R v Schloithe

[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 but challenged on appeal) that the maximum available discount for the guilty pleas for all counts was 30% (at [122]).

4. On resentencing, the applicant should be sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 to imprisonment for six years, with a non-parole period of three years and four months, both to be treated as having commenced on 15 April 2015 (at [148]).

5.      There is not good reason to suspend the sentence of imprisonment (at [146]).

Criminal Law Consolidation Act 1935 (SA) s 134(1); Firearms Act 1977 (SA) s 11(1), s 14(1)(b)(i), s 14(7)(a), s 24A(7) and s 23(1); Firearms Regulations 2008 (SA) reg 38(2), reg 41 and reg 61; Summary Offences Act 1953 (SA) s 41(1); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 10C(2) and s 18A, referred to.
R v Cullen [2015] SASCFC 44; R v Daniele [2014] SASCFC 22; R v Belczacki (2012) 112 SASR 95; R v Ravet [2011] SASCFC 67; R v Copeland (No 2) (2010) 108 SASR 398; R v Wakefield (2015) 121 SASR 569; R v McPhee [2014] SASCFC 107; R v Dwyer (2015) 121 SASR 587; R v Nozuhur [2013] SASCFC 81; R v Violi [2015] SASCFC 2, discussed.
Pollitt v Police [2007] SASC 382; R v Daniele [2014] SASCFC 22; R v Gasmier [2011] SASCFC 43; R v Capaldo [2015] SASCFC 56; R v Power [2003] SASC 288; R v Bennett [2005] SASC 55; R v Nixon (1993) 66 A Crim R 83; R v Skrjanc (1994) 71 A Crim R 347; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24; R v Knight (1981) 26 SASR 573; Mill v R (1988) 166 CLR 59; R v Marrone [2011] SASCFC 78; R v Franceschini (2015) 123 SASR 396; R v Malesevic [1999] SASC 321; R v McHugh (1985) 1 NSWLR 588; R v Newman (2004) 145 A Crim R 361; R v Tilley [2010] SASCFC 73; R v Muldoon (2015) 123 SASR 1; R v Niesen [2015] SASCFC 165; R v Deng [2015] SASCFC 176; R v Nguyen [2015] SASCFC 40; R v Strauss [2015] SASCFC 192, considered.

R v SCHLOITHE
[2016] SASCFC 13

Court of Criminal Appeal:       Gray, Kelly and Blue JJ

GRAY J:

1. This is an application for permission to appeal against sentence.

2. The defendant and appellant, Clifford James Schloithe, pleaded guilty to multiple counts of firearm offending.  The Judge sentenced the defendant to the one term of imprisonment of seven years, after allowing reductions for his pleas of guilty, time spent in custody and on home detention, and other matters.  A non-parole period of four years and six months was fixed.

3. On the appeal, the defendant complained that the sentencing Judge had made several errors in the sentencing process and that further, the sentence imposed was, in the circumstances, manifestly excessive.  It was further contended that the Judge ought to have found good reason to suspend the sentence of imprisonment.

4. On the hearing of the appeal, counsel for the Director of Public Prosecutions conceded that errors had occurred in the sentencing process in respect of the calculation of the discount to be applied on account of the defendant’s pleas of guilty.  Counsel further conceded that those errors were of such a nature that it was necessary for this Court to reconsider itself the appropriate sentence to be imposed.  Counsel for the Director submitted that, notwithstanding the errors, the sentence imposed was the appropriate sentence and that this Court should reach that conclusion and, as a consequence, dismiss the appeal. 

5. The defendant pleaded guilty to 53 offences occurring between 3 and 19 August 2014.  The first offence, count one, was that he dishonestly dealt with property, namely 33 firearms, without the consent of the owner of that property intending to deprive that owner permanently of the property.[1] The next four offences, counts two to five, involved the defendant being in possession of four class H firearms, respectively a Phoenix Arms HP22 self-loading pistol, a Ruger model GP100 single and double action revolver, a Walther P1 self-loading pistol and a Tokarev TT-33 self-loading pistol while, in respect of each firearm, not holding a firearms licence authorising possession of that firearm.[2]   Counts six and seven, involved the defendant having in his possession a prescribed firearm, namely a Lithgow 12 sawn-off bolt action repeating rifle and a Gecado sawn-off break action single shot air rifle respectively and, in each case, not being a holder of a firearms licence authorising possession of that firearm.[3]

   [1]    Criminal Law Consolidation Act 1935 (SA) section 134(1).

   [2]    Firearms Act 1977 (SA) section 11(1).

   [3]    Firearms Act 1977 (SA) section 11(1).

6. The next 29 offences, being counts eight to 36, involved the supply of firearms to another person who was not authorised to acquire the firearm by a permit.[4]  Those firearms were, respectively:

   [4]    Firearms Act 1977 (SA) section 14(1)(b)(i).

   -a Brno ZKK600 bolt action repeating rifle;

   -an unknown brand and model Spanish manufactured break action single shot shotgun;

   -a Stirling 14 bolt action repeating rifle;

   -a Remington 715 bolt action repeating rifle;

   -a Ruger M77 bolt action repeating rifle;

   -a Marlin 25M bolt action repeating rifle;

   -a Fabrica De Armas La Coruna bolt action repeating rifle;

   -a Lee Enfield 5 Mark 1 bolt action repeating rifle;

   -a Mannlicher bolt action repeating rifle;

   -a Chatellerault M16 bolt action rifle;

   -a Marlin lever action rifle;

   -a  Birmingham small arms carbine single shot rifle;

   -a Boito over and under 10 gauge shotgun;

   -an Enfield bolt action rifle;

   -a Stevens single shot rifle;

   -a Hatsan 70 air rifle;

   -a Marlin Firearms Co 1095 lever action rifle;

   -a Mauser 1900 bolt action rifle;

   -a Mauser 98K bolt action rifle;

   -a Ruger 96 lever action rifle;

   -a Sportco single shot rifle;

   -a Winchester lever action rifle;

   -a Browning Arms Co 1910-22 pistol;

   -a H&A Young American pistol;

   -a Beretta 76 pistol;

   -two Ruger Security Six pistols;

   -a Browning Arms Co FN 32 pistol; and

   -a Webley mark VI.

7. Counts 37 to 40 involved the defendant defacing, altering or removing the identifying characters of class H firearms, respectively a Phoenix Arms HP22 self-loading pistol, a Ruger GP100 revolver, a Walther P1 self-loading pistol and a Tokarev TT-33 self-loading pistol, without the authority of the Registrar of Firearms.[5]  Count 41 charged the defendant with possession of a prescribed firearm, namely a Mauser Lithgow 12 sawn-off bolt action repeating rifle, of which the identifying characters had been defaced without the authority of the Registrar of Firearms.[6]

   [5]    Firearms Act 1977 (SA) section 24A(7)(a).

   [6]    Firearms Act 1977 (SA) section 24A(7)(b).

8. Counts 42 to 47 involved the defendant being in possession of unregistered Class H firearms, namely a Phoenix Arms HP22 pistol, a Ruger GP100 revolver, a Walther P1 self-loading pistol and a Tokarev TT-33 self-loading pistol, and unregistered prescribed firearms, namely a Mauser Lithgow 12 sawn-off bolt action repeating rifle and a Gecado sawn-off break action single shot air rifle, while not holding a firearms licence authorising possession of those firearms.[7]

   [7]    Firearms Act 1977 (SA) section 23(1).

9. Counts 48 to 51 involved failing to secure Class H firearms, respectively a Phoenix Arms HP22 pistol, a Ruger GP100 revolver, a Walther P1 self-loading pistol and a Tokarev TT-33 self-loading pistol, in accordance with regulation 38(2) of the Firearms Regulations 2008 (SA).[8]

   [8]    Firearms Regulations 2008 (SA) regulation 38(2) and 61.

10. 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

11. 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. 

12. 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.

13. 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.

14. 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. 

15. 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.

16. 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.

