and Mark Bruno Bosa v The Queen
[2018] VSCA 97
•19 April 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2018 0066 | |
| MARK BRUNO BOSA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 April 2018 |
| DATE OF JUDGMENT: | 19 April 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 97 |
| JUDGMENT APPEALED FROM: | DPP v Bosa [2018] VCC 376 (Judge Condon) |
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CRIMINAL LAW — Appeal — Sentence — Possessing unregistered handguns and drugs of dependence — Prosecution concession on plea that community correction order within range — Aggregate sentence of six months’ imprisonment — Whether manifestly excessive — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Farrington | Garde-Wilson Lawyers |
| For the Respondent | Mr M D Phillips | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
On 21 March 2018, the applicant pleaded guilty in the County Court to two charges of possessing an unregistered handgun[1] (charges 1 and 2); possessing a firearm on which there is no serial number[2] (charge 3); storing a firearm in an insecure manner when unlicensed[3] (charge 4); and two charges of possessing a drug of dependence[4] (charges 5 and 6, respectively methylamphetamine, and MDA, cocaine and methylamphetamine).[5]
[1]Firearms Act 1996, s 7B. The maximum penalty for a first offence is 600 penalty units or seven years’ imprisonment.
[2]Firearms Act 1996, s 134C. The maximum penalty is 240 penalty units or four years’ imprisonment.
[3]Firearms Act 1996, s 129A. The maximum penalty is 240 penalty units or four years’ imprisonment.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). On charge 5, the maximum penalty is 400 penalty units or five years’ imprisonment (or both), and on charge 6 the maximum penalty is 30 penalty units or one year’s imprisonment.
[5]The applicant also pleaded guilty to a summary charge of possessing cartridge ammunition without a licence or permit, for which he was convicted and fined $500.
Notwithstanding that the prosecutor had on the plea accepted that a community correction order (‘CCO’) was ‘within range’, on 23 March 2018 the sentencing judge imposed an aggregate term of six months’ imprisonment upon the applicant, expressing the view that the applicant’s offending was ‘too serious to warrant a non-custodial disposition’.[6]
[6]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, she would have imposed a term of imprisonment of two years, with a non-parole period of 12 months.
By a notice dated 3 April 2018, the applicant seeks leave to appeal against the sentence on grounds that: first, the judge erred in that she found that the offending was ‘too serious’ to be dealt with by a CCO; and, secondly, the ‘sentence of imprisonment imposed on the applicant was in all the circumstances manifestly excessive’.
For the reasons that follow, we would grant leave to appeal but dismiss the appeal.
The offending
It is necessary to summarise the details of the applicant’s offending.
On Thursday, 4 August 2016, police executed a search warrant at the applicant’s residence in Epping.
During their search of the applicant’s bedroom, police located a loaded 9 mm calibre Beretta semi-automatic handgun (charge 2), which had no decipherable or identifying marks (charge 3). The Beretta was on the floor, unsecured, to the left of the mattress (charge 4). In another bedroom, on the bottom shelf of a vanity unit, police found a loaded Browning semi-automatic handgun (charge 1). Apart from six rounds of ammunition loaded in the Beretta, and three rounds in the Browning, police found another eight rounds of 9 mm Luger ammunition in the living room.[7] The applicant did not hold a firearms licence, and no firearms were registered to him.
[7]See footnote 5.
Drugs were also found at the premises. Thus, in the applicant’s bedroom, police found two grams of MDA in a snap-lock bag beneath the mattress, and 0.1 grams of cocaine in a cupboard; and in the kitchen, found a total of 8.6 grams of methylamphetamine (charge 6). In the garage, police found a further cache of 138.6 grams of methylamphetamine, 80 per cent pure (charge 5).[8]
[8]A ‘traffickable quantity’ of methylamphetamine in a mixture is 3.0 grams. See Drugs, Poisons and Controlled Substances Act 1981, s 70(1) and column 3 of Part 3 of Schedule 11.
When interviewed by police on 5 August 2016, the applicant admitted the guns and drugs were his. He said the drugs were for personal use, and that, in light of threats he had received, he had the guns for his own safety.
The applicant’s personal circumstances
The applicant is now aged 27 years.[9] He was in custody from his arrest on 5 August 2016 until he was bailed on 8 September 2016.[10] Upon being granted bail, the applicant sought treatment for his drug addiction from drug rehabilitation consultants, Lamberti Associates. He remained on bail until the conclusion of the plea hearing on 21 March 2018.
