R v Liddy - [2014] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LIDDY
[2014] SASCFC 70
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
4 July 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - DISCHARGING FIREARMS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
On 29 April 2011 the appellant was involved in a domestic dispute which culminated with him pushing his partner away with an open hand. He was charged with assault. On 27 October 2011 he pleaded guilty before a Magistrate and was placed on an 18 month good behaviour bond. In the early hours of New Year’s Day 2013, in a somewhat intoxicated state, he went out walking and took his shotgun. At one location, he fired one shot into the air (the first discharge). Later, at a different location, he fired another shot into a porch ceiling at the home of an acquaintance (the second discharge). The length of the barrels rendered the shotgun a “prescribed firearm” and the appellant had no firearms licence. This conduct both breached the previous bond and also constituted serious firearms offences. The appellant offered pleas on a certain basis at an early stage in the Magistrates Court. The prosecution refused that offer but eventually accepted a disposition on the basis originally proposed by the appellant. The appellant pleaded guilty to one count contrary to s 11(1) of the Firearms Act 1977 and one count of discharging a firearm contrary to s 32AA(3) of the Criminal Law Consolidation Act 1935. The Information did not specify to which of the two discharges the s 32AA(3) offence referred, and the Judge neither required the prosecutor to elect, nor specified in her sentencing remarks which discharge formed the content of the offence for which she sentenced the appellant. The appellant appealed on three grounds: first, that the sentence imposed for the assault was manifestly excessive; second, that her Honour erred by not requiring the prosecutor to elect, or herself specifying, which discharge formed the content of the s 32AA(3) offence with the consequences that the sentence imposed was uncertain or offended the De Simoni principle; and third, that insufficient discount was allowed for the pleas of guilty to the firearms charges.
Held (Peek J, Stanley J and Nicholson J agreeing, allowing the appeal):
1. The breach of the bond did not transform the assault from an offence that did not call for imprisonment into one that did. The offence was at the lower end of the scale of seriousness, involved relatively minor contact, did not cause injury, and arose at the spur of the moment; in all of the circumstances, a sentence of one month imprisonment was manifestly excessive.
2. The Judge erred in not requiring the prosecutor to elect, and in not specifying in her sentencing remarks which of the discharges formed the content of the s 32AA(3) offence. Whilst the single count was not patently duplicitous, it was necessary to delineate the offence for which the appellant was convicted and sentenced. The present sentence is uncertain. Further, in circumstances where it appears that her Honour sentenced for both discharges, the De Simoni principle may have been infringed.
3. In circumstances where the charges would have resolved on the same basis as they eventually resolved in the District Court had the prosecution accepted the disposition originally offered by the appellant in the Magistrates Court, a discount of 20 per cent for the pleas of guilty to the firearms charges was inadequate.
4. The sentence imposed by the Judge is set aside and a head sentence of one year and six months imprisonment with a non-parole period of eight months is imposed. The appellant is fined the amount of $350 in respect of the assault, and is disqualified from owning or possessing a firearm until further order. The shotgun and any ammunition seized from the appellant by police are to be forfeited to the Crown.
Criminal Law (Sentencing) Act 1988 ss 18A, 39(1); Firearms Act 1977 ss 11(1), 11(7)(a), 34(1)(e); Firearms Regulations 2008 Reg 4; Criminal Law Consolidation Act 1935 ss 32AA(1), 32AA(3), referred to.
De Simoni v The Queen (1981) 147 CLR 383; DPP v Merriman [1973] AC 584; R v Kerin (2013) 116 SASR 316; R v Staker (2011) 110 SASR 274, discussed.
Johnson v Miller (1937) 59 CLR 467; Johnson v Registrar of Firearms (2001) 79 SASR 353; Jones v The Queen [1980] WAR 203; Offe v Police (2002) 84 SASR 1; Parker v Sutherland (1917) 116 LT 820; R v Daniele [2014] SASCFC 22; R v Gasmier [2011] SASCFC 43; R v Lapthorne [1990] WAR 207; R v Nozuhur [2013] SASCFC 81; R v O'Toole [2013] SASCFC 18; R v Olbrich (1999) 199 CLR 270; R v Suckling (1998) 104 A Crim R 59; R v Trotter (1982) 7 A Crim R 8; R v Willingham (No 2) [2012] SASCFC 104; S v The Queen (1989) 168 CLR 266; Willers v The Queen (1995) 81 A Crim R 219, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "uncertainty", "election"

R v LIDDY
[2014] SASCFC 70
Court of Criminal Appeal: Peek, Stanley and Nicholson JJ

PEEK J. The appellant was born on 11 March 1979. As at April 2011, he was 32 years old and was living with his then partner, the mother of his young daughter. He had a history of drug and alcohol abuse but only a minor criminal record and no previous history of violence or firearms offences. He had not previously been sentenced to imprisonment.
