R v Simpson
[2016] SASCFC 83
•8 August 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SIMPSON
[2016] SASCFC 83
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Doyle)
8 August 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OTHER PARTICULAR CASES
Appeal against sentence. The appellant committed 25 offences on two occasions, 19 September 2013 and 6 March 2015. The appellant pleaded guilty to all 25 offences. The appellant was sentenced to a total period of imprisonment of nine years and eight months with a non-parole period of five years, backdated to commence on 22 June 2015 when the appellant was last taken into custody. The Judge’s sentencing remarks are ambiguous as to whether the Judge imposed 25 separate sentences or utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed two sentences, being one sentence for the 19 September 2013 offences and one sentence for the 6 March 2015 offences or utilised section 18A to impose the one penalty for all 25 offences.
The appellant contends (in appeal ground 1) that the Judge failed to impose a separate sentence for a serious firearm offence committed on 6 March 2015 in accordance with the requirements of section 20AAC of the Criminal Law (Sentencing) Act 1988 (SA). The appellant further contends (in appeal grounds 2 and 3) that sentences for eight of the offences committed on 19 September 2013 and four of the offences committed on 6 March 2015 were manifestly excessive and that both the total period of imprisonment of nine years and eight months and the non-parole period of five years are manifestly excessive.
Held per the Court (allowing the appeal):
1. Observations on the differences between separate sentences for offences and a single section 18A sentence when one or more offences are serious firearm offences (at [20]-[21], [47]-[53]).
2. On any analysis of the sentencing structure adopted by the Judge, the sentencing exercise miscarried in a number of respects. Further, the mandatory requirements of section 20AAC were not complied with. The appeal is allowed and the District Court sentencing orders are set aside (at [55]-[56]).
3. Section 20AAC(1)(d) precludes the utilisation of section 18A to impose a single penalty for both serious firearm offences and non-serious firearm offences. It does not preclude the use of section 18A to impose a single penalty for multiple serious firearm offences and a different single penalty for multiple non-serious firearm offences (at [59]-[65]).
4. The appellant is resentenced by this Court as follows:
4.1. For counts 5, 8 and 11 on the Information dated 19 September 2013, using section 18A to impose the one penalty, imprisonment for 10 months and 15 days backdated to commence 22 June 2015.
4.2. For count 3 on the Information dated 21 May 2014, imprisonment for one month to be served concurrently with the sentence in 4.1.
4.3. For counts 3, 4, 6, 7 and 9 on the Information dated 19 September 2013, count 3 on the Complaint dated 15 October 2013 and count 4 on the Information dated 21 May 2014, in each case a conviction is recorded with no further penalty.
4.4. For counts 1 and 2 on the Information dated 21 May 2014, using section 18A to impose the one penalty, imprisonment for two years, five months and three weeks to be served cumulatively on and to commence on the expiration of the sentence in 4.1.
4.5. For counts 2, 10 and 12 on the Information dated 19 September 2013 and counts 1 and 2 on the Complaint dated 15 October 2013, using section 18A to impose the one penalty, imprisonment for one year and three weeks. Of this period three months and three weeks is to be served concurrently with the sentence in 4.1 and nine months is to be served cumulatively on and to commence at the expiration of the sentence in 4.4.
4.6. For counts 5, 6 and 13 on the Information dated 12 June 2015, using section 18A to impose the one penalty, imprisonment for one year and five months to be served cumulatively on and to commence at the expiration of the sentence in 4.5.
4.7. For count 9 on the Information dated 12 June 2015, imprisonment for six weeks to be served concurrently with the sentence in 4.6.
4.8. For counts 7 and 8 on the Information dated 12 June 2015, in each case a conviction is recorded with no further penalty.
4.9. For count 1 on the Information dated 12 June 2015, imprisonment for two years and four months. This sentence is to be served, as to six months, concurrently with the sentence imposed in 4.6 and otherwise, that is, as to one year and 10 months, cumulatively on and to commence at the expiration of the sentence in 4.6.
5. A non-parole period of three years and eight months is fixed and backdated to commence on 22 June 2015 (at [80]).
Once the orders for accumulation and concurrency are given effect to, the total period of imprisonment to be served with respect to all 25 offences is in the order of seven years, four months and six days with a non-parole period of three years and eight months, both backdated to commence on 22 June 2015.
Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, s 19B, s 20AA, s 20AAB, s 20AAC; Firearms Act 1977 (SA) s 11, s 21B, s 23, s 30; Motor Vehicle Act 1959 (SA) s 59; Explosive (Fireworks) Regulations 2001 reg 6, reg 9; Firearms Regulations 2008 (SA) reg 38, reg 41, reg 61; Bail Act 1985 (SA) s 11, s 17; Summary Offences Act 1953 (SA) s 21C, s 21F; Controlled Substances Act 1984 (SA) s 18, s 32, s 33I, referred to.
R v Deng [2015] SASCFC 176; R v Kohlhagen [2016] SASCFC 19; R v Kartinyeri [2016] SASCFC 20; R v Siviour [2016] SASCFC 51; R v Palmer [2016] SASCFC 34; Griffiths v The Queen [1977] HCA 44, (1977) 137 CLR 293; R v Olbrich [1999] HCA 54, (1999) 199 CLR 270; R v Tyler [2016] SASCFC 7, (2016) 124 SASR 412; R v Stavreas [2015] SASCFC 68, considered.
R v SIMPSON
[2016] SASCFC 83Court of Criminal Appeal: Blue, Nicholson and Doyle JJ
THE COURT
Introduction
This is an appeal against sentence.[1]
[1] A Judge of this Court, after hearing a permission application, granted permission to appeal on the basis of appeal ground 1 and referred grounds 2 and 3 to the Court of Criminal Appeal for the application for permission to be heard at the same time as the hearing of the appeal.
Ryan Lee Simpson (the appellant) committed 25 offences on two separate occasions. The offences were committed on 19 September 2013 and 6 March 2015. The appellant pleaded guilty to all offences at times that gave rise to an entitlement with respect to each offence to a discount for the plea of guilty of up to 30 per cent of any prison term imposed.[2]
[2] Section 10C of the Criminal Law (Sentencing) Act 1988.
The appellant was sentenced by a District Court Judge to imprisonment for a total period of nine years and eight months with a non-parole period of five years, backdated to commence on 22 June 2015 when the appellant was last taken into custody.
There is ambiguity on the face of the Judge’s sentencing remarks whether the Judge imposed 25 separate sentences (one for each offence) or utilised section 18A of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) to impose two sentences (one for the 18 offences committed on 19 September 2013 and one for the seven offences committed on 6 March 2015) or to impose a single sentence (for all 25 offences). The sentencing task was complicated by section 20AAC(1)(d) of the Sentencing Act which limits the extent to which section 18A can be utilised when a defendant is being sentenced for both serious firearm offences (the appellant committed seven such offences) and other offences (of which the appellant committed 18).
