Evans v Anderson
[2019] WASC 178
•23 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: EVANS -v- ANDERSON [2019] WASC 178
CORAM: TOTTLE J
HEARD: 13 MAY 2019
DELIVERED : 13 MAY 2019
PUBLISHED : 23 MAY 2019
FILE NO/S: SJA 1014 of 2019
BETWEEN: ZIA JON EVANS
Appellant
AND
LUCAS RYAN ANDERSON
Respondent
ON APPEAL FROM:
For File No: SJA 1014 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S A HEATH
File Number : PE 28752 of 2018, PE 28753 of 2018, PE 28754 of 2018
Catchwords:
Criminal law - Appeal against sentence - Manifest excess - Drawing of inferences as to aggravating factors - Appeal dismissed
Criminal law - Appeal against sentence - Where term of immediate imprisonment imposed - Whether suspended sentence or conditionally suspended sentence could be excluded - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 417(1)
Firearms Act 1973 (WA), s 19(1)(c), s 19(1ac)(b)
Sentencing Act 1995 (WA), s 9AA, s 39
Result:
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr T Percy QC & Mr S Nigam |
| Respondent | : | Ms N Eagling |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bees v The State Western Australia [2017] WASCA 202
Cartwright v The State of Western Australia [2010] WASCA 4
Clarke v The State of Western Australia [2018] WASCA 190
Dao v The Queen (Unreported, CCA SCt of WA, Library No 990015, 22 January 1999)
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gaskell v The State of Western Australia [2018] WASCA 8
Gobetti v The State of Western Australia [2017] WASCA 130
Greenfield v The State of Western Australia [2019] WASCA 29
Hope v The State of Western Australia [2019] WASCA 12
Huynh v The State of Western Australia [2012] WASCA 8
Ikin v Weir [2015] WASC 228
Kirk v Jackson [2016] WASC 17
Latham v The Queen [2000] WASCA 338
Law v The State Western Australia [2009] WASCA 193
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Malatesta v Pinch [2001] WASCA 224
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mitchell v Purvis [2016] WASC 351
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Mussarri v The State of Western Australia [2018] WASCA 46
My v The State of Western Australia [2018] WASCA 1
Nguyen v The State of Western Australia [2019] WASCA 56
R v Olbrich (1999) 199 CLR 270
Sakhie v The State of Western Australia [2017] WASCA 103
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Slade v The State of Western Australia [2019] WASCA 65
Stanley v The State of Western Australia [2018] WASCA 229
Stjepic v Christian [2005] WASC 193
Stone v The State of Western Australia [2010] WASCA 80
The State of Western Australia v JWRL (a child) [2010] WASCA 179
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326
TOTTLE J:
Introduction
On 6 November 2018 the appellant was convicted of three offences in the Magistrates Court of Western Australia to which he had pleaded guilty. On 14 January 2019 the Chief Magistrate sentenced the appellant to 18 months immediate imprisonment and a fine of $300.
The 18 month period comprised a 12 month term of imprisonment for possession of stolen or unlawfully obtained property contrary to s 417(1) of the Criminal Code (WA) (count 1), and a term of imprisonment of 6 months for possession of a unlicensed firearm, namely, a handgun, contrary to s 19(1ac)(b) of the Firearms Act 1973 (WA) (count 2). Those two sentences were ordered to be served cumulatively. The appellant was fined $300 for the offence of being an unlicensed person in possession of ammunition, contrary to s 19(1)(c) of the Firearms Act 1973 (count 3).
The appellant sought leave to appeal against the sentences imposed on counts 1 and 2. The appellant advanced two grounds of appeal. First, that the Chief Magistrate imposed a sentence that was manifestly excessive and, second, that the Chief Magistrate erred at law by failing to suspend or conditionally suspend the terms of imprisonment imposed.
The applications for leave to appeal were heard on 13 May 2019. I refused leave to appeal on both grounds and dismissed the appeal. These are my reasons for doing so.
Background
The material facts read to the Chief Magistrate, which were not challenged by the appellant, were as follows:[1]
Your Honour, between March of 2018 and May of 2018 police surveillance was conducted upon the accused, Mr Evans. Police surveillance observed the accused drive his two registered vehicles, a Mazda3 sedan, and a Ford Laser sedan. That surveillance occurred over a dozen times within this period. Only the accused was observed to drive these vehicles. Police suspected that the accused's Mazda3 vehicle contained a hidden compartment which was being used to transport drugs or cash.
