R v Nozuhur - [2013] SASCFC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
R v NOZUHUR
[2013] SASCFC 81
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Nicholson)
15 August 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING COCAINE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - POSSESSION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
The defendant pleaded guilty to two sets of offending. On 11 April 2012, the defendant committed the offences of aggravated possessing a firearm without a licence, failing to secure a firearm, failing to secure ammunition and possessing a prescribed drug, testosterone. The defendant was arrested and released on bail. On 6 September 2012, the defendant committed the further offences of aggravated possession of a firearm without a licence, failing to secure a firearm and supplying a controlled drug, cocaine. The offending in September 2012 was in breach of the terms of the defendant’s bail granted in April 2012. In respect of the April 2012 offending, the Judge imposed the one sentence of three years imprisonment. In respect of the September 2012 offending, the Judge imposed sentences of four years imprisonment for the firearms offending and one year imprisonment for the offence of supplying a controlled drug, cocaine. The Judge ordered that all sentences imposed be served cumulatively, leading to a total head sentence of eight years imprisonment. A non-parole period of five years was fixed.
Whether the Judge erred in rejecting the defendant’s contention that he had severed his ties with the Finks Motorcycle Club. Whether the overall sentence imposed was manifestly excessive having regard to the defendant’s criminal antecedents and prospects of rehabilitation, the guilty pleas, and the principle of totality. Whether the Judge erred in failing to find good reason to suspend the terms of imprisonment imposed. Whether the Judge erred in failing to have regard to amendments to the Criminal Law (Sentencing) Act 1988 (SA) allowing for greater reductions in sentences on account of guilty pleas.
Held per Gray J (David J concurring): Appeal dismissed.
Held per Gray J (David J concurring): The Judge’s conclusions regarding the withdrawal of the defendant’s nomination for membership of the Finks were open on the evidence. The evidence relied upon by the defendant as supporting his contention that he had withdrawn his nomination for membership of the Finks was equivocal, and there was evidence to the contrary.
Held per Gray J (David J concurring): The sentences imposed by the Judge were within her discretion having regard to the types of offending.
Held per Gray J (David J concurring): The reductions made on account of the guilty pleas were generous. The amendments to the Sentencing Act pertaining to guilty pleas had not been enacted at the relevant time.
Held per Gray J (David J concurring): The Judge did not err in failing to make a reduction on account of the principle of totality. The sentences imposed were not crushing.
Held per Gray J (David J concurring): No proper basis has been established to support a finding that there was good reason to suspend the sentences.
Held per Nicholson J (dissenting): The sentences imposed by the Judge were manifestly excessive. The appeal should be allowed and the appellant resentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Firearms Act 1977 (SA) s 11; Firearms Regulations 2008 (SA) reg 38(2) and reg 41(1); Controlled Substances Act 1984 (SA) s 18(3), s 33I and 33LA, referred to.
R v Nemer (2003) 87 SASR 168; Pollitt v Police [2007] SASC 382; Offe v Police (2002) 84 SASR 1; R v Hoang (2002) 83 SASR 254; R v Readman (1990) 47 A Crim R 181; R v Flentjar [2003] SASC 361; R v Gray [1977] VR 225; R v Perdikoyiannis [2011] SASCFC 82; Markarian v The Queen (2006) 228 CLR 357; House v The King (1936) 55 CLR 499; R v Clancy [2013] SASCFC 63; R v Mohammadi and Jalloul Supreme Court South Australia, Anderson J, 18/7/2013.; R v O’Toole [2013] SASCFC 18; R v Willingham (No 2) [2012] SASCFC 104; R v Clift [2010] SASC 79, considered.

R v NOZUHUR
[2013] SASCFC 81
Court of Criminal Appeal: Gray, David and Nicholson JJ
GRAY J.

This is an appeal against sentence.
On 11 April 2012, the defendant and appellant, Nima Nozuhur, committed the offences of aggravated possessing a firearm without a licence, failing to secure a firearm, failing to secure ammunition and possessing a prescribed drug, testosterone. He was arrested and released on bail. On 6 September 2012, the defendant committed the further offences of aggravated possession of a firearm without a licence, failing to secure a firearm and supplying a controlled drug, cocaine. The offending in September 2012 was in breach of the terms of bail granted in April 2012.
Following the defendant’s pleas of guilty, he was sentenced in respect of the April 2012 offending to the one sentence of imprisonment of three years pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). The Judge, in imposing this sentence, made a reduction of one year on account of the pleas of guilty.
The Judge imposed a sentence of four years imprisonment in regard to the September 2012 firearms offending. In fixing this sentence, the Judge made a reduction of one year on account of the pleas of guilty. In respect of the offence of supplying a controlled drug, cocaine, the Judge imposed a sentence of imprisonment of one year. In fixing this sentence, the Judge made a reduction of six months on account of the plea of guilty. The Judge directed that this sentence of imprisonment of one year be cumulative upon the sentence of four years imprisonment, making a total term of imprisonment in respect of the September 2012 offending of five years.
The sentences imposed for the September 2012 offending were ordered to be cumulative upon the sentence imposed for the April 2012 offending. As a consequence, the defendant faced a total head sentence of eight years imprisonment. The Judge considered but made no reduction on account of totality. Her Honour considered that, in all the circumstances, no further adjustment was necessary. A non-parole period of five years was fixed. The sentences commenced on 6 September 2012 when the defendant’s bail was revoked and he was taken into custody.
