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 accepted as the firearm in question was not unregistered. The Judge sentenced the appellant to a term of imprisonment of six months for this offence which was made concurrent with the other sentences of imprisonment.

Held (per Stanley J, Kelly and Peek JJ agreeing) allowing the appeal:

1. The appellant is permitted 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 namely a “Seko” rifle contrary to s 23(1) of the Firearms Act 1977 (SA) (at [37]).

2. For the one count of trafficking in a controlled substance contrary to s 32(3) of the Controlled Substances Act 1984 (SA) the appellant is sentenced to a term of imprisonment of three years, seven months and one week (at [37]).

3. For the one count of aggravated possession of a prescribed firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA) the appellant is sentenced to a term of imprisonment of one year and nine months to be served cumulatively with the sentence of imprisonment imposed for the trafficking offence (at [37]).

4. For the one count of aggravated possession of a class H firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA) the appellant is sentenced to 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 (at [37]).

5. For the one count of possession of an unregistered firearm contrary to s 23(1) of the Firearms Act 1977 (SA) the appellant is sentenced to a term of imprisonment of six months to be served concurrently with the sentences of imprisonment imposed for the aggravated possession of firearms offences (at [37]).

6. For the two counts of unlawfully on premises contrary to s 17(1) of the Summary Offences Act 1953 (SA) the appellant is sentenced to a term of imprisonment of one week for each count to be served concurrently with each other and the sentences imposed above (at [37]).

7. For the four counts of breach of bail contrary to s 17 of the Bail Act 1985 (SA) convictions are recorded for each count without imposing any further penalty (at [37]).

8.  The appellant is sentenced to a non-parole period of three years (at [37]).

9.  The term of imprisonment and the non-parole period are to commence from 2 June 2014 (at [37]).

10.  The seized drugs, firearms and cash are forfeit (at [37]).

11.  The appellant is disqualified from holding or obtaining a firearms licence until further order (at [37]).

Controlled Substances Act 1984 (SA) s 32(3); Firearms Act 1977 (SA) s 11(1), s 23(1); Summary Offences Act 1953 (SA) s 17(1); Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 20AA, s 18A, s 38(2), referred to.
Attorney-General v Tichy (1982) 30 SASR 84; R v Copeland (No. 2) (2010) 108 SASR 398; R v Violi [2015] SASCFC 2; R v Kong (2013) 115 SASR 425; R v Cleaver [2016] SASCFC 43, considered.

R v RERICH
[2016] SASCFC 78

Court of Criminal Appeal:  Kelly, Peek and Stanley JJ

1. KELLY J:             I agree with the orders proposed by Stanley J and with his reasons.

2. PEEK J.                 I would allow the appeal.  I agree with the orders proposed by Stanley J and with his reasons.

   STANLEY J:

   Introduction

3. This is an appeal against sentence. 

4. The appeal is out of time.  There is no opposition by the Director to an extension of time.  I would grant an extension of time within which to institute the appeal. 

5. 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) (CSA), one count of aggravated possession of a prescribed firearm without a licence contrary to s 11 of the Firearms Act 1977 (SA) (Firearms Act), one count of aggravated possession of a class H firearm without a licence contrary to s 11(1) of the Firearms Act, two counts of possession of an unregistered firearm contrary to s 23(1) of the Firearms Act, two counts of being unlawfully on premises contrary to s 17(1) of the Summary Offences Act 1953 (SA) (SOA) and four counts of breach of bail contrary to s 17 of the Bail Act 1985 (SA) (Bail Act).

6. After allowing for the appropriate discount pursuant to s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) a Judge of the District Court sentenced the appellant to imprisonment for three years, seven months and one week for the trafficking offence. For the offence of aggravated possession of a prescribed firearm without a licence the Judge would have sentenced the appellant to a term of imprisonment of two years and six months but for his plea of guilty. In relation to the offence of aggravated possession of a class H firearm without a licence, but for his guilty plea, the Judge would have sentenced the appellant to imprisonment for two years, to be served concurrently with the sentence he would have imposed for the other firearms offence. The Judge discounted the sentences by “about 30 per cent” on account of the guilty pleas. The Judge considered this resulted in a total head sentence for those offences of two years, nine months and two weeks. He directed that this sentence was to be served cumulatively on the sentence imposed for the trafficking offence.