On 26 April, police surveillance observed the accused drive his Ford Laser to [an address] in Wanneroo. Whilst driving to the location a second Mazda3 … was observed to drive in convoy with the accused. The accused and the driver of the second Mazda departed separately over the space of 20 minutes. On 17 May, the second Mazda was stopped and searched by police. At this time, that vehicle was being driven by ... a convicted drug trafficker, your Honour.
A sophisticated hidden compartment was located behind the passenger glove box area and inside that compartment $20,000 was located, together with an encrypted Samsung Knox phone with a phone SIM card. I'm advised that those phones cannot be purchased in retail stores, they cost approximately $2700 for a six month subscription, and routinely used by organised criminals due to the high security and inability to be downloaded or intersected by police.
At approximately 9.40 am on 29 May, officers from the National Anti‑Gangs Squad and Gang Crime Squad executed a Misuse of Drugs Act search warrant at [the appellant's address], the residence of the accused. Police also executed a second warrant at [the Wanneroo address]. Upon entry to the [the appellant's address] in the main bedroom, officers located the accused and his girlfriend asleep in his bed. During his arrest, two mobile phones were located next to the accused.
One of those phones located with the accused was an encrypted Samsung Knox phone of the type located during the search of the vehicle on 17 May. The accused was questioned regarding the password to that phone and stated, 'I don't know. I found it.' A search of the house identified a spent .25 calibre bullet casing within the kitchen area. A search of the main bedroom identified a handgun silencer in a black case behind a set of drawers and a loaded .25 calibre handgun in a drawer underneath the bed.
That handgun contained four bullets. It was located under the side of the bed on which the accused was sleeping. A subsequent search of the accused's Mazda3 located a hidden compartment behind the passenger's side glovebox. That hidden compartment was exactly the same as the one found during the vehicle stop on the other Mazda3 on 17 May 2018. The compartment was of a sophisticated design and had to be forced open. Inside that compartment, your Honour, $50,000 was located.
The accused answered no comment to all questions put to him regarding the cash and the firearm-related items. The second search warrant at the [Wanneroo address] located a number of buried plastic type containers. Those containers were large, sealed plastic containers of the type - of types often used by drug dealers to bury drugs. No cash or drug items were located, your Honour. That should be the facts in all matters, your Honour. Your Honour, in respect of sentencing, I do wish to be heard.
[1] Sentencing ts, 2 - 3.
Chief Magistrate's sentencing remarks
The Chief Magistrate made the following remarks sentencing the appellant:[2]
HIS HONOUR: You've pleaded guilty to these charges that was following, having initially entered a plea of not guilty and the matter having gone to trial allocation. Accordingly, for the purposes of section 9AA, I will allow only a 10 per cent discount for the plea at that point. You come before the court without any significant record, there being only one charge of having possessed an item for graffiti for which you were fined a small amount and given a spent conviction order in 2011.
I've had the benefit of a presentence report and psychological report from the court and I've also had the benefit of a more detailed report from Dr O'Daly, and that and some of the references outline some of the ongoing issues that you've had over time. Significantly, though, Dr O'Daly identifies that you were not suffering from anything other than ADHD at the time of these offences. I'm also told that since your arrest on these matters, you have made significant changes in terms of the people that you associate with.
For these reasons, it is the defence submission on your behalf that you can adequately be dealt with by way of orders that see you within the community or, at worst, a conditional suspended imprisonment order which would give you the opportunity to demonstrate that you have made those changes and no longer associate with those people. On the other hand, the prosecution call for immediate terms of imprisonment.
In matters such as this there is both questions of specific and general deterrence and, in particular, the prosecution, I think, point to the context under which these offences arise in that you were the subject of surveillance for some time with respect to movements in vehicles with sophisticated concealed compartments in which money were found, presence of expensive encrypted telephones of the same nature, and that in relation to the handgun, notwithstanding that it is suggested that you had it for recreational purposes, that it was kept in a drawer under the bed in which you were sleeping in a loaded condition.
It seems to me that there is no reason for anyone to have a loaded firearm under their bed. There is no reasonable explanation for having $50,000 in a concealed compartment in a vehicle for someone who offers no explanation. It is suggested that you were naïve in getting involved in the matter and that your reluctance to say any more is as a result of your health conditions, but, in my view, there is a need for general deterrence in circumstances such as this, such that a term of immediate imprisonment is the only appropriate sentence, particularly where it's clear that you were motivated by greed for financial return to become involved.