The Appeal
On appeal, the defendant submitted that the overall sentence was manifestly excessive. It was said that the Judge’s starting point for both the April and September offending was excessive when consideration was given to the fact that the defendant was a young man with no prior convictions at the time of the offending. It was contended that the Judge failed to have proper regard to the defendant’s prospects of rehabilitation, that an insufficient reduction was made on account of the pleas of guilty and that the Judge was in error in failing to make a reduction on account of the principle of totality. One further submission was advanced. It was said that, in all the circumstances, the Judge should have found good reason to suspend the terms of imprisonment imposed.
A Preliminary Matter
Before turning to consider the issues on appeal, there is one preliminary matter to be addressed which relates to the defendant’s nominee membership of the Finks Motorcycle Club. Before the sentencing Judge the defendant submitted that he had severed his ties with the Finks. The Judge rejected this submission. On appeal, counsel for the defendant sought to challenge this rejection. I shall commence my discussion of this issue by setting out the relevant background facts.
On 11 April 2012, the police attended at the defendant’s home and searched the premises. The police located a nine millimetre pistol containing a magazine with eight live rounds in a wardrobe in the defendant’s bedroom. They located other ammunition in the wardrobe. An empty pistol holster was found on the floor near a bedside table. The police also found a substance that, on testing, proved to be testosterone.
On 6 September 2012, the police again attended at the defendant’s home and searched the premises. On this occasion, they found a pistol hidden in a printer within arm’s reach of the defendant’s bed. There were live bullets in the firearm. The police also located a bag of white powder in the roof cavity above the bathroom ceiling fan. Small plastic bags were located with that substance. The powder weighed 2.08 grams and contained 1.24 grams of cocaine.
On both occasions, the police attended at the defendant’s premises to execute a general search warrant following the receipt of information. Both pistols had identification numbers, but there was no evidence as to whether the source from which they had been obtained could be identified. The defendant was not prepared to disclose the identity of the person from whom he had obtained either pistol.
The defendant has relevant criminal antecedents. He pleaded guilty to the offence of assault occasioning actual bodily harm while armed in company. On the same occasion he pleaded guilty to the offence of stealing. Both offences were committed in Queensland. He was released without conviction. Subsequently, the defendant was charged with the offence of fraud in Queensland. On this occasion he was fined and again released without conviction.
The defendant provided conflicting accounts as to how he came into possession of the pistol found in April 2012. When questioned by Mr Fugler, a psychologist engaged by his solicitor, the defendant claimed that he had become anxious and fearful for his personal safety as the result of an incident in which his Mercedes Benz motor vehicle was fire-bombed. At that time, the defendant was a nominee member of the Finks Motorcycle Club and, following the incident, he was given the pistol to keep in his house for personal protection.
A different account was advanced before the sentencing Judge. The defendant claimed that he had obtained the pistol from an acquaintance at a time before he became a nominee member of the Finks. The defendant declined to name or otherwise identify that acquaintance.
The defendant claimed that he had acquired the pistol located in September 2012 from members of the Finks. Again, conflicting accounts were proffered by the defendant. He informed Mr Fugler that a member of the Finks had placed the pistol in a printer in his bedroom and that he had subsequently become aware of its presence. Before the sentencing Judge he claimed that the Finks had forced the pistol on him. Before this Court he asserted that he had been given the pistol by the Finks on 5 September 2012 “to look after”. This was on the evening prior to the police search. When questioned by this Court, the defendant’s counsel was unable to offer any further explanation.
During the course of sentencing submissions, a dispute of fact arose. The defendant claimed that he had withdrawn his nomination as a member of the Finks and that this had been accepted by the Finks. He informed Mr Fugler that three weeks after his arrest, he told his Finks mentors that he no longer wished to be associated with the club and requested that he be able to withdraw. This was accepted and the defendant had not had any subsequent association with the Finks. He claimed that his sister had, on his instructions, returned his Finks vest. When giving evidence before the sentencing Judge, the defendant claimed that he had withdrawn his nomination during a telephone conversation with the Finks’ sergeant-at-arms in December 2012.
The Judge rejected the defendant’s evidence that he had severed his ties with the Finks. In that respect the Judge found:
I do not accept that you have severed your ties with the motorcycle club. I do accept that it’s a very difficult thing to do to serve ties and that you may wish to disassociate yourself from them. However, for the very reasons that you have articulated, it is an extremely difficult thing to disentangle yourself from a motorcycle club and their illegal activities once you become involved with them.
I have had regard to the report written by Mr Fugler. There is difficulty in accepting many of his conclusions because he has accepted that you did not want to have and did not have any further association with the motorcycle club from a time shortly after your arrest. This is clearly not the case. I do not accept that you are a person who had a history of not being accepted by a group of peers and that you were influenced by others with more persuasive and antisocial personalities than yourself in the circumstances of your offending as Mr Fugler concludes.
There was a substantial body of evidence before the Judge that was at odds with the defendant’s assertions that he had severed his ties with the Finks. During the period 27 September 2012 to 19 March 2013, the defendant, while in custody on remand, had 23 telephone conversations with two members of the Finks; one was the sergeant-at-arms and the other was a full member of the club. The defendant claimed in this Court that the recording of his telephone conversation with a Finks member on 21 December 2012 evidenced the withdrawal of his nomination. However, a review of a transcript of the recorded conversation of 21 December 2012 does not support the defendant’s assertion that he had severed his ties with the Finks. The suggested statements of withdrawal are entirely equivocal.
