Burns v Robinson - [2022] TASSC 43

[2022] TASSC 43

COURT: SUPREME COURT OF TASMANIA

CITATION: Burns v Robinson [2022] TASSC 43

PARTIES:  BURNS, Jason Robert
  v
  ROBINSON, Angela

FILE NO: 930/2022

DELIVERED ON:  24 June 2022
DELIVERED AT:  Hobart
HEARING DATE:  20 June 2022
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – When remedy available – Sentencing procedure – Factual basis for sentence – Fact asserted by accused in mitigation – Rejected by magistrate without defendant having opportunity to establish by evidence – Miscarriage of sentencing discretion – Ground upheld but review dismissed because no substantial miscarriage of justice.

Nash v Haas [1972] Tas SR 1, Parker v Tasmania [2019] TASCCA 16, applied.
Aust Dig Magistrates [1345]

REPRESENTATION:

Counsel:

Applicant:  L Flanagan
             Respondent:  L King-Roberts
Solicitors:
             Applicant:  Tasmania Legal Aid
             Respondent:  Director of Public Prosecutions

Judgment Number: [2022] TASSC 43
Number of paragraphs: 19

Serial No 43/2022
File No 930/2022

JASON ROBERT BURNS v SERGEANT ANGELA ROBINSON

REASONS FOR JUDGMENT BRETT J

24 June 2022

The applicant moves this Court to review a sentence imposed on him by Magistrate Brown on 30 March 2022, for a number of summary offences under the Firearms Act 1996. The offences are one count of possessing a shortened firearm contrary to s 116(b) of the Act, one count of possessing a firearm when not being the holder of a licence of the appropriate category, one count of possessing a stolen firearm contrary s 107A of the Act and one count of possessing a firearm to which a firearms licence may not be issued. The learned magistrate imposed a global sentence of eight months' imprisonment, with no provision for parole. The magistrate imposed a separate fine in respect of the remaining charge on the complaint, that of possession of ammunition without holding the appropriate licence, but that penalty is not challenged in this motion. This is not an imprisonable offence.
The objective facts presented by the prosecution were not disputed by the applicant. The offence was committed on 15 February 2022. The applicant had been found by police in a hotel room in possession of the relevant firearms and ammunition. The subject of the first three offences was a 12 gauge shot gun, which had been previously stolen, and which was shortened to approximately 40 cm in length. It was not alleged that the applicant had either stolen or shortened the firearm, but it was his possession of this item which constituted his liability for the offences. It is a defence to the charge of possessing a stolen firearm to provide a satisfactory account for the possession or control of the firearm. The plea of guilty precluded such an account, and in any event, the applicant's counsel in her plea in mitigation acknowledged that the applicant had purchased the firearm and ammunition shortly before their location by police and that the applicant appreciated that "it wasn't a legitimate sale given it was paid for in cash via an associate and the shotgun was sawn off".
The shot gun was loaded when it was found by police. The ammunition relevant to count 5 was in the same backpack as the firearms, and consisted of 35 shotgun shells. While it was not specifically alleged that this ammunition was suitable for use in the shot gun, this was assumed by the magistrate and seems to be a reasonable inference in any event, particularly having regard to the applicant's acknowledgement that he had purchased the ammunition with the shot gun. There was no argument to the contrary at the hearing before me. The remaining count related to the other firearm, which was a stun gun. The magistrate was told by defence counsel that the applicant had purchased this item online, and thought it was legitimate to do so. His Honour was not provided with any other information about this item by either party.
The magistrate was told that the applicant was 29 years of age at the time of commission of the offences. He has a partner and had been in ill health and, in fact, was undergoing hospital treatment at the time that he purchased the firearms. He has an extensive criminal record. The first offences were committed when he was 16 years of age, and since that time, he has offended regularly, both as a youth and an adult. Many of the convictions are for serious offences, including crimes of violence. In 2013, the applicant was sentenced to a partly suspended term of imprisonment for aggravated armed robbery. The suspended portion of this sentence was activated approximately one year later, it would seem because of the commission of further offences. In 2016, he was sentenced to imprisonment for offences which included armed robbery. He was released on parole in August 2018, but parole was revoked 4 months later. I infer that this was because of the commission of further offences, which included stealing firearms, including a 12 gauge shot gun, and other associated firearms offences. In 2019, he was sentenced to a drug treatment order for these offences, but I infer from his record that after three months on the order, it was terminated and he was required to serve the custodial period. The firearms offences which related to this sentence are the only prior offences under the Firearms Act in his criminal history.
The magistrate correctly took the view that general deterrence was an important sentencing consideration. His Honour noted that the maximum penalty for the offence of being in possession of a stolen firearm is five years' imprisonment. His Honour was concerned that the shot gun had been found loaded and was stolen and shortened, and accompanied by a significant amount of compatible ammunition. His Honour also noted that the applicant had a poor record and that personal deterrence was also an important factor. He concluded that "a term of imprisonment is inevitable", but said nothing at all about parole. The failure to specify a non-parole period has the effect that the applicant is not eligible for parole in respect of the sentence: s 17(3A) of the Sentencing Act 1997.
