ARJAN MILE v THE KING [2023] SASCA 33

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DAVISON) DCCRM-22-1135 Appellant: ARJAN MILE Counsel: MR S HENCHLIFFE KC - Solicitor: STEVANJA & ASSOCIATES Respondent: THE KING Counsel: MS E MACGREGOR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 23/03/2023 File No/s: SCCRM-22-2133 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MILE v THE KING [2023] SASCA 33 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David) 30 March 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE The appellant seeks permission to appeal against sentence on the bases that the sentencing judge infringed the principles in The Queen v De Simoni (1981) 147 CLR 383 and s 10(1)(d) of the Sentencing Act 2017 (SA), and the sentence was manifestly excessive. The appellant was in possession of a loaded handgun which he brandished outside suburban premises in broad daylight when he was both deprived of sleep and intoxicated by alcohol and methylamphetamine. The appellant pleaded guilty to aggravated possession of a firearm without a licence and other offending. The appellant was sentenced to a term of imprisonment of four years which, after account was taken of the appellant’s plea, was reduced to three years, four months and five days. The sentencing judge fixed a non-parole period of two years. The sentencing judge refused to order that the sentence be served on home detention. HELD: (the Court) granting permission to appeal but dismissing the appeal: 1. It is not always easy to determine where the sentencing court must draw the line between considering relevant circumstances of aggravation and disregarding those which amount to uncharged offending. There will invariably arise questions of fact, degree and fairness, to be determined according to the particular facts and circumstances of each case. 2. There is no reason to go behind the remarks of the sentencing judge to the effect that the appellant was not to be sentenced in relation to any of the threats he made whilst he was on the property. -- 1 of 15 -- 3. None of the statements made by the sentencing judge regarding the circumstances of the offending amounted to findings of uncharged offending on which the appellant was sentenced. 4. Whilst it may be accepted that the sentence imposed in this case was severe, the offending was appropriately adjudged to be at the higher end of the scale for offending of its kind. The starting point of four years’ imprisonment was not manifestly excessive. Firearms Act 2015 (SA) ss 9 and 31; Sentencing Act 2017 (SA) ss 10 and 51; Summary Offences Act 1953 (SA) s 74AB, referred to. El-Ghourani v The Queen (2009) 195 A Crim R 208; Hassan v The Queen [2022] SASCA 56; Hili v The Queen (2010) 242 CLR 520; Johnson v The Queen (2004) 78 ALJR 616; Lloyd v The King [2023] SASCA 19; Markarian v The Queen (2005) 228 CLR 357; Nguyen v The Queen (2016) 256 CLR 656; Pearce v The Queen (1998) 194 CLR 610; R v Bukvic (2010) 107 SASR 405; R v Clift [2010] SASC 79; R v Daniele [2014] SASCFC 22; R v Grundy (2021) 138 SASR 94; R v Newman and Turnbull [1997] 1 VR 146; R v Nozuhur [2013] SASCFC 81; R v O’Toole [2013] SASCFC 18; R v Olbrich (1999) 199 CLR 270; R v Tran & Tran [2011] SASCFC 153; R v Tranter (No 2); R v Compton (2014) 119 SASR 480; R v Ttikirou [2018] SASCFC 76; Sims v The King [2023] SASCA 21; The Queen v De Simoni (1981) 147 CLR 383, considered. -- 2 of 15 -- MILE v THE KING [2023] SASCA 33 Court of Appeal – Criminal: Livesey P, Doyle and David JJA THE COURT: Introduction 1 By an amended notice of appeal dated 22 February 2023, the appellant seeks permission to appeal against a sentence of three years, four months and five days’ imprisonment, with a non-parole period of two years, imposed on 20 December 2022. That sentence was imposed following the appellant’s plea of guilty to the following offences: 1. aggravated possession of a class H firearm without a licence (being a Browning self-loading handgun), contrary to s 9(1) of the Firearms Act 2015 (SA), for which the maximum penalty was a $50,000 fine or imprisonment for 10 years.1 The pleaded circumstance of aggravation was that the firearm was loaded with ammunition; 2. possession of ammunition whilst not being the holder of a licence, contrary to s 31(1) of the Firearms Act 2015 (SA), for which the maximum penalty was a $10,000 fine or imprisonment for two years;2 3. refusing to answer questions put by police as to the identity of the driver of a motor vehicle, contrary to s 74AB(2)(a) of the Summary Offences Act 1953 (SA), for which the maximum penalty was a $1,250 fine or imprisonment for three months; and 4. failing to answer questions by the police as to firearms, contrary to s 55(5)(b) of the Firearms Act 2015 (SA), for which the maximum penalty was a $20,000 fine or four years’ imprisonment. 