R v Gill - [2019] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GILL
[2019] SASCFC 22
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Bampton and The Honourable Justice Hinton)
8 March 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL
Application for permission to appeal against sentence – defendant sentenced for firearm offending – where sentencing Judge afforded no credit for time spent on home detention bail – where defendant was on parole during period of home detention bail – whether the Judge ought to have afforded credit for time spent on home detention bail.
Held, per Bampton J (Kelly J agreeing, Hinton J dissenting), refusing permission to appeal – it was appropriate for the Judge to decline to make an allowance for the time spent on home detention.
Firearms Act 1977 (SA) s 5, s 11; Correctional Services Act 1982 (SA) div 6A, sub-div 1, s 66, s 69, s 74A; Sentencing Act 2017 (SA) s 49; Bail Act 1985 (SA) s 10A, referred to.
R v Penny [2012] SASCFC 16, applied.
R v Tsonis (2018) 131 SASR 416, discussed.
R v Penny [2012] SASCFC 16; R v Franceschini (2015) 123 SASR 396; R v Filipoponi (2016) 126 SASR 464; Wong v The Queen (2001) 207 CLR 584, considered.

R v GILL
[2019] SASCFC 22
Court of Criminal Appeal: Kelly, Bampton and Hinton JJ

KELLY J: I would refuse permission to appeal for the reasons given by Bampton J.
BAMPTON J: Stuart Gill pleaded guilty to three counts of possessing a firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (SA) (“the Firearms Act”), on the morning of his trial in the District Court. Mr Gill was sentenced to an immediate custodial sentence of three years with a non‑parole period of two years.
Mr Gill seeks permission to appeal on the ground that the sentencing Judge erred in imposing a sentence that failed to give proper regard for time he spent on home detention bail. I would refuse permission to appeal for the reasons that follow.
Background
Circumstances of the firearm offending
On 24 September 2016, police attended and searched an address at Lonsdale pursuant to the Firearms Act. At the address was an industrial shed that had been set up as living quarters. When police arrived, Mr Gill was present with his partner and young daughter. Following a search of the premises, police located a Lithgow sawn-off bolt action rifle underneath a three-seater couch. This was the subject of count 1. A Model Guns Corporation imitation revolver was located in the drawer of a cabinet. This was the subject of count 2. Another Lithgow bolt action…

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 Gill

Details

AGLC: R v Gill [2019] SASCFC 22
Case: [2019] SASCFC 22
Decision Date: 8 March 2019

CaseChat Overview and Summary

This case concerned an application for permission to appeal against a sentence imposed on Mr Stuart Gill for firearm offending. Mr Gill argued that the sentencing judge erred by not affording him credit for the period he spent on home detention bail. The application was heard by the Full Court of the Supreme Court of South Australia, with Justices Kelly and Bampton forming the majority, and Justice Hinton dissenting.

The central legal issue before the court was whether Mr Gill ought to have received credit for the time spent on home detention bail, particularly given that he was also on parole during that period. This required the court to consider the interplay between home detention bail and existing parole conditions when determining the appropriate sentence for new offences.

The majority, per Bampton J, held that the sentencing judge was correct to decline to make an allowance for the time spent on home detention bail. Their reasoning, supported by Justice Kelly, was that Mr Gill was serving his first parole at the same time as he was subject to the home detention bail agreement. Citing *R v Penny*, the court indicated that it may be inappropriate to allow credit for home detention when a person is simultaneously on parole, as the parole itself represents the serving of a sentence of imprisonment. Therefore, the court refused permission to appeal.

