JOSHUA BROUGHAM v Counsel: MR P TATE - [2023] SASCA 75

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) DCCRM-21-709 Appellant: JOSHUA BROUGHAM Counsel: MR C KUMMEROW - Solicitor: CARTER & CO LAWYERS Respondent: Counsel: MR P TATE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 16/05/2023 File No/s: SCCRM-23-000984 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. BROUGHAM v THE KING [2023] SASCA 75 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle) 29 June 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - GENERALLY During a Firearms Prohibition Order compliance check, police located a loaded rifle secreted with the roof of the applicant's garden shed. The rifle's serial number was ground off. The applicant was found guilty by a jury of four firearms offences relating to the rifle, including possession of a firearm and ammunition whilst subject to an FPO (Counts 3 and 4). The sentencing Judge imposed a single head sentence of four years and four months' imprisonment with a non-parole period of two years, seven months and seven days. The applicant appeals against the sentence imposed. The issue on appeal is whether the notional starting points indicated for Counts 3 and 4 are excessive, such that the overall head sentence is manifestly excessive. Held, per the Court, granting leave to appeal but dismissing the appeal: 1. The notional starting points imposed in relation to Counts 3 and 4 were manifestly excessive. -- 1 of 12 -- 2. However, in all of the circumstances, it cannot be said that the head sentence itself, although at the upper end of the range of available sentences, was manifestly excessive. Firearms Act 2015 (SA) ss 9, 29(5), 44, 45; Sentencing Act 2017 (SA), referred to. Calabrese v The Queen [2022] SASCA 26; Cocks v The Queen [2022] SASCA 21; Lloyd v The King [2023] SASCA 19; Mile v The King [2023] SASCA 33; R v Daniele [2014] SASCFC 22; R v Gasmier [2011] SASCFC 43; R v Ioannidis [2015] SASCFC 158; R v Simpson (2016) 125 SASR 352; Warne v The Queen [2020] SASCFC 124; White (a pseudonym) v The Queen [2022] SASCA 78, considered. -- 2 of 12 -- BROUGHAM v THE KING [2023] SASCA 75 Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA 1 THE COURT: In the course of a Firearms Prohibition Order (FPO) compliance check, police located a loaded rifle secreted within the roof of the applicant’s garden shed. The firearm’s identifying serial number had been ground off. The applicant was found guilty by a jury of four firearms offences relating to the firearm, including possession of a firearm whilst subject to an FPO and possession of ammunition whilst subject to an FPO. 2 After indicating notional sentences for each offence, the sentencing Judge imposed a single head sentence of four years and four months’ imprisonment and fixed a non-parole period of two years, seven months and seven days. In doing so, he considered the notional sentences would run wholly concurrently as the offending was interconnected. 3 The applicant appeals against the sentence imposed. The principal issue on appeal is whether the notional starting points indicated for the breach of the FPO offences were excessive such that the overall head sentence was manifestly excessive. The circumstances of the offending 4 It was not in dispute that the applicant had been subject to an FPO at the time of the offending and had been since 27 August 2019. The FPO was served on the applicant on 4 September 2019. Its terms included the applicant’s disqualification from obtaining any firearms licence and that he must not acquire, possess or use any firearm, part, sound moderator or ammunition. 5 On 3 May 2020, a licenced firearms owner reported stolen a Marlin 25, .22 bolt-action rifle, serial No.18653361, and some stolen rifle scopes. 6 At 8.55 am on 12 May 2020, police attended at the applicant’s premises to conduct an FPO compliance check. They found a Marlin 25, .22 calibre bolt-action rifle (the rifle) secreted within the roof of a freestanding garden shed in the applicant’s backyard. The rifle was lodged between two sheets of roofing and had been wrapped in a tight layer of yellow and black tape and then loosely within a dark jacket. The rifle was loaded with a magazine containing seven rounds of long rifle calibre rim-fire ammunition. Two scopes were located within another shed on the applicant’s premises. 