R v LUCIEER - [2021] SADC 80

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LUCIEER
[2021] SADC 80
Ruling of his Honour Judge O'Sullivan
6 July 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
The defendant has pleaded guilty to three serious drug offences. He has also pleaded guilty to five firearms offences. During sentencing an issue has arisen of whether the defendant is a serious firearm offender within the meaning of s 50 of the Sentencing Act 2017.
During a search of the defendant’s property, police located a loaded Boito 12-gauge double barrel shotgun which was stored on a shelf in the foyer of the defendant’s house. Police also located an unloaded Remington .22 calibre rifle on shelving opposite the wall where the Boito shotgun was located. Two boxes of shotgun shells were found on the shelf close to the Remington rifle and a further four shotgun shells and six .22 calibre rifle rounds were located in the kitchen on a table and in a cabinet respectively. Both firearms were operational.
The defendant filed an affidavit, upon which he was cross-examined. The defendant says that the firearms are for the control of feral animals.
The prosecution submit that the defendant is a serious firearms offender by reason of the operation of s 49 (1)(d) and s 50 of the Sentencing Act 2017 and that although it may be that the defendant kept the firearms for the purposes of controlling feral animals, that does not exclude the firearms being used in the words of the section; “in the course of, or for a purpose related to the commission of a serious drug offence”.
Held: The firearm offences, to which the defendant has pleaded guilty, involved the use or possession of a firearm in the course of or for a purpose related to the commission of a serious drug offence. The defendant is a serious firearm offender within the meaning of section 50 of the Sentencing Act 2017.
Sentencing Act 2017 (SA) 49(1); 49(1)(d); 50; Firearms Act 2015 (SA), referred to.
R v Lombardi [2013] 115 SASR 577; R v Briggs (2014) 119 SASR 237 at [16]; R v Perre [2017] SASC 102 at [19], considered.

R v LUCIEER
[2021] SADC 80

Introduction

The defendant has pleaded guilty to a number of charges. Counts one, two and three are serious drug offences within the meaning of section 49 (1) of the Sentencing Act 2017.
Counts four to eight are firearms offences.
Prior to sentencing the defendant, an issue has arisen as to whether or not the defendant is a serious firearms offender within the meaning of section 50 of the Sentencing Act 2017. A person is classified as a serious firearms offender, if the person is convicted of a serious firearm offence. A serious firearms offence is defined in section 49 of the Sentencing Act 2017 as including:
(d) an offence under the firearms act 2015 involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence...
Facts
Briefly stated, on 2 April 2020, police attended at the defendant’s rural property (“Property) at Meningie to conduct a search, pursuant to a warrant issued under the Controlled Substances Act 1984. The defendant is the sole owner of the Property.
Entrance to the Property was gained through locked gates which police climbed over. Approximately 300 metres along the driveway there was another locked gate about 2 metres in height. The perimeter of the Property was secured by 2 metre high farm fencing.[1]
[1] Affidavit of Stephanie Amber Hagger, sworn 7 June 2020 at [5]
During the search, police located a total of 24 female cannabis plants being cultivated outdoors in three different locations on the Property.
Nine plants were located in a glasshouse, three plants in a chicken run and twelve plants in a fenced area between the main house and a shed.
The plants were large and at maturity, with most of them being approximately 1.5 to 2.5 metres in height. The 12 plants located between the main house and the shed were irrigated by a watering system.
Conservatively, the approximate yield of the flowering head, if harvested, is in the order of 29 kilograms.[2] Police also located 3.6 kilograms of dry cannabis inside the house on the Property, of which approximately 2.9 kilograms was of dry female flowering material.
[2] Statement of Tanya Leanne McKew dated 23 November 2020
In the house five transformers, six hydroponic lights and two light globes were found.
Police seized the defendant’s mobile telephone and reviewed it on 4 April 2020. In so doing, they located a number of messages that demonstrate his being engaged in trafficking cannabis.[3]
[3] Exhibit P2
Prior to the search of the defendant’s residence, the defendant told police that he had a Boito 12 gauge double barrel shotgun and a .22 rifle inside the house. The Boito double barrel shotgun was located on a shelf in the foyer to the left of the front door to the house and was loaded.[4]
[4] Affidavit of Ashleigh Broadbent sworn 30 April 2020
Police also located an unloaded Remington .22 calibre rifle on shelving opposite the wall where the Boito shotgun was located. Two boxes of shotgun shells were found on the shelf close to the Remington rifle and a further four shotgun shells and six .22 calibre rifle rounds were located in the kitchen on a table and in a cabinet respectively.[5]
[5] Affidavit of Matt Adrian Perriman sworn 8 June 2020
Although both firearms were in poor condition, they were both operational.[6]
[6] Affidavit of Christopher John Sancks sworn 24 August 2020
Procedural history
Each of the prosecution and defence have filed written submissions on the question of whether the defendant is a serious firearm offender. The defendant had filed an affidavit sworn 15 March 2021 and the prosecution cross-examined him on his affidavit.
