R v O'Toole - [2013] SASCFC 18

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 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.
Criminal Law Consolidation Act 1935 ss 134(1), 353(4); Criminal Law (Sentencing) Act 1988 ss 18A, 38; Controlled Substances Act 1984 ss 33K(1)(b), 33C(3), 33C(4), 33LA(1), 52E(7); Firearms Act 1977 ss 23(5)(a), 11(1), 11(7b)(a), 11(7a)(a), 23(1), 34A(1)(e); Firearms Regulations 2008 regs 39, 41(1), 61; Summary Offences Act 1953 ss 15(1c)(b), 15(2), 41(1); Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 Sch, s7(a); Criminal Assets Confiscation Act 2005 s 47(1), referred to.
Hermel v Police (2000) 76 SASR 336; R v Al-Zuain (2009) 103 SASR 567; R v Mathew [2001] SASC 390, applied.
Fitzgerald v Police [2000] SASC 37; Offe v Police (2002) 84 SASR 1; R v Gasmier [2011] SASCFC 43, discussed.
R v Kruger (1977) 17 SASR 214; R v Wacyk (1996) 66 SASR 530; Clifford v The Queen [2010] SASCFC 10; R v Belczacki (2012) 112 SASR 95; R v Bagnato (2011) 112 SASR 39; R v Wanganeen [2000] SASC 371; R v Copeland (No 2) (2010) 108 SASR 398; R v McNamara (2009) 105 SASR 38; R v Place (2002) 81 SASR 395; R v Gale (1999) 74 SASR 235; R v Symonds [1999] SASC 217; R v Major (1998) 70 SASR 488; R v Skrjanc (1994) 71 A Crim R 347; R v Nixon (1993) 66 A Crim R 83; Johnson v Registrar of Firearms (2001) 99 SASR 353; R v Willingham [2012] SASCFC 104; Wessling v Police (2004) 88 SASR 57, considered.

R v O'TOOLE
[2013] SASCFC 18
Court of Criminal Appeal: Sulan, Vanstone and Peek JJ

SULAN J. I agree with Peek J and the orders he proposes.
VANSTONE J: The appellant was sentenced in the District Court for seven offences. One sentence of imprisonment, unsuspended, was imposed for all the offences. Two of the offences carried only a maximum of a monetary penalty. The appellant asserts that, accordingly, the sentence is affected by error and should be set aside. He argues that, upon a resentencing, a lesser sentence should be imposed and that it should be suspended.
Background
The offences to which the appellant pleaded guilty were possessing a prescribed firearm without a licence, an offence aggravated by the fact that the firearm was loaded (maximum penalty $50,000 or ten years imprisonment), possessing an unregistered firearm (maximum penalty $10,000 or two years imprisonment), possessing a prohibited weapon (maximum penalty $10,000 or two years imprisonment), theft (maximum penalty ten years imprisonment), failing to store a firearm securely (maximum penalty – fine of $2,500), failing to store ammunition securely (maximum penalty – fine of $2,500) and possessing prescribed equipment, contrary to s 33LA Controlled Substances Act 1984 (maximum penalty $10,000 or two years imprisonment). A single sentence of two years imprisonment with a non-parole period of eight months was imposed.
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.
It was put to the sentencing judge that the appellant was security conscious and that he had armed himself on account of the fact that he had been the victim of two invasions, one at a warehouse which he had previously occupied and one at his home. In each of those situations he had been in possession of cannabis plants. It was not put by the prosecution that the appellant had armed himself in order to protect himself from people coming to trade with him in drugs, but rather that his involvement in growing cannabis exposed him to danger and caused the anxiety which had motivated him to arm himself. That submission was accepted.
A psychological report was before the judge which suggested that the appellant suffered from an untreated post traumatic stress disorder, which condition could deteriorate without treatment. The psychologist referred to the appellant’s ongoing fear that he would again be subjected to a threat of physical harm and further home invasion and that the weapons found by police were acquired for the purpose of personal protection.