7. In relation to each of the two counts of possessing an unregistered firearm the Judge sentenced the appellant to six months imprisonment which sentences were to be served concurrently with each other and the sentences previously imposed for the trafficking offence and the aggravated possession of firearms offences.  In relation to the two counts of being unlawfully on premises, the Judge sentenced the appellant to imprisonment for one week after allowing a discount of 30 per cent for the guilty pleas.  He ordered that these sentences were to be served concurrently with each other and the sentences previously imposed.  Finally, for the four counts of breaching bail the Judge imposed convictions with respect to each offence without further penalty. 

8. As a result, 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. 

9. The fixing of the total head sentence of six years, four months and three weeks was infected by arithmetic error.  This was accepted by Ms Dunlop, counsel for the Director.  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. 

10. In the circumstances 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 submits that in resentencing the Court should impose the same sentence which is the subject of the appeal.

11. On the hearing of the appeal, the Director also conceded that an error had been made in the Judge accepting a plea of guilty to count 1 on a complaint laid before the Magistrates Court which was brought up to the District Court for sentencing.  This was a count of possession of an unregistered firearm namely a “Seko”[1] rifle contrary to s 23(1) of the Firearms Act. It appears this plea of guilty was wrongly accepted as the firearm in question was not unregistered. The Judge sentenced the appellant to a term of imprisonment of six months for this offence which was made concurrent with the other sentences of imprisonment. As a result there has been a miscarriage of justice. In the circumstances where the appellant must be resentenced, I would permit the appellant to withdraw the plea of guilty for this offence. The Director has indicated his intention to withdraw the complaint. I indicate I would give permission for him to do so.

    [1]    Actually a Sako .222 calibre bolt action rifle.

12. That leaves this Court to resentence for the outstanding offences.  The penalties for those offences are as follows:

    1.trafficking in a controlled substance contrary to s 32(3) of the CSA: a fine of $50,000 or imprisonment for ten years or both;

    2.aggravated possession of a prescribed firearm without a licence contrary to s 11(1) of the Firearms Act: a fine of $75,000 or imprisonment for 15 years;

    3.aggravated possession of a class H firearm without a licence contrary to s 11(1) of the Firearms Act: a fine of $50,000 or imprisonment for 10 years;

    4.possession of an unregistered firearm contrary to s 23(1) of the Firearms Act: a fine of $10,000 or imprisonment for two years;

    5.unlawfully on premises contrary to s 17(1) of the SOA: a fine of $2,500 or imprisonment for six months; and

    6.breach of bail contrary to s 17 of the Bail Act: a fine of $10,000 or imprisonment for two years.

    Circumstances of the offending

13. In the early hours of Monday 2 June 2014 police noticed the appellant walking with two women in the direction of a house at McCracken.  The appellant was asked for identification.  When he could not locate his identification he volunteered to police that he was in possession of an ice pipe.  He then surrendered himself for the purpose of permitting police to conduct a search of his person.  As the police officers put on gloves to commence the search the appellant pushed past them and ran away.  The police pursued the appellant and located two firearms on the ground near where the appellant was seen to be fleeing.  This constituted the firearms offences.  The police searched the appellant’s bumbag that he had been wearing and located 1.96 grams of methamphetamine.  This constituted the trafficking offence.  When the appellant was eventually located, he was found hiding in a property on Hindmarsh Road.  This constituted the two counts of being unlawfully on premises.  The breaches of bail arose from offending which was before the Christies Beach Magistrates Court at the time of the offending of 2 June 2014.

14. In relation to the firearms the subject of the aggravated possession charges the learned sentencing Judge found that these firearms were loaded and were in the appellant’s possession for the purpose of protecting himself or to threaten people from whom he bought or to whom he sold methamphetamine.

15. Each of the firearms had a live round in the breech.

    Appellant’s personal circumstances

16. The appellant is 25 years of age.  He has a number of convictions, including two counts of assault, fighting, resisting police, causing harm by dangerous driving, leaving an accident scene after causing harm and failing to comply with a bail agreement.  The appellant’s parents separated when he was five years of age.  Following the separation he and his sister remained living with their mother at Wangaratta.  The appellant’s mother was an alcoholic.  She was not a good mother.  At the age of eight years the appellant went to live with his father at Aldinga.  This involved a separation from his sister although they subsequently remained close.  The appellant had a good relationship with his father and his father’s new partner.  Unfortunately when the appellant was still quite young she died.  The appellant suffered an intense grief reaction and lashed out at others. 

17. The appellant left school after completing year 10.  He worked hard and found employment and sought to improve himself.  He obtained a forklift licence and many other qualifications including a certificate III in truck maintenance.  However, he became addicted to methamphetamine and this has interfered with his recent employment history. 

