SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RERICH
[2016] SASCFC 78
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Stanley)
1 August 2016
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OFFENCES ARISING OUT OF SAME TRANSACTION OR COURSE OF CONDUCT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
This is an appeal against sentence.
The appellant pleaded guilty to one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA), one count of aggravated possession of a prescribed firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA), one count of aggravated possession of a class H firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA), two counts of possession of an unregistered firearm contrary to s 23(1) of the Firearms Act 1977 (SA), two counts of being unlawfully on premises contrary to s 17(1) of the Summary Offences Act 1953 (SA) and four counts of breach of bail contrary to s 17 of the Bail Act 1985 (SA).
The Judge imposed a total head sentence of six years, four months and three weeks. The Judge fixed a non-parole period of three years and six months. The commencement of the term of imprisonment was backdated to 2 June 2014 when the appellant was taken into custody.
The fixing of the total head sentence of six years, four months and three weeks was infected by arithmetic error. The error arose in the Judge’s calculation of the total sentence for the two aggravated possession of prescribed firearms offences. The sentence imposed should have been one year, nine months and two weeks, not two years, nine months and two weeks. As a result the head sentence of six years, four months and three weeks should have been five years, four months and three weeks.
It is accepted by the Director that this Court should resentence the appellant. The appellant submits that in resentencing the Court should sentence on the basis that any term of imprisonment imposed for the firearms offences should be at least partially if not wholly concurrent with the sentence imposed for the trafficking offences as the Judge found the firearms offences were committed in the course of the trafficking offences and therefore arose out of a single course of criminal conduct.
The Director also concedes that an error had been made in the Judge accepting a plea of guilty in respect of one count of possession of an unregistered firearm namely a “Seko” rifle contrary to s 23 (1) of the Firearms Act 1977 (SA). It appears this plea of guilty was wrongly…
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- AGLC
- R v Rerich [2016] SASCFC 78
- Case
- [2016] SASCFC 78
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the original sentencing judge had erred in the imposition of cumulative and concurrent sentences, and whether the total sentence was manifestly excessive or inadequate given the nature and circumstances of the offences. The court was required to determine the correct application of sentencing principles concerning offences arising out of the same transaction or course of conduct, and to assess the overall proportionality of the sentence.
The Court of Appeal allowed the appeal, setting aside the original sentence. The court permitted the appellant to withdraw his plea of guilty to one count of possession of an unregistered firearm. The court then resentenced the appellant, imposing a cumulative sentence for the trafficking offence and one of the aggravated possession of a firearm offences, with other sentences to be served concurrently. A non-parole period was fixed, and the commencement date of the sentence was adjusted. The court also ordered the forfeiture of seized drugs, firearms, and cash, and disqualified the appellant from holding a firearms licence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: PEEK J
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