R v Fusco

[2017] SASCFC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v FUSCO

[2017] SASCFC 47

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 - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

Prosecution application for permission to appeal against sentence.

The respondent pleaded guilty to eight firearms offences contrary to the Firearms Act 1977 relating to two pistols found secreted inside a couch in his living room for which he did not have a licence, and a rifle found locked in his gun safe which was unregistered, and which he had acquired without a permit. He was sentenced by a District Court Judge to pay a fine of $25,000, reduced to $17,500 due to the guilty plea, plus $1,780 for victims of crime levies. It was also ordered that he be prohibited from holding or obtaining a firearms licence until further order.

The applicant’s proposed grounds of appeal asserted that the learned Sentencing Judge erred in: not imposing a sentence of imprisonment, and in failing to have regard to, or failing to give proper effect to, section 10(2)(e) of the Criminal Law (Sentencing) Act 1988 which requires the court to give paramount consideration to the need for general and personal deterrence in sentencing for firearms offences.

The circumstances relating to the respondent’s offending included that: he had the firearms in his possession not because of any nefarious purpose but owing to a lifelong interest in firearms; he had a rifle licence and could have acquired and registered the rifle had he applied to do so; he was 62 years old with no relevant previous offending; his wife was ill and entirely dependent on him; the mortgage for the matrimonial home could not be paid if he was incarcerated; and he spent more than one day in custody after his arrest.

After the respondent was sentenced, there was a delay of nearly two months until the respondent was served with the prosecution’s notice of appeal, and an additional month’s delay was incurred due to the prosecution later adding – then withdrawing – a meritless further proposed ground of appeal.

Held per Peek J (Blue and Doyle JJ agreeing)(refusing the application):

The combined effect of the principles of double jeopardy, the significant delay solely attributable to the prosecution, the circumstances of the offending and the personal circumstances of the respondent, requires that the application for permission to appeal be dismissed.

Firearms Act 1977 ss 11, 14, 23, 24, 30; Firearms Regulations 2008 (SA) ss 38, 61; Criminal Law (Sentencing) Act 1988 ss 10, 20AA, 20AAC; Acts Interpretation Act 1915 s 27; Supreme Court Criminal Rules 2014 ss 107, 110, referred to.
R v Hicks (1987) 45 SASR 270; R v O'Toole [2013] SASCFC 18; R v Daniele [2014] SASCFC 22; R v Capaldo [2015] SASCFC 56; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Tait (1979) 49 FLR 386; R v Brougham (2015) 122 SASR 546; Pearce v The Queen (1998) 194 CLR 610; R v Kong [2013] SASCFC 15; Director of Public Prosecutions v Pepicelli (1993) 60 SASR 520; R v Tichy (1982) 30 SASR 84; R v Thomson  (Unreported, South Australian Court of Criminal Appeal, 21 May 1991), discussed.
R v McParland and Polkinghorne [2014] SASCFC 84; Malvaso v The Queen (1989) 168 CLR 227; R v Osenkowski (1982) 30 SASR 212; R v Thach; R v Chau [2010] SASCFC 16; R v Payne (2004) 89 SASR 49, considered.

R v FUSCO
[2017] SASCFC 47

Court of Criminal Appeal:  Peek, Blue & Doyle JJ.

PEEK J.

1. Prosecution application for permission to appeal against sentence.

   Introduction

2. The respondent pleaded guilty to eight firearms offences before a District Court Judge on 7 October 2016.  Convictions were recorded for all eight offences and he was sentenced to pay a fine of $25,000 (reduced to $17,500 because of his guilty pleas) plus $1,780 for victims of crime levies.

3. The offending came to light when police officers searched the respondent’s home on 27 October 2015.  The police arrived at 9:20am, began questioning him at about 10:50am and formally arrested him at 11:09am.  He was denied police bail and only granted bail the following day, 28 October 2015 at a 2:15pm hearing in the Magistrates Court.

4. Counts 1 and 2 each charged aggravated possession of a firearm without a licence contrary to s 11(1) and s 11(7b) of the Firearms Act 1977 (the Act) and respectively referred to two class H firearms, a Colt .45 ACP semi-automatic pistol and a Browning 9mm semi-automatic pistol.  They were found together in a toiletries bag hidden inside a cushion of a reclining sofa in the lounge room (the two pistols).  An aggravating feature was that each was “loaded” in the sense that their magazines contained seven and 13 cartridges respectively.  In each case, there was no cartridge in the breech and therefore the pistol could not be discharged; in each case, the slide had to be manually pulled back so as to allow a cartridge to be fed from the magazine into the breech before it could be fired.

5. Counts 3 and 4 also related to the pistols, and charged possession of a firearm with defaced, altered or removed characters contrary to s 24A(7)(b) of the Act. 

6. Count 5 also related to the pistols, and charged failure to keep class H firearms secured in accordance with Regulations 38(2) and 61 of the Firearms Regulations 2008 (SA).

7. Count 6 related to a class B firearm, a Winchester .307 calibre lever action rifle, which was found in the respondent’s gun safe (the rifle), and charged possession of an unregistered firearm contrary to s 23(1) of the Act. 

8. Count 7 also related to the rifle and charged that the respondent had acquired the rifle without holding a permit contrary to s 14(1) of the Act.  There was no evidence as to the date that the respondent acquired the rifle except that during his police interview on 27 October 2015 the respondent said it was acquired “maybe a couple of years ago”.

9. Count 8 charged the respondent with failing to comply with a police officer’s requirement to answer questions relating to the above firearms contrary to s 30(3) of the Act during his police interview on 27 October 2015.

   The factual basis for sentencing

10. The Judge heard detailed submissions from defence counsel as to the circumstances under which the respondent came into, and retained, possession of the subject firearms.  This was not a case where the prosecution submitted that an inference more serious than the defence version should be drawn from all the facts and circumstances or that the version of the defendant was incredible or was not plausible.  Thus the prosecutor simply said:

    In short, the factual basis cannot be accepted by the director as it’s simply beyond the director’s knowledge and I particularly refer to the suggestion that the two handguns were located at the work site and also that the rifle was given to him by a friend.  With that said, there is no evidence available to the prosecution to think anything to the contrary and [the version of the respondent is] certainly not inconsistent with the evidence on the brief.

11. Although the Judge did not expressly say so in his brief sentencing remarks, his imposition of a fine can only mean that he ultimately accepted the respondent’s version.[1]  The factual basis upon which sentencing proceeded was as follows. 

    [1]    This is so notwithstanding the fact that his Honour observed that the respondent’s account about the handguns aroused his suspicion.

12. At the relevant time, the respondent was employed by Fairmont Homes, a large building company, as site manager, a position carrying serious responsibilities.  One of his responsibilities was to check rubbish skips to ensure that unauthorised, dangerous or illegal materials were not disposed of by members of the public who often surreptitiously deposited their own hard rubbish in the skips at night.  On a day about two years prior to sentencing, the respondent was performing this duty and discovered the pistols together in a plastic bag, discarded in a skip.  They were in the defaced condition described in counts 3 and 4.  He decided to keep them and secreted them in the way subsequently discovered by police.  Counts 1 to 5 related to these matters.

13. The circumstances regarding the rifle (counts 6 and 7) were quite different.  It had been given to the respondent a couple of years prior to 27 October 2015 by a deceased friend, one Stephen Mead, who had found it in the APY lands.  The respondent said in his police interview that he had intended to surrender it to police when the next firearms amnesty came up.  This in fact occurred shortly after 27 October 2015.  Counsel submitted that the rifle “could not be fired” but this appears to have meant that it could not be fired due to the fact that the .307 cartridge for which the rifle is chambered is now a very rare calibre and such ammunition is no longer available in Australia.  It is not disputed that the respondent had no ammunition for the rifle.

