R v Fusco

Case [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;

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R v Fusco [2017] SASCFC 47
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[2017] SASCFC 47
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CaseChat Overview and Summary

The case of *R v Fusco* concerned an application by the prosecution for permission to appeal against a sentence imposed on the respondent. The respondent had faced charges relating to firearms offences, and the sentencing judge had imposed monetary penalties and other sanctions, but not a custodial sentence. The prosecution sought to overturn this decision and have a custodial sentence imposed.

The central legal issue before the Court of Criminal Appeal was whether, in light of the principles governing appeals against sentence and the specific circumstances of the case, permission to appeal should be granted. This involved considering the jurisprudential background of sentencing, particularly the discretion afforded to sentencing judges and the concept of double jeopardy, in the context of a Crown appeal against a non-custodial sentence. The court also had to determine the correct approach to the suspension of sentences under section 38 of the Sentencing Act, which requires an inquiry into whether there is "good reason" to suspend, a determination to be made solely on the facts of the particular case.

The court reasoned that while the offences were serious, a range of cumulative considerations militated against granting permission to appeal. These included the unplanned nature of the possession of the pistols, the less serious nature of the rifle charges, the respondent's advanced age and limited prior offending, his depression, his role as a caregiver for his ill wife, the potential impact of incarceration on mortgage payments, the anxiety and cost caused by the prosecution's delayed application for appeal, and the fact that the imposed sentence, including a heavy fine and the cancellation of his firearms licence, constituted severe punishment for him. The court noted that the prosecution had conceded that a suspended sentence might be an alternative to immediate imprisonment.

Ultimately, the Court of Criminal Appeal refused to grant permission to appeal. The court concluded that, despite the seriousness of the offending, the cumulative mitigating factors and the principles of double jeopardy weighed against interfering with the sentencing judge's disposition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J BLUE J (dissent) DOYLE J
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 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.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J, DOYLE J

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 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). 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.