17. On 19 August 2014, the police searched the defendant’s premises in Blakeview and seized the four stolen Class H firearms that had not been sold.  Those firearms were the subject of counts two through five.  The firearms were unregistered and unsecured, giving rise to counts 42 to 45 and 48 to 51, respectively.  Police also found two further prescribed firearms for which the defendant did not hold a licence, being the firearms the subject of counts six and seven.  Those firearms were unregistered, giving rise to counts 46 and 47, and one had its identifying characters defaced, giving rise to count 41.

18. Magazines, ammunition and $1,500.00 in cash were also seized. The ammunition was not stored in accordance with the Firearms Regulations, giving rise to count 52, and the cash was reasonably suspected of having been stolen or obtained by unlawful means, giving rise to count 53.

    The Sentencing Judge

19. In his remarks, the Judge covered the circumstances of the offending and the maximum sentence applicable in respect of each of the counts.  The Judge then went on to consider the defendant’s personal antecedents, including the fact that the defendant had no criminal history:

    In sentencing you, I have taken into account the submissions of counsel; the fact that you have no criminal history; a report from Mr Broomhall, psychologist; and letters from Medicare Local signed by a mental health coordinator who confirms that, at least up until 23 April this year, you have attended pretty well all of your mental health treatment plan appointments. I have also received letters from representatives of Narcotics Anonymous, Alcoholics Anonymous and Marijuana Anonymous. The authors of those letters confirm that you are progressing well with your programs in those organisations, that you have insight into your problems, are actively involved in the programs, and are doing what you can to rehabilitate yourself. I have also taken into account a number of letters and character references from your wife, your employer and neighbour, various aunts and uncles and from your father. In summary, the writers of those letters and references regard you as a hard worker, a good family man, a generous man, a reliable and efficient worker and an excellent father. They all say that your offending is out of character.

    I have also taken into account a victim impact statement from the youth’s father.

    You are a 32-year-old man, the father of two children of your own - a daughter six and a son who is seven - and a stepfather of a daughter who is 19. You have been her stepfather for 11 years and the pair of you have an excellent relationship.

    You had a generally unremarkable upbringing, having been brought up with good levels of parental support by two loving and caring parents.

    At school you were a fairly good student. You left halfway through year 12 to begin an apprenticeship. Regrettably, fairly early in that apprenticeship, you suffered a workplace injury in respect of which no compensation claim was ever made. After several months off work, you returned to your workplace to be told that you had been replaced. Thereafter, you completed three years of an apprenticeship as a carpenter. When you were required to work at heights in your apprenticeship, you were unable to continue. But you had skills as a gyprocker and you worked in that industry for many years. You also worked, after-hours, as a security officer. I accept that your work in that industry had no association with outlaw motorcycle gangs.

    In 2013, you injured your hand again in the workplace. Medical opinion was that it would repair without treatment and you continued to work, but not as ably as you had before receiving the injury. In the result, you were laid off. Just before being laid off, a young cousin, 17 years old, committed suicide. Your being out of work and your grief and depression at the death of your cousin led to your becoming depressed and to your increasing drug use.

    You have been a regular user of cannabis since you were 16 and only an occasional user of amphetamines until you dropped your bundle at the period to which I have just referred.

    You had not been employed for some six months until your arrest in August last year. You spent one month in custody and immediately upon your release from custody you obtained full-time work as a painter. You continue to have that employment.

    You have not used drugs or alcohol since your arrest and, as I have already mentioned, you continue to attend programs to assist you with that abstinence.

    Mr Broomhall is of the view that you have poor skills at coping emotionally. You do, however, have a positive marriage and a supportive family. Mr Broomhall is of the opinion that you present a low risk of future similar offending.

20. In sentencing the defendant, the Judge utilised section 18A of the Criminal Law (Sentencing) Act 1988 and said:

    I shall fix one sentence pursuant to s.18A in respect of the offences for which the maximum penalty is imprisonment.

    For the four offences of failing to keep a firearm secure, I convict you without further penalty.

    For the offence of failing to store ammunition in a locked container, I convict you without further penalty.

    You are entitled to a discount of up to 30% on account of the time at which your pleas were entered. I give you the full 30%. In my view, your circumstances do not attract any other statutory discount but, giving credit for 30 days in custody and over 300 days on home detention bail and other matters brought to my attention, I allow a further discount of 20%.

    But for the matters relating to discount to which I have just referred and to the time in custody and on home detention bail, I would have sentenced you to imprisonment for 14 years. The sentence of the court is that you be imprisoned for seven years.

1. The Judge declined to suspend the defendant’s sentence.  His Honour noted:

   Taking into account the fact that you are a first offender, the efforts that you have made at rehabilitation and the other matters that Mr Anders outlined, I fix a non-parole period of four years and six months. Your counsel has asked that I suspend that sentence.

   I have considered all the factors to which Mr Anders referred. I am not prevented from considering suspension on account of your being a serious firearms offender. I have taken into account the fact that you are a first offender, effectively, at 32 years of age; that you have a good work record; you have been a good father and husband; that your family will suffer greatly if the sentence is not suspended and that this offending was out of character and committed at a point in your life when you were at a low ebb on account of a combination of factors. I emphasise that I have taken into account all of the matters that Mr Anders submitted. I accept that in your case personal deterrence is of less importance than in most cases but against that there remains the indisputable fact that general deterrence remains of the greatest importance in the courts’ and the law’s efforts to keep our community safe.

   In my view, there are no good grounds to suspend the sentence and I decline to do so.

   The Appeal

   Error Conceded

2. The defendant appeared in the Adelaide Magistrates Court on the original Information on 20 August 2014.  On 5 September 2014, the Director made an application to make minor amendments to counts two and three of the original Information.  On 19 February 2015, the defendant appeared in the Adelaide Magistrates Court on fresh information filed by the Director.  On that occasion, the matter was adjourned to 19 March 2015.  On 18 March 2015, the defendant was provided with a further fresh Information, being the third Information.  On 19 March 2015, the defendant pleaded guilty before the Adelaide Magistrates Court to the counts on the third Information.

3. It is to be recalled that the Judge applied a discount of 30 per cent to the head sentence on account of the defendant’s pleas of guilty.  On appeal, the defendant claimed that he was entitled to a discount of 40 per cent, the maximum discount available, as he pleaded guilty on the first available opportunity following the filing of the third Information.  Counsel for the Director conceded that the Judge had erred in respect of the discount awarded on account of the defendant’s pleas of guilty.  However, counsel submitted that the defendant was entitled to a discount of 40 per cent only in relation to those charges which had been amended.

4. In my view, the act of filing a new Information does not mean that the calculation of time for the purposes of section 10C(2) of the Criminal Law (Sentencing) Act 1988 (SA) starts afresh. The section is worded with reference to a court appearance in relation to “the relevant offence or offences”, rather than a court appearance in respect of an Information. Section 10C(2) relevantly provides:

   (2)     If a defendant has pleaded guilty to an offence or offences—

   (a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;

   (b)     more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

   ...

5. The majority of the counts under the third Information were in respect of the same offences and material particulars as under the first and second Informations.  The defendant is only entitled to a discount of 40 per cent in relation to those offences which were added or for which the material particulars were amended.  The first Information only charged nine counts of supplying a firearm to another person who was not authorised to acquire the firearm by a permit.  This was amended to 29 counts of that charge under the second Information.  There was no change to these 29 counts pursuant to the third Information, other than the fact that they became counts eight to 36, when they were counts 67 to 95 under the second Information.  However, it is to be recalled that the defendant appeared on the second Information on 19 February 2015 and pleaded guilty to the offences on 19 March 2015, less than four weeks later.  The defendant is therefore entitled to a discount of 40 per cent in respect of those addition 20 charges of supply.  

6. On appeal, the Director highlighted a second issue. The third Information was amended again on 26 June 2015, after the defendant’s committal for sentence. This amended Information made material alterations to counts 37 to 40. It changed the offence of possessing a defaced or altered firearm pursuant to section 24A(7)(b) of the Firearms Act to an offence of defacing, altering or removing the identifying characters of a firearm pursuant to section 24A(7)(a). The material particulars of the offence to which the defendant had pleaded guilty changed. The defendant entered pleas of guilty to the amended counts on the same day that the counts were amended. The Director conceded that the relevant offence for the purposes of section 10C(2) of the Sentencing Act had changed.  The defendant first appeared on the amended third Information on the day of amendment, 26 June 2015.  Consequently, he was entitled to the full 40 per cent discount.  