14. The respondent, now aged 62 years, has had a lifelong interest in firearms and shooting; as at the police attendance on 27 October 2015, he had about eight lawfully registered firearms, having held firearms licences from an early age.

15. Those firearms licences had formerly included a pistol licence and he had been a member of an accredited pistol shooting club.  However, a condition of a pistol licence is that the holder must attend the pistol club’s firing range for a certain minimum number of formal shoots per year.  For about the 15 years up to his finding of the two pistols, the respondent had often been working 50 to 60 hours per week, and often on the weekend.  He began to find that the demands of his employment were such that he did not have sufficient time to comply with the condition of attending the required number of pistol shoots any longer and therefore he surrendered his pistol licence and lawfully disposed of his pistols.

16. By the time of his later finding of the subject pistols, he no longer held a pistol licence.  He was well aware that it was unlawful to keep them and that possession of a pistol in such circumstances is a very serious matter.  However, it may be noted that his coming into possession of the subject pistols was unplanned; and that he kept them simply because of his pre-existing interest in firearms and not because of any nefarious intention concerning their future use.

17. The rifle charges were much less serious than the pistol charges in that the respondent was at all relevant times licensed to possess such a rifle and the prosecution agreed that he could easily have registered and legally possessed it, had he applied for the required permit of acquisition in the usual way.[2]  Further, the rifle could not be fired in the sense that ammunition for it was apparently not available for purchase in Australia, and it is clear that the respondent had none.

    [2]    This aspect of the legislation is examined in some further detail below.

    The respondent’s antecedents and circumstances

18. The respondent is now of advanced years, being 62 years old.  Apart from two driving charges, he has only a very stale and limited record of minor offending for which he had received small fines.  Three impressive written character references were tendered before the Judge.

19. The respondent did not want to tell the police that he had found the pistols on Fairmont Homes’ premises because he thought that it might reflect badly on them.  His refusal to do so was the subject of count 8.  When he was released on bail, he went to see his employer and explained what had happened.  He was immediately dismissed, despite his 15 years good service.  He was subsequently able to obtain employment from a new employer in the same industry (now one of his character referees), although this employment entails substantial periods of living at work sites in the far north of South Australia, far from his home in Adelaide.

20. The respondent has a projected annual income of about $80,000 to $90,000 with his new employer.  The respondent supports his wife who is unable to work because of her health problems.  They live in a house in joint names and, at the time of sentencing, an amount of about $250,000 was outstanding on the mortgage with payments of $1,500 per month.  If the respondent were incarcerated, these payments could not be made and his wife would have to apply for Centrelink benefits.

21. The respondent has been married to his present wife for more than 20 years.  He is the father of a son and daughter from his previous marriage, and his daughter has five children (aged between four and 12 years).  He baby sits his five grand-children every second weekend, taking them to their sports events.

22. The respondent has been diagnosed with depression since the laying of these charges.

    The Judge’s approach to sentencing

23. The importance of the safety of the community and general and personal deterrence was made plain in sentencing submissions:

    MS PARK:  … in my submission the seriousness of the offence … and the particular significant of general deterrence is reflected in the penalty prescribed by the legislation and also in the commentary of the Court of Criminal Appeal. Your Honour is aware that it was been held that general deterrence is of great importance in cases of this nature –

    HIS HONOUR:     There is no need to go through the sentencing principles Ms Park, I’m familiar with them.

    MS PARK:  In all of the circumstance of this case, it is my submission that a custodial penalty is warranted. The director is opposed to suspension of the term of imprisonment that your Honour may impose, or a withdrawing of home detention order. The paramount consideration in that regard is the safety of the community.

24. His Honour (an experienced Judge and formerly a senior crown prosecutor) was plainly aware of these considerations and that in many cases offending of the type here would warrant a term of imprisonment.  He highlighted that matter by his firm warning to the respondent as to the consequences should he offend again:

    And you can count yourself very, very lucky that you are not leaving court in a prison van.  If you commit any further firearms offences that is precisely how you will be leaving the courtroom next time and you needn’t expect any leniency insofar as the length of your sentence is concerned.

25. However, the imposition of a fine is a prescribed alternative maximum penalty for the offences here,[3] and although careful consideration must always be given to the question of whether a financial penalty can adequately achieve the personal and general deterrence required by ss 10(2)(e) and 10(3a) of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act), cases may arise in which a fine is an appropriate penalty.

    [3]    With the exception of count 5, which carries a maximum penalty of only a fine of $2,500.

26. In his sentencing remarks, the Judge noted that the maximum penalties for each charge were as follows:

    -Counts 1 and 2 (aggravated possession of a class H firearm): a maximum sentence of imprisonment for ten years or a fine of $50,000;

    -Counts 3 and 4 (possessing a firearm with defaced identifying characters): a maximum sentence of imprisonment for seven years or a fine of $35,000;

    -Count 5 (failing to store a class H firearm): a maximum fine of $2,500;

    -Count 6 (possession of an un-registered firearm): a maximum sentence of imprisonment for one year or a fine of $5,000;

    -Count 7 (acquiring a firearm without a permit): a maximum sentence of imprisonment for seven years or a fine of $35,000; and

    -Count 8 (failing to answer police questions): a maximum sentence of imprisonment for two years or a fine of $10,000.

27. The Judge stated that the respondent needed to be “severely punished” and to that end his Honour fashioned a sentencing package consisting of two limbs.  The first limb was a heavy fine.  The second limb was an order that the respondent be prohibited from holding or obtaining a firearms licence until further order (the firearms licence order),[4] the consequence being that the respondent will henceforth not be able to possess any firearm or ammunition.  There were a number of circumstances known to his Honour which made this package a severe (but appropriate) sentence for this person in all the circumstances of the case.

    [4]    The Judge also ordered that the various firearms be forfeited to the Crown.

28. As to the first limb, his Honour recorded convictions for all eight offences and imposed one fine of $25,000, reducing it to $17,500 in light of the respondent’s guilty pleas.  This was a heavy fine for this person in all of the circumstances outlined above.  The parlous financial situation of the respondent and his wife is now exacerbated by the fact, as this Court was informed at the hearing of this application, that the respondent has paid the fine imposed (plus the further required amount of $1,780 for victims of crime levy) but could only do so by extending the terms of his mortgage home loan.

29. As to the second limb, one should not underestimate the very real punishment it represents to this person.  This is not a case where such an order would have no element of punishment for a person with no ongoing interest in firearms.  Here, the respondent had long held a strong and continuing interest in firearms and shooting, and had held a firearms licence for over 35 years without any issue.  The effect of this order is to quietly but firmly close the door to this large room in the respondent’s life, with much the same serious effect as a prohibition on pursuing a quite different hobby or past-time would have on another person with a life time strong interest in that particular hobby or past-time.

30. This twofold approach is consonant with, and may very well have been based upon, the approach taken by King CJ in R v Hicks.[5]The defendant there had pleaded guilty to causing the death of a grandmother and her infant granddaughter by dangerous driving; he was grossly affected by liquor and his manner of driving was shocking.  However, the respondent’s antecedents were excellent and he was aged 66 and of fragile health.  The sentencing Judge imposed a suspended sentence and disqualified the respondent from driving for four years.  In approaching the aspect of the prosecution appeal concerning the non-custodial disposition, King CJ favoured a merciful approach and stated:[6]

    Considerations of deterrence and satisfaction of public outrage must undoubtedly play a large part in the fixing of sentences for crimes of this kind.  For that reason suspension of a sentence for this type of crime cannot be the norm.  But important as those considerations are, other proper sentencing considerations are not to be disregarded.  It is proper to use the power of suspension which Parliament has conferred upon the courts if the circumstances are appropriate.  There may be circumstances in relation to offences of causing death by dangerous driving which render suspension the appropriate course: R v Hewett (1981) 27 SASR 364; R v Haynes (1984) Vol; 113 LSJS 186; R v Andrews (1985) 40 SASR 133. In R v Boll (1983) 33 SASR 321, the Court of Criminal Appeal approved a non-custodial sentence in the form of a fine and licence disqualification.

