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 & Ms Y A Mah

Solicitors:

Appellant	:	Australian Government Solicitor - Canberra
Respondent	:	Chambers Legal

Case(s) referred to in decision(s):

Abbott v Hussain [2003] WASCA 58

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Basham v City of Joondalup [No 2] [2016] WASC 120; (2016) 258 A Crim R 451

Bird v Comptroller General of Customs [2019] WASC 240

Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257

Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568

Eldridge v The State of Western Australia [2020] WASCA 66

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

House v The King [1936] HCA 40; (1936) 55 CLR 499

Matta v Australian Competition and Consumer Commission [2000] FCA 729

Nelson v Quinn [2001] WASCA 297

Nguyen v Comptroller-General of Customs [2017] WASC 341

R v Pham [2015] HCA 39; (2015) 256 CLR 550

RLG v Donnelly [2012] WASC 230

Scott v Chief Executive Office of Customs [2012] WASC 203

Stark v Plant [2010] WASCA 74

The Queen v Combo [2015] WASCA 34

The State of Western Australia v Clark [2020] WASCA 103

TABLE OF CONTENTS

1.0 Introduction

1.1 Background to the charges and the orders made by the sentencing magistrate

1.2 Grounds of appeal

1.3 The relevant legislation creating the offence of prohibiting the import of a sound suppressor

2.0 Express error ‑ ground 1 of the Mr S and Mr R appeals ‑ s 19B(1) of the Crimes Act

2.1 The legislation

2.2 The facts of each of the Mr S and Mr R offences, the sentencing submissions and sentencing remarks

2.2.1 Mr S

2.2.2 Mr R

2.2.3 Relevant principles - s 19B(1) of the Crimes Act (Cth)

2.2.4 Is express error established?

3.0 Implied error ‑ manifest inadequacy of sentence ‑ ground 2 of the Mr S and Mr R appeals and ground 1 of the Mr C and Mr F appeals

3.1 Sentencing principles ‑ implied error

3.2 Were the sentences manifestly inadequate

3.2.1 Mr C

3.2.2 Mr F

3.3 Is implied error established?

4.0 Whether the costs awarded to the prosecution were unreasonable or unjust ‑ ground 2 of the Mr S and Mr R appeals and ground 2 of the Mr C and Mr F appeals

4.1 The costs regime applicable to Customs Act offences

4.2 The costs orders sought by the appellant and the orders made by the sentencing magistrate

4.3 Is error established?

5.0 The result of the appeals and the orders that should be made

SMITH J:

1.0 Introduction

1.1 Background to the charges and the orders made by the sentencing magistrate

1. In each of the four appeals, the appellant seeks leave to appeal against sentence, and the orders made by the sentencing magistrate for the prosecution's costs.[1]

   [1] In these reasons, the names of each of the respondents are anonymized because their criminal histories reveal that each of them, with the exception of Mr R, were charged with other offences under State law, for which they received spent convictions when charged with the Commonwealth offences the subject of these appeals.  Mr R's name has been anonymized because he was not convicted when sentenced for the Commonwealth offence but discharged upon entering into a recognisance on conditions to be on good behaviour for a fixed period of time.

2. Three of the respondents, Mr S, Mr R and Mr C, were each charged on separate dates between March 2015 and March 2017, with one count of importing a prohibited import, namely a firearm accessory being an unfinished firearm suppressor, in contravention of reg 4F(1) of the Customs (Prohibited Imports) Regulations 1956 (Cth), contrary to s 233(1)(b) of the Customs Act 1901 (Cth). The respondent to the fourth appeal, Mr F, was charged that on 12 November 2014, he attempted to import a prohibited import, namely a firearm accessory being an unfinished firearm suppressor, in contravention of reg 4F of the Customs (Prohibited Imports) Regulations, contrary to s 233(1)(b) of the Customs Act.

3. At the hearing of the appeals, counsel for the appellant informed the court that the respondents (and others) had been charged with these offences at about the same time following search warrants being executed on the premises of each of the respondents.  The search warrants were issued as a result of information received from the Alcohol, Tobacco and Firearms agency in the United States of America (USA), following a raid of a business known as Prepper's Discount and the seizing of client and business records (which indicated that each of the respondents had purchased a device that could be modified for use as a firearm suppressor).

4. Mr S, Mr C and Mr R were charged with an offence in late 2017 and Mr F charged with an offence in January 2018. Mr S, Mr C and Mr F each entered pleas of not guilty and their charges listed for trial. Mr R entered a plea of not guilty, but his matter was not listed for trial. The trials of the other three respondents did not proceed as orders were made vacating the trial dates to await the outcome of an appeal against conviction for similar offences against another offender, Rodney David Bird. The appeal raised an issue of whether the devices imported by Mr Bird were, at most, components of a suppressor and not prohibited from importation by s 233(1)(b) of the Customs Act.

5. On 5 July 2019, Curthoys J dismissed the appeal.  His Honour found:[2]

   In order to prove the charge it is not necessary to prove the original purpose of the device.  The requirement is that device is designed to, or capable of reducing the noise of discharge of the firearm.

   [2] Bird v Comptroller General of Customs [2019] WASC 240 [40].

6. Following delivery of the decision in Bird v Comptroller General of Customs, each of the respondents to these appeals entered pleas of guilty and were sentenced by Magistrate G Smith on 3 October 2019.

7. It is important to note in the disposition of each of these appeals by this court that lengthy and detailed submissions were made to the sentencing magistrate by counsel for the prosecution and counsel for each of the respondents in respect of the relevant facts and principles of law that his Honour should take into account.

8. On 3 October 2019, pleas were taken from each of the respondents, sentencing submissions made, and each respondent sentenced throughout the day, in between his Honour dealing with other matters on his list.  Mr S was dealt with first, followed by Mr F, then Mr R and finally Mr C.

9. It is clear from his Honour's sentencing remarks that the circumstances and sentencing disposition of Mr S' case, in part, formed part of his Honour's reasons for the sentences, and orders for costs, imposed on the other respondents.

10. After hearing from counsel, Mr S and Mr R were each discharged without conviction, pursuant to s 19B(1)(d) of the Crimes Act1914 (Cth) upon entering into a recognisance fixed in the sum of $2,000, conditioned to be of good behaviour for nine months. Mr S was ordered to pay $2,000 in costs together with $607.60 in disbursements, being a total of $2,607.60, and Mr R was ordered to pay $2,000 in costs together with $618.60 in disbursements, being a total of $2,618.60.

11. Mr C and Mr F were each fined $1,000.  Mr C was ordered to pay costs of $4,000 together with $980.85 in disbursements, being a total of $4,980.85.  Mr F was ordered to pay $2,000 in costs, together with disbursements of $508.60, being a total of $2,508.60.

1.2 Grounds of appeal

1. In the Mr S and Mr R appeals, the appellant seeks leave to appeal on three identical grounds.  The first two grounds go to sentence, and the third to the costs orders. 

2. The first two grounds of the Mr S and Mr R appeals are:

   (1)In ground 1, the appellant alleges an express error that the sentencing magistrate erred in law in that he failed to apply the test outlined in s 19B(1) of the Crimes Act, and if his Honour had applied the correct test, he would not have been satisfied that the terms of that section were met.

   (2)In ground 2, the appellant alleges an implied error by claiming that the sentence imposed was manifestly inadequate.

3. In the Mr C and Mr F appeals, the appellant seeks leave to appeal on two identical grounds. The first ground goes to sentence, and is the same as ground 2 of the Mr S and Mr R appeals. 

4. The second ground of appeal in the Mr C and Mr F appeals is the same as ground 3 of the Mr S and Mr R appeals.  In each appeal the appellant alleges that the sentencing magistrate erred in law in unreasonably reducing the professional costs sought by the prosecution.

5. Leave of the court is required for each ground of appeal.  Leave to appeal must not be given on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding.[3]

1.3 The relevant legislation creating the offence of prohibiting the import of a sound suppressor

[3] Criminal Appeals Act 2004 (WA) s 9(1), s 9(2).

1. Section 233(1)(b) of the Customs Act creates the offence:

   (1)A person shall not:

   (b)import any prohibited imports;

2. The importation of a firearm accessory is prohibited under reg 4F of the Customs (Prohibited Imports) Regulations.

3. The term 'firearm accessory' is defined in reg 4F(4) to mean, 'any of the following devices, whether or not complete, damaged, temporarily or permanently inoperable, or unfinished: a silencer, sound moderator, sound suppressor or any other device designed to reduce, or capable of reducing the noise of discharge of the firearm'.

4. The maximum penalty for breach of s 233(1)(b) of the Customs Act, at the relevant times, was a fine of $170,000 (for Mr F and Mr R) and $180,000 (for Mr C and Mr S). Pursuant to s 245(4) of the Customs Act, any fine imposed by a court of summary jurisdiction that exceeds $34,000 or $36,000 respectively is taken to have been abandoned.

2.0 Express error ‑ ground 1 of the Mr S and Mr R appeals ‑ s 19B(1) of the Crimes Act

2.1 The legislation

1. Section 19B of the Crimes Act relevantly provides that:

   Discharge of offenders without proceeding to conviction

   (1)Where:

   (a)a person is charged before a court with a federal offence or federal offences; and

   (b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

   (i)the character, antecedents, age, health or mental condition of the person;

   (ii)the extent (if any) to which the offence is of a trivial nature; or

   (iii)the extent (if any) to which the offence was committed under extenuating circumstances;

   that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

   the court may, by order:

   (c)dismiss the charge or charges in respect of which the court is so satisfied; or

   (d)discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

   (i)that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

   (ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

   (A)on or before a date specified in the order; or

   (B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and

   (iii)that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.

2.2 The facts of each of the Mr S and Mr R offences, the sentencing submissions and sentencing remarks

2.2.1 Mr S

1. On 6 April 2017, Australian Border Force investigators executed a search warrant at the residential address of Mr S.  During the course of executing the warrant, Mr S was questioned about the importation of an unfinished firearm suppressor and admitted that he had ordered a 'solvent trap' online through the Prepper's Discount website.

2. Counsel for the prosecution read the following facts to the court:[4]

   [4] Transcript from primary court 3 October 2019, pages 3 ‑ 4.

   (a)the description 'solvent trap' was just a label applied to the device to make it appear to be legitimate and that it is sold as a solvent trap on the basis that (if unmodified and attached to a firearm) you could pour solvent down (inside the firearm) and, the device would catch the solvent;

   (b) to catch solvent most people just use a plastic bucket however, this device is a highly engineered metal item that costs US $249; 

   (c)for the device to be used as a firearm suppressor it must be attached to a mechanism enabling it to screw onto a firearm and would have to be modified by drilling holes through the middle of the baffles.  On the device there is a threaded end that screws onto the barrel of the weapon and can be constructed out of tubes like a Maglite tube and the baffles are inserted with holes in them.  Once attached to a firearm, when fired, the bullet passes through and the baffles create air chambers that dampen the noise of the shot;

   (d)Mr S had a licence to own and use firearms.  At the time of the execution of the search warrant when Mr S was interviewed he said:

   (i)he had not been convicted of any prior offences;

   (ii)he is an ex‑police officer who carried out a variety of roles including weapons trainer;

   (iii)he is an active shooter and a reloader, which means he makes his own ammunition;

   (iv)he received the device, but said that he had never used it, and it was stored in one of his four firearm safes;

   (v)he told officers that he had no intention of converting the solvent trap into a firearm suppressor;

   (vi)he had ordered the item from Prepper's Discount a couple of years before and had used his laptop computer to order it;

   (vii)he was aware that solvent traps could not be purchased in Australia at the time he ordered it;

   (viii)he had purchased the solvent trap so he could use it on all his firearms to check that they were functioning properly, and to diagnose problems with projectiles; and

   (ix)he did not use the solvent trap because he did not like the design of it, it would not fit on anything, and he would have to do much to it to make it work;

   (e)Australian Border Force officers analysed Mr S's computer and located correspondence between him and Preppers Discount indicating the date of payment was 10 January 2016, the amount paid and shipping information.  The analysis also showed an internet browsing history which revealed approximately eight websites related to solvent traps, approximately 25 websites related to firearm suppressors, and eight websites appearing to be specifically about building firearm suppressors; and

   (f)the officers located the device in the safe, and ascertained that it had not been modified to be used as a suppressor.[5]

   [5] In submissions put to the magistrate on behalf of the prosecution, counsel referred to the device as a silencer.  The device, however, once modified in the manner described, is not a silencer but a sound suppressor.

