Blake v Adams

[2013] TASSC 44

[2013] TASSC 44

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Blake v Adams [2013] TASSC 44

PARTIES:  BLAKE, Brendan Anthony
  v
  ADAMS, Daniel

FILE NO:  LCA 34/2013
DELIVERED ON:  16 August 2013
HEARING DATES:  8 April, 13 August 2013
JUDGMENT OF:  Porter J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Discretion to record conviction – Relevant considerations – Statutory requirement to have regard to nature and circumstances of offence, offender's character, and impact on offender's economic or social wellbeing or employment prospects – Firearms offence – Factor of public interest in recording convictions – Motion to review sentence – Magistrate's focus on public interest factor to exclusion of other matters – Failure to have regard to particular circumstances of offending and offender's personal circumstances.

Sentencing Act 1997 (Tas), s9.
Aust Dig Criminal Law [3411]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Whether conviction ought to have been recorded – Firearms offence – Magistrate's focus on public interest factor to exclusion of other matters – Failure to have regard to particular circumstances of offending and personal circumstances of offender – Resentence – Nature and effect of order of release on undertaking to be of good behaviour.

Sentencing Act 1997 (Tas), ss7(f), 9.
R v Mauger [2012] NSWCCA 51, applied.
Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:
             Applicant:  G Stevens
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Henry Wherrett & Benjamin
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2013] TASSC 44
Number of paragraphs:  84

Serial No 44/2013
File No 34/2013

BRENDAN ANTHONY BLAKE v DANIEL ADAMS

REASONS FOR JUDGMENT  PORTER J

16 August 2013

Introduction

1. This is a motion to review sentencing orders made by Magistrate Mollard on 3 January 2013.  The applicant entered a plea of guilty to a charge of possessing, on 10 June 2012, an implement designed to suppress the sound caused by the discharge of a firearm, contrary to the Firearms Act 1996, s118(1). The relevant implement is commonly referred to as a silencer. The penalty for the offence was a fine not exceeding 50 penalty units, or imprisonment for a term not exceeding two years, or both.

1. The magistrate convicted the applicant and fined him an amount of $400.  The notice to review contains five grounds which allege specific errors of law.  The grounds allege failures by the magistrate to take certain matters into account, and errors of principle in the approach he took.  At the hearing of the motion, counsel for the applicant, Mr Stevens, directed his arguments primarily to the recording of a conviction.  Neither the imposition, nor the quantum, of the fine is in issue. 

1. Mr Stevens noted that the provisions of s7 of the Sentencing Act 1997 do not enable the imposition of a fine without proceeding to conviction. The relevant provision is s7(e) which enables a court to "record a conviction and order the offender to pay a fine". The Firearms Act does not authorise a fine without recording a conviction. If a decision is made not to record a conviction, the only options which a court has under s7 of the Sentencing Act are to:

"(d)   … make a probation order in respect of the offender if the offender has attained the age of 18 years; or

…

(f)… adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or

…

(h)… order the dismissal of the charge for the offence; …".

The facts

1. The prosecution facts put before the magistrate were very brief.  His Honour was told that at about 8.45am on Sunday 10 June, the applicant came under notice at the security screening point at the departure lounge at the Hobart Airport.  The prosecutor continued:

"The defendant had placed his carry-on luggage through the x-ray machine and metal objects were detected by security screening staff.  The defendant was asked to remove the metal objects from his luggage.  He did so, producing a black hollow cylindrical shaped item.  The defendant was cautioned.  He was spoken to in relation to the item.  The defendant told police that it was a silencer and that he had forgotten it was in his luggage.  He further added that he knew that it was illegal to possess a silencer.  He further stated that the silencer wasn't purchased and refused to state where he had obtained it from.  He was later advised by the police that he'd be proceeded against by way of summons and that was following the testing by ballistics of the items which determined that it was, in fact, a silencer and was, in fact, capable of silencing the sound of a shot being fired from a firearm."

1. The magistrate was told that the applicant had only "one old traffic prior". 

Matters put in mitigation

1. It is necessary to set out much of what happened in the plea in mitigation put by then counsel for the applicant.  As to the circumstances of the applicant's possession of the silencer, counsel said the following to the magistrate:

"The circumstances of the offence were that Mr Blake resides in New South Wales ordinarily.  He was in Hobart from Friday to Sunday to attend a wedding.  On the Saturday morning he'd arranged to have brunch with a close associate prior to attending the wedding and that person is a recreational hunter and a target shooter as is Mr Blake.  That person had given the silencer as a gift to Mr Blake, together with a hunting knife.  Mr Blake accepted the gift not thinking too much about it.  Rushed back to his hotel room, placed the knife and the silencer in his luggage and got ready for the wedding and attended the wedding.

My instructions are that the wedding celebrations lasted till late in the evening and he had to get up early on Sunday morning to catch his flight, feeling tired and unwell, and my instructions are he simply forgot that the silencer and in fact, the knife, were in his luggage.  Obviously in hindsight he remembers putting them there but in the morning in the rush he'd simply forgotten.  My instructions are that had he remembered he probably would have thrown them away, albeit he had a legitimate purpose for the hunting knife as a recreational hunter."

1. Later, in summarising his submissions, counsel said that the matter was an oversight, and that the applicant fully accepted his responsibility to make sure he knew what was in his baggage and to check it before going to the airport.  The following exchange then took place:

"HIS HONOUR:  No, no, no, no, no.  What is the oversight?  The oversight you're talking about is –

COUNSEL:  Is bringing it to the airport.

HIS HONOUR:  - is that he forgot that it was in his hand luggage.

COUNSEL:  Yes.

HIS HONOUR:  Now, that's got nothing to do with the commission of the original offence –

COUNSEL:  Which was taking possession –

HIS HONOUR:  - which was taking it from his mate.

COUNSEL:  No, no, I understand that, your Honour, and I take your Honour's point on that.  I make that submission in light of my instructions that had he remembered he would have thrown it in the bin, albeit that there would have been a possession for a period before he'd done that.  But yes, I certainly do not disagree with what your Honour says on that account. …"

1. The following is a summary of what the magistrate was told about the applicant's personal circumstances and other relevant personal matters. 

·     The applicant was 31 years old, married with two children aged 4 years and 13 weeks.  The applicant was the sole income earner.

·     He was originally from Tasmania but moved to New South Wales upon joining the RAAF when he was 19 years old.  He has been employed by the RAAF since then, and is presently an aircraft maintenance officer.

·     In that role he is in charge of technicians of various descriptions totalling approximately 50 people.

·     The applicant was ordinarily of good character with only the one traffic offence committed in Tasmania.

·     He had held a firearms licence in New South Wales for the last six or seven years.  He owns a number of rifles, but "the silencer was of no use to him in any event as it required a thread and none of the firearms which he owns … had such a thread, [and] therefore could not be used with the firearms".

·     The applicant's instructions were that had the silencer not been detected at the airport, and he discovered it in his luggage, "he would likely have thrown [it] away".