On 22 June 2021, the defendant gave some limited evidence-in-chief, his affidavit was tendered[7] and he was cross-examined.
[7] Exhibit D1
Evidence
In considering this matter I have read the affidavits and statements of the prosecution witnesses, a psychological report of Dr Lim dated 2 March 2021, a supplementary report from Dr Lim dated 6 April 2021, the parties written submissions and the defendant’s affidavit sworn 15 March 2021. I have considered the oral evidence given by the defendant.
The defendant has difficulty in reading and hearing, for which I make due allowance. Overall, however, the defendant was an unimpressive witness who was evasive and, at times, argumentative.
Cannabis
Insofar as the cannabis is concerned, the defendant confirmed he told Dr Lim that his original intention was to cultivate three plants only. However, the plants “self-seeded and grew out of control”.[8]
[8] Lim report 2 March 2021 at [3.5]
In his affidavit, the defendant deposes that;[9]
3. In the course of my interview with Dr Lim, I gave a history of the plants I cultivated self-seeding and growing out of control. I refer to paragraph 3.7, page 7 of Dr Lim’s report.
4. I acknowledge that the history I provided was not entirely accurate, and that whilst some plants did self-seed, most were propagated with the intent to maximise their yield and nurtured to maturity.
[9] Exhibit D1 [3],[4]
The defendant was cross-examined on the inconsistency between what he told Dr Lim, as opposed to his acknowledged “not entirely accurate” information provided to her. He attempted to explain that inconsistency in his evidence, which I consider was both evasive and unconvincing.[10]
[10] T8.27-9.8; T9.27-13.6
Similarly, whilst maintaining in evidence that the plants had self-seeded, he was unable to explain why it was that all of the plants police located were female. His suggestion that the plants were bisexual was, with respect, nonsense.[11]
[11] T41.36-44.37
The defendant was also cross-examined on his trafficking of cannabis. It is apparent, and I find, that he had been trafficking cannabis for some years.[12]
[12] T6.14-38
It was suggested to him that the value of 29 kg of cannabis able to be harvested from the plants, when taken with the cannabis located inside the house on the Property, was over $200,000 a sum with which he ultimately agreed.[13]
Firearms
[13] T24.14-27.14
As to the firearms, in his affidavit, the defendant deposes that:
·He came into possession of a Boito 12 gauge shotgun and Remington .22 rifle when he was working on a sheep/cattle station near Broken Hill in the 1990s. He deposes that a person with whom he was working was leaving Broken Hill and didn’t want to take the guns with him so he offered them to him because the defendant was living on the station and was working at the time;[14]
·He previously held a firearms licence. There is no issue that he now no longer holds one;[15]
·Approximately six months prior to police attending at his Property on 2 April 2020, he purchased a firearms safe. Although the defendant does not depose to the firearms safe being installed, it seems to me on a consideration of the depositions that it had been installed. Nonetheless, he stored the two firearms in the foyer area to the left of the front door of the house on the Property.[16]
[14] At [11]
[15] Ibid
[16] At [12]
There is no issue that the shotgun was located by police sitting on a timber slat on a wall in the foyer at about chest height. Both barrels were loaded. The shotgun could be easily accessed and was in close proximity to ammunition which could be used in the shotgun.
The .22 rifle was also in the foyer on shelving and within close proximity to loose ammunition which could be used in the rifle.
The defendant deposed that the firearms had not been secured because he wanted to be able to grab them if he needed to shoot a cat or a fox.[17]
[17] At [13]
He acknowledged, however, that the time required to load a double barrel shotgun, if required, was in the order of 15 seconds.[18]
[18] T5824-30
As to the ammunition, the defendant deposed as to how he came to be in possession of both the shotgun and the .22 rifle ammunition. He deposes further that at the time police attended his residence he did not know he had any more .22 ammunition in his possession as he thought he had used it up shooting cats and foxes.[19]
[19] At [14]
Principles
There is no authority as to the test to be adopted in establishing if the defendant is a serious firearms offender in the context of sentencing. The question has, however, been considered in the context of applications for review of bail.
