R v Darling - [2017] SASCFC 46

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 46
Court 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 offence (maximum penalty two years imprisonment): 12 months imprisonment reduced to 8 months and 12 days for the plea of guilty (the driving while disqualified charge), to be served cumulatively upon the above sentences.
For both resist police contrary to s 6(2) of the Summary Offences Act 1953 and carry offensive weapon contrary to s 21C(1) of the Summary Offences Act 1953 (after reduction for time served): 28 days imprisonment, to be served cumulatively upon the other sentences.
The above periods of imprisonment resulted in total head sentences of two years, three months and 16 days to commence on 15 June 2016 when the appellant was taken into custody. His Honour fixed a non-parole period of 15 months which was also to commence on 15 June 2016.
The grounds of appeal
The appellant only takes issue with the sentences for the prescribed firearm charge and the driving while disqualified charge.
Grounds 1 to 3 deal with the prescribed firearm charge. Grounds 1 and 2 assert procedural error. Ground 3, in the alternative to grounds 1 and 2, asserts that the sentence was manifestly excessive.
Ground 4 deals with the driving whilst disqualified charge and asserts that the sentence was manifestly excessive.
PART 1: THE FIREARMS CHARGE (GROUNDS 1 TO 3 OF APPEAL)
On the hearing of the appeal, the respondent conceded that two process errors were made during the sentencing process. First, that the Judge stated in his sentencing remarks that the shotgun was loaded when found by police, whereas in fact the evidence was that it was unloaded. Secondly, that the Judge erred in his comments as to a nefarious purpose for the possession of the firearm.
The respondent conceded that the effect of the combination of procedural errors was that a re-sentencing as to the firearms charges was prima facie required. However, attention was directed to the decision of the High Court in Kentwell v The Queen.[1] The respondent submitted that in accordance with that decision, this Court should be satisfied that the appropriate sentence on a re-sentencing would be of at least the same gravity as that passed by the sentencing Judge and that, since a sentence would not be increased on a defence appeal, the proper order was that the appeal be dismissed. It was accepted that, to make good this submission, it would not be sufficient that the Court considered that a re-sentencing would result in a sentence of about the same magnitude as the sentence below; rather the Court must be satisfied that a re-sentencing would result in a sentence of the same or greater magnitude.
The basis for sentencing on the firearms charge
[1] (2014) 252 CLR 601.
On 8 June 2016, an armed robbery was committed by an offender using a firearm.[2] South Australian police officers searched for the son of the appellant, Jayden, who was suspected of being the offender. As part of the search, SAPOL officers attended at the appellant’s home on 15 June 2016. They located in his bedroom, secreted in a piece of plastic pipe, an unloaded illegally shortened 12 gauge shotgun (the shotgun) together with seven compatible cartridges. The appellant was arrested and charged with the possession of the shotgun and with other matters.
[2] The firearm was later determined to have been a .22 LR calibre rifle and not a shortened shotgun.
On later examination, the shotgun was found to be in working condition, although only one of the two barrels could be fired.
The appellant was to be sentenced as a serious firearm offender
Under s 20AAB of Division 2AA of Criminal Law (Sentencing) Act 1988 (the Sentencing Act), the commission of certain firearms offences whilst on bail on another charge constitutes a “serious firearm offence”, which in turn deems the defendant to be a “serious firearm offender”. The appellant was on bail on another charge at the relevant time and accordingly was to be sentenced as a serious firearms offender. That status carries a number of severe consequences. One is that a “serious firearm offender” is subjected to a different punishment regime in that a sentence of imprisonment must be separately passed and can only be suspended in the circumstances specified in s 20AAC. This Court has considered some of the questions arising under that regime in R v Simpson.[3]
[3] [2016] SASCFC 83.
The factual basis asserted by the appellant on sentencing
On sentencing, counsel for the appellant conceded that a sentence of imprisonment was inevitable in the circumstances of this case and did not suggest that the sentence should be suspended. Counsel also conceded that an order disqualifying the appellant from holding or obtaining a firearms licence “will cause no difficulty whatsoever” to the appellant since he has no interest in firearms. Those concessions are maintained in the appeal proceedings. The only question to be considered by this Court is the length of the period of imprisonment.
