R v Stavreas - [2015] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STAVREAS
[2015] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Nicholson and The Honourable Justice Lovell)
7 May 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Appeal against sentence. The appellant pleaded guilty to various firearm and drug offences committed on two separate occasions. At the time of sentence he was subject to a good behaviour bond in relation to a nine-month suspended sentence for an unrelated drug offence. The sentencing Judge revoked the suspended sentence and imposed an overall sentence of 12 years and three months' imprisonment with an eight year non-parole period. The sentencing Judge erred in failing to impose a separate sentence for a serious firearm offence as required under s 20AAC of the Criminal Law (Sentencing) Act 1988 (SA). Further, when reducing a sentence for a guilty plea, a sentencing judge should provide reasons if giving less than the maximum reduction. The appellant is resentenced to nine years and seven months' imprisonment with a non-parole period of five years and eight months.
Controlled Substances Act 1984 (SA) s 18(3), s 32(3), s 33J(2)(a), s 33J(2)(b); Firearms Act 1977 (SA) s 11(1), s 30(3); Firearms Regulations 2008 (SA) reg 41(1), reg 61; Summary Offences Act 1953 (SA) s 15(1c)(b); Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, s 18A, s 20AA, s 20AAB, s 20AAC, referred to.
R v Dwyer [2015] SASCFC 12, applied.

R v STAVREAS
[2015] SASCFC 68
Court of Criminal Appeal: Sulan, Nicholson and Lovell JJ

SULAN J: This is an appeal against sentence. On 10 September 2014 the appellant, Damien Stavreas, was sentenced for various firearm and drug offences committed on two separate occasions. The sentencing Judge also revoked a suspended sentence of nine months’ imprisonment for the cultivation of cannabis.
On 27 November 2012 the appellant committed the following offences:
- Two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA).[1]
- Possessing a firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA).[2]
- Failing to store ammunition in a locked container separately from firearms contrary to r 41(1) and r 61 of the Firearms Regulations 2008.[3]
- Two counts of possessing a prohibited weapon contrary to s 15(1c)(b) of the Summary Offences Act 1953 (SA).[4]
- Possession of a prescription drug without a prescription contrary to s 18(3) of the Controlled Substances Act 1984 (SA).[5]
[1]    Maximum penalty for each offence: 10 years' imprisonment or a $50,000 fine, or both.
[2]    Maximum penalty: 10 years' imprisonment or a $50,000 fine for a prescribed firearm.
[3]    Maximum…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Stavreas

Details

AGLC: R v Stavreas [2015] SASCFC 68
Case: [2015] SASCFC 68
Decision Date: 7 May 2015

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Mr Stavreas, by a sentencing judge in South Australia. Mr Stavreas had pleaded guilty to several firearm and drug offences. At the time of sentencing, he was already subject to a good behaviour bond for a suspended sentence relating to an earlier, unrelated drug offence. The sentencing judge had revoked this suspended sentence and imposed a total sentence of 12 years and three months imprisonment, with a non-parole period of eight years.

The Court of Criminal Appeal was required to determine whether the sentencing judge had erred in law. Specifically, the court considered whether the judge had failed to impose a separate sentence for a serious firearm offence, as mandated by section 20AAC of the Criminal Law (Sentencing) Act 1988 (SA). Additionally, the court examined whether the sentencing judge had provided adequate reasons for the extent of the reduction applied to the sentence in recognition of the appellant's guilty plea.

The Court of Criminal Appeal found that the sentencing judge had indeed erred by not imposing a separate sentence for the serious firearm offence as required by the Act. Furthermore, the court held that when a sentencing judge grants a reduction for a guilty plea but does not award the maximum possible reduction, specific reasons for that decision should be articulated. Consequently, the court allowed the appeal, revoked the original sentence, and resentenced Mr Stavreas to nine years and seven months imprisonment, with a non-parole period of five years and eight months.

Orders