3. As a result of the search warrant being executed, Mr S was also charged with State offences, being possession of a controlled weapon, contrary to s 7(1) of the Firearms Act 1999 (WA) and one count of failing to comply with firearm or ammunition storage requirements, contrary to reg 23(1)(b) of the Firearms Regulations 1974 (WA). Counsel for Mr S informed his Honour that the controlled weapon charge related to a defunct pepper spray canister and that Mr S had pleaded guilty to both offences, was fined $100 on each charge and spent conviction orders were made in respect of both charges.

4. In mitigation, counsel for Mr S submitted that:

   (a)just because Mr S had conducted research on how to convert a solvent trap into a sound suppressor for a firearm did not mean that he had that plan;

   (b)sound suppressors are popular in Europe and in England where their use is not prohibited; and

   (c)solvent traps have a legitimate use, but Mr S did not use the device at all because he found he could not attach it to the barrel of a gun so he put it away and forgot about it.

1. Counsel for Mr S provided to his Honour copies of references which spoke to Mr S as a person of good character.  Counsel for Mr S also stated that Mr S had been in the army from 1988 to 1994, and that:

   (a)in 1995, Mr S joined the police and worked in traffic, general duties, gang crime, tactical training and had been in charge of East Metro District satellite training where he issued pepper sprays and collected expired pepper sprays (hence, the charge of possession of a controlled weapon, being an expired pepper spray);

   (b)whilst employed as a police officer, he was involved in the Glock handgun rollout, and DNA training, Criminal Investigation Act training, weapons and tactics training, breath testing, stinger-tyre deflation and all other types of tactical training. He was also a member of the Gallipoli Task Force who dealt with outlaw motorcycle gangs. In 2011, he was a bodyguard for Her Majesty, the Queen when she attended the CHOGM conference;

   (c)he used to work at night as a police officer conducting car chases, but sadly he was on the scene on three separate occasions when fellow police officers died on the job.  He asked for 12 months leave but it was refused, so he left the police force and started his own registered safety training business;

   (d)he had been working in the mining industry until two days before (appearing in court for sentencing on this charge) when he was made redundant by Rio Tinto; and

   (e)he required a police clearance to work in the mining industry.

2. Counsel for Mr S then put a submission that the appropriate disposition for the offence was to discharge Mr S without conviction, pursuant to s 19B(1)(d) of the Crimes Act, upon entering into a recognisance to be of good behaviour for a fixed period. In making this submission, counsel referred to two matters which had been dealt with by the Deputy Chief Magistrate who had imposed a similar disposition on two brothers for the offence of importing a firearm accessory, contrary to s 233(1)(b) of the Customs Act for the purposes of suppressing sound when using a firearm on a farm.

3. Counsel for the prosecution vigorously opposed the making of any order to dismiss the charge, or discharge Mr S on a recognisance  and put a submission that the only appropriate disposition was to impose a fine on Mr S, which necessitated the entering of a conviction.  The submissions put by counsel for the prosecution on this point can be summarised as follows:

   (a)s 19B is unlike a spent conviction. Section 19B is a disposal in itself, and it is more akin to a conditional release order, in the State sentencing scheme;

   (b)there is no power under s 19B to impose a fine, and dismiss a charge or discharge the offender on a recognisance (unlike imposing a spent conviction);

   (c)the authorities are very clear that (to invoke the power conferred by s 19B(1)) there needs to be something exceptional raised because the court is required to conclude it is inexpedient to inflict any punishment other than a nominal punishment;

   (d)these types of offences (for which Mr S was charged) are too serious to warrant a disposal under s 19B and that the need for general deterrence in itself would not warrant such a disposition;

   (e)the offence in question was serious and there was nothing exceptional in the circumstances of Mr S which would justify such an order. The authorities establish that there needs to be something that clearly distinguishes the circumstances of the offence under consideration from a typical offence or that there must be something unusual. In particular, s 19B should not be utilised unless it is a most unusual and exceptional case;

   (f)the offence was not trivial.  Nor was the offence committed under extenuating circumstances;

   (g)there has to be something unusual about the character of the offender and, again, there is nothing unusual about Mr S that has been raised; and

   (h)it is not unusual for an offence such as this to be committed by a person who does not have a criminal record.

4. Counsel for the prosecution made a clear submission to the sentencing magistrate that there are two steps[6] that must be separately satisfied to impose a sentencing disposition under s 19B(1) of the Crimes Act.  In particular, counsel submitted that the first threshold is that there has to be something exceptional in the personal circumstances of an accused or that the offence has to be found to be trivial or committed under extenuating circumstances.  Once satisfied of one of those matters, the second step is whether or not it is inexpedient to inflict punishment other than nominal punishment.  Counsel then made a submission that in Mr S' case, the first step was not met which had the effect that the court could not consider the second step.[7]

   [6] In the transcript of the proceedings before the sentencing magistrate, counsel for the prosecution referred to the steps as tests to be met.

   [7] Transcript from primary court page 20; hearing book page 100.  It should be noted for the reasons that follow, that the test that counsel for the prosecution put to his Honour that an offender has to meet could be considered more onerous than the authorities require.

5. In response, his Honour referred to the submission (put by counsel for Mr S) that two others had been dealt with by the Deputy Chief Magistrate for a similar charge by way of discharge and a recognisance pursuant to s 19B(1) of the Crimes Act.  His Honour then said in the following exchange with counsel for Mr S:[8]

   [8] Transcript from primary court pages 26 ‑ 29.  This exchange is important for the disposition of each of the four appeals as these submissions put by counsel for Mr S informed the sentencing magistrate of the use of these devices in hunting and the circumstances where such devices are authorised by the law to be used.

   HIS HONOUR:  So you were just inviting me to follow the lead of the Deputy Chief Magistrate?

   WILLIAMSON, MR:  I am, your Honour.

   HIS HONOUR:  All right. Was there anything else you wanted to say?

   WILLIAMSON, MR:  I have just got the references if, your Honour wants to read them.

   HIS HONOUR:  Look, your client is clearly a person of pride, good character, and clearly a person in relation to whom a conviction could and probably would have an extremely severe detrimental effect on his future, employment and otherwise.  And although the prosecution doesn't accept his explanation, his explanation is that this is a solvent trap or catcher or something.  And that's how it's referred to and it can be used as that even though he found it wasn't any good for that purpose, and so put it away and forgot about it. And that he never intended to use it as a suppressor. That's your position isn't it, Mr Williamson?

   WILLIAMSON, MR:  Yes, your Honour.

   HIS HONOUR:  Why would a ‑ I mean if he's got handguns legitimately ‑ I mean he must go to a pistol club, mustn't he?

   WILLIAMSON, MR:  Yes, yes.

   HIS HONOUR:  Well, would anyone ever stand up at a pistol club and shoot a gun with a silencer on it?  No.

   WILLIAMSON, MR:  No way in the world and they're not used ‑ ‑ ‑ ‑

   HIS HONOUR:  You would be frowned upon.  You would be expelled, surely.

   WILLIAMSON, MR:  Very, very quickly.  Yes.

   HIS HONOUR:  And he's got rifles, what does he want rifles for?

   WILLIAMSON, MR:  Well, he hunts.

   HIS HONOUR: And is there any benefit in putting a silencer on a rifle when you go hunting?

   WILLIAMSON, MR:  Yes.

   HIS HONOUR:  What is it?

   WILLIAMSON, MR:  That's what they're used for overseas.

   HIS HONOUR:  Yes.  What is the benefit?

   WILLIAMSON, MR: It reduces sound.

   HIS HONOUR:  Yes, but, I would have thought that by the time the sound reaches the kangaroo it's too late.  The bullet will get there first.

   WILLIAMSON, MR:  Yes, but it doesn't ‑ it means that the other kangaroos don't bounce away as much as they do with an unsilenced ‑ unsuppressed.

   HIS HONOUR: Okay.  All right. So there is ‑ ‑ ‑

   WILLIAMSON, MR:  So what it does ‑ ‑ ‑

   HIS HONOUR:  There is some use for a silencer when you're hunting.

   WILLIAMSON, MR:  Absolutely, and that's why there is an exception to the prohibition on possession in Western Australia of silencers.  And that's for officers of the Agricultural Protection Board who use them for shooting starlings from on the Nullarbor Plain as they try to get into Western Australia.  They shoot them from trees with suppressors.

   HIS HONOUR:  On a shotgun?

   WILLIAMSON, MR:  No, a 22 calibre rifle.

   HIS HONOUR:  Shoot a little itsy bitsy bird with a 22?

   WILLIAMSON, MR:  Yes.

   HIS HONOUR:  You would have to be a pretty good shot, wouldn't you?

   WILLIAMSON, MR:  Yes, I mention they're trained and they do get a lot of practice.  But, and in New South Wales people can get them with a permit, it's not easy.  It's not totally prohibited because they have a very practical application, they're almost compulsory in England for the recreational user of firearms.

   HIS HONOUR:  So they do not disturb the ambience.

   WILLIAMSON, MR:  That is very true.  It has that effect.  People on small acreage find them useful, because the neighbours are not disturbed by the sound of gunfire.

6. His Honour then said:[9]

   HIS HONOUR:  All right.  Well, thank you Mr Williamson.  Ms Oliver, I appreciate what the authorities say about 19B.  But it is there and it's there to be used, perhaps sparingly, but sometimes, and my view is that this is a particular case where it should be utilised and I intend to utilise it.  And if you disagree with me, you can take it further.  I don't think I need to say anything more about it.

   I accept that Mr [S], although he has an interest in all things connected with firearms.  I can't see any reason for me to conclude that he intended to use this as a suppressor.  I don't know why he would want to do that. It has apparently some other use, even though it's not particularly good for that use.  And I mean general deterrence is obviously a factor to take into account, but seems to me that I have to deal with him on the basis that he's imported or ordered it online and acquired it to use to collect solvents.  And then when he found out it was no good for that purpose he put it away and forgot about it and never did anything further with it.

   And although it's a serious matter, perhaps, I don't consider it be quite as serious as you would urge me to consider it.  So in all of those circumstances, taking into account his personal circumstances, his future, his employment prospect etcetera.

   I'm going to utilise section 19B. So the order will be, that under 19B a recognisance for him to be of good behaviour in the amount of $2000 for a period of nine months. He will, however, have to pay costs. The costs that I'm ordering ‑ I know you're seeking more than $6000, I think that's excessive. I'm going to order costs in the sum of $2000 plus disbursements of $607.60, so that's $2607.60.