In relation to the possession of the $50,000, you will be sentenced to 12 months imprisonment. In relation to the possession of the firearm, six months cumulative, making a total of 18 months imprisonment. I will make you eligible for parole with respect to those matters. There will be an order for forfeiture of the $50,000 and an order for the destruction of the firearm. In relation to the casing there will be a fine of $300 and an order for its destruction.
[2] Sentencing ts, 13 - 14.
The approach to grants of leave to appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) meaning that leave to appeal is required for each ground of appeal.[3]
[3] Criminal Appeals Act 2004 (WA) s 9(1).
Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of success.[4] This means that each ground must have a real, rational and logical prospect of succeeding.[5]
[4] Criminal Appeals Act 2004 (WA) s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
The principle of appellate restraint
In Greenfield v The State of Western Australia, the Court of Appeal repeated the following well‑known statement about the nature of appeals against sentence:[6]
Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example, by mistaking the law or facts, or by taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of a sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
[6] Greenfield v The State of Western Australia [2019] WASCA 29 [21] (Buss P, Mazza JA & Hall J).
Ground 1 - manifest excess
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[7] Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.[8]
[7] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325 (Gleeson CJ & Hayne J); Slade v The State of Western Australia [2019] WASCA 65 [36].
[8] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the 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: see Nguyen v The State of Western Australia.[9]
Maximum penalties and standards of sentencing customarily imposed
[9] Nguyen v The State of Western Australia [2019] WASCA 56 [17] - [19].
The penalty that may be imposed upon summary conviction reflects only a jurisdictional limit. The relevant yardstick in assessing the appropriateness of the sentence imposed is the maximum penalty,[10] not any jurisdictional limit.[11]
[10] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [40].
[11] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326; Stanley v The State of Western Australia [2018] WASCA 229 [46].
In relation to count 1, the maximum penalty for possession of stolen or unlawfully obtained property contrary to s 417(1) of the Criminal Code (WA) is 7 years imprisonment. The penalty that may be imposed on summary conviction is 2 years imprisonment and a $24,000 fine.
Offences involving the possession of stolen or unlawfully obtained property involve a wide disparity in the circumstances of offending. The respondent referred the court to a number of cases under s 417(1) where sentences of between 4 and 10 months were recorded.
In Mitchell v Purvis,[12] the appellant was sentenced to 4 months imprisonment for an offence of possessing stolen or unlawfully obtained property involving an amount of approximately $1700 in cash. His appeal against sentence was not successful.
[12] Mitchell v Purvis [2016] WASC 351.
In Clarke v The State of Western Australia,[13] the appellant was sentenced to 6 months imprisonment for the possession of stolen or unlawfully obtained property in relation to $31,000 in cash and 18 months imprisonment for the same offence in relation to nearly $200,000 in cash.
[13] Clarke v The State of Western Australia [2018] WASCA 190.
In Gaskell v The State of Western Australia,[14] the appellant was sentenced to 6 months imprisonment for possession of $40,000 cash which was reasonably suspected of being stolen or unlawfully obtained and 4 years imprisonment for $569,000 cash for offences contrary to s 417(1) of the Criminal Code. Whilst his head sentence for drug offences was reduced on appeal, his sentences for these offences were not changed.
[14] Gaskell v The State of Western Australia [2018] WASCA 8.
In My v The State of Western Australia,[15] the appellant was convicted upon his plea of guilty to seven offences and was sentenced to a total effective sentence of 5 years immediate imprisonment. He unsuccessfully appealed on the ground, among others, that the individual sentences were manifestly excessive. His sentence in relation to an offence of possessing stolen or unlawfully obtained property was 9 months imprisonment for an amount of $32,000 cash.
[15] My v The State of Western Australia [2018] WASCA 1.
In this case, the 12 month sentence imposed for count 1 represented approximately 14% of the maximum penalty for that offence.
In relation to count 2, the maximum penalty for possession of a firearm, namely a handgun, while not being a person licensed or permitted to possess that firearm contrary to s 19(1ac)(b) of the Firearms Act 1973 (WA) is 7 years imprisonment. The penalty that may be imposed on summary conviction is 3 years imprisonment and a fine of $12,000.
There is no established range of sentences for offences relating to unlicensed possession of firearms.[16] As noted by Martino J in Kirk v Jackson, sentences ranging between 6 and 12 months were referred to in Huynh v The State of Western Australia.[17] In Huynh the appellant was sentenced to a term of two years immediate imprisonment in respect of offences involving two loaded handguns in the appellant's possession at a time when he was engaged in drug dealing. The Court of Appeal upheld the sentence.
