R v Daniele

Case [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…

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AGLC
R v Daniele [2014] SASCFC 22
Case
[2014] SASCFC 22
Decision Date

CaseChat Overview and Summary

The defendant appealed against a sentence imposed by Rice DCJ in the District Court for aggravated possession of a firearm without a licence and failing to store ammunition separately from firearms. The District Court judge had imposed a head sentence of three years and nine months for the firearm offence, with a conviction without further penalty for the ammunition offence. A reduction of approximately 25 percent was applied for early guilty pleas. The sentence was ordered to be served cumulatively upon a four-month suspended sentence for prior offences, resulting in a total head sentence of four years and one month, with a non-parole period of two years, both backdated to 30 May 2013.

The appeal raised three grounds: that the reduction for the guilty pleas was insufficient, that the sentence should have been backdated to an earlier date, and that the overall sentence was manifestly excessive. The court was required to determine whether the sentencing judge erred in his assessment of the discount for the guilty pleas, the commencement date of the sentence, and whether the imposed sentence fell outside the proper exercise of the sentencing discretion, particularly in light of the need for general deterrence and the defendant's circumstances, including a psychological report indicating possible intellectual disability or acquired brain injury.

The Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Gray and Peek JJ, dismissed the appeal. The court found that, in all the circumstances of the offending, and particularly considering the imperative of general deterrence, the sentence imposed by the District Court judge was within his sentencing discretion. The court agreed that the appeal should be dismissed, with Gray J's reasons being affirmed and additional observations made by the Chief Justice.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J (dissent)
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. 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.

Ratio Decidendi

Legal Principle Established

Established by:

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