ETHAN ERICSON v THE KING [2023] SASCA 99

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DAVISON) DCCRM-22-1133 Applicant: ETHAN ERICSON Counsel: MR A GRAHAM - Solicitor: ANDREW EY (MANGAN EY & ASSOCIATES) Respondent: THE KING Counsel: MS R RICHARDSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 11/09/2023 File No/s: SCCRM-23-8803 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. ERICSON v THE KING [2023] SASCA 99 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David) 21 September 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION Application for permission to appeal against sentence. Following pleas of guilty, the appellant was convicted of one count of discharging a firearm to injure, annoy or frighten a person, contrary to s 32AA(1) of the Criminal Law Consolidation Act 1935 (SA) (Count 1), and one count of possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA) (Count 3). The appellant’s offending involved the brief possession of a shotgun without a licence, and the use of that firearm to fire four shots at the front of the residential premises of a member of a rival motorcycle gang. From notional starting points of four years imprisonment and three years imprisonment for Counts 1 and 3 respectively, and after reductions for guilty pleas, the sentencing judge indicated sentences of two years, seven months and seven days imprisonment for Count 1 and one year, 11 months and 13 days imprisonment for Count 3. Her Honour ordered that the sentence for Count 3 be served concurrently as to 11 months and 13 days, and hence cumulatively as to one year. That resulted in -- 1 of 15 -- an overall head sentence of three years, seven months and seven days imprisonment. The judge fixed a non-parole period of two years and two months. The appellant seeks permission to appeal on two grounds: 1. the sentencing judge erred by making the sentence imposed for Count 3 cumulative as to one year; and 2. the sentence is manifestly excessive. Held (per the Court), granting permission to appeal but dismissing the appeal: 1. the overlap between the circumstances informing the seriousness of the two offences, and the consequential risk of double punishment, was adequately addressed through the mechanism of concurrency; and 2. the overall sentence imposed was within the sentencing judge’s discretion. Criminal Law Consolidation Act 1935 (SA) ss 5AA, 32AA; Firearms Act 2015 (SA) s 9, referred to. Allsopp v The Queen [2021] SASCA 34; Armistead v The Queen [2011] VSCA 84; Atkinson v The Queen [2021] VSCA 127; Berichon v The Queen (2013) 40 VR 490; Best v The Queen [2015] VSCA 151; Broughman v The King [2023] SASCA 75; Mile v The King [2023] SASCA 33; Pearce v The Queen (1998) 194 CLR 610; R v Cekic [2016] SASCFC 26; R v Cullen [2015] SASCFC 44; R v Daniele [2014] SASCFC 22; R v De Simoni (1981) 147 CLR 383; R v Hoar (1981) 148 CLR 32; R v Hunter [2022] SASCA 136; R v Overall (1993) 71 A Crim R 170; R v Pishdari (2018) 274 A Crim R 91; Sabato v The Queen [2021] SASCA 65; Saner v The Queen [2104] VSCA 134, considered. -- 2 of 15 -- ERICSON v THE KING [2023] SASCA 99 Court of Appeal – Criminal: Livesey P, Doyle and David JJA 1 THE COURT: Following pleas of guilty, the appellant was convicted of two offences: • Count 1: discharging a firearm to injure, annoy or frighten a person, contrary to s 32AA(1) of the Criminal Law Consolidation Act 1935 (SA), with a maximum penalty of imprisonment for eight years; • Count 3: possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA), with a maximum penalty of a fine of $35,000 or imprisonment for seven years (the firearm being a Category C or D firearm). 2 The appellant is a member of an outlaw motorcycle gang. His offending involved the brief possession of a shotgun without a licence, and the use of that firearm to fire four shots at the front of the residential premises of a member of a rival motorcycle gang. The appellant was sentenced on the basis that he was in possession of the firearm for the purpose of committing a criminal offence, and that the subsequent discharging of the firearm into the victim’s house was a deliberate and premeditated act. 3 For Count 1, which was particularised as discharging a firearm intending to frighten a person, the sentencing judge adopted a starting point of four years imprisonment. After a reduction of 35 per cent for the appellant’s plea of guilty, the judge imposed a sentence of two years, seven months and seven days imprisonment. 4 For Count 3, the sentencing judge adopted a starting point of three years imprisonment. After a reduction of 35 per cent for the appellant’s plea of guilty, the judge imposed a sentence of one year, 11 months and 13 days imprisonment. 5 The sentencing judge ordered that the sentence for Count 3 be served concurrently as to 11 months and 13 days (that is, almost half of the head sentence), and hence cumulatively as to one year. That resulted in an overall head sentence of three years, seven months and seven days imprisonment. 6 The judge fixed a non-parole period of two years and two months, and declined to suspend the sentence. 