R v Rajkovic
[2015] SASCFC 81
•5 June 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RAJKOVIC
[2015] SASCFC 81
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
5 June 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT
Appeal against sentence.
In the first police search, firearms and other items were found at the home of the appellant. The appellant thereafter entered into a bail agreement in relation to those items. Later, a second search was carried out and a cut down shotgun was located in the roof cavity. Further charges laid in relation to the second search had the effect of engaging s 20AAC Criminal Law (Sentencing) Act 1988.
At the sentencing hearing, the Judge overlooked the effect of s 20AAC and imposed one sentence pursuant to s 18A Criminal Law (Sentencing) Act 1988. The Judge was later informed by counsel of that error and in a further sentencing hearing purported to rectify the sentence pursuant to s 9A Criminal Law (Sentencing) Act 1988.
The appellant appealed on grounds asserting that the Judge erred in his application of s 9A, that the sentence was manifestly excessive, that the reductions for the pleas of guilty were inadequate in all the circumstances, and that the Judge erred in giving undue weight to certain factual matters when fixing the reductions.
Held per Peek and Nicholson JJ, allowing the appeal and remitting the matter for further consideration and resentencing:
1. The present case went beyond the limits of s 9A Criminal Law (Sentencing) Act 1988. The changes effected by the Judge on the second sentencing went beyond the rectification of an error of a technical nature or the supply of a deficiency or the removal of an ambiguity in the original sentence. The Judge imposed a new and different sentence. (at [33]-[37])
2. The prosecution did not allege any particular aggravating factor which the appellant’s evidence was relevant to answer or rebut. (at [44])
3. However, if the appellant attempts to discharge the requirements of sub-ss 20AAC(2)(a) and (b), he may wish to actively influence the exercise of the Judge’s discretion by demonstrating that the acquisition and possession of the firearm was not referable to any criminal enterprise. (at [50])
4. Counts 1 and 2 on the Magistrates Court Information are invalid as a matter of law and liable to be quashed. (at [53]-[59])
5. Counts 4, 8 and 10 on the District Court Information are misleading in that, although they appear to refer to two different firearms, in fact there was only one such firearm the subject of all three counts. (at [60]-[62])
Held per Gray J, allowing the appeal and remitting the matter for resentencing:
1. The Judge erred in his use of section 9A of the Criminal Law (Sentencing) Act 1988 (SA).
2. The Judge re-sentenced the defendant. He did not have the power to do so. The Judge had failed to correctly apply section 18A of the Criminal Law (Sentencing) Act 1988 (SA), which is not a mistake of a technical nature; it is a mistake of substance. It is of no consequence that the final sentence imposed was the same on both occasions.
3. The matter should be remitted for re-sentencing before a different Judge.
Summary Offences Act 1953 ss 41(1), 21F(1), 21C(2)(b); Summary Procedure Act 1921 ss 76A, 76B; Criminal Law Consolidation Act 1935 ss 352, 353; Firearms Act 1977 s 11(1); Criminal Law (Sentencing) Act 1988 ss 9A, 18A, 20AAC, 20AAC(2); Firearms Regulations 2008 ss 4(1), 38(2), 39, 61; Controlled Substances Act 1984 (SA) s 33LA; Bail Act 1985 (SA) s 17, referred to.
Law v Deed [1970] SASR 374; Question of Law Reserved (No 1 of 1996) (1996) 67 SASR 90; Tran v Police (Unreported, Supreme Court of South Australia, Perry J, 2 October 1998, No S6891); R v Olbrich (1999) 199 CLR 270; Police v Alikaris [2000] SASC 163; R v Place (2002) 91 SASR 395; Weininger v The Queen (2003) 212 CLR 629; Markarian v The Queen (2005) 228 CLR 357; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Moore v Police [2006] SASC 324; Burrell v The Queen (2008) 238 CLR 218; R v Bukvic (2010) 107 SASR 405; R v O'Toole [2013] SASCFC 18; R v Kreutzer (2013) 118 SASR 211; Achurch v The Queen (2014) 88 ALJR 490; R v Capaldo [2015] SASCFC 56; R v Fraser [2007] SASC 257; R v Brooks and Childs (2006) 95 SASR 369; R v Staltari [2007] SASC 337; Sullivan v Police [2010] SASC 216; Ditroia v Police [2014] SASC 27, considered.
R v RAJKOVIC
[2015] SASCFC 81Court of Criminal Appeal: Gray, Peek and Nicholson JJ
GRAY J.
This is an appeal against sentence.
Background
The defendant and appellant, Robert Rajkovic, pleaded guilty to the following offences:
-possessing while not holding a firearms licence[1] two class H firearms[2] and two class A firearms,[3] and failing to properly secure those firearms in accordance with the regulations;[4]
-possessing while not holding a firearms licence a prescribed firearm,[5] and failing to keep the firearm secured in accordance with the conditions of the licence authorising possession of the firearm;[6]
-failing to store ammunition in a locked container separately from the firearms;[7]
-unlawful possession of a bolt action rifle and an Epson projector which were reasonably suspected of having been stolen or obtained by unlawful means;[8]
-possessing dangerous articles, namely a taster and crossbow;[9]
-possessing prohibited weapons, namely a throwing star, an extendable baton and three daggers;[10]
-possessing prescribed equipment, namely four electrical boxes, four high wattage light globes and four light shades;[11] and
-contravening a bail agreement without reasonable excuse.[12]
[1] Firearms Act 1977 (SA) section 11.
[2] Namely, a .177 calibre Hammerili single shot pistol and a 6 millimetre air soft pistol.
[3] Namely, a .177 calibre Norica single shot break action air rifle and a .22 calibre CZ bolt action repeating rimfire rifle.