The sentencing judge noted that although the appellant had a long history of offending there had been fewer offences in recent years. The judge expressed the view that it was:
… a matter of extreme concern that someone in your psychological condition, but resistant to psychological treatment, [was] brandishing and seemingly intending to use for self protection against any would be invaders of your property, a fully loaded cut down semi-automatic weapon of this nature.
He went on to say:
The completely deliberate nature of your possession of this weapon for envisaged actual potential use and the high level of danger to the public consequent on that, in all the circumstances of this case, renders your offence of aggravated possession of a firearm a very serious offence within that category of offending.
Analysis
In my view both observations of the judge reproduced above were amply warranted. The main firearm offences were very serious.
It is true that the two offences relating to storage of the firearm and ammunition to which the global penalty plainly applied were not such as to attract a sentence of imprisonment. Therefore they should not have been considered in fixing the single sentence pursuant to s 18A Criminal Law (Sentencing) Act 1988. That is plain. I note that during the sentencing submissions counsel for the prosecution handed to the judge a list of the offences for which the appellant was convicted, which specified the correct maximum penalty against each offence. It is clear then that the judge was not, at least at that time, misled into thinking that the two least serious offences could play a part in the fixing of the custodial sentence. Moreover, in the scheme of the offences charged and the facts underlying them, the two offences attracting only fines were obviously not in the same league as the other offences. For these reasons the error seems to me to be a fairly technical one. It is unfortunate that, once recognised, it was not brought to the attention of the sentencing judge who might well have chosen to amend the sentence. That could have happened even at the time of the permission to appeal hearing, or later: see s 9A Criminal Law (Sentencing) Act1988.
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.
PEEK J.
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.
A review of the CCTV camera footage from within the warehouse showed that upon arrival of the police the appellant had run with the rifle to the point where it was later found by police and then returned to the front of the warehouse to admit the police.
The course of the proceedings
The appellant was charged on an Information filed in the Magistrates Court on 10 August 2011 with possession of a firearm while not holding a firearms licence (the offence being aggravated by the fact that the firearm was loaded).[1] He was also charged on a Complaint filed in the Magistrates Court on the same date with the following further offences:
[1]    Firearms Act 1977 ss 11(1), 11(7b)(a).
·count 1: cultivating more than the prescribed number of cannabis plants, namely four plants; [2]
·count 2: possession of cannabis for sale;[3]
·count 3: possessing prescribed equipment without reasonable excuse;[4]
·count 4: possessing a prescribed unregistered firearm;[5]
·count 5: failing to keep a prescribed firearm secured;[6]
·count 6: failing to store ammunition in a locked container separate from firearms;[7]
·count 7: possessing a prohibited weapon, namely a butterfly knife;[8]
·count 8: unlawful possession of personal property, namely the $9,500 found in the warehouse, which was reasonably suspected of being stolen or obtained by unlawful means;[9] and
·count 9: theft by receiving the SAPOL issue baton and vest.[10]
[2]    Controlled Substances Act 1984 s 33K(1)(b).
[3]    Controlled Substances Act 1984 ss 33C(3), 33C(4).
[4]    Controlled Substances Act 1984 s 33LA(1).
[5]    Firearms Act 1977 s 23(1).
[6]    Firearms Regulations 2008 regs 39, 61.
[7]    Firearms Regulations 2008 regs 41(1), 61.
[8]    Summary Offences Act 1953 s 15(1c)(b).
[9]    Summary Offences Act 1953 s 41(1).
[10] Criminal Law Consolidation Act 1935 s 134(1).
The appellant was committed for sentence in the District Court on the charge on the Information. On 7 December 2012, the matter came before Judge Stretton for final submissions on sentence. By that time, counts 2 and 8 of the summary charges had been withdrawn and the appellant had pleaded guilty to count 1 (the cultivation offence) and had received a $500 fine on the express basis that the plants were for the appellant’s own consumption.[11] The remaining summary matters were called up before his Honour, the appellant pleading guilty to each charge.
[11] AB78, T9.
