R v TIPPINS

[2011] SASCFC 156

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TIPPINS

[2011] SASCFC 156

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice David)

12 December 2011

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

Appeal against sentence – appellant pleaded guilty to six offences, namely: possessing a prescribed firearm without a licence; possessing a prohibited weapon; carrying an offensive weapon; driving a motor vehicle without authorisation; driving a motor vehicle with unassigned registration plates and possessing unsecured ammunition – appellant had previously been given a suspended sentence of eight weeks imprisonment for unrelated offending – appellant committed the offences whilst on that suspended sentence bond – appellant admitted the breach of bond – sentencing Judge sentenced the appellant for the first three offences to a head sentence of 10 months imprisonment, took into account time in custody, and added two months for the breach of bond – sentencing Judge did not impose a fine for driving a motor vehicle without authorisation but disqualified the appellant from obtaining or holding a driver’s licence for five years – appellant was convicted without penalty for the last two offences – appellant was sentenced to a total of seven months and four days imprisonment and disqualified from holding or obtaining a driver’s licence for five years.

Held: respondent conceded on appeal that sentencing Judge had miscalculated time in custody and erred in adding two months, rather than eight weeks, to the sentence for the breach of bond – suspension or partial suspension of sentence was inappropriate – sentencing judge’s head sentence of 10 months was appropriate, to be reduced by the correct amount of time in custody – sentencing judge erred in considering a licence disqualification to be mandatory – nevertheless a disqualification of licence was appropriate.

Appeal allowed – suspension of eight weeks imprisonment revoked and that sentence carried into effect – appellant sentenced to four months and 28 days imprisonment to commence at the expiration of the revoked suspended sentence – appellant disqualified from holding or obtaining a driver’s licence for a period of four years – appellant convicted without penalty for the last two offences.

Motor Vehicles Act 1959 (SA) s 74(1); Road Traffic Act 1961 (SA) s 168(1), s 169B, referred to.

R v TIPPINS
[2011] SASCFC 156

Court of Criminal Appeal: Doyle CJ, Vanstone and David JJ

1. DOYLE CJ:          I invite David J to give his reasons first.

2. DAVID J (ex tempore):     This is an appeal against sentence. The appellant was sentenced on 26 October 2011 for six offences which he committed in May 2011. Those offences were:

   1.Possessing a prescribed firearm without a licence, for which the maximum penalty is imprisonment for 10 years or a $50,000 fine.

   2.Possessing a prohibited weapon, for which the maximum penalty is imprisonment for two years or a $10,000 fine.

   3.Carrying an offensive weapon, for which the maximum penalty is imprisonment for six months and a $2,500 fine.

   4.Driving a motor vehicle without authorisation, for which the maximum penalty is a $1,250 fine.

   5.Driving a motor vehicle with unassigned registration plates, for which the maximum penalty is a $5,000 fine.

   6.Possessing unsecured ammunition, for which the maximum penalty is a $2,500 fine.

3. The appellant pleaded guilty in the Magistrates Court to the offence of possessing a prescribed firearm without a licence. He was committed for sentence to the District Court where he pleaded guilty to the other five offences set out above. The District Court judge fixed a single sentence of imprisonment for the first three offences of possessing a prescribed firearm without a licence, possessing a prohibited weapon and carrying an offensive weapon, of 10 months having reduced that from a starting point of 15 months due to his pleas of guilty.

4. On the same occasion the sentencing judge dealt with an application for the enforcement of a breach of bond that the appellant had entered into on 18 March 2010 by which a term of imprisonment for eight weeks was suspended. That breach was admitted by the appellant and there was no application to excuse the breach.

5. For the first three offences set out above the sentencing judge sentenced the appellant to a term of imprisonment of 10 months to commence at the expiration of the time spent in gaol for the breach of bond.  The sentencing judge reduced that term by four months and 26 days for time the appellant had already spent in custody between arrest and sentence. That period of time accounts for a period of 22 days which was deducted because it related to other offending.  The head sentence was therefore five months and four days. 

6. The sentencing judge ordered that this sentence be served cumulatively on the imprisonment in respect of the breached bond.  The sentencing judge handed down a total sentence of seven months and four days imprisonment.

7. In relation to the fourth offence the appellant was convicted and disqualified from holding or obtaining a driver’s licence for five years. On the remaining two offences he was convicted without penalty.

8. As the matter has been argued it has been conceded by the prosecution before us that in sentencing the judge has made at least two errors.

9. Firstly, in his sentencing remarks the judge said that the licence disqualification pursuant to s 74(1) of the Motor Vehicles Act 1959 (SA) (“the Motor Vehicles Act”) was mandatory. It was agreed that that is not so and the sentencing judge was in error.