[9]His date of birth is 19 June 1990.
[10]In sentencing the applicant the judge declared pre-sentence detention of 37 days.
So far as his education and employment is concerned, the applicant left school during Year 11 in 2007, and undertook an apprenticeship as an electrician between 2008 and 2012. Since leaving school, he has always been gainfully employed. Indeed, his employer currently has full-time employment available to him. The effect of the applicant’s convictions is, however, that he will not be able to take up offered employment with the Royal Australian Air Force as an electrician.
On the plea, counsel for the applicant tendered a report authored by Amanda Brown, Lamberti Associates, dated 15 March 2018 (Exhibit 2). Ms Brown reported that the applicant’s drug taking commenced with cocaine when he was at aged 24. He then started using methamphetamine, and at the height of his methamphetamine use was consuming four grams of the drug per week. Ms Brown’s ‘understanding’ was that in the five month period leading up to his arrest, the applicant’s ongoing use of methamphetamine, and the associated lack of sleep, ‘contributed to his inability to make rational decisions ultimately leading to anti-social behaviour which brings him before the Court’. She expressed the view that the applicant ‘meets the criteria for a Substance Dependence Disorder as detailed in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV-TR)’. The applicant, Ms Brown said, ‘was observed to be in a prolonged state of withdrawal’ from methamphetamine and cocaine in the first two months of treatment, and ‘is now in a positive position to continue his recovery and is well on his way to reclaiming his life’. He ‘has been successful in his treatment’.
The applicant was also able to call in aid a number of written character references (Exhibit 1), the content of which it is unnecessary to set out. Two referees were present in court at the plea hearing.
The prosecution’s position on the plea
At an early stage of the plea hearing, before the applicant’s counsel had presented his plea, the prosecutor said: ‘The prosecution submits CCO [sic.] is within range in relation to this matter’.
At various stages in the course of the plea, however, the judge made it abundantly clear that she did not agree. Thus, for example, her Honour said:
Well, I’ve already indicated that as far as I’m concerned, the fact that the Crown have indicated that a CCO is within the range does not in any way bind me and it does not cause me to alter from my view that the matter warrants a sentence of immediate imprisonment.
And:
As to my view, as to the fact that the Crown have indicated that they consider that a CCO is within the range, that I’m not bound by that.
Defence counsel having presented his plea — in the course of which, relying on Boulton,[11] he sought a CCO for the applicant — the prosecutor, undeterred by the judge’s unequivocal rejection of the notion that a CCO was appropriate, once more submitted that a CCO was within the appropriate range of sentences. By way of example, she said:
Your Honour is of course correct, Your Honour’s not bound, but I am bound by my instructions. … I will submit the reasons why. So the prosecution’s submission is that [a CCO] is within range in relation to the facts that is before the court.
…
I also submit several things, that there is also — ought to be a recognition and a distinction between possession of firearm [sic.], I suppose, to the use of carrying a firearm again consistent with the submission, why CCO [sic.] is within range.
…
Now, we have to move on and address the issue, perhaps the elephant in the room, which is imprisonment. Of course imprisonment is the sentence of last resort, as we all know by way of parsimony. Your Honour’s position has been made patently clear and I’m not here necessarily to argue against that other than to pursue or maintain my submission, which is CCO is within range for matters as enunciated in Boulton.
[11]Boulton v The Queen (2014) 46 VR 308 (‘Boulton’).
Sentencing reasons
In her reasons for sentence, the judge accepted that the plea of guilty was entered ‘at the earliest opportunity’, was ‘designed to facilitate the administration of justice’ and was ‘consistent with remorse’. Given the applicant’s lack of antecedents, his impressive work history and the character references put before her, the judge was of the view that his ‘prospects for rehabilitation remain very good’.
Although the applicant had no criminal history, the judge described the applicant’s ‘first foray into criminal activity’, however, as ‘a serious and concerted first foray’. The firearms offences were ‘serious’, and, given ‘the prevalence of firearm offences within the community’, the sentence the judge was to impose ‘must give full expression to the principle of general deterrence’.
With respect to the suggestion that a CCO was appropriate, her Honour observed:
On the plea it was submitted by your counsel that a community corrections [sic.] order was an appropriate disposition to meet the sentencing principles of punishment, deterrence; both specific and general, rehabilitation, denunciation, and protection of the community.
