R v Colenso - [2016] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLENSO
[2016] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
8 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
Appeal against conviction and sentence.
The appellant was found guilty by a jury of aggravated possession of a firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA).
Early in the morning on 14 December 2014, a Senior Constable came across an Audi parked in a dark area of a road. The Senior Constable knew that area of the road was commonly used to take illicit substances, perform lewd acts or commit acts of self-harm. He pulled in behind the car, turning his headlights to high beam and activating his emergency lights to alert the occupants of the vehicle to his presence. The Senior Constable testified that at that time his intent was to check the welfare of the occupants.
When the Senior Constable exited his vehicle, he was immediately approached by the appellant, Mr Colenso. Mr Colenso had been in the driver’s seat of the car. When asked, the appellant handed over his driver’s licence to the Senior Constable. After returning to his car to check the appellant’s licence, the Senior Constable spoke to Mr Alawazan who was seated in the passenger seat. Mr Alawazan was hunched over a bum bag as if he was trying to hide it. The Senior Constable described Mr Alawazan's demeanour as nervous and defensive.
These circumstances enlivened the Senior Constable's suspicion and he decided to search the vehicle pursuant to s 52(9) of the Controlled Substances Act 1984 (SA), and called for other police to assist. A sawn-off shotgun was found under the driver’s seat. Eight shotgun shells were found in a jacket in the back of the car. That jacket was Mr Colenso’s. Mr Colenso and Mr Alawazan had trace particles on their hands which identified that they had handled a firearm. As the driver of the vehicle, Mr Colenso was deemed to be in possession of the firearm. Other drug paraphernalia was also found.
At trial a jury found Mr Colenso guilty of aggravated possession of a firearm without a licence. The learned sentencing Judge sentenced him to two and a half years imprisonment with a non-parole period of 15 months.
The appellant appeals his conviction and sentence. The appellant argues that the Senior Constable’s search which found the shotgun was not lawful. He argues that the trial Judge should not have admitted the firearm’s discovery into evidence. The appellant also submits that he is not a serious firearm offender because the relevant provision does not extend to offenders who are convicted of a firearms offence by virtue of their complicity in the offending.
Held per Kourakis CJ (Nicholson and Hinton JJ agreeing) dismissing the appeal:
1. The search which resulted in the discovery of the shotgun was lawful. At no point was the appellant unlawfully detained by the Senior Constable. The Senior Constable’s suspicion was reasonable and was aroused by a number of relevant and lawful factors including but not limited to Mr Colenso and Mr Alawazan’s conduct, and that the location was known for illicit drug use.
2. The appellant is a serious firearms offender for the purposes of s 20AAB of the Criminal Law Sentencing Act 1988 (SA). Joint possession does not involve fractional rights to the relevant object. Rather joint possession is an element of the actus reus of the offence, and each person who exercises joint possession is a principal offender.
3. A judge’s discretion to suspend imprisonment for a serious firearm offence under s 20ACC should only be exercised in exceptional circumstances. The circumstances of this case were not exceptional.
4. Appeal dismissed.
Controlled Substances Act 1984 (SA) s 52; Criminal Law Consolidation Act 1935 (SA) s 267; Firearms Act 1977 (SA) s 11, s 20AA, s 20AAB; Motor Vehicles Act 1959 (SA) s 96, referred to.
R v Nguyen [2010] SASCFC 23, applied.
Moors v Burke (1919) 26 CLR 265; R v Dib (1991) 52 A Crim R 64; R v Marafioti (2013) 118 SASR 511; R v Nguyen (2013) 117 SASR 432, discussed.

R v COLENSO
[2016] SASCFC 128
Court of Criminal Appeal: Kourakis CJ, Nicholson and Hinton JJ

KOURAKIS CJ: This is an appeal against conviction and sentence. The appellant was found guilty by verdict of a jury of the offence of aggravated possession of a sawn off shot gun without a licence, contrary to s 11(1) of the Firearms Act 1977 (SA) (the Firearms Act). The Judge sentenced the appellant to two and a half years imprisonment and fixed a non-parole period of 15 months. The Judge proceeded on the basis that Mr Colenso was a serious firearm offender. The Judge found that Mr Colenso’s personal circumstances were not so exceptional as to outweigh the need for general and personal deterrence and for that reason declined to suspend the sentence.