10. Further, in deducting the period of time of four months and 26 days from the head sentence to allow for time spent in custody the judge erred as it is agreed that that time was in fact five months and two days.  It was also agreed that the judge, when coming to the total sentence of seven months and four days to be served, took the sentence in respect of the breached bond to be two months, rather than eight weeks.  This was a matter which prejudiced the appellant, lengthening his sentence by some days.

11. Those errors were the basis of one of the grounds of appeal and it has been conceded by the prosecution that due to those errors the appeal must succeed and the matter should be dealt with by way of resentencing. The other grounds of appeal were that the sentence itself was manifestly excessive and that the sentencing judge should have either suspended or partially suspended the sentence. As the appeal is allowed anyway those matters can be dealt with by way of resentencing.

12. At the time of sentence the appellant was aged 27 years and has an extensive criminal history. Although many of his previous offences were committed whilst he was a youth, nevertheless he has convictions as an adult for offences such as assault occasioning actual bodily harm, serious driving offences, breaching bail agreements and a number of charges of aggravated assault.

13. The undisputed basis of the offending in relation to the charges which are now before us was that on the day of the offences the appellant was in his car and was stopped by the police. During the discussions with those police officers he fled the scene on foot and was apprehended a few hours later. In a backpack in the back of his car the police found a 12 gauge single-barrel shotgun which had been sawn-off and also a wide-bladed knife and a double-edge fighting knife in a scabbard. Those implements are the subject of the first three charges. That afternoon the police searched his premises and found an extensive amount of ammunition. The appellant was then charged with all six offences to which he pleaded guilty.

14. On 18 March 2010 the appellant was convicted of aggravated common assault and given a suspended sentence of eight weeks imprisonment subject to him entering into a bond to be of good behaviour for two years. He entered into that bond and that bond was breached by the present offending.

15. In re-sentencing we take into account those submissions that were put before the sentencing judge and put before us, namely, that the appellant never intended to use the shotgun and that he knew that it could not be fired. Nevertheless the present offending is serious and because of his poor record and the many chances he has been given by way of non-custodial sentences, a suspension or partial suspension of that sentence is inappropriate.

16. We agree with the sentencing judge’s head sentence of 10 months imprisonment to be reduced by the correct period of time spent in custody. The sentencing judge clearly erred when he referred to s 74(1) of the Motor Vehicles Act as creating a mandatory licence disqualification, nevertheless, a disqualification of licence is appropriate and in this case we consider that the appellant should be disqualified from holding or obtaining a driver’s licence for a period of four years pursuant to s 168(1) of the Road Traffic Act 1961 (SA) (“the Road Traffic Act”). That period of disqualification is to be taken to end four years after the appellant’s release from prison pursuant to s 169B(1) also of the Road Traffic Act.

17. On re-sentencing we would firstly revoke the suspension of eight weeks imprisonment and order that that be carried into effect.

18. On the charges of possessing a prescribed firearm without a licence, possessing a prohibited weapon and carrying an offensive weapon we would impose a head sentence of four months and 28 days in prison, having allowed for time spent in custody, which is to commence at the expiration of the revoked suspended sentence of imprisonment.

19. On the count of driving a motor vehicle without a licence we would, without imposing a fine, disqualify the appellant from holding or obtaining a driver’s licence for a period of four years. Such disqualification is to take effect immediately but end four years after the appellant’s release from prison pursuant to s 169B(1) of the Road Traffic Act referred to above.

20. On the remaining offences, driving a motor vehicle with unassigned registration plates and possessing unsecured ammunition, we would convict the appellant without penalty as the sentencing judge did.

21. DOYLE CJ:          I agree with the reasons of David J.

22. VANSTONE J:     I too agree.

23. DOYLE CJ:          I now make the orders. The orders of the court are as follows:

    1. That the appeal against sentence be allowed.

    2. That the sentence imposed by the District Court be set aside.

    3. That the following sentences be substituted;

    (a)    on the application for an order in respect of the defendant’s breach of bond order that the suspension of the sentence of eight weeks imprisonment be revoked and order that the sentence be carried into effect to commence on 26 October 2011;

    (b)    on the charges of possessing a prescribed firearm without a licence, possessing a prohibited weapon and carrying an offensive weapon the defendant is convicted and sentenced to a single sentence of imprisonment of four months 28 days, that sentence to be served cumulatively on the sentence of eight weeks imprisonment;

    (c)    on the charge of driving a motor vehicle when not authorised to drive such motor vehicle, the defendant is convicted and disqualified from holding or obtaining a driver’s licence for four years ending four years after the defendant’s release from imprisonment;

    (d)    on the charges of driving a motor vehicle which did not have a number allocated to it and failing to store ammunition in a locked container the defendant is convicted without penalty.