2 The sentencing judge commenced with a sentence of four years’ imprisonment for the aggravated possession of the handgun. After addressing the other offending and making allowance for the guilty pleas and time spent in custody, the sentencing judge fixed a non-parole period of two years. 3 The appellant complains that the sentencing judge sentenced him on a basis that was dependent upon circumstances of aggravation which constituted different offending where he had neither been charged nor convicted for that offending and, in any event, he contends that the sentence was manifestly excessive. 1 Firearms Act 2015 (SA), s 9(5)(b). 2 Firearms Act 2015 (SA), 31(12). -- 3 of 15 -- [2023] SASCA 33 The Court 2 4 For the reasons that follow, both appeal grounds are reasonably arguable but the appeal against sentence should be dismissed. The circumstances of the offending 5 On 30 April 2019, a woman purchased a Mercedes Benz for approximately $70,000. In May 2019, that vehicle was stolen. Around two years after that in 2021, police were engaged in the pursuit of a Mercedes which was later left at a tavern. The driver and occupants of the vehicle were never located by police. However, checks revealed that the Mercedes was the same as that which had been stolen in 2019; the vehicle had been repainted and fitted with new numberplates. Eventually the vehicle was returned to the woman who purchased it. 6 Later in 2021, the woman was home when, just before midday, the appellant was recorded on CCTV parking his Commodore in a carpark outside the woman’s home. Approximately 20 seconds later a female walked to the front door of the woman’s home. Whilst this was occurring, the appellant could be seen to be pacing in the carpark. The female knocked on the front door and claimed to be from the Church of Latter-day Saints, requesting to speak to the occupants. She was wearing a face mask and holding a clipboard. Despite being asked to leave, she was persistent. Eventually the front door was shut. 7 The female walked to the side of the house and waited for a few minutes before walking out of the front yard and over to the carpark where she was depicted speaking with the appellant. The appellant and the woman then got into the Commodore and drove away. 8 Less than half an hour later, the appellant came onto the woman’s property, and approached the front door. He was holding a handgun in his right hand. The occupants refused to open the front door. The appellant was heard to yell, “Give me back my fucking car”. The CCTV footage shows the appellant remaining in the front yard for around a minute and speaking during that time. On two occasions the appellant waved the firearm towards the house. On the first occasion this was at just below shoulder height and, on the second occasion, the handgun was raised level with shoulder height. 9 Eventually the appellant left and the woman called police. 10 Ten minutes later, police located the appellant’s Commodore parked a short distance away. The female earlier seen on CCTV footage was in the front passenger seat and the appellant was leaning into the rear passenger side. Following a search, police located drugs, an ice pipe, a black glove (apparently matching the gloves worn by the appellant as depicted in the CCTV footage), a Mercedes car key which matched the Mercedes in the possession of the woman, a baton wrapped in sheet lead and covered with metal spikes and a silver handgun with a black handle. The handgun was loaded with a magazine containing six live cartridges. There was a seventh cartridge loaded in the chamber of the handgun. -- 4 of 15 -- [2023] SASCA 33 The Court 3 11 When initially spoken to by police, the appellant denied that he had driven on the relevant roadway, but he then admitted that he had driven on the roadway and claimed that he had done so in connection with his work as a painter. The police search had revealed painting equipment in the boot of the Commodore. The appellant was arrested. 12 The handgun was not registered, and the appellant was not the holder of a relevant firearms licence. 13 After being taken to a police station, the appellant exercised his right to silence. Although he was told that he was required by law to answer questions about the identity of the driver of the Commodore vehicle and about the firearm, he maintained his silence. 