On 20 December 2012, the appellant was sentenced to a single period of imprisonment for two years, purportedly pursuant to s 18A, Criminal Law (Sentencing) Act 1988. His Honour fixed a non-parole period of eight months, commencing from the date of sentencing. The sentencing Judge declined to suspend the sentence and made a disqualification order pursuant to s 34A, Firearms Act 1977.
The grounds of appeal
The amended grounds of appeal appear as follows:
1.The sentence imposed is manifestly excessive.
2.The Learned Sentencing Judge erred in failing to suspend the term of imprisonment imposed.
3.The Learned Sentencing Judge erred in applying Section 18A of the Criminal Law (Sentencing) Act 1988 to impose one term of imprisonment in circumstances where two of the offences carried a monetary penalty only namely:
(i)Fail to store firearm securely – Regulation 39 of the Firearms Regulations 2008 (SA);
(ii)Fail to store ammunition securely – Regulation 41 of the Firearms Regulations 2008 (SA).
Section 18A, Criminal Law (Sentencing) Act 1988
Section 18A provides as follows:
18A—Sentencing for multiple offences
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
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 law doctrines, and they continue to inform the application of s 18A.[13] It is well established that s 18A cannot be used to impose a single term of imprisonment where the offences for which the defendant is to be punished include one or more offences not punishable by imprisonment. In Hermel v Police, Duggan J made the following observations:[14]
[7]It is my view that in those cases where a global term of imprisonment is imposed, the individual offences must be punishable by a term of imprisonment. An offence punishable by way of a fine only cannot be one of the offences in respect of which a term of imprisonment is imposed. It would be quite wrong for such an offence to contribute to a composite penalty of imprisonment. The effect would be to impose a term of imprisonment for an offence punishable by a fine, albeit that the sentence of imprisonment, being a global penalty, was passed in respect of a number of offences. A sentence of imprisonment is imposed in respect of each of the offences notwithstanding that the offences are grouped together for the purpose of the composite sentence and it is impossible to identify 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 sentence which would have been imposed for each offence separately and then consider whether the sentences would have been imposed cumulatively or concurrently. Of course the principle of totality would also have to be taken into account before 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], [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 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 A Crim R 83, 85-86 (Legoe J).
[14] (2000) 76 SASR 336, 337-338.

His Honour then proceeded to sentence the appellant afresh.
Similar comments had been made by Duggan J in an earlier case of Fitzgerald v Police.[15] In that case, the appellant pleaded guilty to: two counts of making a false statement to a second-hand dealer contrary to the Second-Hand Dealers and Pawnbrokers Act 1996; three counts of being in unlawful possession of a number of items contrary to s 41(1), Summary Offences Act 1953; two counts of receiving contrary to s 196, Criminal Law Consolidation Act 1935; and one count of driving a motor vehicle while disqualified from holding or obtaining a licence contrary to s 91, Motor Vehicles Act 1959. The sentencing Magistrate imposed a global sentence of imprisonment for 14 months with a non-parole period of six months. Duggan J held that this approach was in error:[16]
[8]… Leaving aside for the moment the issue of the assistance given by the appellant to the police, it is my view that the individual sentences identified by the magistrate as being appropriate could not be described as manifestly excessive. The offence of driving whilst disqualified was committed in defiance of the law and after a previous offence of the same nature. The value of the property referred to in the various complaints was not insubstantial and these offences were committed by someone, who as I have pointed out, has a history of previous offending including offences of dishonesty. The offences were committed over a period of time and in the course of separate episodes. There was no reason why they should have been made concurrent.
[9]However it is necessary to say something about the form of the sentence. The offences of making a false statement to a second-hand dealer are punishable by fine only and yet they were included in the offences which attracted a sentence of imprisonment. In my view, offences punishable by fine only cannot be included in a composite sentence of imprisonment imposed under s 18A. They were incidental to the dishonesty offences referred to in the same complaint and it is my view that the appeal should be allowed at least for the purpose 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.