   So he will have to pay that, which is a significant penalty in its own right, in my view, it's a lot of money. And he will have to go on that recognisance and section 19B, in my view, is appropriate in this particular case

2.2.2 Mr R

[9] Transcript from primary court pages 28 ‑ 29.

1. Counsel for the prosecution read the following facts and put the following submissions to the sentencing magistrate:

   (a) on 20 July 2017, a search warrant was executed by Australian Border Force officers at Mr R's residential address in Kalgoorlie.  Mr R was not present.  During the course of the search, officers located and seized one black unfinished firearm suppressor (being a Black Mamba solvent trap kit) and an Acer computer tower;

   (b)subsequent analysis of the computer revealed emails detailing an order by Mr R on 23 February 2015, and payment details from Prepper's Discount for the device.  An analysis of Mr R's computer also revealed text messages between Mr R and two other persons in February 2015 (prior to the device being ordered) about solvent trap kits and that a person had been seen with one of these kits on their .223 at a shooting range which reduced the sound to somewhere between .22 LR and a .22 Magnum; and

   (c)this is a case where general deterrence is significant and that 19B would not be appropriate.  This is planned, deliberate offending.  The internet searches and the text messages demonstrate a clear intention to use the device as a suppressor.  Even if Mr R was not intending to use the device for an illegal purpose to commit a crime, the importation of the unfinished device was illegal.  Parliament has dictated that these devices cannot be possessed lawfully in Australia.  Mr R circumvented those rules and imported an item knowing that he cannot have it in Australia.

2. Counsel for Mr R then made a submission that Mr R should also be discharged on a recognisance on grounds that Mr R:

   (a)has a small 115 acre farm, raising Angas cattle in Esperance.  He had been losing calves to wild dogs so he ordered the device to be able to effectively control pests.  He wanted a suppressor to use on his .223 rifle to shoot the wild dogs and wanted to do that quietly because his property is small and unless it is done quietly there is 'cultural conflict' with the neighbours (who are not farmers).  A suppressor also assists with the effectiveness of his vermin destruction program (as wild dogs travel in packs) and assists with a shooter's hearing (eliminates the need to wear earmuffs in the paddock); 

   (b)he is aged 41, a boilermaker by trade and has proven himself to be a person of good character and productive citizen.  For the last two and a half years, he has been working for CBH in Esperance as a maintenance planner for the Esperance zone, in charge of some 30 tradesmen who work at the shipping facility.  To carry out this work he needs to maintain a Maritime Security Identification Card (MSIC) and, for that, he needs to produce a criminal record clearance certificate;

   (c)before his job with CBH, he was a mine maintenance manager for Goldfields Mining Australia for three years.  If it were to be suggested that he can work elsewhere if he cannot retain his MSIC, his problem is that he has only ever worked in the mining industry, and to do so he requires a police clearance;

   (d)for the last 16 years, he has lived in Kalgoorlie; and

   (e)without an s 19B(1) order, he would be unable to go to Canada. His wife is Canadian and his in-laws are in Canada. His mother‑in‑law is elderly, unwell, and has been permanently wheelchair‑bound since childhood. She is unable to travel to Australia. Mr R wants to travel to Canada, with his wife, to see his mother‑in‑law but would be prohibited from doing so if a conviction is entered against him for the offence.

3. Counsel for Mr R provided to the sentencing magistrate character references and took his Honour to the relevant provisions of the Canadian Criminal Code. 

4. In response, counsel for the prosecution made a submission that:

   (a)the offence would not come within the provision of the Canadian Criminal Code relied upon by Mr R. She also made a submission that the fact that a conviction may impact upon a person's ability to travel overseas is not enough to justify an order made pursuant to s 19B(1) of the Crimes Act,[10] because it is for other countries to assess whether or not a conviction should be an impediment to a person's entry, and the Magistrates Court should not pre-empt the exercise of that discretion by another country;

   (b)it is a decision for the authority that issues a MSIC as to whether it will or will not grant a clearance. If the court makes a s 19B(1) order it will effectively circumvent that process;

   (c)it is in the public interest for these types of offences to be recorded;

   (d)this is a serious offence and there was a clear intention and deliberate planning in arranging for this device to be imported in circumstances where Mr R knew that the device was prohibited in Australia; and

   (e)the fact that Mr R wished to use the device for a benign purpose is irrelevant as Parliament has declared the device to be prohibited and these circumstances do not make the case trivial, unusual, or committed in extenuating or exceptional circumstances, so that the preconditions of the first of the two stage test to make a s 19B(1) order is not met. Consequently, the second stage does not arise, that is to determine whether it is inexpedient to inflict punishment for the offence.

   [10] Nelson v Quinn [2001] WASCA 297 [65] (McLure J).

5. Counsel for Mr R also referred again to the sentences imposed by the Deputy Chief Magistrate to discharge the two offenders on a recognisance for importing a suppressor and who had done so to use it for vermin control. 

6. The sentencing magistrate then made the order sought on behalf of Mr R and in doing so made the following sentencing remarks:[11]

   [11] Transcript from primary court 3 October 2019, pages 19 ‑ 21.

   He is, clearly, a person of exemplary character. I don't think there could be any argument about that.  He falls into a different category, again, because he has, clearly, imported something for the purpose of using it as a suppressor and he has used it which means, I think, that he has modified it and he has used it as a suppressor.  So that puts him in a different category, again.

   But I've got to say that I think that in his case, his reasons for wanting to do that are more understandable than, perhaps, the previous gentleman.[12]  And I accept the explanation as to why he wants to be able to shoot wild dogs on his property without making a noise.  It's against the law but I understand why, from his point of view, it makes his task in eliminating wild dogs a lot easier.  Something that every farmer would like to do is eliminate wild dogs.

   I think, from what I have been told, that if he were to get a criminal record for this ‑ in other words, a conviction recorded, I think there's a very real risk that he will be out of a job and that will affect his employment and he would, then, be looking for another job which is not easy at his age.  And I also think that I'm persuaded that if he were to get a conviction and a criminal record, there's a very high prospect that he won't be able to get into Canada, based on what I've been told and what I've read.

   And I've got to say, in the circumstances ‑ and I know that section 19B orders are rarely made and should be rarely made, but I've got to say that, in the circumstances of Mr [R], I agree with what Mr Williamson just said, and that is that if they were the outcomes that he would have to live with, then it would be far out of proportion to the seriousness of what he did. And, in those circumstances, I am persuaded to deal with the matter by way of section 19B.

   …

   So I'm dealing with you under section 19B, Mr [R]. You will probably be the fourth one that I've ever had in 10 years as a magistrate, but I'm persuaded that it's appropriate in this particular case.

   …

   There will be an order for costs.  The cost will be $2000 for legal costs and 618.60 disbursements, so you will be ordered to pay the prosecution costs fixed in the amount of $2618.60.

2.2.3 Relevant principles - s 19B(1) of the Crimes Act (Cth)

[12] The sentencing magistrate appears to be referring to Mr F.  Mr F was sentenced before Mr R. 

1. The first ground of appeal in the Mr S and Mr R matters, is that the sentencing magistrate erred in law in that he failed to apply the two stage test in s 19B(1) of the Crimes Act.

2. The leading authority on the application of the two stage approach is the New South Wales Court of Criminal Appeal decision of Commissioner of Taxation v Baffsky.[13]

   [13] Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568 [10] ‑ [15].

3. In the appeal, counsel for the appellant pointed out that it is well‑settled that before a sentencing court can exercise the discretion to grant a s 19B disposition, it must apply the two stage test. The first stage is the identification of one or more of the factors identified in s 19B(1)(b)(i), (ii) or (iii) of the Crimes Act. If not, the application fails at the first stage. The second stage is a determination that, having regard to a factor or factors identified in s 19B(1)(b) that are established, whether it is inexpedient to inflict any punishment.

1. In determining the second stage, the court must also take into account the matters in s 16A of the Crimes Act.

2. Counsel for the appellant also pointed out that the power to make an order under s 19B(1) is discretionary. She then made a submission that the exercise of the discretion is reserved for those cases which can be described as rare, unusual, atypical, exceptional, special or singular.[14]

   [14] Scott v Chief Executive Office of Customs [2012] WASC 203 [16] (Hall J) and the cases cited therein.

3. However, in Commissioner of Taxation v Baffsky, Spigelman CJ found that s 19B formulates a test of whether punishment is inexpedient and the proposition that the section is not available (under revenue legislation) unless exceptional circumstances are found to exist is not supported by authority.[15]  His Honour then went on to observe that it can be readily accepted that 'substantial reasons' are required[16] but then said:[17]

   As Windeyer J said, in the context of concluding that the then equivalent of s19B in South Australia applied to the offence under consideration in that case:

   'The whole history of criminal justice has shown that severity of punishment begets the need of a capacity for mercy. …[A] capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.'  (Cobiac v Liddy (supra) at 269)

   See also R v Ingrassia (supra) at 449 per Gleeson CJ.

   This general policy served by s19B is as pertinent to revenue offences as it is to other offences. The statute formulates a test of whether punishment is 'inexpedient'. I do not see any warrant for replacing the statutory formulation with terminology as broad as 'exceptional circumstances' in a particular sphere of regulation. This conclusion does not, however, cast any doubt on the importance of giving consideration to issues of seriousness, prevalence, difficulties of detection etc to which I will refer under the heading of 'General Deterrence' below.

   [15] Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568 [71] (Simpson J & Einfield AJ agreeing).

   [16] Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568 [74].

   [17] Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568 [75] ‑ [77].

4. This latter point as found by Spigelman CJ in Commissioner of Taxation v Baffsky has not been applied in Western Australia. The Court of Appeal has accepted (without discussion on the point) that the favourable exercise of discretion under s 19B is reserved for those cases described as rare, exceptional and special or singular.[18]

   [18] Stark v Plant [2010] WASCA 74 [18] (McLure P, Owen & Buss JA agreeing). It is noted that although it is an established principle that there should be consistency in federal sentencing throughout Australia, the inconsistency between the views of the courts of appeal of the superior courts of New South Wales and Western Australia on this point does not appear to have been raised in any decisions of the Western Australian Court of Appeal.

5. It is, however, clear that in considering the first stage, s 19B(1)(b)(i) enables a consideration of the matters that are personal to the offender. Section 19B(1)(b)(ii) is raised if the sentencing judicial officer is of the view that the offence is of a trivial nature, and s 19B(1)(b)(iii) enables a sentencing judicial officer to have regard to the extent, if any, to which an offence was committed under extenuating circumstances. What constitutes extenuating circumstances was considered by Beech J in RLG v Donnelly:[19]

   'Extenuating circumstances' have been said to mean circumstances which 'excuse in some appreciable degree the commission of the offences or lessen the appellant's guilt':  Nelson v Quinn [2001] WASCA 297 [58]; O'Sullivan v Wilkinson [1952] SASR 213, 218. The language of the section makes it clear that it is only circumstances under which the offence was committed which may qualify as extenuating for the purposes of s 19B(1)(b)(iii). There must be some link between the circumstances said to be extenuating and the commission of the offence: Commissioner of Taxation v Baffsky [47].

   It has also been said that extenuating circumstances should be circumstances that take the case out of the ordinary of offending of this nature:  Moreland v Snowdon [2007] WASC 137 [44]; Warnakulasuriya v The Queen [2009] WASC 257 [71]. In other cases, the need to distinguish the circumstances of the offence from a typical offence, or the circumstances of the offender from typical circumstances of offenders of this kind, is said to be part of the second stage. See, for example, Kelton v Uren (1981) 27 SASR 92.