    [5] (1987) 45 SASR 270.

    [6] Ibid, 272.

31. However, as to the the period of driving disqualification of four years, King CJ took a very different approach, placing strong emphasis on subjective punishment of the defendant and protection of the public:[7]

    I think that the position regarding the licence disqualification stands on a completely different footing.  In R v Andrews; (supra) at 134, I pointed out that “where there is no immediate custodial sentence, the paramount importance of deterrence in this area of punishment should be reflected in the period of licence disqualification”.  The respondent deserves punishment for conduct which has caused the death of two persons and injury to another.  The public requires protection.  The fact that at his age he came to be driving a vehicle while so grossly affected by liquor gives rise to misgivings as to the future.  I think that it would be a just punishment for his crime that he should be prevented from ever driving again, and I think that that would contribute far more to the protection of the public than requiring him to serve a term of imprisonment.  I think that the period of four years disqualification is too short to ensure that result.  I would increase the period of licence disqualification to fifteen years and I would allow the appeal for that purpose only.

    [7] (1987) 45 SASR 270, 273.

    The prosecution application for permission to appeal

1. The prosecution seeks permission to appeal and contends that the sentence is manifestly inadequate.  The only grounds finally proposed at the hearing[8] were:

   1.1     The Learned Sentencing Judge erred in not imposing a sentence of imprisonment.

   1.2The Learned Sentencing Judge erred in failing to have regard to, or in failing to give proper effect to, section 10(2)(e) of the Criminal Law (Sentencing) Act 1988 (SA).

   [8]    The tortuous path to the hearing is considered below.

2. The contention advanced by the applicant in this Court was that permission to appeal should be granted because the sentence imposed was so far below the appropriate range of sentencing for offending of this nature that it reflects an error in principle, and that to allow the sentence to stand would undermine public confidence in the administration of justice. It was contended that only in “exceptional circumstances” would a penalty other than imprisonment be justified for such firearm offences, and that in the present case there was nothing in the circumstances of the offending or the respondent’s personal circumstances that warranted a sentence other than imprisonment. Reliance was placed upon s 10(2)(e) of the Sentencing Act, which provides:

   (2)     In determining the sentence for an offence, a court must give proper effect to…

   (e)     in the case of an offence involving a firearm—the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence.

3. However, in oral submissions, the prosecutor conceded that if permission were granted and the appeal were to succeed, a suspended sentence might be open to the Court on re-sentencing:

   The position of the Crown in the court below was the sentence of imprisonment not suspended was the appropriate sentence and that in order to give effect to the need to protect the community, that the court couldn't go so far as to even consider a home detention order.  That was the position put in the court below.  Those are my instructions in relation to the appropriate penalty, should this court intervene and sentence itself.

   That being said, this is an unusual circumstance where the matter would be being considered having had a non-custodial disposition imposed in a lower court and a successful director’s appeal.  In those circumstances, in my submission there may be matters, as a consequence of that quite peculiar set of circumstances, for this rare and exceptional set of circumstances, where the court might take the view sentencing on appeal that a period of imprisonment suspended would fulfil all of the aims of the sentencing regime for offending of this kind.

   The general approach to firearms legislation

4. It is important that ss 10(2)(e) and 10(3a) of the Sentencing Act be borne in mind. This Court on a number of occasions has referred to the dangers posed by the illegitimate use of firearms. In R v O’Toole, I stated:[9]

   [9]    Peek J with whom Sulan J concurred.

   In Offe v Police, Gray J discussed the seriousness of the offences under the Firearms Act 1977: [10]

   [22]    … The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing.  Parliamentary debates indicate that the Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community.  Its purpose included providing community protection through the licensing and regulation of firearms.  The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms.  It provides clear direction as to licensing, storage and use of firearms.  Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.

   [23]    As earlier observed, in 1996 following events at Port Arthur motions were put in place to develop uniform gun laws around Australia.  The Firearms Act was amended to provide an even tighter means of weapon control.  The amendments aimed to further restrict the ownership and use of firearms with a view to preventing criminal behaviour involving their use.

   …

   [26]    General deterrence is of great importance in cases of this kind.  The community must not be complacent about the dangers of firearms and the damage that can be caused when they are not kept in accordance with the legislative requirements.  Not only are weapons targets for thieves, they present a real danger to unsuspecting children and persons who may happen across them accidentally.  …

   While the facts of that case are quite distant from those of the appellant’s offending in the instant case, these comments should be borne in mind.  The remarks of Sulan J (with whom David and Kourakis JJ agreed) in R v Gasmier also merit mention here:[11]

   [19]    The maximum penalties for possession of unregistered firearms which are unsecured reflect the seriousness of such offending.  The appellant has a long history of offending.  It is accepted that he has no prior convictions for this type of offence.  However, courts must make it clear to those who possess unregistered firearms that their offending will be treated very seriously and sentences of imprisonment will be imposed.

   [10] (2002) 84 SASR 1, 9-10. See also Johnson v Registrar of Firearms (2001) 99 SASR 353.

   [11] [2011] SASCFC 43. See also R v Willingham [2012] SASCFC 104, [44] (Gray, Sulan and Stanley JJ).

5. In the present case, prosecution counsel placed particular emphasis on the decisions of this Court in R v Daniele[12] and R v Capaldo,[13] these being the only two decisions on the prosecution list of authorities to be read.

   [12] [2014] SASCFC 22.

   [13] [2015] SASCFC 56 [49]-[52].

6. In R v Daniele,[14] Gray J, with whom I substantially agreed, emphasised the seriousness of firearms offences, and the importance of general deterrence in sentencing.  His Honour stated:[15]

   Possession of a firearm is a privilege and a serious responsibility.[16]  The overriding policy of the Firearms Act 1977 (SA) is to protect the public by controlling the possession and use of firearms.[17]  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.[18]  Relevant amendments were made to the Firearms Act in 2008.  In the second reading speech the Minister said:[19]

   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.[20]

   [14] [2014] SASCFC 22.

   [15] [2014] SASCFC 22, [25]-[26].

   [16]   R v Nozuhur [2013] SASCFC 81, [22]-[26].

   [17]   Pollitt v Police [2007] SASC 382, [20]; R v Nozuhur [2013] SASCFC 81, [23]-[24].

   [18]   South Australia, Parliamentary Debates, House of Representatives, 14 April 1977, 3448 (Hugh Hudson).

   [19]   South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2055 (Paul Holloway).

   [20]   Offe v Police (2002) 84 SASR 1, [26].

7. Those remarks are to be accepted but, as ever, they are to be read in the context of the particular case.  The facts there included that the appellant was found carrying a loaded illegally shortened shotgun with additional ammunition in a public street.  It was classified as a “prescribed firearm”, the possession of which is a more serious offence than possession of a class H firearm (the most serious charge in the present case).  The appellant there 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. 

8. Daniele was a defence appeal against sentence, it being sought to establish that the penalty was manifestly excessive.  The appeal was dismissed on the basis that the sentence was “within the sentencing discretion of” the sentencing Judge.[21]  Of course, this does not mean that other Judges may not have properly imposed a lesser sentence; and the case gives little guidance to the present very different situation of a prosecution application for permission to appeal.

   [21] [2014] SASCFC 22, [23].

9. Prosecution counsel also referred to the case of R v Capaldo where Gray and Sulan JJ observed: [22]

   49. An important matter to be addressed is the gravity of the offending. Firearms represent a real and serious threat to the community.  The possession, trade and use of unregistered firearms is of significant concern.  Parliament has expressed its intention to address the danger posed by firearms by setting the maximum penalties and enacting specific provisions in the Sentencing Act which give paramount consideration to the need for deterrence.