[4] Firearms Regulations 2008 (SA) regulations 38(2), 61.
[5] Namely a Stevens shot gun with a barrel length less than 750 millimetres.
[6] Firearms Regulations 2008 (SA) regulations 39, 61.
[7] Firearms Regulations 2008 (SA) regulations 41(1), 61.
[8] Summary Offences Act 1953 (SA) section 41(1).
[9] Summary Offences Act 1953 (SA) section 21C(2)(b).
[10] Summary Offences Act 1953 (SA) section 21F(1).
[11] Controlled Substances Act 1984 (SA) section 33LA.
[12] Bail Act 1985 (SA) section 17.
On 3 November 2014, the defendant was sentenced by a Judge of the District Court. Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Judge imposed a single sentence of imprisonment of four years and ten months with a non-parole period of two years and nine months in respect of the offences of possessing firearms without a licence, possessing the bolt action rifle and Epson projector and possessing dangerous articles and weapons. The Judge noted that he had discounted the head sentence by 26 per cent having regard to the defendant’s early guilty pleas. The Judge declined to exercise his discretion to suspend the sentence. The Judge convicted the defendant of the other offences without further penalty.
On 18 November 2014, the Judge purported to recall his sentence using section 9A of the Sentencing Act. The Judge said:
Under new provisions, inserted into the Criminal Law (Sentencing) Act 1988, which came into operation on 4 March 2013, your possession of the sawn-off shotgun is regarded as a serious firearm offence, pursuant to s.20AA(1)(iii) of the Act, because you committed the offence whilst on bail and subject to the condition I have just mentioned.
As you were convicted of committing a serious firearm offence, you are taken to be a serious firearm offender, under s.20AAB (1) of the Act. The consequence flowing from that, under s.20AAC(1) of the Act, is that I must impose a sentence of imprisonment for your offence of possessing the prescribed firearm, namely the sawn-off shotgun, and the sentence cannot be suspended, unless you give evidence, on oath, that your personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in sentencing, as set out in s.10(2)(e) of the Act, and that in all of the circumstances, I am satisfied it is appropriate to suspend the sentence. Neither of the conditions set out in s.20AAC (2) were established and so you were to be sentenced to imprisonment for your offence of possessing the sawn-off shotgun without a licence.
As it turned out, I was not satisfied, applying the general test under s.38 of the Act, that good reason existed to suspend the sentence of imprisonment I passed upon you, for the reasons I set out in my earlier remarks.
However, another consequence of sentencing you as a serious firearm offender is that s.18A of the Act does not apply in respect of your possession of the sawn-off shotgun whilst not holding a firearms licence. As I utilised s.18A to impose a single sentence of imprisonment upon you, I have done so in error. I consider that to amount to an error of a technical nature, and so I recall the sentence and rectify the error in the following way.
The Judge sentenced the defendant to a period of imprisonment of four years in respect of the offences of possessing the class H and class A firearms, the bolt action rifle, the Epson projector and the dangerous articles. The Judge reduced the sentence by 13 months having regard to the defendant’s guilty plea. The Judge sentenced the defendant to a period of imprisonment of three and a half years in respect of the prescribed firearm and made a reduction of nine months in respect of the defendant’s guilty plea. The Judge ordered that ten months of that sentence be served concurrently with the other sentence, resulting in a total sentence of four years and ten months. A non-parole period of two years and nine months was imposed.
The Appeal
The defendant’s grounds of appeal included, inter alia, that the Judge erred by using section 9A of the Sentencing Act to recall the sentence. Counsel for the Director of Public Prosecutions conceded that the Judge had erred in this respect and this Court allowed the appeal without hearing argument and remitted the matter for re-sentencing before a different judge.
Section 9A of the Sentencing Act provides:
Rectification of sentencing errors
(1) A court that imposes, or purports to impose, a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on its own initiative or on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2) The Director of Public Prosecutions and the defendant are both parties to proceedings under this section.
[Emphasis added.]
Section 9A was considered by this Court in Question of Law Reserved on Sentence (No 1 of 1996).[13]Doyle CJ, writing for the Court, said:[14]
... s 9A is not a means of remedying any and every problem that may occur. In particular, it is not clear that it enables the passing of a completely new sentence, as distinct from the making of an order which affects the operation of a sentence already passed.
[13] Question of Law Reserved on Sentence (No 1 of 1996) (1996) 67 SASR 90.
[14] Question of Law Reserved on Sentence (No 1 of 1996) (1996) 67 SASR 90, 93.
In Fraser,[15] Anderson J sentenced a defendant for manslaughter without being aware that the defendant was on parole at the time of his offending. Anderson J accepted that the defendant was required to serve the unexpired balance of his parole and amended the sentence accordingly. He said:[16]
Cox J was faced with a similar situation in the matter of R v Porter (SCCRM-98-38). In that matter the defendant had been convicted of manslaughter and Cox J had not been made aware that the defendant had been on parole at the time of committing the crime. As in this case, counsel applied for the sentence to be rectified pursuant to s 9A to take into account the time remaining of the parole. In his ruling on the rectification of sentence, which he handed down on 3 February 1999, Cox J stated:
It remains, then, to impose an appropriate sentence for the manslaughter offence and to fix a non-parole period to embrace both that sentence, which must be cumulative on the activated sentences by virtue of the legislation ... and, as I say, to fix a comprehensive non-parole period.
Cox J then increased the non-parole period. He makes it clear that this increase in the non-parole period relates to the portion of the sentence relating to the unexpired portion of parole and is not an increase in the non-parole relating to the sentence for manslaughter.
