R v Rajkovic

Case [2015] SASCFC 81

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…

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R v Rajkovic [2015] SASCFC 81
Case
[2015] SASCFC 81
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CaseChat Overview and Summary

This case concerned an appeal against sentence brought by Robert Rajkovic, who had pleaded guilty to numerous offences including possessing firearms without a licence, failing to secure firearms and ammunition, unlawful possession of suspected stolen property, and possessing prohibited weapons. The District Court Judge had imposed a single sentence of imprisonment for four years and ten months, with a non-parole period of two years and nine months, for certain offences, and had later attempted to recall and vary this sentence under section 9A of the Sentencing Act.

The legal issues before the Court of Criminal Appeal included whether the sentencing judge had erred in recalling the sentence and imposing a new one, particularly in light of the judge's interpretation of new provisions concerning "serious firearm offences" and "serious firearm offenders" under the Criminal Law (Sentencing) Act 1988 (SA). The court was also required to consider the proper approach to fact-finding on sentence, including the burden and standard of proof for aggravating and mitigating circumstances, and the relevance of evidence provided by an offender after a guilty plea.

The court found that the sentencing judge had made an error in recalling the sentence. This error stemmed from the judge's misapplication of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) in imposing a single sentence, when the provisions regarding serious firearm offences meant that section 18A should not have applied to the possession of the sawn-off shotgun. The court also noted concerns regarding the drafting of the charges and the process by which the judge had elicited evidence from the appellant, referencing principles established in cases such as *R v Capaldo*, *Weininger v The Queen*, and *R v Kreutzer* regarding the factual matrix for sentencing.

The appeal was allowed, and the matter was remitted for re-sentencing before a different judge of the District Court. The court highlighted the importance of accurate drafting of charges and the careful application of sentencing legislation, particularly in light of complex statutory provisions.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

GRAY J
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 & 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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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