R v Cullen - [2015] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CULLEN
[2015] SASCFC 44
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
16 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Application for permission to appeal against sentence. The applicant pleaded guilty to trafficking and firearms offences. The applicant sourced and supplied a firearm to a youth who was a known user of methylamphetamine. The firearm was subsequently used by the youth in a murder. The applicant accepted that he had engaged in trafficking drugs over a period of 12 to 18 months. The Judge sentenced the applicant to a term of imprisonment of eight years with a non-parole period of three years and nine months.
Whether the Judge had proper regard to the principle of totality. Whether the Judge gave sufficient weight to the applicant’s youth, prospects of rehabilitation and poor psychological health. Whether the Judge allowed extraneous matters, including the consequences of the offending and the Judge’s personal view of firearms, to affect the sentence imposed.
Held per Gray J (Kourakis CJ and Stanley J agreeing) (refusing permission to appeal):
1. The Judge’s remarks disclose that he placed appropriate weight on the applicant’s age and prospects of rehabilitation.
2. The Judge’s remarks disclose that he did not hold the applicant responsible for the murder.
3. The Judge’s remarks on the dangers posed by firearms reflect the concerns expressed on a number of occasions by the Court of Criminal Appeal and do not suggest that any personal view impacted on the sentence imposed.
4. The Judge’s remarks disclose that he had regard to the to the principle of totality. It was within the Judge’s discretion to impose cumulative sentences as the trafficking and firearms offending represented two clear and separate incursions into criminal conduct, months apart. Further, the offending was very serious.
Controlled Substances Act 1984 (SA) s 32(3); Firearms Act 1977 (SA) s 11(1), s 14A(1) and s 30(3); Criminal Law (Sentencing) Act 1988 (SA) s 10 and 10C, referred to.
R v Humbles [2014] SASCFC 91; Pollitt v Police [2007] SASC 382; Johnson v Registrar of Firearms (2001) 79 SASR 353; Offe v Police (2002) 84 SASR 1; R v Randall-Smith and Davi (2008) 100 SASR 326; R v E, AD (2005) 93 SASR 20; R v Daniele [2014] SASCFC 22; R v Violi [2015] SASCFC 2; Attorney-General v Tichy (1982) 30 SASR 84; R v H, GJ (No 2) [2014] SASCFC 102; R v B, RWK (2005) 91 SASR 200, considered.

R v CULLEN
[2015] SASCFC 44
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: I would refuse permission to appeal and agree with the reasons of Gray J.
GRAY J.
This is an application for permission to appeal against sentence.
Introduction
On 19 February 2014, the defendant and appellant, Charles Alexander Cullen, was charged on information that on 5 and 11 April, 16 May and 6 June 2013 he trafficked in a controlled drug.[1] The defendant was further charged that, between 1 January 2012 and 1 January 2013, he supplied a Jensen .22 semi-automatic handgun to another person without taking reasonable steps to satisfy himself that the person acquiring the firearm held a permit;[2] between 1 January 2012 and 1 January 2013, he was in possession of a Jensen .22 semi-automatic handgun whilst not holding a firearms licence;[3] and, on 4 January 2013 at Christies Beach, he failed without reasonable excuse to comply with a requirement of a police officer to answer questions relating to the firearm.[4] On 11 July 2014, the defendant pleaded guilty in the Magistrates Court to all charges.
[1]    Controlled Substances Act 1984 (SA) section 32(3). The information was amended on 20 February 2014 to correct the dates of the charged offending.
[2]    Firearms Act 1977 (SA) section 14A(1).
[3]    Firearms Act 1977 (SA) section 11(1).
[4]    Firearms Act 1977 (SA) section 30(3).
On 9 October 2014, a Judge of the District Court sentenced the defendant to the one period of imprisonment of four years in respect of the four counts of drug trafficking. The Judge sentenced the defendant to a period of imprisonment of four years in respect of the firearms offences. The Judge indicated that when determining each sentence he had made a reduction of 30 per cent on account of the early guilty pleas. The Judge ordered that the sentences be served cumulatively and, in respect of a total period of eight years of imprisonment, fixed a non-parole period of three years and nine months. The sentences were ordered to commence on 1 June 2014 to reflect time spent in custody and on home detention bail.
Background
In early 2013, the defendant came to the attention of the police as a result of the murder of Lewis MacPherson by Liam Patrick Humbles on 31 December 2012.[5] An investigation was undertaken into the supply of the semi-automatic handgun used by Humbles, which led to the defendant becoming a person of interest to police.