   [19] RLG v Donnelly [2012] WASC 230 [39] ‑ [40].

6. Beech J also relevantly said:[20]

   Factors relevant to the second stage under s 19B include the seriousness of the offence, its prevalence, any difficulty in detecting breaches and the need for general deterrence, as well as the other matters in s 16A of the Crimes Act:  Lanham v Brake (1983) 34 SASR 578; DPP (Cth) v Maroney [2009] VSC 584 [15].

   The effect of a conviction upon an offender is relevant to whether it is inexpedient to inflict punishment, including by recording a conviction:  Cobiac v Liddy; Nelson v Quinn [41].

   [20] RLG v Donnelly [2012] WASC 230 [42] ‑ [43].

7. It should be noted that two sentencing dispositions can be imposed under s 19B(1) of the Crimes Act, both of which authorise a sentencing court to deal with an offender without imposing a conviction. 

8. The first arises under s 19B(1)(c), which confers a discretion on the court to dismiss the charge or charges in respect of which the court is so satisfied of the matters in s 19B(1)(b). The second arises under s 19B(1)(d) to discharge the person, without proceeding to conviction in respect of any charge referred to in s 19B(1)(c), upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court on condition that he or she will be of good behaviour for such period not exceeding three years as the court specifies in the order, or make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned, or pay such costs in respect of his or her prosecution of the offence or offences. Further, the court when making an order under s 19B(1)(d) can also impose other conditions which include that the offender be subject to supervision of a probation officer for a period not exceeding two years.

9. Where an order is made under s 19B(1)(d), the court is conferred with a power under s 20AA of the Crimes Act to vary or discharge the conditions of recognisance. If a person who has been discharged pursuant to an order made under s 19B(1), without reasonable cause or excuse, fails to comply with a condition of the order following compliance with the procedure specified in s 20A of the Crimes Act, the judge or magistrate who made the order may, pursuant to s 20A(5), revoke the order, convict the person of the offence or offences in respect of which the order was made and, deal with that person, for that offence or those offences, in any manner in which he or she could have been dealt with for that offence or for those offences, if the order had not been made. Alternatively, the judicial officer can determine not to take any action in respect of the breach of the condition.

10. The effect of a s 19B(1) order is that if a sentencing judicial officer is satisfied that the requirements of s 19B(1)(b) are met:[21]

    (a)the court may exercise the discretion to inflict no punishment by dismissing the charge or charges in respect of which the court is so satisfied, pursuant to s 19B(1)(c), if the judicial officer is satisfied it is expedient to do so; or

    (b)the court may exercise the discretion to inflict nominal punishment by discharging the offender, without proceeding to conviction by recognisance subject to conditions, pursuant to s 19B(1)(d), if the judicial officer is satisfied it is expedient to do so.

    [21] My emphasis.

11. Although the difference between the sentencing options provided for in s 19B(1)(c) and (d) do not appear to have been the subject of judicial consideration, it is my view that the effect of s 19B(1) is to create two sentencing options. The first is a lesser option than the other, or put another way, is an option that is not onerous, and does not involve any future supervision of the offender. The second sentencing option that is created carries with it obligations and thus, is characterised in s 19B(1)(d) as nominal punishment if the conditions of release are complied with, but may have more serious consequences in the event of non-compliance with the conditions of discharge.

2.2.4 Is express error established?

1. The appellant contends that despite submissions being made as to the matters that the sentencing magistrate was required to be satisfied of in respect of the two stage test, his Honour made s 19B(1) orders in favour of Mr S and Mr R without applying the two stage test, and without making findings from which an inference could reasonably be drawn that he had applied the two stage test.

2. It is also argued that the sentencing magistrate:

   (a)found that the only relevant consideration in relation to s 19B(1) was for it to be used rarely or sparingly; and

   (b)misunderstood the operation of s 19B(1) and instead considered matters (and potentially applied the test) that would be relevant to the grant of a spent conviction under s 45 of the Sentencing Act 1995 (WA) by having regard to:

   (i)matters going to good character and whether a conviction will have a deleterious effect on the offender's employment; and

   (ii)in the case of Mr R whether a conviction would prevent him from being able to travel to Canada.

3. I do not agree that the sentencing magistrate misunderstood the two stage test to be applied when considering whether to make an order pursuant to s 19B(1) of the Crimes Act.  Albeit, when making a submission as to an appropriate sentence in the Mr S and Mr R matters, counsel for the prosecution put to his Honour a stricter test that had to be met,[22] she made clear and detailed submissions to his Honour about the matters that were relevant to the exercise of his discretion. 

   [22] See [28(g)], [29] and [35(e)] of these reasons.

4. When the transcript of the interchanges between counsel for the prosecution and his Honour, and between counsel for each of the respondents and his Honour, are carefully read, it is apparent that his Honour addressed the relevant factors in s 19B(1) and was familiar with the two stage test that he was required to apply before making an order under s 19B(1)(d).

5. As counsel on behalf of Mr S and Mr R point out, there is no reason to infer that the sentencing magistrate rejected the prosecution's submissions about the effect of the legal principles that apply to s 19B(1), as his Honour said, 'I know what the authorities say [about s 19B(1)]'.[23]

   [23] Transcript from primary court page 19; hearing bundle page 94. 

6. This point the appellant seeks to raise was raised in an appeal against sentence before EM Heenan J in Abbott v Hussain.[24] In that matter, a magistrate had dismissed a charge against the respondent, pursuant to s 19B(1)(c) of the Crimes Act. An argument was put that the magistrate failed to have regard to any of the factors identified under s 19B(1)(b), alternatively, that, if he did have regard to any of them, he failed to identify the characteristics which he relied upon when he gave his reasons for decision and, furthermore, that in the process he failed to participate in what was said to be the two stage process, which conditions the application of this provision.[25]  In that matter, his Honour found that it was immaterial whether the magistrate had expressly mentioned the relevant provisions of the enabling statute.  In making this finding, EM Heenan J observed:[26]

   Counsel for both the respondent and for the complainant have referred, in this regard, to the decision of this Court in Fleming v R (1997) 25 MVR 75 which involved a sentencing appeal arising from a conviction for causing death as a result of dangerous driving. One of the issues in that appeal was whether or not the learned Magistrate had failed to consider relevant circumstances because of the absence of an express reference to the circumstances in his sentencing reasons.

   In that regard Franklyn J said, at 78:

   'He made no express mention of the applicant's plea of guilty at the first opportunity in the District Court, or of his cooperation with the police, but it is clear from the papers, in my opinion, that they were not overlooked. Applicant's then counsel had devoted considerable attention to explaining to his Honour why there had not been an election under s 59(1) of the Road Traffic Act 1974 to have the matter dealt with summarily, as was said to have been his initial wish.  Further, that the applicant had pleaded guilty at the first opportunity before the District Court, having advised the Director of Public Prosecutions in writing in April 1996 that he would so plead.  It is unrealistic to assume that his Honour overlooked those matters.'

   Again, in his Honour's reasons for judgment at 79 it is said:

   '... as [the learned Judge] made no express mention of the provisions of s 17A(4) of the Criminal Code, he failed to take that provision into account.  That submission ignores the presumption that a judge has exercised his jurisdiction in accordance with the law.  It is not necessary that a sentencing judge make express mention of statutory requirements to be taken into account in exercising a discretion and, specifically, in sentencing.  The failure to take the same into consideration must be demonstrated.  In the absence of error or failure made obvious by sentencing remarks, this is usually demonstrated, if at all, in the sentence itself.'

   [24] Abbott v Hussain [2003] WASCA 58.

   [25] Abbott v Hussain [2003] WASCA 58 [14].

   [26] Abbott v Hussain [2003] WASCA 58 [34] ‑ [36].

7. More recently, in Scott v Chief Executive Office of Customs, Hall J made a similar observation in an appeal that concerned the application of s 16A of the Crimes Act:[27]

   As regards the second suggested error, no authority has been provided in support of the proposition that the magistrate was obliged to make express reference to s 16A of the Crimes Act. That section provides that a court must impose a sentence for a federal offence that is of a severity appropriate in all of the circumstances and provides a non‑exclusive list of factors that must be taken into account. There is in fact clear authority that s 16A does not constitute some technical checklist that judicial officers are required to mechanically recite: Ferrer‑Esis (1991) 55 A Crim R 231, 237 (Hunt J with whom Gleeson CJ and Lee CJ at CL agreed). It is a mandatory requirement to consider the factors in s 16A(2) but they do not need to be expressly referred to.

   [27] Scott v Chief Executive Office of Customs [2012] WASC 203 [24].

8. I agree that the test to be applied when imposing the sentencing option of no punishment or nominal punishment as provided for in s 19B(1)(c) or (d) are not the same as the test to be applied when the court is called upon to consider whether to grant a spent conviction order under the Sentencing Act. However, the matters the court may regard as relevant when considering whether any of the factors in s 19B(1)(b) are satisfied are also matters that a sentencing judicial officer may consider relevant when considering whether to exercise the discretion to grant a spent conviction order. For example, it is relevant under s 19B(1)(b)(i) to consider whether but for the offence, or offences, a person is otherwise of good character. This is also a relevant matter to be considered pursuant to s 45(1)(b)(ii) of the Sentencing Act.

9. It is clear from the interchanges with counsel that his Honour had heard and considered the submissions made on behalf of the parties and had considered whether any of the factors set out in s 19B(1)(b) were raised and that he was aware of the relevant principles that he was to apply. That being so, I cannot see that there is an arguable basis that his Honour failed to apply the correct test as prescribed in s 19B(1) of the Crimes Act.

10. Further, when the matters that his Honour did take into account are considered when giving reasons for the disposition of the charges against Mr S and Mr R by imposing nominal punishment under s 19B(1)(d) are matters that did correspond with the statutory factors.

11. In the case of Mr S, his Honour properly had regard to Mr S' prior good character, which is a factor his Honour was entitled to have regard to pursuant to s 19B(1)(b)(i). Consequently, his Honour was entitled to form the opinion that the first stage of the test was met, as one of the factors was established.

12. The second stage of the test then required his Honour to consider whether, in light of that factor and taking into account the general principles of sentencing set out in s 16A of the Crimes Act, it was inexpedient to inflict any punishment on Mr S, or any punishment other than a nominal punishment.[28]

    [28] RLG v Donnelly [2012] WASC 230 [38] (Beech J).

13. Section 16A of the Crimes Act sets out the matters which a court must have regard when passing sentence on a federal offender. Section 16A(1), (2) and (3) provide:

    (1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

    (2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

    (a)the nature and circumstances of the offence;

    (b)other offences (if any) that are required or permitted to be taken into account;

    (c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct;

    (d)the personal circumstances of any victim of the offence;

    (e)any injury, loss or damage resulting from the offence;

    (f)the degree to which the person has shown contrition for the offence:

    (i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or

    (ii)in any other manner;

    (g)if the person has pleaded guilty to the charge in respect of the offence ‑ that fact;

    (h)the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences;

    (j)the deterrent effect that any sentence or order under consideration may have on the person;

    (k)the need to ensure that the person is adequately punished for the offence;

    (m)the character, antecedents, age, means and physical or mental condition of the person;

    (n)the prospect of rehabilitation of the person;

    (p)the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

    …

    (3)Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.