7. On appeal, counsel agreed that the conceded errors were material and, consequently, that this Court must consider for itself the appropriate sentence to be imposed.  Counsel for the Director submitted that the Court should conclude that sentence imposed was appropriate, notwithstanding the error in respect of the discounts allowed for the defendant’s pleas, and dismiss the appeal. 

8. As error is conceded and it is necessary to resentence, there is no utility in addressing the other grounds of appeal.  

   Resentencing

9. Section 10 of the Sentencing Act relevantly provides:

   Sentencing considerations

   ...

   (2) In determining the sentence for an offence, a court must give proper effect to the following:

   ...

   (e)     in the case of an offence involving a firearm—the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence.

   ...

10. Parliament has made plain its intention with respect to the sentencing of firearms offenders. The seriousness with which such offences are to be treated is reflected in section 10(2)(e) of the Sentencing Act and the introduction of provisions relating to serious firearm offenders.  General and personal deterrence and the protection of the community are of paramount importance when sentencing for such offences. 

11. In Pollitt, I made the following observations:[11]

    [11]   Pollitt v Police [2007] SASC 382, [20]-[21].

    The overriding policy of the Firearms Act is to protect the public from the unsafe or criminal use of firearms.  The legislative scheme was considered in Johnson v Registrar of Firearms, and in Offe v Police.   The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing.  Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community.  Its purpose included the provision of community protection through the licensing and regulation of firearms.  Parliamentary debates indicate that the Act was:

    designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.

    In 1996 amendments were made to the Act, introducing stricter gun laws throughout Australia:

    In an historic move on 10 May 1996 the Australasian Police Ministers’ Council agreed to a series of resolutions to introduce national uniform gun laws. The underlying thrust of those resolutions is that gun ownership is not a right, it is a conditional privilege.

    [Footnotes omitted.]

12. The Court of Criminal Appeal has observed that the community must acknowledge the dangers of firearms.  In Daniele, with the agreement of Kourakis CJ and Peek J, I made the following observations:[12]

    Possession of a firearm is a privilege and a serious responsibility.[13]  The overriding policy of the Firearms Act 1977 (SA) is to protect the public by controlling the possession and use of firearms.[14]  Parliamentary debates indicate that this legislation was enacted in response to the increasing use of firearms in serious offences and the proliferation of such weapons in the community.[15]  Relevant amendments were made to the Firearms Act in 2008.  In the second reading speech the Minister said:[16]

    In South Australia, the majority of violent criminal behaviour with firearms does not involve legitimate firearms owners, nor legitimately owned, secured and registered firearms. Whilst there is some conjecture as to the quantity of illegal firearms circulating in the community, there is no doubt that there is a market for unrecorded and essentially untraceable firearms to be used for a criminal purpose. It is the nature of this enterprise that there exists difficulties in police being able to prevent this trade and the subsequent crime arising from it.

    The need for general deterrence is particularly apparent in sentencing for offences of this kind.  The community should not be complacent about the dangers of firearms and the damage that can be caused by them.[17]

    [Emphasis added.]

    [12]   R v Daniele [2014] SASCFC 22, [25]-[26].

    [13]   R v Nozuhur [2013] SASCFC 81, [22]-[26].

    [14]   Pollitt v Police [2007] SASC 382, [20]; R v Nozuhur [2013] SASCFC 81, [23]-[24].

    [15]   South Australia, Parliamentary Debates, House of Representatives, 14 April 1977, 3448 (Hugh Hudson).

    [16]   South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2055 (Paul Holloway).

    [17]   Offe v Police (2002) 84 SASR 1, [26].

13. I accept that the defendant was under stress at the time of offending.  He was unemployed and dealing with the loss of his cousin.  The offending was clearly out of character and the defendant has lived an otherwise blameless life. 

14. Nevertheless, since relevant amendments were made to the Firearms Act 1977 (SA) in 2008, this Court has consistently emphasised the need for severe penalties in respect of firearms offending such that even simple possession will usually call for a custodial sentence.[18] 

    [18]   R v Gasmier [2011] SASCFC 43, [19]; R v Capaldo [2015] SASCFC 56, [52].

15. In my view, considering the foregoing, the sentence imposed by the Judge was merciful and below what I consider to be an appropriate sentence.  On appeal, counsel for the defendant complained that the sentences imposed should have been wholly concurrent.  Although it is not necessary to consider this submission in depth, I note that the maximum penalty for the offence of trafficking in firearms, if there is more than one firearm, is 20 years imprisonment.[19]  The defendant supplied 29 firearms to three persons who were not authorised to acquire them, including a member of an outlaw motorcycle gang.  The defendant did this on the understanding that the firearms would be distributed more widely throughout the community.  This is very serious offending and, in my view, warrants a sentence at the higher end of the scale encompassed by the maximum term.  In my view, a starting sentence of 14 years for the trafficking offences alone would be within the permissible range of sentences.  As a consequence, the Judge’s decision to make the sentences partially concurrent has resulted in no injustice to the defendant.

    [19]   Firearms Act 1977 (SA) section 14(7)(a).

16. 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

17. 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.

18. KELLY J:             I agree that the appeal should be dismissed for the reasons given by Gray J.

    BLUE J:

19. This is an application for permission to appeal against sentence.

20. 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.

21. 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

22. 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.

23. The appellant and Y subsequently agreed that they would steal and sell O’s firearm collection, sharing the proceeds equally. Y was to provide access to the firearm collection and the appellant was to collect the firearms and sell them.

24. In early August 2014, Y removed 33 of O’s firearms from their safes. This comprised 22 long arms (20 rifles and two shotguns being class A or class B firearms) and 11 handguns (nine pistols and two revolvers being class H firearms). The appellant collected the firearms from Y at O’s house and transported them to his own house. The value of the firearms was approximately $30,000.

25. The appellant used a Dremmel tool to remove the identifying characters from four of the handguns. He still had possession of these four handguns on 19 August 2014 when the police attended at his house, conducted a search and located them. These handguns ultimately became the subject of one count of theft (together with the other 29 firearms), four counts of removing the identifying characters of a firearm, four counts of possession of a firearm without a licence and four counts of possession of an unregistered firearm.

26. The appellant sold five handguns for $9,500 to a person P1. On 13 August 2014, P1 paid $5,000 of the purchase price into the appellant’s bank account. The appellant had not been paid the balance of the purchase price on 19 August 2014 when the police attended at his house. These handguns ultimately became the subject of one count of theft (together with the other 28 firearms) and five counts of supplying a firearm to a person not authorised to acquire it.

27. The appellant supplied two handguns to a second person P2. They were ultimately recovered by police in 2015. These handguns ultimately became the subject of one count of theft (together with the other 31 firearms) and two counts of supplying a firearm to a person not authorised to acquire it.

28. On 14 August 2014, the appellant delivered 20 long arms to a third person P3. P3 was to identify prospective purchasers and sell them. The appellant had not received payment for any of these firearms on 19 August 2014 when the police attended at his house. The police attended on 19 August 2014 at P3’s house and recovered nine of these firearms. The remaining 11 firearms have not been recovered. These 20 firearms ultimately became the subject of one count of theft (together with the other 13 firearms) and twenty counts of supplying a firearm to a person not authorised to acquire it.

29. The appellant gave possession of two long arms to a fourth person P4. The appellant had not received payment for these firearms on 19 August 2014 when the police attended at his house. The police attended on 20 August 2014 at P4’s house and recovered both firearms. These firearms ultimately became the subject of one count of theft and two counts of supplying a firearm to a person not authorised to acquire it.

30. On 18 August 2014, O discovered the theft of his firearms and on the following day reported it to the police. On 19 August 2014, the police attended at the appellant’s house and conducted a search under a general search warrant. They found the four handguns in a backpack in the main bedroom not secured as required by the Firearms Regulations 2008 (SA) (the Firearms Regulations).

