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…

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.

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Details

AGLC: R v LUCIEER [2021] SADC 80
Case: [2021] SADC 80
Decision Date: 6 July 2021

CaseChat Overview and Summary

In the matter of R v Lucieer, the appellant, a resident of Australia, was charged with multiple firearm offences. These charges arose from the appellant's involvement in serious drug offences, where firearms were used or possessed. The case was heard in the relevant court of appeal, where the appellant contested the classification of their criminal conduct.

The central legal issue before the court was whether the appellant's use or possession of firearms during the commission of drug offences qualified as serious firearm offences under the Sentencing Act 2017. The appellant argued that the firearms were not integral to the drug offences, while the prosecution maintained that the possession of firearms in the context of these offences warranted the classification of serious firearm offences.

The court examined the provisions of the Sentencing Act 2017, particularly section 50, which defines a serious firearm offender. The court concluded that the appellant's involvement in serious drug offences, combined with the use or possession of firearms, met the criteria for serious firearm offences. The court emphasised the gravity of drug offences and the potential danger posed by firearms in such contexts. Consequently, the court upheld the classification of the appellant's criminal conduct as serious firearm offences.

The court's decision affirmed the appellant's status as a serious firearm offender under section 50 of the Sentencing Act 2017, impacting the severity of the sentence to be imposed. This ruling ensures that the appellant's criminal conduct is appropriately categorised and that the associated penalties reflect the seriousness of the offences committed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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