R v WILLETT - [2017] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLETT
[2017] SASCFC 62
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
5 June 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Appeal against sentence imposed by District Court for possessing an unregistered firearm, possessing a firearm without a licence, failing to keep a firearm secured, and failing to store ammunition separately from a firearm. DPP appealed against order that sentence of imprisonment be served on home detention.
Police attended respondent’s home in relation to suspected drug offences. The respondent was on bail for driving related offending. The bail agreement included the mandatory condition that the respondent not possess a firearm or ammunition. Police found KWC Model Taurus PT 24/7 air soft pistol in an unlocked drawer in the backyard shed along with five cannabis plants being grown hydroponically. The firearm was not registered and the respondent did not hold a licence. The firearm was not loaded and no pellets suitable for the firearm were found in the respondent’s shed. Five live bullets were found on top of a television but none fitted the air soft pistol.
The DPP appeals the sentence on the ground that an order that a sentence be served on home detention is a suspended sentence and so cannot be ordered for serious firearms offenders pursuant to s 20AAC of the Criminal Law (Sentencing Act) 1988.
Held, per Parker J (Kourakis CJ and Nicholson J agreeing), refusing permission to appeal:
1. Given that the finding in R v Neal [2017] SASCFC 44 establishes that the District Court judge erred in his interpretation of s 20AAC of the Criminal Law (Sentencing Act) 1988, the rare and exceptional circumstances requirement for Crown appeals is satisfied.
2. Granting permission to appeal would necessarily require the appeal to be upheld and the respondent to be resentenced.
3. It is appropriate to apply the principle in R v Hallcroft [2016] SASCFC 137 in this case and refuse permission to appeal.
4. The question of statutory interpretation that concerns the DPP has been answered by the judgment of this court in R v Neal [2017] SASCFC 44.
Bail Act 1985 s 11; Criminal Law (Sentencing) Act 1988 s 10, s 20AA, s 20AAC, s 33BB; Firearms Act 1977 s 11, s 23; Firearms Regulations 2008 reg 38, reg 41, reg 61, referred to.
R v Hallcroft [2016] SASCFC 137; R…

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 WILLETT

Details

AGLC: R v Willett [2017] SASCFC 62
Case: [2017] SASCFC 62
Decision Date: 5 June 2017

CaseChat Overview and Summary

This case concerned an appeal by the Director of Public Prosecutions against a sentencing order made by the Magistrates Court in relation to the respondent, Mr Willett. The respondent had been convicted of four offences under the *Firearms Act 1977* and associated regulations, including failing to store ammunition separately from a firearm, possessing a firearm without a licence, possessing an unregistered firearm, and failing to keep a firearm secured. These offences arose from the discovery of an air soft pistol and live ammunition at the respondent's property, occurring while he was on bail for other driving offences, with a condition prohibiting him from possessing firearms or ammunition.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in law by imposing a sentence of home detention for a "serious firearm offence" committed while the respondent was on bail, without first making a finding that the respondent's personal circumstances were exceptional enough to outweigh the need for general and personal deterrence. This question hinged on the interpretation of sections 20AA and 20AAC of the *Sentencing Act*, and specifically whether a home detention order constituted a suspended sentence for the purposes of the prohibition on suspending sentences for serious firearm offenders.

The Court relied on its prior decision in *R v Neal*, which established that a home detention order is a suspended sentence for the purposes of section 20AAC(1)(b) of the *Sentencing Act*. Consequently, the sentencing judge had erred by not making the required exceptional circumstances finding before ordering home detention. However, the Court noted that the Director of Public Prosecutions had conceded that it would be open to find that the respondent's personal circumstances were exceptional. Given this concession and the fact that the appeal was brought by the Crown, the Court found that the rare and exceptional circumstances required for a Crown appeal against sentence were satisfied.

Despite finding an error in the sentencing judge's legal reasoning, the Court ultimately refused the Director's permission to appeal. This meant that the respondent was permitted to continue serving his sentence of imprisonment on home detention, as the Court indicated it would have found the exceptional circumstances test to be satisfied, largely due to the Director's concession.