It is my view that a separate period of non-parole should be set for this unexpired period of parole. To take this approach in my view is not in any way re-sentencing Mr Fraser for the charge of manslaughter. On 18 June 2007 I handed down a sentence for manslaughter that required Mr Fraser to spend a further 10 months in custody for that offence. In rectifying Mr Fraser’s sentence, he will still be spending 10 months in custody for manslaughter, but he will also spend a further period in custody for his breach of parole.
I am not in anyway re-evaluating the factors that I took into account in sentencing Mr Fraser for manslaughter. I do not view this as re-sentencing Mr Fraser. I regard it as an acceptable exercise of the powers conferred by s 9A. It seems to me that the section was enacted for this type of purpose. I consider that in the terms of s 9A what I am doing amounts to rectifying an error of a technical nature and also supplying a deficiency in the sentencing order.
[Emphasis added.]
[15] R v Fraser [2007] SASC 257.
[16] R v Fraser [2007] SASC 257, [13]-[16]. See also R v Brooks and Childs (2006) 95 SASR 369; R v Staltari [2007] SASC 337; Sullivan v Police [2010] SASC 216; Ditroia v Police [2014] SASC 27.
The High Court considered the slip rule in Burrell v The Queen.[17]The New South Wales Court of Appeal dismissed an appeal against conviction and sentence. Reasons were published and orders were made.Some time later, the Court learned that it had proceeded on a substantially incorrect factual basis, having relied on a summary of evidence provided by a party which was inaccurate. The Court of Appeal of its own motion purported to reopen the matter and, having considered matter with a correct understanding of the evidence, “confirmed” its earlier order dismissing the appeals. The High Court found that the Court of Appeal did not have the power to follow that course. The plurality, having emphasised the importance of the principle of finality, addressed a court’s power to correct the record and said:[18]
The formal recording of the orders of a superior court of record is often referred to as the “perfecting” of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been “perfected”. This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?
The end of a court’s powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court’s orders were the criterion, there would never be an end to some disputes. And because one party’s assertion of error cannot provide a sufficient criterion, a court’s belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.
Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.
Neither the appellant nor the respondent challenged any of these propositions. Rather, the accepted premise for the debate was that formal recording of the orders of the Court of Criminal Appeal ordinarily does mark the end of that Court’s power to consider the issues which were tendered in the proceedings that yielded those orders. Hence the expression of the question for this Court as whether the Court of Criminal Appeal had power to reopen the appellant’s appeals and reconsider its orders. And as explained earlier, if the Court of Criminal Appeal had power to reopen the appellant’s appeals and reconsider the orders it had made, that power must be found in “the text of the governing statutes and any express or implied powers to be seen therein”. That is, the power must be found in the Criminal Appeal Act 1912 (NSW).
[Footnotes omitted. Emphasis added.]
[17] Burrell v The Queen (2008) 238 CLR 218, affirmed in Achurch v The Queen (2014) 88 ALJR 490.
[18] Burrell v The Queen (2008) 238 CLR 218, [18]-[22].
The relevant power to alter a perfected order of the Court in the present case is section 9A of the Sentencing Act. In my view, the Director’s concession that the appeal should be allowed on the basis that the Judge had erred in his use of section 9A of the Sentencing Act was appropriate. The Judge when sentencing on the first occasion erred by imposing a single sentence pursuant to section 18A. This was not a mistake of a technical nature; it was a mistake of substance – the Judge failed to correctly apply the Sentencing Act. On the second occasion, he imposed two sentences. In doing so, the Judge had regard to different sections of the Act, with differently expressed tests for suspending a sentence of imprisonment. The Judge made different reductions for the defendant’s guilty pleas. In so doing, the Judge was required to re-consider the significance of his findings of fact. The Judge re-sentenced the defendant. He did not have the power to do so. It is of no consequence that the final sentence imposed was the same on both occasions. If the re-sentencing was undertaken according to law, namely if the Judge genuinely had regard to the matter afresh, this was pure coincidence. Alternatively, the Judge sought to re-engineer his previous sentence, notwithstanding that he was required to undertake a different sentencing process, in which case he erred by failing to have regard to the relevant sentencing considerations.
Other Matters
As matters transpired, the defendant was not afforded the opportunity to give evidence addressing section 20AAC of the Sentencing Act. Further, my review of the transcript of proceedings, and in particular statements made by the Judge, raised some matters of disquiet. Accordingly, having decided to allow the appeal, I considered it appropriate, at the invitation of the parties, to remit the matter for re-sentencing before a different judge.
I have had the benefit of reading the draft reasons of Peek and Nicholson JJ. I do not consider that I should express a view on how the re-sentencing should be conducted. However, I respectfully adopt their Honour’s comments concerning the errors contained in the information. The modern approach to drafting legislation creates a complex array of offences resting in part on legislation and in part on regulation. This places defendants and their advisors under considerable time pressure to thoroughly assess the charges in time to enter a plea to gain the full benefit of the discounts afforded under legislation. In these circumstances, it may be difficult for defendants to properly assess the accuracy of the charges laid against them in time to enter a plea at their first appearance. It is critical that charges are laid with due care. It is of considerable concern that, but for the oversight concerning the application of section 20AAC of the Sentencing Act, the defendant would have pleaded guilty to and been sentenced for offences which were the product of manifestly defective drafting.
Conclusion
For the foregoing reasons, I joined in the order allowing the appeal and remitting the matter for re-sentencing before a different judge.
PEEK & NICHOLSON JJ.
At the hearing of this appeal against sentence on 19 March 2015, the Court allowed the appeal and ordered that the matter be remitted for further consideration and resentencing by a different Judge of the District Court. These are our reasons for joining in that order.
