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R v O'Toole

R v O'Toole

Case [2013] SASCFC 18 28 March 2013

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v O'TOOLE
[2013] SASCFC 18
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Peek)
28 March 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Appellant pleaded guilty to a number of offences arising from a police raid of his warehouse - two of the offences were punishable by fine only - the sentencing Judge imposed a single sentence of imprisonment in respect of all of the offences purportedly pursuant to s 18A, Criminal Law (Sentencing) Act 1988 - appeal against sentence.
Whether the Judge erred in imposing a single penalty of imprisonment - whether the appellant should be resentenced by the Court of Criminal Appeal.
Held: (Peek J, Sulan and Vanstone JJ concurring): Appeal allowed - the sentencing Judge erred in imposing a single sentence of imprisonment, pursuant to section 18A, Criminal Law (Sentencing) Act 1988, for a group of offences which included two offences which were punishable by a fine only - it was beyond power to do so - appellant to be resentenced by the Court of Criminal Appeal - Hermel v The Queen (2000) 76 SASR 336 referred to.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
Police raided a warehouse occupied by the appellant - appellant in possession of an unregistered and unlicensed sawn-off rifle loaded with a round chambered and the saftey catch in the "off" position - CCTV footage showed the appellant hiding the rifle upon arrival of police - police also located a box of ammunition, a butterfly knife, and a SAPOL baton and safety vest - two of the rooms were fitted out as hydroponic growing rooms - appellant claimed to have been subject to two previous home invasions and to have possession of the weapons for his own safety and that the cannabis was grown for his personal use.
Whether the appellant should be sentenced to a term of imprisonment - whether any sentence of imprisonment should be suspended - whether the appellant should be convicted and discharged without further penalty for those offences punishable only by a fine.
Held: (Peek J, Sulan J concurring): Appellant resentenced to a single term of imprisonment of 2 years with a non-parole period of 8 months pursuant to s 18A, Criminal Law (Sentencing) Act 1988 - sentence reduced to 1 year and 38 weeks with a…

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 O'Toole

Details

AGLC: R v O'Toole [2013] SASCFC 18
Case: [2013] SASCFC 18
Decision Date: 28 March 2013

CaseChat Overview and Summary

The appeal concerned a sentence imposed by a sentencing Judge on the appellant, who had pleaded guilty to several offences arising from a police raid on his warehouse. The dispute centred on the Judge's decision to impose a single sentence of imprisonment for all offences, including two that were punishable by fine only, purportedly under section 18A of the *Criminal Law (Sentencing) Act 1988*. The Court of Criminal Appeal was asked to determine whether this sentencing approach was lawful and whether the appellant should be resentenced.

The primary legal issue before the Court of Criminal Appeal was whether the sentencing Judge had erred in imposing a single sentence of imprisonment for a group of offences that included offences punishable by fine only. This raised the question of the court's power to impose such a sentence. A secondary issue was whether the appellant should be resentenced by the Court of Criminal Appeal, and if so, what form that sentence should take, including considerations of suspension and conviction and discharge for certain offences.

The majority of the Court of Criminal Appeal, comprising Sulan and Vanstone JJ with Peek J concurring, held that the sentencing Judge had erred in imposing a single sentence of imprisonment under section 18A of the *Criminal Law (Sentencing) Act 1988* for offences that included two punishable by fine only. The court found that it was beyond the sentencing Judge's power to do so. Consequently, the appeal was allowed, and the appellant was to be resentenced by the Court of Criminal Appeal.

In resentencing, Peek J and Sulan J determined that the appellant should receive a single term of imprisonment of two years with a non-parole period of eight months, adjusted for time already spent in custody. They found good reason to suspend the sentence, considering the appellant's mental condition, the fact that his offending was not part of a criminal enterprise, and his lack of prior convictions for violent or firearms offences. For the offences punishable only by a fine, the appellant was convicted and discharged without further penalty. Vanstone J dissented, believing the firearms offences were very serious, the appellant's psychological problems exacerbated the seriousness, and there was no good reason to suspend the sentence, proposing a two-year term with an eight-month non-parole period commencing from the original sentencing date.

