Francis v Firkins - [2008] WASC 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FRANCIS -v- FIRKINS [2008] WASC 189

CORAM: JOHNSON J

HEARD :4 JUNE 2008

DELIVERED : 2 SEPTEMBER 2008

FILE NO/S: SJA 1012 of 2008

BETWEEN: ROBIN ALAN FRANCIS
Appellant
AND
JAMES BENJAMIN WILLIAM FIRKINS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :PE 36164 of 2007

Catchwords:

Appeal against sentence of imprisonment - Transport of dangerous goods - Deliberate breach - Belief that product could be transported by air - Relevance of state of mind to sentence - Adequacy of reasons for decision - Fines

Legislation:

Civil Aviation Act 1988 (Cth)
Crimes Act 1914 (Cth)

Result:

Appeal allowed
Order appealed from set aside
Fine imposed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC
Respondent: Mr D W L Renton

Solicitors:

Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (Cth)

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

Crannsen v The Queen (1936) 55 CLR 509
Harling v Hall (1997) 94 A Crim R 437
Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435
Heathcote v King [2002] WASCA 1
R v Tait (1979) 46 FLR 386
Wilhelm (1988) 39 A Crim R 469

JOHNSON J: The appellant was charged with consigning dangerous goods contrary to s 23(2) of the Civil Aviation Act1988 (Cth). He pleaded guilty and was sentenced to a 9 month term of imprisonment, suspended, and was released forthwith upon entering into a recognisance in the amount of $1,000 to be of good behaviour for two years under s 21B of the Crimes Act 1914 (Cth).
The appellant appeals against the penalty imposed on a number of bases including that the sentence was manifestly excessive, that the adequacy of a fine was not considered nor were alternative non‑custodial dispositions, and that the magistrate failed to give adequate reasons for failing to impose a fine.

Circumstances of the offence

At the time of the offence the appellant was employed as a warehouse supervisor for Odberg Nominees Pty Ltd trading as Western Biomedical, a company involved in the import and shipment of medical products to locations within Australia. On 30 May 2006 the appellant, in the course of his employment, attempted to consign by air freight three cartons of a product called Steris 20. Steris 20 is a sterilant concentrate used to sterilise hospital instruments. It is a dangerous good, about which no issue was taken, and it was therefore necessary for there to be compliance with the laws that regulate the transport of dangerous goods by air. The cartons were accompanied by an already completed consignment note in which, as required by law, there was a declaration that the contents were dangerous goods.
The cartons were collected from Western Biomedical in Subiaco by TNT couriers and taken to the Australian Air Express depot at Perth Domestic Airport for loading and transport by air to Nickol Bay Hospital in Karratha, where the goods were required urgently. It was known to the appellant that the cartons were being consigned on a passenger flight to Karratha.
Prior to loading, an Australian Air Express console operator noticed that the shipper's declaration accompanying the cartons from Western Biomedical was the incorrect documentation for air transport. The cartons were rejected and returned to the TNT depot where a customer service representative from TNT telephoned Western Biomedical, advised the consignment was being returned and explained the reason.
According to the TNT representative, when provided with the relevant information, the appellant said something to the effect that if he had simply packed the cartons in one single unmarked carton and not declared them as dangerous goods, the carton would not have been intercepted. The TNT representative's recorded note of his or her reaction to this statement was, 'A bit dodgy'. There was no indication whether this was a reference to packaging dangerous goods in such a way or a reference to the appellant.
On the return of the cartons the appellant repackaged them for consignment by air freight. He did so largely in accordance with his comment to the TNT representative. He repackaged the three cartons of Steris 20 within a larger Terumo syringes carton (the large carton). As a result, the large carton did not indicate the true nature of its contents and it did not contain the standard identification for corrosive goods which appears on the Steris 20 cartons. Neither did the appellant affix hazard labels to the large carton. The only protective measure utilised by the appellant was to place the Steris 20 inside protective plastic bags. On the consignment notice, the appellant ticked the dangerous goods declaration in the negative. In repackaging the Steris 20 in this manner and in failing to declare that the large carton contained dangerous goods, the appellant attempted to consign dangerous goods by air other than in accordance with the regulations.
Later that day, another TNT driver collected a consignment from Western Biomedical for transport to Karratha. The appellant carried the large carton to the TNT van where the driver checked and scanned the paperwork and applied a sticker to the top of the large carton to identify type of transport and destination. In accordance with the paperwork provided to the TNT driver, the sticker included the statement 'does not contain dangerous goods'.
At the TNT depot, the driver who had earlier that day returned the original packages to TNT from the airport came across the large carton, noticed it was from Western Biomedical to Karratha and the statement that it did not contain dangerous goods and took the large carton to the dangerous goods holding area where the operations manager was notified. A decision was made to open the large carton and it was found to contain three smaller cartons similar to the earlier rejected cartons. Each of the three smaller cartons displayed labels indicating 'Class 8 corrosives and subclass 5.2 organic peroxide' and Dangerous Goods Hazard labels with each box identifying the contents as Steris 20. Those present when the large carton was opened noted a pungent odour.
On the following day a dangerous goods inspector took possession of the large carton. When approached by the investigator, the appellant admitted that as warehouse manager he was solely responsible for the shipment and had made some silly comment. He further stated that his employer had already indicated that, whilst they would support him through an investigation, it was his own actions which resulted in the large carton being consigned illegally.
The maximum available penalty for the offence of consigning dangerous goods contrary to s 23(2) of the Civil Aviation Act is 7 years imprisonment. On summary disposition, the maximum penalty is 2 years imprisonment and $13,200.
The appellant was 53 years old at the time of the offence and had no previous criminal convictions of any type.