The seriousness of the offending
[16] Kirk v Jackson [2016] WASC 17 [27].
[17] Huynh v The State of Western Australia [2012] WASCA 8.
The circumstances of the offending are recounted in the material facts set out earlier in these reasons. There are a number of factors that make the offending serious. These are:
(a)the amount of the cash - $50,000 - and the absence of any explanation for the appellant's possession of it;
(b)the cash was deliberately concealed in a secret compartment in his vehicle;
(c)the appellant had accepted both an unlicensed firearm and a large quantity of cash from an unknown person or persons;
(e)the appellant was in possession of an expensive mobile phone of a type that could not be purchased in retail stores and was the type of phone routinely used by those engaged in organised criminal activity because calls to and from it could not be intercepted by police;
(f)the appellant was observed visiting an address at the same time as a convicted drug trafficker who was subsequently found to be in possession of $20,000 in cash also hidden in a secret compartment in the same make of car as that of the appellant and at which address empty containers similar to those used by drug dealers to bury drugs were found; and
(g)the firearm was a handgun that was loaded and ready for use.
At the sentencing hearing the appellant's counsel did not make submissions that challenged the concern expressed by his Honour that the circumstances of the offending 'would suggest' that the appellant was involved in organised crime and in turn these circumstances 'might' suggest that such involvement was the reason why he was in possession of the firearm. The answer given by the appellant's counsel in response to the Chief Magistrate's concerns that the appellant had been involved in organised criminal activities was not to suggest that the Chief Magistrate's characterisation of those activities was wrong but that the appellant had been naïve.
It should be noted that the appellant himself provided no clear and direct explanation to the court for his offending. The explanations that were offered came from the appellant's psychiatrist, Dr O'Daly, from his mother and from his partner. Those explanations were as follows:
(a)The appellant was 'naïve and gullible' and that he 'fantasised about owning a weapon but [the appellant] said that this was in the context of historical interest rather than any perception of a need for any prospective future use' (Dr O'Daly's report of 5 January 2019).
(b)The appellant took the path he did because he had difficulty fitting into the workplace, he did not receive Centrelink benefits, he would not allow himself to be financially dependent on family members and saw the path of offending as a way of being financially independent. And, the appellant's possession of the handgun was 'simply opportunistic and naïve' and that 'he has always enjoyed shooting galleries at fairs and had mentioned more than once that he'd like to shoot as a hobby' (the appellant's mother's statement to the court dated 28 December 2018).
(c)The appellant committed the offences to get cash and he was naïve and opportunistic. Possession of the gun was completely out of character though the appellant liked to go to the shooting range 'every once in a blue moon as a recreational hobby' (the appellant's partner's statement to the court).
(d)The appellant kept poor company and those persons brought negativity into his life (the appellant's counsel in mitigation).
(e)The appellant had possession of the handgun because he 'shoots as a hobby' - a photograph of the appellant at a shooting range was provided to the Chief Magistrate in support of this submission (the appellant's counsel in mitigation).
(f)The appellant's ADHD contributed to the appellant's poor decision making (the appellant's counsel in mitigation).
Distilled to the essentials:
(a)the explanation for the possession of $50,000 in cash was that the appellant was naïve and gullible and that he was motivated by financial benefit; and
(b)the explanation for the possession of the handgun was that the appellant had an interest in shooting, had fantasised about owning a handgun and had naïvely and opportunistically taken possession of it.
The Chief Magistrate was clearly not persuaded that the appellant had possession of the handgun because shooting was his hobby.
In my assessment, the Chief Magistrate's evident scepticism was well placed. The evidence that the appellant was involved in shooting as a recreational activity was exiguous and equivocal. The court was provided with no evidence that the appellant actually participated in shooting as a recreational activity at the time the offences were committed. There was no evidence that the appellant was a member of a pistol club and no cogent evidence of his interest in shooting other than a single photograph of him taken at a shooting range. These factors do no more than corroborate that the appellant liked to go the shooting range 'every once in a blue moon' as his partner described it.
Neither the description of the appellant's interest in shooting provided by the appellant's partner nor that provided by the appellant's mother is consistent with the appellant having an active interest in shooting that might provide an explanation for his possession of the handgun. Conversely, however, the reference by the appellant's mother to the appellant's possession of the handgun being 'simply opportunistic and naïve' supports the view that the handgun came into the appellant's possession as a result of his involvement in criminal activities.
Further, it would appear that the appellant did not explain his interest in shooting as a hobby to Dr O'Daly. Rather, the explanation given to Dr O'Daly was that the appellant had fantasised about owning a weapon and that his interest was a 'historical interest rather than any perception of a need for prospective future use'.