The 18 month bond imposed for an offence of assault
On 29 April 2011, the appellant and his partner had a heated verbal argument at home and the appellant decided to go out and catch a bus to his father’s home, taking their daughter with him. As he walked from the house to go to the bus stop, his partner followed him and tried to grab the child from him; the appellant pushed her away with an open right palm. This action formed the factual basis of a charge of aggravated assault that was laid against him (the assault charge). No pain or injury was suffered; the charge was expressed to be “aggravated” because the victim was the appellant’s then domestic partner.
On 27 October 2011, the appellant pleaded guilty to the assault charge in the Christies Beach Magistrates Court. The Magistrate convicted him and placed him on a bond for 18 months pursuant to s 39(1), Criminal Law (Sentencing) Act 1988 to be of good behaviour and appear before the court for sentence if he were to fail to comply with a condition of the bond. His Honour’s remarks made clear to the appellant that the purpose of the bond was to ensure that in the future, if there was a further argument between himself and his partner, the bond would be there to “remind him to walk away, calm down and do not do anything else”.
At the time of entry into the bond, the appellant and his partner were living together and she was supportive of him; they stayed together for another year without any further trouble. In late 2012, she moved to Queensland to live with her parents and took their daughter with her with his consent.
Unfortunately, the separation (particularly from his daughter) as from late 2012 adversely affected the appellant and led to an increase in his use of drugs and alcohol. He subsequently breached the good behaviour bond in what I will refer to as the “1 January 2013 incident”.
The 1 January 2013 incident
On New Year’s Eve 2012, the appellant was living alone. He was feeling lonely and considered (rightly or wrongly) that he had been stood up by Ms S, a lady with whom he thought he had an arrangement for the evening. He commenced to drink alone and by the early hours of the morning of New Year’s Day 2013, he was somewhat intoxicated.
He decided to venture outside with his shotgun. His reasons for doing so are uncertain. He told Dr Raeside that he had heard a number of celebratory fireworks going off and went outside, thinking that he would let off a couple of rounds from his shotgun. Whatever the reason, his conduct was entirely unacceptable and matters were made worse by the fact that he did not have a firearms licence and the shotgun, which had previously (in unknown circumstances) been radically shortened, was below the legal minimum barrel length of 450mm and was a “prescribed firearm” under the Firearms Act 1977.[1]
[1] See also Firearms Regulations 2008, Reg 4.
Whilst walking down Finland Crescent, the appellant deliberately fired one shot in the air (the first discharge). This did not cause any danger to any person but there were persons visible nearby who would likely have been alarmed by the sound of the discharge. The appellant continued walking and sometime later in a different street (the time spent walking and the distance is unclear) he reached the home of Ms S where no one was home. He then fired a shot into the ceiling of the front porch of that house (the second discharge); no doubt he did this because he was angry with Ms S, but there is no suggestion that he tried to physically harm her (or anyone else).
Police shortly afterwards located the appellant nearby and he went with them peacefully. The police reported that he appeared to be slightly intoxicated.
The course of the proceedings prior to sentencing
The original Magistrates Court Information charged a number of offences relating to the 1 January 2013 incident (the firearms offences), one of which was an offence of discharging a firearm intending to injure, annoy or frighten any person contrary to s 32AA(1), Criminal Law Consolidation Act 1935 (the Act), for which the maximum penalty is eight years imprisonment. The appellant indicated from an early stage in the Magistrates Court that he denied any intention to injure, annoy or frighten any person but accepted that he had been reckless as to that matter within the meaning of a charge under s 32AA(3) of the Act, and was prepared to plead guilty to such a charge (for which there is a lesser maximum penalty of five years imprisonment). However, he was committed for trial on the original charge with the other charges then remaining in the Magistrates Court.
On 5 August 2013, a District Court Information was filed charging the original charge and the appellant accordingly pleaded not guilty. However, on 6 November 2013, a special directions hearing was held before Judge Rice and his Honour agreed with the submission of counsel for the appellant that an offence of discharging a firearm being reckless as to whether that act injured, annoyed or frightened any person contrary to s 32AA(3) of the Act would be a more appropriate charge. His Honour also specifically drew the attention of the prosecutor to the fact that there was only one count of discharging a firearm on the Information and that that count could only relate to one of the two discharges. His Honour stated: “They [the two discharges] are separated in point of time and you couldn’t, I don’t think, have one charge that deals necessarily with both …”.
