R v RERICH - [2016] SASCFC 78

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v RERICH

Details

AGLC: R v Rerich [2016] SASCFC 78
Case: [2016] SASCFC 78
Decision Date: 1 August 2016

CaseChat Overview and Summary

In R v RERICH, the Court of Appeal considered an appeal against sentences imposed on the appellant, who had pleaded guilty to multiple offences including trafficking in a controlled substance, aggravated possession of firearms without a licence, possession of an unregistered firearm, being unlawfully on premises, and breach of bail. The appeal concerned the appropriate sentencing structure, specifically the interplay between concurrent and cumulative sentences, and the overall length of the custodial term.

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

PEEK J

I would also order forfeiture of the seized drugs, firearms and cash and order that the appellant is disqualified from holding or obtaining a firearms licence until further order.Conclusion I extend the time within which to institute the appeal. I permit the appellant to withdraw his plea of guilty to count 1 on the complaint laid in the Magistrates Court on 3 June 2014 charging him with possession of an unregistered firearm contrary to s 23(1) of the Firearms Act. I allow the appeal. I set aside the sentence imposed and impose the following sentences:1.for the one count of trafficking in a controlled substance contrary to s 32(3) of the CSA: a term of imprisonment of three years, seven months and one week;2.for the one count of aggravated possession of a prescribed firearm without a licence contrary to s 11(1) of the Firearms Act: a term of imprisonment of one year and nine months to be served cumulatively with the sentence of imprisonment imposed for the trafficking offence;3.for the one count of aggravated possession of a class H firearm without a licence contrary to s 11(1) of the Firearms Act: a term of imprisonment of one year and five months to be served concurrently with the sentence of imprisonment imposed for the offence of aggravated possession of a prescribed firearm;4.for the one count of possession of an unregistered firearm contrary to s 23 of the Firearms Act: a term of imprisonment of six months to be served concurrently with the sentences of imprisonment imposed for the aggravated possession of firearms offences;5.for the two counts of being unlawfully on premises contrary to s 17(1) of the SOA: a term of imprisonment of one week for each count to be served concurrently with each other and the sentences imposed above; and6.for the four counts of breach of bail contrary to s 17 of the Bail Act: I would record convictions for each count without imposing any further penalty.7.I would fix a non-parole period of three years. 8.The term of imprisonment and the non-parole period are to commence from 2 June 2014. 9.The seized drugs, firearms and cash are forfeit. 10.The appellant is disqualified from holding or obtaining a firearms licence until further order.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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