In several of the recorded telephone conversations that followed between January and March 2013, there are explicit references to an ongoing association between the defendant and the Finks. The conduct of both the defendant and members of the Finks is inconsistent with there having been a severing of the relationship. The following are three examples. First, a representative of the Finks repeatedly raised the question of whether the defendant needed financial assistance to fund his legal representation. Second, the defendant was informed that his Finks vest was being looked after so that it would be available for him on his release from prison. The defendant offered his thanks. There was no dissent. Third, the defendant raised the question of monies being paid to his sister and a representative of the Finks agreed that the payments would be made. The content of later conversations allow the conclusion that payments had been made.
As noted earlier, on the hearing of the appeal, counsel for the defendant sought to challenge the Judge’s rejection of the defendant’s evidence that he had severed his ties with the Finks. The Judge’s conclusions were plainly open on the evidence. Part of that evidence is referred to in the preceding paragraph. My review of the evidence confirms the correctness of those conclusions.
Consideration of the Sentences
The defendant’s parents were born in Iran and moved to Australia in 1986. The defendant was born the following year in Adelaide. The defendant moved to Queensland with his family, where his father ran a successful business. His father was away from home much of the time and his mother was responsible for the raising of the defendant and his sister. The defendant completed his schooling and was later awarded a diploma of health and science. He then obtained a real estate qualification at a TAFE Institute. He moved to live in Adelaide in 2011 where he took up residence with his sister. He intended to study law at Flinders University. At that time, his sister was undertaking a doctorate in pharmacy. In early 2012, the defendant became involved with members of the Finks Motorcycle Club and became a nominee member of the club.
An appropriate sentence should address several broad objectives: the punishment of an offender; retribution to reflect society’s disapproval and rejection of the conduct in question; deterrence of the individual offender; deterrence of others; and rehabilitation and reform.[1] In different cases, these considerations impact in different ways and to different degrees. They overlap and cannot be considered in isolation. These considerations are indicators of the appropriate sentence and sometimes point in different directions. Arriving at a sentence in a particular case involves a balancing of all the matters identified in the Sentencing Act and the making of a judgement in light of all relevant matters.[2]
[1] R v Nemer (2003) 87 SASR 168, [6].
[2] R v Nemer (2003) 87 SASR 168, [7]; Veen v The Queen (No 2) (1988) 164 CLR 465, 476.
In order to arrive at an appropriate sentence, the sentencing judge had to weigh the maximum penalty fixed by Parliament, the circumstances of the offence and all the relevant matters set out in the Sentencing Act.[3]
[3] R v Nemer (2003) 87 SASR 168, [5].
Possession of a firearm is a privilege and a serious responsibility. The overriding policy of the Firearms Act 1977 (SA) is to protect the public from the unsafe or criminal use of firearms. As I observed in Pollitt:[4]
… Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:
Designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.
[Footnote omitted.]
[4] Pollitt v Police [2007] SASC 382, [20].
Relevant amendments were made to the Firearms Act in 2008. In the second reading speech the Minister said:[5]
In South Australia, the majority of violent criminal behaviour with firearms does not involve legitimate firearms owners, nor legitimately owned, secured and registered firearms. Whilst there is some conjecture as to the quantity of illegal firearms circulating in the community, there is no doubt that there is a market for unrecorded and essentially untraceable firearms to be used for a criminal purpose. It is the nature of this enterprise that there exists difficulties in police being able to prevent this trade and the subsequent crime arising from it.
General deterrence is of importance in sentencing for offences of this kind. The community should not be complacent about the dangers of firearms and the damage that can be caused by them.[6]
[5] South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2055 (Paul Holloway).
[6] Offe v Police (2002) 84 SASR 1, [26].
Loaded firearms such as those possessed by the defendant put the public in danger. In this case, there was no apparent reason for the possession of the pistols other than for criminal activity. The defendant admitted that the pistol the subject of the September offending had been given to him as a consequence of his association with the Finks. No legitimate purpose was identified. This pistol was possessed at the time that the defendant was in possession of cocaine for supply. It is commonly the case that drugs and firearms go together.

There is a clear legislative intent to punish severely those who supply drugs to others. The impacts that drugs have upon the user and the community as a whole are as great whether the drug has been sold, supplied or administered. In Hoang, I made the following observations with the concurrence of Perry and Williams JJ:[7]
[The legislation] was enacted to prohibit the possession of drugs for distribution whether by sale or supply or administration. Possession for these purposes has been treated seriously by Parliament. This is demonstrated by the heavy penalties that have been prescribed. It is of significance that the penalties set out in the Controlled Substances Act do not differentiate between sale or supply or administration.
[7] R v Hoang (2002) 83 SASR 254, [23].
At the time of the offences in September 2012, the defendant was on bail. This was a matter of aggravation.[8] The commission of offences on bail indicates a contempt or disregard of the system of law. It suggests that the defendant had no regard for the law and little intention of obeying its commands. It is a matter relevant to the prospects for rehabilitation and suggests that any leniency extended might be abused.[9]
[8] R v Readman (1990) 47 A Crim R 181, 184; R v Flentjar [2003] SASC 361, [12].
[9] R v Gray [1977] VR 225. See also R v Perdikoyiannis [2011] SASCFC 82, [90].
The defendant’s firearms offending, both in April and September 2012, was serious offending. On both occasions, the defendant was in possession of an unlicensed loaded pistol. Each offence carried a maximum term of imprisonment of ten years. To my mind, both the April and September 2012 firearms offending called for terms of imprisonment. In fixing a head sentence of three years in respect of the April 2012 offending, including the possession of a prescribed drug, the Judge acted within her discretion. The sentence imposed in respect of the September 2012 firearms offending was also within the discretion of the Judge. As noted earlier, this offence was aggravated as the defendant was in breach of the terms of his bail granted in respect of a similar charged offence. The sentence of 12 months imprisonment for the offence of possession of cocaine for supply was also within the discretion of the Judge.
