R v Schloithe

Case [2016] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCHLOITHE

[2016] SASCFC 13

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Blue)

22 March 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Application for permission to appeal against sentence.  The applicant was sentenced by a Judge of the District Court to imprisonment for seven years, with a non-parole period of four years and six months, for 48 counts of theft and firearms offences.  In August 2014, the applicant, in concert with a youth, stole 33 firearms from the youth’s father.  The applicant supplied 29 of the firearms to three persons not authorised to acquire them.  The applicant removed the identifying characters of the four remaining firearms.  Two weeks after the theft, the police searched the applicant’s premises and found those four firearms together with two sawn-off rifles which were prescribed weapons, and $1,500.00 reasonably suspected of having been obtained by unlawful means.  The applicant was 31 years old at the time he committed the offences and had no prior convictions.

On the hearing of the appeal, the Director conceded that the sentencing judge made an error in relation to the maximum discount available under section 10C of the Criminal Law (Sentencing) Act 1988 (SA) and that it is appropriate that the Full Court exercise the sentencing discretion afresh.

Whether the appeal should be allowed on the basis of the conceded error.  Whether the Judge made further process errors.  Whether the head sentence and non-parole period are manifestly excessive.  Whether the Judge erred in not finding that there was good ground to suspend the sentence.

Held per Gray J (Kelly J agreeing) (granting permission to appeal and dismissing the appeal):

1.      As error is conceded and it is necessary to resentence, there is no utility in addressing the other grounds of appeal (at [28]). 

2.      The sentence imposed by the Judge was merciful.  A heavier sentence was warranted but it would be inappropriate in the circumstances to increase the applicant’s sentence (at [36]-[37]).   

Held per Blue J (dissenting):

1. The Judge was not obliged to determine separate notional sentences for each count or the extent of concurrency or accumulation between them before proceeding to impose a single penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (at [103]).

2.      The circumstances did not call for full concurrency between all counts (at [110]).

3.      The Judge erred in proceeding on the basis (accepted by the parties before the Judge…

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R v Schloithe [2016] SASCFC 13
Case
[2016] SASCFC 13
Decision Date

CaseChat Overview and Summary

The applicant, Clifford James Schloithe, sought permission to appeal against a sentence imposed by a Judge of the District Court. Schloithe had been sentenced to seven years imprisonment with a non-parole period of four years and six months for 48 counts of theft and firearms offences. The offences involved the theft of 33 firearms from the youth's father, the removal of identifying characters from four of those firearms, and the supply of 29 firearms to unauthorised persons. Police also found four defaced firearms and $1,500 suspected of being unlawfully obtained at Schloithe's premises.

The appeal raised several legal issues for determination by the Full Court. These included whether the sentencing judge erred by failing to disclose the extent of partial concurrency between sentences for individual offences and by not making each such sentence wholly concurrent. Further, the court considered whether the judge erred in allowing a 30% discount for guilty pleas when a maximum discount of 40% was available, and whether the head sentence and non-parole period were manifestly excessive. Finally, the court examined whether the judge erred in finding no good grounds to suspend the sentence.

The Full Court, comprising Gray, Kelly, and Blue JJ, considered the gravity of the offending, particularly the large number of firearms stolen and supplied, and the defacing of their identifying marks. While acknowledging Schloithe's efforts towards rehabilitation and a psychologist's opinion on a low risk of reoffending, the court emphasised the paramount need for general deterrence in relation to firearm offences. The court found that the non-parole period, representing just over 60% of the head sentence, was merciful given the seriousness of the crimes.

Ultimately, the Full Court granted permission to appeal but dismissed the appeal. Although the court indicated it might have imposed a heavier sentence, it deemed it inappropriate to increase Schloithe's sentence in the circumstances. Therefore, the original sentence and non-parole period were upheld.