   This Court has observed that the community must not be complacent about the dangers of firearms and the damage that can be caused by them.

   [22] [2015] SASCFC 56.

10. However, at one point in her outline of argument, prosecution counsel stated, in purported reliance upon Capaldo:

    “The Court has said that ‘the possession of a firearm is in itself a serious offence and only in the most exceptional circumstances would a penalty other than imprisonment be justified’ and a sentence of imprisonment, even for a first offender, is appropriate.”

11. This is not a fair interpretation of the relevant sentence in Capaldo, or of the decision as a whole. The relevant sentence was no doubt intended to be read in the context of the facts there under consideration, and as if the words “in the present circumstances” were inserted immediately after the words “possession of a firearm”. It should be self-evident that “possession of a firearm” is not an offence per se. Any properly authorised police officer would rightly point out that his “possession of a firearm” is no offence at all, let alone one deserving of a sentence of imprisonment. And so too would a properly authorised farmer or target marksman.

12. The correct position is that “possession of a firearm” will constitute an offence if a particular identified statutory or regulatory provision is breached, be it a positive requirement or prohibition.  When that fundamental position is appreciated, it in turn becomes clear that the degree of “seriousness” will vary with both the particular offence involved and the particular circumstances of the case.

13. Importantly, the maximum penalties attaching to different types of offences involving the possession of a firearm vary greatly.  If one simply refers to the examples that happen to be afforded by the present case, one notes that the charge in count 5 (possession of a class H firearm not properly stored) has a maximum penalty of a fine of $2,500 with no provision for imprisonment whereas counts 1 and 2 (aggravated possession of a class H firearm) have a maximum penalty of imprisonment for ten years or a fine of $50,000.

14. And, of course, other still more serious firearms charges not involved in the present case have still higher penalties; as noted above, in Daniele the offence was “aggravated possessing a firearm without a licence” which carried a maximum penalty of 15 years’ imprisonment and a fine of $75,000.[23]

    [23]   Firearms Act 1977 (SA) s 11(7a)(a).

15. The case of Capaldo itself concerned a defence appeal rather than an application by the prosecution.  There, the appellant pleaded guilty to a string of charges similar to those in the present case, with one loaded semi-automatic pistol being involved rather than two.  The pistol was found hidden in a bag within another bag, in the rafters of a locked shed to which the appellant had the only key.  There was no access to the rafters by stairs but only by climbing over furniture stored there.  The appellant maintained that she had never carried the firearm around with her or fired it; it did not appear that she had any idea how to use it.

16. The prosecution case was that the appellant was secreting the pistol for one of her “bikie” associates.  The appellant’s version was that she had it for self-defence should her violent ex-partner come around and attempt to assault her.  Given all the circumstances, including the difficulty she would have had in getting quick access to the pistol if the ex-partner suddenly appeared, and her general unfamiliarity with the pistol, it is unsurprising that the sentencing Judge was not prepared to accept her version of fact.  Her Honour stated:

    You have given evidence on oath in respect of the matter.  You have given evidence about the circumstances in which you say that you obtained the weapon as well as the details of your relationship with Mr Rawson.  I do not accept your explanation as to the reason for the possession of the firearm either on the balance of probabilities or at all.

    ...

    Having heard all of your evidence and considered all of the materials tendered on your behalf, I find that you have been untruthful about the circumstances and reason for the possession of the firearm.  I do not know and cannot make a finding about why you had the loaded firearm in your possession.  Obviously, the firearm had a value.  The serial numbers had been deleted or removed.  I find that you possessed the firearm for that lengthy period of time for an unlawful purpose, either for the unlawful act or acts of some other person or yourself.  The precise nature of those acts I cannot know.  I cannot know whether or not you were holding the weapon for yourself, or for a friend or an associate, or member of your family or otherwise.  I make no finding in that regard.

17. The Judge imposed a head sentence of one year and six months’ imprisonment with a non-parole period of five months (having given a reduction for the plea of guilty) and declined to suspend the sentence.  The Court found that a procedural error[24] required there to be a re-sentencing.

    [24]   The nature of the procedural error is not presently relevant.

18. On re-sentencing, the majority had direct reference to s 10C of the Sentencing Act, but concluded that the appellant’s antecedents disclosed good reason to suspend the sentence of imprisonment. Their Honours did so without making a finding that the appellant’s version as to her reason for possession of the pistol was to be accepted, or that the sentencing Judge’s conclusion that no finding in that regard could be made on the evidence was incorrect.

    The application of the double jeopardy principles to prosecution applications for permission to appeal against sentence

19. Before the prosecution application is further considered, one must first refer to the application of the double jeopardy principles to prosecution applications for permission to appeal against sentence.

20. The prosecution may only appeal against a sentence passed with the permission of the Full Court.[25]  In Everett v The Queen, the High Court explained:[26]

    … a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case.  An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.  That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”.  In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen:

    an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.

    The reference to a “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle.   (Emphasis added)

    [25]   Criminal Law Consolidation Act 1953 s 352(1)(a)(ii).

    [26] (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ).

21. The plurality further observed:[27]

    … the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case.  Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge’s orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation.  (citations omitted)

    [27] 181 CLR 295, 300.

22. And in R v Nemer, Doyle CJ observed:[28]

    The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made.  Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case).  In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles.  However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”.  Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low.  But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.

    [28] (2003) 87 SASR 168, 172.

23. Of course, the basis of the “rare and exceptional” test is the principle of double jeopardy as it relates to prosecution applications for permission to appeal.[29]  In the seminal decision of the Federal Court in R v Tait, Brennan, Deane and Gallop stated in a joint judgment:[30]

    … a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence.  Crown appeals have been described as cutting across “time-honoured concepts of criminal administration” (per Barwick CJ in Peel v The Queen).  A Crown appeal puts in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal” (per Isaacs J in Whittaker v The King).  The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence.  It was first in jeopardy before the sentencing court. 

    [29]   R v Saunders [2011] SASCFC 37, [14] (Gray J).

    [30] (1979) 46 FLR 386, 388.

1. In the decision of this Court in R v Brougham,[31] some consideration is given to the double jeopardy principles in the context of prosecution applications to appeal against verdicts of acquittal.  Perhaps as a matter of initial surprise, it is noted that, in the Australian jurisdictions, the decisions examining those principles in the context of sentence appear to outnumber those in the context of acquittals.  As there observed,[32] the explanation is that in the Australian jurisdictions, “(t)he legislative enactment of a prosecution right to appeal, or to seek leave to appeal, against asserted inadequacy of sentence generally preceded the advent of a prosecution right to appeal, or seek leave to appeal, against an acquittal by a superior court”.[33]  Nevertheless, reference to the number and content of the Australian cases concerning sentencing immediately disabuses any notion that the double jeopardy principles do not have great importance in that area.

   [31] (2015) 122 SASR 546.

   [32]   The chronological order in which any avenues of prosecution appeals against sentence or conviction were first enacted in the Australian law areas is set out in Brougham at footnote 82.

   [33] (2015) 122 SASR 546, 577.

2. In Pearce v The Queen, the High Court emphasised the broad ranging application of the principles.  In their joint judgment, McHugh, Hayne and Callinan JJ stated:[34]

   [9]The expression “double jeopardy” is not always used with a single meaning.  Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter”.  Further, “double jeopardy” is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.

   [10]If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States:

   The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

   That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy. …   (Emphasis added)

   [34] (1998) 194 CLR 610, 614.

3. The principles apply generally, including in the situation where the respondent has in fact received a custodial prison sentence and the prosecution seek to increase the length of that sentence.  The decision of this Court in R v McPartland and Polkinghorne[35] was of this kind and the application of the double jeopardy principles there led to a refusal of permission to appeal.

