R v COULTHARD

[2016] SASCFC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v COULTHARD

[2016] SASCFC 47

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)

11 May 2016

FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - OFFENCES AND OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

Appeal against sentence.

The appellant was convicted by a Judge of the District Court of altering a firearm to a different class of firearm, possession of a prescribed firearm without a licence, possessing a firearm with defaced, altered or removed characters, failing to store ammunition separately from a firearm, possessing a prohibited weapon and failing to comply with a bail agreement.

The Judge imposed a single sentence of two years, seven months and seven days imprisonment pursuant to section 18A of the Criminal Law (Sentencing) Act 1988. The Judge imposed a non-parole period of 16 months. The Judge outlined a series of notional sentences for each offence to explain how she arrived at the single sentence.

The appellant sought leave to appeal against the sentence on the grounds that the sentence imposed was manifestly excessive and that the Judge erred in failing to accord him procedural fairness by denying him the opportunity to give his version of events on oath.

Held per Kourakis CJ (Vanstone and Kelly JJ agreeing), allowing the appeal:

1.  The appellant was accorded procedural fairness.

2.  The Judge erred in imposing a single sentence of imprisonment.

3. Re-structure the sentence so that it complies with s 20AAC of the Criminal Law (Sentencing) Act 1988 (SA).

4.  Overall sentence imposed is unchanged.

Firearms Act 1977 (SA) ss 11, 24A and 27AA; Summary Offences Act 1953 (SA) s 21F; Bail Act 1985 (SA) s 17; Firearms Regulations 2008 (SA) ss 41 and 61; Criminal Law (Sentencing) Act 1988 (SA) ss 18A and 20AAC, referred to.

R v COULTHARD
[2016] SASCFC 47

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Kelly JJ

1. KOURAKIS CJ:   The appellant appeals against a sentence of two years, seven months and seven days imprisonment, with a non-parole period of 16 months, imposed in the District Court on convictions following pleas of guilty to the following offences:

   ·Altering a firearm to a different class of firearm pursuant to s 27AA(1)(b) of the Firearms Act 1977 (SA) (the Firearms Act) (maximum penalty of imprisonment - 15 years);

   ·Possess a prescribed firearm without a licence contrary to s 11(1) of the Firearms Act (maximum penalty of imprisonment – 10 years);

   ·Possess a firearm with defaced, altered or removed characters contrary to s 24A(7)(b) of the Firearms Act (maximum penalty of imprisonment - 4 years);

   ·Possess a prohibited weapon, a dagger, contrary to s 21F(1) of the Summary Offences Act 1953 (SA) (the SOA) (maximum penalty of imprisonment 2 years);

   ·Fail to comply with a bail agreement contrary to s 17(1) of the Bail Act 1985 (SA) (the Bail Act) (maximum penalty of imprisonment – 2 years).

2. The appellant was also convicted, but no further penalty was imposed, on one count of failing to store ammunition separately from a firearm contrary to ss 41 and 61 of the Firearms Regulations 2008 (SA) (maximum penalty $2,500).

3. The single sentence of imprisonment was imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). However, the Judge’s sentencing remarks explain that the Judge arrived at that sentence from a series of notional sentences that her Honour would have imposed on each count in the following way:

   ·for the offence of altering a firearm, a starting point of three years four months was reduced by 20 per cent, on account of the appellant’s guilty plea, to a notional sentence of two years and eight months;

   ·for the offence of possessing a prescribed firearm without a licence a reduction of 40 per cent from a starting point of two years six months  for the appellant’s very early plea of guilty resulted in a notional sentence of one year six months;

   ·for the offence of possessing a firearm with defaced, altered or removed characters, a notional starting point of 15 months was reduced to a notional sentence of nine months for the appellant’s early plea of guilty;

   ·for the offence of possessing a prohibited weapon a starting point of nine months was reduced by 30 per cent to a notional sentence of seven months for the appellant’s guilty plea;

   ·for the offence of breaching a bail agreement a starting point of 10 months was reduced by 30 per cent to a notional sentence of seven months imprisonment.

4. The Judge proceeded on the basis that if separate sentences were imposed they would have been ordered to run concurrently.  The Judge deducted 23 days from the longest of the notional sentences, two years eight months, referable to the altering a firearm conviction.  The appellant had been on remand for this period before commencing to serve a sentence of imprisonment for an offence of drive disqualified for which he had been on bail when he committed the subject offences.

5. The Judge ordered that the single sentence she imposed and the non-parole period commence on 11 March 2015. 

   The offences

6. It is convenient to reproduce the Judge’s description of the offending:

   On 12 February 2015 police attended at your home in Port Pirie and conducted a search.  They found a sawn-off shotgun and a dagger under your bed in the main bedroom.  They also found four shotgun cartridges in a sunglass case on the bedside table.

   You told police that you found the shotgun and the ammunition in the park and had brought it home.  You told police that you cut the gun down and that the rest of the gun was in a shed in the backyard.  The police found the barrel of the firearm in your shed.  A ballistics report confirms that the firearm was a prescribed firearm; namely a sawn-off side by side shotgun.  It further confirms that the gun was in working order and that the ammunition found was suitable for use in that firearm.