Although in the course of exchanges with counsel for the appellant the Chief Magistrate referred to the appellant's conduct as having 'all the indicia of organised crime', his Honour did not record a finding to that effect in the course of his Honour's sentencing remarks and his Honour limited his observations to the statement that:
... there is no reason for anyone to have a loaded firearm under their bed. There is no reasonable explanation for having $50,000 in a concealed compartment in a vehicle for someone who offers no explanation.
I have no difficulty, however, in concluding that it was open to the Chief Magistrate to find beyond reasonable doubt that the appellant's offending was undertaken in the context of and formed part of organised criminal activities. The inference of that fact was so overwhelming such that it was the only reasonable and rational inference available on the uncontested facts.[18] On the basis of what was put forward in mitigation, the appellant's motivation was financial gain. Possession of $50,000 hidden in a secret compartment in a car indicates planned involvement in criminal conduct. Taken with the fact that the appellant was motivated by financial gain, and the other circumstances referred to earlier, I have no hesitation in concluding that the appellant was in possession of the $50,000 in cash because he was involved in organised criminal activity and that the opportunity for him to come to be in possession of the handgun arose because of his involvement in such activity.
Appellant's personal circumstances
[18] See Law v The State Western Australia [2009] WASCA 193 [38]; Bees v The State Western Australia [2017] WASCA 202 [55].
The appellant was 25 years of age at the time he was sentenced. The appellant is in a stable de facto relationship. The appellant's partner has a health issue and the appellant provides her with support. At the time of the offending the appellant's only previous conviction related to a graffiti offence for which he received a spent conviction.
The appellant's parents separated when he was two years old. The appellant resided with his mother until he was 18 years of age, but maintained contact with his father. At the time of offending the appellant suffered from ADHD but was not suffering any illness which impaired his mental state or capacity.
The appellant's treating psychiatrist, Dr O'Daly, described the appellant as being 'very anxious, upset at himself and extremely remorseful' and as being 'very unlikely to reoffend in the future'.
The appellant is fortunate in having the support of his partner and his parents, all of whom provided statements to the court and are supportive of him. Both the appellant's parents described the difficulties the appellant had experienced as a child and young man with behavioural issues, anxiety and depression. The appellant has experienced difficulty in obtaining regular employment but has assisted his father in his small business. The appellant's plea in mitigation was supported by character references from friends speaking to the appellant's character and his remorse and the support in the community that was available to the appellant if he received a sentences other than a term of immediate imprisonment.
Manifest excess analysis and disposition
The appellant committed serious offences in the context of organised criminal activity.
The primary mitigation available to the appellant was limited to his expressed remorse, the support he had from family and friends, which was considerable and reflected positively on his character, and his guilty plea. The fact that the appellant was a relatively young man who had experienced some psychological difficulties provided some mitigation but he had reached the age where youth was no longer a significant mitigating factor.
There is some difficulty in accepting the submission that the appellant was naïve and gullible in light of the views expressed by both the appellant's mother and partner that the appellant committed the offences for financial gain. Moreover, as the Chief Magistrate observed, there was no reasonable explanation for possession of $50,000 hidden in a concealed compartment in a car and there is no reason why anyone should have a loaded firearm under their bed.
Offences relating to the possession of unlicensed firearms are offences where general deterrence is a major sentencing consideration and personal circumstances play a lesser role.[19] As noted earlier, the fact that the appellant was in possession of a handgun makes the offence more serious. Handguns can be concealed easily and are therefore a weapon of choice for those involved in criminal activities and for those who intend to use firearms for violence. Even if one accepts that the appellant did not have a violent nature and that he had no intention of using the handgun for violence, the fact that it was loaded under his bed and was capable of being used makes the offending more serious.
[19] Sakhie v The State of Western Australia [2017] WASCA 103 [29]; Stone v The State of Western Australia [2010] WASCA 80.
General deterrence is also required in the context of possession of unlawfully obtained property.
I was not persuaded that the sentences imposed by the Chief Magistrate were such that an error of principle may be inferred and for that reason dismissed the application for leave to appeal in respect of ground 1.
Further considerations on ground 1
Although a ground of appeal that alleges manifest excess rests upon establishing the implication of error from the sentence itself, the appellant's grounds asserted a number of express errors. In deference to the submissions of counsel, I will express my views on these alleged express errors comparatively briefly.
