R v Nash - [2008] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NASH
[2008] SASC 48
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice David)
29 February 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE - POWER TO IMPOSE
Crown application for permission to appeal against sentence - respondent pleaded guilty to five offences committed contrary to the Firearms Act 1997 (SA), involving the supply of 15 firearms and possession of one silencer - respondent also pleaded guilty to 14 offences committed contrary to the Australian Crime Commission Act 2002 (Cth), in relation to giving false or misleading information to an Australian Crime Commission examiner - respondent was fined $56,000 and ordered to pay $15,600 compensation in respect of the State offences - in respect of the Commonwealth offences, the respondent was sentenced to 18 months imprisonment, to be released after six months pursuant to a recognizance release order in the amount of $10,000 to be of good behaviour for two months - Crown application for permission to appeal against the penalties imposed in respect of the State offences - no objection taken to the sentence imposed in respect of the Commonwealth offences - whether permission to appeal should be granted in order to maintain sentencing standards - whether penalties imposed for State offences manifestly inadequate - whether penalties imposed adequately reflect the need for general deterrence and the seriousness of the offending.
Held: Permission to appeal granted in order to maintain sentencing standards - appeal allowed - penalties imposed manifestly inadequate - fines imposed in the lower court set aside - compensation order affirmed - respondent re-sentenced to three years imprisonment with a non-parole period of 20 months, to commence on 26 May 2008.
Australian Crime Commission Act 2002 (Cth) s 33; Crimes Act 1914 (Cth) s 4AA; Criminal Law Consolidation Act 1935 (SA) s 352; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32; Firearms Act 1997 (SA) s 14A, s 29A, referred to.
R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212, applied.
Everett v The Queen (1994) 181 CLR 295; Offe v Police (2002) 84 SASR 1, discussed.

R v NASH
[2008] SASC 48
Court of Criminal Appeal: Doyle CJ, Bleby and David JJ

DOYLE CJ. I agree with the orders proposed by David J and with his reasons. I have nothing further to add.
BLEBY J. I agree with the orders proposed by David J and with his reasons. I have nothing further to add.
DAVID J.
Introduction
This is an application by the Director of Public Prosecutions (SA) for permission…

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 Nash

Details

AGLC: R v Nash [2008] SASC 48
Case: [2008] SASC 48
Decision Date: 29 February 2008

CaseChat Overview and Summary

The case of R v Nash involves an appeal against sentence brought by the Crown in relation to a respondent who had pleaded guilty to multiple offences under both state and federal legislation. The respondent had been convicted of five offences under the Firearms Act 1997 (SA) for the supply of 15 firearms and possession of a silencer, as well as 14 offences under the Australian Crime Commission Act 2002 (Cth) for providing false or misleading information to an Australian Crime Commission examiner. The Crown sought permission to appeal the sentence imposed by the lower court, which had fined the respondent $56,000 and ordered the payment of $15,600 in compensation for the state offences, and sentenced the respondent to 18 months imprisonment, to be released after six months on a recognizance release order of $10,000.

The central legal issues before the court were whether permission to appeal should be granted to maintain sentencing standards and whether the penalties imposed for the state offences were manifestly inadequate. The court had to consider if the penalties adequately reflected the need for general deterrence and the seriousness of the respondent’s offending. Additionally, the court was required to determine whether the appeal would serve to uphold appropriate sentencing principles in light of the gravity of the respondent’s actions.

The court granted permission to appeal, finding that the penalties imposed for the state offences were manifestly inadequate. It was determined that the fines set aside did not adequately reflect the seriousness of the crimes or serve the purpose of general deterrence. The compensation order was upheld as it was deemed appropriate. Consequently, the court set aside the fines and re-sentenced the respondent to three years imprisonment, with a non-parole period of 20 months, to commence on 26 May 2008, which aligns with the end of the minimum term set for the Commonwealth offences. This re-sentencing was intended to ensure that the penalties reflected the gravity of the respondent's actions and met the needs of general deterrence.