·     The applicant had pleaded guilty, had taken two days' annual leave in order to attend court, with travel costs of about $700.

1. Counsel specifically addressed the question of the consequences of the recording of a conviction.  The magistrate was told that if a conviction was not recorded that would likely be the end of the matter.  However, there were two possible outcomes if a conviction was recorded.  The first was that the applicant would receive a notice to show cause as to why he should remain employed.  Following his response, a judgment would be made as to whether his employment would be terminated.  The other alternative was that the applicant would be served with a "unit formal warning" which applied for a fixed period and which was essentially a good behaviour bond.  In the event of any further incident, a notice to show cause would issue.  Counsel revealed to the magistrate that the applicant had been the subject of RAAF disciplinary sanction in 2000.  This related to discharging and storing fireworks contrary to a Standing Order, for which the applicant was fined $180, $120 of which was suspended, and had seven days' leave suspended.

1. Counsel tendered a reference from the applicant's commanding officer.  In that reference, the Wing Commander said the following.

·     He had known the applicant for 12 months in his professional capacity as Commanding Officer, and he was aware that the reference related to a charge of possession of a silencer.

·     The applicant was an Air Force Aeronautical Engineer, responsible for the ongoing care of 18 F/A-18A Hornet jet fighters and approximately 50 airmen and airwomen, his role being a highly visible one and carrying a great deal of responsibility.

·     The applicant had progressed rapidly through the ranks, ultimately successfully completing officers' training school and four years of full-time study at the Australian Defence Force Academy, where he obtained an engineering degree.

·     In November 2012 the annual performance review conducted by two senior officers, showed the applicant to be someone who was a role model with a strong balanced level of professionalism, who sought and accepted responsibility beyond the normal requirements of the job, who demonstrated an excellent standard of leadership, and who set and maintained very high standards for himself in personal discipline and work ethic, and sought to promote those standards for his personnel, with great potential for future advancement.

·     The applicant was a keen, focussed engineer and leader, committed to his troops and the demanding task of keeping the fleet of fighters safely in the air, with a "bright future …".

1. A further reference from a friend and shooting colleague was later tendered.   This person said that the applicant had shown dismay and remorse at being found in possession of the item.  The referee found the nature of the offence surprising as he had always found the applicant to be a reliable and trustworthy person of good judgment.  He had seen the applicant handle firearms and the applicant had always behaved with due diligence and caution "and never in a way that could even remotely contravene any law".

1. At the conclusion of counsel's submissions, a discussion took place as follows:

"HIS HONOUR:  Well, I don't have any questions, but you've probably glanced at the penalty provisions?

COUNSEL:  Yes.

HIS HONOUR:  Fifty penalty units or imprisonment for not more than two years.

COUNSEL:  Yes.

HIS HONOUR:  It's easy to understand why a Parliament would think such a matter was serious as to require prescribing penalties as severe as that.

COUNSEL:  Yes.

HIS HONOUR:  And it seems to me that there is a very strong argument in favour of, that most, if not all such matters be met at least with the recording of a conviction for reasons that I'm sure are equally obvious enough to relieve me of the obligation of stating what they are.

COUNSEL:  Yes.

HIS HONOUR:  If you want to have the opportunity of having the matter stood down to make further submissions on that score, which I'll repeat is the public policy issue associated with the possession of such matters, linked of course, with the relative need for a deterrent penalty, generally deterrent penalty I'm talking about –

COUNSEL:  Yes.

HIS HONOUR:  - then I'm happy to give it to you, but otherwise my view is that there ought to be a conviction and a fine."

1. Counsel took the opportunity, took further instructions, and shortly afterwards made further submissions.  He sought to distinguish, in the context of public policy, the situation of possession of a silencer without any firearm capable of being used with it, from the possession of a silencer fitted or capable of being fitted to a firearm in the possession of the offender.  It was submitted that the particular offence was much less serious than a number of other offences that could arise under the Firearms Act involving a silencer.  Counsel submitted that the magistrate could be satisfied that the applicant had no intention of using the silencer.  During this exchange the magistrate said:

"Look, I understand what you mean and certainly the defendant would be in an altogether different situation if he'd been found with a bag full of guns as well – … but I had a friend on the north-west coast who decided it was a good idea to get another friend who was a fitter, to cut a thread on the muzzle of his 22 and yet another friend supplied him with a silencer and he used to think it was a great idea to go out and shoot local pests with a silenced 22 rifle. Now, it seems to me that the seriousness of this lies partly in the fact that there is this unlawful silencer first in your client's friend's possession, then in your client's possession, and it really isn't up to me to speculate about what might have happened to it. It might have been capable of being used by him in circumstances similar to the situation I'm telling you about in my own past and to my own knowledge, or it is presumably a piece of contraband with a market value, and a little bit like some matters I deal under the Misuse of Drugs Act, there's always the potential for it to be passed on down the line wittingly or unwittingly."

Comments on passing sentence

1. The magistrate addressed the applicant and gave the following reasons for imposing the penalty:

"Look, I've had occasion for many decades to wonder to myself about the seriousness or lack of seriousness of the possession of silencers and the anecdote I shared with you a few moments ago is one of the occasions that led to my thinking about it for so very long.  It's notorious that silencers are used on occasion by criminals for criminal purposes, and nobody is suggesting for a single second that you had any such motivation for your possession of this silencer.  Nobody has told me what particular firearm this silencer might fit but for present purposes I'll assume that it was something that might have fitted on a 22, just for the sake of this discussion.

Now, this friend of mine who decided that he had this great idea and saw it through to fruition, used to hunt primarily rabbits on his small farm.  I went with him once when he was engaged in that activity.  I was armed with a standard bolt action single shot firearm that made a lot of noise, like they all do unless they're silenced.  His shots couldn't be heard, and it occurred to me that my activity and therefore his, was being conducted in a much safer environment than if his had been the only firearm, for the simple reason that the use of a rifle silenced doesn't alert any other person that might, unbeknownst to the shooter, be in the immediate area, and that's the other reason, that's the other use which – and the other reason which gives rise to the seriousness of the particular offence that we're dealing with.

Now, I acknowledge immediately that there is a gulf between mere possession and ultimate use and Mr Saric has quite rightly emphasised that particular point, but here we venture into the realms of the unknown.  Your own explanation for assuming possession of this silencer strikes me as odd given the fact that you say that you had no plan for it, and yet it found its way into your hand luggage, no doubt a slip on your part, with the obvious intention that it should leave the State of Tasmania and go to the State of New South Wales.

From there it's inappropriate for me to speculate.  I'm not suggesting for a second that you were going to have your rifle threaded.  I'm not suggesting for a second, as I've already said, that you would have engaged in any unlawful activity in relation to the silencer, but the silencer moved from one part of the country.  It was going to move to another part of the country, who knows what would have become of it.  It might have unwittingly fallen into someone else's hands and it was to your very knowledge an unlawful thing for you to do.