In R v Mathew,[17] the Court of Criminal Appeal endorsed Duggan J’s remarks in Hermel v Police.[18] Martin J (with whom Wicks and Besanko JJ agreed) held that the sentencing Judge was in error in fixing a global sentence of imprisonment for all the offences to which the appellant had pleaded and, referring to Duggan J’s comments in Hermel v Police,[19] held that “[a]n offence punishable by a fine only cannot be one of the offences in respect of which a term of imprisonment 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].
More recently in R v Al-Zuain,[21] the Court of Criminal Appeal considered a situation very close to the present offending. The appellant pleaded guilty to two sets of charges. One set emanated from the District Court and consisted of charges of possessing MDMA for sale, possessing cocaine for the purpose of sale, and possessing a class H firearm without a licence. The other set of charges emanated from the Magistrates Court and consisted of possessing an unregistered firearm, failing to keep a firearm secured, having in his control a firearm and a loaded magazine in a public place, and theft. All of these charges arose from a search of the appellant’s person and a car conducted by police. The sentencing Judge imposed a global penalty 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.
Doyle CJ (with whom Sulan[22] and Vanstone JJ[23] agreed) held that the sentencing Judge had erred in imposing one sentence of imprisonment pursuant to s 18A. The Chief Justice referred to the fact that all of the offences except for one were subject to maximum penalties of imprisonment or a fine, the offence of failing to keep a firearm secured being subject only to a maximum penalty of a fine of $2,500. His Honour stated:[24]
[19]The second of the Magistrates Court charges was an offence against the Firearms Regulations 1993 (SA). The offence was not punishable by imprisonment. Counsel for the Director conceded that in sentencing Mr Al-Zuain to a single sentence of imprisonment in respect of all of the charges against him, the Judge erred. The power conferred by s 18A can be exercised to impose a single sentence of 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 appeal must be allowed and the sentence of imprisonment imposed by the District Court set aside. It is appropriate for this Court to re-sentence Mr Al-Zuain.
[22] R v Al-Zuain (2009) 103 SASR 567, 581 [70].
[23] R v Al-Zuain (2009) 103 SASR 567, 586 [99].
[24] R v Al-Zuain (2009) 103 SASR 567, 572.
The Court was unanimous in holding that where a sentencing Judge imposes a global sentence of imprisonment for offences which include an offence which can only be punished by a fine it is appropriate for the appeal court to resentence the defendant afresh.[25]
[25] R v Al-Zuain (2009) 103 SASR 567, 572 [20] (Doyle CJ), 581-582 [70], [75]-[76] (Sulan J), 586 [99] (Vanstone J).
The sentence imposed by the sentencing Judge
The offences for which the appellant was sentenced and their respective maximum penalties appear as follows:
·possessing a prescribed firearm while not holding a firearms licence, where the offence is aggravated by that firearm being loaded,[26] attracts a maximum penalty of $75,000 or imprisonment for 15 years;[27]
·possessing prescribed equipment without reasonable excuse attracts a maximum penalty of $10,000 and/or imprisonment for two years (count 3);[28]
·possessing an unregistered prescribed[29] firearm attracts a maximum penalty of $10,000 or imprisonment for two years (count 4);[30]
·failing to keep firearm secured attracts a maximum penalty of $2,500 (count 5);[31]
·failing to store ammunition in a locked container separate from firearms attracts a maximum penalty of $2,500 (count 6);[32]
·possessing a prohibited weapon, namely a butterfly knife,[33] attracts a maximum penalty of $10,000 or imprisonment for two years (count 7);[34] and
·a basic offence of theft by receiving attracts a maximum penalty of imprisonment for ten years (count 9).[35]
[26] Firearms Act 1977 s 11(7b)(a).
[27] Firearms Act 1977 ss 11(1), 11(7a)(a).
[28] Controlled Substances Act 1984 s 33LA(1).
[29] AB132.
[30] Firearms Act 1977 ss 23(1), (5)(a).
[31] Firearms Regulations 2008 regs 39, 61.
[32] Firearms Regulations 2008 regs 41(1), 61.
[33] Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 Sch, s 7(a).
[34] Summary Offences Act 1953 s 15(1c)(b).