Orders

Orders of the court

Held: (Peek J, Sulan and Vanstone JJ concurring): Appeal allowed - the sentencing Judge erred in imposing a single sentence of imprisonment, pursuant to section 18A, Criminal Law (Sentencing) Act 1988, for a group of offences which included two offences which were punishable by a fine only - it was beyond power to do so - appellant to be resentenced by the Court of Criminal Appeal - Hermel v The Queen (2000) 76 SASR 336 referred to.

Held: (Peek J, Sulan J concurring): Appellant resentenced to a single term of imprisonment of 2 years with a non-parole period of 8 months pursuant to s 18A, Criminal Law (Sentencing) Act 1988 - sentence reduced to 1 year and 38 weeks with a non-parole period of 18 weeks and one day to account for time spent in custody - good reason to suspend the sentence exists given the appellant's mental condition, the fact that his offending was not connected with the furtherance of a criminal enterprise, and his lack of previous convictions for violent or firearms offences - appellant convicted and discharged without further penalty for those offences which do not attract a penalty of imprisonment.

Held: (Vanstone J dissenting): The appellant should be resentenced to a term of imprisonment of 2 years with a non-parole period of 8 months, commencing from 20 December 2012 - the firearms offences were very serious - the appellant could not claim to be of previous good character - the appellant had created a situation of danger by growing cannabis plants which had the potential to attract persons interested in stealing cannabis, and had armed himself against such intruders, or others, with an unlicensed, unregistered and prohibited weapon - the appellant's psychological problems made the offending more serious - good reason does not exist to suspend the sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SULAN J PEEK J

Nevertheless, because there is apprehension that the sentence imposed might be slightly higher on account of the two least serious offences, I would be prepared to set aside the sentence and impose a slightly shorter sentence in respect of the five offences attracting a maximum of a gaol sentence. However, the non-parole period imposed was an extremely lenient one and I would not be prepared to impose one which was less than that. Nor would I find good reason to suspend the sentence. The appellant could not claim to be of previous good character. He created a situation of danger by growing cannabis plants, which clearly had the potential to attract persons interested in stealing cannabis, and he stood ready to defend himself against such intruders, or any others, by the unlicensed use of an unregistered and indeed prohibited weapon. His psychological problems made the offences more serious rather than less so.Conclusion Accordingly, I would set aside the sentence and impose in its place in respect of the five offences attracting a maximum sentence of imprisonment a sentence of two years imprisonment with a non-parole period of eight months. That sentence should commence, as before, on 20 December 2012. In relation to the offences of failing to store the firearm and the ammunition securely, I would record a conviction, but impose no further penalty. Introduction The appellant was sentenced in the District Court for a total of seven offences, all charges arising from a police raid of a warehouse occupied by the appellant on 21 July 2011. The appellant pleaded guilty to a number of the offences charged and was sentenced pursuant to s 18A, Criminal Law (Sentencing) Act 1988 to two years imprisonment with a non-parole period of eight months. He appeals against the severity of the sentence and the refusal of the sentencing Judge to suspend it.The offending On Thursday, 21 July 2011, police attended the warehouse of the appellant at Woodville North. It consisted of a shed structure with a roller door at the front and was surrounded by a cyclone wire fence topped with barbed wire with a set of high double gates which were locked when the police attended. There was also a closed-circuit television (CCTV) camera positioned so as to overlook the entrance to the warehouse. The police announced their presence and threatened forced entry. After some delay, they were admitted by the appellant. They searched the premises pursuant to a General Search Warrant and found a cardboard box inside of which was a Mossberg semi-automatic .22 calibre rifle with a sawn-off barrel and stock. The rifle was fitted with a telescopic sight. It was loaded with six live rounds. Nearby, police located another cardboard box containing a South Australian Police (SAPOL) issue ASP expandable baton and a SAPOL issue “Police” road safety vest. On other shelves, police found $9,500 in cash, a box of 40 cartridges which were unsecured, some fireworks and a butterfly knife. Two of the rooms in the warehouse had been set up as hydroponic growing rooms and in each room were two cannabis plants which were being grown hydroponically.

