Ericson v The King [2023] SASCA 99 (21 September 2023)
Mr Ericson (‘the appellant”), a member of an outlaw motorcycle gang named the ‘Comancheros’ pleaded guilty to having sprayed the home of a member of the ‘Hells Angels’ outlaw motorcycle gang with four blasts from a shotgun. The Hells Angels member, ‘G’, normally lived at the home with his wife and a child. The three of them were not in the house when it was attacked but other people were. When the appellant fired the shots there was play equipment in the front yard which would have indicated that it was probably the case that a child lived there.
‘G’ refused to cooperate in the police investigation which meant that the case against the appellant could not be assisted by a statement from the victim of the shooting. The police nevertheless gathered sufficient evidence to prove that the appellant was the offender.
On his plea of guilty, the appellant, with discounts for his plea, was sentenced to imprisonment for three years, seven months and seven days with a period of two years and two months before he would be eligible to be released on parole.
The appellant appealed against this sentence on the basis that it was too much – it was ‘manifestly excessive’.
The Court of Appeal dismissed the appeal for a number of reasons. First was the seriousness of firearms offending generally, which represents a real and serious threat to the community.
Second was the seriousness of the discharging of the firearm, which involved very dangerous, deliberate and pre-meditated offending. At least three people lived at the property and the play equipment at the front would have indicated the presence of a child.
The third was the possession of the firearm, which had not been recovered and for which the appellant had no licence.
The fourth was the relevance of the fact that this was a dispute between criminals. The appellant was a member of a violent criminal organisation engaged in a dispute with another such member. This heightened the need for general deterrence so that the community was protected from the criminal activities of such organisations. In addition, was the fact that the appellant had previous convictions for serious criminal offending and had committed the offence within four months of having been released from prison. His prospects of rehabilitation were poor.
In the circumstances the court decided a strong response was appropriate and the sentence imposed was a proper exercise by the sentencing judge of the sentencing discretion.
Comment
This case illustrates the fact that a criminal offence is one that is committed against the community. While an individual may be a victim of a crime, the State is the prosecutor, not the victim. This is because a crime against any individual in the community is a crime against the whole community. The police did not need ‘G’ to ‘press charges’ before they could take action against the appellant. In a similar vein, the fact that the notional victim of the crime, ‘G’, was himself a member of a violent criminal organisation, and non-cooperative, did not make the crime any the less serious.