[5] R v Humbles [2014] SASCFC 91.
In addition to the firearms investigation, in early 2013, police commenced an undercover operation with respect to the defendant. This followed allegations that the defendant was trafficking in controlled drugs, primarily in the southern suburbs. It was established that the defendant was regularly involved in the sale of methylamphetamine, ecstasy and cannabis. Humbles was one of the defendant’s regular customers. Humbles was also a friend of the defendant. They would meet about once per week.
In early 2012, Humbles indicated to the defendant that he wanted to obtain a firearm because of threats from individuals associated with the drug scene. The defendant sourced the Jensen semi-automatic handgun for Humbles. The defendant has refused to disclose the identity of the person from whom he obtained the firearm.
By late 2012, Humbles was using methylamphetamine daily. His behaviour was deteriorating. A mutual friend of the defendant and Humbles approached the defendant and told him Humbles was “off the rails” and was behaving in a violent and aggressive manner. She asked the defendant to retrieve the gun from Humbles. The defendant, in about October 2012, removed the firearm from Humbles’ possession under the pretence that he required it for his own use. However, in about November 2012, as a result of pressure from Humbles, the defendant returned the firearm to him.
The four counts of trafficking concerned transactions with an undercover operative on 5 and 11 April, 16 May and 6 June 2013. It is to be noted that these transactions all occurred after Mr McPherson’s murder. Evidence obtained primarily from the defendant’s mobile phone indicated that he had been engaged in trafficking for an extended period. The defendant accepted that the charged transactions were representative of a course of conduct of trafficking over a period of 12 to 18 months prior to his arrest. The Judge sentenced the defendant on that basis. The Judge sentenced the defendant on the basis that the offences were serious examples of their kind. The Judge, when fixing a non-parole period of three years and nine months, specifically took into account the defendant’s youth and prospects of rehabilitation.
The Appeal
Manifestly Excessive
On the appeal, the defendant submitted that the sentence was manifestly excessive.
The defendant contended that the Judge failed to have proper regard to the principle of totality. It was said that the Judge erred in failing to order concurrency. The defendant accepted that the Judge had referred to the totality principle in the course of the sentencing remarks and had considered that the individual sentences, while heavy, were not crushing. It was contended, however, that the cumulative effect of the sentences should have been viewed as crushing.
It was submitted that the Judge gave insufficient weight to a psychological opinion that a prolonged period of incarceration would be detrimental to the defendant’s prospects of rehabilitation having regard to his poor psychological health. It was further argued that the Judge placed too little weight on the defendant’s youth and prospects of rehabilitation.
Finally, it was submitted that the Judge erred by allowing extraneous matters, including the consequences of the offending and his personal view of firearms, to affect the sentence imposed.
Counsel appearing for the Director of Public Prosecutions joined issue with each of these complaints. Counsel submitted that the offending was very serious. In relation to the trafficking offences, counsel drew attention to the extended course of trafficking. It was pointed out that the trafficking continued notwithstanding the murder of Mr McPherson and only ceased after the defendant was arrested. In relation to the firearms offences, counsel emphasised that the defendant was aware that Humbles was “off the rails”, was demonstrating violent and aggressive behaviour and was a regular drug user at the time he supplied the firearm to him. Further, it was pointed out that Humbles had explicitly told the defendant that the firearm would be used to address threats from others involved in the drug trade. Counsel drew attention to the risks confronting the community through the combination of drugs and firearms.
Counsel rejected the suggestion of error on the part of the Judge and contended that the sentences imposed were within the Judge’s discretion. It was submitted that the Judge’s remarks disclose that he had regard to all relevant matters, in particular those favourable to the defendant, including: the defendant’s guilty pleas, lack of criminal history, age, stable family background, academic history, prospects of rehabilitation, remorse and psychological state; and the discount applicable pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA).
The Defendant’s Personal Circumstances and Prospects of Rehabilitation
The Director accepted that the Judge was required to give consideration to the defendant’s youth. It was accepted that, where possible, leniency should be extended to a young offender so as to give effect to prospects of rehabilitation. The sentence must, however, also reflect the gravity of the crime and address the requirements of punishment and deterrence.