Now, I think there are certain categories of offences which bring about a greater presumption that a conviction is desirable than others, and firearms offences are an obvious example, and I don't need to talk about instances that have occurred in other countries recently in order to drive the point home.  Firearms offences of most types bring about a strong public interest in the need for the public and governmental agencies to know on inquiry that the offence has taken place and here the communication of that information to your employer, particularly but not only because your employer is an arm of the armed services, and also firearm services in the State of New South Wales are perfect examples of why there is such a particular need to know.  Now, if I otherwise thought that your offence was one that shouldn't attract a penalty as distinct from a conviction, I would, for those reasons, arrive at the conclusion that you should be convicted anyway just so that that knowledge was available in appropriate circumstances to appropriate arms of government, but in fact I think that there is a need for a penalty to be imposed as well.

I'm certainly not talking about imprisonment.  You've heard me tell you that two years is the maximum.  I don't think any sentence of imprisonment is necessary here given those valid points that your counsel has made on your behalf, and I don't think that I shall impose a fine that goes remotely close to the maximum fine, and in fact it should be quite close to the minimum, not that there is a minimum." 

Ground 1

1. This ground alleges that the magistrate erred in law "in failing to give any or any sufficient weight to matters pleaded in mitigation".  The applicant submits that there were a number of mitigating factors which the magistrate was obliged to take into account, and that it is clear that his Honour paid them no regard.  The principal factor was said to be the applicant's previous good character, although the mitigatory matters extended to his good employment record and the view taken of him by his commanding officer, the isolated nature of his offending and the circumstances of the possession, and his plea of guilty.

1. Counsel for the respondent, Mr Nicholson, did not dispute that the applicant could be properly described as of previous good character, nor was any real issue taken with any of the other matters said to be mitigatory.  As to previous good character, Mr Stevens relies on statements of McHugh and Callinan JJ in Ryan v R (2001) 206 CLR 267. At 275 [25] McHugh J said:

"If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances." [Original emphasis.]

See also Kirby J at 298 – 299 [102].

1. At 317 [174] Callinan J observed that good character may operate to reduce the sentence which the facts of the crime would otherwise attract, and that in some instances good character of itself could be a very significant factor, noting a case in which it required the imposition of a non-custodial penalty in lieu of a term of imprisonment; R v Smith (1982) 7 A Crim R 437. His Honour went on to say that less weight will usually be given to the apparent good character and record of an accused, when the crime or crimes are part of a prolonged course of criminal activity. Clearly, it can be accepted that the applicant's previous good character was a relevant factor, and Mr Stevens accepts the qualification that the weight to be given to that factor depends on all of the circumstances of the case.

1. The ground of the notice asserts error in failing to give any or any sufficient weight to the matters pleaded in mitigation.  Mr Stevens submits that the magistrate's failure to make any reference to mitigatory matters, either specifically or in such terms, should satisfy the court that no weight was given to them at all.  To assert an insufficiency of weight in the absence of any specific remarks is difficult to establish.  Reliance would have to be placed on the outcome to demonstrate that insufficient weight must have been given to identified factors. 

1. As I understand it though, Mr Stevens submits that in this case the mitigatory factors were entitled to real weight, and the magistrate seems to have treated them as irrelevant, it being unlikely that he could have overlooked the matters which had been put by counsel.  As argued, the ground asserts a failure to give any recognition at all to the matters which operated in the applicant's favour; in particular, his previous good character.

1. The issue of character was stressed twice during the plea in mitigation and was addressed in the references to which counsel spoke.  It is true that in his reasons, the magistrate made very little mention of the mitigatory matters.  The magistrate's reasons show an acknowledgement of then counsel's point as to the nature of possession being one of "mere possession", as distinct from "possession with intended use".  His Honour later said that he did not think that any sentence of imprisonment was necessary "given those valid points … made on [the applicant's] behalf", and that a fine "should be close to the minimum".  The magistrate did not explain what he had in mind when referring to "those valid points", but they were obviously said in the context of what penalty should be imposed in addition to the conviction. 

1. Mr Nicholson, for the respondent, submits that this ground of the notice should be approached from the perspective of the principles relating to the adequacy of reasons for sentence.  He submits that the magistrate was under no obligation to specifically refer to the mitigatory matters.  He says the applicant's approach relies on too close a scrutiny of the magistrate's ex tempore reasons, and that I cannot be satisfied from the simple failure to refer to the relevant matters, that the magistrate overlooked them or did not take them into account as having no weight.

1. Mr Nicholson relies on a passage from the judgment of Crawford CJ in Trueman v Tasmania (2009) 18 Tas R 435 at 444 [32] – [33]:

"32… [Reasons for judgment] are often relatively brief and justifiably so, particularly in the case of magistrates who sentence a great number of offenders, often for offences that are committed in such common ways that many are effectively indistinguishable from others.  It is proper that many offenders are sentenced immediately following the hearing of submissions in the interests of expediency, and as was said in this Court by Nettlefold J in R v Sherlock unreported 41/1975 at 6: 'I do not think that this Court should analyse a Judge's reasons with too critical an eye.  The remarks are often made "'off the cuff".'

33Another consideration that must not be overlooked is that often the determination of the sentence appropriate for an offence is made by way of an instinctive or intuitive assessment after a consideration of the relevant facts and factors. ... A judge might take into account a great number of relevant matters and make a determination, which is largely intuitive although assisted by his or her experience as a lawyer and a sentencing officer, that the appropriate sentence is one of effective imprisonment for a particular length of time, but might have great difficulty explaining why the sentence should be for that particular length rather than a longer or shorter one.  It is not uncommon for a judge or magistrate to state the most material of the relevant matters that have been considered and to then announce the sentence, without any other explanation as to how it was determined.  To do so will not necessarily amount to an error.  Each case will depend on its own circumstances."

1. Later, in Harrison v Taws (2009) 19 Tas R 155 at 162 [33] his Honour referred to his earlier observations in Trueman.  As to the point that merely stating the sentence without explaining how it had been determined may not amount to an error, he added a comment "that if there is no issue concerning what are the relevant facts and factors, it may not be an error to omit to state all or any of them".  In McDonald v Nilsson [2009] TASSC 83, his Honour again took up the discussion. After referring to both Trueman and Harrison v Taws, he discussed the circumstances of the case before him.  At [20] – [21] he said:

"20… The transcript of what was said to the learned magistrate by the prosecutor and the respondent's counsel is less than 1½ pages long.  None of the circumstances of the offence was in issue.  The prosecutor briefly stated them and the respondent's counsel very briefly added to them.  None of the circumstances of the offender was in issue either.  The respondent's counsel briefly stated them and the prosecutor produced the respondent's record.

21Once the submissions had been made, the learned magistrate immediately proceeded to sentence.  There was no need for his Honour to restate any of the circumstances, either of the offence or the offender, before announcing the sentence itself.  Nothing of what had been submitted was in issue.  The only submission concerning the sentence itself was one from the respondent's counsel when he concluded, by saying that he respectfully urged his Honour to impose a penalty other than an immediate custodial one.  The prosecutor did not take issue with that.  (He was not under any obligation to do so.)"