7 The appellant seeks permission to appeal on two grounds: 1. the sentencing judge erred by making the sentence imposed for Count 3 cumulative as to one year; and 2. the sentence is manifestly excessive. -- 3 of 15 -- [2023] SASCA 99 The Court 2 8 The application for permission to appeal was referred for hearing as on appeal. Circumstances of the offending 9 At about 7.30 pm on 23 June 2022, the appellant was the front-seat passenger in a vehicle that drove past a residential address on Barunga Avenue, Ingle Farm. The address in question was the home address of a Hells Angels member, G. The appellant was (and remains) a member of the Comancheros. Both the Hells Angels and Comancheros are outlaw motorcycle gangs or OMCGs. It is accepted that the offending occurred in the context of a dispute between these rival gangs. But there was no evidence as to the reason for the appellant’s offending, or to the effect that it was committed at the direction of an OMCG. 10 The description of the offending which follows is based upon CCTV footage seized from G’s address. 11 The appellant got out of the car and walked towards the driveway of G’s house. He was carrying a shotgun, and wearing dark pants with a hoodie over his head. Once at the bottom of the driveway, the appellant pointed the shotgun in the direction of G’s house and fired about four shots (Count 1). He then picked up some spent cartridges and ran back to the car, which drove off. 12 About a minute later, G arrived home with his female partner and his young son. As their car pulled into the driveway, a male associate of G emerged from the direction of the house holding two spearguns. G and this man then spent some time in conversation and pacing around the front yard holding a speargun each. 13 Police attended about two hours later, but G declined to provide a statement. In addition to finding a spent cartridge at the bottom of the driveway, police observed buckshot or pellet damage to a front roller shutter near the front door and to the wooden fascia board of the verandah. The distance from the cartridge at the bottom of the driveway to the verandah was about 11 metres. 14 The appellant was arrested on 12 July 2022. 15 The shotgun used in the offending has not been recovered. However, from the way the appellant fired and reloaded it in the CCTV footage, it appears to have been a pump-action shotgun, which is a Category C or D firearm. 16 Count 3 relates to the appellant’s unlicensed possession of the firearm immediately before and after discharging it in the circumstances described above. 17 Text messages between the appellant and his sister revealed that the shotgun was dropped off at his sister’s house in the hours leading up to the offending; and that the sister gave him the address and lent him her car to carry out the shooting. Shortly after the shooting, she sent him a text asking “Hows my car?”, to which he -- 4 of 15 -- [2023] SASCA 99 The Court 3 responded, “Good did the shooting”. The sister was separately charged with aiding and abetting the discharge of a firearm intending to frighten a person. Personal circumstances 18 At the time of sentencing, the appellant was 26 years of age. 19 He was born in Adelaide and raised by both his parents. His father was an alcoholic and often violent. His father’s violent tendencies led him to leave home at age 15 and live on the streets. The appellant had limited schooling, attending West Lakes Primary School and then Henley High. He left school during Year 9 and began working as a gardener. He subsequently worked in paving and then asbestos removal work. 20 The appellant is not married but has a supportive partner who has two children of her own. The appellant has an eight-year-old son from a previous relationship. 21 The appellant has a history of offending. In addition to offending such as affray, carrying offensive weapons, assault and theft, he was sentenced in May 2019 for an offence of aggravated theft using force. That offending occurred in January 2019, and involved the appellant pointing a syringe containing a red liquid at a staff member while robbing a service station. He subsequently turned himself in to police. After a reduction for his guilty plea, the appellant was sentenced for that offending to three years imprisonment, with a non-parole period of 18 months. 22 The appellant has experienced difficulties with drug use from the age of 15, including being a user of methylamphetamine for a lengthy period of time. However, he has not used drugs since being taken into custody in January 2019. 23 When sentenced for his 2019 offence, reference was made to the appellant suffering from a schizoaffective disorder and a bipolar disorder. During sentencing submissions for the present offending, the appellant’s counsel informed the sentencing judge that the appellant’s mental health had improved dramatically since abstaining from drugs. 