As I made clear in the course of the plea of mitigation, I was, and still am of the view that your offending is too serious to warrant a non-custodial disposition. While I accept that you have made concerted efforts towards addressing at least a partial motivation for your offending, being your addiction to drugs, this does not, in my view, surpass the need to impose a sentence which adequately reflects the gravity of the firearms offences.
Ground 1 — Finding that the offending was too serious for a CCO
Ground 1 asserts that the judge erred in that she found that the offending was ‘too serious’ to be dealt with by a CCO.
In the written case, counsel for the applicant submitted that the judge erred in concluding that the applicant’s offending was too serious to be dealt with by way of a CCO, and in refusing to have the applicant assessed for a CCO. Relying substantially on Boulton, counsel relied on the following circumstances in combination as supporting the proposition that the applicant should have been assessed for a CCO:[12]
a. The concession by the Director of Public Prosecution that a CCO was appropriate
b. The early plea of guilty
c. The applicant previous good character and lack of prior previous criminal history
d. The admissions contained in the record of interview.
e. The applicants excellent prospects of rehabilitation; and
f. Delay
[12]Spelling, punctuation, syntax and grammar as in original.
The judge was not bound by the prosecution’s submission on sentence, any more than she was bound by the submissions of the applicant’s counsel. Although the prosecution may — through the selection of charges — limit the sentencing options available to a judge, it is the sole responsibility of the judge to determine the sentence to be imposed.[13] As King CJ observed in Malvaso:[14]
The prosecution has a role in the sentencing process which consists of presenting the facts to the Court and of making any submissions which it thinks proper on the question of what sentence ought to be imposed. The decision as to what sentence is to be imposed is, however, entirely a matter for the Court which may, of course, be influenced by the arguments that are placed before it by the prosecution as well as by the defence, but must never be influenced by the attitudes or opinions as distinct from the arguments of either. In particular it must be stressed that the attitude of the prosecution towards a particular proposed course of action in relation to sentence is, as such, irrelevant; the view of the prosecution has no greater weight than the arguments advanced in support of that view. These propositions are elementary and fundamental propositions relating to the administration of criminal justice by independent courts …
[13]Barbaro v The Queen (2014) 253 CLR 58, 76 [47]; GAS v The Queen (2004) 217 CLR 198, 210–11 [28]–[30].
[14]R v Malvaso (1989) 50 SASR 503, 509. See also Malvaso v The Queen (1989) 168 CLR 227, 233 (Mason CJ, Brennan and Gaudron JJ).
In rejecting the apparently joint position of the prosecution and defence that a CCO was appropriate, the judge, as we have said, thought that the applicant’s offending was too serious to justify such a disposition. In that regard, it was observed in Hutchinson:[15]
In Boulton, the court observed that a CCO may be suitable ‘even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment’, since a sentencing judge ‘may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation’. The court said, however, that it was ‘both undesirable and unnecessary to seek to impose in advance any outer limits on the availability of this sentencing option’. It was ventured that ‘realising the full potential of CCOs’ will require ‘a re-examination of accepted views about offences for which imprisonment has been thought to be the only option’, and that ‘process of rethinking and re-evaluation will take some time’.
Acknowledging that a CCO might be appropriate ‘even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment’, it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, ‘to punish the offender to an extent and in a manner which is just in all of the circumstances’. There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just. At the risk of again traversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.
[15]Hutchinson v The Queen (2015) 71 MVR 8, 12–13 [16]–[17] (Priest JA) (citations omitted).
It was, in our view, open to the sentencing judge to decide that only a sentence of imprisonment would meet the manifold objectives of sentencing in the present case. Objectively, the applicant’s possession of two loaded semi-automatic handguns constituted serious offending. With respect, it was open to her Honour to conclude that, given the prevalence of firearm offences, the sentence she was to impose needed to ‘give full expression to the principle of general deterrence’.
Having regard to the prosecution’s submissions to the sentencing judge on the issue of a CCO, we would grant leave on the first ground. Ultimately, however, it cannot be upheld.
Ground 2 — Manifest excess
In the written case, submitting that the applicant’s offending was ‘out of character’, counsel relied on the following matters in mitigation in support of the contention that the sentence is manifestly excessive:[16]
a. The early plea of guilty in circumstances where the applicant had offered to plead guilty to the charges as they appeared on the plea indictment when the applicant was originally charged in 2016.
b. The applicant’s admissions in the record of interview insofar as he admitted ownership to the drugs and firearms in circumstances where the prosecution may have experienced difficulty in proving the charges in the absence of the admission. Counsel for the prosecution conceded these admissions assisted in the administration of justice.
c. The applicant appeared before the court for the first time with no prior or subsequent criminal history, and was of otherwise good character.
d. The applicants otherwise strong work history
e. The 35 days that the applicant had spent on remand following his initial arrest, combined with the fact that once bailed the applicant voluntarily entered into a drug rehabilitation program, during which he engaged with Lamberti and Associates over a period of 18 months.
