R v Fletcher - [2025] SASCA 21

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v FLETCHER
[2025] SASCA 21
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice McDonald)
13 March 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY
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
This was an application brought by the Director of Public Prosecutions (SA), to appeal against a sentence.
On 23 November 2023, the respondent pleaded guilty to one count of supplying a prescribed firearm, contrary to s 22(2)(a) of the Firearms Act 2017 (SA). This followed from a police investigation into a home invasion involving a firearm, which led to an additional inquiry into communications related to the firearm, which involved the respondent. On 2 February 2024, the respondent was convicted of the supply offence in the District Court of South Australia.
The sentencing Judge imposed a single sentence of imprisonment of two years, one month and 16 days. A non-parole period of 15 months was fixed. The sentencing Judge suspended the sentence upon the respondent entering into a bond to be of good behaviour for 18 months.
The Director of Public Prosecutions (SA) seeks permission to appeal on the basis that the sentencing Judge erred in applying s 54(2) of the Sentencing Act 2017 (SA) by finding that exceptional circumstances outweighed the paramount consideration of protecting the community and personal and general deterrence when sentencing the respondent. The Director further submits that the quantum of the sentence imposed and the order for suspension under s 51(2) of the Sentencing Act 2017 (SA) resulted in a sentence that was manifestly inadequate.
Held, by the Court refusing permission to appeal:
(per the Court):
1.The sentence imposed was not manifestly inadequate giving consideration to the nature and circumstances of the offence and the respondent’s personal circumstances.
(per McDonald AJA):
2.The sentencing Judge erred in finding that the test under s 51(2) of the Sentencing Act 2017 (SA) was satisfied, that being that the respondent’s personal circumstances were not sufficiently exceptional as to outweigh the paramount consideration of protecting the community and personal and general deterrence.
3.The error of the sentencing Judge was not a rare and exceptional case in which permission to appeal the sentence should be granted.
(per Bleby JA):
4.With consideration to the evidence given on oath and the nature and circumstances of the offending subject to the sentence imposed, the respondent’s personal circumstances were not particularly exceptional.
5.The respondent’s personal circumstances were not so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence.
(per Lovell JA):
6.The sentencing Judge did not err in the exercise of her discretion to suspend the sentence under s 51(2) of the Sentencing Act 2017 (SA).

Sentencing Act 2017 (SA) s 49(1)(g), s 51(1), s 51(2), s 54(2); Criminal Law (Sentencing) Act 1988 (SA) s 20AAC(2); Firearms Act 2015 (SA) s 3(1), s 3(2)(f)(g), s 22, s 39, referred to.
Brougham v The King [2023] SASCA 75; Lloyd v The King [2023] SASCA 19; Markarian v The Queen (2005) 228 CLR 357; Johnson v The Queen (2004) 78 ALJR 616; Hili v The Queen (2010) 242 CLR 520; R v Daniele [2024] SASCFC 22; R v Karnage [2019] SASCFC 82; Knight v The Queen (2021) 138 SASR 156; R v Skinner (2016) 126 SASR 120; Everet v The Queen (1994) 181 CLR 295; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Green v R; Quinn v R (2011) 244 CLR 462; Cumberland v R (2020) 94 ALJR 656; R v Singh [2024] SASCA 81; R v Kong (2013) 115 SASR 425, applied.
Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; Elias v The Queen (2013) 248 CLR 483; Hackett v The Queen [2021] SASCA 32; House v The King (1936) 55 CLR 499; Karpany v The Queen (2021) 138 SASR 229; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Borkowski (2009) 195 A Crim R 1; R v Grundy (2021) 138 SASR 94; R v Kelly [2000] QB 198; R v Osenkowski (1982) 30 SASR 212; R v Willett (2017) 128 SASR 57; R v Yavuz (2018) 130 SASR 231; Rendic v The Queen (2021) 138 SASR 214; Veen v The Queen (No 2) (1988) 164 CLR 465, considered.

R v FLETCHER
[2025] SASCA 21
Court of Appeal – Criminal: Lovell and Bleby JJA and McDonald AJA

LOVELL JA: I have had the advantage of reading the draft judgment of McDonald AJA. I agree with her conclusion that permission to appeal should be refused. I have however reached that conclusion for different reasons. My reasons follow.
I gratefully adopt McDonald AJA’s summary of the facts. I agree with McDonald AJA’s reasons for concluding that the sentence imposed was not manifestly inadequate. I have nothing further to add in relation to that issue.
The purpose of a prosecution appeal is not simply to overturn an erroneous sentence and increase the penalty. A wider purpose is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons to assist in achieving consistency in sentencing.[1] No doubt sentencing judges would prefer “a handful of “certainty” to a whole cartload of beautiful possibilities”,[2] but in giving guidance on the exercise of a discretion, certainty is not possible.
[1] R v Borkowski (2009) 195 A Crim R 1 at [70] (Howie J, McClellan CJ at CL and Simpson J agreeing).
[2] Friedrich Nietzsche, Beyond Good and Evil (Dover Publications, 2017).
Against that background I turn to consider the second ground of appeal.
The applicant’s main submission on appeal related to the sentencing Judge’s decision, pursuant to s 51(2) of the Sentencing Act 2017 (SA) (“Sentencing Act”), to suspend the sentence of imprisonment she imposed. Parliament in enacting s 51 of the Sentencing Act narrowed the range of sentencing options available to a court when sentencing serious firearm offenders for a serious firearm offence.[3] The ability to suspend a term of imprisonment in relation to a person sentenced for a serious firearm offence is controlled by s 51(2) of the Sentencing Act which relevantly states:
(1)…
(2)A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if the person satisfies the court, by evidence given on oath, that—
(a)     the person’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)     it is, in all the circumstances, appropriate to suspend the sentence.
[3]     R v Grundy (2021) 138 SASR 94 at [32] (Doyle JA, Kelly P and Bleby JA agreeing).
This express legislative provision restricts the sentencing options although it remains a discretionary exercise. It is a discretion to be exercised on the same factors relevant to the fixing of a term of imprisonment but with different weight to be accorded to some factors.
Turning to the interpretation of the text, while consideration of, and perhaps some elaboration upon, the words chosen by Parliament may assist in applying the test, the test remains one solely referrable to those words contained in s 51(2)(a).
It is important to note that the test is not simply a matter of a defendant establishing exceptional personal circumstances. What the sentencing discretion involves here is a determination of whether the personal circumstances of the applicant were “so exceptional” as to “outweigh the paramount consideration of protecting the safety of the community ... and personal and general deterrence”. It is important to note that this section deals only with serious firearm offences.
The meaning of the expression “so exceptional” was considered recently in Knight v The Queen (“Knight”).[4] The Court in Knight was dealing with s 54(2)(a) of the Sentencing Act which is in identical terms to s 51(2)(a).[5] Justice Livesey (as he then was) observed that the content of the expression must be informed by its relevant statutory context and, in particular, the objects of the provision in question and the mischief to which it was directed. The adverb “so” does modify the adjective “exceptional”. In context, it means exceptional, not in an abstract way, but in the sense that it outweighs paramountcy of the sentencing objectives.
