R v Kokotis

[2021] SASCA 80

Supreme Court of South Australia

(Court of Appeal: Criminal)

R v KOKOTIS

[2021] SASCA 80

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Bleby and the Honourable Justice Blue)

17 August 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

Application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.

The respondent pleaded guilty to an aggravated offence of threatening harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA). The circumstances of aggravation alleged were that the respondent committed the offence while in the company of another and that the two men used or threatened to use offensive weapons, namely baseball bats, to commit or when committing the offence. The count in respect of which the respondent’s plea was accepted in satisfaction of the charge did not particularise the use or threatened use of a firearm.

Nevertheless, prior to the respondent’s guilty plea, a resolution was reached between the respondent and the prosecution on the premise that the respondent had used multiple weapons and there was to be a dispute of fact over whether or not the second weapon was a firearm.

The judge proposed to resolve the dispute by viewing a video recording of the incident taken by a passer-by on his phone. The parties acquiesced in this course. The judge concluded, having viewed the recording, that she could not be satisfied beyond reasonable doubt that the item in the respondent’s hand was a firearm.

The judge sentenced the respondent to a period of imprisonment of two years, eight months and 12 days.  This incorporated a discount of 10 percent from a starting point of three years, on account of the respondent’s guilty plea.  She set a non-parole period of 10 months. She ordered that the head sentence be served on home detention, on specified conditions.

The primary issue on appeal was whether, in determining whether she was satisfied that the object was a firearm for the purposes of the definition of ‘offensive weapon’ within the meaning of s 5 of the Criminal Law Consolidation Act 1935 (SA), the judge asked the wrong question.

Held (by the Court), granting permission to appeal and allowing the appeal:

1. The judge failed to apply the definition of ‘imitation firearm’ in s 5 of the Criminal Law Consolidation Act 1935 (SA) to her consideration of the evidence.

2.  Given the terms of the agreed resolution, the acquiescence by the defence in the course taken and the significance of the error in point of principle in the judge’s approach to the definitions, this is one of those exceptional cases where permission to appeal should be granted.

3.  The sentence is set aside.

4.  The matter is remitted for resentencing before a different judge.

Criminal Law Consolidation Act 1935 (SA) ss 5, 5AA(1), 5AA(3), 5AA(6), 19(2); Criminal Procedure Act 1921 (SA) ss 128, 181; Firearms Act 2015 (SA) s 4; Firearms Regulations 2017 (SA) reg. 4(1), referred to.

Ilich v The Queen [2021] SASCA 45; Griffiths v The Queen (1977) 137 CLR 293; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227, applied.

The Queen v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2003) 212 CLR 629, considered.

R v KOKOTIS
[2021] SASCA 80

Court of Appeal – Criminal:    Kelly P, Bleby JA and Blue AJA

1. THE COURT:          This is an application by the Director of Public Prosecutions for permission to appeal against sentence. The resolution of the appeal depends primarily on the interpretation of the judge’s sentencing remarks, when sentencing the respondent for one count of aggravated threaten harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). Specifically, the Director complains that, on a dispute of facts as to whether an object used by the respondent in the course of the commission of the offence was an ‘offensive weapon’ within the meaning of s 5 of the CLCA, the judge asked the wrong question.

2. The complaint concerns that part of the definition of ‘offensive weapon’ in s 5 of the CLCA that concerns firearms and imitation firearms. The definition of ‘offensive weapon’ provides:

   offensive weapon means—

   (a)     an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including—

   (i)a firearm or imitation firearm (ie an article intended to be taken for a firearm); or

   (ii)an explosive or an imitation explosive (ie an article or substance intended to be taken for an explosive; or

   (b)    an article or substance that a person has—

   (i)for the purpose of causing personal injury or incapacity; or

   (ii)in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity;

3. The definition distinguishes between an object (article or substance):

   ·assessed by reference to its objective characteristics or purpose (a firearm, explosive or other object having the purpose of causing or threatening to cause personal injury or incapacity); and

   ·assessed by reference to intention or perception (intended to be taken for a firearm or explosive or deployed in circumstances in which another person reasonably apprehends it is deployed for the purpose of causing personal injury or incapacity).

4. The first category essentially involves the object being an offensive weapon as a matter of reality; whereas the second category involves the object having the perception or intended to create the perception of its being an offensive weapon even though it may not in reality be one. Indeed, if the article or substance falls into the first category, there will be no need for the prosecution to have recourse to the second category.