24 The appellant became a member of the Comancheros at around the time of his incarceration in 2019. He was sentenced on the basis that he remained a member of that gang as at the date of sentencing. There was police evidence before the sentencing judge to the effect that the culture of OMCGs such as the Comancheros is characterised by a code of silence, practices of intimidation towards the community and police, and violence and other illegal behaviour. Sentencing remarks 25 The judge accepted the prosecution submission that it was important to publicly denounce and punish individuals who engage in dangerous acts, such as possessing and using a firearm in a suburban neighbourhood. -- 5 of 15 -- [2023] SASCA 99 The Court 4 26 Whilst observing that it was not relied upon as an aggravating feature for the purposes of s 5AA(1)(ga) of the Criminal Law Consolidation Act,1 the sentencing judge considered that the appellant’s membership of the Comancheros, and the gang-related context of the offending, were nevertheless relevant to the sentencing exercise, and in particular the appellant’s prospects of rehabilitation. 27 The sentencing judge rejected the defence submission to the effect that because the victim of the offending was himself a member of an OMCG, and hence had accepted a culture of violence, it could be inferred that the victim in this case was less vulnerable, and that any fear and harm caused by the offending was less significant than might otherwise have been the case. In rejecting this submission, the judge said that this context did not lessen the seriousness of the offending; it remained extremely serious offending, with a significant need to deter others from committing such offences. That was particularly so in the circumstances of the present case where there were other people living at the house, including a young child. The judge explained that, even if the appellant had not been aware of this prior to arriving at the house, the play equipment in the front yard would have been visible to him upon his arrival. 28 The judge described the offending as extremely serious: The paramount consideration in determining a sentence is the protection of the community; general and personal deterrence must also be taken into account. Your offending was extremely serious as you were not only in possession of an illegal firearm but you used this firearm to fire shots at a residential property four times where the victim, his partner and young child usually resided. The fact that violence is commonplace within outlaw motorcycle gangs is an unacceptable part of that society; offending such as this, also puts the lives of innocent members of the community at risk within the community. 29 Despite the appellant demonstrating some remorse, the judge considered that the appellant had poor prospects of rehabilitation: It was submitted to me that you are remorseful for your offending and this is highlighted by your early guilty plea in relation to this matter today. You have also told me that you apologise, that you were deeply regretful for your offending and that you were very remorseful. You say that you wished to live a life that is crime-free when you are released. I will take into account all that was said in relation to that. I cannot however ignore that you gained your membership of the Comancheros whilst in custody in 2019 and within four months of your release and completion of your parole you engaged in further offending. Your continued involvement with this gang and the obligations that entails, means that I consider your prospects of rehabilitation are poor at the present time. 30 Turning to the sentence to be imposed, the judge explained that she must impose a sentence that deterred not only the appellant but also other individuals who might commit similar offences. A term of imprisonment was required. 1 In that the appellant did not commit an offence for the benefit of a criminal organisation, or whilst identifying himself as belonging to, or associated with, a criminal organisation. -- 6 of 15 -- [2023] SASCA 99 The Court 5 31 The judge then identified separate sentences for each of the two offences. As to the Count 1 offence, her Honour said that the action of discharging the firearm was “a premeditated and deliberate act”, committed against a member of a rival OMCG. Noting that there were people, including a young child, living at the house, her Honour said it was “clearly a serious matter”. From a starting point of four years imprisonment, she reduced this on account of the appellant’s plea of guilty to imprisonment for two years, seven months and seven days. 32 As to the Count 3 offence, the judge observed that the firearm “was in your possession for the sole purpose of committing a criminal offence”. Her Honour mentioned the appellant’s text message exchange with his sister suggesting that the firearm had been dropped off at her house in the hours leading up to the offending; and that the shotgun has not been recovered. From a starting point of three years imprisonment, the judge reduced this on account of the appellant’s plea of guilty to imprisonment for one year, 11 months and 13 days. 33 The judge directed that one year of the sentence for Count 3 be served cumulatively upon the sentence for Count 1, meaning that the sentence imposed for Count 3 was to be served concurrently as to 11 months and 13 days (that is, concurrently as to slightly less than 50 per cent of the sentence for that offence). 