[4] (2021) 138 SASR 156.
[5] However, it must be remembered that the mischief to which it is directed is different.
This approach is consistent with the remarks of Kourakis CJ (Nicholson J agreeing) in R v Willett (“Willett”),[6] where the Court dealt with s 20AAC(2) of the Criminal Law (Sentencing) Act 1988 (SA) which was in similar but not identical terms to s 51(2).[7]
[6] (2017) 128 SASR 57.
[7] Section 51(2) of the Sentencing Act states that the protection of the community is paramount whereas s 20AAC(2) of the Criminal Law (Sentencing) Act 1988 (SA) stated that general and personal deterrence were the “paramount consideration”.
Exceptional circumstances can include a single exceptional factor, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together are seen as exceptional. The exceptional circumstances must be personal to the offender. Exceptional circumstances may emerge from qualitative considerations (in the sense of circumstances of the type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).[8]
[8] R v Skinner (2016) 126 SASR 120 at [96] (Doyle JA); Karpany v The Queen (2021) 138 SASR 229 at [26].
However, as Doyle J stated in R v Skinner (“Skinner”),[9] the Court must be careful not to set the test so high that it becomes near impossible to satisfy. Further, as Nicholson J observed in R v Karnage,[10] personal circumstances are to be considered “in the context of all of the factors ordinarily relevant to sentence, including the nature and seriousness of the offence committed, the risks of re‑offending, the need to protect the public and the prospects for rehabilitation”.[11]
[9] (2016) 126 SASR 120.
[10] Although dealing with s 54(2)(a) of the Sentencing Act, as already stated, it is in identical terms to s 51(2)(a).
[11] R v Karnage [2019] SASCFC 82 at [70].
It is neither possible nor desirable to be more prescriptive as to what will be required to establish the test contained in s 51(2). The application of the test does not involve a staged process. Self-evidently, reaching a decision involves considering not only those factors said to be exceptional personal circumstances, but also the nature and extent of the applicant’s previous offending in addition to a consideration of the offending for which he is to be sentenced. These factors inform what weight should be given to the criteria of protecting the safety of the community and personal and general deterrence given the mischief to which the provision is directed. That is, the exercise of the discretion is dependent upon the facts of the particular case in the context of the legislative purpose of the section.
It is against that background that I turn to consider the applicant’s submission that the respondent’s personal circumstances were no different from those that were regularly or routinely encountered by sentencing judges. Thus, the respondent’s personal circumstances were not out of the ordinary, unusual, special, or uncommon. Therefore, the applicant submitted, the respondent’s personal circumstances were not exceptional.
Such an approach is not the point of, and is contrary to, the words of the section and the principles outlined in the cases referred to earlier. It ignores the relevant legislative purpose. The Court in R v Yavuz,[12] although dealing with the meaning of “exceptional” in a different statutory context, demonstrated the problem with that submission. The Court stated:[13]
When the legislature confers a discretion on courts to depart, from a penalty or other order which it requires generally to be made, in certain prescribed categories of case, it commonly uses words like “special” or “exceptional” to describe the occasion for the exercise of that discretion. Those words may be contrasted with the term “good reason” which is open textured and allows a court a wide discretion to make the order which it thinks best meets the interests of justice. On the other hand the former structure, of coupling a duty with a power to depart from it, requires the specified order generally to be made because the legislature has determined that that order best achieves the interests of justice in the category of case it has prescribed. Special or exceptional circumstances are therefore those circumstances which, when present, so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address with the specified order generally to be made.
The legislature confers a discretion in terms such as those in s 38(2ba) precisely because it appreciates that there may be some particular cases, which it could not hope to identify prospectively, in which the application of the general rule is unnecessary and unjust. An identification of the mischief the provision addresses and the objects of the legislature are therefore a critical first step in determining whether there are special or exceptional reasons not to make the specified order or impose the specified penalty. Unless the discretion is approached in that way, its exercise would degenerate into a search for bizarre or peculiar circumstances which, although undoubtedly exceptional, have no bearing on the legislative purpose. For example, it would be exceptional in a drug trafficking case to find a wealthy principal of a large legitimate business at the head of an illicit drug distribution network, but that circumstance, in isolation, weighs heavily in favour of applying the general rule, not departing from it.
(emphasis added)
[12] (2018) 130 SASR 231.
[13] R v Yavuz (2018) 130 SASR 231 at [115]-[116].
The test is not to be determined by what a sentencing judge may have encountered in other sentencing matters. To approach the exercise of the discretion as the applicant submitted would lead to a search for “bizarre or peculiar” circumstances which may be exceptional but bear no relevance to the legislative purpose. Alternatively, a circumstance which is regularly found during other sentencing matters, when considered in combination with other matters in the circumstances of that particular case, may lead to the test being satisfied given the legislative purpose of the section. As Doyle J observed in Skinner, the combination of all the factors may lead to a finding that the personal circumstances are so exceptional as to outweigh the objectives stated in the section.
It is important to remember that often there are competing and contradictory considerations to balance. What may mitigate the seriousness of one offence may aggravate the seriousness of another. The sentencing Judge was not required to attribute specific weight to any particular factor. To attempt to single out some of the considerations and attribute some numerical or proportionate value to them would distort the already difficult balancing exercise.
The offender’s personal circumstances are to be considered in the context of the legislative purpose of s 51(2), having regard to all factors ordinarily relevant to sentence, including the nature and seriousness of the offence committed, the nature of the offender’s participation, the risks of re‑offending, the need to protect the public, general and personal deterrence and the prospects for rehabilitation.
The approach of the sentencing Judge
The remarks of the sentencing Judge are a model of logic and clarity. No complaint was made, nor could be made, that the sentencing Judge had overlooked any relevant factor or taken into account an irrelevant matter. The sentencing Judge set out the relevant features of the offence and the respondent’s participation in the offence. She set out the respondent’s personal circumstances in some detail. The sentencing Judge correctly identified the discretion to be exercised.
Turning to the discretion to be exercised, the sentencing Judge observed:
Mr Fletcher, you must understand that the Firearms Act is in place to protect the safety of the community. Firearms are extremely dangerous, especially when they are possessed outside the strict licensing conditions which are provided for in the Act. Supply and possession of firearms against a background of drug and alcohol abuse is especially dangerous for the community and for the people involved. Parliament has set serious penalties to send a message that dealing with firearms outside the legislative scheme will attract serious consequences. You, and others in the community who might be inclined to behave in a similar way, must be deterred from doing so by the penalty that I impose.
The offence of supplying a prescribed firearm is designated as a serious firearms offence. That means that the discretion that I have in sentencing you is curtailed. Parliament has curtailed my discretion to mark how seriously the community views offences of this kind. I am obliged to impose a sentence of imprisonment that may not be suspended unless certain conditions are satisfied. I will consider that issue in a moment.
The applicant made no complaint about the sentencing Judge’s description of the ‘mischief’ to which this section is directed.