Submissions on Sentence

When the appellant pleaded guilty on 3 August 2007 the court was told, in addition to the above facts, that the appellant, having obtained legal advice, declined to participate in a videotaped record of interview. The court was also advised that Steris 20 has a shelf life of six months. At manufacture the goods are packed into a vented container and, therefore, the packaging used by the appellant did not comply with the ICAO technical instructions for the safe transport of dangerous goods by air.
The court was also told that US and Canadian authorities have given approval for this product to be shipped within the US and Canada by air but only on US or Canadian registered cargo only aircraft. It was also said that, in Australia, goods of this type are not approved for transport as freight on aircraft at all. Apparently the goods are currently imported into Sydney by ship from the USA and must be transported by road to other places.
The court was told that there are no cargo only aircraft services from Perth to Karratha to carry dangerous goods. Consequently, it was the usual practice to send such goods by road; but in order to transport the goods, at all, they must be declared as dangerous goods with the correct documentation and hazard labelling attached. Therefore, solely because the TNT driver who returned the original packages was both observant and diligent in his duties, the general public were not actually put at risk by the appellant's blatant disregard for the regulations. Nevertheless, that was not as a result of any conduct on the appellant's part.
The Commonwealth's attitude to penalty was that the appellant should be imprisoned for the offence.
On 3 August 2007 a number of matters were put to the court on the appellant's behalf. Counsel for the appellant at first instance handed to the magistrate written submissions on sentence. Those submissions were not provided to this court, although the transcript of the hearing on 3 August 2007 was available.
Whilst conceding the potential risk involved, it was emphasised that the goods were never actually transported by air. The magistrate's reaction to that submission was much the same as indicated above; that it was not as a result of the appellant's actions.
It was said that the appellant simply consigned the goods without filling out the appropriate forms because of the sense of urgency conveyed to him by his employer. According to the appellant, it was 30 May 2006 and he was told that the goods were required for operations at the Nickol Bay Hospital in Karratha on 1 June. The hospital had contacted Western Biomedical and made urgent requests for the Steris 20 to be sent.
The appellant attempted to send the goods by air freight at the earlier time with a normal docket. It was said that he was completely ignorant of the processes that are required to transport such goods. It was further said that his conduct after the goods were first rejected, in concealing that they were dangerous goods, was 'foolish' and the essence of his offending did not involve a malicious or callous disregard for the health and safety of others. It was said to be more out of a sense of misguided judgment. It was said that, at the time, the appellant was probably not aware of the level of danger and inappropriateness involved in his conduct and cut corners out of a sense of altruism which was essentially misguided. However, it must be said that the act of repackaging the goods without the appropriate labels was a very deliberate act, carried out in circumstances where the appellant had already been told that even the amount of labelling he had initially provided was less than necessary.
Counsel for the appellant at first instance submitted that, after being approached by the investigators, the appellant had a full and frank discussion with them and made full admissions in relation to the matter, notwithstanding that he declined to participate in a record of interview. He was said to not only accept responsibility for the offence but also to be remorseful for what he had done.
Significantly, it was also said that, as a result of the offending, the appellant has undertaken training and the warehouse department at Western Biomedical have all undertaken training through Nationwide Training. A certificate of completion of that training was put before the court. This factor, taken together with the statement made on the appellant's behalf that he was not really aware of the level of danger and inappropriateness involved in his conduct, raises the question of the amount of training required of and given to employees of Western Biomedical prior to the offence.
Submissions were made to the effect that the appellant was highly regarded amongst his work colleagues and that, although serious, these offences occurred in the course of his employment and there was no profit motive or any conceivable advantage to the appellant. It was said he was merely trying to help the hospital so that its operations would go ahead on the next day. It was submitted that, in those circumstances, the objective criminality of the offence was towards the lower end of the scale and, in all the circumstances, a fine would be the appropriate disposition.
In support of the submission that a fine should be imposed, the appellant's financial circumstances were provided to the court. It was said that he had been employed by Western Biomedical for the last seven years and was on a salary of $45,000 per annum. References were produced to the court from the general manage and the financial manager of Western Biomedical indicating that the appellant is a valued employee of the organisation. The appellant is married with two children. His wife is employed on a part‑time basis as an enrolled nurse and earns approximately $28,000 per annum. The appellant's only financial liability is the mortgage on the home of $100,000. In the circumstances, it was submitted that the appellant was able to pay a modest fine.
Finally, it was said on behalf of the appellant that being involved in these proceedings has had a salutary effect on him and it was highly unlikely that he would reoffend. Counsel submitted that it had taught the appellant and the organisation that he works for that appropriate measures need to be put in place and they have been put in place together with appropriate training.
