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 v Neal [2017] SASCFC 44, applied.
Everett v The Queen (1994) 181 CLR 295, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"serious firearm offence"

R v WILLETT
[2017] SASCFC 62
Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ

KOURAKIS CJ: I too would refuse permission to appeal for the reasons given by Parker J.
In what follows I bring attention to the problematic drafting of s 20AAC(2) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act). In the exercise of the sentencing discretion, like other discretions, courts weigh competing objectives or considerations to arrive at an outcome. Subject to any statutory direction, sentencing courts order those objectives or considerations as they see fit. Section 20AAC(2) of the Act mandates that when sentencing for serious firearms offences personal and general deterrence are the paramount considerations. The effect of that statutory mandate is to tip the scales at the outset on the side of deterrence. Of course, despite the paramountcy accorded to the deterrence consideration, an offender’s personal factual circumstances may be so much more compelling than the circumstances relating to deterrence that the tipping of the scales is countered and a more rehabilitative sentence may be imposed. Section 20AAC(2) of the Act indicates that to have that effect, the personal circumstance must be exceptional.
However, it is a paralogism to speak, as the section does, of factual circumstances displacing the paramountcy accorded to the objective of deterrence. The factual circumstances of this case serve as a good illustration of the point I seek to make. Even though the objective of deterrence is paramount, the factual circumstances relating to that objective in this case are not of great weight. The type of air-gun in question rarely comes before the Courts, could until recently be purchased lawfully and poses a relatively low risk of harm. On the other hand, the respondent’s long period of demonstrated rehabilitation and the medicinal benefits provided to him by cannabis, which in part explains his offending, weigh the balance of the discretion heavily towards pursuing a rehabilitative objective despite the lower order priority of that objective.
I would construe s 20AAC(2) of the Act as conferring a discretion which can be exercised in the way I have described despite the infelicity of expression. The appellant’s circumstances are exceptional enough to outweigh the circumstances calling for deterrence notwithstanding the paramountcy accorded to that objective by the statute.
NICHOLSON J. I would refuse permission to appeal for the reasons given by Parker J. I also agree with the Chief Justice’s additional observations.
PARKER J: This is an application by the Director of Public Prosecutions for permission to appeal against a sentence of home detention imposed upon a serious firearms offender. The Director contends that the sentence of home detention is a form of suspended sentence and therefore not available for a person who is convicted of a serious firearms offence. The only exception to that statutory prohibition arises where the Court is satisfied by evidence given on oath that the offender’s personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration when sentencing for serious firearms offences.
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); and
Count 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).
The respondent pleaded guilty to the four offences at an early time in the Magistrates Court. That entitled him to a discount of up to 30% on his sentence in respect of each of the four offences.
On 18 May 2016 the Director applied to enforce the breach of the bond that the respondent had entered on 16 March 2015.
Personal circumstances
Apart from the driving offences to which I have already referred, the respondent has a number of prior convictions. It is significant that prior to the 2015 driving offences the respondent had not been convicted since 1993. He has served one term of imprisonment imposed in Victoria in 1992 for burglary, theft and deception offences. At that time he was also imprisoned for breach of an earlier suspended sentence for burglary and theft offences. During the 1980s and early 1990s he was also convicted on a number of occasions for cannabis and motor vehicle offences.
The respondent is now aged 48 years. A number of reports were placed before the sentencing judge. A report from a psychologist, Dr Loraine Lim, stated that after leaving school in year 10 he had worked as a slaughterman for seven years. He then worked for some 20 years in the construction industry, mostly as an installer of air-conditioning systems but also as a labourer and refrigeration mechanic. During that time he injured his neck. As a result of that injury he left the building industry and obtained work as a postal delivery officer with Australia Post in 2007. That employment aggravated the neck injury. He took an extended period of sick leave and was eventually advised by Australia Post that his employment would be terminated at the end of 2016.
