R v Tilley - [2019] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TILLEY
[2019] SASCFC 28
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)
29 March 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT
Appeal against sentence.
The appellant pleaded guilty to twenty-two offences charged on one information and two offences charged on a separate information. Prior to sentencing the appellant, the Judge amended the charge of supplying a firearm (count one on the second information) to remove the reference to s 22(6) of the Firearms Act 2015 (SA) and replace it with the correct penalty provision, s 22(10). The appellant was then sentenced to a total head sentence of six years imprisonment with a non-parole period of four years for all twenty-four offences.
The appellant appeals the sentence on two grounds: that the sentence is, in all the circumstances, manifestly excessive; that the sentencing Judge erred in amending the information over the objection of the appellant and after the appellant had pleaded guilty, the allocutus had been given and counsel had made submissions. The second ground of appeal raises a question of law.
Held, per the Court, dismissing the appeal: the appellant always knew the true nature of the charge to which he pleaded. The erroneous reference to other subsections of section 22 has not prejudiced the appellant in any way. The final sentence was moderate.
Criminal Law (Sentencing) Act 1988 (SA) s 20AAC; Sentencing Act 2017 (SA) s 15; Firearms Act 2015 (SA) ss 22(1), 22(2)(a), 22(6), 22(10), 4, referred to.

R v TILLEY
[2019] SASCFC 28
Court of Criminal Appeal: Kourakis CJ, Kelly and Hinton JJ
THE COURT:
Introduction