   [35] (2014) 120 SASR 69.

4. However, if one were to describe the paradigm case for the application of the double jeopardy principles in the context of sentencing, it would be the situation where a person who is in real jeopardy of a custodial sentence of imprisonment at first instance is granted the mercy of a non-custodial disposition[36] and is released into the community; but at a later date the prosecution seeks to appeal against that disposition.  In such a situation, “the principles of double jeopardy loom large”.[37]

   [36]   There are many such procedural dispositions across the jurisdictions.  A fine or suspended gaol sentence are obvious examples.

   [37]   R v Jackson [2014] SASCFC 101, [25] (Peek J, with Blue and Stanley JJ agreeing); R v M, H [2007] SASC 41, [19] (Gray J, with whom Duggan and White JJ agreed); R v Kong [2013] SASCFC 15 (Kourakis CJ, Sulan and David JJ).

5. The consideration of sentencing cases in Brougham focussed on decisions largely concerned with that paradigm case, and concluded thus:[38]

   [38] (2015) 122 SASR 546, 577.

   As early as 1928, in Whittaker v The King,[39] Isaacs J observed that the court should respect “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal”.  In 1971 in Peel v The Queen,[40] Barwick CJ stated that such appeals “cut across time-honoured concepts of criminal administration” and in 1977 in Griffiths v The Queen,[41] Barwick CJ stated that a prosecution appeal “should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. 

   [39] (1928) 41 CLR 230, 248.

   [40] (1971) 125 CLR 447, 452.

   [41] (1977) 137 CLR 293, 310.

   …

   In the subsequent decision of the High Court in Malvaso v The Queen,[42] the Court of Criminal Appeal had purported to allow a prosecution appeal and substitute a custodial sentence for a suspended sentence without first granting leave to appeal.  The High Court set aside the substituted sentence and remitted the matter for consideration of whether leave to appeal should be granted.[43]  Deane and McHugh JJ stated:[44]

   The statutory jurisdiction to grant leave to the State to appeal against the sentence imposed by one of the State’s own courts which s 352(2) of the Criminal Law Consolidation Act 1935 (SA) confers upon the Full Court of the Supreme Court of South Australia has become commonplace throughout this country and the common law world. Nonetheless, it should not be forgotten that it represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy …

   It is of particular importance in a case such as the present where an appeal by the Attorney-General against sentence lies only pursuant to a grant of leave (Criminal Law Consolidation Act 1935  (SA), s 352(2)). In such a case, the court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified. (Emphasis added)

   In the later decision of the High Court in Everett v The Queen,[45] the plurality (Brennan, Deane, Dawson and Gaudron JJ) adopted and reiterated those remarks.  More recently in Lacey v Attorney-General (Qld) the joint judgment of the plurality of the High Court (French CJ, Gummow J, Hayne J, Crennan J, Kiefel J and Bell J) reviewed the history of the approach of the courts to prosecution appeals against sentence in some detail.  Their Honours stated:[46]

   [16]    The exceptional character of the Crown appeal against sentence had been recognised by the Council of Judges in England in its recommendations to the Lord Chancellor in 1892.  That character was acknowledged in Williams [No 2] by Dixon J, who described such appeals as “a marked departure from the principles theretofore governing the exercise of penal jurisdiction”.  In Griffiths, Barwick CJ said that an appeal by the Attorney-General: “should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”  That statement was endorsed by Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen.  In endorsing it, their Honours expressly included in the notion of a “matter of principle” manifest inadequacy or inconsistency in sentencing standards.

   [17]    The treatment of Crown appeals against sentence as “exceptional” indicated a judicial concern that criminal statutes should not be construed so as to facilitate the erosion of common law protection against double jeopardy.  This was reflective of a wider resistance to the construction of statutes, absent clear language, so as to infringe upon fundamental common law principles, rights and freedoms.  …

   [18]    The influence, on Crown appeals against sentence, of the common law rule against double jeopardy was reflected in the observation by Deane J in Rohde v Director of Public Prosecutionsthat such an appeal “infringes the essential rationale of the traditional common law rule against double jeopardy in the administration of criminal justice in a manner comparable to a conferral of a prosecution right of appeal against a trial acquittal”.               [Citations omitted]

   [42] (1989) 168 CLR 227.

   [43]   Subsequently, on reconsideration, this Court refused the prosecution leave to appeal.

   [44] (1989) 168 CLR 227, 234.

   [45] (1994) 181 CLR 295, 299; 305.

   [46] (2011) 242 CLR 573, 578.

6. In the recent decision of this Court in R v Kong, the prosecution sought permission to appeal against a suspended sentence of imprisonment.  This Court was of the view that the term of imprisonment was manifestly inadequate, but it was not persuaded that, even if a significantly longer term had been imposed, it would have been a plainly unreasonable exercise of the power to suspend.  In those circumstances, the Court considered that the appropriate disposition was to refuse permission to appeal.  Their Honours stated:[47]

   [102]  This Court must first deal with permission.  There are circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is erroneously lenient.[48]  Factors such as a defendant’s personal circumstances, the defendant’s progress towards rehabilitation, the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild his life are just some of the factors which are relevant to which the exercise of a residual discretion to refuse a Crown appeal.

   [103]  It would be a crushing reversal of fortune for a man who left the dock nine months ago, believing that he would not be taken from his family and would be able to continue his rehabilitation in the community, to now be required to serve a lengthy and immediate custodial sentence.

   [104]  In this case, to grant permission to the Crown to appeal and to allow the appeal would be at too high a cost, in terms of justice, to the defendant.  Without reaching a final conclusion as to whether or not we would have suspended the longer sentence we would have imposed in an exercise of our discretion, which we acknowledge to be very favourable to the respondent, we would refuse permission to appeal.       (Emphasis added)

   [47] [2013] SASCFC 15.

   [48]   See Green & Quinn v The Queen (2011) 244 CLR 462, [2].

7. The case now before the Court is also of that central nature.  The respondent stood in real danger of a custodial prison sentence but on 11 October 2016 he was afforded the merciful disposition considered above.  He responsibly paid in full the monetary penalties.  The prosecution now seek permission to appeal and to have a custodial sentence imposed.  A primary question that arises is whether, against the jurisprudential background referred to above, and in all of the circumstances of this case, this Court should grant such permission to appeal.

   Consideration of the prosecution application for permission to appeal

8. At the time of the commission of these offences, the respondent was subject to a sentencing regime where the option of a fine only was available for each of these charges. Further, the penalty of imprisonment could be mitigated by suspension pursuant to s 38 of the Sentencing Act as to which the position is as stated in R v O’Toole:[49]

   This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.[50]  The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[51]  It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[52]  The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.

   [49] [2013] SASCFC 18 (Peek J with whom Sulan J concurred). This passage has since been accepted as the correct approach to s 38 of the Sentencing Act in a number of decisions including: R v Skinner (2016) 126 SASR 120; Royal Society for the Prevention of Cruelty to Animals (SA) Inc v Rogers [2016] SASC 185; Lombard v Police [2016] SASC 179; R v GM [2016] SASCFC 116; R v Kanga [2016] SASCFC 29; R v Bristogiannis [2016] SASCFC 22; R v Manhire [2015] SASCFC 187; R v Wooldridge (2015) 123 SASR 422; McDermott v Police [2014] SASC 175; R v Pham [2014] SASCFC 95; Warner v Police [2014] SASC 54; Chilton v Police (2013) 241 A Crim R 494 (overturned on appeal, but not questioning the correctness of the reference to O’Toole); R v McLean (2013) 118 SASR 280; R v Jorquera [2013] SASCFC 145; and Green v Police [2013] SASC 119.

   [50]   Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J).

   [51]   R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530, 535 (Perry J).

   [52]   R v Wacyk (1996) 66 SASR 530, 535 (Perry J).