14. It is at the second stage that a judicial officer who is sentencing a federal offender is to consider the factor identified in the first stage and to then to determine whether it is inexpedient to impose no punishment or nominal punishment. In applying the second stage, the court is to also have regard to the matters set out in s 16A. It is by consideration of all of these factors that the favourable exercise of the discretion may be invoked if the judicial officer forms the view that is inexpedient to inflict punishment or nominal punishment. By the very nature of the matters that a judicial officer must have regard to pursuant to s 16A, the favourable exercise of discretion is to be reserved for those cases that can be described as exceptional, rare and special or singular which results in s 19B(1) orders being made as his Honour described (in the matter of Mr S) sparingly.

1. The judicial sentencing officer is not required to determine that for the first stage of the test to be satisfied that the court is to not only identify a factor or factors in s 19B(1)(b), but also by to find that the circumstances of one or more of those factors has the character of being exceptional, rare, and special or singular.

2. The identification of one or more of factors in s 19(1)(b) (in the first stage) is only required as a precondition to the exercise of the discretion to grant a s 19B(1)(c) or (d) order.  Once a factor is identified the court can only make an order of no punishment or nominal punishment if it can be found that it is inexpedient to inflict punishment or nominal punishment. 

3. It is at that second stage, that is, the exercise of the discretion to grant an order that such exercise is reserved for those cases that are exceptional, rare and special or singular.  This is because in determining whether to exercise the discretion, the judicial sentencing officer, as Beech J pointed out in RLG v Donnelly, is required to have regard to a wider range of factors or matters than the matters set out in s 19B(1)(b) in determining whether it is inexpedient to inflict any punishment or nominal punishment, which include the matters in s 16A of the Crimes Act.[29]

   [29] RLG v Donnelly [2012] WASC 230 [38].

4. Section 19B(1) enables the court to dismiss a charge or discharge a person on a recognisance subject to conditions if it is satisfied as to the existence of the conditions specified in s 19B(1)(b), which, together with the other relevant factors or matters that the court is required to have regard to that surround the commission of the offence and the circumstances of the offender, lead the court to the view that it is inexpedient to inflict any punishment or nominal punishment. Almost inevitably, the court will come to the view that in only a small proportion of cases the discretion to make such an order should be invoked.

5. Some of the matters that his Honour was required to consider pursuant to s 16A when determining whether to exercise his discretion to make a s 19B(1) order was the seriousness of the offence, its prevalence, difficulty in detecting breaches and the need for general deterrence.

6. At first instance in each of the matters and at the hearing of the appeals, counsel for the prosecution put a submission that these offences were very serious. In part, this submission is founded upon a submission that his Honour was required to have regard to the maximum penalty in fixing a penalty for the offence, and that at the relevant times the maximum penalty for a breach of s 233(1)(b) of the Customs Act in the case of Mr S and Mr R was a fine of $170,000 (except when the prosecution is commenced in the summary jurisdiction, in which case, any fine that exceeds $36,000 is taken under the Customs Act to have been abandoned).

7. However, as counsel for Mr S and Mr R point out, when considering the place in which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, it is important to remember that the charge is importing a prohibited import.  The importation of a firearm accessory that is an unfinished suppressor is only one of many types of offences that fall within a broad class of items that are prohibited imports.

8. Pursuant to the Customs (Prohibited Imports) Regulations, a vast array of goods are prescribed as prohibited imports.  The classes of goods prohibited as imports extend to, among others, devices and documents relating to suicide, plastic explosives, polychlorinated biphenyls, terphenyls, certain species of fish, toothfish, asbestos, unmanufactured tobacco, glazed ceramic ware, tablet presses, weapons, ice pipes, woolpacks, rough diamonds, radioactive substances, lighters, counterfeit credit, debit and charge cards, Anzac goods, incandescent lamps, cat or dog fur, security sensitive ammonium nitrate, goods from a number of named countries, drugs, certain organochlorine chemicals, chemical compounds, ozone‑depleting substances and other greenhouse gases, and viable material derived from human embryo clones.  Also, a wide variety of firearms prohibited from importation, which include some devices which would be regarded as less dangerous such as a soft air rifle and more a dangerous device of a fully automatic firing firearm.  

9. The importation of some prohibited goods by themselves can properly be characterised as very serious.  Clearly, such items would include fully automatic rifles or pistols (or parts of it), plastic explosives, explosives or incendiary materials, flame throwers, gases or liquids designed for the purpose of killing or incapacitating persons, and devices or apparatus designed or adapted for use with those goods, grenades, large calibre armament, weapons launchers, throwers and projectors (whether or not mounted on vehicles, ships or aircraft) designed for grenades, bombs, rockets or any other missile, ammunition or substance including cannon, guns, howitzers, mortars, projectile launchers, recoilless rifles, tank destroyers, mines (whether charged or not), projectiles, bombs, rockets, military vehicles such as tanks, aircraft, war ships (all of which are specified prohibited imports).

10. In assessing the seriousness of the offence, his Honour was required to assess not only the characteristics of the prohibited import, but also the circumstances of the offence by each of the respondents.

11. In the case of Mr S, his Honour found that although the importation of an unfinished suppressor is a serious matter it was not as serious as the prosecution contended.  From these remarks it can be inferred that what his Honour was saying was that the offence was low on the scale of seriousness.  Plainly, such an inference was open, as the nature and circumstances of the offence were that for a solvent trap device to be used as a sound suppressor for a firearm it had to be converted for use as such, but Mr S had imported the device at least 12 months prior to the offence being detected, had not converted it or otherwise used it, had not intended to use it as a suppressor and had simply kept it in his firearm safe. 

12. The appellant contends that because of the difficulty of policing and detecting customs offences, general deterrence is to be given great weight.  This is said to be particularly so in cases such as the present matter, where the online marketing of items was being manipulated as a way of concealing the true purpose of the devices.  In particular, as experienced firearm users, each of the respondents would have known that there was no practical need for a highly engineered solvent trap.

13. However, none of the respondents were responsible for the descriptions of the marketing of items.  Nor were they responsible for the descriptions of the items placed on the customs declarations when the devices were sent by post from the USA.

14. Whilst it is a general principle that general deterrence is to be given significant weight for customs offences, it does not necessarily follow that this consideration alone would weigh so strongly so as to raise an inference that a s 19B(1) order is not open.

15. In any event, his Honour made it clear in his sentencing remarks when he sentenced Mr S that general deterrence was obviously a factor that he should take into account.[30] Consequently, it cannot be demonstrated that his Honour did not give appropriate consideration to general deterrence.

    [30] Transcript from primary court, page 29.

16. In exercising the discretion, that is, in the determination of whether it was inexpedient to inflict any punishment or nominal punishment, his Honour was entitled to have regard to Mr S' good character, antecedents and means (pursuant to s 16A(2)(m)) and the effect of a conviction upon him, including whether a conviction should be recorded.[31]  His Honour did take these matters into account by finding that Mr S was clearly a person of pride, good character and a person in relation to whom a conviction would probably have an extremely severe detrimental effect on his future employment and otherwise.[32]

    [31] Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257, 265; Nelson v Quinn [2001] WASCA 297 [41] (McLure J); RLG v Donnelly [2012] WASC 230 [38] (Beech J).

    [32] Transcript from primary court, pages 26 and 29.

17. For these reasons, I am unable to conclude that there was any express error by the sentencing magistrate in exercising his discretion in the matter of Mr S to make a s 19B(1) order.

18. Turning to the appeal in respect of Mr R, for the reasons I have already given, it is clear that no error can be found to be established that his Honour could not, on the facts before him, find that the preconditions for the exercise of the discretion in s 19B(1) had been met.

19. In finding that Mr R was a person of exemplary character, it is to be implied in his Honour's reasoning that the first stage of the test for making a s 19B(1) order had been met.

20. It is implicit in his Honour's sentencing remarks[33] that he regarded the seriousness of the offence to be more than that of Mr F (as Mr R had converted the device and used it as a sound suppressor) but in a different category to the circumstances of Mr C (who he had already sentenced that day to a fine for the same offence) that is, Mr R had used the device for a benign purpose of eliminating wild dogs on his own farm.  However, it is clear that his Honour did not regard the offence committed by Mr R to be as serious as the prosecution contended. 

    [33] Transcript from primary court, page 20; hearing bundle page 161.

21. His Honour came to the view that there were two relevant circumstances which were consequences personal to Mr R which made it inexpedient to inflict punishment other than a nominal punishment for the offence.  These were:

    (a)if Mr R were to  obtain a criminal record, that is, if a conviction was recorded against him there was a very real risk that he would be out of a job and it would be difficult for him given his age (41) to obtain other employment; and

    (b)having regard to the submissions made by the parties in respect of the Canadian Criminal Code that if a conviction was to be recorded against Mr R there was a very high prospect that he would not be able to enter Canada (to visit his elderly wheelchair bound mother-in-law who is ill).

22. His Honour gave significant weight to both of these factors.

23. In circumstances where a conviction is recorded which might result in an impediment to a person's career or to undertake particular employment, it may be appropriate that punishment not be inflicted on that person, or nominal punishment be inflicted (dependent upon other relevant circumstances including the seriousness of the offence) where the mere fact of a conviction will have a long lasting detrimental effect upon the person convicted and stand in the way of rehabilitation.  Having regard to Mr R's employment history including his current employment, it was open to his Honour to accord the weight he did to this factor.

24. The appellant also contends that his Honour misunderstood the operation of s 19B(1) in that he:

    (a)should not have made the finding that Mr S may not be able to enter Canada in the future; and

    (b)gave significant weight to the circumstance that Mr R may in the future be prohibited from visiting his mother‑in‑law in Candada.

25. The relevance of the provisions of the Canadian Criminal Code is that s 36(1) of the Canadian Immigration and Refugee Protection Act prohibits a foreign national from entering Canada if they are convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament, punishable by a term of imprisonment of, at least, 10 years.

26. The appellant argues that his Honour erred in rejecting the prosecution's submission that the more closely aligned provision of the Canadian Criminal Code to s 233(1)(b) of the Customs Act is s 104(1) of the Canadian Criminal Code (unauthorised importing) and not s 103(1) of the Canadian Criminal Code (importing a device knowing it is unauthorised) relied upon by Mr R.  The penalty under s 103(2) is imprisonment for a term not exceeding 10 years and a minimum term of imprisonment of 3 years for a first offence or 5 years for a second or subsequent offence.  Under s 104(2) the penalty is either an indictable offence liable to imprisonment for a term not exceeding five years or punishable on summary conviction (for which no specific penalty is expressly prescribed in this provision).  The difference between the two offences is that knowledge is an element of the offence under s 103(1) and knowledge is not an element of the offence created by s 104(1).

27. However as counsel for Mr R points out, all his Honour was required to determine was that the construction of the relevant Canadian law put on Mr R's behalf was reasonable, and if so, it was appropriate for his Honour to deal with the matter on the basis that there was a real (not fanciful) chance the Canadian authorities would construe their legislation as suggested by defence counsel.

28. As counsel for Mr R also points out, it is not appropriate for an Australian sentencing magistrate to consider extensive legal argument about another country's laws to determine how that country's courts and bureaucrats should construe its statutes.  It was, however, open to his Honour to consider the submission about the effect of foreign law to raise a reasonably open construction, and that that was a sufficient basis for it to be raised as a relevant sentencing consideration. 

29. The appellant contends that it is established at law that impacts on travel and employment, when considering the exercise of the discretion of s 19B(1), have to be balanced against the principle that the public, employers and the authorities have a public interest in the knowledge of offending. In making this submission, counsel for the appellant relied upon the decision of McLure J in Nelson v Quinn[34] and Kiefel J in Matta v Australian Competition and Consumer Commission.[35]  However, the observations made in those authorities must be considered in their context, and it is not the case that the public interest will always demand that the fact of an offence should be made public by the recording of a conviction.