The appellant contends that the Chief Magistrate erred by drawing an inference that the offending was aggravated by the appellant being in possession of the firearm under count 1 in order to protect the money which is the subject of count 2. Although no such finding was recorded in the Chief Magistrate's sentencing remarks, the appellant relies on the following exchange between the Chief Magistrate and the appellant's counsel in the course of the plea in mitigation to support the contention that the magistrate made such a finding:[20]
MR NIGAM: Importantly in relation to the circumstances of the offending, your Honour, from the papers, I'm sure, find that the firearm itself was not going to be used for any nefarious purpose. Shooting as a hobby ‑ ‑ ‑
HIS HONOUR: Well, how can I find that?
NIGAM, MR: Well, because the evidence is in the papers - this is through his mother - and then through the candid interviews that he has done with the authors of the reports, including his treating psych and the referees, that he shoots as a hobby. And your Honour will note there's a photo there of him - and that's before he's charged - at Lone Ranges.
HIS HONOUR: Well, it could be anywhere.
NIGAM, MR: Well, I'm submitting it is from Lone Ranges and it predates the time of his arrest, and this is at a shooting hobby club, as it were.
HIS HONOUR: And why wouldn't I - why wouldn't anyone reach the conclusion that if you've got $50,000 you might not have a firearm to look after it. And why is he not - if he has got a hobby in firearms, why doesn't he belong to a pistol club?
NIGAM, MR: Well, exactly, and I think your Honour again, on the papers, will be convinced that he has a high level of acquired insight and remorse and he understands there are very good reasons why in Western Australia, and in the nation generally, that firearms are the subject of very strict compliance and regulation for good reason, and he understands that.
And it was very, very foolish of him to think that, 'Look, it's okay to have this firearm at home because I like to hobby shoot', or there's something cool about having it. There's no evidence before your Honour that, of course - and traditionally with matters such as these from time to time your Honour will have some sort of intercepted telephone calls or text messages or something that would kind of be the glue that brings the - - -
[20] Sentencing ts, 4 - 5.
It is, however, important to recall that the appellant's counsel raised the circumstances in which the appellant possessed the firearm in mitigation. It was the appellant who asserted that the offence should be mitigated by the fact that the firearm was not possessed for any 'nefarious purpose' and that, rather, the appellant was interested in hobby shooting.
The principles relevant to this submission were outlined by Martin CJ, in The State of Western Australia v JWRL (a child) as follows:[21]
The party asserting a disputed fact relevant to sentence carries the onus of proving that fact. If the fact is asserted by the State and is said to be an aggravating circumstance, the State is obliged to prove the fact beyond reasonable doubt. If the fact is asserted on behalf of the offender, and is said to be a mitigating circumstance, the offender carries the burden of proving the fact on the balance of probabilities: see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25] and [27]. If the party asserting a contested fact fails to discharge the burden of proving that fact, it is not taken into account for the purposes of sentence: see R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32]. (emphasis supplied)
[21] The State of Western Australia v JWRL (a child) [2010] WASCA 179 [10].
As the respondent submitted, it cannot be said that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt.[22] As stated by French CJ, Bell, Keane and Nettle JJ in Filippou v The Queen,[23] at [64]:
If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known.
[22] R v Olbrich (1999) 199 CLR 270, 280-281 [24].
[23] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47.
As I have already observed, it was clear in this case that the appellant asserted that he possessed the firearm for recreational purposes but the Chief Magistrate did not accept this assertion. It does not follow that unless the Chief Magistrate was satisfied beyond any reasonable doubt that the firearm was possessed for some nefarious purpose, that the Chief Magistrate was bound to sentence the appellant on the basis that his assertion was made out.
The appellant also submits that the Chief Magistrate erred by placing undue weight on the following matters which the appellant contends were irrelevant to the offending:
(1)on 26 April 2018, the appellant was observed driving a Ford Laser motor vehicle to an address in Wanneroo which was later observed to have a second Mazda 3 vehicle drive alongside it in convoy;
(2)more than three weeks later on 17 May 2018, that second Mazda 3 was stopped and found to contain a hidden compartment with $20,000 cash secreted in it;
(3)more than a month later, on 29 May 2018, a search warrant was executed at the same Wanneroo address where PVC pipes were found which the learned Magistrate accepted were of the type used by drug dealers to bury drugs.
The difficulty with this submission is that at the sentencing hearing the appellant's counsel relied on written submissions that recorded that the appellant did not cavil with the statement of material facts relied upon by the prosecution that included the matters which the appellant now contends are irrelevant.