Introduction and chronology of events
On 29 August 2013, a contingent of police officers attended at the home of the appellant at Morphett Vale; they there found a number of firearms and some other prohibited items. Charges were laid concerning those items with the first date of appearance fixed as 12 May 2014. Ultimately those charges were replaced by the Information laid in the District Court which is now before the Court (to be referred to as the District Court Information).
On 14 February 2014, the appellant entered into a bail agreement containing the usual condition that he not possess a firearm. He was released to reside at the Morphett Vale premises. At this time, a single barrel, single shot Stevens brand shotgun with both the barrel and the stock cut down (to be referred to as the cut down shotgun) remained concealed in the roof cavity of the premises. It had been present there, in the possession of the appellant, on 29 August 2013 but had not been found by the police. The appellant was aware of the continued presence of the cut down shotgun in the roof cavity and whilst he did not touch or move it, he remained in possession of it. He took no steps to inform the police of its presence.
On 17 March 2014, police officers again attended at the appellant’s home and again searched the premises. They searched the roof cavity (not having done so on the previous occasion) and seized the cut down shotgun.
On 18 March 2014, an Information was laid in the Magistrates Court (to be referred to as the Magistrates Court Information) charging two offences in relation to the possession of the cut down shotgun, with the first date of appearance fixed as 18 March 2014. A Complaint charging a breach of the bail agreement dated 14 February 2014 by dint of the possession of the cut down shotgun was also laid.
The appellant remained in custody from 17 March 2014 until 13 May 2014 when he was granted home detention bail.
On 4 June 2014, the appellant entered pleas of guilty in the Magistrates Court to the charges arising from the first police search on 29 August 2013[19] and to the further two charges in the Magistrates Court Information in relation to the cut down shotgun found during the second police search on 17 March 2014.[20] He was subsequently committed to the District Court for sentence on 4 July 2014.
[19] Since the pleas of guilty were entered on 4 June 2014 and therefore within four weeks of the date of first appearance on 12 May 2014, the appellant was entitled to up to 40% discount on the head sentence.
[20] Since the pleas of guilty were entered on 4 June 2014 and before the appellant was committed for trial for the offences, the appellant was entitled to up to 30% discount on the head sentence.
The legal position concerning the possession of the cut down shotgun
By being in possession of the cut down shotgun on 17 March 2014, contrary to sub-s 11(1) Firearms Act, the appellant both breached his bail agreement[21] and caused himself to be characterised as “a serious firearms offender who had committed a serious firearms offence”. As a consequence, s 20AAC of the Criminal Law (Sentencing) Act 1988 (to be referred to as the Sentencing Act) was engaged at the time of sentencing for the possession of the cut down shotgun. Section 20AAC provides as follows:
[21] The sentencing Judge dealt with the breach by recording a conviction without further penalty.
20AAC—Sentence of imprisonment not to be suspended
(1)Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):
(a) if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;
(b) the sentence of imprisonment cannot be suspended;
(c) section 18 does not apply in respect of the sentencing of the person;
(d) if—
(i)the person is also being sentenced in respect of other offences; and
(ii)1 or more of those offences are not serious firearm offences,
section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).
(2)A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if he or she satisfies the court, by evidence given on oath, that—
(a) his or her personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing (as set out in section 10(2)(e)); and
(b) it is, in all the circumstances, appropriate to suspend the sentence.
(3)If subsection (2) applies, section 10(2)(e) is taken not to apply in relation to the sentencing.
Thus, when sentencing for the possession of the cut down shotgun, the Judge was obliged to:
·impose a term of imprisonment, and
·eschew s 18A of the Sentencing Act and to impose a term of imprisonment for this offence separate from any other term(s) of imprisonment imposed for other offending, and
·abstain from suspending the separate term of imprisonment, subject only to sub-s 20AAC(2) otherwise being satisfied.
The first sentencing in the District Court
On the occasion of the first sentencing of the appellant in the District Court on 3 November 2014, the requirements of s 20AAC wholly escaped the attention of all parties and the Judge did not sentence according to its terms.
During sentencing submissions, the appellant gave evidence in response to certain comments made by the Judge. This evidence is further referred to below. However, it is to be accepted that the appellant’s evidence did not specifically address matters bearing on sub-s 20AAC(2)(a) and (b) because the need for, or potential advantage of, such evidence did not come to his attention given that s 20AAC was overlooked by all.
The Judge employed s 18A of the Sentencing Act to fix one penalty for all of the offences with respect to which imprisonment was an available penalty, including the possession of the cut down shotgun. His Honour imposed a head sentence of four years and ten months imprisonment with a non-parole period of two years and nine months. The sentence was not suspended but was backdated to 1 July 2014, in order to allow for time in custody and on home detention bail.[22]
[22] The Judge also made a number of ancillary orders that have not been challenged but have been set aside together with the other orders and will need to be revisited when the appellant is resentenced.
The Judge reduced the head sentence from six years and four months to four years and ten months (that is, by 20 months or a shade over 26 per cent) on account of the pleas of guilty. It is common ground that in the circumstances of this case, the appellant was entitled to a potential maximum discount for the pleas to the District Court Information and the Magistrates Court Information of up to 40 per cent and 30 per cent respectively.
The purported second sentencing in the District Court
Sometime after delivering the first sentence, s 20AAC was drawn to the Judge’s attention. His Honour prepared a further set of remarks and on 18 November 2014, purported to “recall” the original sentence and impose a fresh sentence, albeit one leading to the same ultimate result. In so doing, the Judge purported to rely on s 9A of the Sentencing Act as empowering him to correct what he described as a “technical error”. That section provides as follows:
9A—Rectification of sentencing errors
(1)A court that imposes, or purports to impose, a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on its own initiative or on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2)The Director of Public Prosecutions and the defendant are both parties to proceedings under this section.