Orders

Orders of the court

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Background

Background to the litigation

In respect of the 14 Commonwealth offences, the judge sentenced the respondent to 18 months imprisonment, with the respondent to be released after six months, pursuant to a recognizance release order in the amount of $10,000, to be of good behaviour for two years. That sentence was deemed to have commenced on 26 November 2007, the day the respondent was taken into custody. He will therefore be due for release on 26 May 2008. As previously stated, there is no appeal against that sentence.Facts It was not disputed that, during the years 2003 and 2004, the respondent was involved in selling or supplying firearms, ammunition and silencers to a man (herein referred to as “Mr X”) and an undercover police officer. The first transaction between the respondent and Mr X occurred in early 2003 when Mr X travelled from Melbourne to Adelaide on the instructions of another man, Mr Condello, and purchased six or seven handguns from the respondent, for which he paid approximately $12,000 or $13,000. No charges were laid in relation to that transaction, but these facts were presented to the court to demonstrate that the offences with which the respondent was charged were not isolated. On 22 October 2003, Mr X flew to Adelaide and attended at the respondent’s premises. Mr X was shown a number of firearms and he arranged to come back at a later date. On 25 October 2003, under instructions from Mr Condello, Mr X returned to Adelaide and paid $25,000 to the respondent, in exchange for a number of firearms and silencers, namely an Uzi submachine gun, a 9 mm pistol, a .357 magnum revolver, four semi-automatic pistols, a 12 gauge pump action shotgun and seven silencers. Ammunition was also supplied, but at no cost. The supply of these firearms (excluding the 12 gauge pump action shotgun) resulted in the respondent being charged with counts one and two on the Information laid by the Director of Public Prosecutions (SA). As agreed by the parties, the possession, and supply, of the seven silencers was a factor to be taken into consideration, but was not the subject of any charge. There was no charge laid with respect to the 12 gauge pump action shotgun. The day after the purchase, the respondent drove Mr X to the railway station. Mr X was subsequently apprehended by the police, who had him under surveillance. The police took possession of the firearms, and Mr X agreed to assist them with their investigation. On 22 April 2004, Mr X again flew to Adelaide to meet with the respondent at his premises. Mr X inspected a number of firearms, which he agreed to buy. He arranged with the respondent for another person to attend at a later date to pay for, and collect, the firearms. The respondent was unaware that the other person was an undercover police officer. On 3 May 2004, the undercover police officer, who was wearing a recording device, attended at the respondent’s premises. The respondent sold him four semi‑automatic pistols and three silencers, for $9,000. After this transaction, but on the same day, in another part of the premises, the respondent sold the undercover officer two rifles, a semi‑automatic pistol and a large amount of ammunition, for $3,000. Later, but again on the same day, the undercover officer was shown a further semi‑automatic pistol, which he bought from the respondent for $3,000. In relation to the supply of the eight firearms, the respondent was charged with counts three and four on the Information laid by the Director of Public Prosecutions (SA). As agreed by the parties, the possession, and supply, of the three silencers was not the subject of any charges but was a matter to be taken into consideration.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ BLEBY J DAVID J

As the respondent has already been sentenced to a Commonwealth sentence of 18 months imprisonment, to be released on a recognizance release order after serving six months, the head sentence will start from the time of release under his recognizance release order for the Commonwealth offences. The commencement of his non‑parole period is governed by s 32(1)(c) of the Criminal Law (Sentencing) Act, which states:(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—…(c) if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period—fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.Therefore, both the head sentence and non‑parole period for the State offences will commence upon the expiry of the minimum period set for the Commonwealth offences, namely six months from 26 November 2007, which is on 26 May 2008.Conclusion I would grant permission to appeal and allow the appeal. I would set aside the fines imposed for the State offences but not interfere with the compensation order. I would sentence the respondent to three years imprisonment, with a non‑parole period of 20 months, both commencing on 26 May 2008.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, BLEBY J, DAVID J

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