It was further submitted that the Chief Magistrate erred in finding that the appellant's offending had 'all of the indicia of organised crime'. I have dealt with the issue of whether the appellant's offending formed part of organised criminal activities above and there is no need to repeat what I have said.
Finally, the appellant submitted that the Chief Magistrate erred in allowing only a 10% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) in circumstances where it was contended that pleas of guilty were entered at the first hearing following the conclusion of negotiations with the prosecution and where the appellant showed insight into and remorse for the offending.
The learned magistrate's reasons for imposing a 10% discount were as follows:
You've pleaded guilty to these charges that was following, having initially entered a plea of not guilty and the matter having gone to trial allocation. Accordingly, for the purposes of section 9AA, I will allow only a 10 per cent discount for the plea at that point.
The appellant contends that:
(a)the full 25% discount was available under s 9AA;
(b)a proper assessment of the stage at which the appellant entered pleas of 'guilty' to the charges (being at the first hearing subsequent to the conclusion of negotiations with the prosecution) would result in a discount of sentence greater than 10%; and
(c)the learned magistrate ought to have imposed a greater discount.
The respondent submits that:
(a)the sentencing transcript does not indicate that any submissions were made by defence counsel to the Chief Magistrate that the plea had been entered after the conclusion of negotiations with the prosecution;
(b)the negotiations referred to by the appellant related to and resulted in the removal of an additional charge with no changed to the charges to which the appellant had pleaded guilty and consequently the appellant could have entered guilty pleas to the which he pleaded guilty notwithstanding the negotiations in relation to the removed charge;
(c)while a plea at the first reasonable opportunity enlivens the power to grant the maximum discount of 25%, the sentencing court has a discretion that is informed by the considerations in s 9AA(2); and
(d)in any event, the 25% discount is discretionary and in considering all of the circumstances (for example, the very strong case against the appellant in which he was 'caught red handed') a discount of something less than 25% is appropriate.
The relevant provisions of s 9AA are as follows:
9AA. Plea of guilty, sentence may be reduced in case of
…
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a) by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
In Mussarri v The State of Western Australia,[24] Buss P stated the following:
Section 9AA(2) exhaustively states the factors or criteria (apart from the timing of the guilty plea) which may be taken into account in determining whether a discount should be given under s 9AA for a guilty plea and, if so, the extent of the discount.
Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA.
However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by, for example, any genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors, subjective to the offender, of the kind I have identified.
The 'benefits to the State … resulting from a plea of guilty', for the purposes of s 9AA, are those benefits which the State directly or indirectly receives or derives as a consequence of the offender entering a guilty plea. The term 'the State' in s 9AA has a broad connotation.
The strength of the State's case is a relevant factor in considering the extent of any discount to be given under s 9AA for a guilty plea. (citations omitted)
[24] Mussarri v The State of Western Australia [2018] WASCA 46 [48] - [52].
In Gobetti v The State of Western Australia,[25] the court stated:
It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless.
[25] Gobetti v The State of Western Australia [2017] WASCA 130 [79].
Although the matter did not proceed to trial, the appellant did not plead guilty to the offences at the earliest available opportunity. After pleading not guilty on 18 July 2018, the appellant had two opportunities to plead guilty to the charges, being at trial allocation date hearings on 25 September 2018 and 6 November 2018 (during the latter of which the guilty plea was entered). Views may differ as to what discount should be allowed for guilty pleas in a particular case. As the Chief Magistrate observed the guilty pleas were not entered at the earliest date and no explanation was provided to his Honour why that was so. Moreover, the evidence against the appellant was overwhelming. In my view, the fact that the Chief Magistrate allowed a discount of 10% is not an error of principle that warrants appellate intervention.
Ground 2 - sentence should have been suspended - analysis and disposition
Section 39(2) of the Sentencing Act 1995 (WA) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding options are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. Accordingly, a court must not order immediate imprisonment unless positively satisfied that suspension of the term of imprisonment is not appropriate.[26]
[26] Hope v The State of Western Australia [2019] WASCA 12 [64].
The considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender.[27]
[27] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].
In Hope v The State of Western Australia, Buss P and Mazza JA observed at [62] - [63] that:[28]
In determining whether or not to exercise the power to suspend a term of imprisonment, the court must look at all matters relevant to the circumstances of the offence, and the personal circumstances of the offender.
The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation or mercy. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation or mercy. Even if a term of imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors. (emphasis supplied)
[28] Hope v The State of Western Australia [62] - [63].