The Judge proceeded under s 18A of the Sentencing Act in relation to the offences on the District Court Information for which a prison term was an available penalty. After taking into account issues of totality,[23] accumulation and concurrency, his Honour imposed one penalty of 35 months imprisonment, reduced by 13 months from four years (a reduction of 27 per cent) on account of the pleas. For the possession of the cut down shotgun offence, the Judge imposed a separate penalty of 33 months, reduced by nine months from three and a half years (a reduction of a little over 21 per cent) on account of the plea. His Honour allowed for ten months to be served concurrently with the s 18A term, giving rise to a total head sentence of four years and ten months with a non-parole period of two years and nine months – both being the same as the original sentencing.
[23] This would appear to have been a premature consideration of the totality principle which, ordinarily, is applied as a “last check” once a proposed sentence has otherwise been finalised: see the discussion by Doyle CJ, Prior, Lander and Martin JJ in R v Place [2002] SASC 101; (2002) 81 SASR 395 at [84]-[90].
The Judge explained his approach, in correcting the error of initially overlooking s 20AAC, as follows:
As you were convicted of committing a serious firearm offence, you are taken to be a serious firearm offender, under s 20AAB(1) of the Act. The consequence flowing from that, under s 20AAC(1) of the Act, is that I must impose a sentence of imprisonment for your offence of possessing the prescribed firearm, namely the sawn-off shotgun, and the sentence cannot be suspended, unless you give evidence, on oath, that your personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in sentencing, as set out in s 10(2)(e) of the Act, and that in all of the circumstances, I am satisfied it is appropriate to suspend the sentence. Neither of the conditions set out in s 20AAC(2) were established and so you were to be sentenced to imprisonment for your offence of possessing the sawn-off shotgun without a licence.
As it turned out, I was not satisfied, applying the general test under s 38 of the Act, that good reason existed to suspend the sentence of imprisonment I passed upon you, for the reasons I set out in my earlier remarks.
However, another consequence of sentencing you as a serious firearm offender is that s 18A of the Act does not apply in respect of your possession of the sawn-off shotgun whilst not holding a firearms licence. As I utilised s 18A to impose a single sentence of imprisonment upon you, I have done so in error. I consider that to amount to an error of a technical nature, and so I recall the sentence and rectify the error in the following way.
The proceedings on appeal
By his amended notice of appeal, filed 3 March 2015, the appellant raised the following grounds of appeal:
(1)The sentence imposed is manifestly excessive.
(2)The reductions for the pleas of guilty were inadequate in all the circumstance.
(3)In fixing the reductions for the pleas of guilty the learned sentencing Judge erred in giving undue weight to:-
(i) the strength of the prosecution case;
(ii) his adverse findings in relation to the appellant’s explanation for his possession of the various items.
The permission to appeal proceedings
During the permission to appeal proceedings on 2 February 2015, the Court raised with counsel the validity of the use of s 9A of the Sentencing Act here. Senior counsel appearing for the appellant specifically eschewed any complaint about this, and nor did counsel then appearing for the Director of Public Prosecutions raise any concern. The application proceeded by reference to the above grounds of appeal only. Permission to appeal was granted.
The proceedings in the Court of Criminal Appeal
As it happens, it was unnecessary to consider the above grounds of appeal in any detail at the hearing of the appeal. By letter dated 17 March 2015, counsel for the appellant notified the Court and the Director of Public Prosecutions of the appellant’s intention to seek permission to add as a further ground of appeal:
The learned sentencing Judge erred in purporting to resentence the appellant pursuant to s 9A of the Criminal Law (Sentencing) Act 1988.
Counsel for the Director did not object to the late addition of this ground and, in due course, conceded that the appeal should be allowed on this basis. That concession was properly made. The sentence as ultimately imposed by the Judge is not to be characterised as merely the correcting of a technical error in the initial sentence; it was, in fact and in law, a new sentence. Section 9A of the Sentencing Act empowers the court to alter a sentence after it has been passed but only in the limited circumstances there set out: to “rectify an error of a technical nature ... or to supply a deficiency or remove an ambiguity in the sentencing order”. The present case went beyond the limits of the section for at least the following reasons:
(i)On the first sentencing, the Judge went directly to one global penalty for all offences that carried a potential term of imprisonment apparently by way of the “instinctive synthesis” approach[24]
(ii)On the second sentencing, the Judge employed the same approach with the s 18A offences but sentenced separately for the cut down shotgun offence. In order to do so, his Honour had to consciously disentangle from the previous global sentence a portion which reflected an appropriate stand-alone penalty for the cut down shotgun offence.
(iii)On the first sentencing, the Judge allowed a discount of approximately 26 per cent for all pleas: some being entitled to up to 30 per cent discount and others being entitled to up to 40 per cent discount.
(iv)On the second sentencing, the Judge allowed for separate and different sentencing discounts (of 27 per cent and 21 per cent) which, taken together (and after allowing for some concurrency), allowed for a mathematical result that did not differ from the first sentence.
(v)On the second sentencing, with respect to the separate sentence imposed for the cut down shotgun, the Judge was obliged to have regard to considerations, at the least, additional[25] to those usually taken into account when determining whether or not to suspend.
[24] As that term was used by McHugh J in Markarian v The Queen (2005) 228 CLR 357.
[25] We have not considered the question whether s 20AAC(2) gives rise only to considerations additional to s 38 (“good reason”) or whether it, as well, imposes a different ultimate test – “in all the circumstances, appropriate”.
Failing an appropriate use of s 9A, the only means by which a sentence once passed can be altered, ordinarily, will be through the appeal process.[26] Thus in Question of Law Reserved (No 1 of 1996)[27] Doyle CJ observed:
I wish to make it clear that, in my opinion, s 9A is not a means of remedying any and every problem that may occur. In particular, it is not clear that it enables the passing of a completely new sentence, as distinct from the making of an order which affects the operation of a sentence already passed.