7 The rifle matched the description of the firearm reported stolen on 3 May 2020, with the exception of the serial number, which had been ground off. The rifle scopes were confirmed as those reported stolen on 3 May 2020. -- 3 of 12 -- [2023] SASCA 75 The Court 2 8 The applicant gave evidence at trial to prove a defence, on the balance of probabilities, that he did not know and could not reasonably be expected to have known that the firearm was on the premises. The jury were not satisfied of the defence and convicted the applicant of four counts in relation to the rifle, namely: • Count 1: aggravated possession of a Category A firearm without holding a firearms licence,1 maximum penalty $35,000 or imprisonment for seven years.2 The circumstance of aggravation was that the firearm was loaded; • Count 2: possessing a firearm without a lawful identifying mark,3 maximum penalty $20,000 or imprisonment for four years;4 • Count 3: possessing a firearm whilst subject to an FPO,5 maximum penalty $75,000 or imprisonment for 15 years;6 and • Count 4: possessing ammunition whilst subject to an FPO,7 maximum penalty $35,000 or imprisonment for seven years.8 Personal circumstances 9 At the time of sentence, the applicant was 33 years of age. He never knew his biological father and was brought up by his biological mother and stepfather. He has two younger siblings. He attended school until Year 10 and was regularly employed from the age of 16, including as a forklift driver and warehouse manager. 10 Prior to the revocation of his bail, the applicant was employed on a full-time casual basis as a storeman. He had been in a relationship for five years and has a daughter with his partner. His daughter was nine-months old at the time of sentence. The applicant lived with his partner and his partner’s mother in a house owned by his partner’s mother. The FPO 11 The applicant was issued with an FPO on 27 August 2019. In issuing that order, the Delegate of the Registrar of Firearms had regard to the applicant’s criminal antecedents including, inter alia, convictions for assault causing harm, possession of a knife in a school or public place and convictions in the Children’s Court of aggravated serious criminal trespass and carrying an offensive weapon. 12 The Delegate imposed the FPO for two reasons. First, the Delegate was satisfied, on the basis of the applicant’s antecedents, that he was not a fit and proper 1 Contrary to s 9(1) of the Firearms Act 2015 (SA). 2 Firearms Act 2015 (SA) s 9(5)(c). 3 Contrary to s 29(5)(b) of the Firearms Act 2015 (SA). 4 Firearms Act 2015 (SA) s 29(5)(c). 5 Contrary to s 45(2) of the Firearms Act 2015 (SA). 6 Firearms Act 2015 (SA) s 45(2)(a). 7 Contrary to s 45(2) of the Firearms Act 2015 (SA). 8 Firearms Act 2015 (SA) s 45(2)(b). -- 4 of 12 -- [2023] SASCA 75 The Court 3 person to possess a firearm and that it was in the public interest that an FPO apply to him.9 Second, the Delegate was satisfied that the applicant had been a member of a criminal organisation, namely the Hells Angels.10 The applicant was no longer a member of the Hells Angels as at 12 March 2019. The approach to sentence 13 In sentencing the applicant, the sentencing Judge took into account his personal circumstances, the factual basis of the offending and the evidence given by the applicant at trial. 14 The sentencing Judge was satisfied beyond a reasonable doubt that the applicant knew that the firearm was secreted in the roof of the shed when it was found by police and sentenced the applicant on that basis. His Honour remarked: You resided at the premises where the firearm was found. You had the opportunity to secrete the firearm where it was found. The premises were secure to the extent others were prevented from access as the gate was padlocked and the fences were intact. It is unlikely, due to the security of the property, that others had used it. The circumstances of the location of the rifle required a person to access the roof of the shed on your premises and lodge the rifle where it was found. The rifle was hidden by the person who put it there and it is unlikely anyone else would have hidden that firearm in that location. You have a demonstrated interest in firearms. You had possession of two rifle scopes in another shed. One of those rifle scopes had been stolen from the premises of Mr Pham at the same time as a firearm which matched the description of the .22 rifle found secreted in the shed roof. Finally, the identifying mark had been removed from the rifle, making it unidentifiable and untraceable. I will therefore sentence you on the basis you knew the firearm had been secreted in the roof of your shed. 15 The sentencing Judge considered the danger of firearms in the context of the protection of the safety of the community. He recognised the community’s concern with the illegal possession of firearms. The sentencing Judge observed that the overriding policy of the Firearms Act 2015 (SA) (Firearms Act) is the protection of the public by controlling the possession and use of firearms. He further observed that the provisions relating to FPO’s; “go to the very heart of that protection of the community”. The sentencing Judge recognised the heightened importance of personal and general deterrence in the circumstances. 