The ambiguity as to the structure of the sentence or sentences imposed is raised directly by the first ground of appeal, by which the appellant contends that the Judge utilised section 18A impermissibly to impose a single sentence for a combination of serious firearm offences and other offences. This ambiguity is also raised indirectly by the second and third grounds of appeal by which the appellant contends respectively that some of the individual sentences imposed were manifestly excessive (if the Judge imposed individual sentences) or alternatively the single section 18A sentence was manifestly excessive (if the Judge imposed a single sentence under section 18A).
This appeal raises the important question of the differences between imposing separate sentences for individual offences and imposing a single sentence under section 18A for multiple offences. It also raises the interaction between section 18A and section 20AAC(1)(d) of the Sentencing Act.
The terms of the appellant’s three grounds of appeal are as follows.
1.The Learned Sentencing Judge erred in failing to impose a separate sentence for the serious firearm offence committed on 6 March 2015, contrary to Section 20AAC(1)(d) of the Criminal Law (Sentencing) Act 1988.
2.The Learned Sentencing Judge erred in imposing manifestly excessive sentences upon individual offences.
Individual Sentences – Offences of 19 September 2013
2.1 The following sentences imposed are manifestly excessive:
2.1.1Trafficking in a controlled drug (imprisonment for 5 years, reduced to 3 ½ years)
2.1.2Possess controlled drug for supply (imprisonment for 2 ½ years, reduced to 21 months)
2.1.3Possess prohibited weapon (imprisonment for 9 months, reduced to 6 months)
2.1.4Possess dangerous article (imprisonment for 9 months, reduced to 6 months)
2.1.5Drive disqualified (imprisonment for 9 months, reduced to 6 months)
2.1.6Possess ammunition (imprisonment for 6 months, reduced to 4 months)
2.1.7Possess dangerous article (imprisonment for 6 months, reduced to 4 months)
2.1.8Failure to answer questions in relation to a firearm (6 months imprisonment, reduced to 4 months)
Individual Sentences – Offences of 6 March 2015
2.2 The following sentences imposed are manifestly excessive:
2.2.1Trafficking in a controlled drug (imprisonment for 5 years, reduced to 3 ½ years)
2.2.2Possess unregistered firearm (imprisonment for 15 months, reduced to 10 months)
2.2.3Possess prohibited weapon (imprisonment for 6 months, reduced to 4 months)
2.2.4Failure to answer questions in relation to a firearm (6 months imprisonment, reduced to 4 months)
3.The sentence is manifestly excessive.
Particulars
3.1 The total head sentence of 9 years and 8 months (after an overall discount of 30%) is manifestly excessive;
3.2 That having regard to all the circumstances, including the personal circumstances of the offender, the non-parole period is manifestly excessive and fails to reflect the applicant’s prospects for rehabilitation and likelihood of responding to parole.
The 25 offences and the sentences either purportedly imposed or notionally identified (described by the Judge as “notional sentences”) with respect to each offence are set out in the following table. The table is based on tables supplied by the respondent with the agreement of the appellant. The contents are self-explanatory. However, for ease of reference during these reasons, the first column has been added to give each count a unique “offence number”.
Offences committed on 19 September 2013
Information dated 19 September 2013
OFFENCE NUMBER
COUNT
CHARGE
MAXIMUM PENALTY
STARTING POINT
DISCOUNT
(NOTIONAL) SENTENCE
1
Two
Driving whilst disqualified; contrary to s 91 of the Motor Vehicles Act 1959 (“MVA”)
This being a second such offence, imprisonment for 2 years
9 months
33%[3]
6 months
2
Three
Possessing a firework; contrary to regulation 6(1)(b) of the Explosive (Fireworks) Regulations 2001 (“EFR”)
$5,000
Conviction without penalty (“CWP”)
3
Four
Using a firework without supervision; contrary to regulation 9(1)(b) of the EFR
$5,000
CWP
4
Five*
Possessing a firearm without a licence being a 12 gauge class B shotgun; contrary to s 11(1) of the Firearms Act 1977 (“FA”)[4]
$20,000 or imprisonment for 4 years
18 months
33%
12 months
5
Six
Failing to properly secure a class B Firearm; contrary to regulations 38(1) and 61 of the Firearms Regulations 2008 (“FR”)
$2,500
CWP
6
Seven
Failing to store ammunition separately from firearm; contrary to regulations 41(1) and 61 of the FR
$2,500
CWP
7
Eight*
Possessing ammunition; contrary to s 21(B)(1) of the FA
$10,000 or imprisonment for 2 years
6 months
33%
4 months
8
Nine
Breach of bail; contrary to s 17 of the Bail Act 1985 (“BA”)
$10,000 or imprisonment for 2 years
[1.5 months][5]
33%
1 month
9
Ten
Possessing a dangerous article namely a taser; contrary to s 21C(2)(b) of the Summary Offences Act 1953 (“SOA”)
$7,500 or imprisonment for 18 months
[6 months]
33%
4 months
10
Eleven*
Failing to truly answer; contrary to s 30(3) of the FA
$10,000 or imprisonment for 2 years
[6 months]
33%
4 months
11
Twelve
Carrying an offensive weapon namely a folding knife; contrary to s 21C(1) of the SOA
$2,500 or imprisonment for 6 months
[1.5 months]
33%
1 month
[3] The Judge described the discount as being 30 per cent but it is in fact 33.3 per cent for this and the other offences with respect to which the Judge described the discount as 30 per cent with two exceptions.
[4] The Firearms Act offences with which the appellant was charged all arose pursuant to the Firearms Act 1977. This Act will be replaced by the Firearms Act 2015 which is yet to come into effect.
[5] The figures in square brackets are not taken from the sentencing remarks. In a few cases the Judge nominated only a final notional sentence after allowing a "30 per cent" discount. The figures in square brackets are inferred starting points assuming for consistency that the Judge deducted 1/3 from the starting point.