[16]Spelling, punctuation, syntax and grammar as in original.
Under the general rubric of the second ground, counsel for the applicant also submitted that the sentencing judge failed to have proper regard to current sentencing practices.[17]
[17]See Sentencing Act 1991, s 5(2)(b). And see DPP v Dalgliesh (a Pseudonym) (2017) 349 ALR 37; R v Kilic (2016) 259 CLR 256.
Bearing in mind the truism that sentences passed in other cases are not precedents to be applied unless capable of being distinguished[18] — and acknowledging that the judge’s resort to an aggregate sentence has rendered the sentencing exercise somewhat opaque[19] — an examination of broadly comparable sentencing cases involving offences under s 7B of the Firearms Act 1996 does not support the notion that the sentence in this case is out of step with current sentencing practices. Thus, in Saracevic,[20] the Court rejected the contention that a sentence of 18 months’ imprisonment (nine months of which was cumulated on a sentence for blackmail) imposed for possessing an unregistered general category handgun was manifestly excessive. And in Middleton,[21] although the Court intervened so as to reduce the non-parole period passed on Shane Middleton, it left undisturbed an individual sentence of 18 months’ imprisonment imposed for an offence under s 7B. Furthermore, individual sentences at or near six months’ imprisonment for offences under s 7B appear to be unremarkable.[22]
[18]DPP v Zhuang (2015) 250 A Crim R 282, 292 [30] (Redlich, Priest and Beach JJA).
[19]See Beevers v The Queen [2016] VSCA 271, [41] (Priest and Santamaria JJA). See also Fitzpatrick v The Queen [2016] VSCA 63, [42]–[48] (Weinberg AP, Priest and Beach JJA).
[20]Saracevic v The Queen [2017] VSCA 212 (Hansen and Coghlan JJA).
[21]Middleton & Ors v The Queen [2018] VSCA 23 (Weinberg and Coghlan JJA).
[22]See Morgan v The Queen [2016] VSCA 143 (Weinberg, Priest and Kyrou JJA) (an individual sentence of seven months’ imprisonment); Kieawkaew & Nguyen v The Queen [2016] VSCA 269 (Redlich and Kyrou JJA) (an individual sentence of three months’ imprisonment); Driver v The Queen [2012] VSCA 242 (Buchanan and Nettle JJA) (an individual sentence of six months’ imprisonment); Collins v The Queen [2015] VSCA 106 (Whelan, Santamaria and Beach JJA) (an individual sentence of six months’ imprisonment). Compare McAleer v The Queen (2015) 45 VR 258 (Priest and Beach JJA), in which a youthful female offender at first instance received a total effective sentence of two years’ imprisonment, with a non-parole period of 10 months, for aiding and abetting trafficking in a drug of dependence, methylamphetamine, and for possession of an unregistered general category handgun (the individual sentence for possession of the handgun being 10 months’ imprisonment). On appeal, a conditioned CCO of two years’ duration was substituted.
Notwithstanding the applicant’s previous good character, employment record and prospects of rehabilitation, we consider the contention that the sentence is manifestly excessive to be unsustainable. The issue for this Court is not whether we would, if sentencing at first instance, have imposed a different sentence to that imposed by the sentencing judge. It is only if the sentence under consideration is plainly — not merely arguably — too severe, so that it may be concluded that it is wholly outside the range of sentences open in the proper exercise of the sentencing discretion, that this Court’s intervention is warranted.
Taking into account the applicant’s circumstances and the circumstances of his offending, we are not persuaded that the sentence imposed was outside the appropriate range. In our opinion, an aggregate sentence of six months’ imprisonment for possessing two unregistered handguns (one of which had undecipherable identification) — both of which were loaded and ready for use — found in close proximity to ammunition and a traffickable quantity of drugs of dependence, was plainly open to the judge in the sound exercise of the sentencing discretion. Indeed, to some minds, the sentence might appear to be lenient.
Ground 2 cannot be upheld.
Conclusion
In light of the prosecutor’s concession on the plea that a CCO was within the appropriate range, we would grant leave to appeal. For the reasons we have given, however, the appeal should be dismissed.
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