It is appropriate to sentence on the factual basis asserted by the appellant which is as follows.
The appellant was born on 4 May 1974 and was aged 42 at the time of sentencing. In 1997, when in his early twenties, he was diagnosed as having bipolar disorder. He spent some time in Glenside Mental Hospital in 2013. He remains on medication.
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.
His Honour proceeded to reimpose separate sentences, including the same sentence of one year six months for the prescribed firearm offence.
I note that in the earlier case of R v Daniele,[11] the appellant was found carrying a loaded illegally shortened 12 gauge shotgun with additional ammunition in a public street, once again a firearm very similar to that involved in the present case. The appellant had a not insignificant criminal record and was subject to a suspended sentence at the time of committing the offence. The medical evidence included expert opinion that:
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.
[11] [2014] SASCFC 22.
The sentencing Judge adopted a starting point of five years, which he reduced to three years nine months for the plea of guilty. The defence appeal that the penalty was manifestly excessive was dismissed on the basis that the sentence was “within the sentencing discretion of” the sentencing Judge.[12] Of course, this does not mean that other Judges may not have properly imposed a significantly lesser sentence in that case. And, of course, there are very significant distinguishing features between the nature of the conduct constituting the possession in Daniele and the less serious conduct involved in the present case.
[12] [2014] SASCFC 22, [23].
The present sentence
In the present case, the Judge adopted a starting point of 26 months and reduced it to 18 months and six days for the plea of guilty. The first thing to be said is that it is clear that this sentence could not be successfully attacked on the basis that it is manifestly excessive.
However, the present appellant is in the more advantageous position of having demonstrated a prima facie right to a re-sentencing by this Court. Thus, in Kentwell v The Queen the plurality (French CJ, Hayne, Bell and Keane JJ) stated:[13]
[35] … it was settled at an early stage that the appellate court’s authority to intervene is dependent upon demonstration of error.[14] The significance to the function of the appellate court of the distinction between specific error, of any of the kinds identified in House v The King,[15] and the conclusion of manifest excess or inadequacy is explained by Hayne J in AB v The Queen.[16] In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.
[36] In supplementary submissions filed by leave after the hearing of the appeal, the respondent contends for an intermediate step between the identification of specific error and the re-exercise of the sentencing discretion. On this analysis, the appellate court, having identified error, considers whether the sentence passed by the court of first instance is nonetheless warranted in law in that it is within the permissible range.
[13] (2014) 252 CLR 601, 615.
[14] Skinner v The King (1913) 16 CLR 336 at 340; [1913] HCA 32.
[15] (1936) 55 CLR 499; [1936] HCA 40.
[16] (1999) 198 CLR 111 at 160 [130]; [1999] HCA 46. See also at 151-153 [104]-[107] per Kirby J.
The plurality rejected this submission and stated:[17]
[42] … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration,[18] the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing[19] and the factors that the Sentencing Act,[20] and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be “warranted in law”. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not “warranted in law” unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.
…
[43] … The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal.
[17] (2014) 252 CLR 601, 617-618.
[18] House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
[19] Sentencing Act, s 3A.
[20] Sentencing Act, s 21A.
There are certain distinguishing factual features between this case and those of Liddy and Coulthard above (both of which involved the same prescribed firearm, a shortened double barrel shotgun) which favour the present appellant.
In all of the circumstances of this case, I consider that a starting point of two years imprisonment is appropriate. I would adopt a 30 per cent discount rate and reduce that period to 16 months and 23 days for the plea of guilty. The period of imprisonment should commence as from 15 June 2016, the date on which the appellant was taken into custody on this charge.
PART 2: DRIVING WHILST DISQUALIFIED (GROUND 4 OF APPEAL)
The appellant has a bad criminal record. It is also fair to say (as did the respondent) that he has an appalling driving record such as to show a high degree of contempt for the law.
In 2007, the appellant was sentenced for his third and fourth offences of driving whilst disqualified, and was at the same time dealt with for the offence of aggravated drive dangerously to escape police pursuit; he was disqualified from holding or obtaining a drivers licence for three years.