As earlier noted, the Judge made reductions on account of the pleas of guilty. The defendant submitted that the Judge should have had regard to the recent amendments to the Sentencing Act allowing for greater reductions on account of pleas. These amendments had not been enacted at the relevant time.
In my view, the complaint in respect of the reductions on account of the pleas of guilty is misconceived. The Judge was obliged to sentence the defendant according to the law applicable at that time. The amendments were not yet enacted into law at the time that the defendant was sentenced. Further, it is my view that the Judge was unduly generous in the reductions that were made. The defendant’s assertion that he had severed his ties with the Finks had been rejected by the Judge. Before this Court, the defendant disavowed the account that he gave to Mr Fugler on this topic. As discussed above, the evidence of the later conduct of both the defendant and the Finks was materially inconsistent with the suggestion that their relationship had been severed. These circumstances strongly militate against any suggestion that the defendant was truly contrite and remorseful for his conduct. In any event, the prosecution case was a very strong one. The Judge would have been well justified in making substantially lesser reductions on account of the pleas of guilty.
The Judge specifically referred to the principle of totality and reached the conclusion that the overall sentence was not crushing. I do not consider the sentence to be crushing. It is to be accepted that eight years imprisonment with a non-parole period of five years is a substantial sentence to be served by a man of 25 years with relatively favourable personal antecedents. However, having unlicensed loaded pistols in a bedroom is wholly unacceptable.
No proper basis has been established to support a finding that there was good reason to suspend the sentences. Immediate custodial terms were appropriate.
Conclusion
The sentences imposed by the Judge were within her sentencing discretion. No error has been established in the exercise of that discretion. I would dismiss the appeal.
DAVID J: I agree with the reasons of Gray J and I would dismiss the appeal. I wish to add a few comments.
There is no doubt that the sentence was a severe one. However, I am of the view that in this case it was justifiably so. The particular seriousness of this offending demanded that the sentencing Judge regard general deterrence as paramount. Her Honour obviously did so. On both occasions the appellant was in possession of a loaded pistol with attendant ammunition. As has been pointed out by Gray J, on the second occasion the appellant was on bail and he intentionally breached that order by like offending. Added to that, there was no credible explanation as to why he was in possession of these loaded pistols. The clear conclusion is that it was for a sinister and dangerous purpose.
I would dismiss the appeal.
NICHOLSON J. I have had the benefit of reading the judgments of Gray J and David J in draft. Gray J has summarised the factual basis of the offending and the other sentencing considerations that informed the sentence arrived at by the sentencing Judge and which have also informed the decisions of Gray J and David J to dismiss the appeal. I agree in substance with much of that which their Honours have written. Nevertheless, I have come to a different decision as to the disposition of the appeal.
The appellant has raised five grounds in his amended notice of appeal.[10]
Grounds upon which permission to appeal is sought:
1.The starting points for each of the head sentences imposed by the learned Sentencing Judge were manifestly excessive in an objective sense;
2.The learned Sentencing Judge erred by finding, as a matter of fact, that rehabilitation was not a relevant consideration to sentence (see second to last paragraph, page three of sentencing remarks 03 June 2013). Therefore the sentences individually and collectively were manifestly excessive;
3.Insufficient discount for the early pleas of guilty gave rise to head sentences for each offence that were also manifestly excessive;
4.Failure to reduce the total sentence with regard to the totality principle resulted in an overall sentence which was also manifestly excessive;
5.The sentence should have been suspended, particularly in circumstances where the prosecution conceded that it would not have been an appellable error for the learned Sentencing Judge to suspend.
I would dismiss the appeal insofar as it relies on grounds two to five for the reasons given by Gray J. However, the final head sentence of eight years and the non‑parole period of five years imprisonment was manifestly excessive in all the circumstances for the reason relied on in ground one and I would allow the appeal on that ground.
[10] Appeal Book p7.
On 11 April 2012, police located a 9mm semi automatic pistol in the appellant’s bedroom wardrobe. The pistol was loaded with nine live rounds and in addition 115 rounds of ammunition suitable to that firearm, a holster and two files of testosterone were found. He was charged with and subsequently sentenced for the following offences.
(i)Aggravated possession of a Class H firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA). The offence was charged in its aggravated form because the firearm was loaded. The maximum penalty for this aggravated offence is a fine of $50,000 or 10 years imprisonment.[11]
(ii)Failing to secure the firearm contrary to reg 38(2) of the Firearms Regulations 2008 (SA).
(iii)Failing to secure ammunition contrary to reg 41(1) of the Firearms Regulations 2008 (SA).
(iv)Possessing a prescription drug (testosterone) without authorisation contrary to s 18(3) of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is a fine of $10,000 or two years imprisonment.[12]
[11] Section 11(7a) of the Firearms Act 1977 (SA).
[12] Section 18(3) of the Controlled Substances Act 1984 (SA).
For failing to secure the firearm and failing to secure ammunition the Judge imposed convictions but no penalty. For the aggravated possession of a Class H firearm and the possession of a prescription drug the Judge exercised the discretion available to her under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the single penalty of three years imprisonment reduced from four years on account of the appellant’s guilty pleas.