9. A Court of Criminal Appeal faced with a prosecution application for permission to appeal against the imposition of a non-custodial sentence must not approach the matter with tunnel vision.  It is to be remembered that there are various types of recognised scourges of offending in the community which produce enormous damage; are rightly subject to severe punishment in appropriate cases; but are nevertheless subject to the double jeopardy principles (just as firearms offences are subject to those same principles).  I will briefly refer to just two examples: trafficking in illicit drugs and drunken or dangerous driving causing harm or death. 

10. Trafficking in illicit drugs.The scourge of the widespread and ever proliferating trafficking in methylamphetamine causes more harm, death and poverty than firearms in peace time ever do.  In Kong, referred to above at [60], the defendant pleaded guilty to trafficking in a large commercial quantity of methylamphetamine and received a three year and nine months suspended sentence and the prosecution was refused permission to appeal in the circumstances referred to above. It is also of note that the classic statement of King CJ as to the correct approach to prosecution appeals was made in the case of R v Osenkowski, a case involving trafficking in heroin:[53]

    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  …

    [53] (1982) 30 SASR 212, 212-213. Permission to appeal was given for the reasons there stated and the sentence was increased.

11. Drunken or dangerous driving causing harm or death.  I have referred above to the central decision of R v Hicks which involved the offence of cause death by dangerous driving.  As to the matter of double jeopardy, King CJ there stated:[54]

    Even if I had been unable to come to the conclusion that there were reasonable grounds for the suspension of the sentence, I would have felt great reluctance to allow the appeal for other reasons.  In a case involving an ailing elderly man of previous good character, the special considerations relating to persecution appeals referred to in cases such as R v Wilton (1981) 28 SASR 362 at 363-364; R v Osenkowski (1982) 30 SASR 212 and R v Drewett (1983) 35 SASR 344 assume particular importance. As has been pointed out in those cases, prosecution appeals fall to be decided on somewhat different considerations than appeals by persons under sentence. When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind.  The consequences of reversing that intimation could be devastating.  I do not think that any consideration of justice or the protection of the public demands that this particular respondent, after he has been told by a court that he will not have to go to prison, should now be told by this appellate Court that he must serve the sentence.

    (Emphasis added)

    [54] (1987) 45 SASR 270, 273.

12. In the decision of this Court in R v Payne[55] the double jeopardy principles were applied in refusing the prosecution application for permission to appeal.  And in the more recent decision of this Court in R v Thach;R v Chau[56] decided in the same context,[57] Gray J (with whom Doyle CJ and White J concurred), again applied the emboldened passage above in Hicks.

    [55] (2004) 89 SASR 49.

    [56] [2010] SASCFC 16.

    [57]   The serious offences of causing of harm by dangerous driving and failing to stop and render assistance.

    Prosecution delay in connexion with the present application

13. Before reaching a conclusion as to the present application, it is necessary to have regard to a further important consideration, that of prosecutorial delay.

14. When a defendant is released by a court into the community with a non-custodial sentence to proceed with his rehabilitation, any significant delay by the prosecution in proceeding with an application for permission to appeal may, in conjunction with other cumulative factors, militate against a grant of permission to appeal to the prosecution.

15. Until relatively recent times, there was no formal time limit in the higher courts applicable to prosecution applications for permission to appeal in South Australia. Accordingly, s 27 of the Acts Interpretation Act 1915 (which requires that an act such as the filing of a prosecution application for permission to appeal be performed “with all convenient speed”) applied.

16. In Director of Public Prosecutions v Pepicelli, Millhouse J (with whom Mohr and Bollen JJ agreed), considered that a delay of 35 days from imposition of sentence to the prosecution filing an application for permission to appeal was too long a delay and dismissed the prosecution application on that ground alone.  As his Honour stated, “by that time the prisoner could reasonably have expected that he was safe from appeal”.[58]

    [58] (1993) 60 SASR 520.

17. In the course of that judgment, other examples of delay were considered.  Of interest, in R v Tichy, Wells J had observed of a delay of 17 days: “… it may be approaching that limit”;[59] and in R v Thompson, King CJ had observed of a delay of 22 days: “I think that the lapse of time in the present case perhaps is getting close to the limit of what amounts to all convenient speed”.[60]

    [59] (1982) 30 SASR 84, 86-87.

    [60]   Unreported South Australian Court of Criminal Appeal 21 May 1991.

    Rules 107 and 110 of the Supreme Court Criminal Rules 2014

18. The present position is that Rules 107 and 110 of the Supreme Court Criminal Rules 2014 now govern the requirements of both filing and serving a notice of appeal, by both defence and prosecution.  They are as follows:

    107—Time for appeal

    (1)Subject to any statute or rule to the contrary and to subrule (2), an appeal is to be commenced within 21 calendar days after the date of the judgment, sentence or sentencing decision subject to the appeal.

    (2)An appeal by the Director under section 352(1)(a)(iii) and 352(2) of the Act is to be commenced within 5 business days after the grant to the defendant of permission to appeal under section 352(1)(a)(iii) of the Act.

    ...

    110—Notification of appeal

    (1)Subject to subrule (2), within 5 business days after filing a notice of appeal, the appellant is to serve notification of the appeal in an approved form attaching a copy of the notice of appeal and any document filed with the notice of appeal on—

    (a)     the respondent to the appeal; and

    (b)     if the appeal is from another court—the proper officer of the court of trial.

    (2)When the appeal is instituted by the defendant, the Registrar will serve the documents required by subrule (1) to be served.

1. In the present case, the application was lodged on 1 November 2016, being the very last day of the 21 day time limit.  It should be obvious that, irrespective of that time limit, the prosecution should proceed as quickly as reasonably possible in a matter so important to a respondent.  It may well be that a delay to the 21^st day in a case where an application could have reasonably been lodged earlier may be taken into account on the question of permission to appeal.  However, I think it unnecessary to further consider that aspect here.

   Delay in service of the notice of application for permission to appeal

2. Although the application was filed in court on 1 November 2016 (and should have been served by no later than 6 November 2016), it was not served until 6 December 2016, that is to say some eight weeks (or 56 days) after the respondent had been sentenced by the Judge on 11 October 2016 and released into the community.  In the meantime, on 24 November 2016, the respondent had paid the fine and victims of crime levy in full, having extended the terms of his home mortgage loan to do so.

3. These matters were drawn to the attention of counsel at the hearing thus:

   PEEK J:  … [to Ms Ingleton]: Can you just help me before you proceed further with the chronology; the respondent was sentenced for these offences on 11 October 2016.  The notice of application for leave to appeal was filed pretty well at the very end of the 21 day period on 1 November 2016 but the notice of appeal was not served on the respondent until 6 December 2016 so there is a not insubstantial delay there.  Are you aware of that and have you got any reasons you want to advance how that came about?

   MS INGLETON:   No, your Honour, that was not a matter I had turned my mind to in advance of the submissions.  The proof of service I have in respect of the documents indicates the materials were filed on the solicitor for the respondent on 6 December 2016 at quarter past 12 in the afternoon.

   PEEK J:   … There is a question as to, first of all, the fact that the matter is left to the very end of the limitation period which may be not unimportant if you take it cumulatively with other matters.  There is then the fact that the appeal or application for leave to appeal is not served until 6 December.  As you rightly point out, it is served on the respondent’s solicitor and it may be Mr Retalic will be in a position to get instructions as to how that particular process came about as well.

   MS INGLETON:   Certainly.

   MR RETALIC:     I can address that now.

   PEEK J:    Go ahead.

   MR RETALIC:     My understanding is that the reason for the service on the solicitor involved was that Mr Fusco was working at Pimba and thereabouts, Coober Pedy and was working three weeks on, one week off although that was a bit rubbery, it was more like four weeks on, one week off on many occasions and was not around to be served.  There was communication between Mr Colthorpe and Mr Fusco and Mr Colthorpe was instructed to accept service.