The sentencing Judge then turned to the test she was required to consider. The sentencing Judge referred to Willett and, in particular, to the observations of Kourakis CJ. The sentencing Judge observed:
In a case of R v Willett, the Court of Appeal considered the provision relating to suspension of a sentence for a serious firearms offence. Their interpretation related to the previous legislation but the analysis applies to the current s.51. Kourakis CJ observed that personal and general deterrence are paramount considerations when sentencing for a serious firearms offence. However, where a person’s personal circumstances are more compelling than the circumstances relating to deterrence, the statutory tipping of the scale against suspension may be countered and a more rehabilitative sentence may be imposed.
In this case, your supply was on behalf of someone else who was actually in charge of the firearm. Your previous record does not suggest that you are someone who needs to be deterred from similar conduct.
You are still a very young man and your life circumstances have been affected to a large extent by traumatic aspects of your childhood. To your credit, you are now in full-time work. Your employer speaks highly of you and your family has seen a difference in your outlook when your life has the structure and direction of full-time work. In my view, engagement in prosocial employment and the support of your family is the pathway which community safety can best be achieved.
The legislation does provide that deterring you and other members of the community from similar behaviour is a paramount consideration. I am, however, satisfied from the evidence that you gave on oath that your personal circumstances are so exceptional as to outweigh those considerations. I consider, therefore, that the first condition is satisfied.
(emphasis added)

The sentencing Judge clearly understood the requirements of the test. The sentencing Judge considered the mischief to which the provision is aimed. She had regard to the paramount objects of protecting the safety of the community and personal and general deterrence. Importantly, and not challenged by the applicant, are the sentencing Judge’s observations that personal deterrence had a limited role given the respondent’s limited criminal record, and that rehabilitation was important to the question of the protection of the community. While I accept that the respondent’s attempts at rehabilitation to date had been inconsistent, it was open to the sentencing Judge to consider that, in all of the circumstances, the respondent should be given an opportunity to progress his rehabilitation rather than serve a custodial sentence. The sentencing Judge had the advantage of observing the respondent and his attitude throughout the sentencing process.
Having conceded that the sentencing Judge considered all relevant (and only relevant) considerations in reaching her conclusion, the applicant must establish that the conclusion reached was not open to the sentencing Judge.
The applicant must establish that the conclusion reached was “unreasonable or plainly unjust”. To put that another way, the applicant must establish that the conclusion has not been reached according to rules of reason and justice.[14]
[14] House v The King (1936) 55 CLR 499.
Sentencing judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case, subject of course to statutory restrictions.[15] The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct answer.[16] The troublesome nature of exercising a discretion during the sentencing process arises from the unavoidable difficulty in giving weight to the various factors to which the court must have regard. Factors bearing on the exercise of the discretion frequently pull in different directions. It is the obligation of the sentencing judge to balance the incommensurable factors, including the statutory restrictions, and arrive at a just conclusion.[17] It is not sufficient for this Court to conclude that it would have come to a different decision to the one reached by the sentencing Judge.[18]
[15] Elias v The Queen (2013) 248 CLR 483.
[16] Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[17] Veen v The Queen (No 2) (1988) 164 CLR 465; Markarian v The Queen (2005) 228 CLR 357; Elias v The Queen (2013) 248 CLR 483; Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; Rendic v The Queen (2021) 138 SASR 214.
[18] Hackett v The Queen [2021] SASCA 32 at [8].
To establish appealable error, the applicant must satisfy the Court that the sentencing Judge failed to properly exercise the discretion actually entrusted to the sentencing court.
Although not dealing with a restricted sentencing regime, the remarks of King CJ are still relevant. In R v Osenkowski King CJ observed:[19]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. …
[19] (1982) 30 SASR 212, 212-213.
In my view, the sentencing Judge’s decision to suspend the sentence was open to her. No error has been established.
I would refuse permission to appeal.
BLEBY JA: I agree, for the reasons given by McDonald AJA, that the sentence imposed was not manifestly inadequate.
Ground 1 of the appeal complains that the judge erred in finding, for the purposes of s 51(2)(a) of the Sentencing Act, that the respondent’s personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. I reiterate my agreement with Livesey J’s statement of principle with respect to the parallel provisions applying to serious repeat offenders in Knight v The Queen:[20]
A defendant must demonstrate that her or his personal circumstances are so exceptional such that the “paramount consideration” of “protecting the safety of the public and personal and general deterrence” is outweighed.[21] The pronoun “so”, which is used to qualify “exceptional” in s 54(2)(a), is also important and effect must be given to it.[22] It operates, I think, to reinforce, as a matter of emphasis, the role of personal circumstances in the evaluation required by the provision. It follows that the proved personal circumstances must permit the conclusion that the paramount consideration of community safety and general and personal deterrence under s 54(2)(a) is outweighed by personal circumstances which are out of the ordinary course, or unusual or uncommon. Though they need not be unique, unprecedented or very rare, they cannot be regularly, routinely or normally encountered.[23]
(Footnotes in original)
[20] (2021) 138 SASR 156 at [62] (noting that the word ‘so’ is here used as an adverb, rather than a pronoun).
[21] R v Karnage [2019] SASCFC 82 at [70] (Nicholson J, with whom Kelly and Hinton JJ agreed).
[22] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ).
[23] R v Kelly [2000] QB 198 at 208 (Lord Bingham).
A defendant’s personal circumstances must, for this exercise, be considered as a whole. It may well be that when they are described in a list of individual circumstances, they do not present impressively as being not regularly, routinely or normally encountered. However, that does not complete the analysis, as they must be considered in combination.
Secondly, the ‘outweighing’ function calls for consideration of the circumstances of the offending,[24] not by reference to whether those circumstances of the offending are exceptional, but on account of what they say about the requirements of protecting the safety of the community and personal and general deterrence in the particular case. The exceptionality of a defendant’s personal circumstances must be considered against those requirements, hence the phrase ‘so exceptional as to outweigh…’.
[24] R v Skinner (2016) 126 SASR 120 at [96] (Doyle J).
In sentencing the respondent, the judge set out the essential facts of the offending. She gave a comprehensive description of the respondent’s personal circumstances from his birth. This included violence as a child at the hands of his stepfather and witnessing his behaviour when he abused alcohol and drugs. The respondent never dealt adequately with the grief caused by his birth father’s death when the respondent was 13. The respondent commenced drinking after that, and then using cannabis. His stepfather introduced him to methylamphetamine at 16. When the respondent was 15 or 16, the house in Queensland he was living in burned down and his mother returned to South Australia. The respondent remained living in Queensland.
The judge noted that the respondent had a very limited criminal history.
The judge clearly gave considerable weight to indicators of the respondent’s more recent rehabilitation. She noted his employment history and current full-time employment as an irrigation contractor. She noted that the respondent continues to play a role in the lives of the children of his former de facto partner. She noted that he had commenced, recently, drug and alcohol counselling. These matters were the subject of evidence the respondent gave on oath.
The judge noted the contents of letters from the respondent’s employer and supervisor, which were positive, and from his mother and sister. Those letters were not provided under oath.