On 6 September 2012, whilst the appellant was on bail for the April offending, the police again searched his home. They located a .25 calibre semi‑automatic firearm concealed inside a printer in the appellant’s bedroom and within reach of the bed. This firearm was loaded with six live rounds. The police also located 2.08 grams of a mixed powder substance containing 1.24 grams of cocaine. The appellant was charged with the following offences.
(i)Aggravated possession of a Class H firearm without a licence. This offence again carried a maximum penalty of a fine of $50,000 or 10 years imprisonment.
(ii)Failing to secure a Class H firearm.
(iii)Possession of a controlled drug (other than cannabis and its derivatives) intending to supply it to another person. The maximum penalty for this offence is a fine of $50,000 or imprisonment for 10 years or both.[13]
[13] Section 33I(i)(b) of the Controlled Substances Act 1984 (SA).
The appellant was sentenced for the aggravated possession of the Class H firearm to a term of four years imprisonment reduced from five years on account of his plea of guilty and for the offence of possession of a controlled drug intending to supply, to a term of 12 months imprisonment reduced from 18 months on account of the plea of guilty. A conviction but no penalty was ordered with respect to the offence of failure to secure a Class H firearm.
The Judge ordered that all three prison terms were to be accumulated giving rise to the head sentence of eight years imprisonment. A non‑parole period of five years was ordered. The appellant complains about each of the starting points for those offences with respect to which the Judge imposed a prison term.
I agree, for the reasons given by Gray J, that any complaint concerning the rate of discounts given for the April offending (25 per cent) and the June offending (20 per cent) is without foundation. I also agree that the sentence imposed with respect to the offence of possessing cocaine for supply was within the Judge’s discretion. Even if a starting point of 18 months might be considered as high[14] this was ameliorated by the allowance of a generous one‑third discount. A head sentence of 12 months, after allowance for a plea, for this offence was well within the discretion.
[14] Given the relatively small quantity of cocaine found, the fact that the offence related to an intention to supply without evidence of actual supply, that no trafficking was involved and the appellant’s lack of any prior drug related convictions.
However, I am of the view that the starting points for the two offences of aggravated possession of a Class H firearm were too high so as to lead to a final head sentence that was manifestly excessive.
There are a number of features of the appellant’s behaviour, both prior to and after the offending, which is rightly to be criticised. They have been described more fully in the sentencing remarks of the Judge and in the judgment of Gray J. The more important include the following:
(i)the circumstances in which each firearm came into the appellant’s possession;
(ii)the appellant’s lack of frankness with the prosecuting authorities and the Court about his involvement with the Finks motorcycle gang at the time prior to obtaining possession of the first firearm (April 2012);
(iii)the appellant’s lack of frankness generally as to his continued involvement with the Finks motorcycle gang;
(iv)the appellant’s attempts to mislead the Court as to his having broken off connections with the Finks motorcycle gang following his arrest for the second firearms offence;
(v)the appellant’s failure to provide a full and frank explanation of the reasons for his possession of each firearm;
(vi)the appellant’s brazen decision to take from Finks associates (and to retain) possession of a second loaded firearm, having previously been arrested and placed on bail for the very same criminal conduct;
(vii)the fact that the loaded weapons in each case were in easy reach of the appellant in his bedroom.
These matters can be said to relate to the objective seriousness of the offences, as committed. As David J has observed, the clear conclusion to be inferred from the appellant’s conduct is that he was in possession of each firearm for a sinister and dangerous purpose. Furthermore, that sinister and dangerous purpose undoubtedly was related to either the appellant instigating violent criminal conduct or a preparedness to use each gun for defensive or vigilante purposes so as to take the law into the appellant’s own hands. In addition, the matters referred to just now are also relevant to the question of contrition and prospects of rehabilitation.
The objective seriousness of the offences, as committed, is to be reflected in the severity of the penalty imposed in the sense of locating it within the appropriate range. Insofar as the question of contrition and rehabilitation prospects are concerned, the factors I have mentioned strongly suggest that the appellant should not be accorded leniency to the extent that his relatively young age, lack of relevant criminal antecedents and guilty pleas might otherwise permit.
Nevertheless, the gravamen of each offence is the possession of the weapon in question, whilst unlicensed, in the circumstances in question. The appellant is not to be punished directly because of whom he was associating with at the time of the offending or because of whom he may continue to associate with nor for such unknown and unproven illegal acts that he might have committed in the past or gone on to commit in the future with each firearm.
In R v Nemer, Doyle CJ said this.[15]
[15] (2003) 87 SASR 168 at [4]-[12].
The sentencing of offenders who have committed serious crimes is difficult.
The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.
The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society's disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.
In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence and sometimes they point in different directions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.
That is why sentencing an offender is not a precise process. There is no sentence that is exactly right in a given case. In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range. Any sentence within that range is appropriate. Different judges, presented with the one case, are likely to arrive at different results within that range. The different results do not indicate that an error has been made, as long as they are within the acceptable range. They reflect the nature of the sentencing process.
This may be disconcerting to some. But it is important that the public understand it.
It is also important to understand that a court of appeal can interfere with a sentence only if an error has been made. The judges who hear the appeal cannot simply substitute the sentence that they would have imposed, which might well be a different one, reflecting the fact that the process is not precise. They can interfere only if there is an error.
If there is an appeal against a sentence on the ground that it is excessive or inadequate, the court of appeal can interfere only if the sentence is outside the permissible range.
If the appeal is on the ground that some error of law or fact has been made, and such an error has been made, it may be possible for the court to interfere on that ground.