5. Section 5 of the CLCA defines a ‘firearm’ to have the same meaning as in the Firearms Act 2015 (SA) (‘Firearms Act’), s 4 of which in turn defines ‘firearm’ as follows:

   firearm means—

   (a)     a device designed to fire bullets, shot or other projectiles by means of burning propellant or by means of compressed air or other compressed gas; or

   (b)     a device of a kind declared by the regulations to be a firearm,

   and includes a receiver of a firearm and any device or devices which (whether or not rendered temporarily or permanently unusable) would, if in working order, or if assembled and in working order, be a firearm within the meaning of this definition but does not include—

   (c)     an antique firearm; or

   (d)     a device of a kind declared by the regulations not to be a firearm;

6. Regulation 4(1) of the Firearms Regulations 2017 (SA) (‘Firearms Regulations’) declares a regulated imitation firearm to be a firearm.  Regulation 4(2) then defines a regulated imitation firearm:

   (2)     A regulated imitation firearm is a device that—

   (a)     can be adapted to function as a firearm with a moderate exercise of effort and skill; and

   (b)     is constructed of material (or materials) of sufficient strength such that it would, if it were adapted to function as a firearm, be capable of sustaining the firing of ammunition, paint‑balls, gel balls, airgun pellets or other similar projectiles,

   but does not include an item determined by the Registrar under subregulation (3) not to be a regulated imitation firearm.

7. It follows that there are three distinct firearm-related terms incorporated into the CLCA definition of offensive weapon:

   ·‘firearm’ (defined by the Firearms Act);

   ·‘regulated imitation firearm’ (defined by the Firearms Regulations to be a ‘firearm’); and

   ·‘imitation firearm’ (defined by the CLCA).

8. The definition of ‘firearm’ is a creature of the Firearms Act. The term ‘imitation firearm’, by contrast, is a creature of the CLCA only. It has its own definition: an article intended to be taken for a firearm. That definition incorporates, in the first instance, a question of intention. There are many sorts of items, including some toys, a pen or even a finger, that are not firearms but may in given circumstances be intended to be taken as a firearm and thereby meet the definition of ‘imitation firearm’ in the CLCA.

9. The phrase, ‘an article intended to be taken for a firearm’ will usually encompass an actual firearm (although in exceptional circumstances that will not be so).  It will only be necessary to consider whether an object is an imitation firearm, and for that reason an offensive weapon, if the object is not proved to be an actual firearm.

10. The absence of the object in evidence or an expert ballistics report may well, in many circumstances, prevent a conclusion that an item is a firearm within the definition of the Firearms Act or Firearms Regulations. However, such an absence will not be fatal to a finding that an item, the existence of which there is some evidence, is an ‘imitation firearm’ within the meaning of the CLCA. That an item was intended to be taken for a firearm in a given circumstance may well be provable on a purely circumstantial case.

11. The relevance of an object being an ‘offensive weapon’ is that, under s 5AA(1)(b) of the CLCA, the circumstance that an offender used or threatened to use an offensive weapon to commit or when committing the offence is a circumstance that gives rise to an offence being an aggravated offence under s 5AA, which in turn gives rise to a higher maximum penalty being prescribed by sub-s 19(2) of the CLCA. The maximum penalty for a basic offence under sub-s 19(2) of the CLCA is imprisonment for five years; whereas the maximum penalty for an aggravated offence is imprisonment for seven years.[1]

    [1]     The maximum penalty is imprisonment for eight years if the circumstance of aggravation is one contained in paragraph (c), (ca) or (ka) of sub-s 5AA(1) but this can be ignored for present purposes because those circumstances of aggravation were not applicable.

12. It has not been authoritatively determined by this Court whether sub-s 19(2) creates a single offence with different maximum penalties depending on the existence of a circumstance of aggravation or two separate offences being a basic offence and an aggravated offence. Assuming that it is the latter, a defendant will be guilty of the aggravated offence if any one circumstance of aggravation is proved beyond reasonable doubt. If the defendant admits commission of the offence with a circumstance of aggravation, the defendant will be guilty of the aggravated offence. If there is a dispute about the details of the aggravating circumstance (but no dispute about its existence) or a dispute about whether there are additional aggravating circumstances, that dispute will fall to be resolved on a dispute of facts hearing (as opposed to a trial to determine guilt of the aggravated offence).

13. The general law recognises that, in relation to any offence, there will often be aggravating circumstances that tend to increase the appropriate penalty or mitigating circumstances that tend to decrease the appropriate penalty. In general, the onus of proof under the general law of existence of an aggravating circumstance lies on the prosecution beyond reasonable doubt.[2] Section 5AA of the CLCA is overlaid on the general law concepts of aggravating and mitigating circumstances.