Orders

Orders of the court

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Background

Background to the litigation

The delivery of judgment has been delayed pending the publication of the judgment of this Court in R v Neal.[1] That judgment resolves the question of statutory interpretation that is of central importance to this appeal. [1] [2017] SASCFC 44.Background On 16 March 2015 the respondent entered a bond to be of good behaviour for 12 months relating to a conviction for driving while disqualified. On 27 April 2015 the respondent entered a bail agreement relating to a further two counts of driving while disqualified. The bail agreement included the mandatory condition that the respondent not possess a firearm or ammunition. The respondent was sentenced for those two offences by the Magistrates Court on 20 August 2015. He was sentenced to a term of imprisonment of 13 days with that sentence being suspended on his entering into a bond to be of good behaviour for 12 months. On 4 August 2015 police attended at the respondent’s home in relation to suspected drug offences. He told the police that drugs would be found in a shed in the backyard but not in the house where his wife and children lived. The shed was furnished and equipped with a small kitchen. Police located in an unlocked drawer in that kitchen a KWC Model Taurus PT 24/7 air soft pistol. The weapon is commonly known as a “BB gun”. While it is designed only to fire plastic air soft bullets, it is not an imitation firearm. The police also discovered five cannabis plants being grown hydroponically in a cupboard in the shed. The explanation given by the respondent to the police as to how he came to be in possession of the air soft pistol differed from that later given in sworn evidence before the sentencing judge. He asserted to the police that a friend had given him the gun a couple of weeks before after purchasing it at the Brickworks. The firearm was constructed of black plastic and metal and designed to fire 6mm plastic air soft pellets. It had a detachable box magazine which held up to 24 pellets. When test fired by the police it functioned correctly and safely. The weapon is a firearm within the meaning of the Firearms Act 1977 as it is designed to fire a projectile by means of compressed air from a spring powered piston. Because it is an actual firearm it is excluded from the definition of “imitation firearm”. It is a Class H firearm as it is designed to be aimed and fired by hand and easily concealable. The police did not locate any pellets suitable for the firearm in the respondent’s shed. Five live bullets were displayed on top of a television in the shed but none of those fitted the air soft pistol. The failure to store that ammunition separately from the air soft pistol was the subject of Count 1 (see below) albeit that none of the bullets could be used in that firearm. The respondent was charged with the following four offences:Count 1: Failing to store ammunition separately from a firearm contrary to reg 41(1) and 61 of the Firearms Regulations 2008 (maximum penalty $2,500);Count 2: Possessing a firearm (Class H) without a licence contrary to s 11(1) of the Firearms Act 1977 (maximum penalty $35,000 or imprisonment for 7 years);Count 3: Possessing an unregistered firearm (Class H) contrary to s 23(1) of the Firearms Act 1977 (maximum penalty $10,000 or imprisonment for 2 years); andCount 4: Failing to keep a firearm (Class H) secured contrary to reg 38(2) and 61 of the Firearms Regulations 2008 (maximum penalty $2,500).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

I also note that if it had been necessary I would find, contrary to the decision of the judge, that the personal circumstances of the respondent are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration. I would primarily rely on the very significant concession by senior counsel for the Director that it is open to the Court to find that, in light of the circumstances of his offending, the respondent was capable of satisfying the exceptional circumstances test. In my view, that concession was properly made. Conclusion For the reasons I have stated, I would refuse permission for the Director to appeal. The result is that the respondent may continue to serve his sentence of imprisonment on home detention. I also agree with the observations made by the Chief Justice.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

As the issue has been conclusively resolved by the decision of this Court in R v Neal it is unnecessary to give detailed consideration to the statutory interpretation question. Nevertheless, it is necessary to briefly state the relevant issues before returning to the decision in R v Neal. Consideration A “serious firearm offence” is defined by s 20AA of the Sentencing Act to include an offence against the Firearms Act 1977 committed while the defendant was on bail, being bail that was subject to the condition under s 11(1)(a) of the Bail Act 1985 prohibiting the person from possessing a firearm, ammunition or part of a firearm. Section 20AAC(1) of the Sentencing Act provides that, subject to s 20AAC(2), when the court sentences a person who is a serious firearm offender for a serious firearm offence, if the maximum penalty includes a period of imprisonment, a sentence of imprisonment must be imposed and that sentence cannot be suspended. Section 20AAC(2) provides that the sentencing court may declare that the prohibition upon suspension of the sentence of imprisonment does not apply if the court is satisfied by evidence given on oath that the defendant’s personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration and, the court is in all the circumstances, satisfied that it is appropriate to suspend the sentence. In R v Neal Kourakis CJ held “on the plain words of s 33BB of the Sentencing Act, a home detention is a suspended sentence for the purpose of s 20AAC(1)(b) of that Act”.[2] Nicholson J and I agreed with the reasons of the Chief Justice. For that reason, it is apparent that the sentencing judge erred in finding that the Court had power to order that the sentence of imprisonment that it was required to impose could be served on home detention without having made a finding that the personal circumstances of the respondent were exceptional so as to outweigh the need for general and personal deterrence to be the paramount consideration.[2] [2017] SASCFC 44 at [62]. During the course of submissions senior counsel for the Director indicated that it was “finely balanced” as to whether the personal circumstances of the respondent were capable of satisfying the exceptional circumstances test. Subsequent to the hearing, senior counsel forwarded a letter to the Court in which he stated that the Director accepted that it would be open to the Court to find that, in light of the circumstances of his offending, the respondent was capable of satisfying the exceptional circumstances test. The High Court held in Everett v The Queen that so as to avoid exposing a defendant to double jeopardy a Crown appeal against sentence will only be permitted in rare and exceptional circumstances.[3] Given that the finding by this Court in R v Neal establishes that the judge erred in his interpretation of s 20AAC of the Sentencing Act, the rare and exceptional circumstances requirement is satisfied. But for the reasons that follow, it would have been necessary to grant permission to appeal, to uphold the appeal and re-sentence the respondent. [3] (1994) 181 CLR 295.