sentence that was outside the range of sentences that could be justly imposed for the offences, consistent with sentencing standards.[11]
[10] House v The King (1936) 55 CLR 499.
[11] Bugmy v The Queen (2013) 249 CLR 571; R v Lutze (2014) 121 SASR 144.
There was much to be said in the appellant’s favour. The Judge reflected those factors when fixing the non-parole period. However, the head sentence had to reflect the seriousness of the offending. The presence of the firearm connected with the trafficking of drugs required that general and personal deterrence play a significant role in sentencing.
In our opinion, the appellant has not established that the Judge imposed a sentence which was so unreasonable or plainly unjust that it is outside the permissible range of sentences for the offender and the offences.
We dismiss this ground of appeal.