    [2]     The Queen v Olbrich (1999) 199 CLR 270 at [24]-[27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ; Weininger v The Queen (2003) 212 CLR 629 at [19]-[24] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

14. These general law concepts continue to apply to the determination of the appropriate penalty for a particular offence, whereas s 5AA prescribes the circumstances that cause an offence to be an aggravated offence, with a different maximum penalty. (The maximum penalty is, in turn, one of the factors taken into account under the general law in determining the appropriate penalty for a particular offence.) Accordingly, if an offence is committed using or threatening to use an offensive weapon, not only is the maximum penalty higher, but also the appropriate penalty for the particular offence will be higher than it would have been in the absence of that aggravating circumstance.

15. This overlay is explicitly recognised by s 5AA(6) of the CLCA, which provides:

    This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence.

    The charge, the allegations and the plea

16. The Director of Public Prosecutions laid an ex officio information in the District Court charging the respondent, Mathew Kokotis, jointly with Stilianos Orfanidis, with four offences. The alleged victim in Counts 1 to 3 was Dylan Danaher. Count 1 charged the respondent and Mr Orfanidis with an aggravated offence of threatening harm contrary to s 19(2) of the CLCA. The circumstances of aggravation alleged were that they committed the offence while in the company of one another and that they used or threatened to use offensive weapons, namely baseball bats, to commit or when committing the offence.

17. Count 2 on the information charged the respondent and Mr Orfanidis with the offence of aggravated threatening life.  The circumstances of aggravation alleged were that they committed the offence while in the company of one another and that they used or threatened to use an offensive weapon, namely a firearm, to commit or when committing the offence.

18. Count 3, being a charge of aggravated threaten harm, was charged in the alternative to Count 2.  The particulars of aggravation charged were the same as in Count 2.  Count 4 was a charge of aggravated assault against Jessica Naulty, arising out of the same incident.

19. The allegations were as follows. At approximately 6:20 pm on 14 October 2019, Mr Danaher and Ms Naulty arrived at Ms Naulty’s address in a Volkswagen hatchback. Ms Naulty’s young sons were passengers in the rear of the vehicle. Shortly after, the respondent and Mr Orfanidis arrived at the address in a white Subaru. Mr Orfanidis was driving and the respondent was in the front passenger seat.

20. Mr Orfanidis parked the car outside Ms Naulty’s house, blocking access to the driveway. The two men exited the Subaru carrying baseball bats. When the respondent saw that Ms Naulty was with another man, he became angry. An observer, Mr Freeman, heard one of the men yell ‘I want my bag, give me my fucking bag’. At that point Mr Freeman, began to record the altercation on his mobile phone.

21. The men approached Mr Danaher and Ms Naulty in the driveway, yelling and wielding their baseball bats. Mr Danaher was still seated in the driver’s side front seat of the Volkswagen. The respondent tried to get to the driver’s window, but Ms Naulty repeatedly placed herself between the respondent and Mr Danaher. The respondent continued to push Ms Naulty out of the way, trying to get to Mr Danaher. Mr Orfanidis was in the immediate vicinity, also holding a baseball bat.

22. The respondent continued to ask for his bag. Ms Naulty said, ‘I don’t have the bag’. One of the men said, ‘I’m going to shoot you now’. At that point both men returned to the Subaru.

23. The respondent returned to the front passenger door of the Subaru, opening the door and rummaging around in the vehicle. He momentarily moved away from the vehicle, at which point he was wearing a black glove over his right hand. He returned to the front passenger door and Ms Naulty approached him saying ‘Matt, I’ll get your bag’. At the same time, Mr Danaher emerged from the driver’s seat of the Volkswagen and stood next to the open driver’s side door of that car.

24. The respondent then moved away from the Subaru, now carrying an object. The prosecution alleged that this item was or appeared to be a silver pistol-style handgun. It was not disputed that the recording captured the respondent with something in his hand, but the respondent disputed that it was proved beyond reasonable doubt that it was a handgun.

25. The respondent approached Mr Danaher while raising the object and pointed it towards Mr Danaher’s head. Mr Danaher ducked and weaved evasively. The respondent pursued Mr Danaher around the vehicle, periodically pointing the object at Mr Danaher. Ms Naulty was saying, ‘Matt’, repeatedly and said, ‘don’t do this in front of my son please’. The respondent then got back into the front passenger seat of the Subaru with Mr Orfanidis and they drove away from the premises.

26. The information was expressed to be for arraignment on 7 August 2020. On 31 July 2020, the solicitor for the respondent sent an email to the prosecutor expressing the view that Count 4, the charge of assault against Ms Naulty, could not be sustained. She then wrote:

    What if he pleaded to Agg Threaten Harm against Danaher, aggravated by use of a weapon and in company, and then we can have a disputed facts hearing about whether it’s a firearm or not?