Having summarised in some detail the respondent’s personal circumstances, the judge said, specifically on the topic of the application of s 51 of the Sentencing Act:
You gave evidence on oath in this matter in an affidavit and then by oral evidence that you were cross-examined on. Since your arrest you have had no contact with your co-offenders. In your affidavit you described your background and the circumstances in which you came to be introduced to methamphetamine at a very young age. You set out in your affidavit that you have begun drug and alcohol counselling, although in cross-examination it emerged that that has been very recent. At the time that you gave evidence you had only attended two sessions and you told the court that you had not participated previously because you got caught up with work. You agreed that you had only just begun counselling because you thought it would decrease the chances that you would be sentenced to immediate imprisonment.
I am satisfied that you were honest in the evidence that you gave and in one sense it is to your credit that you were frank about your motivation for engaging in counselling. Mr Fletcher, hopefully, as time goes on, you will realise the benefits of counselling are more than just keeping you out of gaol and the work that you are doing with drug and alcohol counselling will help you to stay drug free in the future and stay away from offending.
After reviewing the exposition of the test by this Court in R v Willett,[25] the judge continued:
You are still a very young man and your life circumstances have been affected to a large extent by traumatic aspects of your childhood. To your credit, you are now in full-time work. Your employer speaks highly of you and your family has seen a difference in your outlook when your life has the structure and direction of full-time work. In my view, engagement in prosocial employment and the support of your family is the pathway which community safety can best be achieved.
The legislation does provide that deterring you and other members of the community from similar behaviour is a paramount consideration. I am, however, satisfied from the evidence that you gave on oath that your personal circumstances are so exceptional as to outweigh those considerations. I consider, therefore, that the first condition is satisfied.
(Emphasis added)
[25] (2017) 128 SASR 57.
I have set out the judge’s account of the respondent’s personal circumstances in some detail as the applicant’s complaint requires the combination of those circumstances to be considered in full. The judge’s account encompassed a characterisation of the respondent’s rehabilitation progress to the time of sentencing. That progress was clearly operative on the judge’s assessment, as was the judge’s finding of the respondent’s honesty in his oral evidence.
That said, the respondent’s rehabilitation progress could not be said to have been anything more than nascent. The Home Detention Order Suitability Report noted that, at the time of the offending, the respondent had been using cannabis heavily, methamphetamines occasionally and (non-prescribed) Xanax. It recounted his history of substance abuse and continued:
The defendant indicated that he has not used methamphetamines in the previous month since engaging in Riverland Drug & Alcohol Services SA (DASSA) on 17/05/2024. However, he continues to use cannabis and maintains that if DASSA approves him to begin the modafinil (stimulant) program, which aids in the abstinence from methamphetamines, he would stop using cannabis.
Having regard to this aspect of the report, and the respondent’s confessed motivation for engaging in counselling, I find it difficult to see that the assessment of the respondent’s rehabilitation prospects could have been anything other than quite guarded at sentencing. Comparisons are necessarily of limited value, given the weighing process required in the individual circumstances of the case. Nevertheless, the respondent’s circumstances may be contrasted with the position of the respondent in Knight v The Queen[26] where, among other considerations, the appellant’s rehabilitation from drug offending post-arrest ‘was characterised by insight and a determination to break the addictions under which she had laboured, which is rarely encountered’.[27]
[26] (2021) 138 SASR 156.
[27] Knight v The Queen (2021) 138 SASR 156 at [67].
The respondent’s personal circumstances gave reason for some optimism. Were it not for s 51 of the Sentencing Act, they may have provided good reason to suspend the sentence. I also accept, as Lovell JA points out, that the discretionary exercise need not yield a single correct answer. I have given close consideration to the respondent’s personal circumstances in combination, by reference to the evidence given on oath and having regard to the nature and circumstances of the offending for which the respondent came to be sentenced. I am unable to conclude that either qualitative or quantitative considerations render the respondent’s personal circumstances, considered in combination, particularly exceptional in any regard. I do not think it was open to find that they were so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence.
Having said that, I agree with McDonald AJA, for the reasons that her Honour gives, that on the Director’s application for permission to appeal, considerations of double jeopardy stand squarely in the way of a grant of permission. I would refuse the application.
McDONALD AJA:
This is an application by the Director of Public Prosecutions (SA) (‘the Director’) for permission to appeal against a sentence. After pleading guilty to one count of supplying a prescribed firearm,[28] the respondent was sentenced to two years, one month and 16 days imprisonment. A non-parole period of 15 months was fixed. The sentence was suspended upon the respondent entering into a bond to be of good behaviour for 18 months.
[28] Firearms Act 2015 (SA) s 22(2)(a).
As a consequence of the commission of this offence, the respondent is a “serious firearms offender”[29] who was sentenced for “a serious firearms offence”.[30] Pursuant to s 51 of the Sentencing Act 2017 (SA) (‘Sentencing Act’), any sentence of imprisonment imposed on the respondent could not be suspended unless he satisfied the Court by giving evidence on oath, that his personal circumstances were “so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence”[31] and “it is, in all of the circumstances, appropriate to suspend the sentence”.[32]
[29] Sentencing Act 2017 (SA) s 50.
[30] Ibid s 49.
[31] Ibid s 51(2)(a).
[32] Ibid s 51(2)(b).
The Director has sought permission to appeal the sentence on two grounds. These are that the Judge erred in finding that the test of “exceptional circumstances” was satisfied, and that the resulting sentence was manifestly inadequate.
The circumstances of the offence
The respondent was jointly charged on the same Information with two co‑offenders, Beaumont and Greenfield. Each was charged with firearms offences that reflected their culpability in relation to the possession, use and supply of a .22 Sportco Martini lever action rifle (‘the firearm’) and associated ammunition.
The respondent, Beaumont and Greenfield were known to each other and were associates.
The offending was discovered by police during an investigation into Greenfield’s involvement in an alleged serious criminal trespass involving a firearm. As part of that investigation, police obtained digital evidence from Greenfield’s mobile phone which included videos and images of Greenfield flaunting the rifle at his residence, as well as text messages between Greenfield and the respondent regarding the handling, movements, supply and intended use of the firearm.
As a result of this information, police conducted a broader investigation into the movements of the firearm and the individuals who may have come into possession of it. This resulted in police obtaining digital evidence from the respondent’s mobile phone that included text messages that demonstrated that the respondent had supplied the rifle to Greenfield and a person by the name of Nolan.[33] Although the charge related to supplying the rifle to Nolan on 19 March 2023, it is instructive to consider the appellant’s overall involvement with the firearm to put this offence into its proper context.
[33] For reasons unknown Nolan was not charged in relation to his dealings with the firearm.
There is no dispute that Beaumont was the owner of the firearm. He was sentenced on the basis that he had received the firearm and associated ammunition in satisfaction of a debt owed by an acquaintance.
The firearm had been modified; it had no serial number and the barrel had been sawn off. It was however capable of discharging rounds of ammunition.
It is unclear as to how, in what circumstances and for what purpose the firearm was conveyed from Mr Beaumont to the respondent. There is no dispute however, that by at least 11 March 2023, it was in the respondent’s possession. There is also no suggestion that at any stage the respondent took over ownership of the firearm. In sentencing submissions, counsel for the respondent put to the Court that the respondent had received cannabis in return for his role in relation to the firearm. That submission was not challenged by the Director.