In the course of submissions made on the appellant's behalf it was said by his counsel, contrary to the Commonwealth's position on the issue, that the goods could be transported by air if they were consigned properly. As there was a clear dispute between the parties on the issue, an adjournment was granted for the Civil Aviation Authority to provide a risk assessment which would identify how serious was the threat from transporting this type of dangerous good.
On 13 September 2007, further submissions were made with respect to a statement from a Civil Aviation Safety Authority (CASA) dangerous goods safety auditor, Mr Firkins, and a report the appellant's counsel described as an 'independent' report obtained by the defence from a Richard Langham.
The Commonwealth submitted that, in Australia, goods of this type are not approved for transport as freight on aircraft at all. Counsel for the appellant maintained the position put to the court at the time the plea was taken that it was always the understanding of the appellant and his employers that Steris 20 could travel by air. It was said that only on coming to court was it asserted that Steris 20 is a dangerous good that under no circumstances may be transported by air freight. Counsel submitted that under some circumstances this particular dangerous good does travel by air and the offender believed that it was able to travel by air.
In that regard, counsel reminded the magistrate of the facts pertaining to the rejection of the initial attempt to transport the goods. The appellant was told that the goods were rejected because they did not have the appropriate consignment note or documentation required for them to be carried on the plane. The appellant's response, although conceded to be entirely inappropriate, was to conceal the goods and put a normal consignment note on the carton so that it would travel. Counsel emphasised to the court that the appellant's understanding, following the rejection of the packages, was not that the goods were unable to be transported by air, simply that the documentation was not correct for air transport. Consequently, when the appellant concealed the goods, he was under the apprehension that he was able to send these goods by air freight with the 'correct documentation'. Counsel submitted that it had always been the understanding of the appellant and his employer that the goods could travel by air. Counsel further submitted that the appellant has since received training and is now aware of the correct circumstances. Consequently, the appellant's explanation that the goods were urgently required by the hospital and that he concealed the goods so there would be no trouble sending them by plane, must be considered in the context of a belief that the goods could be sent by air. That is, the appellant did not show a complete disregard for the risks involved in transporting the dangerous goods by air, he believed that the goods could be sent by air provided he had the correct documentation.
The magistrate's response to this submission was that it sounded 'like Pinocchio to me'. Counsel for the appellant replied by advising that goods of this type had been returned by air to Western Biomedical in the past and a trial of the issues was suggested. The magistrate disagreed and said:
The gravamen of the offence is not getting permission, not alerting authorities, not taking proper steps to assure the regulations are not complied with. That is his job.
The magistrate also added the following comment:
TNT and anybody else can't say, 'Stuff everybody else. We want to get the freight moving. We are going to move it how we want to move it.'
However, counsel for the appellant persisted with the point and advised the court that the resolutions now being put forward by CASA in terms of how this product can travel by air have only come about after the fact. Counsel emphasised that the understanding of the appellant and his employer had always been that the product could travel by air. Critically, counsel submitted that the appellant's understanding or state of mind at the time of the offence was relevant to the magistrate's determination of the criminality of his offending. This determination arose in the context of the submission originally made by the Commonwealth that there were no circumstances in which the product could travel by air.
The report of Mr Langham described the potential risk that goods such as Steris 20 could cause if transported by air. Mr Langham indicated that the goods are packaged in such a way as to protect the product and refers to the fact that some aspect of the packaging ensures the stability of the product. Mr Langham also suggested that Steris 20 is stable at room temperature under normal storage and normal handling conditions and as long as the temperature is not greater than 55 degrees Celsius. It was conceded that this information all related to cargo only transport.
In all the circumstances, the appellant's counsel submitted that a term of imprisonment was not an appropriate sentencing disposition. It was said that the offending was in a very different category and a heavy, if not modest, fine should be imposed.
Counsel for the Commonwealth referred to perceived deficiencies in the submissions made on behalf of the appellant which were said not to be supported by the evidence. One concern expressed was that repackaging of the Steris 20 cartons meant that instructions on the cartons such as those directing the correct way up as well as the hazard labelling, were unable to be seen and would not be followed. Counsel for the Commonwealth also referred to Mr Firkins' statement where he said that a major issue with this product and its package design for transport appears to be associated with heat and/or exposure to flames as the vented product will gradually release a vapour which could support burning and provides a vinegar‑like smell. Counsel then referred to Mr Langham's report where it refers to the chemical formula of Steris 20 and states:
This sort of acid is reported to have a sharp, pungent odour. Exposure to eyes, nose and other mucous membranes may induce tears, irritation, dizziness and nausea. Direct contact may cause chemical burns.
Counsel for the Commonwealth conceded that Mr Firkins' comments presented a conservative or worst case scenario and Mr Firkins indicated that the prospect of fire, the cause of the adverse outcomes identified as potential risks, was the least likely of the scenarios which might occur.