Complaint dated 15 October 2013
OFFENCE NUMBER
COUNT
CHARGE
MAXIMUM PENALTY
STARTING POINT
DISCOUNT
(NOTIONAL) SENTENCE
12
One
Possessing a prohibited weapon namely a knuckle duster, pistol gripped crossbow; contrary to s21F(1) of the SOA
$20,000 or imprisonment for 2 years
9 months
33%
6 months
13
Two
Possessing a dangerous article namely a can of protective spray; contrary to s21C(2)(b) of the SOA
$7,500 or imprisonment for 18 months
9 months
33%
6 months
14
Three
Possessing a firework; contrary to regulation 6(1)(b) of the EFR
$5,000
CWP
Information dated 21 May 2014
OFFENCE NUMBER
COUNT
CHARGE
MAXIMUM PENALTY
STARTING POINT
DISCOUNT
(NOTIONAL) SENTENCE
15
One
Trafficking methylamphetamine; contrary to s 32(3) of the Controlled Substances Act 1984 (“CSA”)
$50,000 or imprisonment for 10 years or both
5 years
33%
3 years
6 months16
Two
Possessing MDMA with intent to supply; contrary to s 33I(1)(b) of the CSA
$50,000 or imprisonment for 10 years or both
2 years
6 months30%
21 months
17
Three*
Possession of a class A firearm without a licence namely a paintball marker gun; contrary to s 11(1) of the FA
$20,000 or imprisonment for 4 years
3 months
33%
2 months
18
Four
Possessing a prescription drug contrary to s 18(3) of the CSA
$10,000 or imprisonment for 2 years
CWP
Offences committed on 6 March 2015
Information dated 12 June 2015
OFFENCE NUMBER
COUNT
CHARGE
MAXIMUM PENALTY
STARTING POINT
DISCOUNT
(NOTIONAL) SENTENCE
19
One
Trafficking in a controlled drug namely MDMA; contrary to s 32(3) of the CSA
$50,000 or imprisonment for 10 years or both
5 years
33%
3 years
6 months20
Five*
Possession of a firearm without a licence namely a class H firearm self-loading handgun; contrary to s 11(1) of the FA
$35,000 or imprisonment for 7 years
2 years
30%
17 months
21
Six*
Possessing an unregistered firearm contrary; to s 23(1) FA
$10,000 or imprisonment for 2 years
15 months
33%
10 months
22
Seven
Failing to properly secure a firearm; contrary to regulations 38(2) and 61 of the FR
$2,500
CWP
23
Eight
Failing to store ammunition separately from firearms; contrary to regulations 41(1) and 61 of the FR
$2,500
CWP
24
Nine
Possessing a prohibited weapon namely a spray canister; contrary to s 21F(1) of the SOA
$20,000 or imprisonment for 2 years
6 months
33%
4 months
25
Thirteen*
Failing to truly answer questions in relation to the firearm; contrary to s 30(3) of the FA
$10,000 or imprisonment for 2 years
6 months
33%
4 months
*The appellant was on bail at the time he committed the 19 September 2013 and 6 March 2015 offences. It was a bail condition that he not possess a firearm, ammunition or any part of a firearm. As a result, the provisions of s 20AAC(1) of the Criminal Law (Sentencing) Act 1988 were enlivened with respect to the offences numbered 4, 7, 10, 17, 20, 21 and 25. The mandatory sentencing approach which the Judge was, thereby, obliged to observe is discussed further below.
The Judge said that the notional sentences for all of the offending on 19 September 2013 “if ... added together would notionally total eight years and seven months”. His Honour indicated that he “would make all these notional sentences of imprisonment partially concurrent so as to reflect a total head sentence of six years for [the 19 September 2013] offending”.
The Judge adopted the same approach with respect to the 6 March 2015 offences. His Honour reduced the notional total of six years and five months to four years to reflect a need for some partial concurrency and then reduced that total by a further four months on account of time spent whilst on remand, in custody and on home detention bail.
The Judge ordered that the three years and eight months “sentence” for the 6 March 2015 offending was to be cumulative with the six year “sentence” for the 19 September 2013 offending giving rise to a total period of nine years and eight months. As earlier indicated, his Honour fixed a non-parole period of five years. His Honour backdated the commencement of the total period of imprisonment and the non-parole period to 22 June 2015, being the date the appellant was last taken into custody. Later in these reasons we consider in more detail his Honour’s approach to structuring or formulating this final sentencing result.
It is to be observed at this stage that, whilst not raised by the grounds of appeal, the Judge erred in his approach to the applicable discount for guilty pleas with respect to a number of the offences and erred in his approach to allowing credit for time spent in custody and on home detention bail whilst on remand.
As far as the discount issue is concerned, for most of the offences where his Honour nominated a starting point and an end point after allowing for the discount, his Honour in fact allowed a one third or approximately 33 per cent discount.[6] This is contrary to the express provisions of the legislative regime which, on the facts of this case, permitted a maximum discount of 30 per cent.
[6] See offence number 1, 4, 7, 12, 13, 17, 21, 24 and 25. We have also inferred that his Honour made the same mathematical calculation for offences number 8, 9, 10 and 11.
That such an approach would provoke a Crown appeal is unlikely and a defence appeal on this basis is inconceivable. Nevertheless, it is an error to allow a discount greater than that permitted by the relevant legislation[7] and sentencing judges should take care to avoid making the error. Even if the figure arrived at is only a “notional” sentence by way of explanation of a final sentence imposed, there still will be a process error in that the reasoning which has resulted in the final sentence will have contained an impermissible step.
[7] R v Deng [2015] SASCFC 176 at [47], [51]-[53] (Nicholson J with whose reasons Kelly J agreed), R v Kohlhagen [2016] SASCFC 19 at [46] fn 10 (Nicholson J with whose reasons Peek J agreed), R v Kartinyeri [2016] SASCFC 20 at [16] fn 14 (Nicholson J with whose reasons Kourakis CJ and Kelly J agreed), R v Siviour [2016] SASCFC 51 at [41] fn 9 (Doyle J with whose reasons Vanstone and Kelly JJ agreed), R v Palmer [2016] SASCFC 34 at [19] (Stanley J with whose reasons Kourakis CJ and Doyle J agreed).
As far as the time served issue is concerned, the appellant spent 20 days in custody from 20 September 2013 to 10 October 2013 and 14 months on home detention bail whilst on remand with respect to the September 2013 offending. The appellant spent 13 days in custody from 10 March 2015 to 23 March 2015 whilst on remand with respect to both the September 2013 and March 2015 offending. The Judge made a global allowance of four months with respect to these three periods. However, his Honour adjusted only the total of four years for the March 2015 offending.[8] His Honour did this notwithstanding that the periods of 20 days in custody and 14 months on home detention bail were served whilst on remand only for the September 2013 offending and had nothing to do with the March 2015 offending which had not by then occurred. The approach adopted is a further manifestation of a more general problem with his Honour’s approach to the structuring of the sentence, discussed in detail below.
[8] Reduced from six years and five months by way of a global allowance for partial concurrency.
Circumstances of the offences
At about 4am on 19 September 2013, police pulled over and searched the vehicle the appellant was driving. As a consequence, the appellant was charged with the offences recorded on the information dated 19 September 2013, being offences numbered 1 to 11 in the table, namely: driving whilst disqualified; possession of a class B firearm without a licence; failing properly to secure that firearm; unlawful possession of ammunition; failing to store ammunition for that firearm separately from the firearm; failing to truly answer questions with respect to that firearm; breach of bail; unlawful possession of a dangerous article, namely a taser; carrying an offensive weapon, namely a folding knife; unlawful possession of a firework; and using a firework without supervision.
The class B firearm in question was a 12 gauge under-over shotgun which was not loaded. Each of the offences relating to ammunition concerned two shells suitable for use in the shotgun. The offence of failing to truly answer related to the ownership of, and other matters concerning, the shotgun. The breach of bail came about because the appellant was on bail at the time and it was a condition of that bail that he not possess a firearm, ammunition or any part of a firearm.[9]
[9] Section 11(1)(a) of the Bail Act 1985.