The nature of the respondent’s dealings with the firearm were established by text messages that were located on the mobile phones of Greenfield, Beaumont, Nolan and the respondent.
The relevant series of text messages commenced on 1 March 2023, when Nolan texted the respondent to ask whether he had the firearm. In the context of that exchange, Nolan said “Yeah I’ll grab tomorrow if that’s cool man can send money today if ya need”. The respondent replied, “Yeah that’s all sweet bro”.
On 11 March 2023, Greenfield sent a text to the respondent asking him to bring the firearm “asap plz”. The respondent replied that he would.
Between 2.27am and 4.04am on 12 March 2023, there was a further exchange of text messages between Greenfield and the respondent during which Greenfield asked the respondent to not tell anyone that he intended to use the rifle to shoot “Bill” in the buttock. Greenfield explained to the respondent that he only wanted to give him a shot “in the bum cheek” or the ear to make a statement, or an example of him. The respondent replied, “… yeah just be careful lad as soon as ya done it let me know and I’ll come grab the thing if ya want and hide it just incase bro but that’s up to you bro he definitely does deserve it bro”. During the exchange of messages, the respondent also attempted to counsel Greenfield against shooting Bill on the basis that he did not want to see Greenfield “throw [his] life away if shit did go wrong”.
Later that morning between 9.32am and 10.36am, there were further relevant text communications, this time between Beaumont and the respondent. Whilst the precise meaning of some of those messages is not entirely clear, they discussed the firearm and the respondent told Beaumont that he had dropped it to Greenfield “last night”.
On 14 March 2023, Greenfield sent the respondent a further series of text messages discussing his plan to shoot Bill in the buttock.
At 10.07am, Greenfield sent the respondent a text message that read “But we have to wait till ayvah gets picked up by her friend and cally needs to hang there for a while so I can make sure that I get Bill here in time.”

At 10.08am, Greenfield made reference to Bill’s “but cheek” getting a “boo boo” and then in a text message, the time of which is unknown, Greenfield told the respondent “I’ll have a few other mates here if worse comes to worse”.
Later that day, at about 3.07pm, there was a further text message exchange between Beaumont and the respondent during the course of which Beaumont advised the respondent that “…Connor’s been going around just shootn that off in the streets, like backstreets?”.[34]
[34] Connor is Greenfield’s first name.
It would appear that sometime after this the firearm was returned to the respondent because five days later, at 1.53pm on 19 March 2023, Greenfield sent text messages to Nolan and advised him that the firearm was ready to be collected from the respondent’s house. Shortly after, at 1.55pm, Greenfield texted the respondent to tell him that Nolan was coming over to borrow the firearm. Later that day, at 9.41pm, the respondent sent Greenfield a text message to advise him that Nolan had come and collected the firearm.
On 4 April 2023, police attended at the respondent’s home address having discovered the text messages that illustrated his involvement in handling the firearm. The respondent was arrested and participated in an interview with the police. Whilst the respondent made some admissions, he also significantly downplayed his role in relation to the firearm. The respondent told police that he believed that Greenfield was the owner of the firearm, and that he had seen Greenfield “let off a shot in his backyard”. He admitted that he supplied the firearm to Nolan at Greenfield’s request. The respondent described collecting the firearm from Greenfield’s residence, where it had been left inside a green shopping bag located behind a wheelie bin in the carport. The respondent explained to police that he had acted as an intermediary between Greenfield and Nolan because Greenfield was on home detention and did not want Nolan at his house.
The respondent admitted to police that he understood that Nolan intended to use the firearm to “put a cap” in another person’s leg over an unpaid debt. He told the police that the firearm had been taken by Nolan to the residence of a person by the name of Shari Pahl. The police located the rifle hidden in the engine bay of a vehicle in the backyard of the premises nominated by the respondent.
Of note, the respondent only admitted to possessing the firearm for about one and a half hours. He also said that he had only supplied the firearm on one occasion and claimed that his motivation for doing so was fear of some form of retribution. He told the police:[35]
like I was just put in the middle of it and like it was pretty much just a stand over tactic that if I wasn’t going to like help Connor and that out, they were going to do some serious harm to me so…
[35] Record of interview, P3, at [20].
During sentencing submissions, there was no suggestion of any duress or “standover tactics” being employed by Nolan, the co-offenders, or anyone else. Instead, it was submitted that the respondent was motivated by the offer of payment in cannabis.
In summary, the text messages revealed that the respondent was the trusted custodian of the firearm, that he was aware of the intended uses of the firearm by Greenfield and Nolan, and that he was willing to conceal the firearm both before and after its use to prevent its discovery by the authorities.
The sentence
The respondent first appeared in Magistrates Court on 5 April 2023, at which time he was granted bail. It follows that he spent one day in custody in relation to this offence.
On 23 November 2023, the respondent entered a plea of guilty to supplying a prescribed firearm. As that plea was entered prior to his committal to the District Court he was entitled to a discount of up to 15 per cent.
The maximum penalty for the offence of supplying a prescribed firearm is imprisonment for 15 years or a fine of $75,000. The sentencing Judge commenced at a starting point of two years and six months imprisonment which was reduced by 15 per cent to arrive at a sentence of two years, one month and 16 days. A non‑parole period of 15 months was fixed. As mentioned, the sentencing Judge suspended that sentence upon the respondent entering into a bond to be of good behaviour for 18 months.
The personal circumstances of the respondent
The respondent has a background that excites some sympathy. He was born in Berri and continues to live in the Riverland area. He has also lived for periods in Queensland. The respondent was raised by his mother and stepfather along with four sisters. As a child he experienced violence at the hands of his stepfather and witnessed him abusing drugs and alcohol.
The respondent was only 13 years old when his birth father was killed in a trucking accident. The respondent believes that at the time of his death, his father was driving to Queensland, where the respondent was living, to take custody of him. The respondent never adequately dealt with the grief associated with his father’s death.
Following his father’s death, the respondent began to drink alcohol and use cannabis, the latter of which he had been introduced to by his stepfather.
In 2015, when the respondent was 15 or 16, the house in which he was living in Queensland burnt to the ground as a result of a kitchen fire. Whilst the respondent’s mother returned to live in South Australia, the respondent continued to live in Queensland with friends.
At the age of 16, the respondent’s stepfather introduced him to methamphetamine. The respondent continued to use both cannabis and methamphetamine throughout his adult life. At the time of the commission of the firearms offence, the respondent was a heavy user of cannabis, occasionally using methamphetamines and taking Xanax, which he had not been prescribed. At the time of sentencing submissions, the respondent had not used methamphetamine in the previous month, due to engaging with the Riverland Drug and Alcohol Services SA (DASSA) on 17 May 2024.
The respondent has a solid work history. Upon leaving school he obtained work in a chicken shop and then in a lawn mowing business. Since that time, he has worked in Queensland and in South Australia for VisyBoard, on the railways and in pallet making. At the time of sentencing, he was employed by an irrigation contractor on a full-time basis.