Ratio Decidendi

Legal Principle Established

Established by: SULAN J, PEEK J

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Actions

Citations

R v O'Toole [2013] SASCFC 18

Most Recent Citation

Marksman Training Systems Pty Ltd v The Registrar of Firearms (No 3) [2015] SADC 16

Cases Citing This Decision

Size v The King [2024] SASCA 122
Citation 1 (Para 5)

…8] (Nicholson J, with whom Vanstone and Blue JJ agreed). See also Wessling v Police (2004) 88 SASR 57, 62-63 [26]-[27] (Besanko J); R v O’Toole [2013] SASCFC 18, [50] (Peek J, with whom Sulan J agreed). [27] R v Jongewaard [2009] SASC 346, [40]; (2009) 266 LSJS 283, 288-289 (Doyle CJ with whom Layton and Kourakis J…
TURNER-LINDSAY v Commissioner of Police [2024] SASC 69
Citation 2 (Para 12)

…s not capable of being reduced to a set of comprehensive criteria, nor is there a precise formula to be applied in every case.[26] [26] R v O’Toole [2013] SASCFC 18 at [50].…
Hueppauff v The King [2024] SASCA 11
Citation 3 (Para 21)

…SASR 57 at [26]-[27] per Besanko J, referred to by Doyle J in R v Dell (2016) 126 SASR 571 at [44] (with whom Kelly and Parker JJ agreed). [21] [2013] SASCFC 18 at [50] per Peek J (with whom Sulan J agreed), referred to by Doyle J in R v Dell (2016) 126 SASR 571 at [44] per (with whom Kelly and Parker JJ agreed).…
Mile v The King [2023] SASCA 33
Citation 4 (Para 15)

…of Appeal confirmed that a home detention order for a serious firearms offence could be made. [20] R v Clift [2010] SASC 79. [21] R v O’Toole [2013] SASCFC 18. [22] R v Grundy (2021) 138 SASR 94.…
R v Mackay [2019] SASCFC 45
Citation 5 (Para 12)

…tnotes in original) [17] [2018] SASCFC 35 at [64]. [18] Wessling v Police (2004) 88 SASR 57 at [26]-[27], as applied, for example, in R v O’Toole [2013] SASCFC 18 at [50] and R v Skinner (2016) 126 SASR 120 at [81].…
R v Curran [2019] SASCFC 14
Citation 6 (Para 22)

…conferring a separate or residual discretion as to the exercise of that power. (Citation omitted) [32] (2004) 88 SASR 57 at [26]-[27]. [33] [2013] SASCFC 18 at [50]. [34] Supra at [46].…
R v Hibeljic [2018] SASCFC 35
Citation 7 (Para 26)

…ore heavily at this stage of the sentencing exercise. [7] Wessling v Police (2004) 88 SASR 57 at [26]-[27], as applied, for example, in R v O’Toole [2013] SASCFC 18 at [50] and R v Skinner (2016) 126 SASR 120 at [81].…
R v Bray; R v Malatesta [2017] SASCFC 104
Citation 8 (Para 20)

…nment. The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [Citations omitted.] [10] [2013] SASCFC 18. [11] [2013] SASCFC 18 at [50].…
R v Campbell; R v Fowler [2017] SASCFC 79
Citation 9 (Para 10)

…nment. The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [Citations omitted.] [13] [2013] SASCFC 18. [14] At [50]. Home detention orders…
R v Best [2017] SASCFC 55
Citation 10 (Para 11)

…nment. The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [Citations omitted.] [26] [2013] SASCFC 18 at [50].…
R v Fusco [2017] SASCFC 47
Citation 11 (Para 8)