31. The police also found a Mauser “Lithgow 12” sawn off .22 rifle in the bedroom and a Gecado sawn off .177 air rifle in the shed. Each rifle had been a class A firearm when manufactured but by virtue of the sawing off of part of the barrel (and butt in the case of the air rifle) was a prescribed firearm. These rifles were not connected with O. These rifles ultimately became the subject of two counts of possession of a firearm without a licence and two counts of possession of an unregistered firearm.

32. The police also located in the backpack $1,500 cash. This cash ultimately became the subject of one count of possession of property reasonably suspected of having been stolen or obtained by unlawful means.

33. On 19 August 2014, the police arrested the appellant and interviewed him. He was asked questions about the six firearms found at his house which he was required pursuant to section 30 of the Firearms Act 1997 (SA) (the Firearms Act) to answer (on the basis that his answers could not be used in evidence against him). He effectively admitted the offences in respect of these six firearms with which he was subsequently charged.

34. The appellant was asked questions about other firearms stolen from O.[28] Initially he made no admissions in relation to those firearms but it became apparent that the police had independent information about them and in addition the police obtained the appellant’s mobile telephone which contained details of communications relating to them. The appellant then effectively admitted the offences in respect of the remaining 29 firearms with which he was subsequently charged.

    [28]   Section 30 of the Firearms Act authorises a police officer to require a person who is in possession or who recently had possession of a firearm (or is in company with such a person or is an occupier of or in charge of or is or was immediately before in premises, a vehicle, vessel or aircraft in which a firearm is found) to answer questions. The questions must relate to the firearm in question. The person is obliged to answer the questions, but the answers are inadmissible in substantive proceedings against that person. When a police officer requires a person to answer questions purportedly pursuant to section 30 of the Firearms Act, it is important that the police officer identifies the basis on which the obligation to answer is created. It is also important that the police officer makes a clear distinction between questions the person is required under the section to answer and other questions that may be asked relating, for example, to firearms not established to be or to have recently been in the possession of that person etc in respect of which the person is not required to answer questions but the answers to which are not rendered inadmissible by the section. In the present case, it is doubtful whether the police officers sufficiently made that distinction and it is doubtful whether, if the appellant had pleaded not guilty, the record of interview would have been admissible against him. That question is academic in the present case because the appellant pleaded guilty to all counts in the third information.

1. The appellant admitted that he believed that one of the recipients of the firearms was probably a member of an outlaw motorcycle gang.

   The personal circumstances of the appellant

2. The appellant was 31 years old when he committed the offences and is now 32 years old. He had an unremarkable upbringing. He left school part way through year 12 to commence an apprenticeship. He completed three years as an apprentice carpenter but did not complete his final year due to a work accident. He then worked as a gyprocker for several years. He also had a second job for several years in the security industry.

3. In 2007, the appellant began a relationship with his now wife. They have two children aged six years and seven years and the appellant is stepfather to his wife’s daughter who is aged 19 years.

4. In 2013, the appellant’s hand was crushed in a workplace accident. After some time, he was laid off by his employer. He then only worked sporadically as an independent gyprocking contractor.

5. In April 2014, the appellant’s cousin committed suicide. As a result of this and his unemployment, the appellant became a consistent user of methyl amphetamine. He had also for many years been a consistent user of cannabis.

6. The appellant has no prior convictions.

7. After the appellant’s arrest in August 2014, he ceased use of methyl amphetamine and cannabis.

8. After the appellant’s release on home detention bail in September 2014, he commenced employment as a gyprocker with a pergola installer. He continued in that employment until he was sentenced in July 2015. A character reference by his employer was provided to the sentencing judge.

9. In October 2014, the appellant began a mental health treatment plan with a psychologist through his general practitioner. He also began attending weekly meetings of Narcotics Anonymous and Marijuana Anonymous.

   The charges

10. On 20 August 2014, the police filed in the Magistrates Court an Information (the first Information) charging the appellant with (amongst other offences) one count of theft of 33 firearms; one count of supplying a firearm to a person not authorised to acquire it in respect of the nine firearms located at P3’s premises; three counts of possession of a firearm without a licence and one count of possession of an unregistered firearm both in respect of the six firearms located at the appellant’s premises; one count of defacing the identifying characters of the four handguns and the air rifle located at the appellant’s premises, and one count of possession of $1,500 cash reasonably suspected of having been stolen or obtained by unlawful means.

11. On 20 August 2014, the appellant appeared in the Magistrates Court on the first Information and was remanded in custody.

12. On 17 September 2014, the appellant was remanded on home detention bail.

13. On 19 February 2015, the police filed in the Magistrates Court an Information (the second Information) in substitution for the first Information charging the appellant with (amongst other offences) 33 counts of theft of the 33 firearms; 29 counts of supplying a firearm to a person not authorised to acquire it; six counts each of possession of a firearm without a licence and possession of an unregistered firearm in respect of the six firearms located at the appellant’s premises; four counts of being in possession of the four handguns located at the appellant’s premises the identifying characters of which had been defaced; and one count of possession of $1,500 cash reasonably suspected of having been stolen or obtained by unlawful means.

14. On 19 February 2015, the appellant appeared in the Magistrates Court on the second Information. No evidence was tendered on the first Information and it was dismissed. The appellant was further remanded.

15. On 18 March 2015, the police filed in the Magistrates Court an Information (the third Information) in substitution for the second Information charging the appellant with the counts to which he pleaded guilty referred to above.

16. On 19 March 2015, the appellant appeared in the Magistrates Court on the third Information. No evidence was tendered on the second Information and it was dismissed. The appellant pleaded guilty to all counts in the third Information and was committed for sentence in the District Court.

17. On 26 June 2015, the third Information was amended by consent to change the four counts charging possession of the four handguns located at the appellant’s premises the identifying characteristics of which had been defaced to four counts of defacing their identifying characteristics. The appellant pleaded guilty to the amended counts.

    Sentencing submissions

18. An agreed statement of facts concerning the offending was tendered.

19. The appellant tendered a report by a psychologist, Mr Broomhall. Mr Broomhall expressed the opinion that the appellant met the diagnostic criteria for Stimulant Use Disorder, Amphetamine Type Substance – Moderate and for Cannabis Use Disorder – Moderate. He expressed the opinion that the appellant was in the low risk range for similar future offending behaviour. He expressed the opinion that the appellant had engaged in meaningful rehabilitation strategies which served to reduce his criminogenic risk and improve psychological functioning. He said the continuation of the rehabilitation and therapeutic strategies along with continuing stable employment would ensure that the risk of similar future offending behaviour remained in the low range.

20. 15 character references on behalf of the appellant were tendered during sentencing submissions.

21. Counsel for the appellant and the Director each submitted to the Judge that the maximum discount available for a guilty plea (under section 10C of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act)) was 30%.

    Sentencing remarks

22. The Judge summarised the circumstances of the offences and the appellant’s personal circumstances, in the course of which he referred to Mr Broomhall’s reports and the character references.

23. The Judge characterised the offending as very serious. The Judge said:

    The presence of illegal firearms in our community is a growing threat and firearms offences must be very sternly dealt with. As I have said, as a result of your offending, 16 firearms are out in the community. You were also found in possession of a large quantity of ammunition compatible with use in those firearms. While I accept that you had no criminal intentional when you distributed the firearms, the fact remains that they are at large, if I may use that expression, in our community. The theft itself was a serious offence of its kind.

24. The Judge said that he would fix one sentence pursuant to section 18A of the Sentencing Act for the offences for which the maximum penalty was imprisonment. He adopted a starting point of imprisonment for 14 years. He said:

    Had I fixed separate sentences, I would have ordered significant partial concurrence. Although some of the offences were, strictly, committed at different times, they were all part of what I would describe generally as the one ‘operation’. Having said that, I must still bear in mind in fixing sentence the large number of firearms involved in this offending.

25. The Judge applied discounts totalling 50% to the starting point to arrive at a single sentence of imprisonment for seven years. The Judge said:

    You are entitled to a discount of up to 30% on account of the time at which your pleas were entered. I give you the full 30%. In my view, your circumstances do not attract any other statutory discount but, giving credit for 30 days in custody and over 300 days on home detention bail and other matters brought to my attention, I allow a further discount of 20%.