34 The overall head sentence was thus imprisonment for three years, seven months and seven days. 35 In setting a non-parole period, the judge took into account the appellant’s personal circumstances, and her view that his prospects of rehabilitation were not good for so long as he continued to associate with a group such as the Comancheros. Her Honour fixed a non-parole period of two years and two months. 36 The sentencing judge declined to suspend the appellant’s sentence of imprisonment, or to order that it be served on home detention. Ground 1: double punishment 37 Ground 1 involves a complaint that the sentencing judge erred in making the sentence for Count 3 (‘the possession offence’) cumulative as to one year with the sentence imposed for Count 1 (‘the discharge offence’). 38 In developing this complaint, it became clear that the appellant’s complaint is one of double punishment, contrary to the approach required by the High Court in Pearce v The Queen.2 39 In addressing the concern to avoid double punishment, the plurality in that case (McHugh, Hayne and Callinan JJ) commenced by noting that in order to punish the whole of an accused’s criminal conduct, there will be cases where more than one offence must be charged, and punishment exacted for each.3 This 2 Pearce v The Queen (1998) 194 CLR 610. 3 Pearce v The Queen (1998) 194 CLR 610 at [37] (McHugh, Hayne and Callinan JJ). -- 7 of 15 -- [2023] SASCA 99 The Court 6 potential for a multiplicity of charges so as to enable the imposition of a sentence that will truly reflect the overall criminality of the accused’s conduct is a corollary of the principle in R v De Simoni.4 40 Their Honours proceeded to explain that care was nevertheless necessary to ensure that the sentences imposed for multiple offences did not result in double punishment:5 To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means the offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. 41 Their Honours went on to observe that identifying an act which is common to two offences may not always be straightforward. But the task should be approached as a matter of common sense, rather than as a matter of semantics, or in a manner attended by technicalities, or excessive subtlety or refinement.6 42 In that case, there was an obvious and significant overlap between the relevant offences, as they both included the infliction of grievous bodily harm as an element.7 It was not apparent that the sentencing judge had addressed this overlap so as to avoid double punishment, and their Honours were not satisfied that the imposition of concurrent sentences adequately addressed this difficulty.8 Their Honours thus allowed the appeal against sentence and remitted the matter for resentencing consistently with the reasons of the High Court.9 43 Gummow J agreed with the reasons of the plurality on this issue, referring to the principle against the duplication of penalty for what is substantially the same act.10 44 Kirby J addressed the concern with double punishment in similar terms. Expanding upon the role of concurrency in addressing this concern, his Honour explained that while this may be a practical means of avoiding double punishment in some instances, it was not always appropriate or sufficient:11 4 R v De Simoni (1981) 147 CLR 383; Sabato v The Queen [2021] SASCA 65 at [105] (Doyle JA, Kelly P and Bleby JA agreeing). 5 Pearce v The Queen (1998) 194 CLR 610 at [40] (McHugh, Hayne and Callinan JJ). 6 Pearce v The Queen (1998) 194 CLR 610 at [39], [42] (McHugh, Hayne and Callinan JJ). 7 Pearce v The Queen (1998) 194 CLR 610 at [43], [49] (McHugh, Hayne and Callinan JJ). 8 Pearce v The Queen (1998) 194 CLR 610 at [49] (McHugh, Hayne and Callinan JJ). 9 Pearce v The Queen (1998) 194 CLR 610 at [50] (McHugh, Hayne and Callinan JJ). 10 Pearce v The Queen (1998) 194 CLR 610 at [68] (Gummow J). 11 Pearce v The Queen (1998) 194 CLR 610 at [120]-[121] (Kirby J). -- 8 of 15 -- [2023] SASCA 99 The Court 7 … special care must still be taken by the sentencing judge to avoid the imposition of punishment which imposes sanctions for criminal conduct in respect of which the offender has already received sentence.12 The judge may make the sentences for multiple offences of which the accused is convicted concurrent if they are considered to be manifestations of the one criminal enterprise, transaction or episode. But that course can never be a complete answer to a complaint about double punishment. Leaving aside the consideration of punishment inherent in recording a second conviction, it remains the judicial duty to impose a sentence apt for each particular offence proved; but to do so in a way that avoids double punishment and takes account of any specific circumstances of aggravation reflected in the elements of the separate offences upon which the accused has been convicted.13 It is tempting to regard the imposition of common concurrent sentences as a practical way of avoiding the risk of double punishment. There may be cases where it does so. But there are distinct risks in proceeding in that way. The duplication of sentences, although to be served concurrently, may yet amount to double punishment. The differential features of the successive offences (which alone justify double prosecution and punishment) may not be taken into account, adequately or at all. In short, the judicial discretion exercised in the consideration of punishment may not readily provide the means of curing the defects of unjustifiable vexation or the risks of double punishment. In the imposition of a sentence in such circumstances, great care must be taken to avoid double punishment for the same conduct. That care should be manifest in the reasons of the sentencing judge. 