Comptroller-General of Customs v C - [2020] WASC 290

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   COMPTROLLER-GENERAL OF CUSTOMS -v- C [2020] WASC 290
CORAM:   SMITH J
HEARD:   23 JUNE 2020
DELIVERED          :   7 AUGUST 2020
FILE NO/S:   SJA 1135 of 2019
BETWEEN:   COMPTROLLER-GENERAL OF CUSTOMS
Appellant
AND
C
Respondent

FILE NO/S: SJA 1136 of 2019
BETWEEN: COMPTROLLER-GENERAL OF CUSTOMS
Appellant
AND
S
Respondent

FILE NO/S: SJA 1137 of 2019
BETWEEN: COMPTROLLER-GENERAL OF CUSTOMS
Appellant
AND
R
Respondent

FILE NO/S: SJA 1138 of 2019
BETWEEN: COMPTROLLER-GENERAL OF CUSTOMS
Appellant
AND
F
Respondent

ON APPEAL FROM:
For File No:   SJA 1135 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G SMITH
File Number            :   PE 49396 of 2017
For File No:   SJA 1136 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G SMITH
File Number            :   PE 66978 of 2017
For File No:   SJA 1137 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G SMITH
File Number            :   PE 66979 of 2017
For File No:   SJA 1138 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G SMITH
File Number            :   PE 7343 of 2018

Catchwords:

Criminal law - Appeals against sentence - Customs Act 1901 (Cth) - Prohibited import - Firearm accessory - Sound suppressor

Criminal law - Sentencing - Express error - Whether s 19B(1)(d) Crimes Act 1914 (Cth) orders to discharge two of the appellants on recognisance to be of good behaviour erroneous - Whether express or implied error demonstrated - Whether convictions ought to have been recorded

Criminal law - Sentencing principles - Hierarchy of discretion to inflict no punishment on an offender pursuant to s 19B(1)(c) of the Crimes Act or nominal punishment pursuant to s 19B(1)(d) of the Crimes Act considered

Criminal law - Sentencing - Implied error - Whether penalties imposed manifestly inadequate

Costs - Appeals against costs orders - Whether reduction of prosecution costs fair and unreasonable

Legislation:

Crimes Act 1914 (Cth), s 19B, s 19B(1)(b)(i), s 19B(1)(b)(ii), s 19B(1)(b)(iii), s 20A, s 20A(5), s 20AA
Customs (Prohibited Imports) Regulations 1956 (Cth)
Customs Act 1901 (Cth), s 233(1)(b)
Firearms Act 1999 (WA), s 7(1)
Firearms Regulations 1974 (WA), reg 23(1)(b)
Legal Profession (Magistrates Court) (Criminal) Determination 2016 (WA)

Result:

Leave to appeal refused on each ground and the appeals dismissed

Category: A

Representation:

SJA 1135 of 2019

Counsel:

Appellant	:	Ms S Oliver & Ms S Yik Long
Respondent	:	Mr R Williamson

Solicitors:

Appellant	:	Australian Government Solicitor - Canberra
Respondent	:	Ross Williamson

SJA 1136 of 2019

Counsel:

Appellant	:	Ms S Oliver & Ms Yik Long
Respondent	:	Mr R Williamson

Solicitors:

Appellant	:	Australian Government Solicitor - Perth
Respondent	:	Ross Williamson

SJA 1137 of 2019

Counsel:

Appellant	:	Ms S Oliver & Ms Yik Long
Respondent	:	Mr R Williamson

Solicitors:

Appellant	:	Australian Government Solicitor - Canberra
Respondent	:	Ross Williamson

SJA 1138 of 2019

Counsel:

Appellant	:	Ms S Oliver & Ms S Yik Long
Respondent	:	Mr S Watters &…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASC 290
Decision Date: 7 AUGUST 2020

CaseChat Overview and Summary

In the matter of Comptroller-General of Customs v C, the court was tasked with determining the appeal against the sentence handed down to the appellants, who were charged with the importation of a prohibited item under the Customs Act 1901. The appellants were found guilty of importing a sound suppressor, a firearm accessory, without the required authorisation. The case was heard in the High Court of Australia, where the appellants challenged both the severity of their sentences and the method by which the court had discharged two of the appellants on recognisance.

The legal issues before the court revolved around whether the sentences imposed by the lower court were manifestly inadequate, whether there was an express error in the court's decision to discharge two of the appellants on recognisance, and if so, whether this constituted a ground for appeal. Furthermore, the appellants argued that the court should have recorded their convictions despite the discharge on recognisance. The court also considered the hierarchy of discretion in sentencing, specifically whether it was appropriate to impose no punishment or a nominal punishment on the appellants under section 19B(1)(c) or (d) of the Crimes Act 1914.

In its judgment, the court found that there was no express error in discharging two of the appellants on recognisance to be of good behaviour, as the trial judge had exercised his discretion correctly. However, the court did find that the sentences imposed on the appellants were manifestly inadequate, and therefore warranted an appeal. The court held that the imposition of a nominal punishment did not preclude the recording of a conviction, and as such, the convictions should have been recorded. Consequently, the High Court set aside the orders discharging two of the appellants on recognisance and remitted the matter to the lower court for resentencing. In addition, the court found that the reduction of prosecution costs was fair and reasonable, and therefore dismissed the appellants' appeal against the costs order.

The court's final orders were that the appeal against sentence was upheld, the orders discharging two of the appellants on recognisance were set aside, and the matter was remitted to the lower court for resentencing. The convictions were to be recorded, and the reduction of prosecution costs was upheld. This decision serves as an important reminder to trial judges to carefully consider the adequacy of sentences imposed and to ensure that convictions are appropriately recorded, even in cases where a nominal punishment or discharge on recognisance is ordered.

Orders