R v Daniele - [2014] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DANIELE
[2014] SASCFC 22
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
20 March 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
This is an appeal against sentence. The defendant and appellant pleaded guilty upon his committal to the offences of aggravated possessing a firearm without a licence and failing to store ammunition separately from firearms. The offending occurred in breach of an earlier suspended sentence bond.
Following his arrest, the defendant was released on home detention bail. On 9 January 2013, the defendant was arrested for breaching the conditions of his home detention bail and for behaving in a disorderly manner. The defendant has remained in custody since that date. The defendant's bail was not formally revoked until 30 May 2013. The defendant was subsequently sentenced in the Magistrates Court in relation to a number of offences, including the breach of bail and the offence of behaving in a disorderly manner committed on 9 January 2013. The Magistrate convicted the defendant of these offences but did not impose a further penalty having regard to the time that the defendant had spent in custody since that offending.
The defendant was sentenced in the District Court in respect of the offending the subject of this appeal. In relation to the offence of failing to store ammunition separately from firearms, the defendant was convicted without further penalty. In relation to the offence of aggravated possessing a firearm without licence, the Judge imposed a sentence of imprisonment of three years and nine months, having made a reduction of 25 per cent on account of the defendant's guilty pleas. This sentence was ordered to be served cumulatively upon the four month term of imprisonment the subject of the earlier suspended sentence bond. A non-parole period of two years was fixed in respect of the total head sentence. Both the head sentence and non-parole period were backdated to commence on 30 May 2013, when the defendant's bail was formally revoked.
Whether the reduction of 25 per cent on account of the defendant's early pleas of guilty was inadequate. Whether the Judge erred in not backdating the sentence to 9 January 2013. Whether the sentence was manifestly excessive.
Held per Gray J (Kourakis CJ and Peek J agreeing) (dismissing the appeal):
(1) No error has been shown on the part of the Judge regarding the discount on account of the guilty pleas (at [13]).
(2) There is no substance to the complaint regarding the backdating of the sentence (at [19]). It is clear that the Magistrate took into account the time that the defendant had spent in custody between 9 January and 30 May 2013 (at [19]).
(3) In all the circumstances of the offending and particularly having regard to the need for general deterrence, the sentence imposed was within the Judge's sentencing discretion (at [27]).
Firearms Act 1977 (SA) s 11(7a)(a); Firearms Regulations 2008 (SA) reg 41(1) and reg 61; Criminal Law Consolidation Act 1935 (SA) s 134(1); Controlled Substances Act 1984 (SA) s 30(1); Criminal Law (Sentencing) Act 1988 (SA) s 10A, s 10B and s 10C, referred to.
R v Nozuhur [2013] SASCFC 81; Pollitt v Police [2007] SASC 382; Offe v Police (2002) 84 SASR 1, considered.

R v DANIELE
[2014] SASCFC 22
Court of Criminal Appeal: Kourakis CJ, Gray and Peek JJ

KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Gray J. I make the following additional observations.
The first concerns the early guilty plea. The entry of a plea of guilty in the Magistrates Court on committal to a higher court is a strong indication of a real willingness to assist the administration of justice. There are many offenders who delay, even a seemingly inevitable guilty plea, in the hope of winning a forensic advantage whether by way of bail, a favourable agreed sentencing basis or even an accidental acquittal. Tactical delays needlessly add to trial lists, result in unnecessary directions hearings, and waste limited public funding. More importantly, groundless delays in the finalisation of criminal prosecutions cause unnecessary distress to the victims of crime and undermine public confidence in the effectiveness of the administration of the criminal law. It is important that there be a clear differentiation in the sentence reductions given to offenders who are willing to forego the chance of winning a fortuitous outcome by an early acceptance of responsibility for their offending and those who have no inclination at all to do so. If I were sentencing the appellant at first instance, I would have allowed a greater reduction. Reductions for guilty pleas will now largely be regulated by ss 10A, 10B and 10C of the Criminal Law (Sentencing) Act 1988 (SA). Be that as it may, the discount allowed is not so low as to attract appellate intervention and the ultimate sentence is certainly not manifestly inadequate.
The second concerns the difficulty occasioned in this case in taking into account the full period during which the appellant was remanded in custody. That difficulty has been occasioned by the failure to consolidate all outstanding matters before the same sentencing judge. Pleas of not guilty must not be entered for no reason other than to place one matter on hold pending the sentencing outcome in another.
GRAY J.
This is an appeal against sentence.
The defendant and appellant, Shane Alfred Daniele, pleaded guilty upon his committal in the Magistrates Court to the offences of aggravated possessing a firearm without a licence and failing to store ammunition separately from firearms. The offence of aggravated possessing a firearm without a licence carries a maximum penalty of 15 years’ imprisonment and a fine of $75,000.00.[1] The offence of failing to store ammunition separately from firearms carries a maximum penalty of a fine of $2,500.00.[2] The defendant’s offending occurred in breach of an earlier suspended sentence bond. As a result of the breach, the prosecution applied to have the period of four months’ imprisonment served by the defendant.