16 The sentencing Judge had regard to the applicant’s FPO. He found that since 4 September 2019, the date on which the applicant was served the order, the applicant was aware that he was disqualified from obtaining any firearms licence and from acquiring, possessing or using any firearm, part, sound moderator or ammunition. 9 In accordance with s 44(1)(a)(ii) of the Firearms Act 2015 (SA). 10 In accordance with s 44(1)(b)(ii) of the Firearms Act 2015 (SA). -- 5 of 12 -- [2023] SASCA 75 The Court 4 17 In relation to the applicant’s prospects of rehabilitation, his Honour remarked: Given the firearms prohibition order and the finding I have made as to your knowledge of the rifle and the ammunition found by police, I consider your prospects of rehabilitation poor. I also consider there is a reasonable likelihood of you re-offending. The sentence imposed 18 Although the sentencing Judge proceeded under s 26 of the Sentencing Act 2017 (SA) (the Act), he identified, in accordance with s 26(2a) of the Act, the notional sentences that would have been imposed had he not proceeded with a single sentence. The sentences indicated were as follows: • Count 1 (aggravated possession of a Category A firearm): two years’ imprisonment; • Count 2 (possessing a firearm without an identifying mark): two years’ imprisonment; • Count 3 (possessing a firearm whilst subject to an FPO): four years and six months’ imprisonment; and • Count 4 (possessing ammunition whilst subject to an FPO): three years’ imprisonment. 19 The sentencing Judge proceeded to impose a single sentence. In doing so, he considered that the “individual sentences would be wholly concurrent, given the offending was interconnected”. He commenced with a starting point of four years and six months’ imprisonment, reduced by two months on account of time spent on supervised bail. The resulting head sentence was four years and four months’ imprisonment with a non-parole period of two years, seven months and seven days. 20 As the applicant was a serious firearms offender,11 the sentencing Judge was precluded from suspending the sentence of imprisonment imposed unless satisfied of the criteria set out in s 51(2) of the Act. While the applicant did not seek to satisfy the Judge of those criteria, he did seek an order that his sentence be served by way of home detention. 21 The sentencing Judge declined to make such an order. He observed: This offending is very serious. You knew the firearm had been secreted in your shed roof when subject to a firearms prohibition order. Firearms prohibition orders are a tool provided to law enforcement to ensure public safety and you were aware you were disqualified from obtaining any firearms licence and that you could not acquire, possess or use any firearm part, sound moderator or ammunition. 11 By virtue of his breach of the FPO; Sentencing Act 2017 (SA) s 49(1)(b)(iii). -- 6 of 12 -- [2023] SASCA 75 The Court 5 In such circumstances, I consider that if I made an order your sentence be served by way of home detention it would or may affect public confidence in the administration of justice. On that basis I must not make such an order and I decline to do so. You will serve your sentence in custody. 22 The head sentence and non-parole period were backdated to commence on 14 October 2022, the day the applicant was taken into custody. Contentions 23 The applicant contended that the notional starting points indicated for the breach of the FPO offences, Counts 3 and 4, were manifestly excessive and therefore that the overall sentence was manifestly excessive. There is no complaint regarding the indicative sentences for Counts 1 and 2. 