[35] Criminal Law Consolidation Act 1935 s 134(1).
As is apparent from the above, while most of the offences attract a maximum penalty of imprisonment or a fine, counts 5 and 6 can only be the subject of a fine. Despite this, his Honour sentenced the appellant as follows:[36]
There will be a single penalty pursuant to the Criminal Law (Sentencing) Act. From a starting point of two years and six months imprisonment, I reduce that to two years on account of your pleas of guilty. In light of your psychological condition, however, there will be a much shorter than usual non-parole period of eight months.
[36] AB85.
In accordance with the authorities referred to above, I would allow the appeal on ground 3. Having reached this conclusion, it is appropriate to resentence the appellant.
Resentencing of the appellant
In Offe v Police, Gray J discussed the seriousness of the offences under the Firearms Act 1977: [37]
[22]… The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the 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 providing community protection through the licensing and regulation of firearms. The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.
[23]As earlier observed, in 1996 following events at Port Arthur motions were put in place to develop uniform gun laws around Australia. The Firearms Act was amended to provide an even tighter means of weapon control. The amendments aimed to further restrict the ownership and use of firearms with a view to preventing criminal behaviour involving their use.
…
[26]General deterrence is of great importance in cases of this kind. The community must not be complacent about the dangers of firearms and the damage that can be caused when they are not kept in accordance with the legislative requirements. Not only are 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.
While the facts of that case are quite distant from those of the appellant’s offending in the instant case, these comments should be borne in mind. The remarks of Sulan J (with whom David and Kourakis JJ agreed) in R v Gasmier also merit mention here:[38]
[19]The maximum penalties for possession of unregistered firearms which are unsecured reflect the seriousness of such offending. The appellant has a long history of offending. It is accepted that he has no prior convictions for this type of offence. However, courts must make it clear 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).
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 pleaded guilty and was to be sentenced on the basis that he had been the subject of two home invasions in 2009. He had contacted the police on both occasions, but felt that the police had been very slow in responding to his calls. The appellant had formed the view that he needed the rifle to protect himself from bodily injury. He gave the same explanation for his possession of the butterfly knife and the baton. Mr Allen Fugler, a forensic psychologist, noted in his report:[39]
In the winter of 2009 [the appellant] was the victim of two home invasions that occurred in the same week. He told me they took place in spite of his having “no known enemies”. He was living alone at Royal Park when four individuals dressed in balaclavas smashed in the back door of his property while armed with hatchets and metal bars. That occurred at around midnight and he managed to turn off the electricity in the house and flee to his workshop on the property to hide. [The appellant] told me “I could hear them smashing the door” and managed to squeeze through a small opening while being kicked and struck with an iron bar. [The appellant] then “chicken legged it” down the road and contacted police, who he believes took far too long to arrive. In the interim the perpetrators stole his car after finding the keys, they later burning it “to the ground”.
Fearful and concerned about the home invasion, the lack of knowledge as to why anyone would commit such an offence against him, he not being aware of the identity of the perpetrators, and the threat to his person, [the appellant] did not have time to change the locks before he was again the victim of another home invasion, presumably by the same individuals, this time at 3am. His 9-year-old son was present time [sic] and he was able to lock him in the toilet before “beating off” the individuals concerned. [The appellant] again made contact with police, who he believes displayed some reluctance to attend. He told me, “I will never call the police again, they’re useless”.
Highly anxious and of the belief the individuals concerned were attempting to harm him rather than steal material items, [the appellant] went to the Seaton Hotel where he lived in a single room for three months, he choosing that setting because it had two security doors between the entrance and his room. He has since experienced intrusive thoughts he has difficulty blocking from consciousness and which are associated with heightened anxiety, feelings of vulnerability, hyper vigilance, and other signs of a Post-Traumatic Stress Disorder (PTSD).
[39] AB40-41.
Of the appellant’s demeanour in the interview, the psychologist noted:[40]
His behaviour was slightly agitated and many of his verbalisations had paranoid flavour, although not to the point where those were delusional and suggestive of a major psychiatric disorder in which contact with reality had been lost.