The course of the sentencing proceedings before the sentencing Judge
On 17 December 2013, the appellant appeared before the sentencing Judge, Judge Davey (the Judge). The District Court Information was amended by substituting a charge of an offence contrary to s 32AA(3) of the Act for the original charge of an offence contrary to s 32AA(1). At the same time, the prosecutor indicated that pleas of guilty to that charge and to a further charge of possessing a firearm without holding a firearms licence authorising possession of that firearm contrary to s 11(1), Firearms Act 1977[2] would be taken in full satisfaction of all charges, including all counts on the Magistrates Court Information. Despite Judge Rice’s comments referred to above, no attempt had been made by the prosecution to add a further count of discharging a firearm. The appellant was then arraigned before the Judge and pleaded guilty to the two charges as referred to above. It was for these two offences (together with the 2011 assault offence following formal admission of the breach of bond) that he stood to be sentenced. The matter was adjourned for full submissions to be heard by her Honour.
[2] Since a prescribed weapon was involved, the maximum penalty was $50,000 or ten years imprisonment: see Firearms Act 1977 (SA) s 11(7)(a). The charge did not aver the aggravating feature that the shotgun was loaded.
On 16 January 2014, the matter came on before the Judge for submissions. Dialogue largely of a procedural nature occurred and some submissions were made. The position as to whether the appellant was to be punished for one or both discharges was alluded to. Counsel for the appellant submitted that the s 32AA(3) charge referred to the second discharge only, but that the Judge in sentencing for that one discharge could have regard to all surrounding circumstances. Counsel for the prosecution took the different position that “it’s one count on the basis that he fired the gun twice” and did not elect as to which of the discharges the single count referred. The Judge observed that, strictly speaking, only one discharge had been charged but her Honour did not require the prosecutor to elect and, with respect, the matter was left rather hanging in the air. The matter was adjourned for further submissions to be made.
On 19 February 2014, the matter came on before the Judge for further submissions. The appellant formally admitted the breach of the bond into which he had entered on 27 October 2011. As to the underlying assault charge, counsel for the appellant submitted that it was relatively minor and, particularly having regard to the fact that the appellant had no record of violence, a custodial sentence should not be imposed. The prosecutor confirmed that the basis of sentencing for that offence was that:
In essence, the matter has resolved on the basis that the aggravated assault was carried out as part of a domestic dispute at the time, and that Mr Liddy admitted to police that he had an argument with the victim as a result of living arrangements and money issues, and he further stated to police that he pushed the victim using an open right palm. Your Honour can sentence on that basis.
As to the firearms offences, counsel for the appellant referred to various aspects of the appellant’s circumstances before, and at the time of, the offending. He also stressed the effort the appellant had since made to rehabilitate himself, including the completion of a course resulting in a good job offer which the appellant wished to accept. The essence of his submissions is perhaps best encapsulated in the following passage:
My overall submission is that in the more than 12 months since the offence Mr Liddy has taken substantial positive steps towards rehabilitation. This is one of those cases where it can be said that the offending was a blessing in disguise for my client. He has acted in the manner the community would expect of someone who has had a wake-up call. He has done quite a bit – he has worked very hard to suggest that he has turned his life around and for the better.
The discharge was somewhat bizarre but controlled and most definitely out of character. Importantly the firearm was not to be used for a criminal enterprise.
I can confidently make the submission that the offences won’t be repeated. …
Counsel submitted that if a custodial sentence were to be imposed for the firearms offending, it should be suspended. Her Honour terminated the bail agreement and the matters were remanded for sentencing.
The sentence imposed by the sentencing Judge
On 21 February 2014, the matters came on for sentence and the Judge delivered her sentencing remarks.[3] For the assault charge, her Honour imposed a sentence of one month imprisonment. For the offences of “discharging a firearm being reckless as to whether that act injured, annoyed or frightened any person” contrary to s 32AA(3), Criminal Law Consolidation Act 1935, and “possessing a firearm without holding a firearms licence authorising possession of that firearm” contrary to s 11(1), Firearms Act 1977, her Honour sentenced the appellant pursuant to s 18A, Criminal Law (Sentencing) Act 1988, to a single period of imprisonment of two years. Her Honour made the periods of imprisonment cumulative and thus arrived at a head sentence of two years and one month. Her Honour fixed a non-parole period of 11 months, with the head sentence and non-parole period each to commence as from 19 February 2014.