24 The applicant identified the disparity in notional sentences between Count 3 (four years and six months) and Count 1 (two years), as demonstrative of the weight afforded to the applicant’s breach of the FPO, given that the former offence, possessing a firearm whilst subject to an FPO, contemplates the same elements as possession of a firearm, but for the fact of the circumstances of aggravation and the breach of the FPO. 25 The applicant submitted that in the circumstances of the offending and the circumstances of the initial imposition of the FPO by the Delegate, the applicant’s breaches of the FPO fell on the lower end of the “spectrum” of offending for its type. 26 The respondent emphasised the dangers firearms pose to the safety of the community and the overriding policy of the Firearms Act, being the protection of the public by controlling the possession and use of firearms. The respondent submitted that the protection of the community and the need for personal deterrence were of paramount importance in the circumstances of the offending. The respondent accepted that the applicant’s antecedents contained no prior offences involving firearms but reiterated that he was not to be sentenced as a first offender. 27 Having regard to the applicable maximum penalties for the offences, the circumstances surrounding the commission of the offending, the paramount consideration of the need for protection and safety of the community, the applicant’s limited but relevant criminal history and the need for both personal and general deterrence, the respondent submitted that the sentence imposed, irrespective of the notional sentences identified, was within the range reasonably open to the sentencing Judge. Discussion 28 The principles governing a consideration of whether a sentence is manifestly excessive are well established. Whether a sentence is manifestly excessive requires consideration of a range of matters relevant to the sentencing task, including the -- 7 of 12 -- [2023] SASCA 75 The Court 6 maximum penalty for the relevant offending, where the circumstances of the offending sit on the scale of seriousness of crimes of that type, and the personal circumstances of the offender. There is, however, a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not permit of lengthy exposition.12 29 The sentencing Judge, in sentencing the applicant, utilised s 26 of the Act and imposed one sentence. As discussed, the sentencing Judge nominated ‘notional sentences’ for each offence in accordance with s 26(2a). He considered that the sentences should all be served totally concurrently and therefore the final sentence represented the penalty notionally stated as being appropriate in relation to Count 3. 30 In his submissions, the applicant focussed on the notional penalty of four years and six months relating to Count 3 and submitted that the notional penalty for Count 3 was manifestly excessive and that this exposed the error in the sentencing Judge’s approach to sentencing. The applicant accepted that the sentences notionally applied to Counts 1 and 2 were appropriate. 31 However, as the sentencing Judge utilised s 26 and imposed one sentence, it is not sufficient that the applicant merely establish that the notional starting point for Count 3 was manifestly excessive. While notional starting points may provide some support for a submission that the sentence is manifestly excessive, the applicant must establish that the final sentence imposed for all the offending is manifestly excessive. When looking at the overall sentence, this Court is not bound to follow the ‘notional sentences’ nor the sentencing Judge’s approach to concurrency when considering whether the single sentence is manifestly excessive. 32 There is considerable overlap, as the sentencing Judge acknowledged, between all counts. The principles relating to concurrency and partial concurrency in sentencing were set out and discussed in White (a pseudonym) v The Queen.13 In our view, applying total concurrency between the sentences, while generous to the applicant, did not reflect the exacerbating features of the particular charges. In the circumstances of this case, a combination of partial and full concurrency would have better reflected those features. 33 The common element of Counts 1 and 3 is the possession of the firearm. However, each count contains a separate and distinct element, each of which makes the offending more serious. The sentence imposed must reflect the combination of aggravating features established by the guilty verdicts. 34 That is, not only did the applicant possess the firearm, but it was loaded (Count 1), it had no lawful identifying mark (Count 2), and the applicant was, at the time of the offending, subject to an FPO which he breached. The sentence had to reflect, in addition to those matters, Count 4 on the Information. Count 4 deals 12 Lloyd v The King [2023] SASCA 19 at [116]–[118]. 