I am satisfied that no specific error on the part of the Judge has been demonstrated. The only question I am interested in is whether the final sentence imposed is manifestly excessive, that is, is it a sentence that, upon the facts, is unreasonable or plainly unjust.[16] Counsel for the appellant submits that having regard to the personal circumstances of the appellant and the circumstances of the offending itself, the starting point of four years for the first firearms offence and the starting point of five years for the second firearms offence were both unreasonable and plainly unjust with the consequence that the ultimate head sentence of eight years imprisonment and non‑parole period of five years is also to be so characterised.
[16] Markarian v The Queen (2006) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
When considering whether a sentence is manifestly excessive an important consideration, indeed a starting point, is to have regard to the maximum penalty.[17]
The maximum penalty provides an indication of how serious the legislature regards the offending. Further, it provides some yardstick against which to assess where the seriousness of the offence lies, having regard to other offences.[18]
The maximum penalty for the offence of aggravated possession of a Class H firearm without a licence is 10 years imprisonment. In this case, the Judge’s starting point for the first offence was well towards, and for the second offence at the mid point of, the range.
[17] R v Clancy [2013] SASCFC 63 at [62].
[18] Clancy at [62] (Sulan and Blue JJ).
As far as the September offending was concerned the Judge imposed separate penalties with respect to the firearms offence and the possession of a controlled substance for supply offence. I have already indicated that the term of 12 months imprisonment for the drug offence was within the Judge’s discretion. However, when sentencing for the April offending, the Judge employed s 18A of the Sentencing Act to impose the one penalty for both the firearms offence and the offence of possessing a prescribed drug (Testosterone). This presents a slight complication.

Counsel for the appellant submitted that the offence of possessing a prescribed drug, in the circumstances and if considered standing alone, might have attracted no more than a fine. That may be so, but this was not the way the Judge viewed it. By exercising the discretion available to her under s 18A, her Honour evidently accepted that the offence of possessing a prescribed drug merited a term of imprisonment. Nevertheless, this offence standing alone and particularly given the appellant’s relatively good prior criminal record, in my view, should have attracted only a very short term of imprisonment, measured in weeks at most. Even bearing this in mind, the term of three years imprisonment for the two April offences, arrived at after discount, was too high and notwithstanding that the discount for the pleas, in my view, can be seen as generous.
Comparisons with other cases can only be of limited assistance. No two cases are alike, particularly given that any individual sentencing task will embrace consideration of the objective features of the particular offending itself and of matters personal to each offender. However, “some indication of the range of sentences for similar offending can be gleaned and can be a guide when considering whether [a particular sentence] is manifestly excessive”.[19]
[19] Clancy at [63] (Sulan and Blue JJ).
When considering penalties imposed in other cases for firearm offences an immediate difficulty arises in that so often such an offence is considered in the context of or together with other offending and often other offending in which the firearm in question was deployed. Nevertheless, my review of sentences imposed in the higher courts in this state for the offence of possessing a prescribed firearm without a licence, in both aggravated and non‑aggravated forms, standing alone, indicates that, typically, sentences measured in months have been imposed and more often than not the sentence has been suspended. However, I do not suggest that this is a case where suspension of the inevitable prison sentence could be justified. There have been a limited number of cases, perceived as particularly serious, where a sentence of two years or so imprisonment has been imposed.
Just this year Daniel John Attard was sentenced in the District Court[20] for the possession of a sawn‑off shotgun whilst not having a licence and for failing to properly secure a shotgun shell in a locked cabinet and for possessing the same shotgun whilst it was unregistered. The first offence carried a maximum penalty of 10 years imprisonment, the same maximum penalty as applies in the present case. Mr Attard had the sawn‑off shotgun in a backpack. Whilst in a public street he reached into the bag, pulled out the gun and pointed it down the street whilst gesturing angrily. He then put the gun back in the bag and took the bag inside the house of the mother of his partner and stored the bag in a back room where it was later found by police. Mr Attard had a very significant prior criminal record including, four offences of robbery in company, a number of property offences, an offence of robbery with violence and assaults. The sentencing judge rightly identified these matters as relevant to the question of leniency and to prospects of rehabilitation. Mr Attard was sentenced to a term of two years imprisonment (after allowing a discount of 25 per cent for the plea) with a non‑parole period of nine months. The sentence was imposed pursuant to s 18A with reference to the two offences of possessing a firearm without a licence and possessing the firearm when it was unregistered.
[20] District Court South Australia, Rice DCJ, 25/6/2013.
I mention this matter not because it is directly comparable with the present offending but because it represents a serious example of the type of offence now under consideration and involved circumstances which would have invoked fear in other persons whether or not the gun was loaded. It also concerned an accused who, unlike the present appellant, had a very significant criminal record involving a history of violence. The sentence imposed was at the high end of those that, to date, typically have been imposed for this type of offence.
Further assistance can be gleaned from cases where serious offences in addition to a firearms offence are committed. In R v Mohammadi and Jalloul,[21] Mr Jalloul, a member of the Comancheros motorcycle gang, was sitting in a café in North Adelaide and in possession of a loaded firearm. Mr Mohammadi entered and an altercation ensued. Mr Jalloul began shooting. One shot wounded Mr Mohammadi near his eye. Mr Jalloul ran outside and continued to shoot in the street. Mr Jalloul had prior convictions involving robbery and violence. Mr Jalloul’s plea was accepted on the basis that he acted excessively in self‑defence. Nevertheless, he was convicted of aggravated endangering life and aggravated possessing a firearm without a licence. He was sentenced using s 18A to six years and nine months reduced from nine years on account of his pleas (subject to a further deduction for time served). This case is, of course, very different from the present. Nevertheless, it emphasises the severity of the sentence under appeal which incorporates seven years (after discount) for the two possession of firearms offences.
