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

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…

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 COULTHARD

Details

AGLC: R v Coulthard [2016] SASCFC 47
Case: [2016] SASCFC 47
Decision Date: 11 May 2016

CaseChat Overview and Summary

The appeal concerned the sentencing of the respondent, Coulthard, by the District Court of South Australia for multiple firearms offences. The prosecution appealed against the leniency of the sentence imposed.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge erred in imposing a single, relatively short, suspended sentence for a number of serious firearms offences, thereby failing to adequately reflect the gravity of the offending and the need for general deterrence. The Court was required to consider the principles of sentencing for firearms offences and the appropriate approach when a single sentence is imposed for multiple offences.

The Court reasoned that the sentencing judge had placed undue emphasis on the respondent's personal circumstances and had not given sufficient weight to the objective seriousness of the offences and the need for general deterrence in relation to firearms offences. The imposition of a single sentence for multiple offences, particularly when those offences were distinct and serious, was found to be an error in principle. The Court held that the sentencing judge had failed to properly discharge their duty to impose a sentence that reflected the totality of the offending and the relevant sentencing considerations.

The Full Court allowed the appeal, quashed the sentence imposed by the District Court, and resentenced the respondent to a term of imprisonment.

Orders