The appellant, Patrick Nigel Tilley, pleaded guilty to twenty-two offences charged on an information in the Magistrates Court dated 10 August 2017 (‘the first information’) and two offences charged on a separate information in the Magistrates Court dated 18 October 2017 (‘the second information’). He was committed to the District Court for sentencing on all twenty-four counts.
On 23 July 2018, he was sentenced by a District Court Judge to a total head sentence of six years imprisonment with a non-parole period fixed at four years.
The appellant now appeals that sentence on two grounds: first, that the sentence is, in all the circumstances, manifestly excessive; second, that the sentencing Judge erred in amending the charge of supplying a firearm (which was count one on the second information) over the objection of the appellant and after the appellant had pleaded guilty, the allocutus had been given and counsel had made submissions.
The second ground of appeal raises a question of law. It is convenient to deal with that ground first. In order to understand what occurred in the court below it is first necessary to set out a detailed chronology of the proceedings.
Background
The appellant pleaded guilty to all charges alleged on both the first and second informations within four weeks of his first appearance in relation to the offences. He was committed to the District Court for sentence on all twenty-four counts, to appear for arraignment at Mount Gambier on 6 March 2018.
On 6 March 2018, the appellant maintained his pleas of guilty, the allocutus was read, and the matter was further adjourned pending sentencing submissions. On that date, the prosecution tendered a summary of facts which it will be necessary to refer to later.
On 21 March 2018, submissions were made by both counsel for the prosecution and counsel for the appellant. The prosecutor on that date advised the Court that the appellant was not to be taken to be a serious firearm offender for the purposes of s 20AAC of the (then operative) Criminal Law (Sentencing) Act 1988 (SA).[1] He was remanded for sentence on 10 May 2018.
[1] Now s 51 of the Sentencing Act 2017 (SA), commencing 30 April 2018.
Prior to 10 May 2018, there was a suggestion by the prosecutor in correspondence to the Court that the previous assertion that the appellant’s offending did not render him a serious firearm offender was incorrect.
On 10 May 2018, for the first time, a drafting error contained in the second information was raised with the Court.
Count one on the second information contained an error, in that the particulars alleging the act of supplying the firearm referred to the incorrect subsections of s 22 of the Firearms Act 2015 (SA) (‘the Firearms Act’). Instead of referring to subsections 22(2)(a) and 22(10) of the Firearms Act, the information referred to subsections 22(1) and 22(6) of the Firearms Act.
Section 22(1) did not apply to the appellant as the definition of ‘acquire’ for the purposes of that section means ‘acquire through purchase, gift, loan or hire’.[2] As the appellant had admitted to stealing the relevant firearm, subsection (1) could never have applied to him.
[2] Firearms Act 2015 (SA) s 4.
Pursuant to s 22(10), the maximum penalty for supplying a firearm contrary to s 22(2)(a) is $35,000 or imprisonment for seven years, making the offence major indictable. The offence was charged as major indictable, but the information referred to the incorrect penalty provision - subsection 22(6). The maximum penalty for such an offence, pursuant to s 22(6), is $5000 or imprisonment for one year.
Counsel for the prosecution sought a further adjournment of sentencing to obtain instructions with respect to the error.
On 21 May 2018, counsel for the prosecution confirmed to the Court that the reference to subsections 22(1) and 22(6) in count one of the second information was, in fact, an error and sought to orally amend the information to describe the correct subsections of 22(2)(a) and 22(10). The appellant objected and there was further argument and submissions on that topic on 28 June 2018.
On 23 July 2018, the prosecution presented an ex officio information, charging the appellant with the firearm trafficking offence contrary to subsections 22(2)(a) and 22(10) of the Firearms Act. After hearing further submissions, the sentencing Judge then, sitting as a magistrate, determined to amend the firearm charge on the second information by deleting the reference to subsection 22(6), which was the incorrect penalty provision, and by including references to subsections 22(2)(a) and 22(10) of the Firearms Act. He then proceeded to sentence on all counts on both the first and second information, as amended.
The sentencing Judge arrived at an overall starting point (before discount) of twelve years and ten months, after determining that the six separate terms of imprisonment imposed for the twenty-four offences ought to be served cumulatively. The appellant was entitled to and received a discount of 40% on all offences, resulting in a total head sentence of six years for all twenty-four offences charged across the first and second information, reduced from seven years and nine months for totality.