The grounds of review can be summarised as follows:
(a)    The sentence is manifestly excessive.
(b)    The magistrate erred by not imposing a non-parole period.
(c)    The applicant was denied procedural fairness.
In my view, the second ground is subsumed into the first. It is not suggested that the magistrate did not have a discretion to impose a sentence of imprisonment without providing for parole, or that there was some other specific legal error involved in that determination. The argument, in essence, is that the head sentence taken by itself was manifestly excessive, but in any event, the failure to provide for parole results in the sentence being manifestly excessive. The third ground, however, asserts specific error in the sentencing process, and if upheld would result in a conclusion that the exercise of the sentencing discretion has miscarried. In that event, the sentence would need to be reconsidered afresh.
Logically therefore, as the applicant's counsel has noted, the third ground should be considered first, because of the potential impact of its resolution on the factual basis of sentencing. The argument is that his Honour sentenced on a factual basis other than that asserted by the applicant without giving him an opportunity to establish the relevant fact by evidence. During the plea in mitigation, the applicant's counsel said this:
"He hadn't used the shotgun, nor, on his instructions, did he have any intention to use it, and there's certainly nothing before your Honour to suggest that he had used it".
Counsel did not provide any further information concerning the applicant's explanation or reason for purchasing and remaining in possession of the loaded shot gun.
In sentencing comments, the magistrate said:
"So whilst his firearms record under the Firearms Act is somewhat limited, it is highly relevant and it's more accurate to say that the defendant's history in relation to weapons and crimes of violence mixed with dishonesty is a particularly poor one. The weapon here was a stolen greatly shortened 12-gauge shotgun. The only explanation for the defendant's possession of that is an unsavoury one in all those circumstances. Of course, he's not to be sentenced for any offence other than those for which he is here, but it is hard to see any sort of innocent explanation for the possession of an item like this, or items such as that in particular let alone possession of a stun gun".
The applicant's counsel's argument is that the applicant had asserted a fact in mitigation, which was that he had no intention to use the shot gun. It is submitted that the magistrate has implicitly rejected this fact by concluding that "the only explanation for the defendant's possession… is an unsavoury one". In other words, the magistrate's comment leaves open the possibility that his Honour has concluded that the applicant's purpose in owning the weapon was to use it in an unlawful way.
It is well-established that a sentencing magistrate is not bound to accept facts asserted by either the prosecution or the defence. However, it is also well established that if the court intends to reject a fact put in mitigation, which if accepted would be material to the assessment of sentence, then the court should alert the offender to the intended use and provide an opportunity to address the factual issue either by submission or evidence. See Nash v Haas [1972] Tas SR 1; Parker v Tasmania [2019] TASCCA 16. In this case, there was a lack of clarity in relation to both what was actually being asserted by the applicant, and as to how the magistrate interpreted and used the factual assertion. In particular, it is not clear whether the applicant was positively asserting that his possession of the firearm was only for innocent or benign reasons, or alternatively simply saying that he had not formulated a specific plan to use the weapon at the time of its location. Further, it is not clear from the magistrate's impugned comment as to whether his Honour overlooked the assertion, interpreted it in a way consistent with the observations he made, or deliberately rejected it because of its apparent improbability. The magistrate could have accepted that the applicant had no current intention to use the weapon in a specific way, while concluding that the only reasonable inference was that he had purchased it and loaded it with a general understanding that he, or someone else, may use it in the future for an "unsavoury" purpose. Ultimately, however, his Honour's comments leave open the possibility that he has inferred that the applicant possessed the weapon because he intended to use it for unlawful purposes and has thereby rejected the assertion that he had no intention to use the firearm. This issue had the potential to be significant in the assessment of the objective seriousness of the offence, particularly when considered with the allegations that the weapon was found loaded, that the applicant had purchased it in its shortened state and that he had also purchased a significant amount of compatible ammunition at the same time. Taken together these circumstances provided the context of his possession, and contributed to the objective seriousness of that possession. The fact asserted by the applicant had the capacity, if accepted, to negate or reduce the serious nature of his possession of the weapon arising from these factors.
On any view of the facts, an assertion by the applicant that he did not intend to use the weapon at all was highly improbable. If that is what was being asserted, then the magistrate would have been justified in taking the view that he was not prepared to accept it at face value. Because it was offered in mitigation, the onus was on the applicant to establish the fact on the balance of probabilities: R v Olbrich [1999] HCA 54, 199 CLR 270. However, having regard to the potential significance of the asserted fact to the assessment of sentence, the magistrate, at the very least, should have clarified precisely what was being put by the defence and, in the event, that his Honour was not prepared to accept the asserted fact because of its incompatibility with the objective circumstances, to provide the defence with an opportunity to support the factual assertion with evidence. In my view, the failure to take those steps has in the circumstances of this case resulted in a miscarriage of the sentencing discretion.