26. The Judge fixed a non-parole period of four years and six months taking into account the fact that the appellant was a first offender, the efforts he had made at rehabilitation and the other matters outlined by his counsel.

27. The Judge declined to suspend the sentence. He said:

    Your counsel has asked that I suspend that sentence.

    I have considered all the factors to which [your counsel] referred. I am not prevented from considering suspension on account of your being a serious firearms offender. I have taken into account the fact that you are a first offender, effectively, at 32 years of age; that you have a good work record; you have been a good father and husband; that your family will suffer greatly if the sentence is not suspended and that this offending was out of character and committed at a point in your life when you were at a low ebb on account of a combination of factors. I emphasise that I have taken into account all of the matters that [your counsel] submitted. I accept that in your case personal deterrence is of less importance than in most cases, but against that, there remains the indisputable fact that general deterrence remains of the greatest importance in the courts and the law’s efforts to keep our community safe.

    In my view, there are no good grounds to suspend the sentence and I decline to do so.

    Contentions on appeal

28. The appellant contends that the Judge’s sentencing remarks were inadequate because the Judge failed to disclose the extent of partial concurrency allowed between sentences for individual offences.

29. The appellant contends that the Judge erred by failing to order that each sentence be wholly concurrent and allowing a discount of 30% for his guilty pleas when he was entitled to the maximum discount of 40%.

30. The appellant contends that the head sentence and non-parole period are manifestly excessive and the Judge erred in finding that ‘no good grounds’ existed to suspend the sentence.

31. The Director takes issue with each of these contentions, except that the Director concedes that the maximum discount in respect of some of the offences was 40%.

32. The appellant tendered several affidavits at the hearing of the appeal on the basis that they were only admissible if this Court were called upon to resentence the appellant.

    The firearm regulatory regime and maximum penalties

33. Section 13 of the Firearms Act empowers the Registrar of Firearms to issue a firearms licence authorising the holder to possess and use for a specified purpose a firearm subject to specified conditions. Section 11 creates offences of possession of an unlicensed firearm and possession or use of a firearm for a non-specified purpose. The maximum penalty by way of imprisonment for an offence ranges from imprisonment for four years in respect of a class A or class B firearm (non-self-loading rifles and non-pump action shotguns) to imprisonment for seven years in respect of a class H firearm (handguns) to imprisonment for ten years in respect of a prescribed firearm.[29]

    [29]   All penalties referred to are those applying as at August 2014.

34. Section 15 of the Firearms Act empowers the Registrar of Firearms to issue to the holder of a firearms licence a permit authorising the holder to acquire a specific firearm. Section 14(1)(a) creates an offence of acquiring a firearm without being authorised by a permit to do so. Section 14(1)(b) creates an offence of supplying a firearm to a person not authorised by a permit to acquire it. Both offences are called trafficking. The maximum penalty by way of imprisonment for trafficking ranges from imprisonment for seven years in respect of a class A or class B firearm to imprisonment for ten years in respect of a class H firearm to imprisonment for 15 years in respect of a prescribed firearm in the case of a first offence involving a single firearm and otherwise is imprisonment for 20 years.

35. Section 24 of the Firearms Act empowers the Registrar of Firearms to register a firearm in the name of the holder of a firearms licence. Section 23 creates offences of possession and ownership of an unregistered firearm. The maximum penalty by way of imprisonment for an offence ranges from imprisonment for one year in respect of a class A or class B firearm to imprisonment for two years in respect of a class H or prescribed firearm.

36. Section 24A(1) stipulates that a firearm required to be registered must have a numeric or alphanumeric identifier stamped or engraved into the metal structure. Section 24A(7)(a) creates the offence of removing, defacing or altering the identifying characters, and section 24A(7)(b) creates the offence of being in possession of a firearm without identifying characters or whose identifying characters have been removed, defaced or altered, without the authority of the Registrar. The maximum penalty by way of imprisonment for these offences ranges from imprisonment for four years in respect of a class A or class B firearm to imprisonment for seven years in respect of a class H firearm.

37. The purpose of the Firearms Act is to control the possession, use and sale of firearms. That purpose includes the protection of the public from the unsafe or criminal use of firearms.[30]

    [30]   R v Nozuhur [2013] SASCFC 81 at [23] per Gray J (with whom David J agreed); R v Daniele [2014] SASCFC 22 at [25] per Gray J (with whom Kourakis CJ and Peek J agreed); R v Cullen [2015] SASCFC 44 at [25] per Gray J (with whom Kourakis CJ and Stanley J agreed).

38. In R v Daniele,[31] Gray J (with whom Kourakis CJ and Peek J agreed) said:

    Possession of a firearm is a privilege and a serious responsibility. The overriding policy of the Firearms Act 1977(SA) is to protect the public by controlling the possession and use of firearms. Parliamentary debates indicate that this legislation was enacted in response to the increasing use of firearms in serious offences and the proliferation of such weapons in the community. Relevant amendments were made to the Firearms Act in 2008. In the second reading speech the Minister said:

    In South Australia, the majority of violent criminal behaviour with firearms does not involve legitimate firearms owners, nor legitimately owned, secured and registered firearms. Whilst there is some conjecture as to the quantity of illegal firearms circulating in the community, there is no doubt that there is a market for unrecorded and essentially untraceable firearms to be used for a criminal purpose. It is the nature of this enterprise that there exists difficulties in police being able to prevent this trade and the subsequent crime arising from it. [32]

    [31]   [2014] SASCFC 22.

    [32] At [25].

39. In R v Cullen,[33] Gray J (with whom Kourakis CJ and Stanley J agreed) said:

    An object of the legislation is to ensure that only responsible persons with appropriate licences are able to access firearms. It provides clear direction as to the licensing, storage and use of firearms. Some firearms are viewed more seriously and the legislation provides greater restrictions and controls in such instances.[34]

    [33] [2015] SASCFC 44.

    [34] At [25].

40. The maximum penalty by way of imprisonment for theft is imprisonment for 10 years.[35] The maximum penalty by way of imprisonment for unlawful possession is imprisonment for two years.[36]

    [35]   Criminal Law Consolidation Act 1935 (SA) section 134(1).

    [36]   Summary Offences Act 1935 (SA) section 41(1).

    Separate sentences for individual offences and concurrency

41. The appellant complains that the Judge erred by adopting a procedure that failed to accord transparency so as to enable the appellant to know the basis upon which he was sentenced and exercise his appeal rights: it is not possible from the sentencing remarks to discern the extent of the concurrency between sentences applied by the Judge, other than their having been ‘significant partial concurrence’.

42. The appellant complains that the Judge erred by failing to order that each of the respective sentences be wholly concurrent.

    Adequacy of sentencing remarks

43. The appellant contends that, when section 18A of the Sentencing Act is utilised to impose a single sentence for multiple offences, it is an error of law for the sentencing judge not to identify notional sentences for each offence, extent of concurrency or accumulation between each notional sentence and any reduction on considering totality leading to the ultimate single sentence.

44. Contrary to the appellant’s submission, R v Belczacki[37] is not authority for his proposition. In the passages cited by the appellant ([65] to [67]), Peek J held that it was an error for the sentencing Judge in the case to wholly accumulate, subject only to a reduction for totality, separate notional sentences for serious criminal trespass and theft without taking into account the substantial overlap between the two offences calling for partial concurrency before any consideration of totality. Peek J had earlier said that it was desirable that sentencing judges identify separate notional sentences and the extent of concurrency or accumulation in any reduction for totality when utilising section 18A.[38] David J said that to do so in that case would have been unrealistic and meaningless.[39] I preferred to express no view on this question because it did not arise on that appeal.[40]

    [37] [2012] SASCFC 4, (2012) 112 SASR 95.

    [38]   At [44]-[54].

    [39] At [27].

    [40] At [92].