The shotgun was found under the driver’s seat of an Audi motor vehicle which had been driven by Mr Colenso. There were two other persons in the Audi. Shotgun cartridges were found in the pocket of Mr Colenso’s jacket which was on the backseat of the Audi. Particles indicative of gunshot residue and selenium, a bluing agent applied to protect the metallic parts of firearms, were detected on swabs taken of Mr Colenso’s left and right hand. Only one of the other persons, the owner of the Audi, Feras Alwazan, was found to have gunshot particles and selenium indicative of contact with a firearm on his hands. Only one particle indicative of gunshot residue was found on the other passenger, Matthew Lancaster. The forensic ballistic expert called by the prosecution could not conclude from the presence of that single particle that Mr Lancaster had been in contact with a gun.
The prosecution case was that Mr Colenso was in possession of the firearm either solely, or jointly with Mr Alwazan. The prosecution also relied on the evidence that Mr Colenso was, as the driver, in charge of the car to prove his possession of the gun by operation of the statutory deeming provision in s 5(14) of the Firearms Act.
The appellant appeals against his conviction on the grounds that the Judge erred in concluding that the police search which discovered the shotgun was lawful and also erred in admitting the firearm’s discovery into evidence. The challenge to the lawfulness of the search is on the ground that a police officer, Senior Constable McGregor (SC McGregor), unlawfully detained the appellant by pulling up his police car, with sirens and headlights on, behind the Audi which was parked on the side of the road and by requesting Mr Colenso to produce his licence. Mr Colenso contends that SC McGregor detained Mr Colenso without holding a reasonable suspicion that he had committed an offence or that a search of the Audi would yield evidence of the commission of an offence. For the reasons which I give below, the Judge correctly found that SC McGregor had not unlawfully detained Mr Colenso before the search was commenced.
SC McGregor did not call in other police for assistance and to conduct a search of the Audi until after he noticed that Mr Alwazan appeared to be hiding something in the car. The Judge found that a combination of circumstances, including Mr Alwazan’s conduct, founded a reasonable suspicion that drugs or equipment associated with illicit drug use were in the Audi and that therefore the power to search pursuant to s 52(9) of the Controlled Substances Act 1984 (SA) was enlivened. For the reasons given below, the Judge was right to so conclude.
The appellant accepts that the offence of which he was convicted is a serious firearm offence. However, Mr Colenso contends he is not a serious firearm offender. This is because s 20AAB(2) of the Firearms Act does not extend to offenders who are convicted of a serious firearm offence only by reason of their complicity in the commission of a serious firearm offence pursuant to s 267 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) or by the doctrine of joint criminal enterprise.
The Judge correctly rejected Mr Colenso’s submission that his conviction was founded on s 267 of the CLCA or the doctrine of joint criminal enterprise. Criminal liability founded on joint possession of a prohibited item is primary and not ancillary. The one or more persons who share possession, to the exclusion of all others, are all principal offenders and not accomplices. It could not be otherwise because there is no basis on which to identify, as a matter of legal status, one of several joint possessors as the principal of a possession offence and the others as accomplices. In any event, Mr Colenso’s conviction was also founded on his being in charge of the Audi. Mr Colenso’s liability on that ground was direct liability as a principal and not by reason of his aiding, abetting, encouragement or procurement of another person to commit the offence nor by his taking part in a joint criminal enterprise.
I would therefore dismiss the appeals against conviction and sentence. I elaborate on my reasons below.
The Evidence
SC McGregor testified that on 14 December 2014 at 2.30 am he came across Mr Alwazan’s Audi parked in a dark area on the side of Coach Road, Rosslyn Park. It was SC McGregor’s policing experience that the occupants of cars on that road, at that time of night, frequently used illicit substances, performed lewd acts or committed acts of self-harm.
As he drove past the Audi, SC McGregor saw that there was a male driver and a couple of other passengers in the car. He executed a U-turn and pulled up behind the Audi activating his emergency lights and placing his front head lights on high beam to alert the occupants to his presence.
SC McGregor testified that he wanted to speak to the occupants of the car to perform a ‘welfare check’ and to ascertain more generally what they were doing. He testified that he was curious about what the occupants might be doing but, at that time, he had not formed an intention to search the vehicle. The first reason given related, no doubt, to his experience of the frequency of persons self-harming in that area. As to the second reason, there can be no objection to a police officer making observations of persons in public places in the same way as any citizen can and without recourse to any special police power.