The Judge’s remarks disclose that he considered defendant’s youth:
Naturally, you have spent much of your time in prison ruminating over the sentence you would receive for these crimes and now you know what it is. I accept that your imprisonment will place you amongst many hardened criminals with entrenched criminal traits and high rates of recidivism. Such an environment is not conducive to anyone’s longer term rehabilitation, especially a young man like yourself.
I have remarked before that prison is not all about a prisoner’s rehabilitation. It is also about punishment and deterrence. The youth of an offender is always a very important sentencing consideration. However, your crimes are extremely serious and of such a nature that public interest considerations of deterrence and punishment cannot be overlooked.
I consider that I have imposed a total sentence commensurate with the gravity of your crimes. I have been very mindful of your youth and lack of previous sanction by a court, as well as reflecting on the totality of the sentence imposed upon you.
...
In my view, even taking into account your young age, such a sentence does not warrant any further reduction based on what is known as the totality or proportionality principles of sentencing. The sentence I have passed upon you, in my view, fits the punishment for your crimes.
As far as a non-parole period was concerned, I fixed that taking into account the many factors in your favour, including your young age, your good family upbringing, high level of intelligence, your acknowledgement of your guilt at an early stage of proceedings, as all are positive features of your long-term rehabilitation.
I must, however, still reflect considerations of general and personal deterrence and denunciation of your serious crimes in the fixation of the non-parole period. I consider the non-parole period I have fixed is a relatively low proportion of the sentence I have passed upon you, which some might consider to be too lenient. However, your young age has been a very important consideration as, in my view, that enhances your prospects of rehabilitation.
The Judge placed appropriate weight on the defendant’s age and prospects of rehabilitation. The Judge’s remarks disclose that he was conscious of weighing the different sentencing considerations and fashioned a sentence which balanced those considerations. The Judge’s approach was appropriate and within his discretion.
Extraneous Matters
The Judge, when addressing the defendant’s role in Mr McPherson’s death, said:
You got your hands on the pistol, paying $900 for it, before selling it to Humbles for that same price. I am satisfied that you knew the semi-automatic pistol was in working order when you handed it over to Humbles. I am satisfied that you must have foreseen the possibility that Humbles would use that pistol, should the need arise. Even worse, you were supplying a pistol to a young man who had a drug problem and who was therefore likely to be unpredictable at times.
Indeed, at the request of other associates of both you and Humbles, you were asked to retrieve the pistol from him because he was, and I quote you, ‘acting in an extraordinary manner’. By that, I took you to mean that Humbles was acting erratically and so was too dangerous and unpredictable to be in possession of a pistol. So you did retrieve the pistol from Humbles out of fear that he might do something very stupid and dangerous with it.
Having done so, you then, incredibly, handed it back to him. It was submitted that Humbles harangued you to give him back his pistol and you did. Some eight weeks later on, New Year’s Eve 2012, Humbles shoots dead 18-year-old Lewis McPherson and attempts to shoot dead James Lamont and Liam Trewartha as they were walking along the street minding their own business. When Humbles fired his pistol, he was off his face on alcohol and ecstasy. He had earlier been acting irrationally with the pistol following an altercation with another young man over the sale of drugs.
I make it absolutely clear to you that I am not holding you responsible for the murderous actions of Humbles. However, these crimes highlight the dangers associated with the supply and the possession of firearms.
...
There was another matter I took up with Mr Deegan and that related to your insight into your supplying the pistol to Humbles. When you were asked by the psychologist to state who you felt were the victims of your offending, you expressed the effect of your crime on others as: ‘It has had some, but the police knew that the guy had the gun for 119 days and decided not to raid the house. Obviously I’m at fault but if they’d done their job, things would be different’.
You went on to say: ‘I’m very sorry for what I did but if the guy wanted to get a gun, he would have got one anyway’.
I was not satisfied with your answers, as you would have gleaned during submissions. You, and you alone, supplied the gun that ended up being used to shoot down three young men. Do not try and shift the blame on to the police or Humbles by saying the police should have acted sooner and Humbles would have got a gun in any event. That is simply not good enough and shows you do not have total insight into your actions, yet.
...
I have already remarked that your offences are serious examples of their kind. Even though you did not know Humbles would use the pistol, as and when he did, you would have realised he would have used it to threaten others, as that was the very purpose for his request for a gun, and even more so when he was hassling you to give it back to him. When a man walks around the streets armed with a pistol, especially under the influence of alcohol and drugs, it may not take much for him to squeeze the trigger, which of course Humbles later did, with catastrophic consequences.
[Emphasis added.]