In R v Lombardi,[20] Kourakis CJ made a number of observations concerning the then section 20 AAC of the Criminal Law Sentencing Act:
The section contemplates that a sentencing court will make a finding as to whether or not a defendant is a serious firearm offender as part of the sentencing process. Indeed it might even be that the allegation would have been included in the particulars of the offence as a matter of practice or that alternatively a jury has determined both the firearm offence and drug offence in the same trial.[21]
[20] (2013) 115 SASR 577
[21] Ibid at [16]
In R v Briggs,[22] also in the context of a bail review, Sulan J observed:
It is clear that section 20AA(1)(d) of the sentencing act requires the prosecution to establish a nexus between the offence contrary to the firearms act and the serious drug offence. The words of the provision are unequivocal in this respect. Section 20AA(1)(d) states, “an offence against the Firearms Act 1977 (SA) involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence”. As observed by the Chief Justice in Lombardi, s 20AAC of the Sentencing Act contemplates a finding that a defendant is a serious firearm offender would be made as part of the sentencing process. The allegation that a defendant has committed a serious firearm offence would typically be made by the prosecution during submissions on sentence.
[22] (2014) 119 SASR 237 at [16]
In R v Perre,[23] again in the context of a bail review, Kourakis CJ observed:
The very proximity of the firearms to the cultivation satisfies me that it is reasonable to alleged that their possession was for the purposes of the cultivation. It is notorious that participants in the illegal drug trade resort to firearms to protect their interests. The applicant has not suggested an alternative explanation for their possession. The poor state of the firearms not detract from the allegation. Poor maintenance is common to legal and illegal uses of machinery. The guns can be accessed by removing some screws from the iron cladding. Even though inconvenient in the event of an unanticipated and sudden need to use the firearms, they are readily available for many other purposes connected to the cultivation.
[23] [2017] SASC 102 at [19]
The observations to which I have referred in Lombardi, Briggs and Perre are obiter. The Chief Justice’s observation in Perre is, of its nature, limited to the particular factual circumstances then confronting his Honour.
I approach this issue on the basis that whether the defendant is a serious firearms offender is a factual question to be determined beyond reasonable doubt as part of the sentencing process, taking all the surrounding circumstances into account. Those surrounding circumstances are to be established on the balance of probabilities, if not agreed.
Consideration
The prosecution submit that the defendant is a serious firearms offender by reason of the operation of sections 49 (1) (d) and 50 of the Sentencing Act 2017.
The defendant submits that he gave a consistent history of how he acquired the firearms in question and how and why they were stored in the manner alleged at all material times.
The defence also submits that the defendant was naïve as to the nexus that may be drawn between cultivation of cannabis and possession of firearms, which it submits is demonstrated by the fact that the shotgun the subject of counts four and six was loaded and stored on a shelf in the foyer of the house.
The defendant submits further that it is open to the court to determine on balance that the overriding purpose of the possession of the firearms was for feral animal management, notwithstanding the cultivation of cannabis plants.
It is certainly the case that the defendant has given evidence that he used firearms for feral animal control and I have no reason not to accept that evidence.
Although the defendant has given evidence on oath through his affidavit and orally as to the circumstances in which he came into possession of the firearms, I do not consider that to be of any particular weight in the circumstances. Similarly, although it may be that the defendant kept the firearms for the purposes of controlling feral animals, that does not exclude the firearms being used in the words of the section; “in the course of, or for a purpose related to the commission of a serious drug offence”.
There were three separate plots of cannabis on the Property, all close to the house, totalling 24 mature plants of heights ranging between 1.5 to 2.5 metres. The approximate value of the yield from those plants is over $200,000 There was also 2.94 kg of saleable dried cannabis located inside the house, the value of which was estimated at nearly $13,000.
As I have noted, entrance to the Property was gained through locked gates which police climbed over and locked gates about 2 metres high approximately 300 metres or so further along the driveway. The perimeter of the Property was secured by 2 metre high farm fencing. Clearly the defendant had taken some considerable steps to secure the Property.
Irrespective of whether the firearms were being used for the purposes of managing feral animals, in circumstances where:
·a cannabis crop of considerable value was being cultivated;
·both firearms were unsecured and readily accessible;
·the shotgun was loaded with the ammunition for both firearms located near to the firearms; and
·the high perimeter fencing.
I am satisfied beyond reasonable doubt that the offences under the Firearms Act 2015, to which the defendant has pleaded guilty in relation to the shotgun and the .22 rifle, involved the use or possession of a firearm in the course of or for a purpose related to the commission of a serious drug offence. I find that purpose is to protect the cannabis crop from others who may want to steal it or steal what had already been harvested.
Conclusion
I find the defendant is a serious firearm offender within the meaning of section 50 of the Sentencing Act 2017.