As SC McGregor got out of the police vehicle Mr Colenso approached him quickly and told him that he had pulled the car over because it was overheating. When SC McGregor asked to see Mr Colenso’s driver’s licence he readily handed it over. SC McGregor moved back to the police car and conducted licence checks. I pause here to observe that it was implicit in Mr Colenso’s acquiescence in handing over the licence that SC McGregor could keep it for a reasonable time to verify the validity of his identity and the licence. SC McGregor ascertained that Mr Colenso had a minor criminal history and that his South Australian driver’s licence was current.
In any event, SC McGregor was empowered to demand production of Mr Colenso’s driver’s licence without holding any suspicion. Section 96 of the Motor Vehicles Act 1959 (SA) (MVA) provides:
96—Duty to produce licence or permit
(1)The driver of a motor vehicle, if requested by a police officer to produce his or her licence or learner’s permit, must produce the licence or learner’s permit either—
(a)     forthwith to the police officer who made the request; or
(b)     within 48 hours after the making of the request, at a police station conveniently located for the driver, specified by the police officer at the time of making the request.
Maximum penalty: $1 250.
(2)A document purporting to be signed by the Commissioner of Police and purporting to certify that a licence or learner’s permit has not been produced as required by this section is, in the absence of proof to the contrary, proof of the matter purporting to be so certified.
(3)A person must not falsely represent to a police officer that he or she is the person named in a licence or learner’s permit.
Maximum penalty: $750.
(4)In this section—
driver includes—
(a)     a person sitting next to the holder of a learner’s permit in a vehicle being driven by the holder of the permit;
(b)     a person being carried as a passenger on, or in a sidecar attached to, a motor bike being driven by the holder of a learner’s permit;
police officer includes an authorised officer.
The obligation imposed on a driver by s 96 of the MVA could hardly be limited to persons who are in the very act of driving. The power would, if so limited, be practically useless and any attempt to exercise it inherently dangerous. Mr Colenso’s counsel’s submission that the obligation rests only on a person whilst still driving a moving car, or attempting to put the car in motion, must be rejected. The word should be given its ordinary meaning. A person is commonly referred to as the driver of a car for a limited period of time after the car has come to rest. Questions of fact and degree are involved. Relevant considerations include:
·the time between when a car was moving and when the request for a licence is made;
·the reason for the delay; and
·whether there has been an interruption mid journey, or whether the journey has concluded.
Here it is plain that Mr Colenso must have driven to the location. The journey had plainly not ended. The car was parked adjacent to vacant land and not near the residential address of any of the occupants. Mr Colenso’s presence in the driver’s seat showed that he had been and was to be the driver of the car when the journey resumed. Accordingly SC McGregor had power, and was authorised to request the licence, even if it had not been volunteered by Mr Colenso. Even if SC McGregor had expressly exercised that power it would not in itself have constituted a detention of Mr Colenso, who was free to go if someone else drove the car and he was prepared to make arrangements to retrieve his licence at a later time. Be that as it may, Mr Colenso handed his licence over without SC McGregor referring to or purporting to exercise, any compulsory power.
As SC McGregor made the licence checks, he noticed the passengers of the Audi moving about in it. After completing the licence check, SC McGregor returned the licence to Mr Colenso and walked around the front of the car touching the bonnet to see if it was warm. The trivial trespass involved in that act can be put to one side because the evidence did not establish that SC McGregor had so positioned himself to prevent Mr Colenso driving away if he wished. I acknowledge that SC McGregor testified that he would have attempted to stop the Audi if it had driven off. If he had succeeded in doing so, different questions may have arisen, but the evidence does not show that that intention was communicated to, and thereby effected a detention of, Mr Colenso.
SC McGregor then spoke to Mr Alwazan whom he saw sitting in the front passenger seat. Mr Alwazan was hunched over a bum-bag in an almost foetal position as if trying to hide it. He was said to clutch the bum-bag with both hands. When spoken to, Mr Alwazan appeared nervous and defensive. SC McGregor testified that only then did he form a suspicion that a search of the vehicle and its occupants might reveal evidence of an offence against the Controlled Substances Act 1984 (SA). SC McGregor said that his suspicion was based on the following:
1.that section of road was known to him as a place at which illicit substances were taken;
2.the presence of three male occupants in an unlit car parked mid-week at 2.30am on the side of the road adjacent to a vacant lot;
3.Mr Colenso’s rapid movement out of the Audi and his nervousness when SC McGregor pulled up;
4.the movements in the vehicle while he was conducting the licence check;
5.the conduct of Mr Alwazan apparently hiding a bum-bag, an item which the police officer understood to be commonly used to illicit substances; and
6.Mr Alwazan’s nervousness.