45. The decision of this Court in R v Ravet[41] is direct authority contrary to the appellant’s proposition. In that case, Sulan J (with whom Duggan and David JJ agreed) said:

    In my view, there is no requirement upon a sentencing judge to apply a mathematical approach by indicating notional sentences for each offence.  This is particularly so in cases of multiple offending where the total sentence arrived at will bear little relationship to the eventual sentence once there has been a lengthy deduction for totality.

    On the other hand, if a sentencing judge chooses to approach his or her task in that way, that does not amount to an error of law, even though the final sentence may bear little relationship to the overall sentence arrived at when applying the mathematical approach.[42]

    [41]   [2011] SASCFC 67.

    [42]   At [43]-[44]. See also R v Power [2003] SASC 288 at [18] per Sulan J (with whom Doyle CJ and Besanko J agreed); R v Bennett [2005] SASC 55 at [15]-[16] per Doyle CJ (with whom Vanstone and White JJ agreed).

46. This Court has said that the same considerations that apply to the fixing of separate sentences, concurrency/accumulation between those sentences and a final review/adjustment for totality in the absence of section 18A will inform the fashioning of an appropriate single sentence when section 18A is utilised.[43]

    [43]   R v Nixon(1993) 66 A Crim R 83 at 85-86 per Legoe J; R v Skrjanc(1994) 71 A Crim R 347 at 353 per Legoe J (with whom Mohr and Duggan JJ agreed); R v Symonds [1999] SASC 217 at [21]-[22] per Doyle CJ (with whom Prior and Mullighan JJ agreed).

47. In some cases, it is desirable that a judge utilising section 18A identify, and disclose in his or her sentencing remarks, notional sentences and the extent of concurrency/accumulation and any adjustment for totality. This is likely to be the case, for example, when a defendant is sentenced for two offences wholly independent of each other. In such cases, failure of the judge to so proceed is not an error of law and does not vitiate the sentence, but might lead the appellate court more readily to infer that there has been a substantive error made by the judge.

48. In other cases, there will be no utility in a judge identifying or disclosing in his or her sentencing remarks notional sentences and the extent of concurrency/accumulation and any adjustment for totality.[44] This is likely to be the case, for example, when a defendant is charged with a large number of offences committed during one venture or course of conduct involving complex multi-dimensional overlaps between offences and in circumstances in which totality considerations play a large part in fashioning the final sentence. For reasons explained at [107] to [109] below, the interplay in the consideration of the offences can be complex, multi-dimensional and iterative and the final review is holistic. In such cases, identification and disclosure of a separate notional sentence in respect of each offence would often be hypothetical because the court is not considering each offence as if it were an isolated offence and it would be an artificial and essentially meaningless exercise. The fundamental principles summarised at [100] above still apply in fashioning an appropriate sentence, but the sentencing judge applies those principles as part of a holistic instinctive synthesis rather than applying instinctive synthesis in a staged and iterative process.

    [44]   R v Nylander [2003] SASC 191, (2003) 228 LSJS 24 at [86]-[90] per Bleby J (with whom Prior and Sulan JJ agreed); R v Power [2003] SASC 288 at [18] per Sulan J (with whom Doyle CJ and Besanko J agreed).

1. In the present case, the Judge was called on to sentence the appellant for a large number of offences (48 counts for which the maximum penalty was imprisonment). In respect of each type of offence involving separate counts for each firearm, there was no linear relationship between an appropriate sentence for a single count on the hypothetical assumption that only one firearm had been involved and an appropriate sentence for multiple firearms. For example, an appropriate total sentence for supplying 20 firearms to P3 would not be equal to an appropriate sentence for supplying one firearm to P3 nor would it be equal to 20 times an appropriate sentence for supplying one firearm to P3. As between different types of offences, there were overlaps between counts relating to the same firearm. For example, there was an overlap between the count of being in possession without a licence of a handgun found at the appellant’s house and being in possession of that unregistered handgun. Given the number of offences and firearms involved, considerations of totality necessarily played a large part in fashioning an appropriate sentence. The present case exemplifies those cases in which there is no utility in identifying separate notional sentences for each offence.[45]

   [45]   This is subject potentially to qualification in a case in which different discounts are applicable to different offences: see R v Wakefield [2015] SASCFC 10, (2015) 121 SASR 569. In the present case, the Judge sentenced the appellant on the premise that the same discounts were applicable to all offences, this being common ground at first instance. On appeal, that premise needs to be revisited: see [112]-[123] and [125]-[132] below.

   Full or partial concurrency

2. The Judge said in his sentencing remarks that, had he fixed separate sentences, he would have ordered significant partial concurrence. The appellant contends that this indicates that the Judge identified, but did not disclose in his sentencing remarks, separate notional sentences for each offence and identified a degree of partial concurrence between all of the offences. The appellant contends that this was erroneous because full concurrency was required in the circumstances.

3. As to the appellant’s first contention, the Judge’s reference to what he would have done if he had fixed separate sentences is to be understood as a reference to hypothetical steps that the Judge would have taken if he had not utilised section 18A and not as a statement that he had actually proceeded in that way. This is evident both from the language used by the Judge and from the circumstances identified at [103] above. For the reasons given above, the Judge made no error by not identifying separate sentences for each offence.

4. In support of his second contention, the appellant submits that full concurrency was required because all offences formed part of one course of conduct committed for one purpose within proximate times and in which some offences were the inevitable result of a preceding offence. This submission must be rejected. This was not a case where full concurrency between separate notional sentences, if they had been identified by the Judge, was required or appropriate.

5. There are two broad reasons for ordering partial concurrency between sentences for separate offences when section 18A is not utilised: overlaps between offences[46] and the non-linear relationship between the number of offences and the total of the sentences.[47] As to the first reason, full concurrency between offences will be appropriate where there is a complete, or close to complete, overlap between the offences such that the conduct constituting the second offence is encompassed entirely or almost entirely within the conduct constituting the first offence.[48] Partial concurrency between offences will be appropriate (subject to non-linearity and totality) where there is a partial overlap between the elements of the offences or in their motivation and execution.

   [46]   R v Belczacki (2012) 112 SASR 95 at [55]-[61] per Peek J (with whom Blue J agreed).

   [47]   R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398 at [108]-[110] per Kourakis J; R v Belczacki (2012) 112 SASR 95 at [62]-[63] per Peek J (with whom Blue J agreed).

   [48]   Duplicity considerations will arise if there is a complete overlap.

6. As to the second reason, there may be a non-linear relationship between number of offences and total of the sentences for several reasons. On the one hand, committing say three offences over a period of time may demonstrate more serious criminality than three times the criminality of an isolated offence. This might apply for example in a case of trafficking of a quantity of drugs or firearms. On the other hand, beyond a certain number of offences (which will range from one to a higher number depending on the circumstances), it will be appropriate that the incremental sentence for the additional offence or offences be reduced for reasons explained by Kourakis J (as his Honour then was) in R v Copeland (No 2).[49] Partial concurrency will be appropriate when the number of counts is such that the relationship between the number of offences and the total of the sentences for a course of conduct becomes non-linear. Full concurrency will be appropriate when the stage is reached that there are so many counts that there is no incremental effect of the additional count on the total of the sentences.

   [49] (2010) 108 SASR 398 at [108]-[110].

7. When section 18A is not utilised, a final review or check should be undertaken of the total of the sentences to confirm or ensure that it is commensurate with the totality of the offending in all of the relevant circumstances.[50] If it is incommensurate, the degree of concurrency or individual sentences should be adjusted to ensure that it is commensurate.[51]

   [50]   R v Knight(1981) 26 SASR 573 at 576 per Walters, Zelling and Williams JJ; Mill v R (1988) 166 CLR 59 at 63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ.

   [51]   Mill v R (1988) 166 CLR 59 at 63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ.

8. In the present case, there was not a full overlap between any of the offences. There were distinct differences, for example, between the conduct constituting the offence of theft, the conduct constituting the offence of defacing identifying characteristics of four firearms, the conduct constituting the offence of possession of those four firearms without a license and the conduct constituting the supply of 29 firearms to persons not authorised to acquire them. Similarly, it was plain that the total sentence for supplying 29 firearms to persons not authorised to acquire them must exceed the hypothetical sentence that would have been appropriate for supplying a single firearm to a person not authorised to acquire it. The observation by the Judge that significant partial concurrence would have been appropriate if he had fixed separate sentences was apposite.

