R v Fletcher

Case [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):

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R v Fletcher [2025] SASCA 21
Case
[2025] SASCA 21
Decision Date

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Daniel Mark Fletcher, by a sentencing judge in the District Court of South Australia. The respondent had pleaded guilty to a serious firearms offence, and the Crown contended that the sentence imposed was manifestly inadequate, constituting an error in the exercise of the sentencing judge's discretion. The appeal raised questions concerning the application of section 51 of the Sentencing Act, which mandates a minimum custodial sentence for serious firearms offences unless exceptional circumstances justify a lesser penalty.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in finding that exceptional circumstances existed, thereby allowing a departure from the mandatory minimum sentence prescribed by section 51 of the Sentencing Act. This required the Court to assess the evidence presented by the respondent regarding his personal circumstances and determine if it met the threshold of "exceptional circumstances" as contemplated by the legislation, which aims to prioritise community protection from serious firearms offenders.

The Court reasoned that the legislative intent behind section 51 was to elevate community protection by narrowing sentencing discretion for serious firearms offences. The respondent's evidence, including his affidavit and oral testimony, focused on his employment, his involvement with his former de facto partner's children, and his recent commencement of drug and alcohol counselling. However, the Court found that the respondent's engagement with counselling had only begun shortly before sentencing, despite an earlier direction from his Community Corrections Officer, and that his explanation for the delay was unconvincing. Furthermore, his involvement with the children was characterised as visits rather than dependency, and his claims of exceptional circumstances, such as childhood violence and the death of his father, were not sufficiently elaborated upon or directly linked to the commission of the offence to warrant a departure from the statutory minimum.

The Full Court concluded that the sentencing judge had erred in finding exceptional circumstances. The Court allowed the Crown's appeal, set aside the original sentence, and resentenced the respondent to a term of imprisonment that reflected the mandatory minimum prescribed by section 51 of the Sentencing Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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