45 Applying this reasoning, Kirby J was not satisfied that the sentencing judge had adequately addressed the risk of double punishment:14 In the absence of any mention of separate consideration of the punishment proper to each offence, the appellant has a legitimate grievance about the primary judge’s reasons for sentence. The primary judge failed to make express allowance for the fact that, although separate offences were charged and the appellant convicted of each of them, each referred to substantially the same facts and circumstances. … I agree that insufficient attention was disclosed to the risk of punishing the appellant twice for the conduct amounting to the infliction of grievous bodily harm common to counts 9 and 10. 46 Kirby J expressed agreement with the other members of the Court that there was a risk that the appellant had been punished twice for the same, or substantially the same, conduct.15 His Honour acknowledged that if the matter were to be remitted for resentence, then this would involve “explicit differentiation in the punishment for the two offences and demonstrating the care expressly taken to avoid double punishment for the common elements of those offences.”16 However, his Honour ultimately dissented in the result because he considered that whilst the reasoning of the sentencing judge was defective, the overall sentence imposed was nevertheless appropriate.17 12 R v Hoar (1981) 148 CLR 32 at 38. 13 R v De Simoni (1981) 147 CLR 383 at 389; R v Overall (1993) 71 A Crim R 170 at 173-174. 14 Pearce v The Queen (1998) 194 CLR 610 at [130] (Kirby J). 15 Pearce v The Queen (1998) 194 CLR 610 at [132] (Kirby J). 16 Pearce v The Queen (1998) 194 CLR 610 at [133] (Kirby J). 17 Pearce v The Queen (1998) 194 CLR 610 at [134] (Kirby J). -- 9 of 15 -- [2023] SASCA 99 The Court 8 47 The reasoning in Pearce was subsequently applied by the High Court in Johnson v R.18 It was also applied by this Court in Sabato v The Queen.19 The appeals against sentence in both cases were allowed on the ground that the sentencing judge had failed to address the risk of double punishment arising out of the commonality in the elements of the offences with which the appellant had been convicted and sentenced.20 48 In seeking to apply the reasoning in Pearce to the present case, counsel for the appellant contended that there was significant overlap between the discharge and possession offences; that the latter added little to the criminality of the former in circumstances where the possession was for only a short period of time and for the purpose of committing the discharge offence. In circumstances where the punishment for the discharge offence expressly took account of the premeditated nature of the discharge offence, the appellant contended that to take account of the fact that the possession was “for the sole purpose of committing a criminal offence” was to ignore the overlap between the two offences and to inflict double punishment. On the appellant’s argument, the only additional criminality inherent in the possession offence was the absence of a firearms licence for the shotgun, which would be a common, and hardly significant, feature of instances of the discharge offence. 49 In our view, the appellant’s argument understates the significance of the additional criminality in the possession offence, and overstates both the extent of any overlap and hence the significance of Pearce to the sentencing exercise in the present case. 50 In explaining this view, the first point to make is that, contrary to the appellant’s submissions, the judge did not conflate the two offences. Whilst the judge described the appellant’s offending as extremely serious because he was “not only in possession of an illegal firearm but … used this firearm to fire shots at a residential property”, this was intended merely as a compendious description of the overall criminality of the appellant’s conduct. It was not indicative of any conflation of the two offences. To the contrary, in the following paragraph the judge separately addressed, and imposed sentences for, each of the two offences. 51 The discharge offence required proof that the appellant discharged a firearm with an intention to frighten. Whilst an offender will ordinarily need to possess a firearm in order to discharge it, possession is not an element of the offence, and possession of the firearm for any period of time before and after discharging it was not a necessary factual incident of the offending. 18 Johnson v R (2004) 78 ALJR 616. 19 Sabato v The Queen [2021] SASCA 65. 