The Judge’s remarks make it plain that he did not hold the defendant responsible for Humbles’ actions. The Judge rightly observed that the defendant provided Humbles with a firearm in circumstances where he knew there was a risk that Humbles posed a danger to the community. The consequence that a death occurred is an illustration of the risks to the community created by offending of this kind. The Judge did not place undue weight on Humbles’ subsequent use of the firearm when sentencing the defendant.
Firearms Offences
Section 10 of the Sentencing Act relevantly provides:
Sentencing considerations
...
(2) In determining the sentence for an offence, a court must give proper effect to the following:
...
(e) in the case of an offence involving a firearm—the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence.
...
Parliament has made plain its intention with respect to the sentencing of firearms offenders. The seriousness with which such offences are to be treated is reflected in section 10(2)(e) of the Sentencing Act and the introduction of provisions relating to serious firearms offenders. General and personal deterrence and the protection of the community are of paramount importance when sentencing for such offences.
In Pollitt, I made the following observations:[6]
The overriding policy of the Firearms Act is to protect the public from the unsafe or criminal use of firearms. The legislative scheme was considered in Johnson v Registrar of Firearms,[7] and in Offe v Police.[8] The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:[9]
designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.
In 1996 amendments were made to the Act, introducing stricter gun laws throughout Australia:[10]
In an historic move on 10 May 1996 the Australasian Police Ministers' Council agreed to a series of resolutions to introduce national uniform gun laws. The underlying thrust of those resolutions is that gun ownership is not a right, it is a conditional privilege.
[6]    Pollitt v Police [2007] SASC 382, [20]-[22].
[7]    Johnson v Registrar of Firearms (2001) 79 SASR 353.
[8]    Offe v Police (2002) 84 SASR 1.
[9]    South Australia, Parliamentary Debates, House of Representatives, 14 April 1977, 3448 (Hugh Hudson).
[10] South Australia, Parliamentary Debates, House of Representatives, 10 July 1996, 1919 (S.J. Baker).
The Court of Criminal Appeal has observed that the community must not be complacent about the dangers of firearms and the damage that can be caused by them. In Daniele, with the agreement of Kourakis CJ and Peek J, I made the following observations:[11]
Possession of a firearm is a privilege and a serious responsibility. The overriding police of the Firearms Act 1977 (SA) is to protect the public by controlling the possession and use of firearms. Parliamentary debates indicate that this legislation was enacted in response to the increasing use of firearms in serious offences and the proliferation of such weapons in the community. Relevant amendments were made to the Firearms Act in 2008. In the second reading speech the Minister said:
In South Australia the majority of violent criminal behaviour with firearms does not involve legitimate firearm owners, nor legitimately owned, secured and registered firearms. Whilst there is some conjecture as to the quantity of illegal firearms circulating in the community, there is no doubt that there is a market for unrecorded and essentially untraceable firearms to be used for a criminal purpose. It is the nature of this enterprise that there exists difficulties in police being able to prevent the trade and the subsequent crime arising from it.
The need for general deterrence is particularly apparent in sentencing for offences of this kind. The community should not be complacent about the dangers of firearms and the damage that can be caused by them.
[Citations omitted. Emphasis added.]
[11] R v Daniele [2014] SASCFC 22, [25]-[26].

An object of the legislation is to ensure that only responsible persons with appropriate licences are able to access firearms. It provides clear direction as to the licensing, storage and use of firearms. Some firearms are viewed more seriously and the legislation provides greater restrictions and controls in such instances.
The Judge expressed his views on firearms in the following terms:
Turning to the Firearms Act offences. Our community now lives in fear of offenders armed with firearms. Many serious crimes are committed by criminals armed with guns, no more serious than the murder and attempted murder of young men, as this case highlights. In the wrong hands, guns are deadly.
In my view, the possession of firearms serves absolutely no legitimate purpose in our society. Times and community attitudes and expectations have changed dramatically over the years. People want guns, they do not need them.
The risks associated with allowing people to possess firearms is outweighed by the consequences of their misuse. This is not to say that all persons who lawfully possess firearms are irresponsible. Quite the contrary, most take their responsibilities extremely seriously. However, even a licensed firearm owner can misuse a gun under the wrong circumstances. They are human, after all, and prone to making errors of judgment just like anyone else.