1. There is authority for the proposition that where there is a duty to give adequate reasons, a court should assume that a judge has complied with that duty, "and if [the judge] has not referred to a material matter, the Court should conclude that he did not consider it was material.": Wrigley v Holland [2002] NSWCA 109 at [16] per Handley JA (Hodgson JA and Ipp AJA agreeing).

1. However, applying the various statements of Crawford CJ referred to above, I do not think that in the circumstances of this case, it can be said that the magistrate was under a duty to expressly deal with or mention the mitigatory factors. (I ignore for the moment the requirements of s9 of the Sentencing Act, consideration of which arises under ground 2.)  In Anderson v Director-General Department of Environmental and Climate Change [2008] NSWCA 37 at [58] Tobias JA said that "whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written". In Beale v GIO of New South Wales (1997) 48 NSWLR 430, Meagher JA at 443 said that where certain evidence was important or critical, and was not referred to by a trial judge, "an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it" [my emphasis].

1. Even ignoring what may be a reference to the mitigatory factors, it would be difficult to be satisfied that the magistrate has simply dismissed them as having no weight.  There is in any event, the reference by the magistrate to "valid points" made by the applicant's then counsel.  I cannot think of what else the magistrate would have been referring to, other than those factors which mitigated the offending and which would ameliorate the sentence. 

1. This ground of the notice is framed as a general allegation that the magistrate failed to give any or any sufficient weight to the mitigatory factors.  I have noted how the argument is put.  There is nothing which arises from a fair reading of the reasons to suggest that the factors were completely overlooked, disregarded as being of no weight at all, or treated as irrelevant.  For those reasons, the ground is not made out. 

Ground 2

1. This ground is an allegation that the magistrate failed to apply s9 of the Sentencing Act.  That section provides as follows:

"9    Conviction or non-conviction

In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including —  

(a)the nature and circumstances of the offence; and

(b)the offender's antecedents and character; and

(c)the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects."

1. It is plain from the wording of the section that the three matters listed are not exhaustive, but that each must be considered.  It also is plain that the section operates cumulatively, in the sense that the effect of the assessment of each matter may be cumulative, one way or the other.  In R v Brown ex parte Attorney-General [1994] 2 Qd R 182, in relation to a section in practically identical terms, Lee J at 193 said:

"The discretion is at large. The considerations are not limited to the matters contained in pars (a), (b), and (c). They are inclusive. There is nothing in the Act which requires more weight to be given to any one factor than to the others. Relative weight depends on the circumstances of each case."

1. In the same case at 185, Macrossan CJ said that the factors must be kept in balance and none of them overlooked, although in a particular case, one, rather than the other, may have claim to greater weight.  Relevantly to this case, his Honour said that the reference to the nature of the offence does not mean that only those offences at the trivial end of the sentencing scale should be regarded as qualifying. 

1. The applicant submits that the plea put on behalf of the applicant was clearly directed to whether a conviction should or should not be recorded, and that the magistrate was alert to that approach. The applicant submits that, whilst the magistrate seems to have had some regard to s9(a), the failure of the magistrate to advert to the matters set out in s9(b) and (c) means, in the context of the case, that his Honour failed to have regard to those matters as required by the section. The debate is not dissimilar to that relating to ground 1. The issue is whether the applicant can establish a failure on the part of the magistrate to have regard to the applicant's antecedents and character, and the impact that a conviction would have on his employment prospects, from what the magistrate did and did not say.

1. Additionally, as part of this ground, the applicant argues that the magistrate made an error in the approach to considering the nature and circumstances of the offence under s9(a). Mr Stevens submits that the magistrate focused exclusively on the maximum penalty prescribed, and failed to consider the broader aspects of the nature and circumstances of the offence. In support, Mr Stevens referred to Walden v Hensler (1987) 163 CLR 561. The statutory provision under consideration enabled a court to make certain orders without recording a conviction. One of the things to which the court could have regard was "the trivial nature of the offence".

1. At 577 Brennan J said:

"As [the provision] is expressed in general terms and therefore applies to a wide variety of offences in the criminal calendar attracting various maximum penalties … triviality cannot be determined by reference to the maximum penalties prescribed. … Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty."

1. Dawson J said at 595 that "the offence to be considered in determining triviality is clearly the offence committed by the offender and not the offence in the abstract." 

1. Mr Nicholson accepts that the magistrate focused primarily on the penalty provision and on policy considerations in an assessment of the gravity of the offence.  Mr Nicholson submits though, that it is not clearly demonstrated that the magistrate did not consider all the circumstances of the offence, the applicant's good character, and the possible impact of a conviction.

1. Undoubtedly the question of whether or not a conviction ought be recorded, was the principal point of counsel's submissions before the magistrate, and the focus of the discussion. The magistrate was obliged to have regard to the matters set out in s9. To have regard to the matters would require consideration of them. Where a consideration of matters is required, what is called for is more than simply adverting to them. There needs to be "a process of evaluation, sufficient to warrant the description of the matters being taken into consideration": Weal v Bathurst City Council (2000) 111 LGERA 181 at 201 [80] per Giles JA (Mason P and Priestly JA agreeing). Because of the sentencing options, his Honour was also obliged to have regard to s58 of the Sentencing Act: Act.  That section provides as follows:

"58     Purpose of orders to adjourn, discharge or dismiss

An order under section 7(f), (g) or (h) may be made for such one or more of the following purposes, as is relevant in the circumstances, as the court thinks fit:

(a)   to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised;

(b)   to take account of the trivial, technical or minor nature of the offence committed by an offender;

(c)   to allow for circumstances in which it may be inappropriate to record a conviction against an offender;

(d)   to allow for circumstances in which it may be inappropriate to inflict any punishment other than a nominal punishment on an offender;

(e)   to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy to an offender."

1. I have already dealt with how the magistrate's reasons should be approached, given the nature of the matter and the way the proceedings unfolded.  I would simply repeat the reference to Trueman at [33], Harrison v Taws at [33], and McDonald v Nilsson at [21].

1. At the end of counsel's submissions to the magistrate, there was a discussion which led to an adjournment being offered and accepted.  It is convenient if I again set out relevant parts of that exchange:

"HIS HONOUR:  Fifty penalty units or imprisonment for not more than two years.

…

HIS HONOUR:  It's easy to understand why a Parliament would think such a matter was serious as to require prescribing penalties as severe as that….And it seems to me that there is a very strong argument in favour of, that most, if not all such matters be met at least with the recording of a conviction for reasons that I'm sure are equally obvious enough to relieve me of the obligation of stating what they are.

...

[The] the public policy issue associated with the possession of such matters, linked of course, with the relative need for a deterrent penalty, generally deterrent penalty [is the issue] I'm talking about."