…e term of imprisonment.[52] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [49] [2013] SASCFC 18 (Peek J with whom Sulan J concurred). This passage has since been accepted as the correct approach to s 38 of the Sentencing Act in a number of decisions inclu…
R v Darling [2017] SASCFC 46
Citation 12 (Para 16)

…v Liddy ,[5] R v Coulthard ,[6] and R v Daniele [7] may be referred to, although, as always, such comparisons can only be of limited value. [4] [2013] SASCFC 18. [5] [2014] SASCFC 70. [6] [2016] SASCFC 47. [7] [2014] SASCFC 22.…
R v Hosking [2017] SASCFC 50
Citation 13 (Para 19)

…appropriate to make a home detention order.[49] [48] See Wessling v Police [2004] SASC 51, (2004) 88 SASR 57 at [27] per Besanko J; R v O’Toole [2013] SASCFC 18 at [50] per Peek J (with whom Sulan J agreed). [49] On the contrary, the Judge said explicitly that the appellant was not a “suitable person”. Contrast the…
R v Dell [2016] SASCFC 156
Citation 14 (Para 14)

…separate or residual discretion as to the exercise of that power.[11] [9] Wessling v Police (2004) 88 SASR 57 at [26]-[27]; R v O’Toole [2013] SASCFC 18 at [50]. [10] R v Skinner (2016) 126 SASR 120 at [80]-[82]. [11] R v Skinner (2016) 126 SASR 120 at [81], and the cases referred to therein.…
R v Ghazaryan [2016] SASCFC 140
Citation 15 (Para 18)

…of Supreme Court judgments in this State, including R v Cullen [2015] SASCFC 44; R v Violi [2015] SASCFC 2; R v Daniele [2014] SASCFC 22; R v O'Toole [2013] SASCFC 18; and R v Nozuhur [2013] SASCFC 81. [11] Sentencing Remarks, p.3. The starting point…
Royal Society for the Prevention of Cruelty to Animals (RSPCA) (SA) Inc v Rogers [2016] SASC 185
Citation 16 (Para 9)

…nt was an appropriate exercise of his Honour’s discretion. [5] (1936) 55 CLR 499. [6] [2016] SASC 179, [12]-[13]. [7] R v O’Toole [2013] SASCFC 18, [50]. [8] House v The King (1936) 55 CLR 499, 504-505.…
Lombard v Police [2016] SASC 179
Citation 17 (Para 12)

…ccount of a relevant consideration; made a material error of fact; or reached a decision that was plainly unjust or unreasonable. [1] R v O’Toole [2013] SASCFC 18 at [50]. [2] House v The King (1936) 55 CLR 499 at 504-505.…
R v M, G [2016] SASCFC 116
Citation 18 (Para 27)

…rm of imprisonment.[33] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [30] [2013] SASCFC 18 at [50]. [31] Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J). [32] R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530, 535 (Perry…
R v Skinner [2016] SASCFC 106
Citation 19 (Para 28)

…d not, displace or render redundant those common law principles. Those principles continue to inform the application of s 18A.[16] [16] R v O’Toole [2013] SASCFC 18 at [24], and the authorities referred to therein.…
Clarke v Police [2016] SASC 147
Citation 20 (Para 3)

…Act 1984 (SA), is not punishable by imprisonment. Accordingly, the respondent rightly conceded that the appeal must be allowed. [1] See R v O’Toole [2013] SASCFC 18 at [23]-[30] and the authorities referred to therein.…
Police v GRAHAM [2016] SASC 78
Citation 21 (Para 18)

…e “considered”. Clearly, the deponent could not say with specificity what it was that the Magistrate actually did say. [13] R v O’Toole [2013] SASCFC 18, [50] (Peek J, with whom Sulan J agreed).…
R v KANGA [2016] SASCFC 29
Citation 22 (Para 14)