The respondent had previously been in a de facto relationship that ended at the end of 2023, after he was charged with this offence. His former de facto has two children in whose lives the respondent continues to play a role, even after the end of the relationship, including caring for them on weekends.
At the time of sentence, the respondent was 24 years of age. He had a very limited criminal history, although he had received a suspended sentence in 2019 for the offence of driving a motor vehicle when not authorised to do so.
The respondent was sentenced on the basis that he was contrite. In support of that contention, the respondent wrote a letter of apology to the Court in which he said that he was disappointed in his actions and the stress that his conduct had caused his family. Unfortunately, in that letter the respondent again attempted to downplay the nature of his offending, claiming to have only been in possession of the firearm on one occasion for a short period. He said that the extent of his involvement was that he had taken up an offer to carry a package in exchange for free cannabis, and it was only when he got home and opened the bag that he realised there was a firearm inside. He said that he put the firearm in the laundry and waited for it to be collected.
The respondent also tendered character references from family, friends and his current employer. Each of the letters spoke of the respondent’s good character and remorse for his offending. It is not clear however, from the references, whether the authors were aware of the full extent of the respondent’s offending.
The relevant provisions of the Sentencing Act 2017 (SA)
Pursuant to s 49(1)(g) of the Sentencing Act, the offence of supplying a prescribed firearm is a “serious firearms offence”. There was no dispute that the respondent was, therefore, a “serious firearms offender” pursuant to s 50 and that he was to be sentenced in accordance with s 51 of the Sentencing Act.
Section 51(1) relevantly provides that, in sentencing a serious firearms offender for an offence for which the maximum penalty includes a period of imprisonment, a sentence of imprisonment must be imposed.[36] The section further provides that the sentence cannot be suspended unless the Court is satisfied, by evidence on oath, of the matters set out in s 51(2), namely:
(a)The person’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)It is, in all of the circumstances, appropriate to suspend the sentence.
[36] Although not relevant for the purpose of this appeal, s 51(1) of the Sentencing Act 2017 (SA) also preludes the application of s 25 which permits the reduction or substitution of alternative penalties.
It is the clear legislative intent that s 51 of the Sentencing Act narrows the range of sentencing options available to a Court when sentencing a serious firearms offender for a serious firearms offence, elevating the importance of protecting the community from the risk that these offenders pose.
The respondent’s evidence on oath
The respondent swore an affidavit and gave evidence on oath during the course of sentencing submissions. The affidavit set out details of the respondent’s personal circumstances, with a particular focus on his current employment and involvement with his former de facto partner’s children. The respondent deposed to taking care of the children on Friday and Saturday nights and being involved in their social and sporting commitments over the weekends.
The only additional matter raised in the affidavit was the respondent’s engagement in drug and alcohol counselling. He explained:[37]
I have also benefitted from the support provided by my Corrections Officer in being directed to complete drug and alcohol counselling with DASSA and general counselling. I began counselling with DASSA on 17 May 2024, and will receive counselling from them every fortnight for six months.
[37] Affidavit of Daniel Mark Fletcher dated 21 May 2024 at [25].
In evidence in chief, the respondent adopted and relied on his affidavit without further elaboration. The focus of the cross-examination was on the nature and extent of the respondent’s involvement with his former de facto partner’s children and the respondent’s engagement with counselling for his drug use.
In relation to the children, whilst the respondent maintained that they stayed at his house each Friday and Saturday, he agreed that his relationship with the children and their attendance at his home was more in the nature of visits and that they were not, strictly speaking, his dependants.
On the topic of drug and alcohol counselling, the respondent agreed that he had only commenced attending counselling less than a week prior to the date set for sentencing submissions. He accepted that this was despite being directed to attend counselling by his Community Corrections Officer as early as January 2024 (six months prior to being sentenced). When asked about why he had failed to follow the earlier direction, the respondent replied:[38]
I did make an appointment but I ended up losing my phone so I never got the phone call and I re-booked an appointment and got caught up with work and that, so I only just started knuckling down with it all.
[38] T7.
The respondent also agreed that he had only recently commenced counselling to avoid going to gaol.
The reasons of the sentencing Judge
During submissions on sentence, counsel for the respondent relied on the following matters as amounting to exceptional circumstances:
·The physical violence that the respondent was subjected to by his stepfather when he was a child;
·The circumstances of the death of the respondent’s birth father;
·The respondent’s recent engagement with DASSA counselling;
·The respondent’s good work history; and
·The respondent’s role in the lives of his former de facto partner’s children.
It was submitted that in combination, these considerations amounted to exceptional circumstances such that it was open to the sentencing Judge to suspend any term of imprisonment imposed.
The sentencing Judge commenced her reasons by setting out the factual basis upon which the respondent was to be sentenced, in particular observing that the respondent’s actions on 19 March 2023 were not isolated and occurred in the context of other dealings with the firearm, the subject of the current offence. The sentencing Judge also made reference to the respondent’s admission to the police that he believed when he supplied the firearm to Nolan that “the firearm was intended to be used to put a cap in someone’s leg”.
The sentencing Judge then dealt with the respondent’s personal circumstances, the respondent’s letter of apology to the Court, the various character references that had been tendered and the fact that the respondent had commenced drug and alcohol counselling, which her Honour found reflected a change in his willingness to accept help for his drug use. Her Honour found that it was to the respondent’s credit that he had been frank in his evidence about his motivation for engaging in counselling.
The sentencing Judge also then turned to consider the seriousness of the offence and the need for the community to be protected from firearm offences. Her Honour identified that Parliament had curtailed the Courts’ sentencing discretion in relation to firearm offences, reflecting how seriously the community views offences of this nature.
The sentencing Judge explained the means by which she had arrived at the head sentence before determining the issue of whether exceptional circumstances had been established. Whilst the sentencing Judge was not explicit in her findings as to what amounted to “exceptional circumstances”, it would appear that her Honour took the following into account:
·The respondent’s youth.
·The traumatic aspects of the respondent’s childhood.
·The respondent’s work history and current full-time employment.
·The respondent’s engagement with drug and alcohol counselling against the backdrop of long-term addiction, although the sentencing Judge acknowledged that he had only just commenced counselling and had only attended two sessions.
·The support of the respondent’s family.
The sentencing Judge then considered the circumstances of the offending and noted that the supply was on behalf of someone else who was in charge of the firearm. On that basis, and with consideration to the respondent’s limited criminal history, her Honour expressed the view that the respondent was not someone who needed to be deterred from similar conduct in the future. The sentencing Judge summarised the key factors from the respondent’s personal circumstances that were central to her determination of exceptional circumstances:
You are still a very young man and your life circumstances have been affected to a large extent by traumatic aspects of your childhood. To your credit, you are now in full-time work. Your employer speaks highly of you and your family has seen a difference in your outlook when your life has the structure and direction of full-time work. In my view, engagement in prosocial employment and the support of your family is the pathway which community safety can best be achieved.
Having found the first limb of the test satisfied, her Honour determined that it was appropriate to suspend the term of imprisonment.
