SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DARLING
[2017] SASCFC 46
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Doyle)
18 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence.
The appellant pleaded guilty to offences of: possessing a prescribed firearm without a licence; breach of bail; driving while disqualified; and resisting police. He was sentenced by a District Court Judge to a series of cumulative sentences resulting in total head sentences of 2 years, 3 months and 16 days.
The appellant appeals against the sentences imposed for the offences of possessing a prescribed firearm (26 months imprisonment, reduced to 18 months and 6 days after his guilty plea) and driving while disqualified (12 months imprisonment reduced to 8 months and 12 days imprisonment after his guilty plea).
As to the firearms offence, the respondent conceded that two process errors were made by the sentencing Judge and accordingly, re-sentencing was prima facie required. However, the respondent contended that the appeal should be dismissed, as the appropriate sentence to be imposed on re-sentencing should be the same, or a greater, sentence.
Held (allowing the appeal in relation to the firearms offence only) (per Peek J, Blue and Doyle JJ agreeing):
(1) On re-sentencing in relation to the firearms offence, a starting point of two years is appropriate, reduced to 16 months and 23 days for the plea of guilty.
(2) The sentence for driving while disqualified was not demonstrated to be manifestly excessive.
Firearms Act 1977 s 11; Bail Act 1985 s 17; Motor Vehicles Act 1959 s 91; Summary Offences Act 1953 ss 6, 21C; Criminal Law (Sentencing) Act 1988 ss 20AAB, 20AAC, referred to.
R v O'Toole [2013] SASCFC 18; R v Liddy [2014] SASCFC 70; R v Coulthard [2016] SASCFC 47; R v Daniele [2013] SASCFC 18; Kentwell v The Queen (2014) 252 CLR 601; Police v Nissen (2014) 120 SASR 50, discussed.
R v Simpson [2016] SASCFC 83, considered.
R v DARLING
[2017] SASCFC 46Court of Criminal Appeal: Peek, Blue & Doyle JJ.
PEEK J.
Appeal against sentence.
Introduction
The appellant pleaded guilty before a District Court Judge to the following offences and received the following sentences:
For possess prescribed firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (maximum penalty $50,000 or imprisonment for ten years): 26 months imprisonment reduced to 18 months and 6 days for the plea of guilty (the prescribed firearm charge).
For breach of bail contrary to s 17 of the Bail Act 1985 (maximum penalty $10,000 or two years imprisonment): 1 month imprisonment reduced to 3 weeks for the plea of guilty, to be served concurrently with the sentence imposed in relation to the firearms offence.
For drive disqualified contrary to s 91 of the Motor Vehicles Act, 1959 - subsequent…
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- R v Darling [2017] SASCFC 46
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CaseChat Overview and Summary
The court was required to determine the appropriate sentence for the offence of possessing a prescribed firearm, considering the specific circumstances of the appellant's discovery and concealment of the weapon. This involved an assessment of whether the sentence should be suspended, a matter that had been contested on appeal. The court also considered the limited existing Full Court authority on sentencing for prescribed firearms, referencing previous decisions such as *R v O’Toole*, *R v Liddy*, *R v Coulthard*, and *R v Daniele*.
In its reasoning, the court drew upon the principles established in *R v O’Toole*, *R v Liddy*, and *R v Coulthard*. These cases involved similar prescribed firearms, including illegally shortened shotguns. The court noted that while comparisons between cases are of limited value, they provide guidance on sentencing ranges and considerations. In *R v Coulthard*, for instance, the court highlighted that an appellant's explanation for possessing a firearm could be undermined by their subsequent conduct, and that a far-fetched explanation might not be given an opportunity to be supported by evidence on oath if not provided earlier. The court's ultimate decision on the sentence, including the suspension thereof, would have been informed by these precedents and the specific facts of the appellant's case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
Established by: PEEK J, BLUE J, DOYLE J
At the time when his son Jayden was being sought by police concerning the armed robbery, the appellant was cleaning out the shed of his partner’s grandmother’s property after she had died. While doing so, he found the shotgun and ammunition and secreted them at his home, fearing that the police might incorrectly associate them with his son Jayden.Consideration There is not a great deal of Full Court authority concerning sentencing for the charge of possession of a “prescribed firearm” as distinct from other classes of firearms. However, the decisions of this Court in R v O’Toole,[4] R v Liddy,[5] R v Coulthard,[6] and R v Daniele[7] may be referred to, although, as always, such comparisons can only be of limited value.[4] [2013] SASCFC 18.[5] [2014] SASCFC 70.[6] [2016] SASCFC 47.[7] [2014] SASCFC 22. In R v O’Toole,[8] the prescribed firearm was a semi-automatic .22 LR rifle, illegally shortened to a pistol configuration. The sentencing Judge had in effect adopted a starting point of two and a half years and reduced that to two years because of the plea of guilty. His Honour refused to suspend the sentence. On appeal, a procedural error required a re-sentencing and the only contest was as to whether the sentence should be suspended. This Court suspended the sentence.[8] [2013] SASCFC 18. In R v Liddy,[9] the prescribed firearm was an illegally shortened 12 gauge double barrel shotgun, a firearm very similar to that involved in the present case. The appellant had actually discharged the shotgun and was charged with two offences: “discharging a firearm being reckless as to whether that act injured, annoyed or frightened any person” contrary to s 32AA(3), Criminal Law Consolidation Act 1935, and “possessing a firearm without holding a firearms licence authorising possession of that firearm” contrary to s 11(1), Firearms Act 1977. On appeal, a procedural error required a re-sentencing. The Court adopted a starting point of a single sentence of two and a half years imprisonment for both offences before reduction for the pleas of guilty and time spent in custody and home detention.[9] [2014] SASCFC 70. In R v Coulthard,[10] the prescribed firearm was again an illegally shortened 12 gauge double barrel shotgun, a firearm very similar to that involved in the present case. The sentencing Judge had adopted a starting point of two and a half years imprisonment and reduced that to one year six months because of the plea of guilty. Other sentences were ordered to run concurrently. On appeal, the Judge’s procedural error of not imposing separate sentences as now required by s 20AAC(1) of the Sentencing Act led to a re-sentencing. As to the factual basis of such re-sentencing, Kourakis CJ (with whom Vanstone and Kelly JJ concurred) stated:[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.[10] [2016] SASCFC 47.