…sonment. The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [Citation omitted]. [8] [2013] SASCFC 18. [9] [2013] SASCFC 18 at [50].…
R v BRISTOGIANNIS [2016] SASCFC 22
Citation 23 (Para 18)

…n R v Gjoka : [4] R v Gjoka (Unreported) Court of Criminal Appeal, 1 July 1997, Judgment No S 6211 at 4; R v Fowler [2006] SASC 18; R v O’Toole [2013] SASCFC 18 at [50]. [5] See, eg, R v Mangelsdorf (1995) 66 SASR 60. The power to suspend a sentence is conferred by s 38 of the Sentencing Act. The court may suspend…
R v Manhire [2015] SASCFC 187
Citation 24 (Para 10)

…cision to suspend must be made solely on the facts and circumstances of the particular case at hand. [Footnotes omitted.] [1] R v O’Toole [2013] SASCFC 18, [50].…
R v Niesen [2015] SASCFC 165
Citation 25 (Para 19)

…Willingham (No. 2) [55] and R v Nozuhur [56] reveals a disparity between sentences that can only be explicable by error. [53] [2015] SASCFC 2. [54] [2013] SASCFC 18. [55] [2012] SASCFC 104. [56] [2013] SASCFC 81.…
R v Wooldridge [2015] SASCFC 125
Citation 26 (Para 5)

…term of imprisonment.[56] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [53] [2013] SASCFC 18 at [50]. [54] Wessling v Police (2004) 88 SASR 57 at 63 [27] (Besanko J). [55] R v Kruger (1977) 17 SASR 214 at 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530 at 53…
R v Rajkovic [2015] SASCFC 81
Citation 27 (Para 11)

…mbling what would be necessary to come within such categories of mitigation were asserted by the appellant in the present case. [43] In R v O’Toole [2013] SASCFC 18 the defendant asserted that he possessed a firearm because he feared a further home invasion in circumstances where the police had not adequately respo…
Marksman Training Systems Pty Ltd v The Registrar of Firearms (No 3) [2015] SADC 16
Citation 28 (Para 17)

…SA) (No 2), [21] Ghafournejad v Passenger Transport Standards Committee .[22] [18] R v Fowler (2006) 248 LSJS 285 [18], R v O’Toole [2013] SASCFC 18, [50]. [19] (2001) 219 LSJS 448. [20] [2009] SADC 43, [5]-[6]. [21] [2009] SADC 69, [15]. [22] Master Norman, unreported 1 June 2012 [21].…
McDermott v Police [2014] SASC 175
Citation 29 (Para 17)

…test – the requirement to find “good reason” admits of no qualification or gloss.[16] [16] In the case of s38, see for example, R v O'Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed); R v Fowler [2006] SASC 18 at [58] (Gray and Layton JJ); R v Richards [2006] SASC 60 at [58]-[63] (Sulan J with whom…
R v PHAM [2014] SASCFC 95
Citation 30 (Para 18)

…one test provided for by the statute, whether good reason exists to suspend, which admits of no qualification.[12] [12] See for example R v O’Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed); R v Fowler [2006] SASC 18 at [58] (Gray and Layton JJ); R v Richards [2006] SASC 60 at [58]-[63] (Sulan J wi…
Police v Chilton [2014] SASCFC 76
Citation 31 (Para 7)

…onment.[26] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [23] R v O’Toole [2013] SASCFC 18, [50], Sulan J agreeing. [24] Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J). [25] R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacyk (1996) 66 SASR…
R v Liddy [2014] SASCFC 70
Citation 32 (Para 12)

…s (2001) 79 SASR 353; Offe v Police (2002) 84 SASR 1, 9-10; R v Gasmier [2011] SASCFC 43; R v Willingham (No 2) [2012] SASCFC 104 [44]; R v O’Toole [2013] SASCFC 18; R v Nozuhur [2013] SASCFC 81; R v Daniele [2014] SASCFC 22.…
R v McLean [2013] SASCFC 144
Citation 33 (Para 14)