[26] Criminal Law Consolidation Act 1935 ss 352 and 353. The Magistrates Court of South Australia has the power available to it under ss 76A and 76B of the Summary Procedure Act 1921, see generally, Moore v Police [2006] SASC 324; Police v Alikaris [2000] SASC 163; Tran v Police (Unreported, Supreme Court of South Australia, Perry J, 2 October 1998, No. S6891).
[27] (1996) 67 SASR 90 at 93.
In the recent High Court decision in Achurch v The Queen, the plurality stated: [28]
[28] (2014) 88 ALJR 490, 496-498 (French CJ, Crennan, Kiefel and Bell JJ).
[14]Absent specific statutory authority, the power of courts to re-open their proceedings and to vary their orders is constrained by the principle of finality. That principle was stated succinctly in D’Orta-Ekenaike v Victoria Legal Aid[29] and re-stated by the plurality in Burrell v The Queen:[30]
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.
…
[18]The slip rule as an aspect of the inherent or implied powers[31] allows for limited correction of an order after its final entry, as was explained in Burrell:[32]
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.
[Footnote omitted]
The power conferred under the slip rule “is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation”.
[29] (2005) 223 CLR 1 at 17 [34].
[30] (2008) 238 CLR 218 at 223 [15].
[31] Express provision may be made by statute or rule in relation to the correction of errors of the kind covered by the slip rule.
[32] (2008) 238 CLR 218 at 224–225 [21].
In our view, the changes effected here by the Judge on the second sentencing went beyond the rectification of an error of a technical nature or the supply of a deficiency or the removal of an ambiguity in the original sentence. The Judge imposed a new and different sentence.
The appeal was allowed for this reason. For the purpose of the re‑sentencing, the appellant might wish to exercise his right to give evidence on matters falling within s 20AAC(2)(a) and (b). In addition, as later explained, the Crown may wish to amend some of the charges and have the appellant re‑arraigned to that extent. It was for these reasons that, rather than this Court undertaking the re-sentencing, the matter was remitted to the District Court.
The Court did not full hear argument concerning the other grounds of appeal but since there will be a rehearing, it is necessary to say something about two other topics: the evidence given (or to be given) by the appellant and the invalid state of the charges in the Magistrates Court Information.
The evidence given by the appellant before the District Court Judge
During the course of submissions by the appellant’s counsel, the Judge of his own motion raised the topic of a statement made by the appellant to a community corrections officer that the cut down shotgun was intended for rabbit shooting. His Honour stated:
HIS HONOUR: I don’t accept that for one minute. It is bollocks anyone would have a sawn-off shotgun hidden in the roof cavity to shoot rabbits with. If he wants me to accept that he has to give evidence on oath. I do not accept it.
MR KOEHN: He may have to do that and would be prepared to give evidence about that. The situation was that, as he explained to me, his partner’s grandparents owned a property at Tailem Bend on which they do spotlight shooting.
HIS HONOUR: With a sawn-off shotgun, hardly, Mr Koehn. Hardly. I don’t accept that. If he wants me to sentence him on the basis he possessed a sawn-off shotgun to go spotlighting he will have to get in the witness box to give evidence.
MR KOEHN: He is prepared to do that. Does your Honour want him to do that now?
HIS HONOUR I do.
The effect of this was to take counsel from his line of submissions and the appellant immediately entered the witness box. The appellant was examined at considerable length and predominantly by the Judge. The examination advanced substantially beyond the matter of the intended use of the cut down shotgun. We have some misgivings with respect to the process undertaken which on its face raises for consideration some of the concerns identified in R v Capaldo.[33] There is no ground of appeal in this respect nor did the Court hear any argument on this issue. Nevertheless, in the circumstances, the Court took the view that the matter should be considered afresh by a different judge.
[33] [2015] SASCFC 56 at [8]-[17].
The relevance of the appellant’s evidence
It is appropriate to briefly consider the relevance of the evidence given by a defendant after a plea of guilty. In Weininger v The Queen, the plurality stated:[34]
[20]… As the majority pointed out in Olbrich, prosecuting authorities and a sentencing judge will often have only the most limited and imperfect information about how it was that the accused came to commit the offence for which he or she is to be sentenced. Although s 16A(2)(a) requires a sentencing judge to take account of the nature and circumstances of the offence, that requirement is not absolute. They are to be taken into account only to the extent that they are relevant and known to the court. The sentencing judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.
…
[22]Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.
(Citations omitted)
[34] (2003) 212 CLR 629, 636-637 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
In the Court of Criminal Appeal decision of R v Kreutzer,[35] Kourakis CJ reviewed in detail the evolution of the approach to fact finding on sentence from the position taken by Bray CJ in Law v Deed[36] to the decisions of the High Court in R v Olbrich[37] and Weininger v The Queen.[38] His Honour then stated:[39]
[35] (2013) 118 SASR 211, [21]-[30] (Kourakis CJ). See also Gray and Blue JJ to the same effect at [59]-[70].
[36] [1970] SASR 374.
[37] (1999) 199 CLR 270.
[38] (2003) 212 CLR 629.
[39] [2013] SASCFC 130.
[31]More recently this question was considered by this Court in R v Bukvic.[40] White J summarised the position in this way:[41]
The judge’s consideration of the parties’ submissions concerning the appellant’s previous conduct required the application of two important sentencing principles. The first is that the prosecution has the onus of establishing any aggravating circumstance which it alleges and offenders have the onus of establishing any mitigatory matter which they allege. That does not mean that all matters put before a judge are to be characterised as favourable or adverse, or as aggravating or mitigatory. Some matters may be properly known to, and relied upon by, a sentencing judge which fit into neither category.