   PEEK J:    It was really a matter of convenience for the police rather than going up to do that?

   MR RETALIC:     That’s so.

   PEEK J:    Nevertheless there is a delay there and it seems to me that if you aren’t in a position to address that now, Ms Ingleton, you may want to apply for leave to file some sort of written submission in a particular period to put what you want.  Otherwise if it is unexplained then we have to assume it is not justifiable.

   MS INGLETON:   I hear what your Honour is saying and I would seek such leave of the court to make inquiries and provide such written submission to explain the delay following the argument today.

   PEEK J:    How long would you need to do that?

   MS INGLETON:   I would seek a period of seven days.

   PEEK J:    All right.  I make an order that the applicant have seven days from reservation of judgment today to file and serve such material as it is advised concerning the time periods relating to the issue and serving of the application for leave to appeal.

   (Emphasis added)

4. The Court later received a letter from counsel for the applicant, the relevant portion of which is as follows:

   After reviewing the Respondent’s file, Ms Rowe [Supreme Court Criminal Appeals Co-ordinator] has advised as follows:-

   ·The Form 41 was received in the Registry on 1 November 2016.

   ·The Appeals Co-ordinator produced a letter on 4 November 2016 addressed to Detective David Furniss at the Norwood Police Station.  The letter requested service on the Respondent at an address at Moana.

   ·On 17 November 2016, the Appeals Co-ordinator sent a follow-up email to Detective Furniss enquiring whether the Notice of Appeal had been served.

   ·On 18 November 2016, the Appeals Co-ordinator received an email reply advising that Detective Furniss was on leave and that no correspondence requesting service of documents had been received.

   ·On 18 November 2016, the Appeals Co-ordinator emailed the Form 41 and Form 45 to Michael Stone for service.

   ·Proof of service was returned to the Registry dated 6 December 2016.

   ·There was no other information available as to the reason for the delay in serving the Respondent.

5. I assume that the “letter” referred to at dot point 2 was transmitted by email that day since a “follow up email” is referred to at dot point 3.  Dot point 4 does not satisfactorily address the circumstances under which the original letter sent by the Court was not attended to, other than to suggest that the addressee was on leave at the time and apparently had not put in place a system as to service of documents in his absence.  Dot point 5 then asserts that the Appeals Co-ordinator emailed documents for service to “Michael Stone” (presumably a SAPOL officer) on 18 November 2016 with dot point 6 simply asserting that proof of service was returned to the Registry dated 6 December 2016. 

6. No information is given as to what was done, and when, during the period from 18 November 2016 to 6 December 2016 in circumstances where presumably Mr Stone was then, and remains now, contactable by the Office of Director of Public Prosecutions and able to answer such questions. It is to be emphasised that if it is wished to take the serious step of initiating an application to seek permission to appeal against sentence, the responsibility for issuing and serving the required process in compliance with the relevant required procedures remains that of the applicant.   

7. In the end, although Mr Retalic stated at the hearing that there was an arrangement made for the respondent’s solicitor to accept service to avoid inconvenience to the police, there is no information as to when Mr Stone first attempted to contact the respondent or his solicitor, or when the eventual arrangement for service was made.

8. As appears above, this Court made it quite plain at the hearing that this is a prosecution application for permission to appeal in circumstances where there is prima facie delay; it was necessary for the applicant to address such matters satisfactorily or the delay would be taken to be unjustifiable.

   The adjournment of the application originally listed for 23 February 2017 

9. In addition to the above matters, serious delay was occasioned by an adjournment rendered necessary by the conduct of the applicant.

10. This application was originally listed to be heard by this Court on Wednesday 23 February 2017.  However, as late as Friday 17 February 2017,[61] the applicant gave notice of seeking to rely upon an additional proposed ground asserting that the Judge “failed to sentence in accordance with s 20AAC of the Criminal Law (Sentencing) Act 1988” (“the new proposed ground of appeal”). In other words, it was sought to be contended that Part 2 Division 2AA of the Sentencing Act relating to sentencing for “serious firearms offences” applied in the present case. On 17 February 2017, an outline of argument was also received from the applicant dealing with the new proposed ground of appeal as well as the original proposed grounds of appeal.

    [61]   The hard copy in proper form was not filed in the Registry until the following Monday, 20 February 2017.

11. This late development naturally led to the respondent’s counsel properly requesting an adjournment to March in order to consider and prepare a responding argument and the hearing was rescheduled for Monday, 20 March 2017.

12. On 10 March 2017, the Court received the respondent’s outline of argument which submitted that as a result of the timing of the offending and the various relevant amendments, Division 2AA of the Sentencing Act relating to sentencing for “serious firearms offences” did not apply in the present case.[62]

    [62]   This conclusion was entirely correct although the reasoning process adopted was not.  The matter is dealt with below. 

13. Late on Friday 17 March 2017, the applicant sent an email to the associate of the presiding Judge stating that it was no longer sought to add the new proposed ground of appeal; the associate had left shortly prior to the arrival of the email and the Judges did not become aware of it until the morning of Monday 20 March 2017, the adjourned hearing day for the application.  The email contained no explanation or apology for its lateness.

14. The generally unsatisfactory nature of all of the above hardly needs to be dwelt upon.  However, it does need to be expressly mentioned that the effect on the respondent was, at the very least, to prolong his period of anxiety by one month, the period of the necessary adjournment.  Further, he was also placed in a situation where he was likely to perceive that his fortunes had very much changed for the worse in that the Director of Public Prosecutions was now seriously contending that he was subject to a sentencing regime substantially more harsh than that that had been applied by the sentencing Judge; and that he was therefore likely to be incarcerated.  He was unlikely to think other than that the Director of Pubic Prosecutions would not have brought the application to add the new ground of appeal at such a late stage unless they had given the matter the most serious and conscientious consideration.

    The new expanded ambit of “serious firearm offences” and “serious firearm offenders”

15. I will say something further concerning the proposed new ground of appeal (raised and later withdrawn) which asserted that conviction on count 7 had the effect of deeming the respondent to be a “serious firearm offender”.

16. Count 7 charged that the respondent had acquired the subject rifle without holding a permit contrary to s 14(1) of the Act. Since 1993, there has existed in South Australia a legal requirement that a person who has a firearms licence applicable to a certain class of firearm must, before acquiring a particular firearm of that class that he has under consideration, apply for and receive a permit to acquire that particular firearm. Proceeding with acquisition before receiving such a permit has constituted an offence under s 14 of the Act throughout that period.[63]

    [63]   This offence was enacted by the Firearms (Miscellaneous) Amendment Act 1993 (effective from 1 September 1993).  The form of this section was amended by the Firearms (Miscellaneous) Amendment Act 1996 (effective from 9 September 1996); the Firearms (COAG) Agreement Amendment Act 2003 (effective from 1 October 2003); the Firearms (Firearms Prohibition Orders) Amendment Act 2008 (effective from 27 November 2008); and the Firearms (Miscellaneous) Amendment Act 2013 (effective from 7 February 2014).

17. From 1 October 2003, a new s 14A was added enacting a new offence referred to as “supply of firearms”, which applied to a person who supplied a firearm to a person who did not have a permit to acquire it. Section 14 was also amended at this time, the most substantial change being to extend the offence to apply to those who “take part in the acquisition of a firearm”. Existing provisions relating to the supply of firearms were deleted having regard to the new s 14A.[64]

    [64]   See Firearms (COAG) Agreement Amendment Act 2003 (effective from 1 October 2003).