To dispute the proposition put by the Commonwealth that Steris 20 could not be transported by air, the magistrate was made aware by counsel for the appellant of the circumstances pertaining to an occasion on which CASA had authorised the air transport of Steris 20. It was pointed out that the occasion was in February of 2007 when permission was given by CASA to an application by Steris to transport the product by air. However, counsel for the Commonwealth pointed out that, because there had been a blizzard in North America, medical supplies in Australia had reached a 10‑day minimum and CASA carried out a risk assessment and decided that, because the shipping of this product was delayed, a US cargo only aircraft would be authorised to fly to Australia but not within Australia.
It was also said on behalf of the Commonwealth that Mr Firkins was, at the time, assessing an application for Steris 20 to be transported by air. His evidence was that he had not authorised the product to be flown in Australia and he would not countenance allowing the product to be transported by air within Australia, other than in extreme circumstances. Even if Steris' application were allowed, the transport would strictly be by cargo only aircraft. Mr Firkins said in his statement that if there was an urgent situation, for example, an urgent request for desperately needed medical supplies, he might consider authorising a cargo aircraft. However, the product would then be transported with the appropriate labelling and packaging. The aircraft pilot would also be made aware of the type of product being carried. Whilst he conceded that the defence was correct in saying that there is no absolute prohibition on transporting this product by air, the whole point of the scheme is for dangerous goods to be appropriately labelled so that those potentially affected know what they are dealing with, know how to handle the product appropriately and can make a proper risk assessment.
That may be so, but I understand the point being made was that there was no statutory prohibition on the transport of the product by air which makes the appellant's explanation of his understanding, and that of his employer, more credible.

The magistrate's sentencing comments

In his sentencing comments the magistrate noted that the Steris 20 product was not being consigned on a cargo flight and there was, in fact, no permission to transport the goods on a passenger flight. The magistrate then summarised the circumstances in which the Steris 20 cartons were initially rejected. He said:
For one reason or another the shipment was sent back to the depot after they were consigned because they couldn't take them on the plane.
This was the only way in which the magistrate dealt with the reason why the Steris 20 packages had been rejected and the issue of the appellant's knowledge of the reasons and hence his state of mind at the time of the offence. Not only did he not identify the explanation given for the rejection of the cartons, evidence not disputed by the parties, he substituted for the actual explanation the proposition that the product 'couldn't be taken on the plane'. Consequently, the magistrate never identified the appellant's state of mind or state of knowledge at the relevant time. Further, in my view, by referring to the issue in this manner the magistrate was confirming the position he enunciated during submissions which was that the issue was of no relevance. As noted above, in the course of his comments the magistrate identified the gravamen of the offence in circumstances where he implicitly negated the relevance of the appellant's state of mind. In my opinion, both issues were relevant and when considering the appropriate penalty to impose, the failure to consider the appellant's state of mind manifests error.
Reference was made by the magistrate to the absence of the warning symbols which were no longer visible because of the way in which the product had been repackaged. Apart from the position of the address labels there was no indication of the need to avoid inverting the package which did, however, include a 'fragile' symbol. However, the three boxes containing 20 Steris single use containers were shown to have been protected from shock by a number of air-filled plastic bags.
The magistrate also noted that the product ought not to have been consigned and, particularly, not consigned on a commercial passenger flight where the crew and passengers, who were entitled to be protected from such items, would be entirely unaware of the presence of the product.
The magistrate referred to that part of the report of Mr Langham, whom he described as a 'top level scientist', where he describes Steris 20 as a paracetic acid and a strong oxidiser which is corrosive and supports combustion. No mention was made in this context of Mr Firkins' comment that fire was the least likely of the worst case scenarios referred to in his statement. Reference was also made by the magistrate to the comment that the product was stable at room temperature under normal storage and handling conditions. The magistrate described the temperature of a plane in flight and on the tarmac as a bit of an unknown. I note that it would not be appropriate to rely too heavily on the potential risk of fire as the sort of risk which resulted from the appellant's actions in attempting to conceal the transport of dangerous goods by air, because the relevant temperature was unknown and the risk of fire was conceded to be the least likely of the conservative scenarios placed before the court. The magistrate observed that CASA had to look at the worst case scenario because the legislation is protective. I accept that protection of the public is the purpose behind the legislation. I also accept that, in determining what, restrictions if any should apply to the transport of dangerous goods, all relevant risks must be considered. However, it doesn't automatically follow that, in determining the appropriate sentence for breaching such restrictions, the 'worst case scenario' should be taken as the likely or probable outcome of the conduct.
In his sentencing comments the magistrate also said that it was apparent from the information before him that dangerous goods may only be carried on cargo aircraft. Dangerous goods can only be consigned by passenger aircraft where permission has been granted. Counsel for the Commonwealth explained that permission is granted in rare situations, usually of emergency, and the permission document is to accompany the consignment.
Later in his reasons the magistrate stressed the importance of the transporter being aware that dangerous goods are being dealt with so that appropriate risk assessments can be made. He also made it clear that the appellant's motives and ignorance of his obligations were not relevant. He said:
What the accused did was take away from any body in a responsible position the power – or tried to, because he got discovered – the power to make decisions about whether or not those goods would be taken, and that's the offence. That's where he has committed the offence and he is highly culpable in my view because he made his own decision. 'I feel the goods should go up north so they are going to go' and he made that – and he did that deliberately. If he did it out of ignorance, too bad. He shouldn't have.
That does not ameliorate the serious conduct that he engaged in and I view this as not a minor offence and I view this as a very serious one. I salute CASA, et cetera, for adopting a conservative approach. Now, as I say, that's the gravamen of the offence, not the fact that it could have just blown up in the hold. We do not know about that. It probably wouldn't have. Could have done.
As I say, the offence is the consignment of it and it deprived the appropriate authorities of making proper decisions about whether it should go or not. I think it's a very serious matter.
In my opinion, it is evident from these comments that the magistrate, whilst properly acknowledging the significance of the potential risk rather than the actual risk, was also underlining his previously expressed view that the appellant's understanding of whether the goods could be transported by air was not an issue which was relevant to sentence. In ignoring the issue, the magistrate found the conduct to be a very serious matter deserving of imprisonment, although not to be immediately served. In my view, the appellant's understanding makes his conduct less serious than that of someone who knew that, because of its nature, the product could not safely be transported by air, or someone who did not care one way or the other. In one case the person is ignoring the risk, in the second the person is unaware of it. In my view, there is a lesser degree of criminality in the case of the person who is unaware of the risk. It was for the magistrate to consider whether, in circumstances where the appellant was unaware of the risk, imprisonment was the only appropriate option. Ignorance of the law is not a defence to this or any other charge, but ignorance of the risk can be relevant to sentence.
The magistrate accepted for sentencing purposes that the appellant meant no harm, and that he was trying to get the product up to the hospital to help out, but still observed that what the appellant did was 'totally out of order'. The magistrate then expressed the view that there was a need more for general deterrence rather than specific deterrence. The magistrate stated:
We can't have people cheating the system and potentially endangering people on public transport such as aircraft like this. I don't see it at the lower end of the scale but in terms of Mr Francis' personal circumstances I don't think his antecedents require immediate imprisonment but in my view he does require to be imprisoned on a suspended basis.

