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…

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 Tilley

Details

AGLC: R v Tilley [2019] SASCFC 28
Case: [2019] SASCFC 28
Decision Date: 29 March 2019

CaseChat Overview and Summary

The appeal concerned the appellant, who had pleaded guilty to twenty-four counts of various offences. The dispute arose in the District Court of South Australia when the prosecution sought to amend the second information, specifically count one, which contained a drafting error regarding the subsections of the *Firearms Act 2015* (SA) allegedly contravened. The appellant objected to this proposed amendment.

The central legal issue before the court was whether the prosecution should be permitted to amend the second information, specifically count one, by correcting the referenced subsections of section 22 of the *Firearms Act 2015* (SA) from 22(1) and 22(6) to the correct provisions of 22(2)(a) and 22(10). This amendment was sought to accurately reflect the alleged act of supplying a firearm and its associated penalty, which had been incorrectly stated in the original information.

The court considered the principles governing the amendment of informations. It noted that amendments are generally permissible to correct errors, provided they do not prejudice the accused. In this instance, the error in the information related to the specific subsections and penalty provisions, not the fundamental nature of the offence charged. The court reasoned that allowing the amendment would merely correct a technical error to accurately reflect the charge to which the appellant had pleaded guilty, and that such an amendment would not cause prejudice to the appellant, particularly given the appellant had already pleaded guilty to the substance of the offence. The court also considered the appellant's objection, which was based on the potential for the amendment to alter the classification of the offence or its penalty, but found these concerns to be unfounded in the context of the proposed correction.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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