Having formed the suspicion, SC McGregor called other police officers to assist him. One of those officers located a loaded sawn-off shotgun under the driver’s seat. The shotgun could only be accessed from the backseat of the Audi. SC McGregor found a set of digital scales in the centre console of the Audi and a black gun holster in the front footwell. He also found an ice pipe under the front passenger seat.
A dark jacket was found in the back of the car. At trial Mr Colenso admitted in his evidence that the jacket was his. Eight unspent shotgun shells were found in the right pocket of the jacket.
There was no unlawful detention
The Judge made the following findings on whether or not SC McGregor had detained Mr Colenso or the others before commencing the search:
Given the time and the location of the grey Audi sedan, and that the occupants were seated in complete darkness within the vehicle, I accept Senior Constable McGregor’s evidence that his primary reason for stopping and activating his emergency lights was to conduct what he referred to as a welfare check. I accept that he did not intend to detain, apprehend or search the motor vehicle or its occupants.
....
Senior Constable McGregor was entitled to ask the Applicant and occupants of the motor vehicle questions and he was entitled to request the Applicant to produce his driver’s licence. The police officer did not need any statutory authority to do so. Further, a police officer’s questions of an individual are not unlawful because the individual mistakenly believes he or she is obliged to answer. In my view, the evidence does not support a conclusion that Senior Constable McGregor by his words or conduct attempted to mislead the Applicant or the other occupants of the vehicle. Nor was there any evidence on the voir dire from the Applicant that he was under any such misapprehension. I am satisfied that Senior Constable McGregor did not stop his vehicle and activate his emergency police lights with an intention to detain or search the motor vehicle prior to his conversation with, and observations of, Mr Alwazan.
(citations omitted)
The Judge’s finding that SC McGregor did not attempt to mislead or convey to Mr Colenso in any way that he was under detention is sound. The evidence does not establish that SC McGregor acted in a way calculated to restrain the liberty of Mr Colenso or the other occupants, or to deter them from leaving so that he could continue to make his observations.
It is a matter of common experience that the mere presence of police officers may influence the conduct of the civilians to whom they are speaking. Most will cooperate with police simply because they see it as their public duty to do so. Some will flee, others will refuse to cooperate and go on their own way unless and until police powers are expressly invoked. Others will cooperate with police requests in the hope of deflecting possible suspicion and the exercise of more intrusive powers.
On its face, Mr Colenso’s conduct immediately after SC McGregor pulled up behind the Audi is suggestive of an anxiety to forestall any close examination by SC McGregor of the Audi. Mr Colenso and the other occupants may well have decided to remain parked whilst SC McGregor was still inspecting the car because they thought that driving off would excite his suspicion, cause him to give chase, pull the car over, and search it. As the evidence of SC McGregor shows, if that was the calculation they made, they were right. However the decision to stay, for whatever reason it was made, was not a product of any calculated conduct by SC McGregor to convey to Mr Colenso, or any of the other occupants, that they were under detention. It was the product of a calculus that Mr Colenso on his own, or with the others, undertook to, as we now know, avoid a search of the vehicle. If the courts were to exclude the product of police investigation, conducted by simple observations made in public places and without exercising any compulsion, but made possible by the hesitation of persons to leave, the effectiveness of police work would be seriously compromised. It is only when police by their conduct, objectively viewed, use the status of their office to compel compliance with their demands when there is no legal basis to do so, that the discretion to exclude is enlivened.

In this case SC McGregor did not use the police car sirens and lights to pull over the Audi. It was legitimate, indeed proper, that he alert the occupants of the Audi to his presence and to his wish to speak to them. SC McGregor did not position his vehicle in a way which constrained the movement of the Audi.
The evidence on the voir dire did not establish whether or not Mr Colenso got back in the driver’s seat after the licence was checked. SC McGregor could not recall where Mr Colenso was. Mr Colenso did not give evidence on the voir dire. On the trial he testified that he did not get back in the seat. It follows that SC McGregor’s conduct in walking in front of the Audi did not detain Mr Colenso or the others. Nor could his conduct in continuing to make observations without more be considered to have effected their detention.
