R v Grundy - [2021] SASCA 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v GRUNDY
[2021] SASCA 4
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
3 March 2021

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Crown application for permission to appeal against sentence.
The respondent (Mr Grundy) was found guilty of one count of possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA). As the offence involved a category H firearm, it carried a maximum penalty of $35,000 or imprisonment for seven years, and satisfied the definition of a “serious firearm offence”.
The respondent was sentenced to a term of imprisonment of nine months (reduced from 15 months to reflect time spent in custody and on home detention bail). The sentencing Judge found the respondent to be a suitable candidate for a home detention order, and ordered that the respondent serve his period of imprisonment on home detention pursuant to the discretionary power in s 71 of the Sentencing Act.
The issue sought to be raised by the Director in his proposed appeal is the availability of an order under s 71 that a sentence of imprisonment in respect of a serious firearm offence be served on home detention. Section 70(1)(b)(ii)(D) of the Sentencing Act precludes home detention for a defendant who is being sentenced for an offence in respect of which an Act “expressly prohibits the reduction, mitigation and substitute of penalties for that offence”. The Director contends that the provision in s 51(1)(c) to the effect that the general statutory power under s 25 to reduce, mitigate or substitute penalties does not apply when sentencing serious firearm offenders for serious firearm offences, is sufficient to engage s 70(1)(b)(ii)(D) and hence preclude the availability of a home detention order.
Held, per Doyle JA (Kelly P and Bleby JA agreeing), dismissing the application for permission to appeal:
1. The disapplication of s 25 of the Sentencing Act by s 51(1)(c) merely prevents the utilisation of the general power to reduce, mitigate or substitute, and is not an express prohibition against the reduction, mitigation or substitution of penalties or sentences. As such, the disqualification of s 25 by s 51(1)(c) does not trigger the preclusionary effect of s 70(1)(b)(ii)(D), and leaves open and available the court’s discretionary power under s 71 to make a home detention order.
Sentencing Act 2017 (SA) ss 25, 49, 50, 51, 69, 70, 71, 79, 81, 96; Firearms Act 2015 (SA) ss 9(1), 9(4); Criminal Law (Sentencing) Act 1988 (SA) s 18; Criminal Law Consolidation Act 1935 (SA) ss 13, 19A, 19AB, 19AC, 19AD, 29, 86A; Road Traffic Act 1961 (SA) ss 43, 45, 47, 47B, 47BA, 47E, 47EAA, 47I, referred to.
R v Dell (2016) 126 SASR 571; Police v Berzins (2011)…

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 Grundy

Details

AGLC: R v Grundy [2021] SASCA 4
Case: [2021] SASCA 4
Decision Date: 3 March 2021

CaseChat Overview and Summary

The case of *R v Grundy* concerned an application for permission to appeal by the Director of Public Prosecutions against a sentencing order made by a judge in South Australia. The respondent had been found guilty of possessing a firearm without a licence, a serious firearm offence, and was sentenced to nine months imprisonment. The sentencing judge had exercised discretion under section 71 of the *Sentencing Act 2017* (SA) to order that the sentence be served by way of home detention. The Director contended that section 70(1)(b)(ii)(D) of the Act precluded the imposition of a home detention order for such an offence.

The central legal issue before the court was whether section 70(1)(b)(ii)(D) of the *Sentencing Act 2017* (SA) operated to prohibit the making of a home detention order when sentencing an offender for a serious firearm offence. This required an interpretation of the interplay between section 70(1)(b)(ii)(D) and section 51(1)(c) of the Act, which deals with the narrowing of sentencing options for serious firearm offences.

The court, per Doyle JA, dismissed the application for permission to appeal. It reasoned that the disapplication of section 25 of the *Sentencing Act* by section 51(1)(c) was not an express prohibition against the reduction, mitigation, or substitution of penalties. Instead, it merely prevented the utilisation of the general power under section 25. Consequently, the disqualification of section 25 by section 51(1)(c) did not trigger the preclusionary effect of section 70(1)(b)(ii)(D). The court held that this left open the court's discretionary power under section 71 to make a home detention order, as such an order is made under specific powers rather than the general power under section 25. The court also noted that any real ambiguity in a penal provision should be resolved in favour of the accused.

The Director's application for permission to appeal was dismissed.

Orders

Orders of the court

Held, per Doyle JA (Kelly P and Bleby JA agreeing), dismissing the application for permission to appeal:

1. The disapplication of s 25 of the Sentencing Act by s 51(1)(c) merely prevents the utilisation of the general power to reduce, mitigate or substitute, and is not an express prohibition against the reduction, mitigation or substitution of penalties or sentences. As such, the disqualification of s 25 by s 51(1)(c) does not trigger the preclusionary effect of s 70(1)(b)(ii)(D), and leaves open and available the court’s discretionary power under s 71 to make a home detention order.