As a consequence of the breach of bail, and by virtue of the definition of “serious firearm offence” in section 20AA(1)(e) of the Sentencing Act, offences numbered 4, 7 and 10 each qualified as a serious firearm offence. They are to be characterised as such because each one constitutes an offence against the Firearms Act 1977, committed while the appellant was on bail, being bail that was subject to the condition imposed by section 11(1)(a) of the Bail Act 1985. So much is common ground between the parties.
As a consequence of the convictions for the serious firearms offences and by virtue of section 20AAB of the Sentencing Act, the appellant is to be characterised as a “serious firearm offender”. Section 20AAB(1) provides:
(1)A person will, by force of this section, be taken to be a serious firearm offender if he or she is convicted of a serious firearm offence (whether the offence was committed as an adult or as a youth).
As a consequence of the appellant being a serious firearm offender, the provisions of section 20AAC of the Sentencing Act had to be observed when sentencing him for the three serious firearm offences (offences numbered 4, 7 and 10). Section 20AAC is in the following terms.
(1)Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):
(a) if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;
(b) the sentence of imprisonment cannot be suspended;
(c) section 18 does not apply in respect of the sentencing of the person;
(d) if—
(i)the person is also being sentenced in respect of other offences; and
(ii)1 or more of those offences are not serious firearm offences,
section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).
(2)A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if he or she satisfies the court, by evidence given on oath, that—
(a) his or her personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing (as set out in section 10(2)(e)); and
(b) it is, in all the circumstances, appropriate to suspend the sentence.
(3)If subsection (2) applies, section 10(2)(e) is taken not to apply in relation to the sentencing.
Section 20AAC requires, inter alia, that serious firearm offences be sentenced separately from any other offence that does not qualify as a serious firearm offence and, to this extent, section 18A of the Sentencing Act cannot be employed in such circumstances. Further, a sentence of imprisonment (where available) must be imposed and, except in the limited circumstances set out in the section, any such prison sentence cannot be suspended.
Returning to the narrative concerning the circumstances of the offending, at about 8.40am on the same morning of 19 September 2013, police attended and searched the appellant’s home. As a consequence, the appellant was charged with the offences numbered 12 to 18 in the table: trafficking in a controlled drug (methylamphetamine); possession of MDMA (ecstasy) with intent to supply; possession of a class A firearm without a licence, namely a paintball marker gun; possession of a prohibited weapon, namely a knuckleduster and a pistol gripped crossbow; possession of a dangerous article, namely a can of protective spray; unlawful possession of a firework; and unlawful possession of prescription drugs.
The trafficking count concerned 3.99 grams of powder containing 2.77 grams of methylamphetamine. Defence counsel explained to the Judge the factual background to this offending which was not challenged.
The appellant had suffered two significant injuries. In January 2012, he suffered a shoulder injury requiring surgery. However, the public hospital system regarded it as elective surgery. The appellant had to wait many months. He tired of waiting and paid for the surgery from his own savings. The surgery was not successful and the appellant experienced a painful convalescence and remained unable to work. As a consequence, he relapsed into his previous “on and off” recreational usage of methylamphetamine.
In January 2013, the appellant was still unable to work, was still in pain and was still essentially idle. He suffered a motorbike accident which resulted in significant lower leg injuries requiring an extensive period of convalescence and resulting in a lack of mobility. His savings had been exhausted but his methylamphetamine use increased. He became depressed and his usage developed into a daily usage by way of addiction. As a consequence, he began to sell methylamphetamine to the small group of friends who visited him and kept him company. He did so solely to support his own dependency.
Counsel submitted that, insofar as the trafficking offence on 19 September 2013 is concerned, the appellant should be regarded as a “lower level dealer” and that his offending was aimed only at covering his costs and was directed to a small number of buyers. Sales were made to those who sought out the appellant; he did not go out and look to make sales. The evidence before the Court suggested that the value of the seized methylamphetamine was somewhere between $1,600 and $4,000. This was the appellant’s first incursion into drug offending.
The offence of possessing ecstasy with intent to supply involved 40 tablets which on the evidence were valued at between $800 and $1,200. It was accepted that the appellant intended the ecstasy to be for his own use or to share with friends with no commercial element being involved.
The offence of possessing a class A firearm related to a paintball marker gun. Such a device is used to shoot paintballs at other people as part of a recreational activity. Apparently, people enjoy this. Such a gun satisfies the definition of a class A firearm under the Firearms Act 1977. The appellant’s paintball marker gun was inoperable at the time it was seized in that it lacked the gas canister necessary to enable it to fire paintballs. Nevertheless, this offence (offence number 17 in the table) also met the definition of a serious firearm offence and had to be dealt with in accordance with the requirements of section 20AAC.
The prescription drugs found in the appellant’s possession included steroids, anti-anxiety medication and Viagra. There were a substantial number of tablets; many hundreds.
Having pleaded guilty to the 19 September 2013 offences, the appellant came before the sentencing Judge in September 2014. An application was made, pursuant to section 19B of the Sentencing Act, for a lengthy period on remand[10] prior to sentencing, in order to provide a sufficient period within which the appellant might demonstrate substantial steps towards rehabilitation. The matter was adjourned to a date in December 2014 at which hearing the section 19B application was allowed. The appellant managed to abstain from drug taking for a period during the remand and also undertook some psychological therapy such that there were positive signs with respect to rehabilitation. However, on 6 March 2015, the police conducted a second search of his premises as a result of which they charged him with further offences, being offences numbered 19 to 25 in the table.
[10] At common law, known as a “Griffiths remand”: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293. Such remands are now regulated by section 19B of the Sentencing Act.
The appellant was found in possession of 70 tablets containing MDMA (ecstasy) and this time was charged with trafficking in a controlled drug. The same factual background was put forward by the appellant’s counsel and, again, unchallenged. He was on a public waiting list for further surgery and had started to use drugs again. A significant amount of the ecstasy was for his own use but he admitted that he would have sold some to recoup costs in order to buy more ecstasy for his own use.
The 6 March 2015 firearm offences, being offences numbered 20 to 23 and 25, all concerned the one self-loading pistol, which was not licensed or registered to the appellant. The ammunition in question comprised seven shells suitable for use with the pistol. The pistol, which was not loaded, was found in a wardrobe of the appellant’s bedroom and the ammunition was found in a box in his shed. Whilst the ammunition was stored separately, it was not in a locked container as required by, and thus gave rise to an offence under, regulation 41(1) of the Firearm Regulations 2008.
The appellant’s counsel submitted that the appellant bought the pistol for $100 thinking it was a replica and intending to display it on his wall. This explanation was not accepted by the prosecution and the appellant did not give evidence in support of it. This explanation is inherently improbable. The pistol was not mounted on a wall (a relatively simple procedure) but kept in a cupboard, the appellant had ammunition and took the prudent step of storing the ammunition separately (albeit not in a locked container) and the photographs of the pistol show what appears to be a working firearm. The explanation has not been established to our satisfaction on a balance of probabilities. As a consequence, we are left with no understanding why the appellant was in possession of the pistol. Ultimately, the appellant fell to be sentenced on the basis that he was in possession of an unlicensed and unregistered pistol and separate ammunition not properly secured without regard to his particular purpose in having possession of the pistol.
