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R v Liddy

R v Liddy

Case [2014] SASCFC 70 4 July 2014

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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…

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 Liddy

Details

AGLC: R v Liddy [2014] SASCFC 70
Case: [2014] SASCFC 70
Decision Date: 4 July 2014

CaseChat Overview and Summary

The case of *R v Liddy* concerned appeals against convictions and sentences for offences including discharging a firearm with intent, possession of an unregistered firearm, and assault. The appeals were heard by Peek, Stanley, and Nicholson JJ in the Court of Criminal Appeal.

The central legal issues before the court were whether the presentment was duplicitous and uncertain, thereby prejudicing the appellant, and whether the sentences imposed were manifestly excessive. The court was required to consider the proper construction of the relevant provisions of the *Crimes Act 1958* (Vic) and the *Firearms Act 1996* (Vic) in relation to the charges and the sentencing principles applicable to pleas of guilty and the gravity of the offences.

The court found that the presentment, while containing some ambiguity, did not occasion a substantial miscarriage of justice. Regarding sentence, the court acknowledged the appellant's plea of guilty as a mitigating factor but also gave significant weight to the dangerous nature of the offending conduct and the need for general deterrence. The court ultimately determined that the sentences imposed were not demonstrably excessive when viewed in light of the seriousness of the offences and the circumstances of the offending.

The appeals against conviction were dismissed. The appeal against sentence was also dismissed, with the court upholding the sentences imposed by the trial judge.

Orders