1. When the matter resumed a short time after the adjournment, the magistrate anecdotally illustrated the seriousness of a silenced firearm, said that it was not up to him to speculate about what might have happened to the particular one in this case, and raised the issue of the risk that it might have been "passed on down the line wittingly or unwittingly".  It is correct that in his comments on passing sentence, the magistrate made no reference to the applicant's good character or good employment record, nor the impact which a conviction may have on that employment.  He referred to public interest policy considerations which would call for a conviction, and said that even if no penalty was appropriate, a conviction was nonetheless justified.  The reference to counsel's "valid points" was made in the context of discussing the appropriate penalty, and dismissing the need for imprisonment.  The reference was not made in the context of determining whether or not a conviction ought be recorded.  The magistrate did not say that the limited sentencing options available to him, were he not to record a conviction, were so inadequate or inappropriate as to compel him to do so. 

1. I am reluctant to conclude that an experienced magistrate would fail to advert to the need to comply with s9 of the Sentencing Act. However, after careful consideration of the exchanges between counsel and the magistrate, and the magistrate's comments, I am satisfied that the magistrate overlooked the need to have regard to the matters set out in s9(b) and (c), and the associated matters set out in s58(b) and (c). The issue of whether a conviction should not be recorded was prominent. The relevant factors ought to have been specifically addressed in the reasons. What the magistrate actually said, taken with the failure to mention any of the factors in s9(b) and (c), satisfies me of the failure as alleged in the ground.

1. As to s9(a), the magistrate's focus was clearly on the level of penalty set by Parliament and public interest issues associated with the nature of the crime. He was entitled to look at the nature of the offending in the abstract – Farelly v Little [1970] VR 18 – but not exclusively: Walden v Hensler (above). I am satisfied that the magistrate did not have regard to the second limb of the subsection; the particular circumstances of the applicant's offending. There is the reference to the "gulf between mere possession and ultimate use", but I think that the facts of the applicant's offending required closer scrutiny and an assessment of its weight in the s9 exercise. I will later turn to an analysis of these facts.

1. It follows that ground 2 is made out.  I will return to what consequences that has, after dealing with grounds 3, 4 and 5.

Ground 3

1. Ground 3 alleges an error of law:  "… in concluding that there are certain offences which bring about a greater presumption that a conviction is desirable and that firearms offences are an obvious example of that principle".  It relates to the following sentence from the magistrates comments on passing sentence:

"Now, I think there are certain categories of offences which bring about a greater presumption that a conviction is desirable than others, and firearms offences are an obvious example, and I don't need to talk about instances that have occurred in other countries recently in order to drive the point home."

1. The applicant focusses on the magistrate's use of the word "presumption", arguing that it has an established meaning, and that the word would not have been used carelessly.  It is submitted that the magistrate started from the point where a conviction ought to be recorded, and in so doing, he fettered what is an unfettered discretion.  Further, Mr Stevens submits that his Honour drew no distinction between what may be lesser offending under the legislation, and very serious crimes involving the use of firearms. 

1. The respondent argues that the magistrate's remarks were directed to inherent policy considerations which relate to firearms offences.  Mr Nicholson referred to the following comments of Gray J in Offe v Police (2002) 84 SASR 1, to highlight the serious nature of breaches of firearms legislation. His Honour discussed the legislative scheme under the Firearms Act 1977 (SA), and said at 9:

"[22]    … The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included providing community protection through the licensing and regulation of firearms. The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.

[23]     As earlier observed, in 1996 following events at Port Arthur motions were put in place to develop uniform gun laws around Australia. The Firearms Act was amended to provide an even tighter means of weapon control. The amendments aimed to further restrict the ownership and use of firearms with a view to preventing criminal behaviour involving their use."

1. Mr Nicholson submits that the point that the nature of firearms offences, as a category, may ordinarily attract greater weight in some sentencing exercises than some other categories of offending, is supported by comments in Attorney-General v Smith [2002] TASSC 10. There the Court was dealing with a Crown appeal against a dismissal under s7(h) of the Sentencing Act where the respondent had pleaded guilty to assault involving punches and blows with a stake.  Crawford J (Underwood and Evans JJ agreeing) said:

"24… As was pointed out in R v Briese, ex parte Attorney-General [1998] 1 Qd R 487 at 491, a failure to record a conviction is capable of considerable effect in the community. Persons who might have an interest in knowing the truth in such matters include potential employers, insurers and various government departments including the Immigration Department. Under the Firearms Act 1996, the offender would not be absolutely disqualified by s29(3)(a) from obtaining a licence because he would not come within the category of a person who 'within the period of 5 years before the application was made, has been convicted in Tasmania or elsewhere of any crime involving violence to another person'.

25In R v Brown, ex parte Attorney-General [1994] 2 Qd R 182 at 194, it was noted that the recording of a conviction is in itself an element of punishment of the offender and may encourage him or her not to engage in further criminal activity and conceivably it could act as some deterrence to others if it becomes known."

26When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. Regard must be had to the purposes specified in s58. If the offence is of a relatively serious nature, the Court may feel compelled to record a conviction."

1. I need to say something more about the case of Briese referred to by Crawford J in Smith at [24]. The Queensland Court of Appeal had to consider s12 of the Penalties and Sentences Act 1992 (Qld). Some of the provisions of that section were, in broad terms, similar to ss9 and 10[1] of the Sentencing Act (Tas). Rather than referring to "a finding of guilt without the recording of a conviction", the section referred to "a conviction without recording the conviction". Unlike the Tasmanian s10, s12(3)(b) of the Queensland Act provided that except as otherwise expressly provided, such a conviction (a conviction without recording the conviction) must not be entered in any records, except in the records of the court before which the offender was convicted, and in the offender's criminal history; the latter being for limited specified purposes similar to those set out in our s10(2)(b)(i) – (iii). It was in that context that Thomas and White JJ made the remarks referred to by Crawford J in Smith.   

   [1]   (1)    Except as otherwise provided by this Act or any other enactment, a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose.

1. The entire passage at 491, leading to and including the comment that a failure to record a conviction is capable of considerable effect in the community, is as follows:

"The consequence is that when there is a non-recording of conviction, there is a prohibition upon entering the conviction into any records whatsoever (s 12(3)(b)) other than the court's own record and the offender's 'criminal history'. Further, as under s 12(3)(a) the conviction 'is taken not to be a conviction for any purpose', it would seem that an offender who declared, even in a statutory declaration, that he had no previous conviction, or expressly denied having been convicted of the relevant offence, could not later be charged with perjury. In short, … s 12 … appears [to permit] an offender, after the rehabilitation period, to deny ever having been convicted.

It is therefore obvious that the effect of such an order is capable of considerable effect in the community. Persons who may have an interest … [etc] …".

1. A little later at 491 their Honours said:

"For present purposes it is enough to note that the making of an order under s 12 has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court.

On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression."