The offences numbered 20, 21 and 25 also qualified as serious firearm offences. In all, the appellant committed seven serious firearm offences, which had to be dealt with in accordance with the requirements of section 20AAC. The Judge was alive to this, in part. When sentencing, his Honour said:
[the] March 2015 offending renders [the appellant] what is known as a serious firearm offender. What that means is that the penalty for [the appellant’s] March 2015 firearms offending must be a term of unsuspended imprisonment unless the exceptional circumstances contemplated by s.20AAC(2) of the Criminal Law Consolidation Act apply which in [the appellant’s] case the court determines do not apply.
All of the September 2013 and the March 2015 offences were committed whilst the appellant was on bail, an aggravating feature with respect to each offence. Indeed, the March 2015 offences of trafficking in ecstasy (offence number 19), possessing a class H firearm without a licence (offence number 20) and the related firearm offences were all committed whilst the appellant was on bail charged with having committed similar offending.
The appellant’s personal circumstances
The appellant was 26 at the time of committing the September 2013 offences. He had experienced a dreadful and deprived upbringing. His mother was a drug addict and he was taken from her at the age of 5 by his grandparents. When his grandparents came to believe that the appellant’s mother was no longer using drugs, they returned the appellant to her care. However, at about this time, his mother had started a relationship with the appellant’s step-father. The appellant moved, with his mother and step-father, from Queensland to Adelaide when he was about ten years of age and his mother resumed taking drugs. The relationship with his step-father, which had always been poor, deteriorated further. His step-father was a drug dealer and an alcoholic and was extremely violent towards both the appellant and the appellant’s mother. The appellant was, at times, beaten with ball-bearings in a sock on a leather rope and, on occasion, was left in an unconscious state following such beatings. On one occasion his step-father held a knife to the appellant’s throat and cut his neck. The beatings began when the appellant was six years old and continued until he was about 15 years of age.
The appellant’s mother’s drug habit continued to worsen and when he was about 17 he moved out of home and supported himself. He managed to complete an apprenticeship as a welder in the maritime construction industry and gained employment in that field. However, he has been unemployed since about 2010 or 2011. We have already summarised the two accidents and physical injuries suffered by the appellant and his more recent drug use history.
On 19 September 2013, the day the appellant was stopped by the police in his motor vehicle, his step-father had told him that he would no longer receive any support from the family. The appellant became upset and depressed. The appellant had recently experienced a home invasion by a group of persons who entered his house with knives and guns. Because of his mobility difficulties, he obtained a firearm, a knuckleduster and some protective spray. According to the appellant’s counsel, the appellant was unaware that the can of protective spray (offence number 13) was a prohibited weapon.
During the Griffiths remand, the appellant participated in a mental health care plan which involved consulting with a psychologist and obtaining counselling. The psychologist has reported that the appellant suffers from impulsive and risk-taking tendencies, anxiety, depression and some suicidal ideation. A major contributor to the appellant’s current psychological state has been his appalling upbringing, distressing childhood and lack of appropriate role models whilst growing up.
The Judge had before him a number of character references. The appellant has been described as a kind and loyal person. The view was expressed by referees that the appellant has matured since his arrest. The Judge also had before him a letter of apology addressed to the Court in which the appellant acknowledged the wrongfulness and antisocial consequences of his behaviour and informed the Court that he had stopped using illicit drugs and that he had started to attend Narcotics Anonymous meetings.
The appellant was convicted of driving whilst disqualified in March 2015 and imprisoned for three months. He was due for release on 22 June 2015 but remained in custody from that date on remand with respect to the current charges. As a result, he is entitled to have any sentence of imprisonment backdated to 22 June 2015, which is what the Judge ordered. The appellant behaved well whilst in custody, engaged in work and indicated a positive attitude towards rehabilitation.
Of some significance is the nature of the appellant’s prior criminal record. Given his appalling upbringing, including the dynamic criminogenic risk factors that beset him, the limited nature of his prior criminal record is surprising. A serious juvenile record and a serious record as a young adult would not have been unexpected. However, the first offence committed by the appellant occurred in May 2004 when he was 17 years of age; the appellant was convicted in December 2004 of failing to truly answer police questions, driving whilst disqualified and failing to wear a seatbelt, committed in May 2004, and for driving or using a motor vehicle without consent, committed in June 2004. Apart from a relatively small number of motor vehicle and driving offences, the appellant has one prior offence of unlawfully on premises (dealt with without conviction or penalty), one prior offence of damaging property (dealt with without conviction and an order for 24 hours of community service) and one prior offence of carrying an offensive weapon (for which 60 hours of community service was ordered).
Before committing the September 2013 and March 2015 offences, the most serious penalty that had been imposed was a suspended sentence of two months detention imposed by the Children’s Court in December 2004. Before being sentenced by the Judge, the most serious penalty imposed was a suspended sentence of three months imprisonment imposed in April 2014 for two counts of driving while disqualified in June 2013 and the further three months imprisonment imposed for driving while disqualified in November 2014 (ordered to be served from 23 March 2015). The appellant was ordered to serve an immediate term of imprisonment on the latter occasion no doubt largely as a result of the fact that he had previously committed a number of such offences. Once it was established that the act of driving whilst disqualified was contumacious and in knowing disregard of the disqualification, a short term of imprisonment was almost inevitable.[11]
[11] Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150.
It can be seen that the appellant does not have a particularly serious prior criminal record. Notwithstanding the number of disparate offences committed in September 2013 and March 2015, there is no suggestion that the appellant has fallen into an entrenched criminal lifestyle. He has now been sentenced to a very substantial period of imprisonment with a lengthy non-parole period for the first time. However, he is still a young man with much to be said in his favour in terms of his prospects for rehabilitation. Not the least of those matters is that notwithstanding his terrible upbringing he was able to obtain qualifications and employment as a welder in the marine construction industry. Even though his future in this field may have been prematurely cut short because of his physical incapacities, the appellant has demonstrated that he has the abilities and potential to succeed in life provided he obtains appropriate guidance and assistance.
The Judge’s approach to constructing the final sentencing outcome
The Judge was alive to the need to deal separately with the serious firearm offences, although it appears that he was not informed by counsel and otherwise did not become aware that there were seven such offences. His Honour expressly referred only to the “March 2015 firearms offending” as rendering the appellant a serious firearm offender and this is consistent with the sentencing submissions.
The Judge commenced by dealing with each of the 25 offences individually. His Honour identified a “notional” prison sentence with respect to each offence for which a sentence of imprisonment was appropriate. His Honour then allowed or purported to allow the maximum discount of 30 per cent available for the early plea in each case. The starting points (where given) and the final “notional” sentences nominated by the Judge are as set out in the table.
There is no mention by the Judge of section 18A of the Sentencing Act. Section 18A is in these terms:
18A—Sentencing for multiple offences
(1)If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
(2)However, if any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences).