13 White (a pseudonym) v The Queen [2022] SASCA 78. -- 8 of 12 -- [2023] SASCA 75 The Court 7 with the ammunition in the rifle, as does Count 1, but there is the additional factor that possession of the ammunition was a breach of the FPO. 35 The different maximum penalty for Count 3 (15 years or $75,000) compared with Counts 1 (seven years or $35,000) and 2 (four years or $20,000) indicates that the breaches of the FPO are more serious matters than the aggravating features contained within Counts 1 and 2. 36 Returning to the sentencing Judge’s approach, he notionally imposed a sentence of two years’ imprisonment for the aggravated offence of possession of a firearm. Logically, the possession of the firearm without the feature of aggravation would have attracted a lesser notional sentence. Count 2 also involves a feature additional to the possession of the firearm. The element of possession of the firearm in Count 3 is non-aggravated. The sentencing Judge notionally imposed a sentence of four years and six months. Comparing that notional sentence to that nominated in relation to Count 1 demonstrated that the extra feature of Count 3, that is the breach of FPO, attracted a penalty of more than two years and six months. 37 There is an obvious incongruency between the penalties notionally imposed for Count 1 compared with Count 3. In our view, the notional starting point in relation to Count 3 was wrong and manifestly excessive. The notional sentence for Count 4 is also manifestly excessive. 38 That, as mentioned earlier, does not mean that the sentence itself is manifestly excessive. This Court must consider the total criminal conduct, and the question of concurrency, and/or partial concurrency, when determining the question of whether the final sentence was manifestly excessive. That is, the Court is not bound to accept the sentencing Judge’s allocation of notional sentences for the other counts, nor are we bound by his approach to the question of concurrency. 39 The sentencing Judge ameliorated the effect of the notional sentences for Counts 3 and 4 by making them wholly concurrent with each other and with the sentences imposed for Counts 1 and 2. However, the application of concurrency principles cannot operate to make ‘reasonable’ what is a plainly unreasonable and unjust sentence.14 40 Previous cases for similar offending demonstrate that a wide range of penalties have been applied. Unsurprisingly, much depends upon the personal circumstances of the offender, the type of firearm involved and the factual matrix surrounding the possession. Cases involving different circumstances, particularly 14 Cocks v The Queen [2022] SASCA 21 at [43]. -- 9 of 12 -- [2023] SASCA 75 The Court 8 where they involve the possession of numerous firearms,15 are of limited assistance.16 41 Clearly, an important factor in considering a proportionate sentence in this matter is the breach of the FPO. 42 The overriding policy of the legislative scheme controlling the possession and use of firearms is the protection of the public. General deterrence holds particular significance in the sentencing exercise for offending in contravention of this scheme, given the danger of firearms and the damage that can be done.17 43 As the sentencing Judge recognised, the purpose of the FPO provisions of the Firearms Act go to the “very heart” of that protection of the community. Their introduction by the Firearms (Firearms Prohibition Orders) Amendment Bill 2008 formed part of the legislative initiative to “curb motorcycle gang violence”.18 Parliament recognised the use of FPO’s as a tool in combatting “firearms related violence by giving police the ability to ban persons with a known propensity for violence, or persons who associate with such persons, from possessing or accessing firearms.”19 44 The maximum penalties for a breach of an FPO by possession of a firearm ($75,000 or imprisonment for 15 years) and ammunition ($35,000 or imprisonment for seven years) reflect the seriousness with which Parliament views this type of offending. Further, a breach of an FPO is recognised as a ‘serious firearms offence’ for the purposes of the Act, which has the effect of proscribing suspended sentences for this type of offending unless the criteria set out in s 51(2) of the Act are made out. 45 As Kourakis CJ observed in R v Ioannidis:20 It can be concluded from the conditions and considerations controlling the administrative and judicial powers to make FPOs, that possession of a firearm or firearm accessory by a person who is the subject of an FPO creates a material risk to the safety of the community. … [I]t is plain that by creating the offence, and providing for the penalties … Parliament has deemed the risk arising from the possession of a firearm or firearms accessory by a person who is the subject of an FPO to be a serious one. 15 See, for example, R v Gasmier [2011] SASCFC 43; R v Simpson (2016) 125 SASR 352; Warne v The Queen [2020] SASCFC 124. 