27. On 5 August 2020, the prosecutor responded in the following terms:

    I confirm that the matter can resolve by way of a plea to Agg Threaten Harm against Danaher, aggravated by the use of multiple weapons (i.e the baseball bat and some other weapon), being in company with another and we have a disputed fact hearing about whether or not the second weapon was a firearm. That plea would be accepted in satisfaction of the offending alleged against you client.

    Please confirm whether or not you still have those instructions and what your client’s plea will be on Friday.

28. At the arraignment on 7 August 2020, Senior Counsel for the respondent commenced in the following way:

    This matter has resolved in the sense that Mr Kokotis will plead guilty to count 1 on the indictment and the others will be withdrawn or accepted in satisfaction. I’ll be asking that the allocutus be given and the matter set down for sentencing submissions.

    There may be a dispute but if there is a dispute it will be confined to submissions on the papers.  In other words, there won't be any evidence so there is no reason why the matter can't proceed as though it is a plea.

29. By this statement of his counsel, if not before, the respondent accepted the terms of resolution proposed in writing by the prosecutor on 5 August 2020.

30. Following some short submissions on administrative matters, the prosecutor then said:

    I can indicate in relation to the plea, I’ll be accepting that in satisfaction of the offending in relation to Mr Kokotis.

31. The judge then clarified that this was a plea to Count 1 in satisfaction of the information, which the prosecutor confirmed. Senior Counsel for the respondent then said to the respondent, who was present via video link, that the associate would read to him Count 1 on the information and that if he entered a plea of guilty to that charge, the other charges would be discontinued. The respondent acknowledged that he understood. The respondent then pleaded guilty to the charge of Aggravated Threatened Harm. The only offensive weapons particularised against both the respondent and Mr Orfanidis in Count 1 were baseball bats.

32. The judge asked the prosecutor if she accepted the plea in satisfaction of the information as far as the respondent was concerned.  The prosecutor’s answer was as follows:

    It is.  I have just noticed one matter.  It relates to what there might potentially be a dispute about and that is whether or not there was the use of a firearm.  That is particularised in count 3, not in count 1.  I simply raise it because that is the matter that there may well be a dispute about and it really should be part of count 1.

1. The judge queried the non-inclusion of a firearm as a particular to Count 1, and noted that it had been included as a particular to Count 3.  She confirmed that the prosecution was not proceeding with Count 3, and the prosecutor answered:

   No, I’m not but the resolution is on the basis that there were multiple weapons used.  It is the Crown case that one of those weapons was a firearm.  I just wanted to be clear on the transcript.

2. Senior Counsel for the respondent did not contradict this statement, and invited the allocutus to be given.

3. It is clear that the terms of the resolution between the prosecution and the respondent, and the basis on which the respondent entered his plea of guilty to Count 1, were:

   ·the respondent admitted that he was guilty of the aggravated offence of threaten harm;

   ·the prosecution alleged that the offence was committed in aggravating circumstances, namely that it was committed in company and by the use of offensive weapons, namely a baseball bat wielded by the respondent, a baseball bat wielded by Mr Orfanidis and a handgun wielded by the respondent;

   ·the respondent admitted the alleged aggravating circumstances except that the second offensive weapon wielded by the respondent was a handgun;

   ·the dispute about the nature of the second offensive weapon was to be resolved by a dispute of facts hearing.

4. The prosecution should have sought leave to amend the particulars to Count 1 to add a reference to the alleged handgun in accordance with the requirement imposed by sub-s 5AA(3). However, the respondent acquiesced in the matter proceeding in accordance with the agreed resolution as summarised in the previous paragraph, notwithstanding that the prosecution had not sought leave.

5. The matter was adjourned to three successive directions hearings and ultimately resumed for submissions on 2 February 2021.  A different prosecutor appeared. Senior Counsel for the respondent traversed the exchanges from the previous hearing, the essential points of which are set out above.  He then submitted that, in circumstances where the prosecution had accepted a plea to Count 1 in satisfaction of the information, the respondent could not be sentenced on the basis of any of the other counts, specifically, that there was a firearm involved.  The following exchange then occurred:

   HER HONOUR: When Ms Garland said at line 20 on p.3 ‘No, I’m not, but the resolution is on the basis that there were multiple weapons used’, when she said that to me I understood that to mean that that was the agreed resolution between the parties.

   MR EDWARDSON:    There’s never been an agreement, as I understand it, in fact, quite the opposite, it’s always been my client’s position, he has always denied he was ever in possession of a firearm.