14 Eventually, the appellant attended a psychologist, Mr Fugler, who provided a report to the court. The appellant’s history to the psychologist was that he could not recall much of the detail of his offending but he believed it was the result of using methylamphetamine and alcohol on the day of the offending as well as in the days before it. The appellant said that he had not slept for several days before the offending. 15 The appellant admitted to Mr Fugler that he wanted to recover the Mercedes. He said that he had discovered the loaded handgun in the passenger side of the Commodore. He denied that it was his weapon and said that he believed that it was left in the vehicle after he loaned his car to a friend. 16 The sentencing judge was not prepared to accept that a person known to the appellant had left a loaded firearm in his Commodore. The circumstances of the offender 17 The appellant had prior criminal convictions. In 1997 he was convicted of knowingly importing heroin and of having a false passport. The appellant was sentenced to a term of imprisonment of six years with a non-parole period of three years. 18 In 2006, the appellant was convicted of producing cannabis and damaging property for which he was given a suspended term of imprisonment. That sentence was successfully appealed. The appellant was discharged on entering a bond to be of good behaviour for one year and six months and ordered to pay compensation of $3,500.3 19 In 2010, the appellant was convicted of possessing an article to commit an offence and, later that year, he was convicted of cultivating a controlled plant and given another term of imprisonment which was suspended. 3 Mile v Police (2007) 97 SASR 549 (Sulan J). -- 5 of 15 -- [2023] SASCA 33 The Court 4 20 In 2014, the appellant was convicted of cultivating cannabis hydroponically. He was fined. In 2015, the appellant was given a further suspended sentence of imprisonment for driving whilst disqualified. 21 By the time of sentence, the appellant had been in custody on remand for around 14 months. 22 The appellant was at the time of sentence a 46-year-old man born in Albania. His childhood had featured a number of traumatic events including persecution over a “blood feud”. Later, the appellant was smuggled to Italy where he worked as a carpenter. Eventually, he managed to travel to Sydney. 23 The appellant met his female partner in Sydney. He later completed a painting course in Adelaide. Eventually, he lost his long-term contract as a painter and his family was placed under considerable financial pressure. After the appellant’s partner was mis-diagnosed with ovarian cancer, she resigned her employment and the family was placed under further financial pressure. 24 Mr Fugler was told by the appellant that he and his partner encountered difficulties and the appellant moved into the granny flat in the back garden of the family home. He became depressed and anxious and began using methylamphetamine. This severely affected the appellant’s functioning. He became “increasingly erratic and out of control”. 25 The appellant claimed that by the time of his offending he had fallen in with individuals associated with the drug trade. Mr Fugler diagnosed an untreated post- traumatic stress disorder and recommended referral to a drug and alcohol treatment program. In his opinion, the appellant required psychological assistance. 26 The sentencing judge was aware of the possibility that the appellant would be deported because he is not an Australian citizen. If he returned to Albania, he would again be exposed to the “blood feud” which was associated with a number of the traumatic experiences he had encountered in Albania. The approach of the sentencing judge 27 After reciting the circumstances of the offending and the offender, the sentencing judge explained that: … the offending, that is being in possession of a loaded firearm, is at the higher end of the scale for offences of this type. Not only did you have possession of this firearm but it was used by you in an attempt to intimidate and threaten members of the public in broad daylight. You were also intoxicated to a point where you now claim to be unable to recall the details of it. It hardly need be said, that for a person in that condition to have possession of a loaded firearm in a suburban area and using it as you were, constitutes a very serious offence. 