In view of this finding, it is not necessary to determine grounds one and two, although the arguments presented to support those grounds are, of course, relevant to any re-exercise of the sentencing discretion. Further, the question arises as to the appropriate disposition of the case. The miscarriage of the sentencing discretion means that sentence will need to be assessed and imposed afresh. In the circumstances, I am satisfied that it would in any event be appropriate to exercise my powers under s 110(2)(i) of the Justices Act 1959, to re-determine the question of sentence. Counsel did not submit to the contrary.
The first step in doing so is to take the action which should have taken by the learned magistrate. Accordingly, I raised the issue of the improbability of the submission with the applicant's counsel and informed her that while I could accept that no particular unlawful purpose had crystallised prior to the location of the weapon by the police, I was not prepared to sentence on the basis that the applicant's possession of the shot gun was for innocent or benign purposes. Upon being offered an opportunity to support the submission with evidence, the applicant declined to do so. Accordingly, assessment of the sentence will proceed on the basis that the objective circumstances of the possession justify a conclusion that the applicant possessed the firearm in a condition and with the potential for unlawful use, either by him or someone else, at some time in the future. This is not to say that he had at that point in time formed a specific plan or intention to use it in an unlawful way. This factual basis is not materially different to that adopted by the sentencing magistrate. It is apparent, therefore, that the procedural error has not resulted in a substantial miscarriage of justice.
In my view, the global sentence of eight months' imprisonment was appropriate for these offences. All of the offences were serious, but that of being in possession of a stolen firearm was particularly serious. This offence was introduced by Parliament into the Firearms Act in 2015. It is capable of prosecution on indictment. Irrespective of whether it is prosecuted on indictment or as a summary offence, it carries severe penalties. If prosecuted summarily, the penalty includes a maximum sentence of imprisonment of five years. The introduction of this provision and the severe penalty provided for its breach reflects community concern, consistent with the experience of the court, in relation to the prevalence of the theft and unlawful distribution of firearms throughout the community. The stealing and subsequent sale of firearms is logically associated with their availability for misuse by criminals, and this in turn impacts directly on community safety and its sense of security. The history of the legislation, and the implications of that history with respect to the seriousness with which courts should regard this offence, was considered by Wood J in Merrigan v Oakley [2016] TASSC 58, see in particular [34]-[36]. The shortening of the firearm had the effect of facilitating its potential concealment and illegal use. The need for general deterrence is obvious. Further, the fact that the applicant possessed the weapon in a loaded state and that he had also purchased and kept with the weapon a significant quantity of compatible ammunition contributes to its potential for dangerous misuse, and thereby aggravates the objective seriousness of the offence.
In this case, apart from the plea of guilty, there was little if anything which mitigated the seriousness of the applicant's offending conduct. I do not agree with the applicant's counsel that the fact that the applicant had only possessed the firearm for a short time provides mitigation. His possession of the firearm only came to an end because of its prompt discovery by police. This is not a case where the offender has voluntarily desisted or withdrawn from the offence, and there is nothing to suggest that the applicant would have done so had the firearm not been located by police. Further, I agree with the learned magistrate that specific deterrence was an important factor. The applicant's criminal record demonstrated a continuous and ongoing propensity to break the law, including by committing serious crime. His counsel did not submit that he had made a commitment to rehabilitation and there was nothing about his history which suggested any such conclusion. He had in the past been offered lenient and community-based sentencing options but had invariably repudiated these opportunities by further offending. He was a mature offender, and there was nothing else about his background or personal circumstances which warranted an emphasis on rehabilitation.
Finally, I am of the view that the applicant should serve the full sentence in actual custody. Having regard to s 70 of the Corrections Act 1997, irrespective of a non-parole period, the applicant is not eligible for release on parole until he has served six months of the sentence, unless exceptional circumstances warrant his early release. The maximum period of parole, if granted, would therefore be two months. Having regard to the seriousness of the offences, and the applicant's antecedents and personal circumstances, such an outcome is inappropriate and contrary to the objectives sought to be achieved by the sentence. Accordingly, I would not fix a non-parole period.
It follows that, although the motion might be decided in favour of the applicant because I have upheld ground 3, in the circumstances, no substantial miscarriage of justice has occurred, and that the sentence imposed, in any event, is appropriate. Accordingly, I dismiss the motion. The sentence imposed by the magistrate will remain in place.