6. The difficulty with this response was that the prosecution had never suggested that it was agreed that there was a firearm.  It had submitted that there was an agreement that there were multiple weapons used, and identified a potential dispute over whether one of those weapons was a firearm.  This was in accordance with the position communicated in writing to the prosecutor by the respondent’s solicitor, namely that there would be a dispute of facts hearing over whether or not there was a firearm.  Senior Counsel had previously, in Court, accepted the resolution proposed in the prosecutor’s email of 5 August 2020.

7. However, on 2 February 2021, Senior Counsel for the respondent now did not accept that it was open to sentence on any basis other than that particularised in the information. First, he pointed to s 5AA(3) of the CLCA, which provides:

   If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.

   He continued:

   So our position is this: the prosecution being on notice and clearly aware of the differences in the way in which each of the charges were particularised on the original indictment, and also being acutely aware that, for example, count 3 alleged a firearm, but count 1 did not, no application to amend was made before my client entered his plea and the allocutus was given.

8. Senior Counsel for the respondent went on to submit before the sentencing judge:

   [B]y virtue of the prosecution conduct, being on notice that that was a contest, the prosecution had two choices, they either sought to amend the indictment and my client would then have pleaded not guilty to that circumstance of aggravation and we have a trial, or alternatively you accept count 1 as framed against the factual matrix that is identified in the statement of facts to which he pleaded guilty and we say then from that point on, having accepted that in satisfaction of the information, they are stuck with it, because otherwise he’d be sentenced for something which he’s not charged with.

9. That submission did not reflect the history of the proceeding.  Although, as observed above, the prosecution did not amend the particulars to Count 1 to add a reference to the alleged handgun, the defence had acquiesced in the matter proceeding in accordance with the agreed resolution without that occurring.

10. The respondent’s solicitor had invited a dispute of facts hearing about the use or threatened use of a firearm. The prosecutor had indicated to the Court that there remained a dispute to this end.  Senior Counsel for the respondent did not challenge that statement when it was made.  He only raised the objection later, after the plea was accepted.  In those circumstances, the taking of the plea and the administering of the allocutus would not have operated as a bar to the prosecution subsequently applying to amend the information,[3] as that would not have caused injustice.[4]

    [3]     Criminal Procedure Act 1921 (SA), ss 128, 181; see Ilich v The Queen [2021] SASCA 45 at [64]-[79], and especially at [77].

    [4]     Criminal Procedure Act 1921 (SA), ss 128(2), (3).

11. In addition, as observed above, s 5AA(6) of the CLCA provides:

    This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence.

12. On the appeal, the Director relies in part on this ability of the sentencing judge to use the existence of a firearm or imitation firearm (had it been found to exist) as an aggravating circumstance of, or surrounding the commission of, the offence.

13. At the resumed hearing on 2 February 2021, the new prosecutor was faced with the history recounted above.  This included the position now taken by the respondent that the prosecution was bound to the circumstances of aggravation as particularised in Count 1, which it had accepted in satisfaction of the plea.

14. At this point of the hearing, the prosecutor referred to the terms of the agreed resolution. The following exchange took place:

    MS PARK:The difficulty is the prosecution would not have accepted the plea in satisfaction if this were to be in issue, it would have been amended.  Perhaps this isn’t a matter that was given close enough consideration before the plea was entered.  In my respectful submission he was certainly on notice as to the case against him.  It was particularised in another charge and it was particularised in the prosecution factual summary and as I’ve said, it was the direct subject of negotiations and it was understood that once the plea was entered, it would be a matter that your Honour could take into account as a background circumstance to the offence for which he is to be sentenced.

    HER HONOUR:   There is a difference between a background circumstance and a circumstance of aggravation.  So is your submission to me, or is it a contingent submission, that ‘offensive weapon’ includes as weapon that isn’t even particularised, that in the alternative that I sentence him on the basis that the aggravating feature was the use, or threat to use offensive weapon, namely baseball bats and that’s it, but as part of the factual matrix at some point he was holding something that might have been a firearm?

    MS PARK:Perhaps that may be a way around it.  This might be a matter I’ll need further instructions about and I apologise to the court for that. …

15. The prosecutor made it clear that the prosecution’s understanding had always been that there was to be a dispute, which it was not prevented from pursuing, that the respondent had threatened to use a firearm and that the Court was able to take that into account.  Given the silence of Senior Counsel for the respondent when that position had originally been articulated, the prosecution would not have proceeded to accept the plea in satisfaction otherwise.  She accepted that on any view, the judge would have to be satisfied beyond reasonable doubt as to the existence of a firearm or imitation firearm.