In 2010, the appellant was again dealt with for drive whilst disqualified and aggravated drive dangerously to escape police pursuit; he was sentenced to seven months imprisonment for those offences and received a further licence disqualification of six years.
In 2011, the appellant again drove whilst disqualified in breach of that six year disqualification order and was sentenced to imprisonment for six weeks for that sixth such offence (together with an additional different offence).
The appellant’s record now includes six previous convictions for driving while disqualified. This is an unusually high number of convictions for that offence and indicates that there is an especially high need for personal deterrence in this case. And, of course, there is also the need for general deterrence. Thus in Police v Nissen, Kourakis CJ recently observed:[21]
[26]   The financial and human cost of personal injury and property damage caused by traffic offences weighs heavily on the community. The most effective measures for deterring serious and persistent traffic offenders and thereby protecting the public are licence disqualifications and suspensions. As King CJ observed in Coombe v Douris,[22] those orders are ineffective if they are generally disregarded. Driving in contravention of a licence disqualification or suspension is difficult to detect and, for that reason, it is critical that when an offender is apprehended the disqualification and suspension orders are strongly enforced.
[27]   The feature of an offence of driving whilst disqualified from holding a licence, or whilst a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving whilst holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender’s personal circumstances.
[28]   The measure of an offender’s attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach.
[29]   It can generally be inferred that a person who drives when disqualified, or whilst holding a suspended licence, after having been convicted of an earlier offence, has a contempt for or, at least, a dismissive attitude to orders of disqualification or suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence.
[21] (2014) 120 SASR 50, 58-59.
[22] (1987) 47 SASR 324, 325.

In the present case, the reason given by the appellant for driving whilst disqualified was that he drove to work because a colleague was unwell and could not drive him. However, while this may be so, it is to be noted that the appellant was apprehended whilst shopping on his way home from work.
The Judge noted that because it is a subsequent offence, the maximum penalty is two years imprisonment. His Honour rightly stressed the need for personal deterrence and stated in imposing sentence:
I turn to the offence of driving a motor vehicle whilst under disqualification, District Court file 16-2149. Because this is not the first offence of this type that you have committed, the relevant maximum penalty is two years imprisonment. You have shown scant regard for motor vehicle law over the years. You have to learn that if you continue to offend in this way you will receive substantial sentences of imprisonment. I impose a sentence of eight months and 12 days imprisonment, reduced from 12 months on account of your guilty plea. This sentence will be served cumulatively on the sentences that I have imposed thus far.
As noted above, the appellant’s ground 4 of appeal in relation to this offence of driving whilst disqualified is different in nature to grounds 1 and 2 of appeal discussed above. Here, it is necessary to establish that the sentence is manifestly excessive before there can be a re-sentencing. Irrespective of whether one or more of the members of the Court may have imposed a lesser sentence, it is impossible to conclude that this sentence was not within the ambit of the Judge’s discretion in all the circumstances of this case. Accordingly, ground 4 of appeal is rejected.
Non-parole period
The Judge appears to have fixed a non-parole period that is approximately 55 per cent of the head sentence. I consider that, in the present circumstances, a non-parole period that constitutes approximately the same proportion of the new head sentence should be fixed. I would fix a non-parole period of 14 months to commence from 15 June 2016.
Orders
I propose that this Court interferes only with the disposition of the firearms charge (and consequentially with the non-parole period) and accordingly, I propose the following orders:
1Appeal allowed.
2The sentence imposed by Judge Millsteed in respect of the offence of “possessing a prescribed firearm without holding a firearms licence authorising possession of that firearm” contrary to s 11(1), Firearms Act 1977 of 18 months and six days imprisonment is set aside and the appellant is re-sentenced to 16 months and 23 days imprisonment to be cumulative upon the other sentences of imprisonment imposed by Judge Millsteed, except for the sentence for breach of bail which is to be served concurrently.
3The other sentences imposed by Judge Millsteed and the other orders made by Judge Millsteed are confirmed.
4The head sentence is therefore two years two months and 20 days and to commence as from 15 June 2016.
5The non-parole period of 15 months fixed by Judge Millsteed is set aside and a new non-parole period of 14 months is fixed and is to commence as from 15 June 2016.
BLUE J. I agree.
DOYLE J.I agree.