[3] The Judge, before proceeding to sentence, correctly indicated to counsel that on the charge of an offence contrary to s 11(b)(1) of the Firearms Act 1977, the appropriate maximum was limited to $50,000 or ten years imprisonment since the prosecution had not averred an aggravated offence (namely that the firearm was loaded at the relevant time).
The complaints on appeal
After various additions and abandonments of grounds of appeal, the appellant asserted on the hearing that there are three major matters that, individually or cumulatively, require that a re-sentencing be carried out.
·First, the sentence of one month imprisonment for the assault charge was manifestly excessive.
·Second, the Judge erred by not requiring the prosecutor to elect as to which of the two discharges formed the content of the s 32AA(3) offence; and that the sentence for that offence is uncertain or offends against the De Simoni principle.[4]
·Third, the Judge allowed insufficient discount for the pleas of guilty to the firearms charges.
[4] De Simoni v The Queen (1981) 147 CLR 383, 389.
I conclude that the appellant is correct in each of these complaints and the cumulative effect of these matters gives rise to the need for a re-sentencing of the appellant. My reasons follow.
The penalty imposed for the assault charge was manifestly excessive
The only reasons given by the Judge for the penalty imposed for the assault charge were as follows:
In respect of the aggravated assault committed on 29 April 2011, it is not disputed that the offence was carried out as part of a domestic dispute. That is not a matter of mitigation by the way, rather, aggravation. You admitted to the police you had had an argument with the victim about living arrangements and money issues and admitted pushing the victim using an open right palm. Obviously the incident was of such significance that the police were involved in respect of the offence.
These reasons do not justify the imposition of a first period of imprisonment on a person with no prior record of violence in the circumstances of this case as read out by prosecution counsel and reproduced above. The offence was plainly at the low end of the scale of seriousness. The contact was a momentary pushing away with an open hand and it is not suggested that any pain or injury was caused. It arose on the spur of the moment from an argument and was not suggested to be representative of any course of conduct of domestic violence. The appellant had no relevant prior conviction and had never previously been sentenced to a custodial sentence.

The 18 month bond originally imposed on 27 October 2011 for that offending was unfortunately breached by the offences committed on 1 January 2013, thus requiring the appellant to be sentenced for the assault offence. However, this feature did not transform the assault offence from one that plainly did not call for a period of imprisonment to one that did. The sentence was manifestly excessive in all of the circumstances.
The sentence for the s 32AA(3) offence was uncertain or offends against the De Simoni principle[5]
[5] De Simoni v The Queen (1981) 147 CLR 383, 389.
As stated above, the Judge during sentencing submissions never required the prosecutor to elect as to which of the discharges the single count for a s 32AA(3) offence referred. Her Honour should have done so, since at that stage a latent duplicity had plainly emerged.
To be clear, the form of the count charging the s 32AA(3) offence was not patently duplicitous on its face, since the charge did not explicitly refer to more than one offence. However, if the charge had gone to trial on that one count, and the prosecution adduced evidence of the two discharges, the latent duplicity would have become apparent and it would have been necessary for the prosecution to elect as to which discharge was relied upon. In R v Staker, I stated (Sulan J and Kourakis J, as he then was, agreeing):[6]
[13]I do not think it is presently necessary to consider at any depth the origin, nature or present content of the rule against duplicity. It is sufficient to observe that, in relation to some offences, one major effect of the rule is to prevent the charging of multiple offences even if the same victim and a relatively short period of time are involved. To give an obvious example, if it is alleged that the accused, A, punches the victim, B, at 11 am, causing him harm, and then departs but is alleged to return at 1 pm and kick B, again causing him harm, the defendant must be charged with two separate counts of assault causing harmrather than with one count into which both incidents are lumped. Various good reasons exist for the rule. Such reasons may or may not be manifested on each occasion of the application of the rule, but in the example just given, it can easily be seen that potentially there may be differences in the two instances of alleged assault in areas such as identity, requisite intention, accident, self-defence and causation of the alleged harm.
[14]There will, of course, be difficulties at the borders. Thus, if it be suggested that A administered a series of punches and kicks in succession to B, there will come a time when the interval between the inflictions of force may be so short that those various inflictions of force may be treated as “one” assault. This is a matter of fact and degree which is not necessary to pursue its precise limits for the purposes of the present case.
[6] (2011) 110 SASR 274, 279.