   The offending is aggravated by the fact that you were at the time on a bail agreement which included conditions that you not possess a firearm or any part of a firearm or ammunition.

7. The Judge rejected the appellant’s account that he had found the gun in a park and the consequential submission, that the chance finding of the gun was a strongly mitigating factor, remarking:

   You have written a letter to me about your personal circumstances which I accept.  I do however have difficulty in accepting your explanation as to the circumstances of this offending.  You say you were walking the dog when you found the bag containing the shotgun and the ammunition in a park.  You say you thought it was unsafe to leave them in the park and took them home.  Frankly, that seems implausible.  Even were I to accept that explanation, the fact is that you made absolutely no attempt to hand the gun and the bullets to the police, even when you knew your bail agreement prohibited you from possessing a firearm or ammunition.

   You compounded that by modifying the firearm by sawing off the barrel.  This is perhaps the most serious aspect of your offending.  You turned it from a gun with potentially legitimate purposes into a prescribed weapon.  Such guns are used in criminal pursuits.  They can be concealed in order to commit serious offences.  They can cause injury, even death.  It was said on your behalf that you did it because of curiosity and you did not intend to use the firearm.  Again, I have difficulty believing that.  It is hard to see how sawing off the barrel of a shotgun could satisfy any form of curiosity

   Prior criminal history

8. On 27 June 2006 the appellant was convicted of the offences of aggravated serious criminal trespass of a residence, common assault, damaging property and wounding with intent to do grievous bodily harm.  He received a sentence of 5 years 6 months which was imposed cumulatively on a suspended sentence which had been brought into effect.  The Judge fixed a non-parole period of 4 years with respect to the total head sentence of 6 years 11 months.  On 26 July 2012 the appellant was convicted of an offence of failing to store ammunition separately from firearms and fined $200.

   The appeal

9. The appellant appeals on the grounds that the sentenced imposed is manifestly excessive and that the Judge failed to accord him procedural fairness before rejecting his claim that he had found the shotgun and ammunition in a park.

   The procedural fairness ground

10. Taking unlawful possession of a firearm after a chance finding may be a mitigating circumstance but, as the Judge correctly observed, its continued possession may limit substantially the degree of mitigation because of the obligation to deliver the firearm to police.  Be that as it may, speaking generally, taking possession of an unregistered firearm after a chance finding is less serious than deliberately procuring an unregistered firearm.

11. The appellant, by asking to be sentenced on a relatively less serious basis, assumed the onus of proving that basis on the balance of probability.  The appellant did not do so but chose, instead, to have his counsel repeat his explanation from the bar table.  On several occasions in the course of submissions the Judge made clear her scepticism of his explanation.  The Judge asked counsel whether the appellant was willing to give his explanation on oath, and was told that he was.   However, even after that enquiry the appellant chose not to support his claim by sworn testimony. 

12. In submissions in reply counsel for the Director of Public Prosecutions contested the appellant’s explanation and submitted:

    It is simply implausible, it is a submission we hear time and time again.  Your Honour would be right to view the explanation that it was found in a park as inherently implausible, and the real gravity in this offending was that it was retained, no attempt to hand to police, found as a result of a search, he made no attempts to hand it in, found in a search along with the part he admitted altering in such a way as to make it easier to conceal, that is the real gravity of this offending.  It might not much matter where it came from but it is simply ridiculous to suggest it was found in a park, but the admission that he altered it and made it extremely easy to conceal as a dangerous weapon.

13. At the conclusion of the sentencing hearing, the Judge returned to the question of the defendant’s explanation and asked his counsel about the ammunition.  Counsel informed the Judge that the defendant claimed that the ammunition was found together with the gun.  The hearing concluded with this exchange:

    Her Honour:              Again I am still struggling with the park explanation particularly as it was coupled with ammunition but I will consider that.  Is there anything further?

    Ms Burgess:               No, those are my submissions.

    Her Honour:              I will list this matter for sentencing on 14 December at 2 o’clock if that is convenient, so it follows on from the other matter.

14. On an objective reading of the exchanges to which I have referred, by the time the Court adjourned the appellant knew that:

    ·the Director of Public Prosecutions contested his explanation;

    ·the Judge was sceptical of his explanation;

    ·the Judge had invited his counsel to consider calling him to give sworn evidence;

    ·the Judge proposed to deliver sentence without any further intervening hearing;

15. The appellant was therefore clearly on notice that the Judge might reject his explanation but declined to support it with sworn evidence.  The appellant was accorded procedural fairness but failed to avail himself of it.  This ground must be dismissed.

    Error in using s 18A

16. It will be noted that the Judge imposed a single sentence pursuant to s 18A of the Sentencing Act for the firearms offences and the summary offence of possessing a prohibited weapon and the offence against the Bail Act. Counsel appearing for the Director of Public Prosecutions accepted that the sentence, so framed, failed to comply with s 20AAC(1) of the Sentencing Act which 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).