1. Their Honours went on to consider regulatory regimes in which the existence of a conviction involves direct disadvantage, or in which a conviction might impact on a consideration of whether a person is a fit and proper person in the context of licensing regimes.  At 492 their Honours said:

"Those observations should not be taken as laying down a rule that the court must not grant an offender the benefit of non-recording of a conviction whenever it is likely that the offender might come before such a board; it is a stricture to look at the matter carefully and to bear in mind the potential public harm that may result from the court's authorising concealment of the truth."

1. I note that there is no Tasmanian equivalent to s12(3) of the Penalties and Sentences Act (Qld). Experience in sitting in the criminal jurisdiction of this Court shows that Tasmania Police records include information as to the disposition of proceedings, otherwise than where a conviction has been recorded,[2] although the Anulled Convictions Act 2003 only deals with convictions actually recorded.  I also note the distinction in regulatory regimes between where conviction has automatic consequences of disqualification and the like, and where the issue is one of being a "fit and proper" person. 

   [2]   Tasmania Police "Release Guidelines" publicly available online state that Tasmania Police releases police record information on the basis of findings of guilt.  "Where a court has found a person guilty of an offence, but has not proceeded to record a conviction, this finding is still to be regarded as a conviction."

1. In Barnsley v Ashdowne 36/1997 [1997] TASSC 40) Zeeman J said that he did not consider that a conviction for an offence, as distinct from the conduct constituting the offence, was a matter relevant to the issue of whether a person was of good repute. "Their conduct which constituted the offence charged might well be relevant. On the other hand, it would be unreasonable to take a different view of that conduct depending on whether the charge was dismissed … or whether it resulted in a conviction." I will later return to this point of distinction.

1. The assumptions underpinning the public interest factor may now be less safely based.  However, the considerations identified in Offe and in Smith remain valid and support the notion that in general terms, of itself, the nature of offences under firearms legislation would carry weight in relation to determining whether or not a conviction should be recorded.  At the same time, as Crawford J recognised in par[26] of Smith, that is not to say that the circumstances of the particular offence, nor those of the offender, need not be examined. 

1. In any event, Mr Stevens' argument was not that there is no public interest aspect of whether convictions should or should not be recorded under the Firearms Act, but that the magistrate had taken the view that there was a rebuttable presumption that convictions should be recorded in such cases.  In my view the ground is not made out.  I do not think the identified comments of the magistrate can be reasonably read as expressing a concluded matter of principle.  I think that on a fair reading, what the magistrate intended to convey was that in relation to certain offences, the general nature of the offending may, of itself, provide a greater justification for recording a conviction.  That is, the general type of the offence is to be given greater weight.  No doubt the matter could have been better expressed, but I am not persuaded that the magistrate proceeded on the basis that, simply on the face of things, convictions ought be recorded in cases of firearms offences unless it is established otherwise.  The ground should fail. 

Grounds 4 and 5

1. Ground 4 alleges an error of law "in concluding that it is in the public interest that, in the applicant's circumstances, a conviction is required to alert Government authorities to the offence".  Ground 5 is put as an alternative to ground 4.  The error alleged is recording a conviction on the basis referred to in ground 4, "when there was no evidence that the applicant was not under a duty to inform his employer or Firearms New South Wales of the plea of guilty".  Mr Stevens argued the grounds together, accepting, I think, that ground 5 is really an aspect of ground 4.

1. The grounds are directed to the following passage from the magistrate's reasons; the italicised part in particular:

"Firearms offences of most types bring about a strong public interest in the need for the public and governmental agencies to know on inquiry that the offence has taken place and here the communication of that information to your employer, particularly but not only because your employer is an arm of the armed services, and also firearm services in the State of New South Wales are perfect examples of why there is such a particular need to know.  Now, if I otherwise thought that your offence was one that shouldn't attract a penalty as distinct from a conviction, I would, for those reasons, arrive at the conclusion that you should be convicted anyway just so that that knowledge was available in appropriate circumstances to appropriate arms of government, but in fact I think that there is a need for a penalty to be imposed as well."

1. The applicant argues that by the statement, " … I would for those reasons arrive at the conclusion that you should be convicted anyway …", the magistrate intended to refer to the need for the applicant's employer to know of the offending, as well as the New South Wales firearms authority.  (The licensing authority under the relevant legislation is the NSW Police Commissioner.)  That is, the  applicant submits it is clear that his Honour recorded a conviction so that those two bodies would know.  The applicant says that in this case the employer clearly knew of the offending, and that whilst accepting that the public policy factor favouring convictions in order to assist various authorities acquiring the relevant knowledge, there was no basis to believe that in this case, without a conviction, the offending would not come to the attention of the Commissioner. 

1. As ex tempore reasons, what the magistrate said should not be subjected to overzealous scrutiny.  The impugned passage should also be put it its context.  Importantly, the final stated reason for the conviction was "so that that knowledge was available in appropriate circumstances to appropriate arms of government … ".  Up to the point of the italicised part, the proposition which the magistrate stated was that firearms offences of most types bring about a strong public interest in the need for the public and governmental agencies to know on inquiry that the offence has taken place.  His Honour's comment is really a reflection of what Crawford J said in Attorney-General v Smith (above).  The magistrate went on to use the applicant's particular circumstances of employment and a firearm licence holder as "perfect examples" of why there was such a particular need to know.  On a fair reading, the magistrate should be taken literally; these were but examples of the general proposition about the public interest which he had expressed. 

1. Some difficulty might be thought to arise from the magistrate's use of the words "for those reasons".  The magistrate had previously used the word "arm" in relation to the armed services, and it might be thought that in saying "appropriate arms of government" he meant to include the RAAF.  However, the whole passage set out above must be read as one, and must be read fairly.  The reason for the conclusion reached was expressed in very broad terms.  The magistrate referred to the availability of "knowledge  …in appropriate circumstances to appropriate arms of government … ".  I do not think that his Honour can be fairly taken as meaning the applicant should be convicted so that the actual employer and the New South Wales firearms authority would know of the offending.  I should add that in any event – leaving aside the RAAF in respect of which there was evidence of knowledge on its part – nothing was put to the magistrate, either by the prosecutor or counsel for the applicant, to assist the magistrate with what information might be required by the New South Wales firearms authority, or the circumstances in which it is acquired.  In the circumstances, it was not up to the magistrate to make inquiries.

1. At one point the applicant's argument seemed to stray into an area of complaint not dissimilar to that raised in ground 2 but without the reference to the statutory provision.  It was submitted that the magistrate had focussed on the need for the employer and the firearms authority to know of the offending, "setting aside anything to do with the offence or the offender."  For similar reasons I gave for ground 2, I think the complaint is sound to the extent that it relates to a focus by the magistrate on the public interest factor to the exclusion of the circumstances of the offence and of the offender.  But as drafted, these grounds should fail for the reasons I have given. 

Disposition

1. Counsel were agreed that if any of the grounds were upheld, and I was satisfied that a conviction ought not to have been recorded, I should resentence the applicant. The question of whether or not a conviction ought to have been recorded reflects the operation of the "proviso" in s110(2)(ab) of the Justices Act 1959, in the particular circumstances of the argument in this case. The paragraph provides that in a case where the court considers that no substantial miscarriage of justice has occurred even though the motion might be decided in favour of the applicant, it may dismiss the motion.