…ment.[21] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [18] R v O’Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed). [19] Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J). [20] R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacy…
R v Jorquera [2013] SASCFC 145
Citation 34 (Para 23)

…o circumscribe those plain words by reference to any supposed formula or other gloss.[7] [7] R v Wacyk (1996) 66 SASR 530 at 535; R v O’Toole [2013] SASCFC 18 at [50]; R v Kruger (1977) 17 SASR 214 at 221; Wessling v Police [2004] SASC 51 at [27], (2004) 88 SASR 57 at 63.…
Chilton v Police [2013] SASC 205
Citation 35 (Para 8)

…prisonment.[7] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [4] R v O’Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed). [5] Wessling v Police (2004) 88 SASR 57 at 63 (Besanko J). [6] R v Kruger (1977) 17 SASR 214 at 221 (Bray CJ); R v Wac…
MULLINS v Police [2013] SASC 148
Citation 36 (Para 5)

…taken a strict approach to error of that sort and has insisted on re-sentencing in such cases. The cases have been recently reviewed in R v O’Toole [2013] SASCFC 18.…
R v Nozuhur [2013] SASCFC 81
Citation 37 (Para 8)

…ion 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].…
Green v Police [2013] SASC 119
Citation 38 (Para 14)

…term of imprisonment.[27] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [24] [2013] SASCFC 18 at [50]. [25] Wessling v Police (2004) 88 SASR 57 at 63 (Besanko J). [26] R v Kruger (1977) 17 SASR 214 at 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530 at 535 (Pe…
Warner v Police [2014] SASC 54
Citation 39 (Para 15)

…term of imprisonment.[19] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [16] [2013] SASCFC 18 at [50]. [17] Wessling v Police (2004) 88 SASR 57 at 63 (Besanko J). [18] R v Kruger (1977) 17 SASR 214 at 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530 at 535 (Pe…

See all citing cases →

Cases Cited

R v Major [2021] QDC 63
Citation 1 (Para 24)

…which each of them has made to the total. [8]The inappropriateness of this course is also illustrated by the decision in R v Major [1998] SASC 7089; (1998) 70 SASR 488 where it was held that the proper approach to sentencing under s 18A of the Criminal Law (Sentencing) Act is to consider the sentence which would hav…
R v Willingham (No 2) [2012] SASCFC 104
Citation 2 (Para 11)

…s that their offending will be treated very seriously and sentences of imprisonment will be imposed. [38] [2011] SASCFC 43. See also R v Willingham [2012] SASCFC 104 [44] (Gray, Sulan and Stanley JJ).…
R v Belczacki [2012] SASCFC 4
Citation 3 (Para 24)

…ore finally fixing the penalty. (Emphasis added) [12] See the comments of Duggan J in Hermel v Police (2000) 76 SASR 336, 337 [6]. [13] R v Belczacki (2012) 112 SASR 95, 106-109 [44]-[54]; R v Bagnato (2011) 112 SASR 39, 66-67 [100]-[102]. See also R v Copeland (No 2) (2010) 108 SASR 398, 417 [73] (White J), 422 [93]…
R v Bagnato [2011] SASCFC 161
Citation 4 (Para 24)

…2] See the comments of Duggan J in Hermel v Police (2000) 76 SASR 336, 337 [6]. [13] R v Belczacki (2012) 112 SASR 95, 106-109 [44]-[54]; R v Bagnato (2011) 112 SASR 39, 66-67 [100]-[102]. See also R v Copeland (No 2) (2010) 108 SASR 398, 417 [73] (White J), 422 [93], [98] (Kourakis J); R v McNamara (2009) 105 SASR 3…
R v Gasmier [2011] SASCFC 43
Citation 5 (Para 11)

…to those who possess unregistered firearms that their offending will be treated very seriously and sentences of imprisonment will be imposed. [38] [2011] SASCFC 43. See also R v Willingham [2012] SASCFC 104 [44] (Gray, Sulan and Stanley JJ).…
R v Copeland (No 2) [2010] SASCFC 61
Citation 6 (Para 24)