17. The purpose of s 20AAC of the Sentencing Act appears to be to allow penalties imposed for serious firearm offences to be readily identifiable.

18. A serious firearm offence is defined by s 20AA(1) of the Sentencing Act to include an offence against the Firearms Act committed while the defendant is on bail and subject to a condition imposed by s 11(1)(a) of the Bail Act prohibiting the possession of a firearm or ammunition.

19. It is clear that subsection (d) of s 20AAC(1) of the Sentencing Act precludes the engagement of s 18A of the Sentencing Act to impose a single sentence for both a serious firearm offence and another offence. The Judge therefore ought to have imposed a separate sentence, or sentences, for the offences of breach of bail and possession of a prohibited weapon. The Judge was free to order those sentences to be served concurrently with any sentence or sentences imposed on the firearms offence but the section requires that discrete sentences be imposed.

20. It is less clear whether subsection (d) precludes the engagement of s 18A of the Sentencing Act to impose a single sentence for multiple serious firearm offences when a person is also being sentenced for other offences. Indeed, subsection (d) presents a paradox. If a defendant is being sentenced only for serious firearm offences the condition on which subsection (d) is premised is not enlivened and there is nothing to prevent the use of s 18A of the Sentencing Act to impose a single sentence for multiple firearms offences. However, if a defendant is also being sentenced for another offence, s 18A of the Sentencing Act ‘does not apply to the sentencing of the person in respect of the serious firearm offence[s]’.[1] So it appears that on one construction of s 20AAC(1) of the Sentencing Act, s 18A of that Act can be engaged to impose a single sentence on multiple serious firearm offences if the defendant is not being sentenced for any other offence but cannot be so used if the defendant is being sentenced for other offences as well as serious firearm offences. This paradox warrants the attention of Parliament.

    [1]    Criminal Law (Sentencing) Act 1988 (SA) s 20AAC(1)(d).

21. Be that as it may, the imposition of a single sentence of imprisonment for both the serious firearms offences, the Bail Act and the SOA offences was, as I have already observed, an error. It is necessary, therefore, for this Court to consider the sentence which ought to have been imposed and to, if it so decides, impose a lesser sentence, or, alternatively, dismiss the appeal.

    Resentencing

22. I propose to sentence on the basis that the circumstances in which the appellant took possession of the firearm remains unexplained. His account of finding both the gun and the ammunition together is, on its face, far-fetched, and is in any event undermined by his subsequent conduct. He should not now be given an opportunity to support his fanciful explanation by evidence on oath having declined to do so before the Judge.

23. The longer of the notional sentences referable to the offence of defacing the characteristics of the firearm was not manifestly excessive. The changes to the firearm suggest that unlawful use of the gun was contemplated. In any event, complete concurrency was unduly favourable to the appellant, particularly with respect to the Bail Act and SOA offences.

24. The notional sentence for the Bail Act offence was higher than might have been imposed but a substantial sentence was required because the condition breached by the appellant was an important one. It was statutorily imposed for the purposes of public safety and for reassuring the public that persons released on bail would not pose a risk of that kind.

25. For the above reasons I would not impose a lesser sentence than that imposed by the Judge. I would allow the appeal only for the purpose of structuring the sentence so that it complies with s 20AAC(1) of the Sentencing Act.

26. Out of an abundance of caution, in order to ensure compliance with s 20AAC(1) of the Sentencing Act, I would impose discrete sentences of imprisonment for each serious firearm offence, the notional sentences determined by the Judge. I would order that sentence to be served concurrently from 11 March 2015.

27. The orders I propose are therefore:

    (1)Allow the appeal against the single sentence imposed for the serious firearm offences, contrary to ss 27AA(1)(b), 11(7)(a) and 24A(7)(b) of the Firearms Act the offence of possessing a prescribed weapon contrary to s 21F(1) of the SOA and the offence of breaching a bail agreement contrary to s 17(1) of the Bail Act.

    (2)Impose instead the following sentences:

    · for altering a firearm to a different class of firearm, contrary to s 27AA(1)(b) of the Firearms Act, two years, seven months and seven days imprisonment (allowing for time spent on remand);

    · for possessing a prescribed firearm without a licence, contrary to s 11(1) of the Firearms Act, one year and six months imprisonment;

    · for possessing a firearm with defaced, altered or removed characters, contrary to s 24A(7)(b), nine months imprisonment;

    · for possessing a prohibited weapon, contrary to s 21F(1) of the Summary Offences Act, seven months imprisonment;

    · for breach of bail agreement, contrary to s 17(1) of the Bail Act, seven months imprisonment;

    ·       all sentences to be served concurrently commencing on 11 March 2015;

    ·       fix a non-parole period of 16 months commencing on 11 March 2015.

28. VANSTONE J:     I have read the reasons of the Chief Justice.  I agree with those reasons and the orders that His Honour proposes.

29. KELLY J:             I agree with the orders proposed by the Chief Justice and with his reasons.