R v Becirovic (No 2) - [2018] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BECIROVIC (NO 2)
[2018] SASCFC 3
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)
19 January 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
Consideration of sentence after outcome of appeal against conviction.
The appellant successfully appealed against his convictions on four counts of drug-related offending. He was unsuccessful in relation to two counts of possessing a firearm without a licence.
The head sentences totalled six and a half years for the drug offending and two years for the firearm offending. This resulted in a total period of imprisonment of eight and a half years, with a non-parole period of five years.
The questions to be decided are whether the sentence imposed for the firearms offences should be affirmed or a different sentence substituted; and whether a new non-parole period should be fixed..
Held (the Court), affirming the sentence and fixing a new non-parole period:
1. The sentence of two years imposed by the sentencing Judge is affirmed.
2. A non-parole period of 16 months is fixed.
The head sentence and non-parole period are to commence on 11 March 2016.
Criminal Law Consolidation Act 1935 s 354(1); Criminal Law (Sentencing) Act 1988 s 32; Firearms Act 1977 (SA) ss 11(1) and 7(b), referred to.
Ryan v The Queen (1982) 149 CLR 1; R H McL v The Queen (2000) 203 CLR 452; R v Forrest (No 2) [2016] SASCFC 91, applied.

R v BECIROVIC (NO 2)
[2018] SASCFC 3
Court of Criminal Appeal: Blue, Lovell and Hinton JJ
THE COURT:
Introduction

On 11 March 2016 the appellant, Kenan Becirovic, was convicted of:
· one count of trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the Controlled Substances Act, 1984 (SA) (the CSA) (count 1);
· two counts of trafficking in a controlled drug, contrary to s 32(3) CSA (counts 2 and 4);
· one count of being in possession of a controlled drug, contrary to s 33L CSA (count 3)[1]; and
· two counts of being in possession of a firearm without a license, contrary to s 11(1) of the Firearms Act 1977 (SA) (Firearms Act) (counts 5 and 6).
[1] A verdict returned in the alternative to the offence of trafficking in a controlled drug as permitted as permitted by s 33R CSA.
For the drug offences the appellant was sentenced to sentences totalling six and a half years as follows; on count 1, imprisonment for 5 years, on count 2, imprisonment for 12 months to be served concurrently with the sentence imposed on count 1, and on count 4, imprisonment for 18 months…

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 Becirovic (No 2)

Details

AGLC: R v Becirovic (No 2) [2018] SASCFC 3
Case: [2018] SASCFC 3
Decision Date: 19 January 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, R v Becirovic, to the Full Court of the Supreme Court of South Australia. The appeal related to sentencing orders made by a single judge following the applicant's convictions for firearms offences. The Director of Public Prosecutions also made submissions regarding the sentencing.

The primary legal issues before the Full Court were the appropriate head sentence for the firearms offences and the determination of a non-parole period. This required the Court to consider the maximum penalties for the offences, the circumstances of the offending, and factors relevant to the applicant's rehabilitation and the impact of his incarceration. The Court also had to address the fact that the original non-parole period had been fixed in relation to convictions that were subsequently quashed.

The Court affirmed the single sentence of two years imprisonment for the firearms offences, noting that the applicant had already served over 22 months of this sentence. In relation to the non-parole period, the Court exercised its power afresh under section 32 of the Sentencing Act. The Court acknowledged the applicant's personal circumstances, including his health concerns and the impact of his separation from his family, which were presented as incentives for rehabilitation. Considering these factors, the passage of time since the offending, and the time already served, the Court determined a non-parole period of 16 months to be appropriate. The head sentence and non-parole period were ordered to commence on 11 March 2016.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant in this Court also refers to three things that occurred since he has been incarcerated that give him added incentive to rehabilitate: first, he suffered a heart attack and medical advice was that he needed to exercise and change his diet, things not easily done in the prison environment. Secondly, his mother has a terminal illness and he wishes to spend time with her. Thirdly, his partner Ms Hunt has epilepsy and suffers debilitating migraines. Consequently, the appellant not being present for his family has weighed heavily with him.Consideration The orders made by this Court on 24 November 2017 enliven s 354(1). The maximum penalty in relation to each of the firearms offences is a fine of $35,000 or imprisonment for seven years.[16] [16] Firearms Act 1977 (SA), s 11(1) and (7)(b). The firearms were a semi-automatic repeater rifle and a 12 gauge pump action shotgun. Both were in working order. They were found by police in the garden shed. In that same shed readily available was ammunition that could be used in the shotgun. The trial Judge concluded that no link could be drawn between the firearms and the drugs. The Director submits that similarly this Court could not conclude that there was a link. Possession of the firearms as an incident of the appellant’s involvement in or association with the illicit drug trade would be an aggravating factor that must be proved beyond reasonable doubt. The Director did not attempt to do so. Complexity arises here in view of the basis upon which the convictions were upheld by the majority. A relevant factor in considering an appropriate sentence is that the appellant has now served over 22 months of a 24 month sentence imposed by the sentencing Judge. In all of the circumstances we affirm the single sentence of two years imprisonment imposed for counts 5 and 6 utilising s 18A of the Sentencing Act. We turn to the question of the non-parole period. It is clear that, because the Judge fixed one non-parole period in respect of four convictions that have been quashed as well as those that have been upheld, we must exercise the power contained in s 32 of the Sentencing Act afresh, including, if appropriate determining not to set a non-parole period. We consider it appropriate to set a non-parole period. We acknowledge that the appellant has other outstanding matters that have a bearing on his prospects of rehabilitation and we do not have the benefit of all the relevant information. However, the appellant has now spent over 22 months in custody. We accept that the impact of his separation from his family weighs heavily upon him and provides incentive not to re-offend. We also accept that he now has health concerns that will serve as some disincentive to re-offend in the future. We bear in mind the passage of time that has passed since the appellant’s offending in 2013. In all the circumstances we consider a non-parole period of 16 months appropriate. The head sentence and non-parole period are to commence on 11 March 2016.