18. The appellant has suffered from substance abuse since he was 16 years of age.  He has abused alcohol, cannabis and methamphetamine.  Since the appellant went into custody in June 2014 he has stopped using methamphetamine.  He has also ceased the relationship with his former girlfriend who introduced him to methamphetamine.  He has a new girlfriend.  The appellant has remained close to his father. 

19. In his report dated 3 April 2015 the psychologist, Allen Fugler, expressed the opinion that the appellant has positive and supportive relationships in the community.  He also acknowledged his positive employment history.  However, he expressed concern that the appellant has an unresolved grief reaction to the death of his step-mother and suffers from anger management problems.  He recommends the appellant seek counselling and treatment for these problems.  The sentencing Judge received a character reference from the appellant’s former employer in which he described the appellant as a reliable team-oriented employee.  The Judge also received a character reference from a former work mate who described the appellant as a hard worker and a close friend. 

20. No doubt these were factors which influenced the sentencing Judge to impose a relatively low non-parole period representing 55 per cent of the head sentence.

    Resentencing the appellant

21. I reject the submission of Ms Dunlop that notwithstanding the arithmetic error made by the Judge, this Court should fix the same sentence.  In broad terms, I consider the individual penalties imposed by the Judge are appropriate sentences having regard to the nature of the offending conduct, the appellant’s personal circumstances and the need for specific and general deterrence. 

22. The principal issue in resentencing is whether a sentence should be imposed which allows for some concurrency in the sentences of imprisonment which I consider must be imposed for the trafficking and aggravated possession of firearms offences. 

23. The charges of possessing a prescribed firearm and possessing a class H firearm are serious firearms offences within the meaning of s 20AA of the Sentencing Act. As a result a sentence of imprisonment must be imposed. Section 18A of the Sentencing Act does not apply as any sentence for a serious firearms offence must be imposed separately from any sentence imposed for other offending.

24. The appellant submits that notwithstanding that on resentencing the Court is prohibited from using s 18A the Court should still apply common law principles of concurrency in order to arrive at an appropriate sentence having regard to the appellant’s criminal conduct and personal circumstances.

25. In Attorney-General v Tichy[2] Wells J considered the approach a Judge is to take in exercising the sentencing discretion in relation to whether to impose concurrent or cumulative sentences.  He said:[3]

    It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.

    [2] (1982) 30 SASR 84.

    [3] (1982) 30 SASR 84 at 92 – 93.

1. The application of these principles was discussed in R v Copeland (No 2)[4] where Kourakis J (as he then was) said:[5]

   [4] [2010] SASCFC 61, (2010) 108 SASR 398.

   [5] [2010] SASCFC 61 at [102] - [106], (2010) 108 SASR 398 at 425 – 426.

   It is difficult, but I think useful, to attempt to identify why it is that very similar and proximate offences committed in furtherance of a single criminal plan warrant, at least to some extent, concurrent sentences.

   First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms.  In Jarvis v The Queen[6] Ipp J explained this consideration in the following way:

   What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity the particular crimes for which they were imposed?  In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length.  Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply, because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.[7]

   (Emphasis added)

   Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.

   Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.

   There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any, to which the sentences imposed for them should be concurrent.  I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single, or a number of, courses of conduct.  Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.

   [6] (1993) 20 WAR 201.

   [7]    Jarvis v The Queen (1993) 20 WAR 201 at 207 B-D per Ipp J, approved in Herbert v The Queen (2003) 27 WAR 330.

2. However, in this case, while the sentencing Judge considered that the aggravated firearms offences and the trafficking offence arose out of the same set of circumstances and were part of a single course of criminal conduct, that does not lead to the conclusion that in imposing custodial sentences for the firearms offences the Court must make those sentences wholly or partially concurrent with the sentence of imprisonment I consider must be imposed for the trafficking offence.  In R v Violi[8] Kourakis CJ, with whom Bampton and Parker JJ agreed, said:[9]

   … The connection between the trafficking of illicit drugs and the use of firearms, in particular pistols and sawn off rifles, is notorious.  The courts of this State often hear evidence of the association between firearms and drug traffickers.  Not only is the fact of the association well known, but so too are the underlying reasons for it.  First, there is strong competition between criminal organisations in the distribution of illegal drugs.  The criminal organisations often resort to the use of firearms in the ensuing turf wars.  Secondly, the risk that drugs, or money derived from drug deals will be stolen is high.  Guns are often carried to deter would-be thieves.  Thirdly, drug debts cannot be enforced in the courts of this State.  When consumers who have been extended credit for the purchase of drugs do not pay, drug traffickers often resort to guns to enforce their debts. 