28 Later, the sentencing judge returned to the seriousness of the offending: -- 6 of 15 -- [2023] SASCA 33 The Court 5 There is no doubt that the offences that you committed are serious. You had possession of a firearm that was loaded and used that firearm when you went onto the property. You are not to be sentenced in relation to any of the threats that you made whilst you were on the property as you have not been charged with those offences. 29 For the offence of aggravated possession of a firearm without a licence, the sentencing judge commenced with a term of imprisonment of four years which, after account was taken of the appellant’s plea, was reduced to three years, four months and five days. 30 For the offence of possessing ammunition whilst not being the holder of a licence, the sentencing judge commenced with a term of imprisonment of six months which, after allowance for the plea of guilty, was reduced to four months and seven days. That sentence was ordered to be served concurrently with the sentence of three years, four months and five days for aggravated possession of a firearm without a licence. 31 The sentencing judge convicted the appellant without further penalty on the two counts of failing to answer police questions. 32 After taking into account the appellant’s personal circumstances and his prospects of rehabilitation, the sentencing judge fixed a non-parole period of two years. 33 As the appellant was sentenced on the basis that he was a serious firearms offender, his sentence could not be suspended unless the sentencing judge was satisfied by evidence on oath that the appellant’s personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence and, in all of the circumstances, it is appropriate to suspend the sentence.4 34 Although the appellant did not seek to satisfy the sentencing judge of these matters, he did seek an order that his sentence be served on home detention. The sentencing judge rejected that sentencing option because she regarded the offending as “so serious and the need for deterrence, in particular personal deterrence, is so great”, that the sentence should not be served on home detention. As her Honour explained: You have in the past had the benefit of suspended sentences from the court when you have committed other offences. Your offending on this occasion was at the higher end of the scale for offences of this type. It represented a serious incursion to have a loaded firearm in the circumstances where you were brandishing it on another person’s property while you were intoxicated by alcohol and methylamphetamine. In the circumstances, I do not consider it appropriate that the sentence be served on home detention. It will therefore be served in custody. 4 See s 51(2) of the Sentencing Act 2017 (SA). -- 7 of 15 -- [2023] SASCA 33 The Court 6 35 Nonetheless, as will be seen, the appellant contended that any sentence should be served on home detention. The appellant’s contentions before this Court The Queen v De Simoni 36 The appellant relied on the sentencing principle embodied in The Queen v De Simoni as explained in Pearce v The Queen.5 In the former case Gibbs CJ explained:6 …the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted… The combined effect of the two principles … is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. 37 In the latter case, the plurality held that it was not an abuse of process to charge a defendant with the offence of inflicting grievous bodily harm with intent to cause grievous bodily harm, as well as with breaking and entering, provided the defendant was only sentenced for the offence or offences charged, “excluding consideration of any part of the accused’s conduct that could have been charged separately”:7 The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately. (Citations omitted) 38 The appellant contended that the proper ambit of the De Simoni principle was affirmed by Kirby J in R v Olbrich in the following terms:8 … It is fundamental that the respondent only be sentenced in respect of the particular offence to which he had pleaded guilty and of which he had been convicted. Where there are multiple offences of possible relevance to the facts but the accused has been charged and convicted of one or some only, it is a fundamental error to punish the accused on a basis dependent upon particular circumstances of aggravation which would constitute a different offence of which the accused has not been charged or convicted. If the Crown wishes to secure the punishment of an accused in respect of such aggravated circumstances, 5 The Queen v De Simoni (1981) 147 CLR 383; Pearce v The Queen (1998) 194 CLR 610. 6 The Queen v De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ, with whom Mason and Murphy JJ agreed at 395); Nguyen v The Queen (2016) 256 CLR 656, [28] (Bell and Keane JJ); [60] (Gageler, Nettle and Gordon JJ). 7 Pearce v The Queen (1998) 194 CLR 610, [31] (McHugh, Hayne and Callinan JJ). 8 R v Olbrich (1999) 199 CLR 270, [53] (Kirby J). -- 8 of 15 -- [2023] SASCA 33 The Court 7 it is obliged to lay the charge which would present the guilt of the accused of such offence as an issue for trial. This is a rule of law derived from the basic requirements of fair procedure. … 39 The appellant relied on a number of other decisions where appeal courts have emphasised that a defendant is not to be sentenced on the basis that a crime is aggravated by other criminal conduct which constitutes a different offence for which the defendant has neither been charged nor convicted.9 The appellant referred to the reasons of Hinton J in R v Ttikirou:10 One consequence of this is that if the State wishes an offender to be punished for another offence or an aggravating fact forming an element of another offence, it must charge the offender with that offence and prove it in the normal way.11 The simplicity of the De Simoni principle as stated above belies the potential complexity of its application. The second of the principle’s two limbs obviously conditions the first but it does not excise entirely from the application of the first limb all consideration of the uncharged offending. It is the precise content of the carve out contained in the second limb that occasions difficulty in the application of the principle.12 Obiter in R v Tran & Tran13 suggests the carve out is relatively confined and, on one view, may be considered not to preclude the use of uncharged offending in the same way as previous convictions may be used.14 Whatever the ambit of the carve out, it clearly protects the individual from punishment for uncharged offending. (Original citations) 40 The appellant also relied on s 10(1)(d) of the Sentencing Act 2017 (SA), which requires that the court apply the common law rule that a defendant may not be sentenced on the basis of having committed an offence in respect of which the defendant has not been convicted. 41 The appellant maintained that the sentencing judge breached the De Simoni principle by taking into account the appellant’s conduct in entering the front yard of the property whilst holding the handgun and brandishing it at the front door, threatening the occupants. These were, it was contended, aggravating features which increased the seriousness of the offence, thereby increasing the penalty and rendering home detention inappropriate. 9 R v Tran & Tran [2011] SASCFC 153, [40] (Gray J, with whom Sulan and Duggan JJ agreed); R v Tranter (No 2) (2014) 119 SASR 480, [27]-[60]; R v Bukvic (2010) 107 SASR 405, [38] (White J, with whom Doyle CJ agreed). 10 R v Ttikirou [2018] SASCFC 76, [63]-[64] (Hinton J). 11 Pearce v The Queen (1998) 194 CLR 610, [11]-[13] (McHugh, Hayne and Callinan JJ). 12 See for example, The Queen v Reiner (1974) 8 SASR 102, 105; R v Godfrey (1993) 69 A Crim R 318; R v Tran & Tran [2011] SASCFC 153 and R v Tranter & Compton (2014) 119 SASR 480. 13 R v Tran & Tran [2011] SASCFC 153, [28]-[30]. See also R v Tranter; R v Compton (2014) 119 SASR 480, [47]. 14 Veen v The Queen [No 2] (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ). -- 9 of 15 -- [2023] SASCA 33 The Court 8 42 The appellant illustrated these submissions by articulating various other charges which could have been, but which were not, pleaded against the appellant, being: 1. Possession of a firearm with intent to commit an offence punishable by imprisonment of 2 years or more (assault) – s 32 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) – for which the maximum penalty is 10 years’ imprisonment. 2. Aggravated threaten harm, the aggravating circumstance being the use of an offensive weapon – ss 5AA(1)(b) and 19(2) of the CLCA – for which the maximum penalty is 7 years’ imprisonment. 3. Aggravated assault involving use or threat of use of an offensive weapon – s 20(3)(c) of the CLCA – for which the maximum penalty is 4 years’ imprisonment. 4. Assault – s 20(3)(a) of the CLCA – for which the maximum penalty is 2 years’ imprisonment. 5. Entering or be present on premises for an unlawful purpose – s 17(1) of the Summary Offences Act 1953 (SA) – for which the maximum penalty is 2 years’ imprisonment. 43 Ultimately, the appellant’s submission was that because the sentencing judge referred to the “use” or “brandishing” of the loaded handgun, she had impermissibly taken into account threatening and intimidating behaviour. This was inconsistent with the sentencing remarks that the appellant was not to be sentenced for the threats he made whilst he was on the property, demanding the return of the Mercedes. It followed that the appellant had been sentenced for uncharged offending. 44 As this Court has recently emphasised, it is not inappropriate for a sentencing court to consider an aggravating circumstance which has not been pleaded but which is relied upon as a circumstance or feature of the offending which may be taken into account on sentence, even where it renders the charged criminal conduct more serious (though it does not affect the maximum penalty).15 45 It may be accepted that it is not always easy to determine where the sentencing court must draw the line between considering relevant circumstances of aggravation and disregarding those which amount to uncharged offending. 15 Hassan v The Queen [2022] SASCA 56, [64]-[66] (Doyle JA, with whom Kourakis CJ and Livesey P agreed); Lloyd v The King [2023] SASCA 19, [92]-[98] (Bleby and David JJA and Mazza JA); Sims v The King [2023] SASCA 21, [33] (Livesey P and Bleby JA), although it was not necessary to rule on the submission in that latter case. -- 10 of 15 -- [2023] SASCA 33 The Court 9 There will invariably arise questions of fact, degree and fairness, to be determined according to the particular facts and circumstances of each case.16 46 Viewed in isolation, the references made by the sentencing judge to the appellant’s entry onto the property and the “use” and “brandishing” of the handgun were capable of raising the risk that it appeared the appellant was being sentenced for offending with which he was not charged. However, the gravamen of the offending in this case was the possession of a loaded firearm without an appropriate licence. What the appellant intended was not relevant. That offending did not include the threats made which the sentencing judge expressly excluded from her consideration. 47 There is no reason to go behind the remarks of the sentencing judge to the effect that the appellant was not sentenced in relation to any of the threats he made whilst he was on the property, whether those threats were conveyed by words or by conduct. The use of the terms “brandishing” and “use” by the sentencing judge in her remarks must therefore be understood to be disengaged from the threats which her Honour expressly refrained from taking into account. 48 Moreover, it was appropriate for the sentencing judge to take into account the circumstances surrounding the appellant’s possession of the loaded handgun, namely, that it was being brandished in a suburban setting by an offender who was deprived of sleep and intoxicated by alcohol and methylamphetamine. Properly considered as a whole, the sentencing remarks identified this as the conduct on which the appellant was convicted and for which he was to be sentenced. 49 Referring to this conduct did not amount to sentencing for uncharged offending. The conduct on which the appellant was sentenced did not amount to offending akin to any of the five uncharged offences relied on by the appellant in his submissions. Rather, it was necessary to refer to this conduct so that the sentencing judge could properly determine the seriousness of the appellant’s offending given the conceivably broad spectrum for offending of this kind, ranging between “… spontaneous, somewhat pointless and perhaps naïve possession or (on the other hand) … calculated, targeted and sinister possession …”.17 Indeed, it would have been inappropriate to disregard what were unchallenged,18 relevant features of the offending captured on CCTV when determining the objective seriousness of the possession offences, including the risk posed to the community as well as the offender’s moral culpability and need for deterrence. 16 R v Newman and Turnbull [1997] 1 VR 146, 152 (Winneke P, with whom Hayne JA and Crockett AJA agreed); El-Ghourani v The Queen (2009) 195 A Crim R 208, [33] (Spigelman CJ, with whom James and Simpson JJ agreed); Hassan v The Queen [2022] SASCA 56, [66] (Doyle JA, with whom Kourakis CJ and Livesey P agreed) “there may be a degree of difficulty, and perhaps artificiality”. 17 R v Tranter (No 2); R v Compton (2014) 119 SASR 480, [39] regarding possession offending in a different context. 18 The Court of Criminal Appeal held in The Queen v Perre (1986) 41 SASR 105, 106 (King CJ) that the sentencing court is ordinarily required to sentence upon the basis of the evidence before it. It is for the offender to put into issue any of the facts on which the prosecution relies. -- 11 of 15 -- [2023] SASCA 33 The Court 10 50 There is a difference between the proper identification of aggravating circumstances and impermissibly taking into account and sentencing for uncharged offending, even if it is proved beyond reasonable doubt.19 None of the statements made by the sentencing judge regarding the circumstances of the offending amounted to findings of uncharged offending. The appellant was not sentenced for uncharged offending. 51 Whilst this ground of appeal is reasonably arguable, and permission to appeal should be granted, appeal ground 1 should be dismissed. The ground of manifest excess 52 On the ground of manifest excess, the appellant confined his challenge to the sentence imposed for the offence of aggravated possession of a category H firearm without a licence. He maintained that the starting point of four years was manifestly excessive having regard to the circumstances of the offending and the offender. The appellant contended that the sentence could only be supported by the uncharged conduct, rather than the charged conduct, and that he had never previously been convicted of any firearms-related offending. 53 Whilst acknowledging that each case must ultimately turn on its own facts and circumstances, the appellant invited attention to: 1. R v Clift,20 where the appellant was sentenced for possessing two loaded class H firearms without a licence, unlawful possession and trafficking in a large commercial quantity of ecstasy. The starting point for the two firearms offences was three years and six months’ imprisonment. 2. R v O’Toole,21 where the appellant was sentenced for possession of a loaded, unregistered firearm as well as cannabis offending. On appeal, the appellant was resentenced to two years’ imprisonment before allowance was made for time served. Ultimately, the appeal court suspended the sentence. 3. R v Grundy,22 where the Court of Appeal confirmed that a home detention order for a serious firearms offence could be made. 54 This Court recently summarised the requisite approach concerning the assessment of a contention of manifest excess in Lloyd v The King:23 In assessing whether a sentence is manifestly excessive, it is necessary to consider all matters relevant to the determination of a sentence, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. 19 Cf R v Bukvic (2010) 107 SASR 405, 413-414 [37]-[38] (White J, with whom Doyle CJ agreed). 20 R v Clift [2010] SASC 79. 21 R v O’Toole [2013] SASCFC 18. 22 R v Grundy (2021) 138 SASR 94. 23 Lloyd v The King [2023] SASCA 19, [117]-[118] (Bleby and David JJA and Mazza AJA). -- 12 of 15 -- [2023] SASCA 33 The Court 11 Ultimately, however, manifest excess or inadequacy is a conclusion and may not permit of ‘lengthy exposition.’24 In applying this approach, it needs to be borne in mind that there is no single correct sentence, and sentencing judges should be allowed ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.’25 (Citations in the original) 55 The overriding policy of the legislative scheme controlling the possession and use of firearms is the protection of the public, and general deterrence is of particular significance when sentencing for this kind of offending. As has been explained:26 Possession of a firearm is a privilege and a serious responsibility.27 The overriding policy of the Firearms Act 1977 (SA) is to protect the public by controlling the possession and use of firearms.28 Parliamentary debates indicate that this legislation was enacted in response to the increasing use of firearms in serious offences and the proliferation of such weapons in the community.29 Relevant amendments were made to the Firearms Act in 2008. In the second reading speech the Minister said:30 In South Australia, the majority of violent criminal behaviour with firearms does not involve legitimate firearms owners, nor legitimately owned, secured and registered firearms. Whilst there is some conjecture as to the quantity of illegal firearms circulating in the community, there is no doubt that there is a market for unrecorded and essentially untraceable firearms to be used for a criminal purpose. It is the nature of this enterprise that there exists difficulties in police being able to prevent this trade and the subsequent crime arising from it. The need for general deterrence is particularly apparent in sentencing for offences of this kind. The community should not be complacent about the dangers of firearms and the damage that can be caused by them.31 56 Not only was the appellant’s possession of a handgun and ammunition without appropriate licensing, but the handgun was loaded and being brandished by the appellant on a suburban property outside domestic premises in broad daylight when he was both deprived of sleep and intoxicated by alcohol and methylamphetamine. 24 Hili v The Queen (2010) 242 CLR 520, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 25 Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ) citing Johnson v The Queen (2004) 78 ALJR 616, [5] (Gleeson CJ) and [26] (Gummow, Callinan and Heydon JJ). 26 R v Daniele [2014] SASCFC 22, [25]-[26] (Gray J, with whom Kourakis CJ and Peek J agreed) 27 R v Nozuhur [2013] SASCFC 81, [22]-[26]. 28 Pollitt v Police [2007] SASC 382, [20]; R v Nozuhur [2013] SASCFC 81, [23]-[24]. 29 South Australia, Parliamentary Debates, House of Representatives, 14 April 1977, 3448 (Hugh Hudson). 30 South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2055 (Paul Holloway). 31 Offe v Police (2002) 84 SASR 1, [26]. -- 13 of 15 -- [2023] SASCA 33 The Court 12 57 The firearms possession offending in the cases relied on by the appellant was objectively much less serious because it was generally hidden and not in public.32 One may contrast that with cases where firearms offending has warranted starting points of 5 or more years’ imprisonment. For example: 1. In R v Daniele the Court of Criminal Appeal dismissed an appeal against sentence where the starting point was five years’ imprisonment for the possession of a loaded, sawn-off shotgun. The firearm was being carried in a bag on a suburban street at the time police apprehended the appellant. It was in two pieces and could not be fired without further assembly. The appellant had an intellectual disability and claimed, with some justification, that he required self-protection. The offending was in breach of an earlier suspended sentence bond.33 2. In Allsopp v The Queen the Court of Appeal refused permission to appeal against sentence where the starting point was five years and six months’ imprisonment for the possession of a loaded Beretta handgun in a suburban area whilst the applicant was deprived of sleep and affected by illicit drugs. The evidence showed that the firearm had earlier been discharged in a house. The applicant was at the time subject to a firearms prohibition order.34 58 Whilst it may be accepted that the sentence imposed in this case was severe, the offending was appropriately adjudged to be at the higher end of the scale for offending of its kind. Deterrence, both personal and general, were important sentencing considerations. The starting point of four years’ imprisonment was not manifestly excessive. 59 The appellant also argued that this was a proper case for home detention. That submission must be understood in the context in which it was made, namely, as part of an argument about manifest excess. The question is whether the failure to order home detention reveals error of a kind that warrants the intervention of the appeal court. Having regard to the approach carefully articulated by the sentencing judge, set out earlier, it cannot be said that the failure to order home detention reveals error or resulted in a sentence that was manifestly excessive or was otherwise unjust. 32 R v Clift [2010] SASC 79, [3] (Nyland and Gray JJ) (firearms were hidden in a home and concealed in a vehicle); R v O’Toole [2013] SASCFC 18, [16] (Peek J, with whom Sulan J agreed) (the firearm was hidden in a warehouse). See also Allsopp v The Queen [2021] SASCA 34, [44] (Kelly P, Lovell and Doyle JJA) cf Calabrese v The Queen [2022] SASCA 26, [26] (Livesey P and David JA). 33 In R v Daniele [2014] SASCFC 22, for the offence of aggravated possessing a firearm without a licence, the judge had imposed a sentence of imprisonment of three years and nine months and for the offence of failing to store ammunition separately from firearms, the defendant was convicted without further penalty. The judge said that he had made a reduction of about 25 per cent on account of the early guilty pleas. 34 In Allsopp v The Queen [2021] SASCA 34, the appellant had been sentenced to one sentence for three offences under s 26 of the Sentencing Act 2017 (SA). The offences all related to one firearm: one count of aggravated possessing a prescribed firearm without a license, one count of contravening a firearms prohibition order and possession of a category H firearm without identifying marks. -- 14 of 15 -- [2023] SASCA 33 The Court 13 60 Appeal ground 2 is reasonably arguable. Though permission should be granted, the appeal on the ground of manifest excess should be dismissed. Conclusion 61 Permission to appeal is granted but the appeal is dismissed. -- 15 of 15 --