18. However, from 7 February 2014, both ss 14 and 14A were repealed and a new s 14 was substituted which enacted a new offence referred to as “trafficking in firearms”.[65] This offence applies both to a person who acquires a firearm without first receiving a permit (or takes part in such an acquisition) and also to a person who supplies a firearm to a person who does not have a permit to acquire it (or takes part in such a supply). The term “takes part” is widely defined. The penalties as from 7 February 2014 are found at s 14(6) to (9).

    [65]   These amendments were enacted by the Firearms (Miscellaneous) Amendment Act 2013.

19. Meanwhile, on 4 March 2013, running in parallel with the above developments, the statutory concept of the “serious firearm offence” was inserted in Part 2 Division 2AA of the Sentencing Act.[66] Since its introduction, the term “serious firearm offence” has been defined in s 20AA of the Sentencing Act.

    [66]   By virtue of the Statues Amendment (Serious Firearm Offences) Act 2012.

20. It is to be noted that at the date of the police attendance at the respondent’s home on 27 October 2015 (and therefore a fortiori at the earlier relevant time at which the respondent had actually “acquired” the subject rifle), a “serious firearm offence” was not defined so as to include an offence against s 14 of the Act. It was only as from 7 February 2016 that the definition of a “serious firearm offence” has included the provision “(g) an offence against section 14 of the Firearms Act 1977”.[67] So it came to be that the prosecution, during the course of the appeal here, initially sought to hang the weight of a “serious firearm offence” on the peg of count 7 by dint of the most recent iteration of the definition of a “serious firearm offence”. As should have been obvious, that could not be done because the critical expansion of the definition to include an offence against s 14 of the Firearms Act 1977 only occurred subsequent to the date of offending.

    [67]   By virtue of the Statues Amendment (Firearms Offences) Act 2015.

21. However, for offences committed as from 7 February 2016, resort may be made to the greatly expanded definition of a “serious firearm offence” and it is worthwhile to make the following brief observations against the above historical background.

22. Under s 20AAB of Division 2AA of the Sentencing Act, the commission of a “serious firearm offence” usually deems the defendant to be a “serious firearm offender”. This status, or alleged status, carries a number of severe consequences. They include that persons charged with “serious firearms offences” face a presumption against bail pursuant to s 10A of the Bail Act 1985 and, if convicted and designated as a “serious firearm offender”, cannot benefit from the provisions entitling certain prisoners to automatic release on parole under s 66 of the Correctional Services Act 1982.[68]

    [68]   Correctional Services Act 1982 s 66(2)(aca).

23. Another such consequence is that a “serious firearm offender” will be 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.[69]

    [69] [2016] SASCFC 83.

24. Now that the concept of a “serious firearm offender” has been significantly broadened, it needs to be emphasised that a person may now be deemed to be a “serious firearm offender” by the commission of various offences that not only widely differ in maximum penalty but may also be committed in very different sets of circumstances.

25. To give an obvious example (not drawn from the facts of the present case), on the one hand, a person will be deemed to be a “serious firearm offender” if he commits an offence of the type specified under paragraph (a) of the definition of “serious firearm offence” (for example involving a prescribed firearm such as an illegally shortened double barrel shotgun[70]). On the other hand, since 7 February 2016, a person will now also be deemed to be a “serious firearm offender” if he commits an offence of the type specified under the new paragraph (g) (namely any offence against s 14 of the Firearms Act 1977).

    [70]   Such a firearm was involved in R v Daniele [2014] SASCFC 22.

26. In the latter situation, it is to be noted that while s 14 now bears the impressive title “trafficking in firearms”, its purview is so broadly and loosely defined as to capture many factual situations that would not come within any usual meaning of “trafficking”. As an example, s 14 still applies to the mundane situation of a law abiding farmer who has a firearms licence applicable to a certain class of firearm and is entitled to acquire a firearm of that class; he or she, before acquiring a particular firearm of that class that he or she has under consideration, must apply for and receive a permit to acquire that particular firearm. Proceeding by way of first acquiring the firearm and only then seeking the permit would, of course, constitute an offence under s 14 of the Act. It needs little imagination to appreciate a set of circumstances where such an offence might be committed more through confusion than by design; and with significantly less moral culpability, and significantly less objective danger to the public, than will usually be involved in the commission of more serious offences that also lead to the “serious firearm offender” deeming process.

27. It will be necessary for the courts to bear such matters and distinctions very closely in mind when approaching an application by a defendant for a declaration in his or her favour under s 20AAC(2) of the Sentencing Act.

    Conclusion

28. The serious nature of the present offending (which may militate in favour of a grant of permission to appeal) has been referred to above and does not need to be repeated.  The following is a brief summary of some of the cumulative considerations (dealt with in more detail above) which together militate against a grant of permission here:

    -The possession of the pistols was unplanned.  While the respondent kept the pistols despite knowing that his pistol licence had lapsed and that it was unlawful, he did so because of his pre-existing great interest in firearms, and not because he had any nefarious purpose in mind;

    -The rifle charges were much less serious than the pistol charges in that the prosecution agreed that the respondent could easily have registered the rifle and legally possessed it, had he applied to do so.  Further, the rifle could not be fired in the sense that ammunition for it was apparently not available for purchase in Australia, and it is clear that the respondent had none;

    -The respondent is now of advanced years, being 62 years old.  Apart from two driving charges, he has only a very stale and limited record of minor offending for which he had received small fines.  Three written characters references were tendered before the Judge.  The respondent has been diagnosed as suffering from depression since his arrest on these charges;

    -The respondent supports his wife who is unable to work because of her illness;

    -The mortgage payments on the matrimonial home cannot be paid if the respondent is incarcerated;

    -The respondent (who has never before been imprisoned) spent more than a day in police custody from the time of police attendance at his home on the morning of 27 October 2015 until being granted bail after appearing before a Magistrate at 2:15pm on 28 October 2015;

    -The respondent attended before the District Court Judge on 7 October 2016 well knowing that he faced the possibility of a substantial period of imprisonment and heard the submissions of the prosecutor urging the Judge to impose such a sentence; the respondent then awaited his fate until 11 October 2016 when he was told by the Judge that he would not be imprisoned and was released into the community to continue with his rehabilitation process;

    -The respondent was later notified on, or some time prior to, 6 December 2016 that the prosecution sought permission to appeal against his sentence;

    -On 20 February 2017 the prosecution indicated that a new ground of appeal was proposed contending that he was subject to a sentencing regime substantially more harsh than that that had been applied by the sentencing Judge.  As a result of this belated prosecution application, the respondent’s hearing date was rescheduled from 23 February to 17 March 2017, with consequential attendant anxiety and cost;

    -During this delay, the respondent was unlikely to think other than that the Director of Public Prosecutions would not have brought the application for amendment at such a late stage unless they had given the matter the most serious and conscientious consideration;

    -There are substantial mitigating features in favour of a non-custodial disposition.  The prosecution have conceded that it may be open on a re-hearing to impose a suspended sentence of imprisonment rather than a custodial sentence; and

    -The sentencing package imposed did in fact constitute severe punishment for this person.  The fine was a heavy one for him in all of the circumstances.  Further, the order cancelling his firearms licence is severe punishment for a person who has had a lifelong legitimate interest in firearms and has not previously been charged with any firearms offence.

1. It may be accepted that, particularly in a case involving possession of a class H firearm, general deterrence plays an important part in sentencing and the imposition of a non-custodial sentence in the form of a fine rather than a suspended sentence would be quite unusual.  However, there remains an available argument that, even if the present sentence is thought to be merciful, even unduly merciful, the sentence taken as a whole is not plainly shown to be beyond the purview of the Judge’s discretion in all of the circumstances of the case.

2. In any event, refusal of permission to appeal in the unusual combination of all of the circumstances discussed above is the appropriate order to be made having regard to all of those circumstances (including the matters of delay and the application of the double jeopardy principles).

3. Accordingly, I would dismiss the application for permission to appeal.

4. BLUE J.   I agree.

5. DOYLE J.I agree.