The Judge’s conclusions that before the search commenced Mr Colenso and the other occupants of the Audi had not been detained must be affirmed.
A reasonable suspicion
The Judge held that SC McGregor did have a reasonable suspicion that drugs or equipment associated with illicit drug taking might be found in the Audi. The Judge said:
The next issue is whether Senior Constable McGregor formed a reasonable suspicion that a search of the motor vehicle would afford evidence of an offence committed under the CSA. I have already outlined the matters upon which Senior Constable McGregor’s suspicion rested. Those matters included: the location of the vehicle in an area where drugs are regularly consumed; that the motor vehicle was parked adjacent a vacant lot in complete darkness at 2.30am on a weekday; the manner in which the Applicant rapidly approached the police car; the movements of the passengers inside the vehicle; and finally and most significantly, Mr Alwazan’s conduct in attempting to hide a bum bag (an item the police officer associated with drug trafficking) along with his nervous and defensive manner in answering questions. In my view, taken together those facts were capable of giving rise to a reasonable suspicion that the car in which the Applicant was seated contained drugs or equipment associated with illicit drug use and enlivened his power to search the vehicle pursuant to s 52(9) of the CSA.
In R v Nguyen, the Court delineated between speculation, reasonable suspicion and belief as follows:[1]
[21]A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
[22]Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
(citations omitted)
[1] (2013) 117 SASR 432 at [21]-[22].
In R v Marafioti,[2] this Court considered the reasonableness of the search of a car for drugs in circumstances which the appellant contends are analogous with this case. In that case, I emphasised the importance of the circumstance that an occupant of the car appeared to be affected by drugs:[3]
[10]A suspicion is a less certain state of mind than a belief. The connection between the presence of a drug intoxicated passenger in a car, and a suspicion that drugs or drug implements will be found in the car, is not a matter of “mere curiosity, speculation or idle wondering”. It is a natural and common incident of drug taking that an intoxicated person will be found to possess, or be close to, some of the illicit substance or an implement for taking it.
[2] (2014) 118 SASR 511.
[3] R v Marafioti (2014) 118 SASR 511 at [10].
I doubted that a suspicion could reasonably be based on relatively common and neutral circumstances like:
·Driving a hire car.
·Wearing a bum-bag.
·Being evasive, agitated and in a hurry to go.
·Giving an account as to where he was going which was inconsistent with his passenger’s.
I observed that ‘[b]ehaviours which might appear ‘odd’ or ‘different’ to some should not too quickly be associated with illegality. Eccentricities should not be magnets for the exercise of police powers’.[4] In the circumstances of Marafioti it was largely the presence of a drug intoxicated occupant that founded a reasonable suspicion to search the car.
[4] R v Marafioti (2014) 118 SASR 511 at [13].
Whether or not reasonable suspicion attaches to certain conduct or circumstances is a factual question. Decisions of this Court provide guidance on the standard to be applied. Only rarely will there be sufficient factual similarity between two different cases to allow a valid submission that the decision made in one case must determine the factual decision in another. In Marafioti the critical consideration was found to be the drug affected appearance of one of the occupants. However it does not follow that there will not be a reasonable suspicion to search a car in the absence of a circumstance of that kind. In this case the fact that three men were in a car parked on the side of the roadway, on its own, could not found a reasonable suspicion. However the additional circumstance, absent in Marafioti that the car was parked in an area known for drug dealing is important. Here Mr Alwazan did not just have a bum-bag but he was attempting to hide it. Those two particular circumstances, the reputation of the area in which the Audi was parked and the attempt to hide the bum-bag, when combined with Mr Colenso’s apparent attempt to deflect SC McGregor’s attention from the Audi, and Mr Alwazan’s nervousness, properly grounded a reasonable suspicion that a search of the Audi may reveal evidence of drug offences.
Nonetheless, the Judge recorded that if, contrary to her finding, the search was unlawful she would not have exercised her discretion to exclude the evidence of the discovery of the shotgun:
Even if I had reached a conclusion as to the unlawfulness of the search, I would not have exercised my discretion in favour of the Applicant. It could not be said that any unlawfulness by the police on this occasion was deliberate. The evidence obtained was cogent evidence of the commission of the offence with which the applicant was charged and its quality was not affected by the police conduct. Even if circumstances enlivening the discretion did exist, I would not have exercised it in favour of the Applicant.