1. Generally, on a motion to review a sentence, a court could only reach a conclusion that no substantial miscarriage of justice had occurred if it was satisfied that the sentence imposed was correct in the circumstances.  On a defendant's motion to review, such a miscarriage of justice will have occurred if the court can determine that the sentence actually imposed was inappropriate, either because it was manifestly excessive, or because some other sentence was more appropriate: Edgecock v Davies B53/1995 [1995] TASSC 114). As Jenkins J said in Wallam v Dent [2008] WASC 170 at [31] – [33]:

"If a lower sentence ought to have been imposed at first instance then the Appeal Court would not be able to exercise the discretion … to dismiss the appeal because no substantial miscarriage of justice had occurred. If, on the other hand, despite the error made in the lower court, the same sentence ought to have been imposed then the discretion … would, in the usual case, be exercised."

1. The exercise in relation to the proviso and the resentencing exercise, both involve consideration of the facts.  When counsel stated their agreement about the course I should adopt, neither sought to address me further on the facts.  When I reserved my judgment, I did not see any difficulties with the course proposed.  I could proceed on the basis of the facts put before the magistrate, noting that nothing that was put on behalf of the applicant was challenged by the prosecutor.  I would be  able to draw such inferences from those facts as are reasonably open to me.  Having had the opportunity to more closely examine the facts, and consider what inferences should be drawn, I did not feel that I could, or should, go further without inviting further submissions.

1. There were two particular factual issues which caused me concern. I had the matter relisted and heard further submissions from counsel. As a result, I made orders allowing the motion to review, setting aside the magistrate's orders, and making an order in accordance with s7(f) of the Sentencing Act, the full terms of which are set out at the end of this judgment.  What follows are my reasons for making those orders and for the sentence.

1. I will make some preliminary observations before dealing with the factual basis of the application of the proviso and the re-sentencing of the applicant.  The offence with which the applicant was charged, and that in respect of which the facts were stated by the prosecutor, related to the applicant's possession of the silencer in the security screening area at Hobart airport on Sunday, 10 June 2012.  The applicant's then counsel asserted that at the relevant time, the applicant had forgotten about the silencer which was in his hand luggage.  As a matter asserted by the applicant in mitigation, he would need to satisfy a court of that on the balance of probabilities.  A degree of scepticism might arise, but the asserted state of mind was not challenged by the prosecutor.  It should have been if it were thought to be falsely claimed or implausible: Santarelli v White B55/1991 [1991] TASSC 169).

1. The applicant's counsel put facts before the magistrate which explained the applicant's possession of the silencer.  Those assertions would fall into the same category.  A judicial officer has an independent duty to be satisfied of the factual basis for sentence.  However, it might be expected that if there is any challenge to factual assertions, it will be made.  Where a factual dispute between the prosecution and the defence is raised, or is apparent, and its resolution would affect the sentence, the dispute must be addressed rather than ignored: Roberts v Tasmania [2011] TASCCA 2 per Crawford CJ at [5], Tennent J at [17]. Whoever asserts the matter would have to call evidence if necessary: R v Olbrich (1999) 199 CLR 270 at 280 [24].

1. The first issue is that of the applicant's possession of the silencer in terms of the event charged in the complaint.  The particulars of the complaint allege possession at Cambridge on 10 June 2012.  The prosecutor asserted, in accordance with the complaint, possession of the silencer at the airport on the Sunday.  The applicant's counsel said that when the applicant got up early on the Sunday morning, "feeling tired and unwell", he simply forgot that he had the items.  This would mean that at a point after he received the silencer (which point is, by its nature, impossible to identify), he forgot about the existence of the items in his luggage.  There was no dispute about this.  Later, the applicant's counsel described the possession at the airport as an "oversight".  The magistrate responded by suggesting that the oversight had "nothing to do with the commission of the original offence which was taking it from his mate".  That "original offence" was not the one particularised in the complaint. 

1. Clearly, the assertion of the lack of memory of the silencer on the Sunday was intended to be a matter of mitigation.[3]  It seems to be implicit in the magistrate's approach that he accepted that the applicant in fact had no memory, and hence no knowledge, of the silencer at the airport.  The magistrate seems to have been only concerned with the events of the day before.  The situation is, however, unclear.  It follows that it is also unclear as to whether there was any differentiation in culpability between the respective periods of possession.  Those periods are from when the applicant took the silencer from his friend to the unidentified later point when he forgot about it, and then afterwards. 

   [3]   Forgetting he had the silencer did not mean that the applicant was not in possession of it on the Sunday. Absence of knowledge caused by forgetfulness does not mean there is no possession at law: R v Martindale [1986] 1 WLR 1042; Police v Kennedy (1998) 71 SASR 175; DPP (NSW) v Fairbanks [2012] NSWSC 150.

1. The respondent agreed that I could find that the applicant had forgotten he had the silencer at the time relevant to the charge.  I so find.  That fact is mitigatory to an extent.  Given that he only took possession the day before, the degree of the applicant's culpability in relation to the event as charged, is somewhat less than had he been knowingly carrying the item.  But the fact of having forgotten about the item has significance in relation to the next issue of fact.

1. I will now deal with the facts which relate to the applicant's admitted involvement with the silencer.  Because of the lack of challenge, it probably can be accepted that the applicant did not seek out or ask for the silencer. The magistrate was told that he "accepted the gift not thinking too much about it".  It can be reasonably inferred that the applicant took possession of it because it was given to him as a gift.  The next issue also relates to the 'forgotten silencer'.  It concerns the finding by his Honour that the silencer "found its way into [the applicant's] hand luggage with the obvious intention that it should leave .. Tasmania and go to .. New South Wales."  That finding was followed by observations about the undesirable consequences which might flow from that.

1. That the silencer found its way into the applicant's luggage was rather curiously described by the magistrate as a "slip" on the applicant's part.  It is not clear what was meant by that.  The particular finding was not the subject of a ground of review, but the issue is now what is made of the material.  It seems that the particular fact was not put or conceded by the applicant in the proceedings before the magistrate.  The finding may be in conflict with what the magistrate was told on the applicant's behalf, and may not have been open. 

1. From the mere act itself of putting the silencer in his luggage, it might well be inferred that the applicant intended to take it with him.  But it seems to me that even as to that, a much less adverse inference is also open.  From the fact of taking the silencer, "not thinking too much about it", it might be inferred that he had not made up his mind what he should ultimately do with it.  When he was going out to the wedding he had still to make up his mind about what to do with the silencer and the knife.  He put the items in his bag because there was no other sensible place for him to put them.  The question of his intention though, depends upon assertions made about his state of mind.