(3)In this section—
prescribed designated offence has the same meaning as in section 38.
A Judge is not obliged to use section 18A, although, where available, it provides a useful procedural tool, particularly when sentencing for large numbers of offences. Further, even when using section 18A there may be occasions when, in order to properly expose the reasoning, a Judge will want to indicate “notional” starting points for component offences prior to nominating the one single penalty that is to apply pursuant to section 18A.
At first blush, it appears that section 18A was applied. However, and as earlier indicated, the Judge was alive to the need to impose a separate sentence with respect to the March 2015 serious firearm offences. Moreover, the Report of Prisoner Tried records a separate sentence for each of the 25 offences which is not usually done and is inappropriate when section 18A is utilised. As such, on an overall consideration of the Judge’s sentencing remarks and Report of Prisoner Tried, it must be concluded that the Judge did not intend to impose “the one penalty for all or some of [the 25] offences”. This is so notwithstanding that the Judge proceeded to arrive, in the manner earlier described, at a single period of imprisonment with respect to the September 2013 offences and a single period of imprisonment with respect to the March 2015 offences, each of which is described in the sentencing remarks as a “total head sentence” and an “overall head sentence” respectively and notwithstanding that, in the Report of Prisoner Tried, signed by the Judge, the total period of imprisonment of nine years and eight months, ultimately ordered, is described as a “Head Sentence”.
Had the Judge employed section 18A to impose one penalty with respect to the September 2013 offending and one penalty with respect to the March 2015 offending, his Honour would have erred by failing to comply with the requirements of section 20AAC(1)(d) of the Sentencing Act. What the Judge has done is to nominate a sentence with respect to each offence. This is consistent with the way in which the Report as to Prisoner Tried has been constructed. In the Report as to Prisoner Tried, every offence has been recorded and the “notional” head sentence nominated by the Judge ascribed to it.
The Judge proceeded to conflate the approach of sentencing for each offence individually with the section 18A approach. Whilst his Honour started off by sentencing and apparently intended to sentence for each offence individually, he then, by his approach to concurrency and accumulation on the one hand and allowances to be made for time spent in custody and on home detention bail on the other hand, transmogrified the sentencing process into a (partial) section 18A process.
The Judge arrived at two interim totals, as recorded on the Report of Prisoner Tried, which his Honour ordered to be served cumulatively leading to a “head sentence” of nine years and eight months commencing on 22 June 2015. However, his Honour did so without allocating any of the concurrency to particular offences and without allocating any of the credit for time in custody and on home detention bail to particular offences. As a consequence, none of the individual sentences are accurately identified or recorded. Some, or all, of the individual “notional” sentences have been adjusted in an unidentifiable way by the unarticulated allowances for concurrency and credit for time in custody and on home detention bail. This is an appropriate approach when section 18A is used to impose one penalty for all offences or a group of offences but it is not appropriate when an individual sentence is imposed for each of a series of offences.
On the Judge’s approach, it is not possible to determine when any of the individual sentences (apart from the first) commences and finishes. It is not possible to know the precise length of each sentence. By approaching the matter in this way, the Judge has arrived at a total period of imprisonment but not a “head sentence”. If the latter had been intended, it would have to have been done pursuant to section 18A which, because of section 20AAC, was not permissible. By way of further explanation of the problem, the remarks of the Chief Justice in R v Tyler[12] are instructive.
It is common to refer to the total period of imprisonment to be served on multiple sentences of imprisonment as the “head sentence”. That terminology is a convenient short hand for the purposes of fixing a single non‑parole period pursuant to s 32 of the Criminal Law Sentencing Act 1988 (CLSA). It is not, however, a sentence in itself, either at common law or by statute. It is merely the total period of imprisonment calculated arithmetically which is to be served as a result of the multiple individual sentences imposed. A sentenced prisoner may appeal one or more of those sentences and not the others, or all of the sentences. The grounds of appeal may allege that a particular sentence, taken alone, is manifestly excessive, or that the “head sentence” is manifestly excessive because of an error in the way the sentences were ordered to be served cumulatively, in part or in whole, or because of some other failure to apply the principle of totality.
The latter ground will be made out only if the cumulative total period of imprisonment of all of the sentences imposed is manifestly in excess of the punishment warranted by the offending as a whole. Individual sentences may be reduced or the degree of concurrency increased to correct that error. Absent an error in any of the individual sentences, there will be no reduction in the total period of imprisonment to be served unless that total is manifestly excessive irrespective of any difference of view, within the acceptable sentencing range, as to how that total should be allocated to the individual offences.
If the former ground is made good the particular sentence found to have been erroneously imposed must be reduced even if the Court of Criminal Appeal takes the view that the total period of imprisonment was not manifestly excessive. To do otherwise would be to ignore the statutory direction in s 353(4) of the CLCA to set aside a sentence which is shown to be manifestly excessive and to impose instead the sentence which should have been imposed. That statutory directive could not be followed, and the total period of imprisonment imposed by the Judge maintained, unless the sentences imposed on the convictions for the other offences, were, in effect, increased. That course is precluded by s 353(5) of the CLCA. On setting aside the manifestly excessive sentence and imposing a lesser one, the Court of Criminal Appeal must fix a new non-parole period. The fixing of a new non-parole period is not, in any real sense, an interference with the other sentences. The non‑parole period is a statutory sentencing order attaching to all of the convictions on which the sentences to which it applies are fixed.
In some cases, the consequence of reducing the manifestly excessive sentence may be that the total period of imprisonment is less than that which the entirety of the offending warrants because, for example, the sentencing judge reduced the other sentences to avoid a crushing overall result. That risk can largely be avoided by the Director utilising s 353(2) of the CLCA when, as is usually the case, an offender appeals against all of the sentences imposed. If the appellant does not then the prospect of an unjustly favourable reduction, by reason of the offender’s selective decision to appeal only the single manifestly excessive sentence, may in itself warrant a grant of permission to appeal to the Director. There may be some cases in which neither of the options I have mentioned is available. If a remedy be required for those cases it is a matter for Parliament.
The position with respect to individual multiple sentences imposed on a series of convictions may be contrasted with the fixing of a single sentence pursuant to s 18A of the CLSA. An error in the notional sentence assigned to one of a series of offences in the process of fixing a single sentence for the purposes of that provision will vitiate the single sentence imposed on the convictions for all of the offences. However, precisely because there is a single statutory sentence, the appeal may still be dismissed if the Court of Criminal Appeal on resentencing takes the view that the single sentence imposed by the judge was rightly imposed on all of the convictions encompassed by that order.
[12] R v Tyler [2016] SASCFC 7; (2016) 124 SASR 412 at [44]-[48] (Kourakis CJ with whose reasons Blue and Nicholson JJ agreed).
Disposition of the appeal
Appeal ground 1, whilst restricted by its terms to only one of the serious firearm offences committed on 6 March 2015,[13] is equally applicable to all of the seven serious firearm offences identified in the table. For the reasons given earlier, this ground is made out.
