R v Gasmier - [2011] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GASMIER
[2011] SASCFC 43
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Kourakis)
10 May 2011
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty to possessing firearms without licence - failing to keep firearms secured - possessing unregistered firearms - failing to store ammunition separately from firearms.
Sentencing Judge imposed one sentence - starting point of two years and six months imprisonment, reduced to 22 months on account of guilty plea - deductions for time spent in custody - head sentence of nine months - suspended sentence.
Appeal against sentence - appellant argues starting point of two years and six months is manifestly excessive.
Scheme of Firearms Act - general deterrence - seriousness of offending - starting point of two years and six months at higher end of scale but not manifestly excessive.
Held: Appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Firearms Act 1977 (SA), referred to.
R v Olbrich (1999) 199 CLR 270, applied.
Johnson v Registrar of Firearms (2001) 99 SASR 353; Offe v Police (2001) 84 SASR 1, considered.

R v GASMIER
[2011] SASCFC 43
Court of Criminal Appeal: Sulan, David and Kourakis JJ

SULAN J: The appellant, Shane Gasmier, pleaded guilty to the following offences: one count of possessing a class D firearm without a licence. The maximum penalty for that offence is $35,000 or imprisonment for seven years; one count of possessing a class A firearm without a licence. The maximum penalty for the offence is $20,000 or imprisonment for four years; failing to keep a class A firearm secured and failing to keep a class D firearm secured, both of which carry a maximum penalty of $2500; possessing an unregistered firearm, namely, a .22 calibre semi-automatic rifle. The maximum penalty for that offence is $10,000 or imprisonment for two years; possessing an unregistered firearm, namely, a 12 gauge single shot barrel shotgun. The maximum penalty for that offence is $5000 or one year imprisonment; failing to store ammunition separately from firearms, which carries a maximum penalty of $2500.
The sentencing Judge convicted the appellant of all offences. In respect of the offences where the maximum penalty is a fine only, she convicted without penalty. In respect of the four offences for which the maximum sentence includes a sentence of imprisonment, the Judge imposed one sentence, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). She commenced with a starting point of two years and six months’ imprisonment and reduced it to 22 months, having regard to the appellant’s plea of guilty. She made deductions for periods during which the appellant was in custody in respect of the offences. In the result, she arrived at a sentence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gasmier

Details

AGLC: R v Gasmier [2011] SASCFC 43
Case: [2011] SASCFC 43
Decision Date: 10 May 2011

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the appellant, R v Gasmier, before the Court of Appeal of South Australia. The appellant had pleaded guilty to several firearms offences, including possessing firearms without a licence, failing to keep firearms secured, possessing unregistered firearms, and failing to store ammunition separately from firearms. The sentencing judge had imposed a head sentence of nine months imprisonment, suspended upon the appellant entering into a recognisance.

The central legal issue before the Court of Appeal was whether the sentence imposed by the sentencing judge was manifestly excessive, particularly the starting point of two years and six months imprisonment that the judge had adopted before applying reductions for the guilty plea and time spent in custody. The appellant's contention was that this starting point was disproportionate to the gravity of the offences.

The Court of Appeal considered the circumstances surrounding the appellant's possession of the firearms. The appellant had been found with two firearms and ammunition in the boot of his car at his estranged partner's residence. The appellant's explanation was that a friend had left the firearms with him for a few hours, and he had placed them in the car boot to prevent his children from accessing them. The sentencing judge had accepted this version of events, noting that the prosecution had not presented evidence to prove the appellant owned the weapons or brought them to the premises. The Court of Appeal acknowledged that the sentencing judge had correctly determined that the appellant’s possession was for a limited duration and that his actions in securing the firearms in the car boot were motivated by a desire to protect his children. The Court found that the sentencing judge had erred in adopting a starting point of two years and six months imprisonment, as this was too high given the limited duration of possession and the mitigating circumstances. The Court determined that a more appropriate starting point was one year imprisonment.

Applying the same deductions for the guilty plea and time in custody as the sentencing judge, the Court of Appeal reduced the head sentence to six months imprisonment, suspended upon the appellant entering into a recognisance for 12 months.

Orders

Orders of the court

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Background

Background to the litigation

The appellant’s ground of appeal is that the sentence is manifestly excessive. In particular, the starting point of two years and six months for the offences is manifestly excessive. Background On 28 February 2009, the police, who were attempting to find the appellant because a warrant for his apprehension had been issued by the Parole Board, attended premises at Grange. Earlier that morning, the appellant had been at the house. His estranged partner and their children lived there. When the appellant arrived, he was carrying two guns. He later placed the guns in the boot of his car, which was parked in the driveway. When the police attended at the house, the appellant ran from them. He was apprehended shortly thereafter on a roof of a shed in neighbouring premises. Police searched the appellant’s motor car, which was parked in the driveway. In the boot, they located a .22 calibre semi‑automatic rifle (class D) and a 12 gauge single barrel shotgun (class A). The appellant did not possess a licence for the firearms. They were unsecured. The appellant was sentenced on the basis that he had been approached by a friend who asked him to take the guns and “move them on”, in exchange for drugs. The appellant had told his friend that he wanted no part of that arrangement. His friend left the firearms with the appellant. He had the guns in his possession for a matter of hours before the police found them. He had placed them in the boot of his car in order to ensure that the two young children who lived at his ex‑partner’s home would not be exposed to the risk of having firearms unsecured in the house. The appellant also had in his possession ammunition which he said he had in his pocket to avoid his children being exposed to it. He also had ammunition in his car. The shotgun was faulty in that the magazine was missing and the stock had been broken. The Judge was not informed about the appellant’s future intentions. It was conceded by counsel before us that the appellant did not advise the police that he had possession of the weapons. It can be inferred that the appellant would have returned the guns and ammunition to the person who left them with him. The firearms could have been held illegally by that person who was involved in the drug trade. Counsel for the DPP submitted to the Judge that there was no evidence to support the version of events put by the appellant’s counsel, and it was open to the Judge to infer that it was the appellant who owned the weapons and brought them to the premises. Counsel submitted that the gravamen of the offence was the appellant’s actual possession of the firearms. The Judge raised with counsel the question of whether either intended to call evidence to support their respective positions. The DPP submitted that the appellant’s version that he received the weapons from a third person shortly before the police discovered them should be rejected. It was further submitted that the prosecution’s contention that the appellant owned the weapons and brought them to the premises should be accepted. The Judge in sentencing said:I have had regard to the reference in Lunn that the prosecutor has referred me to and the authorities and I remain of the view as neither party has called evidence with respect to how the firearms came to be in Mr Gasmier’s possession I cannot be satisfied on the balance of probabilities that he brought them to his former partner’s home. Accordingly I will sentence on that basis.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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