20 Johnson v R (2004) 78 ALJR 616 at [1]-[3] (Gleeson CJ), [33]-[35] (Gummow, Callinan and Heydon JJ), [38], [45] (Kirby J); Sabato v The Queen [2021] SASCA 65 at [106], [129], [130] (Doyle JA, Kelly P and Bleby JA agreeing). -- 10 of 15 -- [2023] SASCA 99 The Court 9 52 It is true that the sentencing judge took into account that the appellant’s discharge offence was premeditated, but that premeditation was conceptually and factually distinct from the possession of the shotgun. It was a reference to an earlier intention to commit, and the preparation and planning for, the discharge offence. Whilst this included arrangements to obtain possession of the firearm, this is not quite the same as, and certainly not limited to, the fact of possession. It included making other arrangements, such as arranging the use of his sister’s car. 53 For the reasons explained by the sentencing judge, and elaborated upon later in these reasons, the discharge offence was plainly very serious offending. Quite properly, there is no challenge to the use of a starting point of four years imprisonment for this offence when considered alone. 54 Turning to the possession offence, it required proof that the appellant possessed a firearm, while unlicensed. There is no overlap between the elements of this offence and the elements of the discharge offence. The use or discharge of the firearm is not an element of the possession offence. To the extent that possession of the firearm at the moment of its discharge was inherent in the facts or conduct constituting the discharge offence, this was addressed, at least in a formal sense, by the prosecution confining its allegation of possession to the appellant’s possession of the shotgun before and after the act of discharging it. 55 The appellant’s submissions understate the significance of his conduct in possessing the firearm without a licence. The Firearms Act, through the range of offences it creates, is intended to closely regulate and control the licensing and possession of firearms.21 The rationale for this is obvious, given the dangers associated with the possession of firearms, and the potential threat to the safety of the community that firearms present. The seriousness of contraventions of the regime for the licensing and possession of firearms is readily apparent from the maximum penalties prescribed by Parliament. In the case of the unlicensed possession of a Category C or D firearm, the maximum penalty is a fine of $35,000 or imprisonment for seven years. 56 Even when the reason or purpose for an offender’s unlicensed possession of a Category C or D firearm is not known, a significant sentence of imprisonment will commonly be imposed. However, evidence of an offender’s purpose for the possession of a firearm may inform the seriousness of the possession offence, and where that possession is for a nefarious purpose, that will be an aggravating circumstance. 57 It is true that in adopting a starting point of three years imprisonment for the appellant’s possession offence, the sentencing judge took into account that the appellant’s purpose for possessing an unlicensed shotgun was to commit a criminal offence, being the discharge offence which he did proceed to commit. However, 21 R v Daniele [2014] SASCFC 22 at [25]-[26] (Gray J, Kourakis CJ and Peek J agreeing); R v Cullen [2015] SASCFC 44 at [22]-[27] (Gray J, Kourakis CJ and Stanley J agreeing); Allsopp v The Queen [2021] SASCA 34 at [41] (Kelly P, Lovell and Doyle JJA). -- 11 of 15 -- [2023] SASCA 99 The Court 10 there is a clear and obvious distinction between having a purpose of committing an offence and in fact committing that offence. There is no reason to think that the sentencing judge overlooked this distinction or otherwise took into account the commission of the discharge offence when arriving at a starting point of three years imprisonment for the possession offence. 58 To the extent that there was any risk of overlap between the two offences, and hence of double punishment, it lay in the potential for some overlap between the “purpose” that informed the seriousness of the possession offence and the “premeditation” that informed the seriousness of the discharge offence. These are conceptually distinct matters, with different meanings and content. That said, it is appropriate to acknowledge that they overlap to some extent. They both involve taking account of the appellant’s state of mind during the period leading up to his possession and use of the firearm, as evidenced by his text message exchanges with his sister. 59 However, this overlap in the context or circumstances informing the seriousness of the two offences is of a different nature and significance to the clear overlap in the elements of the offences in both Pearce, Johnson and Sabato. Whilst the reasoning in Pearce suggests that the concern with double punishment extends beyond an overlap in the elements of the offences, and encompasses an overlap in other acts and conduct forming part of the offending, that reasoning also emphasises the undesirability of taking an approach to sentencing that is overly technical or subtle. 