However, as McLure P, with whom Owen and Wheeler JJA agreed, observed in Cartwright v The State of Western Australia:[29]
[T]he sentencing discretion is not be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing.
[29] Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10].
A suspended sentence will often have a limited effect on general deterrence.[30] As was noted in relation to suspended sentences by Parker J, with whom Wallwork and McKechnie JJ agreed, in Latham v The Queen at [32] - [34]:[31]
It is understandable, therefore, that the community's perception and the reality of this sentencing option is quite different from that of a sentence of a term of imprisonment to be served immediately. As was observed by Kirby J in Dinsdale v The Queen (supra) at [74] 'The [c]onceptual [i]ncongruity involved in this form of sentence has been criticised' and 'It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all'.
A suspended sentence remains, nevertheless, a valuable sentencing option in some cases and, although there are no confined or restricted circumstances in which the option is available and the full range of sentencing considerations are relevant to its appropriateness or inappropriateness in a particular case, it remains a sentence more often likely to commend itself as appropriate where considerations justifying special leniency or the special encouragement of rehabilitation are strong.
While it should not generally be concluded that the imposition of a suspended term of imprisonment will have little or no general deterrent value, the nature of this punishment involves inherent limitations on its value as a general deterrent. Where the conduct of the offender is serious and warrants imprisonment and a clear general deterrent element in the sentence is called for, a suspended term of imprisonment may well be considered inappropriate. That was the view taken by his Honour in this case. It cannot be concluded, in this respect, that the exercise of his discretion was faulty.
[30] Dao v The Queen (Unreported, CCA SCt of WA, Library No 990015, 22 January 1999), 6.
[31] Latham v The Queen [2000] WASCA 338.
The appellant's counsel placed some reliance upon the decision of Hall J in Ikin v Weir.[32] In that case the appellant was sentenced to a term of 7 months immediate imprisonment after a handgun was discovered in his vehicle by police during a traffic stop. The handgun was not loaded and, after a search of the appellant's home, no ammunition was found to be in the appellant's possession. Hall J upheld the appeal and ordered that the term of immediate imprisonment be set aside and a term of imprisonment of 6 months 2 weeks be imposed, suspended for 8 months. In doing so, his Honour noted that a sentence of imprisonment to be served cannot be imposed unless it is possible to exclude a suspended sentence. His Honour also stated at [32] that:
In all of the circumstances of this case in my view it was not possible to exclude a suspended sentence. As serious as firearms offences are, this was not an offence that was of a more serious type. There were significant mitigating factors in the appellant's favour. The seriousness of the charge could be adequately reflected in a suspended sentence.
[32] Ikin v Weir [2015] WASC 228.
The circumstances in Ikin have some similarities to the present case in that the appellant in both cases was found to be in possession of a handgun in circumstances where they had no previous firearms offences and a relatively minor criminal history. As noted by Hall J, however, in the paragraph reproduced above, the offence in Ikin was not in the serious category of offences and there were significant mitigating factors including that the appellant made full admissions and allowed the police to search his home and, importantly, the gun was not loaded and there was no suggestion that the appellant had ammunition in his possession.
Hall J also importantly observed, while contrasting the case before him with the decisions in Stjepic v Christian[33] and Malatesta v Pinch,[34] that:[35]
The offending in Stjepic was clearly more serious. The fact that the offender in that case had bullets and thereby the means to use the unlawfully possessed weapon was an important distinguishing factor. In Stjepic the offender claimed to be in possession of the weapon for self-defence and thereby accepted that he had some intention to use it should the need arise. The criminality in the case of the appellant was substantially less than that of Stjepic. He did not have bullets either with the gun or at his premises. It was accepted by the respondent on the appeal that the appellant had possessed the handgun for only a very short time.
…
Unlike Malatesta, the appellant had not acquired the firearm in suspicious circumstances and did not have ammunition for the weapon.
[33] Stjepic v Christian [2005] WASC 193.
[34] Malatesta v Pinch [2001] WASCA 224.
[35] Ikin v Weir [27] - [29].
In the present case, the appellant's offending was more serious and the appellant did not have the benefit of the mitigating factors available to the appellant in Ikin.
In my judgment the criminality involved in the appellant's offending was such that it was possible for the Chief Magistrate to exclude the imposition of a suspended term of imprisonment as an appropriate sentencing disposition. For that reason, I refused leave in respect of ground 2.
As leave to appeal was refused on grounds 1 and 2, this appeal was taken to be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Associate/Orderly to the Honourable Justice Tottle23 MAY 2019
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