[13] In the appellant’s written outline of argument, the complaint is directed to count 5, possession of a class H firearm (self-loading handgun) without a licence (offence number 20).
A separate notional sentence for each of the seven offences has been identified. However, the global application of partial concurrency without articulating the extent to which each notional sentence has been affected thereby, so as to result in a total “head sentence” for each of the September 2013 and March 2015 tranches of offences, and a global application of the allowance for time served, has resulted in a situation where the individual serious firearm offences sentences actually imposed cannot be identified. Rather, the final result arrived at is consistent with, and only capable of being achieved by, an application of section 18A contrary to section 20AAC(1)(d).[14]
[14] Cf R v Stavreas [2015] SASCFC 68.
As a consequence, the whole of the sentencing exercise has miscarried and should be set aside and the appellant sentenced afresh. During argument on appeal, this was conceded by the respondent.
Since a resentencing is required in any event, it is not necessary to address grounds 2 and 3 other than to say that we grant permission to appeal on these grounds.
Resentence
As far as the seven serious firearm offences are concerned, it is necessary to consider the operation of section 20AAC(1)(d). Section 20AAC(1) is in the following terms.
(1)Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):
(a) if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;
(b) the sentence of imprisonment cannot be suspended;
(c) section 18 does not apply in respect of the sentencing of the person;
(d) if—
(i)the person is also being sentenced in respect of other offences; and
(ii)1 or more of those offences are not serious firearm offences,
section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).
The construction and effect of section 20AAC(1)(d) can be illustrated by three examples. Assume that a defendant is charged with two serious firearm offences and the sentencing judge utilises section 18A to impose a single sentence of imprisonment for 18 months for those two offences (scenario A). Section 20AAC(1)(d) is not engaged because the defendant is not “also being sentenced in respect of other offences ... 1 or more of [which] are not serious firearm offences”. There is thus no impediment to the utilisation of section 18A.
Next, assume that a defendant is charged with two serious firearm offences and one theft offence and the sentencing judge utilises section 18A to impose a single sentence of imprisonment for 20 months for all three offences (scenario B). This plainly offends the limitation imposed by section 20AAC(1)(d).
Finally, assume that a defendant is charged with two serious firearm offences and one theft offence and the sentencing judge utilises section 18A to impose a single sentence of imprisonment for 18 months for the two serious firearms offences and separately imposes a sentence of imprisonment for two months for the theft offence (scenario C). In this scenario, the utilisation of section 18A confined to the serious firearm offences does not offend either the purpose or the effect of section 20AAC(1)(d).
The evident purpose of section 20AAC(1)(d) which imposes the limitation on the use of section 18A is clear. It is mandatory to impose a custodial sentence for serious firearm offences[15] but not for other offences being dealt with at the same time. The limitation upon the use of section 18A ensures a proper focus by the sentencing judicial officer on the serious nature of the firearm offences in question and the special sentencing regime applying to them. Further, by requiring the separate articulation of a non-suspended custodial sentence, transparency of the sentencing process is promoted in that the sentence for the serious firearm offences is not absorbed into an amorphous whole by being aggregated with penalties for non-serious firearm offences. In particular, the specific and general deterrent effect of the sentence for the serious firearm offences will be enhanced.
[15] As a result of paragraphs (a) and (b) of ss 20AAC(1) provided that imprisonment is an available penalty for the offence in question and subject to the very confined discretion to suspend conferred by ss 20AAC(2).
It is evident that the purposes underlying section 20AAC(1)(d) are not offended by the Court utilising section 18A to impose a single sentence for multiple firearm offences. When a defendant is to be sentenced for more than one serious firearm offence, it will not be necessary, in order to achieve the requisite purpose, to articulate separate sentences for each of the serious firearm offences under consideration and then to identify the extent of any concurrency or accumulation to apply. Indeed, the application of the principles regulating concurrency which are often applied when sentencing for multiple serious firearm offences would, in any event, reduce the transparency of the final sentence imposed. Using section 18A when sentencing for multiple firearm offences separately from other offences still will facilitate a proper focus on the seriousness of the offending and still will enhance the deterrent effect of a separately articulated custodial prison term.
Turning to a textual analysis, the legislation, by its terms, contemplates that this focus and enhancement will still occur when a defendant is sentenced only for multiple serious firearm offences and not for any other offences. In such a case, the pre-condition for the application of section 20AAC(1)(d), namely that “the person is also being sentenced in respect of other offences ... 1 or more of [which] offences are not serious firearm offences” is not satisfied and section 20AAC(1)(d) is not triggered.
In scenario C, when the defendant is sentenced under section 18A to a single sentence of imprisonment for 18 months for the two serious firearm offences, the sentence of imprisonment for two months for the theft offence is a separate sentence that stands independently of the sentence of imprisonment for the firearm offences.[16] It follows that the defendant is not “also being sentenced in respect of other [non-serious firearm] offences” and the section no more precludes utilisation of section 18A than it does in scenario A.
[16] See generally the analysis by this Court in R v Tyler [2016] SASCFC 7; (2016) 124 SASR 412 at [42]-[48] (per Kourakis CJ with whom Blue and Nicholson JJ agreed).
The gravamen of the serious firearm offences was the possession of each of the shotgun and the handgun in circumstances in which, whilst they were not loaded, a small quantity of suitable ammunition (2 shells and 7 shells respectively) was readily available. The serious firearm offence of possessing the paintball marker gun was, in the circumstances of this case, very much at the low end of seriousness for this type of offence. There is no suggestion in the evidence that it was to be used for any criminal purpose such as to threaten someone by persuading them that it was a genuine functioning firearm.
For a number of the 25 offences, we record convictions without further penalty, as did the Judge.
The offences committed on 19 September 2013
Counts 5, 8 and 11 on the Information dated 19 September 2013 all related to the shotgun, namely possessing a firearm without a licence (offence number 4), possessing ammunition (offence number 7) and failing to truly answer (offence number 10). Utilising section 18A, we impose a single term of imprisonment for 15 months reduced by 30 per cent to ten months and 15 days and backdated to commence on 22 June 2015.
For count 3 on the Information dated 21 May 2014 possessing a class A firearm (the paintball marker gun – offence number 17), we impose a term of imprisonment for six weeks reduced by a shade under 30 per cent to one month and to be served wholly concurrently with the sentence for counts 5, 8 and 11 on the Information dated 19 September 2013.
For counts 3, 4, 6 and 7 on the Information dated 19 September 2013, count 3 on the complaint dated 15 October 2013 and count 4 on the Information dated 21 May 2014 (offences numbered 2, 3, 5, 6, 14 and 18), like the Judge we impose a conviction but with no further penalty. We deal with count 9 on the Information dated 19 September 2013 (breach of bail – offence number 8) in the same way.[17]
[17] The Judge imposed a short prison sentence for this breach of bail. However, the nature of the breach was the gravamen of a number of the firearm offences and caused the various firearm offences to be categorised as serious firearm offences with the consequential more onerous penalty regime. In order to avoid any possibility of double punishment, we prefer to deal with the breach of bail by conviction without further penalty. In any event, were we to impose a short prison term, we would make it wholly concurrent.