Background

Background to the litigation

The issue raised by the proposed appeal is whether the sentencing Judge erred in ordering that the respondent’s sentence of imprisonment in respect of a serious firearm offence be served on home detention pursuant to s 71 of the Sentencing Act 2017 (SA); and in particular, whether s 70(1)(b)(ii)(D) of that Act precluded the imposition of a home detention order for such an offence.Background Following a trial before judge and jury, the respondent was found guilty of one count of possession of a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA). As the offence involved a category H firearm, it carried a maximum penalty of $35,000 or imprisonment for seven years.[1][1] Firearms Act 2015 (SA), s 9(4)(b). The respondent was sentenced to a term of imprisonment of nine months (reduced from 15 months to reflect time spent in custody and on home detention bail). As the period of imprisonment was less than 12 months, the sentencing Judge was precluded from fixing a non-parole period. The respondent did not ask the sentencing Judge to consider suspending the sentence of imprisonment. Rather, he invited his Honour to exercise the Court’s discretion under s 71 of the Sentencing Act to order that the sentence of imprisonment be served by way of home detention. The prosecution did not advance a submission that the Court had no power to impose a home detention order when sentencing for a serious firearms offence. Instead, the prosecution submission was that the respondent was not a suitable candidate for home detention. The factual basis upon which the respondent fell to be sentenced was summarised by the sentencing Judge in the following terms:On 3 January 2019, police attended at an address at Paralowie. They observed a silver Subaru pull into the driveway and then stop in the driveway. You were the driver and only occupant of that vehicle. The police conducted a search of that vehicle. On that search they located a green and grey style backpack that was on the front passenger seat. In that backpack the imitation self-loading pistol was located. As the driver of the vehicle, you were the person in charge of the vehicle and therefore in possession of the vehicle for the purposes of s 6(2) of the Firearms Act. I accept the submission from your counsel that you did not have any intention to use the imitation gun. In addition to accepting the submission of the respondent’s counsel to the effect that the respondent did not intend to use the imitation gun, the sentencing Judge also accepted that he was not able to find beyond reasonable doubt that the respondent had knowledge of the presence of the firearm found in the Subaru vehicle that he was driving. The sentencing Judge found that the respondent’s possession of the firearm satisfied the definition of a “serious firearm offence” for the purposes of s 49 of the Sentencing Act on two bases: first, that the offence involved the carriage of a category H firearm; and secondly, that the commission of the offence occurred whilst the respondent was on bail.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I conclude by observing that the conclusion I have reached in relation to home detention orders (namely, that s 70(1)(b)(ii)(D) does not preclude their availability when sentencing a serious firearm offender for a serious firearm offence) would seem to apply equally to intensive correction orders, given the equivalence in wording between s 70(1)(b)(ii)(D) and s 80(1)(b).Conclusion and order For the reasons given, I do not accept the Director’s contention that, when sentencing the respondent as a serious firearm offender for a serious firearm offence, the sentencing Judge was precluded by s 70(1)(b)(ii)(D) from making a home detention order. While the statutory construction task underpinning this conclusion was not straightforward, the ultimate failure of the Director’s contention makes it appropriate to dismiss his application for permission to appeal. I do not consider it appropriate to grant permission in respect of a Crown appeal in circumstances where that appeal will ultimately fail on the merits. I would therefore order that the Director’s application for permission to appeal be dismissed. BLEBY JA: I agree, for the reasons given by Doyle JA, that the application for permission to appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

To the extent that there remains some ambiguity in the construction of, and interaction between, ss 70(1)(b)(ii)(D) and 51(1)(c) of the Sentencing Act, authority supports its resolution in favour of the respondent. As Kiefel CJ and Keane J recently observed in the analogous context of construing offence provisions in R v A2; R v Magennis; R v Vaziri:[12]A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any “loose” construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.The operation of the s 51 scheme for the narrowing of sentencing options for serious firearm offending[12] R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106 at [52] (omitting footnotes). I have earlier made some observations in relation to the s 51 scheme for the narrowing of sentencing options in respect of any sentence to be imposed upon a serious firearm offender for a serious firearm offence. I do not consider that the approach I have taken to the issue of statutory construction posed by the Director’s proposed appeal gives rise to any incongruity in the operation of s 51. To the contrary, I consider that it gives effect, in a coherent and practical manner, to Parliament’s obvious intention to narrow the sentencing options available to a court when sentencing a serious firearm offender for a serious firearm offence. By way of overview, s 51(1)(a) requires the imposition of a sentence of imprisonment when that is one of the available sentencing options in the relevant offence provision. It thus precludes the imposition of a fine, even if the offence provision would otherwise have permitted it. By reason of s 51(1)(b), the court is precluded from ordering the suspension of the sentence of imprisonment unless it is appropriate to make a declaration of the type contemplated by s 51(2). In this way, the threshold or test for the suspension of the sentence of imprisonment is higher than would otherwise have been applicable under s 96 (which requires merely the existence of “good reason” to suspend). And by reason of s 51(1)(c), the court is precluded from applying s 25 so as to reduce or substitute the applicable sentence by, for example, imposing a fine or community service order. If the court does not suspend the sentence of imprisonment, then in my view that leaves open the possibility of a home detention order or intensive correction order. In making any such order, the court would be making an order under its specific powers in that respect under ss 71 or 81, rather than the (precluded) general power to reduce, add or substitute under s 25. Further, given that the Sentencing Act treats home detention orders and intensive correction orders as sentences of imprisonment, albeit to be served in the community, the making of a home detention or intensive correction order would not offend the s 51(1)(a) prescription that the court impose a sentence of imprisonment.