60 In our view, the overlap in the circumstances informing the seriousness of the discharge and possession offences was relatively limited, and appropriately addressed through a measure of concurrency between the sentences imposed for the two offences. The reasoning in Pearce suggests that caution is required in relying upon concurrency to address double punishment, lest the fact and significance of the overlap be overlooked in the sentencing process. But in a case such as the present, where the overlap is limited and subtle, we see no difficulty in it being addressed through a measure of concurrency. 61 This approach is supported by our review of several Victorian authorities which have grappled with the difficulty in sentencing an offender for offending which includes not only the unlawful possession of a firearm, but also offending involving the use of that firearm.22 Those cases reveal an approach which emphasises the concern to ensure there is no double punishment, but which also 22 Atkinson v The Queen [2021] VSCA 127 at [27]-[35] (Priest and T Forrest JJA); Berichon v The Queen (2013) 40 VR 490 at [25]-[30] (Redlich JA), [38]-[53] (Priest JA), [129]-[142] (Robson AJA); Best v The Queen (2015) 46 VR 196 at [38]-[42], [82] (Ashley, Redlich and Priest JJA); Kruzenga v The Queen [2014] VSCA 10 at [12]-[21] (Wienberg JA, Redlich JA agreeing); Saner v The Queen [2014] VSCA 134 at [112]-[121], [166] (Tate JA, Redlich JA agreeing); Armistead v The Queen [2011] VSCA 84 at [8]-[12] (Redlich JA, Weinberg JA agreeing). -- 12 of 15 -- [2023] SASCA 99 The Court 11 accepts the permissibility of addressing this concern through partial concurrency, or the modest accumulation of the sentences to be imposed. 62 Returning to the present case, the overlap to which we have referred is related to other considerations that supported, and were appropriately addressed by, a measure of concurrency. We refer in this respect to the temporal and factual proximity between the two offences, and indeed the more general connection between the two offences given that the possession was for the purpose of committing the discharge offence. This connection between the two offences meant that they were apt to be described as part of the one criminal enterprise or transaction. And the imposition of a penalty for one was likely to assist in achieving the sentencing objectives to be addressed by the imposition of a penalty for the other. A measure of concurrency was plainly appropriate, indeed required. 63 In deciding to order almost 50 per cent partial concurrency in respect of the possession offence, the sentencing judge was undoubtedly alive to these considerations. The breadth of a sentencing judge’s discretion when it comes to determining the extent of any measure of concurrency is well recognised. Having concluded that it was appropriate to address the considerations identified in the preceding paragraph through the mechanism of concurrency, we do not think there is any basis for impugning the extent of the concurrency imposed. The overlap between the circumstances informing the seriousness of the two offences, and the consequential risk of double punishment, was adequately addressed through the mechanism of concurrency. 64 For the reasons set out, Ground 1 has not been made out. Ground 2: manifest excess 65 The principles governing the determination of a complaint of manifest excess are well settled and need not be restated. 66 In developing his complaint of manifest excess, the appellant did not challenge the reasonableness of the starting points or sentences for either of the two offences when considered in isolation. Rather, his complaint focused upon the ultimate or overall sentence. 67 After reductions for his guilty pleas, and allowance for partial concurrency in respect of the sentence for the possession offence, the sentence ultimately imposed was imprisonment for three years, seven months and seven days. However, the appellant contended that in considering the reasonableness of this overall sentence, it is also appropriate to have regard to the fact that this reflected starting points of four years and three years respectively for the two offences, and assuming approximately 50 per cent concurrency for the latter, an overall starting point of about five years and six months. 68 Whilst acknowledging the seriousness of the offending, the appellant’s counsel submitted that the overall sentence was simply too high. He provided the -- 13 of 15 -- [2023] SASCA 99 The Court 12 Court with a schedule of various first instance sentences for the discharge offence, there apparently being no appellate consideration of sentences for that offence. He acknowledged the limitations of the exercise, but submitted that a review of these sentences indicated that the sentences imposed for the discharge offence were generally less than the sentence imposed in the present case for that offence. 