[40] AB38.
Mr Fugler concluded that the appellant suffers from a Post Traumatic Stress Disorder (PTSD) and that he labours under the constant fear that he will again be the victim of a home invasion.[41]
[41] AB43.
At the time of the offending, the appellant was 49 years of age and he is now 51. At age 17, the appellant left home permanently and went to work in manufacturing various items for different businesses after leaving school. For the last 20 years the appellant has been self-employed manufacturing hydroponic equipment.
The appellant says that he has been a regular user of cannabis since he was 14 years old; that he abstains from use during daylight hours; and that he has apparently used cannabis for self-medication against his tension and anxiety arising from his PTSD.
The appellant has had significant contact with the criminal justice system over the course of his life. By and large these have been dishonesty offences, driving offences, and drug offences. The most serious of these occurred in 1985 when the appellant was convicted of two charges of possessing amphetamines for sale and was imprisoned for a total of three years.
However, none of his offending has been violent in nature and the appellant does not have a history of infringing firearms legislation. Further, since that offending in 1985, some 28 years ago, he has not been convicted of any serious offending. The more recent offences have been driving matters, as well as a conviction for producing cannabis (for his own use) on 5 June 2007.
I also take into account that the appellant at all material times evinced an intention to plead guilty to those offences of which he was guilty; the charges he disputed having been withdrawn, he did plead guilty.
I also acknowledge that the rifle, the butterfly knife, and the SAPOL baton were all in the appellant’s possession because of the appellant’s perceived need to protect himself in the event of a further home invasion and were not to be used to facilitate trading in cannabis or the execution of any other criminal enterprise. I also note that the cannabis was being grown for his own use and the prescribed equipment was used only for that purpose.
However, as mentioned above, the major offence was serious and was aggravated by the fact that the firearm was loaded, a live round had been chambered, and the safety catch was set to the “off” position. There was a not insignificant danger to the community that the appellant, being possessed of a loaded firearm with the safety catch off, may have over-reacted and shot a person in circumstances where he mistakenly believed that person to be attempting to invade his property. I consider that the factors of general and personal deterrence have a part to play in sentencing the appellant. Giving full weight to the mitigating features that do exist here, I consider that no less a sentence than a period of imprisonment is required in all of the circumstances.
As to the appropriate term of imprisonment, the present case is somewhat unusual. Although there was the usual complaint of “manifestly excessive” in the grounds of appeal, no submissions were made on this aspect on the permission to appeal hearing since permission was conceded on the s 18A point which would lead to a resentencing. On the hearing of the appeal proper, counsel for the appellant made no submissions as to the length of the sentence (or the discount for the guilty pleas), effectively abandoning any such complaint and concentrated on his real complaint that the sentence had not been suspended. (This is not to criticise that approach - I agree with it.) The Director of Public Prosecutions also submitted that the length of the sentence was appropriate and concentrated their submissions on the suspension issue.
There still remains the obligation of the Court to resentence in accordance with its own views. However, I too agree that the length of sentence and the non-parole period were appropriate and, given the matters referred to above, I consider that in the present case it is not necessary to refer to notional sentences for each of the offences (with a high degree of concurrency) prior to imposing a single sentence. In my view, imprisonment for two years (after taking into account credit for the pleas of guilty) with a non-parole period of eight months (being lower than normal to account for the appellant’s psychological condition) is the correct sentence to be imposed on resentencing, subject only to the matter of credit for time already served to which I will return.
Should the sentence be suspended?
I now turn to consider whether the sentence of imprisonment should be suspended. The power of the Court to suspend a sentence is governed by s 38, Criminal Law (Sentencing) Act 1988:
38—Suspension of imprisonment on defendant entering into bond
(1)     Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(b)     to comply with the other conditions (if any) of the bond.
This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.[42] The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[43] It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[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 (Perry J).

I consider that there is good reason to suspend the appellant’s sentence of imprisonment arising from the cumulative effect of the following matters.