[1] Firearms Act 1977 (SA) section 11(7a)(a).
[2] Firearms Regulations 2008 (SA) regulations 41(1) and 61.
The defendant was sentenced by Rice DCJ in the District Court on 30 August 2013. In relation to the offence of aggravated possessing a firearm without a licence, the Judge imposed a sentence of imprisonment of three years and nine months. In relation to the offence of failing to store ammunition separately from firearms, the defendant was convicted without further penalty. Rice DCJ indicated that he had made a reduction of about 25 percent on account of the early guilty pleas. The Judge ordered the sentence to be served cumulatively upon the four month term of imprisonment the subject of the earlier suspended sentence bond, leading to a total head sentence of imprisonment of four years and one month. A non-parole period of two years was fixed in respect of this total head sentence. Both the head sentence and the non-parole period were backdated to commence on 30 May 2013. The Judge made orders for the forfeiture of the firearm and ammunition, and an order disqualifying the defendant from holding or obtaining a firearms licence until further order.
Facts
On 12 April 2012, the defendant pleaded guilty in the Magistrates Court to the offences of theft[3] and utter a forged prescription.[4] The circumstances of this offending were that the defendant stole a prescription pad from a drug clinic and subsequently attempted to use a forged prescription to obtain a quantity of Diazepam. The defendant was sentenced to a term of imprisonment of four months, which was suspended on his entry into a bond to be of good behaviour for a period of 18 months. As earlier mentioned, the present offending occurred in breach of the terms of that bond.
[3] Criminal Law Consolidation Act 1935 (SA) section 134(1).
[4] Controlled Substances Act 1984 (SA) section 30(1).
On 22 November 2012, a police patrol was driving along Leslie Avenue, Blair Athol. The police officers noticed the defendant walking in the same direction on the footpath and carrying a brown female’s handbag over his shoulder. The police vehicle performed a u-turn. The police officers observed the defendant place the handbag on the ground in the driveway of a house and continue walking. The police officers asked the defendant to stop, which he did. A search of the handbag revealed that it contained a sawn-off shotgun with one live shell in the chamber. The shotgun was found in two pieces and it was agreed before the Judge that the shotgun could not be immediately fired in that state without further assembly. Another eleven shells and a pair of motorcycle gloves were also located in the handbag. The defendant was arrested. The defendant did not have a licence to carry the shotgun, which was a prescribed firearm as it was less than the minimum length.
In sentencing, the Judge had regard to a psychological report prepared by Richard Balfour. Mr Balfour noted that the defendant appeared to be obviously intellectually disabled, due to either an intellectual disability or an acquired brain injury.
The Appeal
On appeal, the defendant advanced three contentions, namely, that the reduction on account of the defendant’s guilty pleas was inadequate, that the Judge erred in not backdating the sentence to 9 January 2013 and, finally, that the sentence was manifestly excessive.
Pleas of Guilty
The Judge made a reduction of 25 per cent on account of the defendant’s pleas of guilty. It was pointed out that at the time of sentencing submissions, the Director of Public Prosecutions did not oppose the contention that a discount in excess of 25 per cent was appropriate.
On the appeal, it was accepted by the Director that the pleas were entered on the first available formal occasion and that the pleas avoided the need for a ballistics report and the filing of declarations. It was accepted that the defendant was entitled to significant credit. However, it was argued that significant credit was given and that the reduction of 25 per cent was well within the Judge’s discretion. It was further pointed out that the defendant was observed by police to be carrying and then discarding a handbag containing a sawn-off shotgun and ammunition. It was said that this was a simple and overwhelming Crown case and that the appellant’s avenues for challenging the crown evidence were limited. The strength of the Crown case and the apparent inevitability of a finding of guilt are relevant considerations when considering the extent of the reduction.
In my view, no error has been shown on the part of the Judge. There is no substance to this complaint.
Commencement of the Sentence
Following his arrest in respect of the offending the subject of this appeal, the defendant was released on home detention bail. On 9 January 2013, the defendant was arrested for breaching the conditions of his home detention bail and for disorderly conduct. It was alleged that the defendant had been given a pass out to attend a particular shopping centre, but instead attended a different shopping centre, where the defendant then behaved in a disorderly manner when spoken to by police. The defendant has remained in custody since that date. The defendant’s bail was not formally revoked until 30 May 2013.
When sentencing, the Judge did not make any reduction on account of the time spent by the defendant in custody between 9 January and 30 May 2013. It was a contention of the defendant on the appeal that he should have done so.