    [34] Nelson v Quinn [2001] WASCA 297.

    [35] Matta v Australian Competition and Consumer Commission [2000] FCA 729.

30. In Nelson v Quinn, Mr Nelson who was employed in a business that imported goods was charged with three counts of knowingly or recklessly making to a customs officer a statement that was false or misleading in a material particular, contrary to s 234(1)(d)(i) of the Customs Act, one count of evasion and one count of smuggling in circumstances where a submission had been made that he would face difficulty in entering Canada for five years and may have difficulties entering other countries. In that matter, a magistrate had refused to make a s 19B(1) order.

31. In Nelson v Quinn, McLure J did not say that no significant weight could be given to the financial consequences of the convictions, but that she would not be prepared to do so because the convictions were otherwise appropriate. When her Honour's observations are read carefully it is apparent that in the facts of that case, a matter of public interest was raised that made it important for the convictions to be recorded. This is because the offences arose out of the business activities of Mr Nelson and his considerable prior experience and involvement in the importing business, his frequent overseas travel connected with that business, his consequential familiarity with the regulatory framework and the consequences to his business of breaching the regulatory framework. The magistrate had found that the nature of Mr Nelson's business affected by the convictions is that his conduct was less readily excusable or justifiable, and thus the magistrate when refusing to make a s 19B(1) order gave significant weight to the need for deterrence and to the persistent nature of Mr Nelson's conduct.

32. In Matta v Australian Competition and Consumer Commission, it was clear that the effect of the public recording of a conviction was capable of considerable effect in the community. In that matter, the offender had been charged with two offences of having been directly knowingly concerned in a contravention of s 65C(1)(a) of the Trade Practices Act 1974 (Cth). He was a director of a company that supplied to another company sunglasses which did not comply with relevant Australian standards. It was found that the sunglasses posed a safety threat to persons whilst driving and the offender was aware that the sunglasses did not comply with relevant standards. It was also found that the sunglasses were supplied notwithstanding non-compliance, and the offences were motivated by commercial considerations. It was in these circumstances that it was important that the punishment was seen to be such as to pose a deterrent to others who may be minded to ignore the Australian standards.

33. In circumstances where it cannot be said that the conduct of Mr R in importing the device was attenuated by any behaviour by him which could be said to be deceptive, dishonest or fraudulent or to use the device in such a way so as to constitute a risk to the safety of any person, it cannot be said that it was important for a conviction to be publicly recorded against Mr R so as to act as a deterrent to others who are considering importation of such a device.

34. When regard is had to the findings made by his Honour about the personal consequences that Mr R would face if convicted of the offence and the uncontested fact that Mr R had used the prohibited device for what could be regarded as a benign purpose, it was open to his Honour to form the view as he did that when regard was had to Mr R's personal circumstances (his future employment and the prospect of being prohibited from entering Canada) to enter a conviction against Mr R would be disproportionate to the seriousness of the offence.

35. For these reasons, I am unable to conclude that there was any express error by the sentencing magistrate in exercising his discretion in the matter of Mr R to make a s 19B(1) order.

36. For these reasons, ground 1 of the appeal in the Mr S and Mr R appeals have no prospect of success, and leave to appeal on this ground should be refused.

3.0 Implied error ‑ manifest inadequacy of sentences ‑ ground 2 of the Mr S and Mr R appeals and ground 1 of the Mr C and Mr F appeals

1. In each of the four appeals, the appellant alleges that the sentence imposed was manifestly inadequate. 

2. The appellant argues in each appeal:

   (a)when regard is had to the maximum penalty for each offence, and to comparable cases which establish that these types of offences ordinarily attract fines usually in the order of $3,000 to $5,000, together with a consideration of the factors in s 16A of the Crimes Act, the sentencing magistrate fell into error; and

   (b)in all the circumstances, the offences were serious, and the need for general deterrence and adequate punishment was a paramount consideration which was not reflected in the penalties imposed on the respondents.

3.1 Sentencing principles ‑ implied error

1. The general principles as to whether an appellate court is entitled to intervene in a sentence are:[36]

   The general principles governing appeals contending that a sentence is manifestly excessive are well established:

   (1)A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error.  It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

   (2)The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.  The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.

   (3)The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

   (4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

   (5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

   [36] Eldridge v The State of Western Australia [2020] WASCA 66 [22] (Buss P, Mazza & Mitchell JJA).

1. Counsel for Mr F also put a submission that in considering an appropriate sentence, in particular, whether a s 19B(1) order should be made, the starting point should be what was the intention of the offender in importing the prohibited device. In making the submission, counsel said:[45]

   [H]is intention, which is not denied, to use it for perfectly civic, almost, reasons.  Presumably the problem with them, and the reason why there's a law against importing them, is that they can be used, supposedly, for nefarious purposes.  So, the central factor in dealing with this kind of case, like possession of an unlicensed firearm, is why have you got this thing in the first place?  And is it because you're a drug runner and you're protecting your money, or is it because you're a farmer or a collector or a sports person - and, in my submission, that's the starting point: what is the intention?

   [45] Transcript from primary court page 15.

2. Counsel for Mr F also provided his Honour with character references.

3. In response to the submissions put by counsel for Mr F, his Honour observed that there was no suggestion that Mr F was intending to use the suppressor for a nefarious purpose, but he thought that Mr F's offending fell into a different category to that of Mr S, because he accepted that Mr S had no intention of using the device as a suppressor.

4. His Honour convicted Mr F of the offence, fined him $1,000 and in doing so made the following sentencing remarks:[46]

   [T]here has been a considerable delay.  The search didn't take place until 2017, and that led to items being found and a computer being examined. And that examination then led to this charge in relation to something that happened some time earlier. So, I accept all of that. However, I do think that this man falls into a different category than the previous man…

   What I was influenced by, in relation to previous gentleman, was not only his background and his antecedence, but also his job prospects, the type of areas that he would have to work in and the fact that I had to deal with him on the basis that he may well have imported that item to use not as a suppressor or a silencer, but as something else.  And those are the factors that influenced me to grant a 19B in his favour, but I just feel that Mr [F] falls into a different category.

   No one's suggesting that he wants to use a suppressor for any purpose other than what has been mentioned to me, there are some people that think that's a good idea, apparently. And perhaps it's done in other countries, but in this country it's illegal. And he tried to import a ‑ one of these items with the intention of converting it into a suppressor, and the likelihood is that he did. And I just think that falls into a different category. And section 19B is granted few and far between, we all know. I can only remember three that I have granted in 10 years. And I don't consider that the prerequisites have been made out in Mr [F's] case. And I decline to deal with the matter on that basis.

   I do think that the costs sought are excessive. All of these matters would flow together. I think an appropriate figure for costs is $2000, which I granted in relation to the previous gentleman. So, [Mr F], would you stand please. My view is that the appropriate fine is $1200, which I will reduce to $1000 to give you credit for your plea of guilty. Although, quite possibly you had no option but to plead guilty. I don't blame you for the delay. So, I will reduce that to $1000. That's the fine. The costs which I order are $2508.60, which is $2000 plus the disbursements mentioned. And I don't deal with the matter by way of section 19B as requested. I decline to do so.

3.3 Is implied error established?

[46] Transcript from primary court pages 19 ‑ 20.

1. In determining whether an implied error has been made, in each case, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness, and the personal circumstances of the offender.

2. In support of its submissions in the appeal, the appellant provided to the parties and the court a table of comparative sentences handed down by magistrates in Western Australia for prosecutions of the same offence in eight matters.  In one matter, the offender was sentenced on 10 October 2017 and in the remaining seven matters, the other offenders were sentenced on and between 26 March 2018 and 20 December 2018.  It is noted that this table was not put before the sentencing magistrate.  It is unfortunate that that did not occur, as consistency in the sentencing of federal offenders is important.  Where the prosecution seeks to rely upon such information it should have been put before his Honour. 

3. The only information that was put before the sentencing magistrate (was put by counsel for the respondents) related to two of the offenders referred to in the table who each, on a charge of importing one unfinished or incomplete firearm suppressor, were discharged pursuant to s 19B(1) of the Crimes Act on a recognisance of $2,000 to be of good behaviour for 18 months.

4. In the appeal, counsel for the appellant made a submission that the table of comparative sentences shows that these types of offences ordinarily attract fines and the range of fines imposed are usually in the order of $3,000 to $5,000. However, the table does not show that to be the case. In two cases s 19B(1)(d) orders were made. The fines imposed on each count in the other matters could be said to range from approximately $1,200 to $4,000.

5. The table must be approached with caution.  The decision in R v Pham makes it clear that in examining sentencing tables such information should not be considered as other than establishing a possible range. In each case, except for the eighth offender (Mr Bird), the offenders were charged with and pleaded guilty to importing one or more unfinished or incomplete firearm suppressors, contrary to s 233(1)(b) of the Customs Act.

6. The sentencing table provided to the court in the appeals at most can be said to show that there is no single correct sentence for an offence of importation of one or small numbers of unfinished or incomplete firearm suppressors intended for use by the importer. These sentences include, if appropriate (and the specified criteria in s 19B(1)(b) is met) a s 19B(1)(d) order, or a fine of an amount that could not be regarded if regard is had to the maximum penalty for an offence of importing a prohibited import, contrary to s 233(1)(b) of the Customs Act, to be a substantial amount.

7. The sentencing table provided to the court discloses the following:

   (1)The first offender was fined $3,000 for one charge.  It is noted in the table that the offender had a criminal record the extent of which is not recorded. 

   (2)The second offender was fined $3,500 for one charge.  It is noted in the table that he too had a criminal record, the extent of which was old traffic offences.  It is also recorded that he had purchased the firearm suppressor for vermin control on his friend's farm, and he had only used it a few times due to accuracy issues.

   (3)The third offender was charged with three counts and received what appears to be a global fine of $3,500 (for three unfinished or incomplete suppressors).  However, the offender sent to the court endorsed pleas of guilty to the charges and did not appear.  Consequently there was no information before the court about the offender's circumstances.

   (4)The fourth and fifth offenders who are the brothers, who were sentenced on the same day by the Deputy Chief Magistrate for one offence. Both offenders were discharged on a s 19B(1)(d) order. Although both were charged with the offence, only one firearm suppressor was imported for the use by one of the brothers. The Deputy Chief Magistrate accepted that the brothers were oblivious to the relevant legal requirements and neither had criminal records. One brother was a keen hunter and intended and did use the firearm suppressor.

   (5)The sixth offender was fined $3,000 for importing four unfinished or incomplete firearm suppressors.  It is noted in the table that the offender had a criminal record the extent of which is not recorded.

   (6)The seventh offender was fined $4,000 for one offence by the Deputy Chief Magistrate.  He had no criminal record, was employed in the mining industry and stated that he had purchased the device to protect his hearing when shooting at the range.

   (7)The eighth offender is Mr Bird who, following a two-day trial, was convicted of two counts of importing four unfinished or incomplete firearm suppressors and one count of importation of a firearm suppressor, for which it is recorded in the table that he received fines of $8,000 ($4,000 on each count relating to two incomplete and unfinished suppressors) and he was also convicted of a separate offence of making a false and misleading statement in respect of which he received a $5,000 fine.  Although there was an appeal against conviction against importing the four devices, there was no appeal against sentence.[47]

   [47] Bird v Comptroller General of Customs [2019] WASC 240.