Apart from the firearms offending, the most serious of the offences committed on 19 September 2013 are counts 1 and 2 on the Information dated 21 May 2014 (trafficking methylamphetamine and possessing ecstasy for supply respectively – offences numbered 15 and 16). These are serious offences. However, the circumstances of both offences put them towards the low end of seriousness for offences of these types and the appellant had no previous drug offending history. Any analogy with the typical street level offender is not a strong one. We use section 18A to impose the one penalty for both offences. We start with a term of imprisonment for four years but reduce that by just under 30 per cent to two years, nine months and three weeks. Like the Judge, we allow the appellant four months credit for the time spent in custody and on home detention bail prior to 22 June 2015. It is convenient to deduct the whole of the four months from the head sentence we impose for counts 1 and 2 on the Information dated 21 May 2014 which further reduces the head sentence to two years, five months and three weeks.[18] This sentence is to be served cumulatively on the sentence for counts 5, 8 and 11 on the Information dated 19 September 2013.
[18] The time in custody and on home detention bail on remand was referrable to the September 2013 offending whereas only part of it was also referrable to the March 2015 offending. Therefore, it is permissible to allocate the credit to any one or more nominated September 2013 offences but it could not all be allocated to the March 2015 offences.
For the remaining offences committed on 19 September 2013 being counts 2, 10 and 12 on the Information dated 19 September 2013 (driving disqualified, possession of the taser and carrying an offensive weapon (folding knife)) and counts 1 and 2 on the Complaint dated 15 October 2013 (possession of the knuckleduster and crossbow and of the can of protective spray) – offences numbered 1, 9, 11, 12 and 13 - we use section 18A to impose the one penalty. We start with a term of imprisonment for 18 months reduced by a shade under 30 per cent to one year and three weeks. Nine months of this sentence is to be served cumulatively, with the balance to be served concurrently with the sentence for counts 5, 8 and 11 on the Information dated 19 September 2013.
Offences committed on 6 March 2015
Counts 5, 6 and 13 on the Information dated 12 June 2015 related to the self-loading handgun, namely possessing a class H firearm (offence number 20), possessing an unregistered firearm (offence number 21) and failing to truly answer (offence number 25). The offences relating to the handgun were intrinsically more serious than those relating to the shotgun. Furthermore, they were committed whilst on bail for similar offending, an aggravating feature. Using section 18A, we start with a term of imprisonment for two years reduced by just under 30 per cent to one year and five months to be served cumulatively on the earlier sentences.
For count 9 on the Information dated 12 June 2015 possessing a prohibited weapon (spray canister – offence number 24), we start with a term of imprisonment for 60 days reduced to six weeks (42 days), to be served concurrently with the sentence for counts 5, 6 and 13 on the Information dated 12 June 2015.
For counts 7 and 8 on the Information dated 12 June 2015, failing to properly secure a firearm and failing to store ammunition separately (offences numbered 22 and 23), like the Judge, we impose a conviction but with no further penalty.
The final count to be dealt with is count 1 on the Information dated 12 June 2015, trafficking in 70 tablets of ecstasy (offence number 19). Given the factual basis underlying this offence, as accepted, this offending was also at the low end of seriousness for an offence of this nature and was less serious than the trafficking offence committed in March 2013. However, it was aggravated and made more serious by the fact that it was committed whilst the appellant was on bail for the very same type of offending and having been allowed the indulgence of a Griffiths remand.
We start with a term of imprisonment for 40 months to be reduced by 30 per cent to two years and four months. This sentence is to be served, as to one year and ten months, cumulatively but otherwise (as to six months) concurrently with the sentence imposed for counts 1 and 2 on the Information dated 21 May 2014 (offences numbered 15 and 16).
When each of the indications given with respect to accumulation and concurrency are taken into account, the total period of imprisonment to be served with respect to all of the separate sentences is in the order of seven years, four months and six days. This remains a substantial sentence when the events of 19 September 2013 and 6 March 2015 and the appellant’s total criminal culpability arising therefrom are looked at as a whole. When the statutory discounts for the early pleas and the four months credit for time served are factored in, the total period of imprisonment equates to a head sentence of almost 11 years. The Judge’s total period of nine years and eight months, after the same factoring exercise is undertaken, equated to a head sentence of more than 14 years.
A lower than usual non-parole period should be fixed. The appellant is still relatively young and a lengthy period under supervision on parole will be very important to his rehabilitation prospects. Starting with a non-parole period of four years from which four months is deducted on account of the time served in custody and on home detention bail prior to 22 June 2015, we fix a non‑parole period of three years and eight months. The commencement of the non-parole period is also backdated to commence on 22 June 2015.
Conclusion and orders
We make the following orders:
1. Permission to appeal on grounds 2 and 3 is granted.
2. The appeal is allowed.
3. The sentencing orders made in the District Court are set aside.
4.The appellant is resentenced as follows.
4.1.For counts 5, 8 and 11 on the Information dated 19 September 2013, using section 18A to impose the one penalty, imprisonment for 10 months and 15 days backdated to commence 22 June 2015.
4.2.For count 3 on the Information dated 21 May 2014, imprisonment for one month to be served concurrently with the sentence in 4.1.
4.3.For counts 3, 4, 6, 7 and 9 on the Information dated 19 September 2013, count 3 on the Complaint dated 15 October 2013 and count 4 on the Information dated 21 May 2014, in each case a conviction is recorded with no further penalty.
4.4.For counts 1 and 2 on the Information dated 21 May 2014, using section 18A to impose the one penalty, imprisonment for two years, five months and three weeks to be served cumulatively on and to commence on the expiration of the sentence in 4.1.
4.5.For counts 2, 10 and 12 on the Information dated 19 September 2013 and counts 1 and 2 on the Complaint dated 15 October 2013, using section 18A to impose the one penalty, imprisonment for one year and three weeks. Of this period three months and three weeks is to be served concurrently with the sentence in 4.1 and nine months is to be served cumulatively on and to commence at the expiration of the sentence in 4.4.
4.6.For counts 5, 6 and 13 on the Information dated 12 June 2015, using section 18A to impose the one penalty, imprisonment for one year and five months to be served cumulatively on and to commence at the expiration of the sentence in 4.5.
4.7.For count 9 on the Information dated 12 June 2015, imprisonment for six weeks to be served concurrently with the sentence in 4.6.
4.8.For counts 7 and 8 on the Information dated 12 June 2015, in each case a conviction is recorded with no further penalty.
4.9.For count 1 on the Information dated 12 June 2015, imprisonment for two years and four months. This sentence is to be served, as to six months, concurrently with the sentence imposed in 4.6 and otherwise, that is, as to one year and 10 months, cumulatively on and to commence at the expiration of the sentence in 4.6.
5.A non-parole period of three years and eight months is fixed and is backdated to commence 22 June 2015.
9
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