16. Following that submission, Senior Counsel for the respondent indicated that he was content for the sentencing judge to view the video and make her own assessment of it.  The only evidence available to be adduced on this topic was the affidavit evidence of Mr Freeman, the video recording he took using his mobile phone and the affidavit evidence of David Maddern, who extracted a still image from that video recording and produced a transcript of the conversation captured by the mobile phone.  Ms Naulty and Mr Danaher did not give witness statements.  The judge proposed to take that course.  If she was not satisfied beyond reasonable doubt as to what the item was, she would sentence on the basis of the accepted plea to the charge as particularised.  If she was satisfied, she would hear further submissions as to what would flow from that.

17. In the course of this hearing, the prosecutor did not apply to amend the information to particularise the use or threatened use of a firearm or imitation firearm in Count 1. However, the prosecutor made submissions on the features of the recording that supported the prosecution case that the item was a firearm or an imitation firearm.  She submitted that the prosecution case extended to the respondent having used the item so as to cause Mr Danaher to believe it was a firearm. When the judge proposed to view the recording, she expressed that to be the best way to determine whether she could be satisfied beyond reasonable doubt that the item was a firearm or an imitation firearm.  Senior Counsel for the respondent acceded to that course.  By participating in the course of the judge making a finding on the factual issue of the use of a firearm or imitation firearm (this being a course which he himself suggested), the respondent acquiesced in the matter proceeding to a finding being made on that factual issue without the information first having to be amended to add the additional circumstance of aggravation.

    The sentencing judge’s finding

18. The judge viewed the video recording of the altercation and announced her finding in the course of her sentencing remarks, on 7 April 2021.  She said:

    While it is clear that you are holding an object and pointing it in the direction of Daneher and that his response is one of instant evasion and Ms Naulty appears more concerned, I am unable to discern exactly what that item was, even with the assistance of a close-up still image annexed to the statement of David Maddern.  Mr Freeman who took the mobile phone footage was also unable to discern what the object was but he concluded it was a firearm because he heard one male say, ‘I’ll just shoot you now’.

19. The judge then identified that an offensive weapon as defined in the CLCA extends to a firearm as defined in the Firearms Act, an ‘imitation firearm’ as defined in the CLCA and a ‘regulated imitation firearm’ as defined in the Firearms Regulations. She specifically identified the CLCA definition of ‘imitation firearm’, being an article intended to be taken for a firearm.

20. The judge then continued:

    In my view, in the absence of the actual object said to be a firearm or imitation firearm, or clear footage which shows the object’s features and working parts in detail, it would be impossible for a ballistics expert to provide an opinion as to whether the object is a firearm or a regulated imitation firearm or an imitation firearm as defined under the Criminal Law Consolidation Act.

    Although the evidence establishes that you were holding an object that appeared to cause Ms Naulty and Mr Daneher considerable anxiety, and that it was of a size and dimension possibly consistent with a firearm, in the absence of the object itself, and expert evidence regarding the classification of that object as a firearm or imitation firearm, I am unable to conclude, beyond reasonable doubt, that it was an offensive weapon as defined.  I do not consider that the words ‘I’ll shoot you now’, even if I was satisfied that you had said them, could operate as a makeweight to overcome the reasonable doubt created by the absence of the object itself.

    I have not been able to locate any authority or case, and nor have I been referred to any, in which it has been proved that an object was a firearm or imitation firearm without the actual object being available in a state which enables its examination by a ballistics expert.

21. The judge sentenced the respondent to a period of imprisonment of two years, eight months and 12 days.  This incorporated a discount of 10 percent from a starting point of three years, on account of the respondent’s guilty plea.  She set a non-parole period of 10 months.  She ordered that the head sentence be served on home detention, on specified conditions.

    The Director’s challenge

22. The Director contends that, although the judge referred to the separate definition of ‘imitation firearm’ in the CLCA, she then erred in holding that the absence of the object and/or expert evidence classifying the object was necessarily fatal to her ability to conclude beyond reasonable doubt that the object was an imitation firearm within the meaning of those definitions. The Director accepts that, at least in the circumstances of this case, the absence of the object and/or expert evidence was fatal to prove beyond reasonable doubt that the object was a ‘firearm’ (including a ‘regulated imitation firearm’), but contrasts the position in respect of an ‘imitation firearm’.

23. The Director submits that the definition of ‘imitation firearm’ in the CLCA required only an inquiry into whether the respondent intended the object to be taken as a firearm. That conclusion was open on the state of the evidence, namely, that:

    ·the respondent was clearly holding an object and pointing it in the direction of Mr Danaher;

    ·the object was of a size and dimension consistent with a firearm;

    ·a male, who was almost certainly the respondent, yelled words, ‘I’m going to shoot you now’, after the respondent had put on the glove and just before he picked up the object from the car; and

    ·the object appeared to cause Ms Naulty and Mr Danaher considerable anxiety.