The appellant’s offences all arose from his psychological condition; he obtained the weapons in order to satisfy his perceived need to protect himself against an imminent invasion of his home; he was not in possession of the various weapons to facilitate the completion of a criminal enterprise or other nefarious purpose. His poor attempt to hide the rifle upon arrival of the police demonstrates both that he had no intention of using it against those officers and a lack of sophistication in attempting to evade the detection of his breaches of the firearms legislation. His use of cannabis has been directed towards mitigating the symptoms of his PTSD, and his cultivation of cannabis was not for commercial purposes but rather for the appellant’s personal use.
I also note that the appellant’s diagnosis with PTSD led Mr Fugler to comment that the appellant “requires urgent and ongoing psychological or psychiatric treatment to assist him to deal with and resolve the low level of psychological 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).
The absence of any convictions for violent or firearms offences is another factor, as is the fact that he engaged in no offending behaviour while on bail in the months between the date of the offences, 21 July 2011, and his sentencing on 20 December 2012.
Against these factors I weigh in the balance the serious nature of the appellant’s offending as discussed above and acknowledge that the community must be protected against people with mental illnesses who may misuse firearms.
However, giving full weight to those matters, there does exist here good reason to suspend the appellant’s sentence.
Accordingly, I would suspend the sentence of imprisonment on the condition that the appellant enter into a bond in the amount of $500 to be of good behaviour for a period of two years and to be subject to the supervision of a Community Corrections Officer and obey his reasonable directions as to psychiatric and psychological counselling and treatment for a period of one year.
Credit for time already served
Since the sentence is to be suspended, it is necessary to take into account that the appellant has already served a period of 99 days in custody (as from the date of the original sentencing on 20 December 2012) when calculating the length of the fresh sentence that would have to be served should there be a future breach of the bond.
As to the head sentence, I deduct the period of 99 days from a period of two years and arrive at a period of one year and thirty eight weeks. As to the non-parole period, I consider it appropriate to also deduct the period of 99 days from a period of eight months and arrive at a period of 18 weeks and one day.
Sentencing for the offences punishable by fine only and further orders
No fine was imposed by the sentencing Judge in respect of the offences of failing to store the firearm securely and failure to store the ammunition securely (counts 5 and 6 on the Complaint) which can only be punished by a fine. It is appropriate to record convictions for the offences but discharge the appellant without further penalty.
I would also make orders for forfeiture of the rifle, the ammunition,[47] the butterfly knife,[48] the SAPOL baton and the SAPOL safety vest,[49] and the seized drugs and prescribed equipment.[50] I would also order that the appellant be disqualified from owning or possessing a firearm until further order.[51]
[47] Firearms Act 1977 s 34A(1)(a).
[48] Summary Offences Act 1953 s 15(2).
[49] Criminal Assets Confiscation Act 2005 s 47(1).
[50] Controlled Substances Act 1984 s 52E(7).
[51] Firearms Act 1977 s 34A(1)(e).
Orders
I propose the following orders:
1Appeal allowed;
2The sentence imposed by Judge Stretton on 20 December 2012 is set aside;
3In respect of the offences of possession of a prescribed firearm while not holding a firearms licence, possessing prescribed equipment, possessing an unregistered prescribed firearm, possessing a prohibited weapon, and theft by receiving, the appellant is sentenced pursuant to s 18A, Criminal Law (Sentencing) Act 1988 to a single period of imprisonment of one year and thirty eight weeks with a non-parole period of 18 weeks and one day. This sentence of imprisonment is suspended on the condition that the appellant enter into a bond in the amount of $500 to be of good behaviour for a period of two years and to be subject to the supervision of a Community Corrections Officer and obey his reasonable directions as to psychiatric and psychological counselling and treatment for a period of one year.
4The Mossberg rifle, the ammunition, the butterfly knife, the SAPOL baton, the SAPOL safety vest, and the seized drugs and prescribed equipment are forfeited to the Crown;
5The appellant is disqualified from owning or possessing a firearm until further order; and
6The appellant is convicted of both the offence of failing to store the firearm securely and of the offence of failure to store the ammunition securely and is discharged without further penalty