1. After the statement that on the Sunday morning that the applicant had forgotten the items, the magistrate was first told that had the applicant remembered he had them, he "probably would have thrown them away".  Very shortly afterwards, counsel said that had the items not been detected at the airport, and the applicant later discovered them, he "would likely have thrown the silencer away".  Later, in the course of a discussion about taking possession from the friend and an oversight in forgetting the items were in his hand luggage, counsel said that  "had he remembered, he would have thrown it [the silencer] in the bin …".  These statements were also unchallenged, and not the subject of any comment by the magistrate.

1. The statements are not inconsistent with the applicant having put the items in his hand luggage with the intention of keeping them; he may well have changed his mind.  On the other hand, focussing on the silencer, the statements about what he would have done are consistent with originally being undecided what ultimately to do with it when he put it in his luggage.  That he forgot he had it and would have thrown it away had he remembered, seems to be more consistent with not having formed an intention to take it back to New South Wales with him.  In this context it is safe to infer that the applicant would have been aware of the likely detection of the items in his hand luggage at the airport screening point, as in fact happened.  

1. The respondent acknowledged the lack of challenge to the matters put to the magistrate, and did not urge me to make findings contrary to the matters put on the applicant's behalf.  Mr Nicholson rightly highlighted the seriousness of taking possession of the silencer in the first place.  I have regard to the the whole of the material which includes the character evidence, and to the respondent's attitude.  I am satisfied that the applicant would have disposed of the silencer the next morning, had he remembered it.  Responsible ways of getting rid of it before he flew home were open to him.  I am satisfied that at the least, he would have responsibly disposed of it in New South Wales, had he somehow managed to get it there. 

1. I have outlined the factual basis for proceeding further.  The possession of the silencer was for a period of less than 24 hours, during the latter part of which, (and which part included the time the subject of the charge), the applicant was not conscious of having it.  I take into account the applicant's personal circumstances and good character as previously discussed.  The nature of the offence is of itself a serious matter, but the actual facts of the case, taken together with the applicant's good character strongly suggest that this was an isolated aberrant act.  The nature of the offending, the applicant's circumstances and the possible risk of loss of employment or entitlements through disciplinary action, persuade me that a lesser penalty ought to have been imposed.  In the context of this case, that means a conviction ought not to have been recorded.  I turn to the appropriate substitute sentence.

1. The approach to such provisions as s7(f) and (h) of the Sentencing Act was discussed in R v Mauger [2012] NSWCCA 51. The provision under discussion was s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which enabled a court, without proceeding to conviction, to make orders directing that the relevant charge be dismissed, or discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding two years. At [18] – [19] Harrison J (with whom Beazley JA and McCallum J agreed) said (omitting references):

"18    Section 10 and its predecessors reflect the willingness of the legislature and the community to provide offenders with an opportunity in certain circumstances to maintain a reputation of good character and to avoid the otherwise rigid application of inexorable laws.

19     Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of that offence.  However, the focus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence: … ".

1. Later, his Honour noted the Crown's submission that the recording of a conviction was a matter of special significance or importance in the case, given that it was an ostensibly serious case of supplying drugs.  His Honour observed:

"37    Whilst that contention is understandable as a general proposition, it is important that it not be permitted in this case to dilute or to downgrade the significance of the imposition of a bond. If the seriousness of the present offence and the need for denunciation and general deterrence are important considerations, they are to my mind more than adequately contemplated in this case by both the terms and the duration of the bond that has been imposed. The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of two years. There are onerous consequences that apply if he fails to observe that requirement. That fact alone would in my view impress the seriousness with which the Court was treating the respondent's conduct upon an objective and reasonable member of the community. It should not pass without comment that the significance of a bond, and the consequences of disregarding its conditions, is regularly considered by this Court to be important when deciding whether or not to grant bail to applicants who have allegedly disregarded the conditions and restrictions that a bond imposes. Much more than mere lip service is regularly paid in this context to the important and significant consequences for bail applications created by offences allegedly committed in breach of such conditions. It is wrong in my view to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence." [My emphasis.]

1. In my view, those authoritative comments can be applied to the relevant provisions of s7 of the Sentencing Act. They can also be applied to this case. An order under s7(f) would mark the serious nature of the offence, but give due recognition to the facts of the case and the applicant's circumstances.

1. As to the relevance of firearms legislation, I note that in this State, s29 of the Firearms Act provides that the Commissioner must not grant an application for a licence unless the applicant is a fit and proper person. Section 29(2)(c) requires the Commissioner to take into account any offence committed by the person under the Act or under the Guns Act 1991, in deciding whether a person is a fit and proper person.  That a conviction had not been recorded in relation to the offence, would not prevent the Commissioner taking an offence committed into account.  Indeed, s51(2)(c) enables the Commissioner to cancel a licence "if the holder contravenes any provision of this Act, whether or not he or she has been convicted of an offence for the contravention". 

1. Section 11(5) of the New South Wales Firearms Act 1996 is in the following terms:

"(5)   A licence must not be issued to a person who:

(a)...

(b)has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c)…

(d)is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or …".

1. Under s24(2) a licence may be revoked for any reason for which the licensee would be required to be refused a licence. Section 11(3) directs that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person, and can be trusted to have possession of firearms without danger to public safety or the peace. It is true that s11(5)(b) is dependent upon a conviction, and an offence prescribed by the regulations only relates to the possession of firearms and not silencers.[4]  It is plain though, that in each jurisdiction a Commissioner may take into account the commission of an offence in respect of which there has been a finding of guilt but no conviction recorded, when determining whether an applicant was a fit and proper person. 

   [4]   Possession of a silencer is an offence under the Weapons Prohibition Act 1998 (NSW).

1. The orders made are as follows. Order number 4 encompasses those conditions which are imposed by s59 of the Sentencing Act.

1The motion to review is allowed.

2The orders of sentence of the magistrate made on 3 January 2013 are set aside.

3Without recording a conviction, I adjourn the proceedings for a period of two years and, on the applicant giving an undertaking with conditions, I order his release.

4The conditions are that:

(a)   the applicant be of good behaviour for a period of two years and not commit any offence under the Firearms Act 1996 (Tas) or the equivalent legislation elsewhere in Australia, or commit any offence punishable by imprisonment for the period of two years.

(b)   in the event of a breach of these conditions, the applicant appear before the court to be dealt with for the offence charged in complaint no 8882/12, when called upon to do so.

1. These orders were formalised on the receipt by the Court of a written undertaking in the above terms signed by the applicant.  It was directed that he pay the Victims of Crime Compensation Act levy of $20 within 28 days.  The respondent is to pay the applicant's costs.

(2)    A finding of guilt without the recording of a conviction —  

(a)   does not prevent a court from making any other order that it is authorised to make by this Act or any other enactment in consequence of the finding; and

(b)   has the same effect as if a conviction had been recorded for the purpose of —

(i)appeals against sentence; or

(ii)proceedings for variation or breach of sentence; or

(iii)subsequent proceedings against the offender for the same offence; or

(iv)enactments providing for the mandatory forfeiture of property on conviction; or

(v)enactments providing for any other kind of mandatory penalty on conviction, not involving disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits.