R v Baldetti - [2008] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BALDETTI
[2008] SASC 232
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
22 August 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - DETERRENCE
Appellant pleaded guilty to one count of prejudicing the safe operation of an aircraft, five counts relating to firearms, one count relating to a knuckle duster and one count of failing to answer questions - sentencing judge sentenced appellant to a term of imprisonment in relation to the aircraft offence and another cumulative term of imprisonment in relation to four of the other offences - sentencing judge reduced total sentence for time spent in custody - whether sentencing judge erred in applying reduction to total sentence as opposed to individual sentences - held, sentencing judge should have specified to which sentence the reduction applied - matter remitted for sentencing judge to rectify technical error pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA) - whether sentencing judge erred in the exercise of his discretion not to suspend the term of imprisonment pursuant to s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) - whether sufficient weight placed upon appellant's personal circumstances - held, personal and general deterrence of the utmost importance in this case and outweighed appellant's personal circumstances.
Held: Appeal dismissed. Matter remitted to sentencing judge to rectify technical error pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA).

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE
Appellant pleaded guilty to one count of prejudicing the safe operation of an aircraft, five counts relating to firearms, one count relating to a knuckle duster and one count of failing to answer questions - sentencing judge sentenced appellant to a term of imprisonment in relation to the aircraft offence and another cumulative term of imprisonment in relation to four of the other offences - whether sentencing judge rejected appellant's explanation in relation to firearms offence and should have put the appellant on notice and allowed the appellant to call evidence - held, sentencing judge did not reject appellant's explanation.
Held: Permission to appeal refused.
Aircraft Offences Act 1971 (SA) s 10; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 18A, s 38(1); Firearms Act 1977 (SA) s 11(1), s 29A(1); Summary Offences Act 1953 (SA) s 15(1a)(b), s 15(1c)(b), s 74AB(2)(a); Firearms Regulations 1993 (SA) reg 32(1), reg 53, referred to.
Dinsdale v The Queen (2000) 202 CLR 321; R v Fraser [2008] SASC 40 (Unreported, Doyle CJ, Bleby and Gray JJ, 14 February 2008); R v Lobban (2001) 80 SASR 550, considered.

R v BALDETTI
[2008] SASC 232
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: I agree that the appeal should be dismissed for the reasons given by David J.
The main focus of the appeal was on the sentencing judge’s decision not to suspend the sentence of imprisonment which was imposed. It was not argued on the hearing of the appeal that the head sentence, which was comprised of the sentence for the offence of prejudicing the safe operation of an aircraft and the cumulative sentence for the firearms offences, was of itself, manifestly excessive.
The head sentence having been imposed, it was necessary for the trial judge to consider whether good reason existed for suspending the sentence.[1]
[1] Criminal Law (Sentencing) Act 1988 s 38(1)
In deciding whether to suspend the sentence the sentencing judge was not restricted to a consideration of the personal matters which told in favour of the appellant. He was also required to revisit those circumstances which were relevant to the imposition of the head sentence.[2]
[2] Dinsdale v The Queen (2000) 202 CLR 321 at [85]
Prominent amongst those considerations was the seriousness of the offence involving the aircraft. There were three people on board, it was flying at low altitude over a populated area and it was not far from a commercial airport. The requirement to give prominence to general and personal deterrence in these circumstances is self-evident.
It has not been demonstrated that there was any error in the exercise of the discretion which resulted in the sentencing judge declining to suspend the sentence.
VANSTONE J: I agree that the appeal should be dismissed. I agree with the reasons of Duggan J and David J.
DAVID J:
Introduction
This is an appeal against sentence. On 10 October 2007, the appellant pleaded guilty in the Port Adelaide Magistrates Court to an Information in relation to one count of prejudicing the safe operation of an aircraft, contrary to s 10 of the Aircraft Offences Act 1971 (SA) and one count of possessing a firearm without a licence, pursuant to s 11(1) of the Firearms Act 1977 (SA). On 15 January 2008, the appellant also pleaded guilty in the Port Adelaide Magistrates Court to two Complaint files involving a number of firearms offences and possession of a prohibited weapon. Included in those files was a charge of failing to answer questions as to who was the driver of a vehicle. The following matters were committed to the District Court for sentence:
1.prejudicing the safe operation of an aircraft, contrary to s 10 of the Aircraft Offences Act, the maximum penalty for which is imprisonment for 14 years;
2.possessing a firearm without a licence, contrary to s 11(1) of the Firearms Act, the maximum penalty for which is a fine of $35,000 or imprisonment for seven years;
3.having control of a firearm and ammunition in a public place, contrary to s 15(1a)(b) of the Summary Offences Act 1953 (SA), the maximum penalty for which is a fine of $10,000 or imprisonment for two years;
4.possessing a prohibited weapon, namely a knuckle duster, contrary to s 15(1c) (b) of the Summary Offences Act, the maximum penalty for which is a fine of $10,000 or imprisonment for two years;
5.possessing a silencer, contrary to s 29A(1) of the Firearms Act, the maximum penalty for which is a fine of $10,000 or imprisonment for two years;
6.failing to properly store ammunition, contrary to reg 32(1) and reg 53 of the Firearms Regulations 1993 (SA), the maximum penalty for which is a fine of $2,500; and
7.failing to answer questions as to the identity of the driver of a vehicle, contrary to s 74AB(2)(a) of the Summary Offences Act, the maximum penalty for which is a fine of $10,000 or imprisonment for three months.
On 8 April 2008 the appellant was sentenced:
1.for the offence of prejudicing the safe operation of an aircraft, to a term of three years imprisonment, reduced to two years and three months for his pleas of guilty;
2.for the offences of:
·possessing a firearm without a licence,
·having control of a firearm and ammunition in a public place,
·possessing a silencer and
·possessing a knuckle duster
to a term of imprisonment of twelve months, reduced to nine months for his pleas of guilty. This sentence was made cumulative upon the first sentence; and
3.for the offences of failing to properly store ammunition and failing to answer questions as to the driver of a vehicle, fines were imposed.
The sentencing judge then accumulated the term of imprisonment of two years and three months, plus the term of imprisonment of nine months, to make a total head sentence of three years. He fixed a non‑parole period of one year. Having done that, he allowed two months for time spent in custody and home detention, thereby reducing the head sentence to two years and ten months and the non‑parole period to ten months.
At the outset, it is agreed by both sides that the sentencing judge erred in the manner in which he reduced the sentence and non‑parole period to make allowance for time spent in custody. It is agreed that pursuant to the decision in R v Fraser,[3] the sentencing judge should have made the reduction from one or other of the two sentences which he eventually accumulated. If he had given one sentence in respect of all offences, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), then the reduction in the manner in which it was done would have been appropriate.
[3] R v Fraser [2008] SASC 40 (Unreported, Doyle CJ, Bleby and Gray JJ, 14 February 2008) [32]‑[33].
It is agreed, however, that the error was purely technical and would have made no difference to the sentence itself. I am, therefore, of the view that if this appeal is dismissed, the matter should be remitted to the sentencing judge to rectify this technical error, pursuant to s 9A of the Sentencing Act.
Circumstances of the Offending
The offence of prejudicing the safe operation of an aircraft occurred during the evening of Monday, 11 June 2007. A helicopter, the property of Australian Helicopters, was being flown over the Port Adelaide area by a civilian pilot. Other than the pilot, there were two police officers on board, who were observing the roadways below for any untoward driving. The pilot noticed a bright green light flashing around the cockpit. He received green flashes to his eyes. The flashes were approximately half a second apart, and during the time of exposure the pilot could see nothing but green. He said that he suffered blindness for approximately five to ten seconds. It then took him a few seconds to regain normal vision in order to read the helicopter’s instruments. One of the police officers observed an intense green light moving around the roof of the cockpit, and was of the view that it continued over a period of about 20 seconds.
At the time, the appellant was in the Rosewater area, and, as he later admitted, had been training a laser at the helicopter. Police on the ground were able to locate his vehicle, the appellant having driven to a BP service station on Grand Junction Road. The appellant was apprehended and produced the laser. On searching the vehicle, police also found a .22 rifle with a telescopic sight and a silencer, a container of 48 rounds of live .22 ammunition, two magazines each containing 10 live rounds and a knuckle duster. When spoken to at the service station, the appellant said he was shining the laser at the helicopter because the helicopter had been shining a searchlight upon him. The appellant gave explanations for the presence of the rifle, the ammunition, the laser, the silencer and the knuckle duster. I will refer to those when addressing the grounds of appeal.
The charge of failing to truthfully answer questions related to an incident about a week earlier. There is no appeal in relation to the fine imposed for that offence.
Personal Circumstances
The appellant was aged 23 years at the time of the offences. He lives with his father and is the eldest of three boys. He was educated at LeFevre High School and left school in Year 11 to work in his family’s salvage and demolition business. He has suffered serious injuries in a number of motor vehicle accidents. In recent times he has worked as a truck driver for Nesci Earthmovers. Since about 2001 he has been a user of amphetamine and, at the time of the offending, used it daily. A number of personal references, which spoke highly of the appellant, were tendered to the court. A psychiatric report was also tendered from Dr Craig Raeside, indicating that the appellant requires no psychiatric or psychological treatment, but recommending a course of drug rehabilitation. The appellant has had four minor Magistrates Court appearances, all of which were dealt with by way of fine and were disregarded for the purposes of sentencing.
Grounds of Appeal
There are three grounds of appeal against sentence:
1.    The learned sentencing judge erred in declining to suspend the sentence of imprisonment in that insufficient weight was given to the applicant’s personal circumstances, previous good character and prospects of rehabilitation.
2.    The sentence is manifestly excessive.
2.1Too much weight was placed on the principles of general and personal deterrence in the circumstances of this case.
2.2There was insufficient emphasis given to the applicant’s personal circumstances at the time of the offending, previous good character and prospects of rehabilitation.
3.    The learned sentencing judge erred in finding that the applicant’s explanations as to his possession of firearms “stretch the bounds of credulity”. The learned sentencing judge was obliged to either accept those explanations or provide the applicant with the opportunity to give evidence on the topic and have the matter determined by way of oral evidence.
Permission to appeal was granted by White J on grounds 1 and 2, but refused on ground 3.
Ground 3
I deal first with ground 3. In his sentencing remarks the sentencing judge said:
As far as the firearms offences are concerned, your explanation through your counsel was:
·     that you were about to apply for a licence for the rifle but hadn’t done so;
·     that the rifle, ammunition, laser and silencer were to be used by you in hunting feral animals on your uncle’s property at Morgan on the preceding weekend but that was cancelled and you forgot to remove these items from your car;
·     that the knuckle duster was left in your car by a disreputable friend.
I must say those sparse explanations stretch the bounds of credulity.
Mr Boucaut, counsel for the appellant, now argues that the sentencing judge has rejected the appellant's explanation without giving him the chance to call evidence or give evidence to support his version of events as to why he had possession of the various items. In so arguing, he relied upon the authority of R v Lobban[4] in which this Court said:[5]
[4] R v Lobban (2001) 80 SASR 550.
[5] Ibid 554‑555.
In R v Perre (1986) 41 SASR 105, King CJ pointed out that on a plea of guilty a sentencing judge is required ordinarily to determine the facts of the offending upon the basis of the sworn statements tendered by the prosecution. The statements now tendered by the prosecution are “verified” but not sworn. If an issue arises as to the primary facts disclosed by or to be inferred from those statements, and if resolution of the dispute is required for sentencing purposes, it may be necessary for a sentencing judge to undertake a disputed facts hearing. An issue having been joined, it is a matter for an offender whether or not to call evidence. A sentencing judge is not required to indicate any view of the facts. The offender is on notice that a view contrary to the offender’s position is being urged upon the judge. No unfairness can arise because the judge does not indicate a view during the disputed facts hearing or submissions.
Different considerations may apply if specific issue has not been joined between the prosecution and an offender. As the majority of the High Court pointed out in a joint judgment in R v Olbrich (1999) 199 CLR 270, there is no general issue joined between the prosecution and an offender in sentencing proceedings (p 281). In my view, in the absence of specific joinder, the potential for unfairness exists.
In Perre, King CJ addressed remarks to the roles of counsel and the judge in a situation where, on a plea of guilty, counsel for an offender makes submissions which are in conflict with the inferences the judge considers should be drawn from the sworn statements. After emphasising that, regardless of the attitude of the Crown, it is for the judge to determine the factual basis upon which sentence will be imposed, his Honour said (p 106):
“There seems to be a misunderstanding abroad as to the respective roles of the judge and counsel in relation to the basis upon which sentence is imposed. It is for counsel to decide whether or not to call evidence. If counsel relies upon submissions from the bar table, it is not part of the ordinary role of the judge to indicate that he is not prepared to act upon those submissions so that counsel may decide whether to call evidence. A judge may do so, but he is not bound to do so. He may, and generally will, simply consider the depositions and the submissions and make his decision as to the basis of sentence. There will, of course, be exceptions. If counsel for the defence were to indicate that he refrains from calling evidence because he has reached agreement with the prosecution as to the basis upon which sentence should be imposed, the judge would be bound, generally speaking, to indicate that he is unwilling, if such be the case, to proceed upon the agreed basis, and to give counsel the opportunity of calling evidence. There may be other circumstances in which the defence can validly claim to have been misled. In general, however, neither the silence, or even concurrence, of counsel for the prosecution, nor the silence of the judge, will entitle counsel for the defence to assume that the judge will sentence upon the basis of his submissions”.
If a version of the criminal conduct put forward in submissions by an offender is inherently implausible or obviously contradicted by inferences plainly arising from the sworn statements, the remarks of King CJ in Perre are readily applicable. However, in other less obvious circumstances, in the absence of the prosecution taking issue with a version put forward in mitigation, an offender may be placed at an unfair disadvantage. Short of asking the judge whether the version put forward in submissions is accepted by the judge, an offender may not be in a position to decide whether it is necessary to call evidence. It is also appropriate to bear in mind that the Crown now takes a far more active role in sentencing proceedings than was the practice in 1986 when Perre was decided. In addition, in the following passage in Olbrich the High Court contemplated that it may be necessary to put an offender on notice of the need to call evidence (p 281):
“Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)”
There can be no inflexible rule. Each case must be determined according to its particular circumstances. The critical question is whether an offender, by some means, is on notice that a submission advanced in mitigation might not be accepted by the sentencing judge.
Mr Boucaut argues that the appellant should have been put on notice, that his explanation, especially in relation to the use of a silencer, was to be rejected. He also puts the fact that a letter from a Mr Corsaro was tendered to the court on sentencing submissions, supporting the appellant’s story that the silencer was to be used in hunting feral animals on the appellant’s uncle’s property in Morgan.
In my view, the argument is ill founded. The sentencing judge does not in fact say that he rejects the appellant’s explanations, he says merely that they “stretch the bounds of credulity”.
I would refuse permission to appeal on ground 3.
Grounds 1 and 2
The thrust of Mr Boucaut’s argument in relation to grounds 1 and 2 concerns the question of the sentencing judge’s refusal to suspend the sentence. At the hearing of this appeal, there was no argument as to the quantum of the penalty. Mr Boucaut argues that the sentencing judge has not given enough weight to the age and previous good record of the appellant, and the fact that this offending was not planned but was rather of a spontaneous nature. He also argues that too much emphasis has been placed upon general deterrence.

I disagree. In my view, general deterrence is of the utmost importance in a case of this type. Despite the fact that the offending was unplanned and spontaneous, it was nevertheless, deliberate and extremely dangerous. The pilot was blind for a number of seconds and the helicopter was flying at a relatively low attitude. Such behaviour could have had fatal consequences, and it was clearly the duty of the sentencing judge to consider the need to protect aircraft from such threats. In my view, the sentencing judge correctly concluded that a suspended sentence of imprisonment would not satisfy the requirement for general deterrence, which outweighed those matters personal to the appellant.
Conclusion
I would dismiss the appeal. However, I would remit the matter to the sentencing judge for the purposes of identifying the sentence, pursuant to s 9A of the Sentencing Act, to which the deduction for time spent in custody applies.