It is difficult to say how the discretion might have been exercised in this case if SC McGregor had conducted himself in a different way which amounted to detention. It would be necessary to consider SC McGregor’s appreciation of the limits to his powers and his motives for that other conduct. I acknowledge the cogency of the evidence in this case but would wish to emphasise the importance of the courts maintaining their vigilance in keeping police conduct within lawful bounds and of police appreciating that the authority of, and respect for, their office should not be used to detain citizens in fact when there is no legal basis to do so.
Mr Colenso was a serious firearms offender
Section 20AA of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) relevantly defines serious firearm offence as follows:
20AA—Interpretation
(1) In this Division—
…
serious firearm offender means a person who is, by virtue of the operation of section 20AAB, a serious firearm offender;
serious firearm offence means—
(a) an offence against the Criminal Law Consolidation Act 1935 or the Firearms Act 1977 involving the use or carriage of—
…
(iii)a prescribed firearm (other than a firearm declared by the regulations to be excluded from the ambit of this subparagraph); or
…
Section 20AAB of the Sentencing Act provides:
20AAB—Serious firearm offenders
(1)A person will, by force of this section, be taken to be a serious firearm offender if he or she is convicted of a serious firearm offence (whether the offence was committed as an adult or as a youth).
(2)Subsection (1) does not apply in relation to a conviction of a serious firearm offence if—
(a) the defendant was prosecuted and punished as a principal offender in respect of the offence pursuant to section 267 of the Criminal Law Consolidation Act 1935; or
(b) the defendant’s liability in respect of the offence derives solely from his or her involvement in a joint criminal enterprise (however described).
Subsection (2) excludes any form of accessorial liability (s 20AAB(2)(a)) and liability as a principal by reason of entering into an arrangement for a criminal purpose (s 20AAB(2)(b)).
The question which arises is whether in a case like this, in which possession is an element of the serious firearms offence, is whether liability by reason of joint possession falls within s 20AAB(2).
Generally, I acknowledge that language like ‘in concert’ has been used to describe the concept of joint possession. In Moors v Burke,[5] the High Court described the concept of “actual possession” in a statutory context as follows:
“Having actual possession” means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes.
[5] (1919) 26 CLR 265 at 274.
In R v Dib,[6] Hunt J said:
Where (as in the present case) the Crown seeks to establish an accused’s possession of property found not within his manual possession but rather in premises to which he has access, it must — in order to establish beyond reasonable doubt that it was the accused rather than anyone else who had such possession of that property — persuade the jury that the accused has the legal right to exclude all persons from the premises in which the property is situated (other than those acting in concert with him). In a case where two or more accused are alleged to be in joint possession of the property, the Crown must establish that they all had that legal right.
[6] (1991) 52 A Crim R 64 at 66-67.
In R v Nguyen,[7] the Court touched on the applicability of the concept of accessorial liability to joint possession albeit in a different context. Vanstone and Kelly JJ doubted that directions on acting in concert were, as a general rule, useful in a joint possession case:[8]
[25]It can readily be seen that the concept of acting in concert could be usefully employed in a context where the prosecution asserts that the two accused were jointly in possession of a quantity of the relevant substance for the purpose of supplying it. However, as a general rule, we do not think introduction of the idea of a joint enterprise into an explanation of the concept of joint possession would be helpful. It is noteworthy that Hunt J approved the initial direction given by the trial Judge on possession and joint possession, despite it containing no reference to acting in concert or a joint enterprise. We do not understand the Court to be saying in the quoted passage that such a reference is ordinarily required.
[7] [2010] SASCFC 23.
[8] R v Nguyen [2010] SASCFC 23 at [25].
White J doubted that the concepts were the same:[9]
[106]The appellant submitted first that for two persons to have joint possession of an item, they must be acting in concert. It was said that this required proof of an arrangement or understanding between them, amounting to an agreement that they would have joint control over the disposition of the item. It was said that the Judge had erred by failing to direct the jury to consider whether the evidence satisfied them that the appellant and Mr Cabral had an agreement or understanding to this effect.