Orders

Orders of the court

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Background

Background to the litigation

Count 52 charged the defendant with failing to store ammunition in a locked container separately from firearms.[9] Count 53 charged the defendant with having in his possession property, namely $1,500.00 cash, which was reasonably suspected of having been stolen or obtained by unlawful means.[10] [9] Firearms Regulations 2008 (SA) regulation 41 and 61.[10] Summary Offences Act 1953 (SA) section 41(1).Background At the time of the offending, the defendant was aged 31 years and was not in consistent employment. He regularly abused methylamphetamine and cannabis. He had borrowed money from friends and was unable to repay these debts. In mid 2014, the defendant met C, a seventeen year old youth. The defendant understood that C was anxious to leave home as his father was physically abusing him. C explained that his father had a collection of firearms stored at their house and the defendant and C developed a plan to steal those firearms. C and the defendant intended to sell the firearms and share the proceeds equally. At sometime between 4 and 18 August 2014, the defendant attended C’s home at Valley View. C had removed a number of firearms from his father’s two firearms safes and placed them in bags ready to be taken by the defendant. The defendant entered the premises and took possession of the bags, which contained 33 firearms. The defendant took the firearms to his home. He did this knowing that the firearms belonged to C’s father and knowing that C had no authority or permission to take the firearms. This theft was the subject of count one. At his home, the defendant used a Dremmel tool to remove the identifying characters from four of the Class H firearms, being counts 37 to 40. On or around 14 August 2014, the defendant supplied 20 of the firearms to a man known to police in Minlaton, South Australia. The firearms were supplied on the basis that the man in Minlaton would identify prospective purchasers to whom the firearms could be onsold. The defendant expected to receive moneys in exchange for the firearms but there was no fixed agreement. On 19 August 2014, the police recovered nine of the 20 firearms from an address in Minlaton, being the firearms detailed in counts eight to 16. Between 4 and 18 August 2014, the defendant agreed to sell five firearms to a second man, known to police as a member of an outlaw motorcycle gang, for an amount of $9,500.00. The five firearms were supplied but the defendant ultimately only received $5,000.00 for them. The money was transferred into the defendant’s bank account on 13 August 2014. The defendant gave $500.00 of the money to C together with some cannabis. The defendant used most of the balance of the money to purchase a motor vehicle. The defendant also supplied two firearms to a third man in the period between 4 and 18 August 2014, being counts 17 and 18. This man did not pay the defendant for these firearms and they were recovered by the police on 20 August 2014. The remaining firearms, being the subject of counts 19 to 36, were not recovered as at the date of the defendant’s arrest. However, subsequently one was found in New South Wales and another in South Australia.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even after consideration of the defendant’s efforts toward rehabilitation, I am of the view that a non-parole period at just over 60 per cent of the head sentence is merciful considering the gravity of the offending. I note the opinion of the defendant’s psychologist that the risk of the defendant reoffending in a similar manner in the future is low. However, the need for general deterrence in respect of firearm offending is too great to warrant a lower non-parole period. Conclusion Although I would have imposed a heavier sentence on the defendant, it would be inappropriate in the circumstances to increase the defendant’s sentence. Accordingly, I would grant the defendant permission to appeal and dismiss the appeal. KELLY J: I agree that the appeal should be dismissed for the reasons given by Gray J.BLUE J: This is an application for permission to appeal against sentence. The appellant, Clifford James Schloithe, was sentenced on 31 July 2015 by a Judge of the District Court to a single term[20] of imprisonment for seven years, with a non-parole period of four years and six months, commencing on 31 July 2015 for one count of theft of 33 firearms,[21] 29 counts of supplying a firearm to a person not authorised to acquire it,[22] six counts each of possession of a firearm without a licence[23] and possession of an unregistered firearm,[24] four counts of defacing the identifying characters of a firearm,[25] one count of being in possession of a firearm the identifying characters of which had been defaced,[26] and one count of possession of $1,500 cash reasonably suspected of having been stolen or obtained by unlawful means.[27][20] Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).[21] Criminal Law Consolidation Act 1935 (SA) section 134(1).[22] Firearms Act 1977 (SA) section 14(1)(b)(i).[23] Firearms Act 1977 (SA) section 11(1).[24] Firearms Act 1977 (SA) section 23(1).[25] Firearms Act 1977 (SA) section 24A(7)(a).[26] Firearms Act 1977 (SA) section 24A(7)(b).[27] Summary Offences Act 1935 (SA) section 41(1). The appellant was also convicted without further penalty of four counts of failing to keep a firearm properly secured (Firearms Regulations 2008 (SA) regulations 38(2) and 61) and one count of failing to store ammunition in a locked container separately from firearms (Firearms Regulations 2008 (SA) regulations 41 and 61). There is no appeal in respect of those sentences. The appeal raises the following issues: 1.Did the Judge err by failing to disclose the extent of partial concurrency allowed between sentences for individual offences and failing to make each such sentence wholly concurrent?2.Did the Judge err by allowing a discount of 30% for his guilty pleas when he was entitled to a maximum discount of 40%?3.Are the head sentence and non-parole period manifestly excessive?4.Did the Judge err in finding that ‘no good grounds’ existed to suspend the sentence?The offending In June/July 2014, the appellant was introduced by a work colleague to a youth, Y, aged 17. The introduction had no connection to firearms. Soon afterwards, Y told the appellant that his father, O, kept a firearm collection at their family home. Y said that his father physically abused him and he was seeking to flee the family home.

Ratio Decidendi

Legal Principle Established

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