The respondent told Dr Lim that he lives at premises owned by his wife. His wife and two children occupy the house while he lives in the back shed. His wife is employed and regularly helps him with his finances, particularly the payment of fines.
The respondent informed Dr Lim that prior to his marriage at the age of 26 he was a recreational user of amphetamines. He had resumed use of this drug when he commenced extended sick leave from Australia Post. He told Dr Lim that he had last used amphetamine on New Year’s Eve 2014. He also disclosed to Dr Lim that he was addicted to cannabis and had smoked this drug consistently since the age of 18 years. He said that he was currently dependent upon cannabis to manage the pain of his chronic neck condition and would use at least one gram each day up to a maximum of ten grams per week. He also took over the counter medication for pain relief. He had never attended any form of drug rehabilitation or counselling. He had never seriously considered cessation of cannabis use as he did not consider that any other pain relief would be as effective.
In addition to his chronic neck pain, the respondent also suffers from emphysema. He had recently completed a six month course of counselling sessions with a mental health clinician that were designed to address his severe anxiety and depression.
Dr Lim reported that the respondent met the criteria for a cannabis use disorder (severe). He had a physiological dependence upon this substance which would require long term intensive medical and psychological intervention. His continued high level of use of cannabis placed him at a moderate to high risk of general recidivism and also made it likely that his sub-clinical depressive and anxiety symptomology would be perpetuated and his emphysema aggravated. However, there was no evidence that the respondent was suffering a formal mental impairment in the form of a major depressive or anxiety disorder nor did he suffer from a personality dysfunction. In the opinion of Dr Lim the respondent’s mental health difficulties were reactive in nature having been triggered by a series of crises.
Dr Lim recommended a referral to a pain management unit and also to a clinical/forensic psychologist to undergo drug counselling and medical detoxification from cannabis.
Two reports from the respondent’s general practitioner confirmed that he suffered from chronic neck pain and severe headaches, depression and anxiety and chronic obstructive airway disease. He was physically very frail and vulnerable. In the view of the GP, his physical and psychological condition would deteriorate in custody.
A report provided to Australia Post by a Dr Grantley Tschirn, an occupational physician, confirmed the respondent’s chronic neck pain and advised that he was unfit to work as a postal delivery officer.
A home detention suitability report was prepared by the Department for Correctional Services. The author noted that the respondent had been prescribed Valium by his GP to assist him to address his use of methamphetamine. This had been helpful. The respondent continued to smoke cannabis on a daily basis for pain management purposes. He stated that he would be willing to undergo psychological counselling to break his addiction. He was unable to afford to purchase the medicines prescribed to treat his emphysema. He also did not take the medication prescribed for his depression due to its side-effects.
The report writer advised that the respondent was considered suitable for home detention but should be required to address his drug use, depression and appropriate pain management through psychological counselling. If he was unable to cease his use of cannabis completely, it was highly likely that home detention would fail.
Sentencing
The respondent was sentenced on 10 November 2016. After conducting a detailed analysis of the relevant provisions of the Criminal Law (Sentencing) Act 1988 the judge concluded that a sentence of home detention did not constitute a suspended sentence. For that reason the judge found the prohibition in s 20AAC(1)(b) of the Sentencing Act upon suspension of a sentence of imprisonment when sentencing a serious firearm offender for a serious firearm offence did not apply. Accordingly, the judge found that a home detention order was an available sentencing option.
After hearing sworn evidence from the respondent the judge found that he was not satisfied that his personal circumstances were such as to outweigh the need for general and personal deterrence as set out in s 10(2)(e) of the Sentencing Act. In the opinion of the judge, the respondent’s personal circumstances were no different from those that regularly, routinely or normally were encountered by sentencing judges. The respondent’s personal circumstances were not out of the ordinary, unusual, special or uncommon. Thus, they were not exceptional.
The judge also noted that there were a number of unsatisfactory aspects of the respondent’s sworn evidence. These included, in particular, how he came to possess the firearm, whether he knew the law relating to the possession of firearms, whether he had forgotten that he had the firearm and other matters. The judge stated that he considered that it was probably the case that the respondent had come into possession of the firearm in the way that he had described in his sworn evidence ie by buying it at the Brickworks Market about 10 years earlier rather than as he had said to the police. The judge thought it probable that the respondent had had the weapon for several years and it may be the case that he believed that his possession of it was not as serious as the possession of other firearms. However, the judge did not accept his evidence that he had forgotten that he had the firearm or that he thought that it had been stolen. The judge found it was more likely that the respondent knew the firearm was in the drawer in the shed although it was probable that he had not used it for some time and had no means or intention of using it in relation to the drugs that were in the shed.
The judge stated that he was satisfied that the respondent is not a threat to the safety of the community. He had become a serious firearm offender because his bail agreement had a mandatory condition prohibiting the possession of firearms and ammunition even though the driving charges that had led to entry into the bail agreement had nothing to do with firearms or ammunition. The judge thought it probable that the respondent had taken little notice of the bail conditions at least in so far as those conditions related to matters that were not the immediate subject of the offences for which he was then charged. The judge also noted that the particular firearm could have been lawfully obtained not many years ago.
The judge concluded that notwithstanding some adverse matters, he considered that the respondent was a suitable person to serve his sentence of imprisonment on home detention. His Honour had reached that conclusion after giving significant weight to his determination that he was not a risk to the safety of the community. He had the firearm more out of stupidity, naivety and a disorganised lifestyle rather than for the purposes of threatening anyone or using it in the furtherance of criminal offending.
The judge also found it favourable to the respondent that he had, and continued to have, treatment for health issues, including mental health issues.
The judge stated that the starting point of the sentence for the two firearms offences was imprisonment for two years. That would be reduced to a single sentence of imprisonment for one year and three months on account of his early guilty plea. His Honour added a further three months for the driving whilst disqualified offence after noting that that sentence had been reduced from four months imprisonment on account of the guilty plea. The sentences for the firearms and driving offences were made cumulative so that a head sentence of one year and six months was imposed. A non-parole period of 12 months was set. The judge ordered that the sentence of imprisonment be served on home detention.
The parties’ submissions

The Director contends that the judge erred in finding that a sentence of home detention could be imposed notwithstanding that his Honour was not satisfied that the personal circumstances of the respondent were so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration. The respondent contends that the matter was correctly decided by the judge.
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.
I agree with the finding by the judge that the respondent met all the requirements under s 33BB of the Sentencing Act for the making of a home detention order. Given his personal circumstances and the fact that the offences were clearly at the low end of serious firearms offences, the respondent poses no risk to the community. The home detention report was also favourable albeit that the respondent needs to address his cannabis addiction. It is also significant that he has now served more than six months on home detention.
In R v Hallcroft the Full Court found (Kourakis CJ with Peek, Stanley, Lovell and Doyle JJ agreeing) that the sentencing judge had made an error of law by reducing the non-parole period upon a murder conviction by the full amount of 30 per cent allowed for an early guilty plea without moderating that reduction by reference to the statutory minimum non-parole period.[4]
[4] [2016] SASCFC 137 at [78].
The Full Court went on to hold in Hallcroft that:
It is somewhat harsh to subject the respondent, who is already subject to a long term of imprisonment, to an upward review of his sentence because the Judge erred in the application of what is a complex statutory regime to the circumstances of his case. [5]
[5] Ibid at [79].
The Director was therefore refused permission to appeal.
While the circumstances in Hallcroft were different to the present matter, in both cases a sentence was imposed contrary to the requirements of the Sentencing Act. On both occasions a judge erred in the application of a complex statutory regime.
I consider that the approach adopted by the Full Court in Hallcroft should be adopted in this case. Accordingly, I would refuse permission for the Director to appeal on the basis that the question of statutory interpretation that concerns the Director has been answered by the judgment of this Court in R v Neal. That would result in the respondent continuing to serve his sentence on home detention.
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.