Grounds of Appeal

1.The learned magistrate erred by failing to consider the adequacy of a fine as an alternative punishment for the offence in question.
2.The learned magistrate erred in failing to give any or any adequate reasons for the non‑imposition of a fine.
3.The learned magistrate erred by failing to consider whether there was any possible alternative sanction than imprisonment that would be appropriate in the circumstances of the case.
4.The sentence of suspended imprisonment was manifestly excessive in all the circumstances of the case and failed to adequately reflect:
(a)the significant mitigating circumstances in which the offence was committed;
(b)the fact that the goods were capable of air transport and the danger involved was potential rather than actual;
(c)the fact that the goods were not in fact transported, and no‑one was actually endangered;
(d)the early plea of guilty; and
(e)the antecedents of the offender.

It seems to me that grounds 2 and 3 address substantially the same issue; that the magistrate failed to consider any alternative sanction other than imprisonment as evidenced by his failure to refer to any other sanctions when making his sentencing comments. Consequently, I propose to deal with these two grounds of appeal together.
The final ground, as argued, was not simply that the penalty of suspended imprisonment was excessive but that the mitigating factors particularised in the ground were such as to reduce the criminality of the conduct to the point where a fine would be appropriate and hence imprisonment was not the only appropriate outcome. My understanding of the first ground of appeal, as argued, is that the magistrate erred in failing to consider a fine to be the appropriate punishment for the offence. Again, I will deal with these grounds together.

Relevant sentencing provisions

Before addressing the grounds of appeal it is necessary to consider the relevant principles which apply when sentencing for a breach of the Civil Aviation Act, which is Commonwealth legislation. When sentencing for a breach of the laws of the Commonwealth, the court must have regard to the general sentencing principles contained in pt 1B div 2 of the Crimes Act. Section 16A sets out the matters to which the court is to have regard when passing sentence. Section 16A (2) contains the fundamental principle that a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) refers to matters which, in addition to any other matters, the court must take into account when passing sentence. Those that apply to the circumstances of this case are the following:
i.the degree to which the person has shown contrition for the offence: s 16A(2)(f);
ii.the fact that the person pleaded guilty to the charge: s 16A(2)(g);
iii.the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence: s 16A(2)(h);
iv.the deterrent effect that any sentence under consideration may have on the person; s 16A(2)(j);
v.the need to ensure that the person is adequately punished for the offence: s 16A(2)(k);
vi.the character, antecedents, age, means and physical or mental condition of the person: s 21A(2)(m); and
vii.the prospect of rehabilitation of the person: s 16A(2)(n).
Of course, s 16A(2) is simply a statutory reflection of some of the common law principles of sentencing which are also enshrined in state legislation. The matters are stated not to be exhaustive.
Significantly, in the context of this case, under s 17A(1) of the Crimes Act a court is not entitled to pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. Section 17A(2)(i) provides that, where a court passes a sentence of imprisonment on a person for a federal offence the court shall state the reasons for its decision that no other sentence is appropriate.
Finally, s 16C specifically addresses fines. Section 16C(1) states that, before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account.