24. The respondent submits that, on a fair reading of the sentencing remarks, the judge made proper and distinct reference to all three relevant definitions, being ‘firearm’, ‘regulated imitation firearm’ and ‘imitation firearm’. He submits that it would be unrealistic to conclude that, having made specific reference to the definition of ‘imitation firearm’ in the CLCA, the judge then immediately forgot about it.

25. The contest is over whether the judge failed to apply the definition of ‘imitation firearm’ in the CLCA, notwithstanding that she had earlier identified that separate concept.

26. Notwithstanding that the judge identified the separate definition of ‘imitation firearm’, we are satisfied that the judge did not then apply that definition when considering the evidence.  We reach this conclusion for the following reasons.

27. The judge’s sentencing remarks need to be understood in the context of the evidence before the judge and to which the judge referred. The video recording taken by Mr Freeman is of very high quality. There are several important features apparent from that recording.

28. First, it is clear that the object in dispute wielded by the respondent was, from a visual perspective, a large handgun. This can be seen when the respondent holds the object with both hands facing the ground. The features that unequivocally identify it visually as a handgun can be clearly seen when he points it horizontally at Mr Danaher. As observed above, the quality of Mr Freeman’s video recording is very high.

29. Secondly, the manner in which the respondent wielded the disputed object, coupled with the obvious continuing reaction by Mr Danaher, strongly suggests that the object was intended to be taken to be a firearm.

30. Thirdly, it is clear that, as between the respondent and Mr Orfanidis, it was the respondent who was the principal actor throughout the altercation with Ms Naulty and Mr Danaher. During the initial period, the respondent was the one who engaged in discussion with Ms Naulty, engaged in physical altercations with Ms Naulty and wielded his baseball bat, and acted aggressively towards Ms Naulty and Mr Danaher. Mr Orfanidis, by contrast, stood several paces back from the interaction between the respondent and Ms Naulty with his baseball bat hanging passively by his side, without participating in the conversation or the physical altercation. Mr Orfanidis then returned to sit in the driver’s seat of his car and remained there throughout the balance of the altercation, including while the respondent took the disputed object out of the car and wielded it in the vicinity of Mr Danaher and Ms Naulty.

31. Fourthly, after the respondent put on the glove and immediately before he obtained the object from the front passenger side, the words can be heard, ‘I’m going to shoot you now’.  At that point Mr Orfanidis was passively sitting in the driver’s seat. Coupled with the third point above, this strongly suggests that it was the respondent who uttered the words, ‘I’m going to shoot you now’.  This corroborates that the respondent’s intention was for the object in his hand to be taken to be a firearm.

32. In his affidavit, Mr Freeman said that he said he saw one of the males holding something that he thought might be a firearm but he was not sure until he heard him threaten to shoot someone. This does not detract from what can be seen on the video recording, because what Mr Freeman perceived in real time while both watching and operating his phone is different from what can be seen objectively when just watching the video recording.  In any event, Mr Freeman could not know if it was actually a firearm as opposed to an imitation.

33. Turning to the judge’s sentencing remarks, the judge said that, absent having the object or clear footage in evidence, ‘it would be impossible for a ballistics expert to provide an opinion as to whether the object is … an imitation firearm as defined under the Criminal Law Consolidation Act’. The difficulty with this statement is that the question under the CLCA was whether the object was intended to be taken as a firearm.  For the reasons outlined above, expert ballistics evidence was not required. The judge’s statement was apposite to whether the object was a ‘firearm’ (including a ‘regulated imitation firearm’), but not to whether it was an ‘imitation firearm’.

34. As noted above, the judge also said that she had not been able to locate any authority in which it had been proved that an object was an imitation firearm without the object being able to be examined by a ballistics expert. This confirms that she took the view that it was necessary for expert ballistics evidence to prove the existence of an imitation firearm as defined in the CLCA. It was not.

35. It may be that the judge intended here to refer to a regulated imitation firearm.  However, she had already drawn the distinction between a regulated imitation firearm and an imitation firearm, and by this stage had expressed the view that a ballistics expert had a role – and seemingly necessarily so – in identifying an imitation firearm. In any event, if the judge was referring here to a regulated imitation firearm, it would follow that the judge omitted to address the question whether the object was an imitation firearm.