69 Recognising the differing circumstances informing the various sentences, the appellant’s counsel did not seek to use his review of sentences as a basis for directly impugning the appellant’s sentence for the discharge offence. Rather, he sought to use it to demonstrate, or support his argument, that the overall sentence was too high. He argued that, given the limited additional criminality inherent in the possession offence, an implied starting point of five years and six months was out of kilter with sentencing practice in the higher courts in this state, and manifestly excessive. 70 Quite apart from the usual limitations in the usefulness of a review of first instance sentencing practices, the difficulty with the appellant’s argument is that it understates the full extent of the (additional) criminality associated with the unlicensed possession of the firearm. For the reasons already canvassed, possession of an unlicensed firearm is, of itself, a serious matter, as indicated by the maximum penalties prescribed by Parliament. We see no difficulty with this additional criminality adding approximately 18 months to the overall sentence (before any reduction for the appellant’s pleas of guilty), after allowing for any overlap in the surrounding context and circumstances relevant to both offences through partial concurrency. 71 In any event, there were several considerations which made a significant sentence of imprisonment appropriate in the present case. They included the following. 72 The first was the seriousness of firearms offending generally. As explained in cases such as R v Cullen,23 R v Daniele24, Allsopp v The Queen,25 Mile v The King26 and Brougham v the King,27 firearms offending represents a very real and serious threat to public safety. The importance of protecting the community and general deterrence will often call for a strong sentencing response in the case of firearms offences. 73 The second was the seriousness of the discharge offence. It involved very dangerous offending. It involved the appellant firing four shots at the front of a residential property, at which at least three people were living. Whilst the appellant may not have anticipated that a child lived at the premises, the presence of play equipment in the front yard made this likelihood apparent. The offending was 23 R v Cullen [2015] SASCFC 44 at [22]-[27] (Gray J, Kourakis CJ and Stanley J agreeing). 24 R v Daniele [2014] SASCFC 22 at [25]-[26] (Gray J, Kourakis CJ and Peek J agreeing). 25 Allsopp v The Queen [2021] SASCA 34 at [41] (Kelly P, Lovell and Doyle JJA). 26 Mile v The King [2023] SASCA 33 at [55] (Livesey P, Doyle and David JJA). 27 Brougham v The King [2023] SASCA 75 at [42] (Livesey P, Lovell and Doyle JJA). -- 14 of 15 -- [2023] SASCA 99 The Court 13 deliberate and premeditated. The appellant had several hours between taking possession of the firearm and discharging it to reflect upon whether to commit the discharge offence. 74 The third was the seriousness of the possession offence. We have already mentioned the inherent seriousness of this offence. The purpose for possessing the firearm makes it a particularly serious instance of that offence, albeit that it was necessary to ensure that any overlap between this purpose and the circumstances of the discharge offence was adequately addressed through the measure of concurrency ordered by the sentencing judge. 75 It was also relevant that both offences apparently occurred in the context of a dispute between the Comancheros and the Hells Angels, being rival OMCGs. In particular, it is relevant that the appellant was not only a member of the Comancheros at the time of his offending, but also remained a member at the date of his sentencing. As explained by this Court in R v Hunter,28 by reference to passages from R v Cekic29 and R v Pishdari,30 identification with, and loyalty to, a violent criminal organisation is relevant to several of the usual sentencing objectives. It heightens the need for general deterrence so as to deter, and protect the community from, the criminal activities of such organisations. It speaks to the character of the offender, which is relevant to the need to personally deter the offender from re-offending, the likelihood of the offender re-offending, and the offender’s prospects of rehabilitation. 76 In addition to this, the appellant had a history of offending which, when considered in the context of his ongoing membership of the Comancheros, was a matter of concern. This history included his serious offending in January 2019, which resulted in a significant term of imprisonment. The appellant had only been released from prison about four months prior to the present offending. 77 The combination of the above considerations amply justified the sentencing judge’s conclusion that the appellant’s prospects for successful rehabilitation were poor. 78 Bearing in mind all of the above, a strong sentencing response was appropriate, and indeed required. We are satisfied that the overall sentence imposed was within the sentencing judge’s discretion. Conclusion 79 For the reasons set out, we would grant permission to appeal but dismiss the appeal. 28 R v Hunter [2022] SASCA 136 at [41]-[45] (Doyle, Bleby and David JJA). 29 R v Cekic [2016] SASCFC 26 at [30] (Vanstone J, Kelly J and David AJ agreeing). 30 R v Pishdari (2018) 274 A Crim R 91 at [22]-[24] (Nicholson J, Kourakis CJ agreeing). -- 15 of 15 --