   In this particular case, it cannot be known precisely how the firearms found in the appellant’s sheds were going to be used.  They may have been stored in case they were needed to protect the appellant’s own drug enterprise from encroachments by others.  They may have been marketed to some of the appellant’s drug customers who wished to secure a firearm for any one of the purposes to which I have just referred.  It will seldom be possible for a court to be certain about the precise use of firearms in these circumstances precisely because criminal organisations do not keep detailed business records, and because criminals seldom testify against each other.  Nonetheless, possession of both commercial quantities of drugs and firearms is serious, and an aggravating factor in sentencing for both the firearms offences and drug offences whether or not the precise nature of the connection between the two can be shown

   Even though there is a connection between firearms and drug traffickers, there is very little reason for concurrency between the sentence imposed for the two kinds of offences.  The choice to both engage in the drug trade and to do so with firearms is a deliberate one.  Drug trading and manufacture can be engaged in without firearms, and firearms may be possessed by someone who is not a drug trafficker.  The illegal possession of firearms by drug traffickers must be strongly deterred.  For that reason courts should be slow to order any degree of concurrency…

   [8] [2015] SASCFC 2.

   [9] [2015] SASCFC 2 at [32] - [34].

3. In fixing sentence for the trafficking offence it is necessary not only to have regard to the appellant’s criminal conduct and personal circumstances but also to the need for both specific and general deterrence. 

4. There continues to be concern about the prevalence of drug abuse in society.  The increasing prevalence of methamphetamine with its notorious antisocial and damaging effects occasions great social harm.  The treatment and management of the consequences of drug addiction, but particularly addiction to “speed” and “ice” imposes a substantial financial burden on the health budgets of State and Commonwealth governments.  The crimes committed by addicts to support their habits cause much loss and suffering to the community.  Those who organise and participate in the distribution of such drugs cause serious risk of collateral injury to innocent members of the public.  All this is reflected in the substantial penalties Parliament has fixed for trafficking offences which are intended to punish and deter those who are attracted by the large profits that dealing can generate.[10]  For these reasons a starting range of sentence for street dealers should be between four and seven years imprisonment.[11]  In my view there is nothing about the circumstances of the offending or the appellant’s personal circumstances which would warrant fixing a sentence of imprisonment outside that range.  The fact that he may have been trafficking to service his addiction does not distinguish his circumstances from that of most street dealers.  Like the sentencing Judge, in fixing a sentence of imprisonment I would use as a starting point of four years given the appellant’s personal circumstances.  Any lower starting point would fail to satisfy the requirement for general deterrence.  I would allow a discount of 10 per cent for the plea of guilty.  I would impose a sentence of three years, seven months and one week. 

   [10]   R v Kong [2013] SASCFC 15 at [90], (2013) 115 SASR 425 at 443.

   [11]   R v Cleaver [2016] SASCFC 43 at [20].

5. In relation to the two counts of aggravated possession of a firearm without a licence, I consider these offences to be very serious.  As was observed in Violi illegal possession of firearms calls for a sentence with a strong deterrent component.  Like the sentencing Judge, but for the pleas of guilty, I would have imposed a sentence of imprisonment of two years and six months for the offence of aggravated possession of a prescribed firearm and a sentence of two years for the offence of aggravated possession of a class H firearm.  By reason of the pleas of guilty I would allow a discount of 30 per cent resulting in sentences of imprisonment of one year and nine months and one year and five months respectively.  I would order that those sentences be served concurrently with each other but cumulatively with the sentence for the trafficking offence.  In my view, for the reasons set out in Violi, I do not consider that there should be any concurrency in the sentences imposed for these firearms offences and the trafficking offence. 

6. In relation to the one count of possessing an unregistered firearm, I would also impose a sentence of six months imprisonment which is to be served concurrently with the other sentences of imprisonment. 

7. Like the sentencing Judge I would also impose a sentence of one week each for the two counts of being unlawfully on premises after allowing a discount of 30 per cent for the guilty pleas.  Those sentences are to be served concurrently with each other and the sentences previously imposed. 

8. Finally, again, like the sentencing Judge, I would record a conviction in respect of each of the four counts of breaching bail without imposing any further penalty. 

9. This will result in a total head sentence of five years, four months and one week.  I would set a non-parole period of three years representing about 55 per cent of the head sentence.  The head sentence and non-parole period are to be backdated to commence from 2 June 2014 when the appellant was taken into custody. 

10. It is unnecessary to consider the question of suspension of any of the terms of imprisonment by reason of the provisions of s 38(2) of the Sentencing Act.

11. 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

12. 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; and

    6.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.