Grounds 2 and 3

As I have noted, the essence of these grounds of appeal are that the magistrate failed to consider any alternative sanction other than imprisonment, in particular, a fine, and failed to explain in his sentencing comments why non‑custodial options were inappropriate.
I have set out above the comments made by the magistrate in passing sentence on the appellant. It is apparent that the magistrate made no reference to a fine or any other non‑custodial disposition. What he did do was refer to the immediate effect of the appellant's action, including the fact that, as a result of the repackaging, there was a complete absence of any indications of the nature of the product or the requirements for the transport of the product. The exterior of the large carton displayed only the address and a fragile symbol. The only effort made to protect the product was to include air‑filled plastic bags. The magistrate also emphasised the fact that a significant effect of the repackaging was that anyone travelling by air with the large carton would be completely unaware of the presence of the product and, hence, would be unable to take appropriate action or make appropriate risk assessments.
The magistrate also referred to the nature of the risks involved in transporting this product by air which were before the court in the statement of Mr Firkins. The magistrate made reference to and clearly accepted the submission of the prosecution that the product could only be carried on cargo aircraft. Further, he accepted that it is only in rare situations of emergency, when permission is granted by the relevant authority, that the product may be transported by passenger aircraft.
It was also made plain in the magistrate's sentencing comments that he considered the conduct to be serious and the offence to be serious and not a minor matter. He further observed that he did not see that deliberately breaching the system and potentially endangering people on aircraft was at the lower end of the scale. In fact, the magistrate made repeated reference to the seriousness of the offence. He also stated that, in his view, there was a greater need for general deterrence than for specific deterrence.
In relation to the appellant's circumstances, the magistrate made it clear that he considered the appellant's conduct to be deliberate and, as I have noted, the fact that it may have been done out of ignorance to be of no relevance. However, he did accept for sentencing purposes that the appellant meant no harm and was trying to help the hospital by ensuring that the product reached its destination as soon as possible. The stated emphasis by the magistrate on general rather than specific deterrence would indicate that he considered the appellant was not likely to reoffend. The appellant's antecedents were considered to justify the order that the term of imprisonment not be immediately served.
On behalf of the appellant it is said that the magistrate was required to give reasons as to why a fine was not appropriate but that there is nothing in the magistrate's reasons to indicate that the adequacy of a severe fine was ever considered. Counsel for the Commonwealth emphasised that, consistent with the requirement under s 16A, the obligation was on the 'sentencer' to give sufficient reasons for the disposition imposed. Therefore, it is said that the question on appeal is whether the learned magistrate gave sufficient reasons for imposing what he considered to be an appropriate sentence in all the circumstances and not whether he gave sufficient reasons for each and every sentence which, by implication, he considered inappropriate.
In my view, the relevant obligation is set out in s 17A and under that provision the magistrate was not required to specifically state why a fine was inappropriate, provided that he explained why nothing other than imprisonment was appropriate. One can comply with the latter obligation without specifically stating why a fine is inappropriate.
On behalf of the appellant it was submitted that an appellant needs to be able to discern from the judgment of a magistrate the specific reasons why the particular sentence was imposed. It was further submitted that, other than saying the offence was very serious, the magistrate effectively gave no reasons for not considering a fine to be adequate. The authorities of Harling v Hall (1997) 94 A Crim R 437 and Heathcote v King [2002] WASCA 1 were cited as authorities relied upon in making these submissions. The summary of the magistrate's reasons set out above, illustrates the inaccuracy of the appellant's submission that the magistrate gave no reasons for not considering a fine to be adequate. The magistrate did not merely state the offence was serious, he set out the reasons for reaching that conclusion. He also referred to aspects of the appellant's behaviour which were said to be mitigatory and explained why he did not accept that they were. Further, as counsel for the Commonwealth submitted, the appellant has failed to acknowledge that, in reaching the view that a term of imprisonment was called for, the magistrate also relied on the need for both general and specific deterrence, with a particular emphasis on general deterrence given the regulatory scheme which applies to the consignment of dangerous goods.
The decision in Harling is certainly not authority for the proposition that reasons are to be given for not considering a fine to be adequate for the offence. Harling was an appeal against conviction on the ground, inter alia, that the magistrate failed to give sufficient reasons in his determination whether the case was proved beyond a reasonable doubt. It was held by Anderson J on appeal that, from looking at the magistrate’s reasons in their entirety, it was impossible to be sure that he did any more, before convicting the appellant, than decide that the prosecution case was to be 'preferred': 443. The general principle in Harling is simply that a magistrate must state to the best of his or her ability the facts he or she finds and the reasons for his or her decision: 443.