[107]The appellant founded this submission on statements in the authorities to the effect that several persons may in concert have exclusive possession as against the rest of the world and to the effect that possession requires that a person have present physical control of the items in question “to the exclusion of others not acting in concert”. The expression “acting in concert” is commonly used in the law relating to joint enterprise under which two or more persons who reach an understanding that, together they will commit a crime and, while that understanding is on foot, one or other of them does the acts necessary to complete the crime, will be equally guilty of that crime irrespective of the part which each played in its commission. This led counsel to argue that the notion of two or more persons acting in concert for the purposes of joint possession required proof of some understanding or arrangement between them amounting to an agreement that they would have joint control over the item in question.
[108]However, I do not understand the expression “acting in concert” in relation to the concept of joint possession, to be used with its joint enterprise meaning or, at least, not entirely so. Joint possession is the possession of an article by two or more persons. It exists when two or more persons have joint control over the one article. The concept was described by Mayo J in Borrillo v Bartlett:
Joint possession of an article may be had by two or more persons. It is joint when each person has a share in possessory rights, and the article is in a place that is accessible, perhaps equally accessible, to all. Joint possession does not involve, as it were, fractional rights in the object, or equal rights to some fractional part of the object, but rights to the totality.
[109]Persons have joint possession if they share possession of the item in question. “Acting in concert” is simply a way of describing the sharing of control. No doubt the sharing of control will often have a basis in some agreement, tacit or otherwise, but the critical feature is the shared control, and not the antecedent agreement.
[110]This being so, it was not necessary for the prosecution to prove, as a separate matter, some arrangement or understanding between the appellant and Mr Cabral in relation to possession of the drugs. This particular complaint concerning the Judge’s directions therefore fails.
(citations omitted)
[9] R v Nguyen [2010] SASCFC 23 at [106]-[110].
It is implicit in those passages that the Court in Nguyen saw the concept of joint possession as an element of the actus reus of an offence and not as the basis of accessorial or other extended liability. The persons who jointly possess a prohibited item are perpetrators of the offence as it is constituted. Counsel for the Director submitted:[10]
The archetype of joint liability as a principal must be the case of unlawful (joint) possession of a prohibited item, that is, immediate and present control of that item by more than one person, acting in concert, to the exclusion of others. Joint possession is itself the actus reus, carried out by more than one person. No offender is held liable, by any common law or statutory device, for the actus reus of another. Each is, to use the words of McHugh J in Osland, a “principal in the first degree”.
[10] Supplementary Submissions of the Respondent, 21 September 2016 at [18].
That submission should be accepted. Accordingly, Mr Colenso was a principal offender and fell within s 20AAB either by reason of his liability as the person in charge of the Audi or as a fellow perpetrator along with one or more of the other occupants who were in possession of the firearm. The Judge was correct to sentence on the basis that Mr Colenso was a serious firearm offender.
The discretion
Section 20AAC of the Sentencing Act provides:
20AAC—Sentence of imprisonment not to be suspended
(1)Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):
(a)     if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;
(b)     the sentence of imprisonment cannot be suspended;
(c)     section 18 does not apply in respect of the sentencing of the person;
(d)     if—
(i)the person is also being sentenced in respect of other offences; and
(ii)1 or more of those offences are not serious firearm offences,
section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).
(2)A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if he or she satisfies the court, by evidence given on oath, that—
(a)     his or her personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing (as set out in section 10(2)(e)); and
(b)     it is, in all the circumstances, appropriate to suspend the sentence.
(3)If subsection (2) applies, section 10(2)(e) is taken not to apply in relation to the sentencing.
The discretion conferred by s 20AAC(2) of the Sentencing Act is an exceptional one. First it is expressly limited to those circumstances which are ‘so exceptional’ as to outweigh the need for general deterrence. Moreover, it is expressed in the form of a dispensing power. The circumstances calling for a suspension of the sentence must be so weighty as to justify a declaration that the statutory prohibition against suspension in s 20AAC(1) of the Sentencing Act does not apply.
The unexplained possession of a loaded sawn-off shotgun by a person who is also in some, albeit undefined, way associated with the illicit use of amphetamine is the very kind of use to which s 20AAC(1) of the Sentencing Act is directed.
There was nothing in the circumstances of Mr Colenso’s possession to justify a favourable exercise of that power. No error has been shown in the exercise of the discretion by the Judge. I would dismiss the appeal.

NICHOLSON J: I agree that the appeals against conviction and sentence should be dismissed for the reasons given by the Chief Justice.
HINTON J: I agree that the appeal against conviction and the appeal against sentence should be dismissed for the reasons given by the Chief Justice. I have nothing to add.