9. These complaints are not established.

   Maximum discount for guilty pleas

10. The appellant complains that the Judge erred by applying a discount of 30% on account of the time at which he entered his pleas: in circumstances where the appellant entered his pleas immediately following substantive amendments to the Information, he was entitled to the full discount of 40%.

11. The appellant’s approach on appeal to the discount is different from the approach he adopted before the Judge. As noted above, counsel for the appellant submitted to the Judge that the maximum discount available under section 10C was 30% and counsel for the Director made the same submission.

12. Section 10C(2)(a) of the Sentencing Act provides:

    (2)If a defendant has pleaded guilty to an offence or offences—

    (a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;[52]

    [52]   Emphasis added.

13. The appellant pleaded guilty to all counts contained in the third Information on 18 March 2015 being the first occasion on which he appeared in court on that Information. The appellant’s first contention is that it follows that he pleaded guilty in relation to the relevant offences at the first opportunity and the maximum discount is therefore 40%. That contention must be rejected. It is evident from the reference in the statutory provision to “the relevant offence or offences” that regard is to be had to the offences charged as a matter of substance rather than to the information in which they are charged as a matter of form when determining the time that a defendant first appears in court in relation to those offences. This is also evident from the use of the words “in relation to” the relevant offence or offences.

14. The appellant’s second contention is that, when multiple counts are charged in one information and the information is later substituted (or amended) to add an additional count or materially alter an existing count, the defendant does not first appear in relation to any of the offences charged within the meaning of the statutory provision until the defendant appears on the new (or amended) information. That contention must also be rejected. It is evident from the reference in the statutory provision to “the relevant offence or offences” that the court is to consider the timing of the guilty plea at the level of the offence for which the defendant is sentenced rather than at the higher level of the information containing charges of multiple offences as a whole. The fact that the Judge utilised section 18A of the Sentencing Act to impose a single penalty in respect of multiple offences makes no difference to the analysis. The appellant’s contention is inconsistent with this Court’s decision in R v Wakefield.[53]

    [53] (2015) 121 SASR 569 at [38]-[39] per Blue J (with whom Kourakis CJ and Peek J agreed).

15. In R v McPhee,[54] the defendant engaged in a course of conduct involving the theft of large amounts of money in total. She appeared in August 2013 on an information charging 134 counts of theft. In November 2013, she appeared on a substituted information charging the same 134 counts together with a further 47 counts of theft. She pleaded guilty to all 181 counts. This Court held that the maximum discount available in respect of the 131 counts previously charged in the original information was 30% notwithstanding the laying of the new information.[55] That case is inconsistent with both of the appellant’s contentions.

    [54] [2014] SASCFC 107.

    [55]   At [38] per Nicholson J (with whom Blue J agreed).

16. Descending to the level of individual offences, subject perhaps to three exceptions, the offences to which the appellant ultimately pleaded guilty on 19 March 2015 had been charged in the first Information on which the appellant first appeared on 20 August 2014.

17. The first possible exception is that the offences the subject of nine counts in the third Information involving the supply of nine of the firearms to P3 were contained in a single count rather than nine separate counts and the offences the subject of four counts in the third Information involving possession without a licence of the four handguns were contained in a single count rather than four separate counts. This is not a material difference. The words “in relation to” are words of wide import.[56] This Court has held, for example, that a defendant who appears in answer to an information charging an offence also appears in relation to those alternative offences to which he or she could plead guilty.[57] The appellant could have pleaded guilty to the charges contained in the single counts. The appellant first appeared in court in relation to these offences on 20 August 2014 when he appeared in answer to the first Information.

    [56]   R v Muldoon [2015] SASCFC 69, (2015) 123 SASR 1 at [23] per Kourakis CJ (with whom Gray and Stanley J agreed).

    [57]   R v Muldoon (2015) 123 SASR 1 at [23] per Kourakis CJ (with whom Gray and Stanley J agreed).

18. The second possible exception is that the offences the subject of four counts in the third Information involving defacing the identifying characters of the four handguns were contained in a single count in the first Information rather than four separate counts and the single count also alleged defacing the identifying characters of the airgun. The appellant could have pleaded guilty to the single count in the first Information but excluding the air rifle. The appellant first appeared in court in relation to these offences on 20 August 2014 when he appeared in answer to the first Information.

19. In R v Dwyer,[58] the defendant was charged with aggravated robbery, the circumstances of aggravation being use of a weapon and being in company. The information was later amended to delete the allegation of aggravation by reason of being in company and the defendant then pleaded guilty. This Court held that the amendment did not restart the clock running for a guilty plea. Stanley J (with whom Kourakis CJ and Gray J agreed) said:

    Notwithstanding that the Information was subsequently amended on 26 June 2014 to delete one of the allegations of aggravating circumstances, I consider that the “relevant offence” for the purposes of s 10C(2)(a) of the Sentencing Act was the offence of committing robbery by using force or threatening to use force contrary to s 137(1) of the Criminal Law Consolidation Act in circumstances of aggravation. It was always open to the appellant to plead guilty to that offence as originally charged while disputing the circumstances of aggravation. While the particulars of the aggravating circumstances were subsequently amended, the actual offence charged was always the same offence to which the appellant ultimately pleaded guilty on 26 June 2014.[59]

    [58] [2015] SASCFC 12, (2015) 121 SASR 587.

    [59] At [29].

20. The third possible exception is that the appellant was not charged in the first Information with the supply of firearms to a person not authorised to acquire them in respect of the 11 other firearms supplied to P3, the five firearms supplied to P1, the two firearms supplied to P2 or the two firearms supplied to P4. It is clear that the appellant did not appear in court in relation to these offences until 19 February 2015 when he appeared in answer to the second Information. He pleaded guilty to these offences on 19 March 2015 which was within four weeks of his first appearance. The maximum discount available in respect of these offences was 40%. This is conceded by the Director.

21. This ground of appeal is established in respect of 20 offences of supplying a firearm to a person not authorised to acquire it.

    Other grounds

22. As the errors identified above vitiate the exercise of the Judge’s sentencing discretion, it is necessary for this Court to re-sentence the appellant. It is unnecessary to address the remaining grounds of appeal.

    Resentencing

    Discount for guilty pleas

23. It is necessary to identify the appropriate discount or discounts for the appellant’s guilty pleas under section 10C of the Sentencing Act before addressing the appropriate starting point or points for the head sentence or sentences because differential discounts will affect the method by which the starting point or points are arrived at.[60]

    [60]   R v Wakefield (2015) 121 SASR 569.

24. The maximum discount available under section 10C in respect of all but one category of offences is 30%. The maximum discount available in respect of 20 counts involving the supply of 20 firearms to persons not authorised to acquire them is 40%.

25. In general terms, while the sentencing court retains a discretion as to the amount of discount allowed, unless there is good reason to allow a smaller discount, a sentencing court should allow the maximum discount, or a slightly lower amount on account of rounding, for reasons that have been articulated by this Court.[61]

    [61]   R v McPhee [2014] SASCFC 107 at [46] per Nicholson J (with whom Blue J agreed); R v Wakefield (2015) 121 SASR 569 at [53]-[57] per Blue J (with whom Kourakis CJ and Peek J agreed); R v Niesen [2015] SASCFC 165 at [35] per Stanley J; R v Deng [2015] SASCFC 176 at [16] per Blue J; R v Nguyen [2015] SASCFC 40 at [16]-[18] per Nicholson J (with whom Sulan and Lovell JJ agreed); R v Strauss [2015] SASCFC 192 at [24] per Sulan and Nicholson JJ..