In Heathcote v King Roberts‑Smith J [112] set out the principle contained in the appellant's submission that there is a well established duty of a judicial officer to give reasons which expose his or her process of reasoning sufficiently to enable a party to understand how and why the decision has been arrived at, and to determine whether or not there is a ground of appeal. However, it does not follow that a judicial officer, in the circumstances which here applied, is in breach of this duty if he or she does not refer specifically to the possibility of a fine and the reasons for rejecting it as a suitable option.
It was further submitted on behalf of the appellant that it is of the greatest importance in the sentencing process that a magistrate transparently disclose his or her reasons for not imposing a fine or the level of the fine imposed. The decision of Owen J in Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435 (438 ‑ 439) was cited in support of this proposition. Counsel for the Commonwealth maintained that the submission was not supported by this authority, which is said to be authority only for the proposition that a court must give sufficient reasons pointing to those factors which in the judicial officer's opinion make the offence more or less serious than another and which ultimately support the level of penalty imposed. A reading of the decision confirms that the Commonwealth's interpretation of the decision is accurate. Counsel for the appellant has substituted the term 'fine' for the general reference to 'penalty' in the statement of principle, thereby giving the impression that the court is required to specifically refer to the reasons for not imposing a fine rather than simply refer to the matters which support the level of penalty imposed. One needs to be careful about making substitutions in the wording of a principle in such manner, as it has the potential to mislead.
In my view, whilst the authorities require a judicial officer to clearly state the reasons for imposing the particular sentence which includes referring to those matters which make the offence more or less serious, there is no requirement for dealing with all or the next most likely of the other sentencing options and setting out reasons they were considered inappropriate. Where imprisonment is a sentence of last resort, in many cases, and in my view in this case, to state why a term of imprisonment is appropriate, is to state why a fine is not.
Whilst counsel for the Commonwealth submitted that a term of imprisonment was the appropriate disposition in the case, the appellant's counsel's position at first instance was that a modest to heavy fine would sufficiently reflect the criminality of the appellant’s conduct. Clearly, when the magistrate came to impose sentence he was well aware that these were thought by counsel to be the two available options. Those two options having been mooted, it would have been useful if the magistrate specifically indicated the reason for deciding that one, rather than the other, was the appropriate outcome. However, whilst it is always possible to include more information in sentencing reasons, in the context of a busy magistrate's court I consider the reasons given in this case were adequate. The magistrate set out his reasons for concluding that the offence was of such seriousness that it was towards the upper and of the scale for offences of this type and has also explained why he considered the appellant's conduct to be so culpable as to justify no other sentence but imprisonment. Further, the magistrate also identified the need for general deterrence as a primary concern which, in tandem with the other factors to which he referred, required a term of imprisonment. The appellant's personal circumstances were said to justify the decision that the prison term need not be immediately served.
The appellant also asserted that, not only did the magistrate fail to consider the alternative of a fine but he failed to consider whether any other non‑custodial alternatives might be appropriate. In my view, the matters to which I have referred in dealing specifically with the alleged failure to consider or to adequately consider a fine are equally applicable to any other type of non‑custodial disposition. As counsel points out, the pre‑sentence report did indicate that a community based disposition was available. However, it does not follow that a community based option was appropriate in all the circumstances. The appellant was 53 years old at the time of the offence, married with a family, and has retained his employment despite the conviction for this offence. He readily admitted the offence and accepted responsibility for his actions by entering a plea of guilty. The appellant has no prior convictions and underwent a training programme on the transport of dangerous goods following the offence. Further, the magistrate implicitly accepted that the appellant was not likely to reoffend in making the comment that there was a need more for general deterrence rather than specific deterrence. That comment was made in the context of observing that the appellant meant no harm.
In my opinion, when these matters are considered together with the undoubted seriousness of offences of this type, a community based option was not an appropriate sentencing outcome. In any event, as I have observed in relation to the issue of a fine, the reasons given by the magistrate for imposing a term of suspended imprisonment of themselves indicate why a community based sentencing option was inappropriate.
For these reasons I am not persuaded that these grounds of appeal have merit.