[21] Supreme Court South Australia, Anderson J, 18/7/2013.
Unfortunately, most of the guidance with respect to the present type of offence comes from first instance sentencing remarks. This Court has had little opportunity to consider and offer sentencing guidelines for this type of offence. It would not be appropriate to do so in this case.
However, there are some authorities in this Court which are of assistance. In R v O’Toole,[22] the appellant pleaded guilty to a number of offences including possessing a prescribed firearm without a licence which offence was aggravated by the fact that the firearm was loaded, possessing an unregistered firearm, possessing a prohibited weapon, theft, failing to store a firearm securely, failing to store ammunition securely and possessing prescribed equipment contrary to s 33LA of the Controlled Substances Act 1984 (SA). The circumstances of the offending are described in the judgment of Vanstone J as follows.[23]
All the offences were detected on one occasion. On 21 July 2010 police attended a warehouse at Woodville North. It was the subject of heavy security, including cyclone wire fences with barbed wire and closed circuit television and security cameras. When police climbed over the fence to knock on the roller door they could see on the closed circuit television the appellant running from the roller door towards the rear of the premises, carrying what appeared to be a sawn-off semi automatic rifle and then returning to the roller door.
Once inside police located the sawn-off rifle, a prescribed firearm, which had been hastily concealed. It was loaded with rounds. Unsecured, in close proximity to the rifle, was a box of 40 rounds of ammunition to suit. The firearm was unregistered. Neither the weapon nor the ammunition were securely stored as required and these were the two offences attracting fines only. They also located a SAPOL expandable baton and a SAPOL blue safety vest, which were the subject of the theft charge. In addition, a prohibited weapon in the form of a butterfly knife was found.
Police also located four hydroponically grown cannabis plants, together with a quantity of prescribed equipment for use in growing such plants and $9,500 in cash. The appellant was dealt with in the Magistrates Court in relation to the plants, where a plea to simple possession was accepted, and he was acquitted in the same Court of unlawful possession of the money.
[22] [2013] SASCFC 18.
[23] At [4]-[6].
The sentencing judge employed s 18A of the Sentencing Act to impose the one penalty being a sentence of imprisonment (unsuspended) for all offences and notwithstanding that two of the offences carried only a monetary penalty. The Court of Criminal Appeal set the sentence aside and resentenced.
The appellant had argued that, upon a resentencing, a lesser sentence should be imposed and that it should be suspended. The single penalty imposed by the sentencing judge was two years reduced from two years and six months following the pleas of guilty. The appellant had a psychological condition of some significance and the sentencing judge, as a result, ordered a shorter than usual non‑parole period of eight months.
When resentencing, Peek J said this.[24]
I turn to the particular circumstances of the appellant’s offending. The offence of possessing a prescribed firearm without a licence was a serious one. The weapon was semi-automatic and had been modified to be able to be fired with one hand. The offence was made the more serious by the aggravating factor of being fully loaded. Indeed, the safety catch was in the “off” position and there was a round chambered in the rifle.
However, the appellant was sentenced on the basis that he had been the subject of two home invasions in 2009 and that he had formed the view that he needed the rifle to protect himself. His Honour went on to discuss a number of mitigatory features present in the case before him. Whilst the appellant had been charged with a number of, ostensibly serious offences, the Court of Criminal Appeal treated the aggravated possession of a firearm offence as the major offence. Ultimately, upon resentencing, the majority[25] took the view that the sentence originally imposed by the judge should stand, that is, imprisonment for two years (reduced from two years and six months for the pleas of guilty) with a non‑parole period of eight months but be suspended.
[24] At [36].
[25] Peek J with whose reasons Sulan J agreed. Vanstone J provided separate reasons and would have imposed a slightly longer head sentence and not suspended it..
This case involved a number of considerations that do not arise in the present case. However, the firearms offending was very serious and for reasons quite similar to those in the present case. The mitigatory factors present in O’Toole were reflected in a very lenient non‑parole period and ultimately in the decision of the majority to suspend the sentence. However, given the number of offences that were taken into account and the objective seriousness of the firearms offence before the Court in O’Toole, it is difficult to see how, in the present case, starting points so much higher than that in O’Toole can be reconciled.
In R v Willingham (No 2),[26] the appellant had been convicted of two firearms offences both of which involved conduct that was in breach of a suspended sentence bond. The second firearm offence was committed whilst the appellant was on bail for the first firearms offence. In each case the offence was (non‑aggravated) possessing a firearm without a licence for which the maximum penalty was a fine of $35,000 or imprisonment for seven years. The sentencing judge had purported to both fine and imprison with respect to the firearms offences and the appeal as to sentence was conceded by the Director of Public Prosecutions on the basis that in so doing the Judge had acted beyond jurisdiction.
[26] [2012] SASCFC 104.
The initial sentence was set aside and the appellant was resentenced by the Court of Criminal Appeal.[27] The firearm, the subject of the first offence, was a handgun located in the kitchen in a disassembled state although capable of being assembled so as to be fired. The serial number had been removed. The firearm, the subject of the second offence, was a handgun in working order and was hidden in a mattress in a bedroom of the house. Its serial number had been removed. The Court described both offences as very serious.