8. In relation to all of the appeals, the appellant submits that:

   (a)error can be implied on the basis that the sentencing magistrate did not give sufficient regard to the matters in s 16A(2) of the Crimes Act, in particular the nature and seriousness of the offending, the need for general deterrence, and the need to ensure that the offenders were adequately punished; and

   (b)the sentencing magistrate gave too much weight to the benign purposes given for the importations (which in the appellant's submission, was not a relevant consideration) and to the prior good character of the respondents.

9. It must be accepted that the importation of the unfinished and incomplete firearm accessories without the necessary permits could result in the introduction of these devices into the wrong hands in the community which could result in danger to the public.  This inference must necessarily result in a finding that importation of the prohibited devices is serious.

10. The sentencing magistrate did not find that any of the offences were trivial. He accepted that in each case the offences were serious, but it is clear from his sentencing remarks in each case that he did not regard the offences as being as serious as contended by the prosecution. 

11. It cannot be said that his Honour ignored the submission put by counsel for the prosecution that the unfinished firearm suppressors could readily and easily be converted into firearm suppressors.  This fact was not in dispute at first instance by any of the respondents and it was accepted that they had each accessed information on the internet as to how that could be done.

12. It can be implied from his Honour's reasoning that he came to the view that the offences were not as serious as the prosecution contended because in each case the importation (or in the case of Mr F ‑ the attempted importation) was for a benign purpose.  I do not accept that such an inference was not open for his Honour to draw as a mitigating factor or that his Honour gave too much weight to this factor. 

13. As counsel for Mr F submitted to his Honour, the starting point for the determination of an appropriate sentencing disposition in respect of the importation of these devices is what was the purpose for which the device was intended to be used.

14. Clearly, the purpose for which the use of the device in each case was intended is a relevant factor to be considered pursuant to s 16A(2)(a) of the Crimes Act, which on the facts found may be mitigatory or aggravating. 

15. If the devices were imported with the intention of the sale or supply to another or if the devices were imported with the intention of use for some purpose that was nefarious or illegal, the offences would in such a case have to be regarded as very serious and warranting on that fact alone a different sentence.  However, such circumstances were not raised in any of the matters before the sentencing magistrate. 

16. In the hearing of the appeal, counsel for the appellant put a submission that the table of comparative sentences shows that the offence of importing an unfinished firearm suppressor is very prevalent.  However, this submission cannot be accepted. 

17. Firstly, when questioned as to whether there were any intermediate appellate decisions or other decisions at first instance in other parts of Australia, counsel for the appellant said 'no', and informed the court that all of the charges referred to in the table were instituted as a result of the information received from the Alcohol, Tobacco and Firearms Agency in the USA. 

18. Secondly, the fact that 12 people (including the respondents) were charged with the same offence, without more, is not sufficient to establish prevalence of this particular type of offending within Western Australia or throughout Australia.

19. The fact that each of the respondents were of prior good character was in the circumstances, plainly, a relevant factor, and was a factor that was open in each case for his Honour to give the weight he regarded as appropriate.

20. Just because there is difficulty in policing and detecting customs offences, particularly in cases where online marketing is manipulated as a way of concealing the true purpose of devices, it does not necessarily follow that such conduct should be wholly attributed to the person who imports such a device where the person who is charged with or the offence of importation is not responsible for the creation or maintenance of the online marketing, or the information provided to customs when the device is imported.

21. This is particularly so in the case of each respondent who cannot be said to have engaged in any deceptive behaviour when placing the orders for each device.  Each respondent ordered the device using their own name and had it sent to their own address.  Yet, his Honour accepted that in each case the respondent had participated in the deception by the seller of the devices as they each knew when they placed an order for the device that they could be converted for use as a suppressor and that it was illegal to import a firearm suppressor.  His Honour made this observation in his sentencing remarks when he sentenced Mr C, and he observed when he sentenced Mr S, that general deterrence was obviously a factor that he should take into account.

22. When all these matters are considered, the sentence imposed upon each respondent cannot be said to be unreasonable or plainly unjust, as in each case there were mitigating factors that were open to his Honour to take into account and to give weight to, which factors that were personal to each of the respondents and resulted in it being open to his Honour to conclude that their offending fell within a less serious category than submitted by the prosecution.  For this reason, I am of the opinion that no implied error in the reasoning of the sentencing magistrate can be established.  Nor am I satisfied an implied error can be established from the sentences themselves. 

23. At the highest, all the appellant has been able to establish is that in each case the sentences for Mr C and Mr F fell at the lower end of the scale of fines that may be imposed for such offences.  As to Mr S and Mr R, for the reasons I have already given, it was open to his Honour to form the view as he did that to enter a conviction would be disproportionate to the seriousness of the offences.

24. For these reasons, I am of the opinion that ground 2 of the Mr S and Mr R appeals, and ground 1 of the Mr C and Mr F appeals, have no prospects of success and that leave to appeal on these grounds should be refused.

4.0 Whether the costs awarded to the prosecution were unreasonable or unjust ‑ ground 2 of the Mr S and Mr R appeals, and ground 2 of the Mr C and Mr F appeals

1. In each appeal, the appellant contends that the sentencing magistrate erred in law in unreasonably reducing the professional costs sought by the prosecution.  In particular, the amount of costs awarded in each case by his Honour was so unreasonable or plainly unjust that this court may infer that there has been a failure to properly exercise the discretion.[48]

4.1 The costs regime applicable to Customs Act offences

[48] The appellant relies upon the fifth (last) category of appealable error identified in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505.

1. Section 263 of the Customs Act expressly empowers a court, in a prosecution for a customs offence, to exercise a discretionary power to make an order for costs in favour of the successful party and provides for the recovery of such costs.  Section 263 provides:

   In a Customs prosecution, whether commenced before or after the commencement of this section, a court may award costs against a party, and, where an amount of costs is awarded against a party other than the prosecutor, section 259 and any provision of a law of a State or Territory that, by virtue of an Act other than this Act, applies in relation to the recovery of pecuniary penalties under this Act apply in relation to the recovery of the amount of costs so awarded as if it were a pecuniary penalty adjudged to be paid by the party under this Act.

2. In making an order for costs pursuant to s 263, a magistrate is entitled to exercise his or her discretion, with or without regard to any cost determinations or scales that may apply under a State law.

3. In Nguyen v Comptroller-General of Customs, Banks-Smith J found that a magistrate when assessing an award of costs under s 263, was entitled to have regard to part of the provisions of the Legal Profession (Magistrates Court) (Criminal) Determination 2016 (WA) that apply to summary determination of a prosecution in the Magistrates Court.[49]  In making this finding her Honour explained her reasoning as follows:[50]

   [T]he Magistrates Court in Western Australia has civil and criminal jurisdiction.  The proceedings against the appellant were instituted under the Criminal Procedure Act 2004 (WA). It is not in issue between the parties that it was open for the prosecution to proceed in that manner, and that course is consistent with the approach in CEO of Customs v Powell.

   Part 3 of the Criminal Procedure Act applies to prosecutions in courts of summary jurisdiction and so applies to criminal proceedings in the Magistrates Court. By s 67(2) of the Criminal Procedure Act, if an accused is convicted, the court may order the accused to pay all or part of the prosecutor's costs.

   By s 67(3) of the Criminal Procedure Act, the amount of costs so ordered may be determined in accordance with a determination made for the purpose of the Official Prosecutions (Accused's Costs) Act 1973 (WA). Determinations are made under the Legal Profession Act2008 (WA). A relevant determination has been made under that Act: the Legal Profession (Magistrates Court) (Criminal) Determination 2016 (WA) (Determination). For the purposes of determining the amount of costs that are payable to a prosecutor, the Determination is not binding. It is to be used as a guide or by analogy.

   I see no reason to depart from the approach in CEO of Customs v Powell and consider it is applicable to the position in this State ...

   …[s] 263 does not deny reference to the Determination. It is clear that the courts have not construed the power to award costs under s 263 of the Customs Act as excluding reference to the practice and procedure as to costs of the relevant State court under s 247.  For example, in Chief Executive Officer of the Australian Customs Service v Karam (No 2), the court referred to s 263 but noted that by s 247 costs were to be determined 'in accordance with the usual practice and procedure of the court in civil cases', being s 98 of the Civil Procedure Act 2005 (NSW) and pt 42 of the Uniform Civil Procedure Rules 2005 (NSW).

   In Hickey v Chief Executive Officer of Customs, the offender was ordered to pay costs of a Customs prosecution.  The magistrate calculated those costs in accordance with the scale of fees for such summary proceedings in the Magistrates Court, as provided for by the Justices Act. On appeal, the court noted that by both s 263 of the Customs Act and s 157 of the Justices Act the court was empowered to order costs as seem to be 'just and reasonable'.  The court found no error on the part of the magistrate as to the award of costs.]

   [49] Nguyen v Comptroller-General of Customs [2017] WASC 341 [77].

   [50] Nguyen v Comptroller-General of Customs [2017] WASC 341 [65] ‑ [70]. (footnotes omitted)

1. In Basham v City of Joondalup [No 2], Fiannaca J comprehensively considered the authorities about the discretionary factors to be considered when exercising the power to make a costs order in criminal matters in the Magistrates Court and the principle of proportionality.[51]  After referring to a number of authorities, Fiannaca J applied the principles referred to in Agar v McCabe (No 4), and applied, in part, the rationale relied on by Osborn J in Hobsons Bay City Council v Viking Group Holdings Pty Ltd:[52]

   In my opinion, the consequence of recognising that the purpose of a costs order is to compensate the successful party for the costs incurred, and not to punish the unsuccessful party, is as stated by Denham AsJ in Agar v McCabe [2015] VSC 654 [32], namely that a costs order is distinct from any punishment and the application of the principle that the punishment should 'fit the crime'.

   …

   It seems to me that the first rationale relied on by Osborn J involves the proposition that the costs of proceedings should bear a reasonable relationship to the nature of the proceedings, in particular the nature and circumstances of the offence, the issues to be resolved and what is required for their resolution.  In my opinion, no exception could be taken to that proposition.  Secondly, although the current provisions do not specify that the costs be such as the court considers to be 'just and reasonable', which were words used in previous statutory provisions, the notion that the costs order should be fair and part of a 'just outcome' is, in my opinion, an incident of the need for the discretion to be exercised judicially.

   [51] Basham v City of Joondalup [No 2] [2016] WASC 120; (2016) 258 A Crim R 451.

   [52] Basham v City of Joondalup [No 2] [2016] WASC 120 [87] and [98].

2. Fiannaca J also went on to apply the reasoning of Corboy J on the leave application that it is not an unnecessary burden to expect magistrates to make such enquiries as are necessary to fix the costs of a prosecution according to the applicable scale and the factors that may be relevant to ensuring that any costs that may be awarded are reasonable, and observed:[53]

   His Honour also noted, referring to Brookvista Pty Ltd v Meloni [2009] WASCA 180, that the court's approach in fixing the amount of costs should be 'logical, fair and reasonable', and that it is necessary for the court to have sufficient information to ensure the award of costs satisfies that standard and takes into account all other relevant matters, so as to do justice between the parties [33]. I respectfully agree that the views expressed by Newnes JA in Brookvista Pty Ltd v Meloni, as summarised by Corboy J in Basham v City of Joondalup, may be applied to the awarding of costs in summary criminal proceedings.  Again, they are consistent with the general principles discussed above under 'Discretion'.

   However, I also accept the respondent's submission that there will be circumstances in which sufficient information will have been put before the court by the parties in their submissions, in which case further inquiries by the magistrate will not be necessary.