The appellant now complains that the sentence is, in all the circumstances, manifestly excessive, and that the Judge erred in purporting to amend the information at that late stage, and as such the appellant should be resentenced according to law.
Discussion of Ground 2
There has been no suggestion that the appellant at any stage has been under any misapprehension about the offence to which he pleaded guilty.
The appellant had been interviewed by the police on 9 August 2017 and made full admissions to each of the twenty-two offences charged on the first information, including the theft of six firearms from a shed at Millicent. Subsequently, he was reinterviewed by the police on 30 August 2017 and, by reference to the theft of those six firearms, he admitted to retaining one of the class A firearms, modifying it to remove the barrel, and then selling it to an undisclosed person for $150.00 some two weeks after the original theft of the firearm. That was the basis of the charge of supplying the firearm, being count one on the second information. During the same interview, the appellant refused to provide any details to identify the person or persons he contacted to sell the firearm or the identity of the person to whom he sold the modified class A firearm. That was the basis of count two on the second information of failing to answer the question of a police officer.
The information and summons filed in the Magistrates Court on 18 October 2017 contained the following particulars in respect of count one:
Offence Details
(1) Between the 1ST day of JULY, 2017 and the 9TH day of AUGUST, 2017 at MILLICENT OR ELSEWHERE in the said State supplied A CATEGORY A FIREARM namely AN UNKNOWN RIFLE to a person not authorised to acquire that firearm by a permit or in compliance with the prescribed process for acquisition of that firearm.
Sections 22(1) and 22(6) of the Firearms Act 2015.
This is a major indictable offence.
…
The charge correctly identified s 22 of the Firearms Act as the relevant section, however the reference to subsections 22(1) and 22(6) were incorrect. The particulars as set out were, however, correct and in accordance with the appellant’s previous admissions that he had supplied one of the firearms he had stolen to another person. Importantly, the information described the offence as major indictable.
Had the offence charged been one which was contrary to s 22(6) of the Firearms Act it would necessarily have been a summary offence and could not have been committed to the superior court for sentence. At no stage in the proceedings did the appellant ever dispute the factual particulars alleged which, on their face, constituted an offence contrary to s 22(2)(a).
It is apparent from the record of proceedings in the court below that both the appellant and his counsel understood that the appellant was always charged with the major indictable offence of supplying a firearm contrary to s 22(2)(a) of the Firearms Act and that the penalty for that offence was to be determined by reference to s 22(10) of the Firearms Act.
Counsel did not suggest on appeal that the appellant was prejudiced or embarrassed in any real way by the misstatement of the relevant subsections which applied. The appellant’s counsel simply argued on appeal that the Judge erred in purporting to amend the information and that the appellant should have been sentenced on count one as it was originally laid with the consequence being that the maximum sentence should have been imprisonment for one year.
The respondent submitted that this Court need not determine whether or not the Judge erred in purporting to amend the information as this is not an appeal against conviction. The respondent further contended that there was, and is, no uncertainty as to the offence to which the appellant pleaded guilty, and that the appellant has not suffered any prejudice as a consequence of the defect in the information as he always knew he was facing a major indictable charge of supplying a firearm which attracted the higher penalty of imprisonment for seven years.
In our view, the respondent’s submissions should be accepted.
We are satisfied, in the particular circumstances of this matter, that the information, defective though it was, did not mislead or prejudice the appellant in any way. On the date of his arraignment on 6 March 2018, where the appellant confirmed his pleas of guilty as first entered in the Magistrates Court, the prosecution tendered a summary of facts.
In that document, the prosecutor set out a schedule of each of the offences to which the appellant had pleaded guilty and the maximum penalty which applied to that offence. With respect to count one on the second information, the following information appeared in the prosecution factual summary:

Nature of offence Offence Provision Count Numbers Maximum penalty

Trafficking a Firearm by virtue of Supply to Another Person Section 22(1) and section 22(6)
Firearms Act 2015. 1 1 single firearm – Fine of $35,000 or imprisonment for 7 years.

The penalty of $35,000 or seven years imprisonment applies to offences contrary to s 22(1), (2) or (9) of the Firearms Act pursuant to s 22(10). In addition to the above, the prosecution’s summary of facts contained the following:
Information 2
30.Following further police investigation, the defendant was arrested from police custody on 30 August 2017.
31. He was reinterviewed regarding the theft of the six firearms from the shed at Hamilton. He admitted to retaining one of the class A firearms, modifying it to remove the barrel, and then to selling it to an undisclosed person for $150.00 some 2 weeks after the original theft of the firearm (Count 1 – Trafficking in a Firearm).
32.At the time of interview, the defendant refused to provide any details to identify the persons he contacted to sell the firearm or the identity of the person to whom he sold the modified class A firearm to, despite being given a caution to answer questions under section 55 of the Firearms Act 2015 (Count 2 – Failing to Answer the Question of a Police Officer).
Thereafter submissions were made by both counsel. When counsel for the appellant made submissions in mitigation of penalty, he made it clear that the appellant acknowledged that the conduct alleged against him in respect of count one on the second information involved him selling one of the stolen firearms to a third party.
Even after the topic of the incorrect reference to subsections 22(1) and 22(6) of the Firearms Act was discussed, the appellant’s counsel continued to acknowledge the nature of the conduct alleged against him and admitted by him as involving the supply of a firearm (by selling it) to a third person. When given the opportunity to withdraw his guilty plea during negotiations he declined to do so.
In these circumstances, we have concluded that it is not necessary to finally determine whether the District Court Judge was in error in purporting to make the amendment which he did because, irrespective of whether he was or was not empowered to do so, it is apparent on the face of the information that the appellant was sentenced for the offence of supplying a Category A firearm to a person not authorised to acquire it, which is, and can only be, an offence against s 22(2)(a) of the Firearms Act. Nor has the erroneous reference to other subsections of s 22 prejudiced the appellant in any way.
We are satisfied that the appellant always knew the true nature of the charge to which he pleaded. He never contended otherwise. We would dismiss this ground of appeal.
We turn now to consider the first ground of appeal that the sentence is, in all circumstances, manifestly excessive.
Discussion of Ground 1
The appellant submitted that the starting point for the final sentence arrived at of 11 years, 7 months and 3 weeks was manifestly excessive. On our calculations, the starting point was in fact 12 years and 10 months. In any event, counsel for the appellant complains that the sentencing Judge should have imposed concurrent or at least partly concurrent sentences with respect to all of the dishonesty offences. He submitted that the offending had occurred from Christmas 2016 until late June 2017 as part of a course of conduct stemming from a long-term drug addiction that gave rise to a rolling debt to his drug suppliers within a small country town. On that basis, counsel for the appellant contended that the sentences should not have been accumulated by the Judge as they were, and that the Judge erred in treating each incursion into criminality separately and in imposing a separate sentence for each group of offences.
This ground of appeal necessitates an examination of the nature of the offences and the consequences of the appellant’s offending.
In all, the appellant was convicted of twenty-four offences consisting of one count of using a motor vehicle without consent, one count of driving whilst unauthorised, seven counts of theft, four counts of serious criminal trespass in a non-residential building, two counts of serious criminal trespass in a residential building, one count of aggravated serious criminal trespass in a residential building, six counts of possessing a class A firearm without a licence, one count of trafficking in a firearm (by supplying a firearm to an unauthorised person), and one count of failing to answer a question of a police officer.
The sentencing Judge divided the twenty-two offences for which the appellant fell to be sentenced on the first information into six groups. He sentenced the appellant separately for each of the two counts on the second information. For counts seventeen to twenty-two on the first information, the appellant was convicted without further penalty. The remaining five groups of offences were loosely grouped by offence type or incursion into criminality and the Judge imposed terms of imprisonment for each group, making each term cumulative on the others. The Judge imposed a sentence of imprisonment for fourteen months and two weeks (reduced from two years) for count one on the second information and made that sentence cumulative on all other terms imposed on the first information. The appellant was convicted without further penalty for count two on the second information.
The various trespass, theft and motor vehicle offences contained on the first information involved incursions into seven separate properties in the Millicent area and, in each case, involved the taking of valuable personal property, most of which has never been recovered.
The victim impact statements from each of the affected residents attested to both the financial and non-financial effects of these offences upon their lives and families including invasion of their personal privacy, and loss of a sense of security and safety. The aggravated serious criminal trespass in a residential building charge involved entry into an occupied family home in the early hours of the morning. One of the non-residential trespasses involved the breaking into a shed in Millicent and, once inside, breaking into a locked firearms safe and stealing six class A firearms.
The appellant’s admission to selling one of those stolen firearms to another person was particularly serious and called for a separate term of imprisonment of a sufficient length to adequately reflect the need to impose specific deterrence on the appellant for his conduct. There is an obvious risk to the public posed by the commission of the firearm offences in that, by his actions, the appellant facilitated, at least potentially, the circulation of numerous firearms onto the black market.
Leaving aside the offences charged on the second information for one moment, there were a number of offences on the first information that carried significant maximum penalties. The aggravated serious criminal trespass in a residential building offence attracted a maximum penalty of life imprisonment. The offences of serious criminal trespass in a residential building attracted a maximum penalty of 15 years imprisonment each and the offences of serious criminal trespass in a non-residential building attracted a maximum penalty of 10 years imprisonment apiece. Each of the accompanying offences of theft attracted a maximum penalty of 10 years.
The appellant was to be sentenced on the basis of a criminal history which included previous convictions in both the District and Magistrates Courts for similar offences. On more than one occasion he had been given the benefit of a suspended sentence and had breached bonds and bail and community service orders.

In these circumstances, we consider that neither the overall starting point, nor the ultimate head sentence, is manifestly excessive. Likewise, we consider that the penalty imposed for the firearm trafficking offence alone (of 14 months and 2 weeks) was lenient. The sentencing Judge did not err in accumulating the sentences as he did.
In our view, the final sentence arrived at, after reflecting the need for totality, was moderate.
We would dismiss this appeal.

Nature of offence	Offence Provision	Count Numbers	Maximum penalty
Trafficking a Firearm by virtue of Supply to Another Person	Section 22(1) and section 22(6) Firearms Act 2015.	1	1 single firearm – Fine of $35,000 or imprisonment for 7 years.