The defendant was in possession of firearms for which he held no licence and from which the respective serial numbers had been removed. There was no justification at all for the defendant to be in possession of such weapons. The removal of the serial numbers allows the inference to be drawn that they were intended for some inappropriate use, more particularly, for use in some illegal activity. The Court considers that the sentences imposed were merciful.[28]
[27] In a judgment of the Court comprising Gray, Sulan and Stanley JJ.
[28] At [44].
The Court proceeded to resentence and imposed a term of eight months imprisonment with respect to the first possessing a firearm without a licence offence and a term of 13 months imprisonment with respect to the second such offence, the two sentences to be accumulated.
Again, any comparison can only be of limited utility for all the usual reasons but, in particular, given that this was a defence appeal and the resentencing by the Court of Criminal Appeal is unlikely to represent the outer reaches of the sentencing discretion that was available on the facts of that case. Nevertheless, Willingham (No 2) remains indicative of the approach, to date, to sentencing for serious examples of this type of offence.
In R v Clift,[29] the Court of Criminal Appeal had to consider another defence appeal against sentence. The appellant had pleaded guilty to a number of offences, including two counts of possessing a Class H firearm without a licence the maximum penalty for each of which offence was imprisonment for seven years or a fine of $35,000. The major offence dealt with was that of trafficking in a large commercial quantity of a controlled drug, the maximum penalty for which was imprisonment for life or a fine of $500,000 or both. The matter also concerned a breach of a suspended sentence bond and a charge of unlawful possession.
[29] [2010] SASC 79.
The agreed facts before the sentencing judge included that the appellant was a member of the Rebels Motorcycle Club, that he had been the sergeant‑at‑Arms of the Southside Chapter and that he had subsequently become and was at the time of the offending president of the Southside Chapter. The appellant was a heavy user of methylamphetamine but also engaged in a commercial enterprise with respect to the sale of methylamphetamine.
During a search of the appellant’s home and vehicle, the police located two firearms. A semi‑automatic handgun had been hidden in a cavity above a fireplace. It was wrapped in heat sealed plastic. The second firearm was a semi‑automatic handgun located in the centre console of the appellant’s vehicle. Both firearms were loaded and in each case the serial numbers had been obliterated. The appellant did not hold a firearms licence.
The appellant was sentenced for the firearms offences separately from the other offending. The firearm offending was described by the majority[30] as a serious example of its kind. The sentence as imposed by the trial judge with respect to the firearm offending was described as “within the appropriate range”.[31] The fate of the appeal as to sentence ultimately turned on a question of totality following the accumulation of the sentences imposed for all of the offending.
[30] Nyland and Gray JJ.
[31] At [21].
The sentencing judge sentenced the appellant on the basis that he was satisfied that the appellant had the firearms for reasons arising out of his drug trafficking activities as well as for the purpose of protecting himself and his family from others who were threatening him. The separate single sentence imposed for the two firearm offences was a term of two years and seven months imprisonment reduced from three years and six months on account of the pleas of guilty. The Court of Criminal Appeal did not interfere with this or any other aspect of the sentence ultimately imposed in that matter.
In the present case, the Court has before it a relatively young man (25 years of age) with no prior offences of any significance who was found in possession (twice) of loaded firearms secreted within easy access in his bedroom. However, at no time was any member of the public put at risk. Cases can easily be envisaged where the circumstances surrounding the act of possession would render the offending objectively more serious than retaining a loaded firearm in a hidden location in a bedroom. I have in mind, the leaving of a loaded firearm in more accessible and more obvious locations in a house such that other members of the household, particularly children, might have access to it or carrying the firearm in a public place with the risk that it might be used, either accidentally or purposely[32] or that it might fall into the hands of other persons should an altercation eventuate.
[32] Cf; R v Mohammadi and Jalloul.
I recognise that the public is becoming increasingly alarmed, and rightly so, about the prevalence of firearms in the community and about what appears to be an increase in illegal use of firearms within certain sections of the community. It may be that sentencing outcomes for possessing unlicensed and unregistered firearms have hitherto been too lenient. Plainly it is an area, and the present case is one, where both personal and general deterrence are of the utmost significance. Nevertheless, I have reached the conclusion that the two firearms sentences in this case were too high and to an extent such that the ultimate sentence imposed on the appellant was manifestly excessive.
In this respect I am in dissent. Nevertheless, I would approach a re‑sentencing in the following manner. I would adopt the Judge’s approach of recording convictions but no penalty for failing to secure a firearm and failing to secure ammunition (April 2012) and for failing to secure a firearm (September 2012). For the offence of possessing a prescribed drug (the Testosterone in April 2012) I would impose a conviction but no further penalty. For the offence of aggravated possession of a Class H firearm (April 2012) I would start with a term of two and a half years imprisonment reduced to two years on account of the plea of guilty. For the second (September 2012) offence of aggravated possession of a Class H firearm, committed whilst on bail, I would start with a term of three and a half years reduced to three years on account of the plea of guilty. It can be seen that whilst I would employ lower starting points than did the Judge I would allow less generous discounts for the guilty pleas given my concerns that the guilty pleas are not truly reflective of contrition and potential for rehabilitation. I would not disturb the Judge’s sentence, after discount, of one year imprisonment for the offence of possessing a controlled substance with the intention of supply.
I agree that all three sentences should be accumulated which would give rise to a total head sentence of six years imprisonment. I would impose a non‑parole period of three years and nine months. I would backdate this head sentence and non‑parole period to commence 6 September 2012 when the appellant was taken into custody, as did the Judge.