In 1996, following the aftermath of the Port Arthur massacre, government leaders across the country showed strength and courage in uniting against gun crimes and toughening the laws in relation to the possession and distribution of all firearms, through the National Firearms Agreement. There was then a massive buy-back of firearms. Yet, paradoxically, the proliferation of illegal firearms and firearm-related crimes in our society continues.
I consider that most people would agree that firearms have no place in a civilised society. The sooner firearms are totally banned, the better off our society will be. That will not stop the proliferation of firearms, of course, but it might start to slow it down a fraction and we start changing things sometimes by fractions. If people still want to shoot guns, they can do so at a licensed range under strict supervision.
No-one should be able to keep guns at their home. Many guns end up being stolen from licensed owners following break-ins to their homes, only for those guns to later end up on the streets and used in criminal activity. This is what frightens people the most. Enough said of the dangers of firearms.
I am required, when fixing sentence, for your possession of and supply of the semi-automatic pistol, to take into consideration that a primary policy of the criminal law is to emphasise public safety by ensuring that, in any sentence, paramount consideration is given to the need for deterrence and I have done so.
This Court has, on numerous occasions, referred to the dangers posed by firearms.[12] The Judge’s remarks reflect these concerns and do not suggest that any personal view on the regulation of firearms impacted on the sentence given to the defendant.
[12] See Pollitt v Police [2007] SASC 382; Offe v Police (2002) 84 SASR 1; R v Daniele [2014] SASCFC 22.
Concurrency and Totality
The principles with respect to the imposition of cumulative or concurrent sentences are well established. There is a broad discretion to order that sentences be served cumulatively or concurrently, however each case requires an assessment of the gravity of the overall offending in light of the total or final sentence. Cumulative sentences are likely to be imposed where there have been two or more separate incursions into criminal conduct.
In Violi,[13] the Chief Justice addressed the question of whether to order that sentences for offences relating to drugs and firearms be served cumulatively or concurrently. The following observation has direct relevance to the offending the subject of these proceedings:[14]
Even though there is a connection between firearms and drug traffickers, there is very little reason for concurrency between the sentence imposed for the two kinds of offences. The choice to both engage in the drug trade and to do so with firearms is a deliberate one. Drug trading and manufacture can be engaged in without firearms, and firearms may be possessed by someone who is not a drug trafficker. The illegal possession of firearms by drug traffickers must be strongly deterred. For that reason courts should be slow to order any degree of concurrency...
[Emphasis added.]
[13] R v Violi [2015] SASCFC 2.
[14] R v Violi [2015] SASCFC 2, [34].
The totality principle allows a court to adopt a merciful approach where the strict application of sentencing principles for individual crimes would produce a crushing and disproportionate sentence.[15] It is also open to a sentencing judge to simply reduce a sentence thought to be crushing to a sentence considered to be just and appropriate in all the circumstances. Sentencing judges may, in the application of the totality principle, avoid a crushing sentence through orders of concurrency or partial concurrency. As a general rule, if the sentence imposed is appropriate for each offence under consideration there will not be any need to consider the totality principle.[16]
[15] See Attorney-General v Tichy (1982) 30 SASR 84; R v H, GJ(No 2) [2014] SASCFC 102; R v Randall-Smith and Davi (2008) 100 SASR 326; R v B, RWK (2005) 91 SASR 200.
[16] R v E, AD (2005) 93 SASR 20; Postiglione v The Queen (1997) 189 CLR 295.
The Judge when sentencing addressed the totality principle as follows:
In my view, even taking into account your young age, such a sentence does not warrant any further reduction based on what is known as the totality or proportionality principles of sentencing. The sentence I have passed upon you, in my view, fits the punishment for your crimes.
...
I consider that I have imposed a total sentence commensurate with the gravity of your crimes. I have been very mindful of your youth and lack of previous sanction by a court, as well as reflecting on the totality of the sentence imposed upon you.
These remarks disclose that the Judge had regard to the totality principle and gave consideration to the factors relevant to its application.
The imposition of cumulative sentences was within the Judge’s discretion. It was appropriate for the Judge to have ordered that the sentences be served cumulatively as the trafficking and firearms offending represented two clear and separate incursions into criminal conduct, months apart. Further, the offending was very serious.
Having regard to the seriousness of the offending, I do not consider the overall sentence imposed to be crushing or disproportionate to the defendant’s criminality. It is to be recalled that the non-parole period fixed by the Judge represented less than one half of the head sentence.
Conclusion
I would refuse permission to appeal.
STANLEY J: I would refuse permission to appeal. I agree with the reasons of Gray J.