1. If the judge had applied the definition of ‘imitation firearm’ correctly, it may be expected, given the strength of the evidence summarised above, that the judge would have found that this aggravating circumstance was proved beyond reasonable doubt.  Otherwise, it may be expected that the judge would have explained what the video recording showed the respondent to be holding in his hand and, despite that video recording and the other evidence summarised above, why the judge was nevertheless not satisfied beyond reasonable doubt that it was an ‘imitation firearm’. The absence of the judge addressing the matter in this way confirms that she must have made an error in relation to the definition of ‘imitation firearm’.

2. Giving proper heed to the requirement to read sentencing remarks without parsing the words strictly, the judge appears to have conflated the test for identifying an ‘imitation firearm’ within the meaning of the CLCA, with the definition of ‘regulated imitation firearm’ in the Firearms Regulations.

3. If the judge had correctly applied the definition of ‘imitation firearm’, her finding would appear to be glaringly improbable as it is demonstrably contradicted by the view depicted in the video.  The judge’s finding points to a material error of both fact and law in the application of the relevant test, for the reasons expressed above.

4. It follows that we are satisfied that the judge failed to apply the definition of ‘imitation firearm’ in the CLCA to her consideration of the evidence.

   Permission to appeal

5. The principles applicable on an application by the Director for permission to appeal against sentence are well-established.[5] 

   [5]     Everett v The Queen (1994) 181 CLR 295 at 299-300; Malvaso v The Queen (1989) 168 CLR 227 at 234.

6. In Griffiths v The Queen, Barwick CJ made a comment, given emphasis by the plurality in Everett v The Queen, that:[6]

   an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.

   [6]     Griffiths v The Queen (1977) 137 CLR 293 at 310 (Barwick CJ), quoted in Everett v The Queen (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ).

7. The plurality in Everett went on to say:[7]

   The reference to ‘matter of principle’ in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ say as constituting ‘error in point of principle’.

   [7]     Everett v The Queen (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ).

8. The error by the judge in relation to the definition of ‘imitation firearm’ in the CLCA involves a matter of principle in the sense explained by the High Court in Everett. It resulted in the respondent being sentenced on a basis that was incorrect as a matter of law and was apt to lead to a manifest inadequacy.

9. Ordinarily, the fact that the prosecution did not apply to amend Count 1 before the judge heard submissions on whether it was proved beyond reasonable doubt that the object wielded by the respondent was a firearm or imitation firearm would afford a compelling reason to refuse leave to the Director to appeal. However, as we have observed, little was ordinary about the course this matter took. First, Senior Counsel for the respondent had, on 7 August 2020, communicated his client’s acceptance of a resolution based on the premise that the respondent had used multiple weapons and there was to be a dispute of fact over whether the second weapon was a firearm or not.  On 2 February 2021, Senior Counsel for the respondent did not contradict the prosecutor’s expressed understanding that this extended to whether the second weapon was an imitation firearm.

10. Secondly, all parties acquiesced in the judge viewing the recording.  The appropriate course would have been for the prosecution to apply to amend the information before she did so.  However, the parties agreed to the judge viewing the recording to resolve the question of what the second weapon was.  Given that agreement, if the prosecution had applied to amend the information afterwards to accommodate whatever the judge found the weapon to be, that would not have been productive of injustice.

11. Thirdly, although the information was not amended, it is clear that the parties understood the dispute to be about whether any of the ‘firearm’-related definitions within the CLCA defined term, ‘offensive weapon’, were engaged.

12. Finally, having viewed the recording, and having regard to the circumstances there recorded and the evidence of Mr Freeman, the prosecution case that the object in the respondent’s hand was an imitation firearm was exceptionally strong.  The judge’s error in confining the inquiry by reference to a perceived need for expert ballistics evidence and/or production of the object in evidence goes to the heart of the definition of ‘imitation firearm’.  The parties clearly understood that the application of this definition was part of the dispute.

13. In addition, even if (contrary to our conclusion), the prosecution had been foreclosed from relying on the wielding by the respondent of an ‘imitation firearm’ for the purpose of the definition of an aggravated offence under s 5AA of the CLCA, there was nothing that precluded the prosecution from relying on the respondent wielding what appeared to be a handgun as a circumstance of aggravation relevant to penalty under the general law.

14. Given the terms of the agreed resolution, the acquiescence by the defence in the course taken and the significance of the error in point of principle in the judge’s approach to the definitions, we are satisfied that this is one of those exceptional cases where permission to appeal should be granted.

15. In view of the attitude expressed by both parties on appeal to the question, it is appropriate that we remit the matter to the District Court rather than proceed to resentence the respondent ourselves.

    Conclusion

16. We grant permission to appeal.  We allow the appeal and set aside the sentence.  We remit the matter for resentencing before a different judge.