It is not necessary here to pursue the precise limits of what is sometimes called the Merriman[7] principle because the situation in the present case is clear. If the appellant had quickly fired one barrel after the other at the first location, the Merriman principle would have applied and only one offence would have been committed. However, the appellant fired only one shot at the first location and then walked a significant distance before he later fired a second shot in a different street, separated in time, location and circumstances from the first shot. In firing that second shot, the appellant deliberately committed a second and separate offence.[8]
[7] DPP v Merriman [1973] AC 584.
[8] Some cases illustrating the application of the rules against latent duplicity or uncertainty in circumstances of offences being committed within a short time of each other are collected in R v Kerin (2013) 116 SASR 316, [289] footnote 90. As to the present case, one might mention, although unnecessary to the decision, that the circumstances of the two discharges differed further in that at the first location, other persons were visibly present nearby in the street whereas at the later second location, no other person was visibly present but some damage to the porch ceiling was caused.
In the present case, there was to be a plea of guilty, but it was still necessary to delineate the offence for which a conviction was recorded and for which a penalty was imposed. The correct procedure was for the Judge to have required the prosecution to elect as between the two discharges and then to proceed to sentence on the basis of that particular discharge.[9]
[9] Obviously the prosecution would have been entitled to prefer a separate charge in relation to each such incident but this was not done despite the warning correctly given by Judge Rice at the special directions hearing.
However, this matter was not resolved because the Judge never required the prosecutor to elect, and never indicated in her sentencing remarks, which of the discharges formed the content of that count. In my view, the complaint now made after conviction is more precisely analysed in terms of “uncertainty” of conviction and sentence rather than “duplicity”.[10] In R v Kerin, I stated (Nicholson J agreeing):[11]
[288]It is a fundamental principle of criminal law that a verdict must be certain as to the offence found proven. Courts have referred to various jurisprudential bases for this requirement. In S v The Queen Gaudron and McHugh JJ stated:
… One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. …(Emphasis added)
[289]Courts have regularly quashed convictions on this basis. The case of Parker v Sutherland is the locus classicus of the doctrine in its purest form. A barman was charged with permitting patrons to “treat” another person to a drink contrary to a World War I regulation, but the evidence in fact disclosed two possible such offences, one occurring at 7:55pm and the other 35 minutes later at 8:30pm on the same evening. The conviction did not make clear to which incident it referred and was found to be bad for uncertainty. Viscount Reading CJ there stated:
Although not bad for duplicity, it has left it in doubt in respect of which of the two offences the appellant was really convicted; no one can say whether it is the offence at 7.55, or the offence at 8.30. We must be careful so to administer the criminal law that the offence of which a person is convicted shall be plain and certain. Otherwise the person convicted would be in a difficulty if charged again, for he would not be able to plead autrefois convict to either of two offences, if it is not made quite clear which of the two was the real ground of the conviction.[12]
[10] There is an overlapping in the language of “latent duplicity” and “uncertainty” in various of the authorities and academic discussion. This matter does not require further attention here.
[11] (2013) 116 SASR 316, 378. I have deleted the footnotes to this passage appearing in the report, amongst which are references to Johnson v Miller (1937) 59 CLR 467 and excerpts from illustrative decisions of Jones v The Queen [1980] WAR 203; R v Trotter (1982) 7 A Crim R 8; R v Lapthorne [1990] WAR 207; Willers v The Queen (1995) 81 A Crim R 219 and R v Suckling (1998) 104 A Crim R 59.
[12] Parker v Sutherland was approved by the High Court in Johnson v Miller (1937) 59 CLR 467, 488- 489 (Dixon J) and S v The Queen (1989) 168 CLR 266, 269 (Brennan J), 275 (Dawson J).
The present sentence is uncertain for the above reasons. However, the problem here probably goes further because it seems likely that the Judge in fact sentenced the appellant for both offences of discharge rather than one; in her sentencing remarks, her Honour never referred to either discharge as constituting the content of the charge but rather proceeded to describe the two discharges in equal and considerable detail.[13] In these circumstances, the principle in R v De Simoni may well be infringed.[14] However, in the circumstances it is unnecessary to pursue this matter further.
[13] AB 135-137.
[14] (1981) 147 CLR 383, 389. See also R v Olbrich (1999) 199 CLR 270, 278-279 and the recent decision in R v Tranter (No 2) and Compton [2014] SASCFC 66 [43]-[44].