The second principle is that an offence is not to be regarded as aggravated by some conduct which would constitute a different offence for which the offender has been neither charged nor convicted. If the prosecution does wish to rely on the aggravating factor in those circumstances, it must bring a charge of the separate offence, and have the accused tried on that charge. In this way the second principle qualifies the operation of the first.
(Citations omitted)
[32]The decisions in Olbrich, Lobban, Storey, and Weininger support the following approach to fixing the factual matrix for sentencing purposes:
(1) Circumstances which operate adversely to a defendant on the one hand, or favourably on the other, should first be identified, bearing in mind that not all relevant circumstances can be so categorised. Even though there exists authoritative guidance about many commonly recurring circumstances, the categories are not closed.
(2) In the absence of agreement and acceptance by the court, the prosecution must formally prove circumstances of aggravation beyond reasonable doubt and the defendant must formally prove matters in mitigation on the balance of probabilities.
(3) If a circumstance of aggravation or mitigation is not proved by the party who carries the onus to do so, the converse is not thereby proved and the court must proceed to sentence not knowing whether the circumstance, or the converse, is true.
(4) A sentencing court may inform itself of matters which are neither circumstances of aggravation nor mitigation as it sees fit in accordance with historical sentencing practice and any applicable statutory discretions such as s 6 of the Sentencing Act.
Did the prosecution assert a particular aggravating factor that it was required to prove beyond reasonable doubt?
[40] (2010) 107 SASR 405.
[41] (2010) 107 SASR 405, [37]-[38].
The present case presents a quite different factual situation to that which occurs where the prosecution positively asserts that the defendant who is found in possession of a firearm had that firearm for the purpose of effectuating a crime, for example robbery, extortion or drug trading.[42] By contrast, in the present case some personal use of illicit drugs is admitted by the appellant but there was no evidence or assertion in submissions by the prosecutor to the Judge (or in the cross-examination of the appellant) of a particular aggravating factor in the nature of acquiring the firearms for use in connexion with trading in drugs or any other criminal enterprise. Since there was no such allegation of a matter of aggravation, it follows that the evidence of the appellant was not relevant as answering or rebutting such an allegation.
[42] For example, R v Kreutzer referred to above was a case where the defendant was charged with drug trading and there was a strong prosecution case that firearms were possessed by him for the purpose of use in connexion with drug trading.
Of course, the prosecution did contend that the offending was serious having regard to the nature and number of the firearms, and the quantity of ammunition involved. But this was a legitimate submission arising on the evidence and required no further proof. Again, the evidence of the appellant was not relevant here because he did not contest the nature of the items or his possession of them.
Did the accused assert a particular mitigating factor that he was required to prove on the balance of probabilities?
The matter of the appellant’s reason for his acquisition of the cut down shotgun was initially introduced and emphasised by the Judge. However, there is a real question as to whether an acceptance of the appellant’s assertion that he acquired it for the purpose of rabbit shooting could ever have positively mitigated his offending.
Of course, it is possible to postulate a quite different factual situation in which mitigating factors, while not excusing illegal possession of a firearm, could positively militate in favour of leniency of penalty. One such example might involve a person who is in genuine fear of attack and feels immense pressure to acquire a firearm for the purposes of defence of themself and their family.[43] However, no facts remotely resembling 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 responded on previous occasions of home invasion. In R v Capaldo [2015] SASCFC 56 the defendant asserted that she possessed a firearm for protection against her violent ex-partner.
The plain fact is that the acquisition or possession of the items of the type involved here is prohibited by law irrespective of the motivations of a defendant; whether the appellant here acquired the subject items because he was simply a collector, or because he wanted them for target shooting, rabbit shooting, or race starting for that matter, simply does not matter in the present circumstances.
Evidence relevant to s 20AAC(2)(a) and (b)
As stated above, s 20AAC was overlooked by all and it is to be accepted that the appellant’s evidence given during the first sentencing hearing did not specifically address matters bearing on sub-ss 20AAC(2)(a) and (b) because the need for, or potential advantage of, such evidence did not come to his attention. Those provisions appear as follows:
(2)A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if he or she satisfies the court, by evidence given on oath, that—
(a) his or her personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing (as set out in section 10(2)(e)); and
(b) it is, in all the circumstances, appropriate to suspend the sentence.
If the present appellant attempts to discharge those statutory requirements at the rehearing, the situation will be somewhat different to that referred to in cases such as Olbrich and Weininger. Even though there is no prosecution allegation of a particular aggravating factor in the nature of acquiring the firearms for use in connexion with any criminal enterprise, the appellant may nevertheless wish to actively influence the exercise of the Judge’s discretion by positively demonstrating that, apart from the fact that such possession is illegal per se, his acquisition and possession was “innocent” in the sense of being in no way referable to any criminal enterprise.
It may be that similar comments may be made in relation to the more usual application for suspension of a sentence that is made pursuant to s 38 of the Sentencing Act, but that situation does not arise here and it is unnecessary to consider the matter further.
Further matters of relevance to the rehearing
The following matters passed unnoticed through the charging process, the Magistrates Court and the District Court, to receive attention for the first time on appeal when raised by this Court. They will need to be addressed at the rehearing.