Grounds of appeal
There is a considerable overlap between the two grounds of appeal. The first asserts a specific error made by the sentencing Judge in finding that the respondent’s personal circumstances were so exceptional they outweighed the considerations under s 51(2)(a). The second ground of manifest inadequacy however has two limbs and relates not only to the exercise of the discretion to suspend but also to the quantum of the sentence.
Given the degree of overlap, it is convenient to deal firstly with the question of whether the quantum of the sentence was manifestly inadequate and then consider the question of whether the sentencing Judge was in error in determining that “exceptional circumstances” had been established such that it was appropriate to suspend the term of imprisonment.
Was a sentence of two years, one month and 16 days imprisonment manifestly inadequate?
The principles governing the determination of whether a sentence is manifestly inadequate are well established. Whether a sentence is manifestly inadequate requires consideration of a range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. As the Court has repeatedly said; often the existence of manifest inadequacy (or manifest excess) will be a conclusion that does not permit of lengthy exposition.[39]
[39] Brougham v The King [2023] SASCA 75 at [28], Lloyd v The King (2023) 306 A Crim R 149 at [117].
The assertion of manifest inadequacy requires an appellate court to review a discretionary decision made by a sentencing Judge. It is not sufficient for an appellate court to conclude that it would have come to a different decision to that reached by the sentencing Judge. Rather, it must be established that the Judge came to a decision that is unreasonable or plainly unjust.
When considering this question, it is important to bear in mind that there is no single correct sentence or for the Court to merely conclude that it would have arrived at a different sentence. Further, sentencing Judges should be allowed “as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.[40] As the High Court explained in Hili v The Queen:[41]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.
(Citations omitted)
[40] Markarian v The Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ citing Johnson v The Queen (2004) 78 ALJR 616 at [5] per Gleeson CJ, at [26] per Gummow, Callinan and Heydon JJ.
[41] (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
It was the Director’s submissions that the seriousness with which this offence is regarded is reflected in the maximum penalty, and that a sentence of two years, one month and 16 days fails to properly reflect the criminality of the respondent’s conduct. There is no suggestion that the sentencing Judge failed to take into account any of the matters relied upon by the Director but rather, that the ultimate sentence imposed was, in all of the circumstances, manifestly inadequate.
For reasons that will be further discussed, this was an unusual offence of its type, involving the respondent acting as a conduit through whom the firearm passed. His personal circumstances and lack of relevant criminal history afforded the sentencing Judge considerable scope for leniency in fixing both the head sentence and non-parole period.

Taking into account the nature and circumstances of the offence, and the respondent’s personal circumstances, it cannot be said that the sentence imposed fell below the range of appropriate sentences for this offence. Indeed, many of those considerations relied upon by the respondent, in support of a finding of exceptional circumstances, warranted a merciful or at the least lenient approach in arriving at an appropriate head sentence. There is no merit to the ground that the quantum of the sentence imposed was manifestly inadequate.
Was the sentencing Judge in error in finding that the respondent’s personal circumstances were so exceptional that they outweighed the paramount consideration of protecting the safety of the community and personal and general deterrence?
The principles underlying the Firearms Act2015 (SA) (‘Firearms Act’) are to confirm that the possession and use of firearms is a privilege conditional on the overriding need to ensure public safety and to improve public safety by, amongst other principles, imposing controls on the possession, use, acquisition, supply and manufacture of firearms.[42] The stated objects of the Firearms Act include the prevention of persons accessing or using firearms for criminal purposes and to minimise the risk of people becoming victims of crimes involving the use or threatened use of firearms.[43]
[42] Firearms Act 2015 (SA) s 3(1).
[43] Ibid s 3(2)(f), (g).
This Court has stated on numerous occasions that the community must not be complacent about the dangers of firearms and the damage caused by them. In R v Daniele Gray J observed:[44]
Possession of a firearm is a privilege and a serious responsibility. The overriding policy 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 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.
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.
[44] [2014] SASCFC 22 at [25]-26].
Parliament has made plain its intention with respect to the sentencing of firearms offenders, in both the Firearms Act and the Sentencing Act. The seriousness with which such offences are to be treated is reflected in s 51 of the Sentencing Act and the manner in which it mandates a period of imprisonment to which serious firearms offenders are to be sentenced.
The norm for such offenders is that they will serve the term of imprisonment absent satisfaction of the test set out in s 51(2). In order to avoid this outcome a serious firearms offender must demonstrate that their personal circumstances are “so exceptional as to displace the paramountcy of this consideration”.[45] The offenders personal circumstances are to be considered in the context of all of the factors ordinarily relevant to sentence, including the nature and seriousness of the offence committed, the risks of re‑offending, the need to protect the public and the prospects for rehabilitation.[46]
[45] R v Karnage [2019] SASCFC 82 at [70].
[46] Ibid.
In Knight v The Queen,[47] Livesey J (as he then was), considered what was required to meet this test of exceptional circumstances. His Honour observed:[48]
A defendant must demonstrate that her or his personal circumstances are so exceptional such that the “paramount consideration” of “protecting the safety of the public and personal and general deterrence” is outweighed. The pronoun “so”, which is used to qualify “exceptional” in s 54(2)(a), is also important and effect must be given to it. It operates, I think, to reinforce, as a matter of emphasis, the role of personal circumstances in the evaluation required by the provision. It follows that the proved personal circumstances must permit the conclusion that the paramount consideration of community safety and general deterrence under s 54(2)(a) is outweighed by personal circumstances which are out of the ordinary course, or unusual or uncommon, though they need not be unique, unprecedented or very rare, though they cannot be regularly, routinely or normally encountered.
Additionally, the appellant must show that “in all of the circumstances” it is “not appropriate [to sentence her] as a serious repeat offender” as mandated by s 54(2)(b). That commands a re‑assessment of all of the circumstances, not merely the appellant’s personal circumstances, before this Court is in a position to conclude whether it is, or is not, appropriate to sentence the defendant as a serious repeat offender. These circumstances will plainly include the circumstances of the offending, as well as the circumstances in which the defendant came to be considered a “serious repeat offender”. That will necessarily direct attention to the seriousness of the individual offences, as well as the circumstances in which they were each committed, together with their overall effect.
(Citations omitted)
[47] (2021) 138 SASR 156.
[48] Ibid at [62]-[63].
The respondent’s personal circumstances, which were the subject of evidence on oath, are set out at [75]-[84]. There is no need to repeat them. They do not however sit in a vacuum, but rather within the context of the nature of the offence for which the respondent was to be sentenced. The circumstances of the offending are relevant to an assessment of the extent of the need of the community for protection and the need for both personal and general deterrence.
It is conduct of type engaged in by the respondent, that results in firearms making their way onto the streets and into the hands of those who may use them for a nefarious purpose. Whilst it must be acknowledged that the respondent did not own the firearm, and he was acting at the behest of others, there were features of this offence that made it a serious offence of its type.
The firearm had been illegally modified, and the respondent knew it to be in working order. The offence did not sit in isolation, but against the backdrop of the respondent having previously supplied the firearm to Greenfield, knowing that Greenfield was going to use it to shoot “Bill”. It is plain from the text message exchanges that the respondent took seriously Greenfield’s expressed intention, as he promised on his father’s grave to tell no-one about what was to occur, and then attempted to talk Greenfield out of his plan. The respondent offered to collect and hide the firearm once Greenfield “had made an example” out of Bill.