…6, 337 [6]. [13] R v Belczacki (2012) 112 SASR 95, 106-109 [44]-[54]; R v Bagnato (2011) 112 SASR 39, 66-67 [100]-[102]. See also R v Copeland (No 2) (2010) 108 SASR 398, 417 [73] (White J), 422 [93], [98] (Kourakis J); R v McNamara (2009) 105 SASR 38, 43 [27] (Vanstone J); R v Place (2002) 81 SASR 395, 432 [111] (Doy…
R v Copeland [2010] SASCFC 11
Citation 7 (Para 24)

…Section 18A was inserted in 1992 in order to provide a more streamlined means of crafting an appropriate punishment for multiple offences than was available through the use of the common law doctrines of concurrent and cumulative sentences.[12] It did not displace or render redundant those common la…
R v Clifford [2010] SASCFC 10
Citation 8 (Para 3)

…cal functioning he has experienced since 2009”.[45] This is also an important matter to be taken into account.[46] [45] AB43. [46] Clifford v R [2010] SASCFC 10 [25] (Duggan J).…
R v McNamara [2009] SASC 227
Citation 9 (Para 24)

…2011) 112 SASR 39, 66-67 [100]-[102]. See also R v Copeland (No 2) (2010) 108 SASR 398, 417 [73] (White J), 422 [93], [98] (Kourakis J); R v McNamara (2009) 105 SASR 38, 43 [27] (Vanstone J); R v Place (2002) 81 SASR 395, 432 [111] (Doyle CJ, Prior, Lander and Martin JJ); R v Gale (1999) 74 SASR 235, 238 [18] (Bleby…
R v Al-Zuain [2009] SASC 123
Citation 10 (Para 4)

…ty of imprisonment for one year, 11 months, and three weeks with a non-parole period of eight months and three weeks for both sets of charges. [21] (2009) 103 SASR 567.…
Wessling v Police [2004] SASC 51
Citation 11 (Para 26)

…onment.[44] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [42] Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J). [43] R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530, 535 (Perry J). [44] R v Wacyk (1996) 66 SASR 530, 535…
R v Place [2002] SASC 101
Citation 12 (Para 24)

…opeland (No 2) (2010) 108 SASR 398, 417 [73] (White J), 422 [93], [98] (Kourakis J); R v McNamara (2009) 105 SASR 38, 43 [27] (Vanstone J); R v Place (2002) 81 SASR 395, 432 [111] (Doyle CJ, Prior, Lander and Martin JJ); R v Gale (1999) 74 SASR 235, 238 [18] (Bleby J); R v Symonds [1999] SASC 217 [21] (Doyle CJ); R v…
Johnson v Registrar of Firearms [2001] SASC 51
Citation 13 (Para 10)

…uspecting children and persons who may happen across them accidentally. … [37] (2002) 84 SASR 1, 9-10. See also Johnson v Registrar of Firearms (2001) 99 SASR 353.…
R v Wanganeen [2000] SASC 371
Citation 14 (Para 3)

…al against the sentence and proceeded to sentence the appellant afresh. [17] [2001] SASC 390. [18] (2000) 76 SASR 336. See also R v Wanganeen [2000] SASC 371 [17] (Wicks J). [19] (2000) 76 SASR 336. [20] R v Mathew [2001] SASC 390 [4].…
Hermel v Police [2000] SASC 34
Citation 15 (Para 5)

…imprisonment in respect of multiple offences only if each of the offences attracts a maximum penalty which includes imprisonment: see Hermel v Police [2000] SASC 34; (2000) 76 SASR 336, at [7] Duggan J. [20]It was not open for the Judge to impose a sentence of imprisonment in respect of the second count. The appe…
R v Gale [1999] SASC 309
Citation 16 (Para 24)