4.2 The costs orders sought by the appellant and the orders made by the sentencing magistrate

[53] Basham v City of Joondalup [No 2] [2016] WASC 120 [124] ‑ [125].

1. Leaving aside the amount sought in each case for disbursements, which were awarded in full by his Honour, the professional costs sought in each matter and awarded were as follows:

   (1)In the Mr S matter, $6,154.47 was sought by the prosecution and $2,000 was awarded.

   (2)In the Mr R matter, $5,491.73 was sought by the prosecution and $2,000 was awarded.

   (3)In the Mr C matter, $11,572.20 was sought by the prosecution and $4,000 was awarded.

   (4)In the Mr F matter, $6,570.13 was sought by the prosecution and $2,000 was awarded.

2. The appellant submits that the magistrate's orders as to costs did not 'do justice between the parties', nor was the fixing of the amount of costs 'logical, fair and reasonable'.

3. In particular, the appellant argues that:

   (a)the magistrate gave no explanation for the decision to reduce the amount of costs in each case.  Further, in assessing the quantum of costs in each case, his Honour did not refer to the detailed schedule of costs that had been provided to him in the Mr C,[54] Mr F,[55] and Mr R matters;[56]

   [54] Transcript from primary court page 5; hearing bundle page 68,

   [55] Transcript from primary court page 11; hearing bundle page 126.

   [56] Transcript from primary court page 7; hearing bundle page 148.

   (b)the magistrate did not take up the offer to receive the schedule in the Mr S matter;

   (c)in relation to the Mr C matter, the quantum of professional costs sought was explained to the magistrate, and included that the matter had been listed for a two day trial in November 2018, but was vacated at the last minute, and there had been no concessions made by Mr C in the lead-up to the trial, and that a reduction of one-third of the prosecution's actual costs had been applied to the costs sought;[57]

   [57] Transcript from primary court page 5; hearing bundle page 68.

   (d)in the Mr S matter, it was explained that the proceedings had been on foot since 2017, and that the plea had been entered very late after the matter had been listed for trial;[58]

   [58] Transcript from primary court page 22; hearing bundle page 102.

   (e)in the Mr F matter, it was explained that the proceedings had been on foot for a considerable period of time, and that the professional costs sought had been reduced by one third;[59]

   [59] Transcript from primary court page 11; hearing bundle page 126.

   (f)in the Mr R matter, it was also explained that the proceedings had been on foot for a considerable period of time, and involved a significant amount of work, and that the professional costs sought had been reduced by one third;[60]

   [60] Transcript from primary court page 7; hearing bundle page 148.

   (g)rather than consider the individual circumstances of each case, the magistrate took an arbitrary approach to the fixing of costs in each case:

   (i)in the Mr C matter, no submissions were made on his behalf as to the costs order that was sought.  His Honour said:[61]

   [61] Transcript from primary court page 11; hearing bundle page 74.

   …There's an application for costs.  I think the submission is that the costs in this matter should be far greater than in previous matters because it was actually prepared for trial and a lot more work was done.  I accept that to be the case.  However, I still think that the amount sought is excessive.  In my view, the appropriate amount of costs would be $4,000 with disbursements of $980.85.  So, he's ordered to pay costs in the sum of $4,980.85.

   (ii)in the Mr S matter, in response to the prosecution's submissions as to costs, his Honour remarked, 'So it's $6,000 ‑‑‑ for a plea of guilty?'[62]  Mr S's counsel submitted to the court that the costs order would be 'a punishment' and 'disproportionate' and:[63]

   [62] Transcript from primary court page 22; hearing bundle page 102.

   [63] Transcript from primary court page 23; hearing bundle page 103.

   There was a plea of not guilty.  That was on the basis of my advice about the nature of the article and that by agreement went to the Supreme Court, it has come back so Mr [S] shouldn't lose the benefit of a ‑ an early plea.  It really is not his fault in a very practical sense.  He acted on advice and once we got the decision on the Supreme Court everything changed.

   These submissions ignore the authorities to the effect that costs orders are not punishment, but are to reimburse the costs associated with bringing the prosecution.  Where those costs are increased because of the manner in which the offender conducted the matter, the prosecution is entitled to be reimbursed a reasonable amount towards the costs it has incurred.  His Honour made a similar error, when he said:[64]

   [64] Transcript from primary court page 29; hearing bundle page 109.

   … He will, however, have to pay costs.  The costs that I'm ordering ‑ I know you're seeking more than $6,000, I think that's excessive.  I'm going to order costs in the sum of $2,000 plus disbursements of $607.60, so that's $2,607.60.  So he will have to pay that, which is a significant penalty in its own right, in my view, it's a lot of money …

   (iii)in the Mr F matter, no submissions were made on his behalf as to the costs order that was sought.  His Honour said:[65]

   [65] Transcript from primary court page 20; hearing bundle page 135.

   I do think that the costs sought are excessive.  All of these matters would flow together.  I think an appropriate figure for costs is $2,000, which I granted in relation to the previous gentleman [that is, Mr S]. … The costs which I order are $2,508.60, which is $2,000 plus the disbursements mentioned.

   (iv)in the Mr R matter, no submissions were made on his behalf as to the costs order that was sought, and his Honour simply said:[66]

   There will be an order for costs.  The costs will be $2,000 for legal costs and $618.60 disbursements, so you will be ordered to pay the prosecution costs fixed in the amount of $2,618.60'.

   There is no explanation in this matter for why the professional costs were being reduced to $2,000, although it can be inferred from the comments made in the Mr F matter that the figure of $2,000 was fixed as an arbitrary sum to be applied to the majority of these matters.

   (h)the absence of any reasoning behind the decisions fixing the amount of professional costs give rise to the inference that the sentencing magistrate erred in his application of his discretion as to costs, giving rise to appealable error.

4.3 Is error established?

[66] Transcript from primary court page 21; hearing bundle page 162.

1. As counsel for Mr F points out, it is not the case that the sentencing magistrate gave no explanation for his decision in each case to reduce the amount of costs.  His Honour did provide a reason for reducing the costs sought by the prosecution when making an award of costs in the Mr F matter, and that was all of the matters (the four respondents to the appeals) would flow together.[67]  This finding made by his Honour, is not challenged in the appeals.  It is important to note that Mr F was sentenced after Mr S and when his Honour dealt with Mr F he was informed that there were four offenders in his Honour's list that day and that each had been charged with the same offence.[68]

   [67] Transcript from primary court page 20; hearing bundle page 135.

   [68] Transcript from primary court page 3; hearing bundle page 118.

2. Having regard to the subject matter of each of the prosecutions, clearly such an inference was open, as the evidence to be given in each of the prosecutions if they were to proceed to trial, particularly, the prosecution evidence as to the detection by the USA authorities, the expert evidence, and the submissions to be made as to the elements of the offence, and submissions as to sentencing, would be substantially the same in each case.

3. The appellant's submissions also ignore the principle enunciated by Fiananca J in Basham v City of Joondalup [No 2][69] that, proportionality is a relevant consideration in the making of a costs order.  In that matter, his Honour observed:[70]

   I note that, on the authorities, the issue is not one of 'proportionality between the fine imposed and the costs of the prosecution', which is the argument initially made by the appellant, but one of proportionality between the costs, or the total burden of fine and costs, on the one hand, and the offence, or the criminality of the offender's conduct, on the other.

   [69] Basham v City of Joondalup [No 2] [2016] WASC 120; (2016) 258 A Crim R 451 [98] ‑ [100].

   [70] Basham v City of Joondalup [No 2] [2016] WASC 120; (2016) 258 A Crim R 451 [101].

4. Whilst the appellant claims that his Honour did not take up the offer to receive the schedule in the Mr S matter, and did not make any assessment of the schedules handed up in the other matters, I note that in each case the schedules provided to the court had not been compiled in a helpful form.  Each schedule is simply a historical list of professional fees containing a detailed narrative of work performed by time spent, such as the sending of particular emails and the making of telephone calls.  The narrative also records matters such as the dates of attendance at court for hearing, arrangements for service of documents and preparing draft advice and statements of facts.  However, it is my view, not appropriate to simply provide to a busy court such as the Magistrates Court a document which simply comprises lengthy pages of detailed costs sheets of all work undertaken, ordered by date, which record particular tasks by minutes, that in many cases took 10 minutes for each task. 

5. When a schedule of costs sought by a party is provided to the Magistrates Court it should be provided in a form that will allow a magistrate to readily assess whether the costs claimed are reasonable and just, similar to the schedule that was provided in the matter of Nguyen v Comptroller-General of Customs, which categorised the professional fees in 12 separate lump-sum items for various items that included initial advice, drafting the prosecution notice, preparation for and attendance on seven court dates and two separate sums for preparation for trial.  These 12 lump sum items were claimed together with other amounts claimed, such as counsel fees and expert fees.[71]

   [71] Nguyen v Comptroller-General of Customs [2017] WASC 341 [31].

6. Whilst it is the case that a sentencing magistrate is required to make such enquiries as are necessary to fix the costs of a prosecution, there must be an obligation upon the party seeking an order for costs to put the information that is necessary to fix an appropriate award of costs in a form that can be readily assessed.

7. Whilst his Honour made no observation about the detail of the information contained in the schedules, it is clear from his Honour's sentencing remarks, when he sentenced the first of the respondents, Mr S, that he took into account the principle of proportionality when he determined that the amount of costs sought by the prosecution was excessive.[72]  His Honour formed this opinion on the basis of his lengthy experience in assessing costs in criminal matters in the Magistrates Court.  It also appears clear from his Honour's sentencing remarks in the other matters that he took a similar view.  In the case of Mr C (who was the last respondent to be sentenced that day) his Honour accepted that there should be a higher amount of costs awarded than in the other matters because the matter was actually prepared for trial and a lot more work was done.  His Honour did not depart from his earlier opinion he had expressed that the amount sought by the prosecution was excessive.[73]  His Honour made a similar observation when making a costs order in the Mr F matter and also said that these matters would flow together.[74]  Although his Honour made no observations as to why he awarded the amount he did for costs when he sentenced Mr R, by the time he sentenced Mr R he had already sentenced Mr S and Mr F, and had observed that he regarded the amounts claimed by the prosecution as excessive.

   [72] Transcript from primary court page 29; hearing bundle page 109.

   [73] Transcript from primary court page 11; hearing bundle page 74.

   [74] Transcript from primary court page 20; hearing bundle page 135.

8. When all of these matters are considered, I am not persuaded that it was not open to his Honour to make orders for costs in the amounts sought by the prosecution.  In particular, in light of the reasons given by his Honour, together with the application of the principle of proportionality, between the penalty imposed in each case and the costs of the prosecution, and the form of the information provided to his Honour in the case of Mr R, Mr C and Mr F as to the quantum of the costs sought by the prosecution in each case, I am not persuaded that the appellant has shown that the orders for costs were not logical, fair and reasonable.

9. For these reasons, I am of the opinion that ground 3 of the Mr S and Mr R appeals, and ground 2 of the Mr C and Mr F appeals, have no prospects of success and that leave to appeal on these grounds should be refused.

5.0 The result of the appeals and the orders that should be made

1. For these reasons, leave to appeal on each ground of appeal in each appeal should be refused and each of the appeals should be dismissed and orders made in each case that the appellant pay the respondents' costs of the appeal. 

2. I will hear the parties further as to the precise orders that should be made to reflect the findings I have made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NM
Research Orderly to the Honourable Justice Smith

7 AUGUST 2020