16 See Calabrese v The Queen [2022] SASCA 26 at [30]. 17 R v Daniele [2014] SASCFC 22 at [25]–[26]; Mile v The King [2023] SASCA 33 at [55]. 18 South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2055 (The Hon P Holloway). 19 South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2055 (The Hon P Holloway). 20 R v Ioannidis [2015] SASCFC 158 at [8]; [10]. -- 10 of 12 -- [2023] SASCA 75 The Court 9 46 The circumstances of the initial imposition of the FPO are, as the applicant submitted, relevant considerations in determining sentence for the breach of an FPO. However, a breach of an FPO is serious offending as demonstrated by the maximum penalty and legislative policy discussed above. This is so notwithstanding the reasons given by the Delegate for the imposition of the order. 47 Turning to the present circumstances, the Delegate was satisfied of both ss 44(1)(a)(ii) and 44(1)(b)(ii) of the Firearms Act. To the extent that the reasons for imposing the FPO are relevant, we accept that the order was imposed in circumstances that did not recognise the applicant, should he possess a firearm, as an undue danger to life or property. Rather, the applicant was found not to be a fit and proper person to possess a firearm. We accept that Mr Brougham’s criminal antecedents, although including an offence involving violence, do not demonstrate any history of firearms or firearms related offences. In relation to the s 44(1)(b)(ii) finding, both parties accepted that Mr Brougham’s association with the Hells Angels occurred over a limited period of approximately four months and that the applicant was no longer considered associated with the club as at the date the FPO was imposed. 48 Proper weight needs to be given to the fact of a firearm in possession of an individual specifically prohibited from possessing a firearm and who was, at one stage, associated with a criminal organisation. Having abandoned his conviction appeal, the applicant now accepts his convictions. On appeal, he did not proffer any explanation for his possession. That is not a mitigatory factor. 49 Taking into account all of the circumstances including the personal circumstances of the applicant, it cannot be said that the sentence, while at the upper end of the range of available sentences, is manifestly excessive. 50 While strictly unnecessary, given our remarks about the notional sentence suggested in relation to Counts 3 and 4, we will indicate what we consider to be the preferable approach to sentencing the applicant. 51 No argument was addressed by either party as to whether the notional penalties imposed on Counts 1 and 2, each being two years’ imprisonment, were appropriate. In these circumstances, we would proceed on that basis without further comment. 52 We would have imposed a notional starting point for Counts 3 and 4 as follows: • Count 3: three years and six months’ imprisonment; and • Count 4: one year imprisonment. 53 We would have allowed a significant measure of concurrency between Counts 1, 2, 3 and 4 in order to avoid double punishment as a result of the overlapping criminality between the various offences. That said, we would not -- 11 of 12 -- [2023] SASCA 75 The Court 10 make the sentences fully concurrent. It is appropriate that the overall sentence reflect the fact that the offending involved various features over and above the possession of the firearm in breach of the FPO. Even allowing a significant measure of partial concurrency, the overall sentence would nevertheless have been at or about the length of the sentence imposed by the sentencing Judge. 54 It cannot be said, applying the principles of partial concurrency and imposing a single sentence pursuant to s 26 of the Act, that the final sentence of four years and four months is manifestly excessive. Ground 2 55 For the reasons expressed by the sentencing Judge, the circumstances of the offending are too serious to warrant an order that the sentence be served by way of home detention. An order for home detention would not adequately achieve the objectives of the sentencing exercise, and in particular the need to ensure an adequate level of punishment and general deterrence given the seriousness of the offending. Orders 56 We would refuse leave to appeal on Ground 2. We would grant leave to appeal on Ground 1 but dismiss the appeal. -- 12 of 12 --