…J); R v McNamara (2009) 105 SASR 38, 43 [27] (Vanstone J); R v Place (2002) 81 SASR 395, 432 [111] (Doyle CJ, Prior, Lander and Martin JJ); R v Gale (1999) 74 SASR 235, 238 [18] (Bleby J); R v Symonds [1999] SASC 217 [21] (Doyle CJ); R v Major (1998) 70 SASR 488, 490 (Doyle CJ), 497 (Olsson J); R v Skrjanc (1994) 71…
R v Wacyk [1996] SASC 5622
Citation 17 (Para 26)

…lar case at hand. [42] Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J). [43] R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530, 535 (Perry J). [44] R v Wacyk (1996) 66 SASR 530, 535 (Perry J).…
The inappropriateness of this course is also illustrated by the decision in R v Major [1998] SASC 7089
Citation 18 (Para 24)

…y the contribution which each of them has made to the total. [8]The inappropriateness of this course is also illustrated by the decision in R v Major [1998] SASC 7089; (1998) 70 SASR 488 where it was held that the proper approach to sentencing under s 18A of the Criminal Law (Sentencing) Act is to consider the sent…
Sentencing remarks by Judge Muscat dated 8 December 2023, p 16. The sentencing judge referred to R v Symonds [1999] SASC 217
Citation 19 (Para 24)

…one J); R v Place (2002) 81 SASR 395, 432 [111] (Doyle CJ, Prior, Lander and Martin JJ); R v Gale (1999) 74 SASR 235, 238 [18] (Bleby J); R v Symonds [1999] SASC 217 [21] (Doyle CJ); R v Major (1998) 70 SASR 488, 490 (Doyle CJ), 497 (Olsson J); R v Skrjanc (1994) 71 A Crim R 347, 353 (Legoe J); R v Nixon (1993) 66…
Fitzgerald v Police [2000] SASC 37
Citation 20 (Para 2)

…pose of excluding them from the global sentence. I think the appellant should be convicted on those offences without penalty. (Emphasis added) [15] [2000] SASC 37. [16] Fitzgerald v Police [2000] SASC 37.…
R v Mathew [2001] SASC 390
Citation 21 (Para 3)

…onment is imposed”.[20] The Court therefore granted leave to appeal against the sentence and proceeded to sentence the appellant afresh. [17] [2001] SASC 390. [18] (2000) 76 SASR 336. See also R v Wanganeen [2000] SASC 371 [17] (Wicks J). [19] (2000) 76 SASR 336. [20] R v Mathew [2001] SASC 390 [4].…
Offe v Police [2002] SASC 259
Citation 22 (Para 10)

…re weapons targets for thieves, they present a real danger to unsuspecting children and persons who may happen across them accidentally. … [37] (2002) 84 SASR 1, 9-10. See also Johnson v Registrar of Firearms (2001) 99 SASR 353.…

Legislation Cited

Firearms Act 1977 (SA) 11(1), 11(7a)(a), 11(7b)(a), 23(1), 23(5...
8 mentions (from Para 7)
Controlled Substances Act 1984 (SA) 33C(3), 33C(4), 33K(1)(b), 33LA(1), 52E(...
6 mentions (from Para 3)
Firearms Regulations 2008 (SA) 39, 41(1), 61
4 mentions (from Para 19)
Summary Offences Act 1953 (SA) 15(1c)(b), 15(2), 41(1)
4 mentions (from Para 2)
Criminal Law (Sentencing) Act 1988 (SA) 18A, 38
3 mentions (from Para 11)
Criminal Law Consolidation Act 1935 (SA) 134(1), 353(4)
3 mentions (from Para 2)
Criminal Assets Confiscation Act 2005 (SA) 47(1)
1 mention (from Para 11)
Firearms Regulations 1993 (SA)
1 mention (from Para 5)
Motor Vehicles Act 1959 (SA)
1 mention (from Para 2)
Second-hand Dealers and Pawnbrokers Act 1996 (SA)
1 mention (from Para 2)
Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 (SA)
1 mention (from Para 7)