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 of nine months’ imprisonment. The Judge suspended the sentence upon the appellant entering into a bond to be of good behaviour for a period of 12 months.
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.
Matters of aggravation must be proved beyond reasonable doubt. Matters of mitigation which fly in the face of commonsense inferences must be established by the defendant on the balance of probabilities.[1] The Judge was in error in concluding that, because it was not proved on the balance of probabilities that the appellant brought the weapons to the premises, she would not sentence on that basis. The error favoured the appellant, so has no consequence in this case.
[1] R v Olbrich (1999) 1999 CLR 270, 281 [27].
As it transpired, because the Judge was not satisfied beyond reasonable doubt of the prosecution case on how the appellant came to be in possession of the guns, she appears to have sentenced the appellant on his account, but without making findings of fact on the balance of probabilities to that effect. The Judge appears to have thought it necessary to do so, because the prosecution had not discharged the onus. As discussed in Olbrich, a court may not be in a position to make a determination one way or the other.[2] A sentencing judge will not always be able to make positive findings on all of the factual circumstances surrounding the commission of an offence, having regard to the differential onus carried by the prosecution and a defendant respectively. In this case, there was a failure of the prosecution to satisfy its onus, and an absence of any finding that the circumstances were as contended for by the appellant. Therefore, all that was known in the sense of proved about the context of the offending, was that the appellant, who has been involved in the illicit drug trade, was in possession of unregistered firearms without a licence. Moreover, it is quite clear that the appellant did not intend to inform the police that he had possession of the firearms and did not intend to deliver them up to police. The inference can be drawn that the weapons were destined to surreptitiously remain in the hands of persons not licensed to have possession of them.
[2] Ibid 280 [24].
The appellant is 33 years of age. He has a chronic drug problem, as does his former partner. He has numerous prior convictions from 1995, which include mainly driving offences, minor drug offences, some dishonesty offences and some minor offences for assault. All his offending has been dealt with in the Magistrates Court. Prior to these offences, he has not appeared in the District Court or Supreme Court. He has received numerous sentences of imprisonment. He has no prior convictions relating to firearms.
At the time of sentencing, the appellant had made an application to the Drug Court in the Adelaide Magistrates Court in relation to outstanding drug offences. The appellant is a qualified mechanical engineer. He was in a relationship with a woman who was very opposed to drugs, and he was attempting to get his life into order.
The appellant was sentenced on 22 September 2010. At that time, he had been in custody from 28 February 2009 when he was imprisoned for three months to 27 May 2009 for breach of parole. He was released from custody for a short period and then arrested in June 2009. At the time of the offending, he was on parole.
The sentencing Judge commenced with an overall sentence of two years and six months for the four offences to which I have earlier referred. She reduced that to 22 months, having regard to the plea of guilty. She then reduced the period of 22 months by 13 months, being the time that the appellant spent in custody on these offences. The head sentence was nine months’ imprisonment. She considered that there was good reason to suspend the sentence, having regard to the appellant’s age, his lack of prior relevant offending, the fact that he had spent a considerable time in custody, as well as her acceptance that he was determined to rehabilitate himself.
Counsel for the appellant submits the starting point of two years and six months’ imprisonment is manifestly excessive. In my view, the starting point of two years and six months cannot, in the circumstances of this offending, be regarded as manifestly excessive. The appellant received the firearms from an associate or a friend. He was holding the firearms for that friend. The fact that he may have been in possession of them only for a short time is of no great moment, as it is clear that he did not intend to report to the police that he had the firearms.
In Johnson v Registrar of Firearms,[3] Gray J considered the scheme of the Act. He observed that the aim of the Act is to ensure public safety. In Offe v Police,[4] Gray J said:
The Firearms Act was considered in Johnson v Registrar of Firearms.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.
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.
…
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. …[5] (References omitted)
[3] (2001) 99 SASR 353.
[4] (2001) 84 SASR 1.
[5] Ibid 9 [23] – [24], [26].
Nowadays, firearms are used by offenders in robberies which are prevalent in our society. It is an unfortunate regular occurrence that persons who are addicted to drugs commit armed robberies to obtain monies to finance their drug habit. Shootings have also occurred at popular entertainment venues and, with disturbing frequency, in private premises. Many such shootings are drug related.
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.
I accept that a starting point of two years and six months’ imprisonment is at the higher end of the scale for these offences, but I do not consider it to be manifestly excessive.
I agree with the approach of the sentencing Judge that, having regard to the period that the appellant had spent in custody, it was inappropriate to require him to spend a further period in custody. The Judge was then required to arrive at a sentence to achieve the result that the appellant be released from custody. The effect of imposing a nine month suspended sentence was the most satisfactory way of achieving a similar result to a sentence of 22 months with a non-parole period of 13 months.
The decision to suspend the sentence was well within the Judge’s discretion. I would dismiss the appeal.
DAVID J: I would dismiss the appeal for the reasons given by Sulan J.
KOURAKIS J: I would dismiss the appeal. I agree with the reasons of Sulan J.