Both counts 1 and 2 of the Magistrates Court Information are invalid in that they fail to charge an offence known to the law
Under the Firearms Act 1977 (the Act) and the Firearms Regulations 2008 (the Regulations), the possession of “a prescribed weapon” is a very serious offence. It is a major indictable offence carrying a much greater maximum penalty than for possession of other classes of firearms. Indeed, in the present case, because of the series of events referred to elsewhere in this judgment, the offence sought to be referred to in count 1 prima facie requires mandatory custodial imprisonment. The appellant pleaded guilty to, and has been convicted of, both counts 1 and 2 on the Magistrates Court Information (each count referring to the same cut down shotgun). It is an unfortunate situation that both counts 1 and 2 are invalid and liable to be quashed for independent reasons.
Count 1 of the Magistrates Court Information avers as follows:
On the 17th day of March 2014 at MORPHETT VALE in the said State, [the appellant] was in possession of a prescribed firearm namely a Stevens shot gun with a barrel length less than 750 millimetres whilst not holding a firearms licence authorising possession of that firearm.
Section 11(1) of the Firearms Act 1977.
This is a major indictable offence.
Count 1 purports to charge an offence the elements of which are here averred to be the possessing of a shotgun “with a barrel length of less than 750 millimetres” whilst not holding a firearms licence authorising possession of that firearm.
A glance at the Regulations (picked up by s 11(1) of the Act) discloses that the length of a shotgun barrel (below which the shotgun will be deemed to be a prescribed weapon) is 450 millimetres and not 750 millimetres as charged.[44] It is therefore not an offence known to the law of South Australia to have possession of a prescribed firearm being a shotgun with a barrel of less than 750 millimetres.[45] This carelessness in drafting a very serious charge is inexcusable.
[44] Regulation 4(1) relevantly defines a prescribed weapon as: (d) “shotguns having 1 or more barrels of less than 450 millimetres in length”.
[45] It is, of course, an offence to have possession of a prescribed firearm being a shotgun with a barrel of less than 450 millimetres. There was no formal evidence before this Court as to whether the barrel length was less than 450 millimetres although measurement may disclose that it is. It is also to be noted that there is a further regulation requiring the overall length of relevant firearms to be 750 millimetres (below which they will be deemed to be prescribed weapons); again, there was no formal evidence before this Court as to whether the overall length of the Stevens shotgun was less than 750 millimetres although measurement may disclose that it is. However, it is to be emphasised that these are factual or evidentiary matters, neither of which of themselves will rectify the situation in the absence of a valid charge.
Count 2 of the Magistrates Court Information (which refers to the same cut down shotgun) avers as follows:
On the 17th day of March 2014 at MORPHETT VALE in the said State, [the appellant] having possession of a prescribed firearm namely a Stevens shot gun with a barrel length less than 750 millimetres failed to keep that prescribed firearm secured in accordance with the conditions of the licence authorising possession of that prescribed firearm.
Regulations 39 and 61 of the Firearms Regulations, 2008.
This is a summary offence.
Count 2 purports to charge an offence under Regulation 39 of the Regulations with the penalty being a fine in the maximum amount of $2,500; it is a much less serious offence than that purported to be charged in count 1. The obvious explanation for the existence for this lesser charge is that a person may have a licence to possess a prescribed weapon with such licence being subject to certain conditions; the function and purpose of Regulation 39 is to create the offence of breaching a condition of such a licence.
However, in the present case, the whole point of the police prosecution case was that the appellant did not have any such licence and was therefore liable to be convicted of the major indictable offence above. It would seem very obvious that the appellant cannot at the same time be convicted of a breach of Regulation 39 which predicates, and requires, a licence the very existence of which the prosecution furiously deny. Again, a high degree of carelessness is involved here. It is very difficult to understand how a police officer with even a remote knowledge of the police case against the appellant could have laid such a charge (or how a lawyer could have permitted his client to plead guilty to it).
The District Court Information appears to charge an “extra” firearm
A further potential difficulty arose in that the District Court Information appeared to charge conduct in relation to an “extra” firearm that did not exist. Counts 4 and 8 of the District Court Information both refer to a class A firearm being a “.22 CZ bolt action repeating rifle”; these two counts charge different offences under the Act in relation to that same rifle. However, count 10 refers to a “Bruno bolt action” (sic Brno)[46] rifle and charges the additional offence of unlawful possession contrary to s 41(1) Summary Offences Act 1953 in relation to that rifle.
[46] The “brand” Brno, after the town in the Czech Republic, is pronounced “Bruno” and was carelessly spelt that way in the Information. This error followed through into the Judge’s sentencing remarks.
The remarks of the Judge during sentencing submissions on 10 September 2014 indicated that he thought, not surprisingly, that the “Bruno bolt action” rifle referred to in count 10 was a different, and additional, rifle to that referred to in counts 4 and 8 as a “.22 CZ bolt action repeating rifle”. At this time, the prosecutor endeavoured to convey to his Honour that, although he could not explain why the drafting was different,[47] the rifle referred to in count 10 was in fact the same as that referred to in counts 4 and 8. However, it is arguable that the Judge’s language when he came to sentence on 3 November 2014 appears to indicate that he thought he was sentencing for two different rifles.
[47] The letters CZ in counts 4 and 8 stand for Ceska Zbrojovka, a company in the Czech Republic which has manufactured firearms for many years. Brno is another company in the Czech Republic which also manufactured firearms for many years and was taken over by CZ. We note that in the Ballistics Report, Sanders acceptably refers to this rifle as a “Ceska Zbrojovka Brno Model 2 bolt action repeating rifle in the rimfire calibre 22 Long Rifle”. Obviously, none of this explains the carelessness in drafting counts 4 and 8 in terms quite different to that in count 10.
In any event, the action of the original police officer in using one description of a rifle in two counts, but a quite different description for the very same rifle in a third count, was highly inept and was always likely to mislead. Since the prosecution accepts (correctly) that it was in fact the same rifle being referred to in each of the three counts 4, 8 and 10, the re-sentencing can proceed on that clear basis.
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