The discount of 20 per cent for the pleas of guilty was inadequate
The appellant complains that the discount of 20 per cent for the pleas of guilty was inadequate. It is unnecessary to relate the complex history of the negotiations but I interpret them as showing a significantly higher degree of utilitarian co-operation by the appellant than did the Judge. The central fact is that if the prosecution had accepted the disposition offered by the appellant when the proceedings were before the Magistrates Court, the proceedings would have been disposed of on the same basis that they eventually were, but much more quickly. In my view, the discount of 20 per cent for the pleas of guilty was inadequate in the circumstances.
Re-sentencing the appellant for the assault offence
The facts are set out above. The assault offence was near the low end of the scale and a custodial sentence was not justified. I would impose a fine of $350 pursuant to ss 18 and 34, Criminal Law (Sentencing) Act 1988 in all of the circumstances.
Re-sentencing the appellant for the firearms offences
On the hearing of appeal, the prosecutor indicated that while he did not concede error, he would elect for the second discharge to be treated as the subject of the s 32AA(3) charge if an election were necessary. I proceed on that basis and sentence only for the second discharge.
As stated above, the appellant has a history of drug and alcohol abuse but only a minor criminal record; has no previous history of firearms offences and has not previously been sentenced to imprisonment. I have considered the detailed report from Dr Raeside which was tendered on the original sentencing hearing which supports the view that there is hope for the rehabilitation of the appellant.
However, the firearms offences here were serious. The facts are set out above and need not be repeated. The appellant had no firearms licence at all; he was in possession of a shotgun which had been so shortened as to become a prescribed weapon; and he deliberately discharged it in a built up area in the circumstances recited above. The seriousness of such offending and the need for general deterrence has been stressed in this Court.[15] I have come to the conclusion that no sentence other than a sentence of imprisonment would be sufficient. I also consider that an order should be made that the appellant is disqualified from owning or possessing a firearm until further order.
[15] Johnson v Registrar of Firearms (2001) 79 SASR 353; Offe v Police (2002) 84 SASR 1, 9-10; R v Gasmier [2011] SASCFC 43; R v Willingham (No 2) [2012] SASCFC 104 [44]; R v O’Toole [2013] SASCFC 18; R v Nozuhur [2013] SASCFC 81; R v Daniele [2014] SASCFC 22.
The Judge stated that she had adopted a starting point of two and a half years imprisonment but also said that that period took into account the time the appellant had spent in custody without bail, and then on home detention. A higher starting point than two and a half years is therefore to be inferred but the actual period is not stated. Her Honour then reduced the period of two and a half years to two years for the pleas of guilty.
I would commence with a starting point of two and a half years imprisonment and reduce the two and a half years to a period of one year and nine months for the pleas of guilty. I would then deduct a period of three months to account for about ten days spent in custody and about nine months spent on home detention prior to sentencing. I would therefore impose a head sentence of one year and six months imprisonment.
I consider that the appellant is a reasonably good candidate for parole and I would fix a relatively low non-parole period of eight months. Both the head sentence and the non-parole period are to commence as from 19 February 2014 when the Judge terminated the appellant’s bail agreement.
The decision of the Judge not to suspend was complained of on appeal and I have considered this matter on the re-sentencing. In all of the circumstances there is not good reason to suspend the sentence.
Orders
I propose the following orders:
1Appeal allowed.
2The sentences imposed and the orders made by Judge Davey on 21 February 2012 are set aside.
3In respect of the offences of “discharging a firearm being reckless as to whether that act injured, annoyed or frightened any person” contrary to s 32AA(3), Criminal Law Consolidation Act 1935, and “possessing a firearm without holding a firearms licence authorising possession of that firearm” contrary to s 11(1), Firearms Act 1977, the appellant is sentenced pursuant to s 18A, Criminal Law (Sentencing) Act 1988, to a single period of imprisonment of one year and six months with a non-parole period of eight months. The head sentence and the non-parole period are both to commence as from 19 February 2014.
4In respect of the offence of “assault” contrary to s 20(3), Criminal Law Consolidation Act 1935, the appellant is fined the amount of $350 pursuant to ss 18 and 34, Criminal Law (Sentencing) Act 1988.
5The shotgun and any ammunition seized from the appellant by South Australian Police are forfeited to the Crown.
6Pursuant to s 34A(1)(e), Firearms Act 1977, the appellant is hereby disqualified from owning or possessing a firearm until further order.
STANLEY J. I agree that the appeal should be allowed for the reasons given by Peek J. I agree with his Honour’s proposed orders.
NICHOLSON J. I agree that the appeal should be allowed for the reasons given by Peek J. I agree with his Honour’s proposed orders.