The arrangements for the supply of the firearm to Nolan, which were the subject of the charge, commenced 10 days prior to the respondent taking the firearm to Greenfield. On 1 March 2023, there was an initial text exchange between Nolan and the respondent about the provision of the firearm, however it was not until 19 March 2023 that the plan came to fruition. As previously mentioned, the respondent admitted to police that he understood that Nolan intended to use the firearm to shoot someone in the kneecap over an unpaid debt, inferentially a drug debt.
The respondent’s knowledge or belief that he was supplying the firearm in order for it to be used to shoot someone, in all likelihood in the context of a drug debt, makes this a serious offence of its type. Whilst it may often be the case that the Court will infer that a defendant must have known that a firearm was to be used for an illegal purpose, the respondent in this case not only knew that to be the plan but also knew the identity of the target and the purpose for which the shooting was to occur.
Consideration
It was the Director’s contention that taking all of those matters into account, the sentencing Judge erred in finding that the respondent’s circumstances were so exceptional as to outweigh the paramount considerations of community safety and deterrence. In addition, it was submitted that to find that the respondent’s personal circumstances, in the context of the nature of the offence, satisfied the test in s 51(2), results in the erosion of the test for which Parliament has intentionally established a very high threshold.
It was submitted by the Director that there was nothing about the respondent’s personal circumstances, or his offending which take it out of the category of offending that would ordinarily result in an immediate term of imprisonment.
It was the respondent’s submission that no error has been identified in the approach adopted by the sentencing Judge, in that it was open to her Honour to find the “exceptional circumstances” test, as set out in s 51(2), had been satisfied. It was submitted that there were similarities in the circumstances of the respondent, when compared to those of the offender in Knight, which in that case were found to amount to “exceptional circumstances”. These were rehabilitation, stable employment and overcoming a difficult childhood.
In considering the question of whether it was open to the sentencing Judge to find that exceptional circumstances existed, a useful starting is the observations made by Doyle JA in R v Skinner[49] about the difficulty in attempting to identify what is required in order to satisfy the test with any degree of precision:[50]
While “exceptional circumstances” does connote circumstances outside of the range of circumstances ordinarily or normally encountered, the Court must be careful not to set the test so high that it becomes near impossible to satisfy. As Lord Bingham cautioned, in the passage extracted above, the circumstances need not be unprecedented or very rare.
The exceptional nature of the circumstances may emerge from consideration of a single circumstance or a combination of circumstances. It may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both. It may emerge from qualitative considerations (in the sense of circumstances of a type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).
Beyond these very general observations, it is neither possible nor desirable to be more prescriptive as to what will be required to establish “exceptional circumstances” sufficient to warrant suspension of a sentence of imprisonment under s 38(2ba). It will depend upon the facts of the particular case.
(Citations omitted)
[49] (2016) 126 SASR 120.
[50] Ibid at [95]-[97].
It follows that there may be cases in which a combination of unremarkable features of the circumstances of an offender may amount to exceptional circumstances. It will inevitably depend on the individual facts of the case. In my view, this was not such a case. There was nothing about the respondent’s personal circumstances and/or his offending, which took it out of the type of offending for which Parliament intended that an immediate custodial term should apply.
As discussed, the offence was a serious offence of its type involving knowledge or belief that the firearm was going to be used to commit a serious offence against the person, against the backdrop of the firearm having previously been supplied to another person for that same purpose.
There is also nothing exceptional in the combined effect of the respondent’s personal circumstances. Whilst he has a good work history and suffered childhood adversity, factored against that, the respondent demonstrated only limited and recent insight into his offending. He attempted to minimise his role when interviewed by police and in his letter of apology to the Court he continued to attempt to downplay the nature of his offending, failing to take full responsibility for his conduct.
The respondent also failed to engage in drug and alcohol counselling when directed to attend by his Community Corrections Officer. It was only out of a desire to avoid a term of imprisonment that the respondent engaged with those services, shortly before he was due to be sentenced. This stands in stark contrast with the extent of the efforts made towards rehabilitation by the appellant in Knight v The Queen which Livesey J described as:[51]
… characterised by insight and a determination to break the addictions under which she had laboured, which is rarely encountered.
[51] [2021] SASCFC 12 at [67].
Accordingly, I am unable to conclude that it was open to the sentencing Judge to find that the respondent’s personal circumstances were sufficiently exceptional to outweigh the paramount consideration of protecting the community and personal and general deterrence. Whilst there are aspects of the respondent’s personal circumstances that are favourable and encouraging, they are not so exceptional as to outweigh the paramount consideration provided for in s 51(2) of the Act.
Permission to appeal
Notwithstanding the conclusion that the sentencing Judge erred in finding that the test in s 51(2) was satisfied, it does not necessarily follow that permission to appeal should be granted. This Court will not intervene merely because an error has been demonstrated. The circumstances in which permission to appeal will be granted is confined to “rare and exceptional cases”.[52]
[52] Everett v The Queen (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1]–[2] per French CJ, Crennan and Kiefel JJ; Cumberland v The Queen (2020) 94 ALJR 656 at [4]–[6], [33] per Bell, Gageler and Nettle JJ.
The principles governing a prosecution appeal against sentence are not in dispute. They were recently summarised by this Court in R v Singh:[53]
The principles governing an application for permission to appeal against sentence by the Director are well established. Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that amounts to an error principle.
If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to grant permission to appeal even though no general point of principle will be established by the case.
(Citations omitted)
[53] [2024] SASCA 81 at [30]-[31].
It was the Director’s contention that the error was of such magnitude, resulting in such a manifestly inadequate sentence, that this is one of those rare and exceptional cases in which permission to appeal should be granted.
There are however considerations in this case that weigh against a grant of permission and in favour of applying the common law principle of double jeopardy. As was recognised in R v Kong,[54] there may be circumstances that will result in an injustice if a prosecution appeal is permitted, even in a case in which a sentencing Judge has acted erroneously. The factors relevant to this issue include; the respondent’s personal circumstances, particularly his previous good character, his development of insight as reflected in commencing counselling and the harshness of sentencing a person to custody who has been free in the community, in the belief that they are no longer at risk of imprisonment. The respondent first became involved in the criminal justice system when he was arrested on 4 April 2023. He was sentenced for this offence on 8 July 2024, at which time he was told by the Court that he would not be required to serve a term of imprisonment. Since that time, he has abided by the terms of the bond, and done all that the Court has required.
[54] (2013) 115 SASR 425.
In the circumstances of this case, the wider purpose of a prosecution appeal may be achieved by the identification of the error and the provision of reasons as to why the decision to suspend the term of imprisonment amounted to an error.
This is a case in which to reverse the decision to sentence the respondent to a non-custodial penalty comes at too high a cost. The public policy considerations do not outweigh the significant cost of the respondent being twice vexed and the harsh consequences that would follow.
This is not a “rare and exceptional” case that warrants granting the Director permission to appeal the sentence.
For the reasons given, I would refuse the Director’s application for permission to appeal the sentence.