26. One circumstance in which there might be good reason to allow a smaller discount is when a defendant has engaged in a single course of conduct involving the commission of multiple offences but the offences are charged at different times. If the defendant is initially charged with most but not all of those offences, does not plead guilty within four weeks of the first court appearance (thereby losing eligibility for the maximum 40% discount), several months elapse before the defendant pleads guilty upon or shortly before committal (attracting a maximum 30% discount), in the meantime the defendant is charged with the remaining offences and pleads guilty at the same time to the remaining offences (attracting a maximum 40% discount), the prosecution case against the defendant in respect of the later charged offences is not stronger than in respect of the originally charged offences, it is clear that the defendant would not have pleaded guilty earlier to the later charged offences if they had been charged at the same time as the original offences and considerations of totality will loom large in fashioning the total sentences if the defendant were sentenced without utilising section 18A, there may be good reason not to allow a discount exceeding 30% in relation to the later charged offences. The policy behind the allowance of a discount under section 10C(2)(a) is to encourage guilty pleas within four weeks of the first court appearance and in the circumstances just identified it may be consistent with the implementation of that policy that a discount of, or marginally below, 30% is allowed in respect of all charged offences.

27. In R v McPhee,[62] this Court held that, while the maximum discount available in respect of the 47 new counts was 40%, the discretion should be exercised to allow the same discount as in respect of the original counts. Nicholson J (with whom I agreed) said:

    This reduction of three years and ten months represents a shade under 30 per cent.  I am mindful that pleas to a number of the offences on the information were so early as to render the maximum permitted discount of 40 per cent potentially available with respect to those pleas.  However, the appellant had had ample time to consider her position generally and the presentation of the additional counts simply reflected further accounting work on the part of the prosecution, demonstrating a capacity to prove further particulars of the appellant’s acknowledged dishonesty.  In the circumstances, a discount for the new offences greater than that to be given for the old offences is not warranted.[63]

    [62] [2014] SASCFC 107.

    [63] At [53].

28. In the present case, the prosecution case against the appellant in respect of the supply to a person not authorised to acquire them of the nine firearms supplied to P3 that were found at P3’s premises on 19 August 2014 was stronger than, or at least as strong as, the prosecution case in respect of the 16 firearms supplied to P3 and P1 that were never located or the four firearms supplied to P2 and P4 that were found after 19 August 2014. It is clear that the appellant would not have pleaded guilty to the supply of these 20 firearms to persons not authorised to acquire them any earlier than 19 March 2015 if he had been charged with those offences on the first Information. Considerations of totality loom large in fashioning an appropriate sentence or sentences for the appellant’s offending.

29. If, contrary to my conclusion above, the maximum discount available in respect of the supply of the nine firearms to P3 found by the police at P3’s premises or defacing the identifying characters of the four handguns found by the police at the appellant’s premises had been 40%, it would have been appropriate to exercise the discretion so as only to allow a discount of 30% for the reasons given at [119] to [121] above.

1. In the particular circumstances of this case, it is appropriate to allow the same discount of 30% (or marginally less to allow for rounding) in relation to all offences.

   Head sentence

2. The offending by the appellant was extremely serious. It involved the theft of 33 firearms for the purpose of supply to others on the black market. The firearms included rifles, shotguns and handguns. The defendant supplied 29 of those firearms to persons not authorised to acquire them. There was and remains a real danger to the community by reason of the supply of the firearms to others. General deterrence must play a large part in determining an appropriate sentence.

3. In R v Nozuhur,[64] Gray J (with whom David J agreed) said:

   [64] [2013] SASCFC 81.

   Possession of a firearm is a privilege and a serious responsibility. The overriding policy of the Firearms Act 1977(SA) is to protect the public from the unsafe or criminal use of firearms. As I observed in Pollitt:

   ... Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:

   Designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.

   [Footnote omitted.]

   Relevant amendments were made to the Firearms Act in 2008. In the second reading speech the Minister said:

   In South Australia, the majority of violent criminal behaviour with firearms does not involve legitimate firearms owners, nor legitimately owned, secured and registered firearms. Whilst there is some conjecture as to the quantity of illegal firearms circulating in the community, there is no doubt that there is a market for unrecorded and essentially untraceable firearms to be used for a criminal purpose. It is the nature of this enterprise that there exists difficulties in police being able to prevent this trade and the subsequent crime arising from it.

   General deterrence is of importance in sentencing for offences of this kind. The community should not be complacent about the dangers of firearms and the damage that can be caused by them.[65]

   [65]   At [23]-[24]. (Footnotes omitted)

4. In R v Daniele,[66] Gray J (with whom Kourakis CJ and Peek J agreed) said:

   The need for general deterrence is particularly apparent in sentencing for offences of this kind. The community should not be complacent about the dangers of firearms and the damage that can be caused by them.[67]

   [66]   [2014] SASCFC 22.

   [67] At [26].

5. The appellant refers to two previous decisions of this Court in which much lower sentences were imposed for serious offending involving firearms. In R v Violi,[68] the defendant was the owner of premises in the shed of which he permitted a friend to store firearms. The police found 22 unlicensed firearms in the shed. The defendant pleaded guilty to possession without a licence of the 22 firearms. The sentencing judge adopted a starting point of imprisonment for three years and four months, reduced to three years on account of his late guilty plea. This Court held that the sentence was not manifestly excessive.

   [68] [2015] SASCFC 2.

6. In R v Cullen,[69] the defendant sourced a firearm for a person who said he was concerned about threats from individuals associated with the drug scene. The defendant pleaded guilty to possession of an unlicensed firearm and supply of a firearm without taking reasonable steps to satisfy himself that the person acquiring the firearm held a permit. The sentencing judge adopted a starting point of imprisonment for five years eight months, reduced to four years on account of his guilty pleas. This Court held that the sentence was not manifestly excessive.

   [69] [2015] SASCFC 44.

7. The offending in Violi and Cullen was not of the same level of seriousness as in the present matter. In Violi, the defendant was not the principal offender in relation to the offence of possession without a licence and there were no trafficking offences. In Cullen, there was only a single firearm the subject of single supply and possession offences.

8. The need for general deterrence requires the imposition of a very substantial sentence of imprisonment upon the appellant.

9. On the other hand, the offending itself, while extremely serious, involved a single incursion into criminal behaviour. While planned and deliberate, the appellant did not seek out the acquisition or supply of firearms of his own volition but took the opportunity presented by Y in relation to his father’s firearm collection. The fact that there were 33 firearms the subject of the theft, supply, defacing and possession charges was the result of happenstance in the sense that O happened to own 33 firearms. The position is different to there having been several incursions into crime involving multiple thefts of firearms.

10. The personal circumstances of the appellant mitigate to some extent the severity of the sentence of imprisonment required to be imposed. The appellant reached the age of 31 years without having been convicted of any offence. Before 2014, he had been a responsible citizen having been in regular albeit varying employment since leaving school in year 12, in a stable relationship with his wife since 2007, accepted responsibility for his stepdaughter and was responsible for his own children. The numerous character references tendered on his behalf demonstrate that he was of good character before 2014.

11. Before the offending in August 2014, the appellant lost his employment indirectly as a result of a work accident and was further affected by the suicide of his cousin in April 2014, leading to his abuse of methyl amphetamine.

12. Since the offending in August 2014, the appellant took very extensive steps to rehabilitate himself, including abstinence from methyl amphetamine and cannabis, obtaining regular employment again, attending Narcotics Anonymous and Marijuana Anonymous, and attending sessions with his treating psychologist. The appellant has available to him strong support from his family, friends and acquaintances. The assessment of Mr Broomhall, which was not challenged by the Director, is that the appellant was in the low risk range for risk of similar future offending behaviour.

13. It is appropriate to utilise section 18A and impose a single sentence in respect of all of the offences the subject of the appeal. In all the circumstances, an appropriate starting point is a sentence of imprisonment for 12 years.

14. Like the Judge I would apply discounts totalling 50% to the starting point. This results in a sentence of imprisonment for six years. Given the circumstances of the offending and the appellant’s rehabilitation since that time, I would fix a non-parole period of three years and four months.

15. Given the extreme seriousness of the offending, there is no good reason to suspend the sentence of imprisonment.

    Conclusion

16. I would grant permission to appeal, allow the appeal and set aside the sentence imposed by the Judge.

17. I would utilise section 18A and sentence the appellant to imprisonment for six years, with a non-parole period of three years and four months, both the head sentence and non-parole period to be treated as having commenced on 15 April 2015.