It was acknowledged that the defendant was sentenced by a Magistrate in September 2013 in respect of a number of offences, including the offences of the two breaches of home detention bail and the charge of behaving in a disorderly manner at a Coles supermarket at Blair Athol on 9 January 2013. When sentencing for these offences, the Magistrate said:
I will deal with [these] charges separately. As to the offending on 8/1/13 and 9/1/13, there will be convictions recorded on all counts, but no further penalty having regard to the time you have spent in custody since that offending.
A review of the Magistrate’s sentencing remarks makes it plain that the Magistrate was aware of the sentence imposed by Rice DCJ and that, in particular, Rice DCJ had not taken into account the period between 9 January and 30 May 2013.
The defendant was sentenced by the Magistrate on this occasion in respect of other offending and a sentence of immediate imprisonment was imposed. However, the Magistrate did not extend the non-parole period that had been fixed by Rice DCJ.
On the appeal, counsel for the defendant was asked for an explanation as to why all outstanding matters were not brought before Rice DCJ so that the sentencing for all offences could be addressed and determined by the one judicial officer. Had this course been followed, there could be no ambiguity about proper account being taken in respect of time spent in custody. Counsel could provide no explanation as to why this did not occur. It was said that the defendant had different legal representation in relation to the Magistrates Court matters. There may well have been a perceived tactical advantage in having the matters before two courts. One evident advantage was that the Magistrate saw no good reason to extend the non-parole period imposed by Rice DCJ, notwithstanding that a further term of imprisonment was imposed.
In my view, there is no substance to this complaint. I consider it to be clear that the Magistrate, when sentencing the defendant on 4 September 2013, took into account the time that the defendant had spent in custody between 9 January and 30 May 2013.
Manifestly Excessive
The defendant submitted that the apparent starting point of five years’ imprisonment was manifestly excessive. It was said to be outside the range of sentences previously imposed for like offending. It was accepted that the sawn-off shotgun was loaded, but it was pointed out that it was in two pieces and that until the two pieces were joined together, the shotgun could not be fired. It was asserted that the defendant had the sawn-off shotgun for self-protection. He had been severely assaulted while in prison by members of a bikie gang and members of the same gang had attempted to stand over him on his release. Finally, it was pointed out that the defendant had an intellectual disability and that, as a consequence, he had a dysfunctional personal history and that this explained his perceived need for protection. It was said that his intellectual disability was such that the need for general deterrence assumed less importance than would otherwise be the case.
The report of Mr Balfour confirmed that the defendant suffered from a significant intellectual disability. Mr Balfour recommended that he be referred for formal neuropsychological assessment of his intellectual functioning and for psychiatric review. The appeal proceeding was adjourned to allow this to occur so that the Court would be better informed as to the nature of the defendant’s intellectual disability, its relevance to his offending and so that a detailed review as to treatment could be prepared. Soon after the adjournment, the solicitor for the defendant advised that the defendant did not wish to proceed with the obtaining of reports. As a consequence, the Court is left with the observations of Mr Balfour that the defendant suffers from an obvious intellectual disability.
Mr Balfour considered that the defendant presented with a high risk of reoffending. In particular, Mr Balfour said:
Mr Daniele possesses most of the traditional static and dynamic criminogenic risk factors which have been identified by researchers as predisposing an individual towards offending behaviour. … I would rate his criminogenic profile as being in the high range of risk for coming into further legal conflict during the next 12 months.
In my opinion, this ground of appeal should be rejected. I consider that a notional head sentence of five years before a reduction on account of the defendant’s guilty pleas was within the sentencing discretion of Rice DCJ. My reasons for this conclusion follow.
The firearm in the possession of the defendant was innately dangerous. It was a sawn-off shotgun, having been illegally modified. The defendant was carrying the shotgun with a loaded cartridge and 11 shotgun shells. Although the shotgun was in two pieces, it could be readily reassembled and fired.
Possession of a firearm is a privilege and a serious responsibility.[5] The overriding policy of the Firearms Act 1977 (SA) is to protect the public by controlling the possession and use of firearms.[6] 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.[7] Relevant amendments were made to the Firearms Act in 2008. In the second reading speech the Minister said:[8]
In South Australia, the majority of violent criminal behaviour with firearms does not involve legitimate firearms 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 this trade and the subsequent crime arising from it.
[5]    R v Nozuhur [2013] SASCFC 81, [22]-[26].
[6]    Pollitt v Police [2007] SASC 382, [20]; R v Nozuhur [2013] SASCFC 81, [23]-[24].
[7]    South Australia, Parliamentary Debates, House of Representatives, 14 April 1977, 3448 (Hugh Hudson).
[8]    South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2055 (Paul Holloway).
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.[9]
[9] Offe v Police (2002) 84 SASR 1, [26].
I consider that in all the circumstances of this offending and particularly having regard to the need for general deterrence, the sentence imposed was within the sentencing discretion of Rice DCJ.
Conclusion
I would dismiss the appeal.
PEEK J. I agree that the appeal should be dismissed. I agree in substance with the reasons of Gray J. I agree with the additional observations by the Chief Justice.