Orders

Orders of the court

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Background

Background to the litigation

Mr Gill seeks permission to appeal on the ground that the sentencing Judge erred in imposing a sentence that failed to give proper regard for time he spent on home detention bail. I would refuse permission to appeal for the reasons that follow.BackgroundCircumstances of the firearm offending On 24 September 2016, police attended and searched an address at Lonsdale pursuant to the Firearms Act. At the address was an industrial shed that had been set up as living quarters. When police arrived, Mr Gill was present with his partner and young daughter. Following a search of the premises, police located a Lithgow sawn-off bolt action rifle underneath a three-seater couch. This was the subject of count 1. A Model Guns Corporation imitation revolver was located in the drawer of a cabinet. This was the subject of count 2. Another Lithgow bolt action rifle was located under a single seat couch. This was the subject of count 3. Mr Gill was arrested, charged, taken into custody and refused bail.The 2013 bond As at the date of his arrest on 24 September 2016, Mr Gill was subject to a suspended sentence bond he had entered into before the District Court on 31 October 2013. Mr Gill had been sentenced to two years’ imprisonment with a non-parole period of 12 months for trafficking in a controlled drug. The sentence was suspended upon Mr Gill agreeing to enter into a three-year good behaviour bond (“the 2013 bond”). Mr Gill had just over five weeks remaining on the bond when he was taken into custody on 24 September 2016 for the three firearm charges.Committal for trial On 4 April 2017, following a ruling in the Magistrates Court that there was a case to answer in respect of the firearm charges, Mr Gill was committed to trial in the District Court.The 2017 sentence On 25 May 2017, Mr Gill was sentenced to four months and six days’ imprisonment by the District Court for six counts of driving while disqualified. Mr Gill admitted this offending breached the 2013 bond. The suspension of the sentence underlying the 2013 bond was revoked and Mr Gill was ordered to serve the two‑year sentence of imprisonment. The sentence of four months and six days for driving while disqualified was ordered to be served cumulatively on the two‑year sentence. A non-parole period of one year was fixed. The sentence of two years, four months and six days was backdated to 26 September 2016 (“the 2017 sentence”).Mr Gill’s arraignment and the application for home detention bail Mr Gill pleaded not guilty to the three firearm charges at his arraignment in the District Court on 26 May 2017. On 17 August 2017, while he was serving the 2017 sentence and on remand in respect of the firearm charges, Mr Gill made application for home detention bail. As Mr Gill was charged with firearm offending, he was a prescribed applicant.[1] Mr Gill submitted that special circumstances existed such that he should be granted bail pending determination of the firearm charges. The District Court was informed that Mr Gill’s non-parole period in respect of the 2017 sentence was about to expire in September 2017. Mr Gill had, in the interim, sought to make application for early release on home detention through the Department for Correctional Services.[2] However, he had not been able to make the application because he was remanded in respect of the firearms charges [1] Bail Act 1985 (SA) s 10A(2).[2] Correctional Services Act 1982 (SA) Div 6A, subdiv 1.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In R v Penny,[5] Gray J commented that it may be inappropriate to allow credit for home detention when a person is on parole at the same time he is on home detention:The Judge as noted above did not give further credit for time on home detention. The Judge’s reason for not giving credit was described by counsel to be ambiguous. It would appear that an explanation may lie in the fact that defendant was on parole at the same time as he was on home detention. While on parole, the defendant was serving the sentence of imprisonment to which that parole attached. It may be thought to be inappropriate in those circumstances to allow credit for the home detention in respect of the present sentence.(Emphasis added)[5] [2012] SASCFC 16 at [23].Conclusion Having regard to s 69 and s 74A of the Correctional Services Act, as Mr Gill was serving the first parole at the same time as he was subject to the home detention bail agreement, it was appropriate for the Judge to decline to make an allowance for the time spent on home detention. Accordingly, I would refuse permission to appeal. HINTON J: On 26 July 2018 the applicant, Stuart Gill, was sentenced to imprisonment for three years after pleading guilty the day after his trial was due to commence to three counts of possessing a class H firearm without a licence (the firearms offences).[6] A non-parole period of two years was fixed. Both the head sentence and non-parole period commenced on the day of sentence.[6] Contrary to s 11(1) of the Firearms Act 1977 (SA). The applicant seeks permission to appeal against his sentence on the ground that the sentencing Judge “failed to give proper credit for time [the applicant] spent … on home detention bail”. The applicant was released on home detention bail on 26 September 2017. By the time he was sentenced he had been on home detention bail for 303 days. Prior to 26 September 2017 and since his arrest on 24 September 2016 the applicant was also in custody on other matters. In the course of being sentenced for those other matters he was given credit for the entirety of the time he had spent on remand in custody save for two days. As mentioned this application is, however, confined to the question of whether the Judge who sentenced the applicant for the firearms offences was right not to afford him any credit for the time he spent on home detention bail between 26 September 2017 and 26 July 2018. In sentencing the applicant the sentencing Judge said:You are a 31-year-old man, currently residing with your mother, stepfather and brother in the southern suburbs of Adelaide. You were granted home detention bail in August 2017 and have actually been on home detention bail since 24 September 2017 when you were released from custody on other matters.The grant of home detention bail was deceptive on your part because it was partly on the basis that the charges here before me were contested but you knew you were guilty all the time because you eventually pleaded guilty before me.

Ratio Decidendi

Legal Principle Established

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