Grounds 1 and 4

Despite my finding that the magistrate considered, but discounted, any disposition other than imprisonment, as was apparent from his reasons, it does not follow that he did not fall into error in doing so.
As the magistrate did not fail to consider a fine and did provide adequate reasons, the appellant has failed to identify a specific error on the part of the magistrate entitling the appellate court to resentence the appellant. Consequently, in the usual course of events, in order for the appeal to succeed it must be shown that the judge was in error in wrongly assessing some salient feature of the offence or the error may appear in the sentence itself; in that, it may be so excessive or inadequate as to manifest error: R v Tait (1979) 46 FLR 386, 387 ‑ 378, per Brennan, Deane and Gallop JJ; and Crannsen v The Queen (1936) 55 CLR 509, 519 ‑ 520.
However, in this case, I have averted to what I perceive as an error in the magistrate's approach to sentence and that is to treat as irrelevant the fact that the appellant understood the product could be transported by air and hence was unaware of the risks involved. As I have observed, in my view, there is a lesser degree of criminality in the case of the person who is unaware of the risk than in the case of a person who shows a complete disregard for the risks. In determining that the appellant's state of mind was irrelevant and in failing to take it into account in determining the appropriate sentence to imposed, I consider the Magistrate fell into error.
In the event that I am wrong in that conclusion, I propose to deal with the issue of whether the sentence itself manifests error and address the specific submissions made by the parties.
On behalf of the appellant it was said that, in any offence where a fine may reasonably be an option, the starting point for any consideration of the sentence must be that a fine should be imposed. The decision in Wilhelm (1988) 39 A Crim R 469, 473 per Walsh J was cited as authority for that proposition. It is further said that this principle is of particular application where the offender is a first offender. Counsel concedes that there are a range of offences where a fine would never be appropriate, irrespective of whether the offender had no prior convictions. However, the appellant’s counsel submitted that the present offence is not within that range.
I do not accept that the first proposition is an accurate statement of principle. Further, as counsel for the Commonwealth observed, the proposition is not supported by the authority cited. In Wilhelm the respondent pleaded guilty to attempting to extort money from a man and threatening him and his family with bodily injury if the money was not paid. The conduct admitted by the respondent was calculated and, when apprehended, he was not cooperative with the police. The respondent, who had no criminal record, was fined. The Court of Criminal Appeal held that, in the circumstances of the case, the sentencing judged erred in imposing a fine and a sentence of imprisonment was substituted. The principles which can be identified from the decision are these (473):
1.the appropriate disposition of an offender is a matter for the exercise of judicial discretion;
2.fines are generally appropriate where a deterrent or punitive sentence is necessary, but either the nature of the offence or the presence of mitigating factors justifies avoiding imprisonment;
3.fines should not be used to 'give person of means an opportunity of buying themselves out of being sent to prison; and
4.the first consideration for a sentencer contemplating the imposition of a fine is whether the offence and surrounding circumstances require the imposition of a custodial sentence.
In determining that the judge at first instance had fallen into error, Walsh J (with whom Kennedy and Rowland JJ agreed) observed (474):
In my opinion, having regard to the circumstances of the commission of the offence for which the respondent was found to be culpable, the offence was grave and it required the imposition of a custodial sentence as a proper exercise of the discretionary power of the court. It follows therefore that, in my view, the discretion of the learned sentencing judge miscarried when he adopted the course that he did and must have been due to some undervaluing or overvaluing of relevant considerations, which it is unnecessary to endeavour to identify.
Relevantly, the decision in Wilhelm establishes, inter alia, that a fine may still be appropriate even where a deterrent or punitive sentence is necessary, provided the nature of the offence or the presence of mitigating factors justifies avoiding imprisonment. However, it does not follow that, where the offender is a first offender, the starting point must be that a fine should be imposed. There is no 'presumption' in favour of a fine for first offenders even if a fine is a reasonable option for the particular offence.
However, it is correct to say, as was submitted by counsel for the appellant, that the need for general deterrence did not of itself necessitate a custodial disposition. I accept the submission made on behalf of the Commonwealth that the magistrate's observation that general deterrence was required was not the sole basis of his decision to impose a sentence of imprisonment. The reasons given by the magistrate clearly indicate that it was the combination of the need for general deterrence and the very serious nature of the offence which, in his view, called for a custodial penalty. However, they were not the only matters before the Magistrate which were relevant to sentence.
Elsewhere in the submissions made on behalf of the appellant counsel conceded that there were serious aspects to the appellant's offending. However, counsel also noted a number of factors which were described as significant mitigating factors. I have added to that list some additional factors which I consider to be mitigating. The relevant factors are as follows:
(a)the early plea of guilty which was indicative of significant remorse, as confirmed in the pre-sentence report;
(b)the absence of any prior record of convictions;
(c)the fact that the appellant was attempting to assist a hospital which required the product urgently;
(d)the appellant did not at any stage stand to benefit financially from the commission of the offence;
(e)the fact that the appellant subsequently undertook a training programme;
(f)the inference arising from the surrounding evidence that the appellant had not been appropriately trained, if at all, prior to the commission of the offence;
(g)the appellant's long work history and stable family background;
(h)the uncontested fact that the appellant was a useful member of the community and was unlikely to reoffend;
(i)there was no actual danger arising out of the offence as opposed to a potential danger;
(j)the prosecution concession that there was no absolute prohibition on the product being transported by air; and
(k)the appellant's belief, based on the information provided to him when the initial package was rejected, that the product could be transported by air providing the correct documentation was provided, a belief not disputed by the Commonwealth.
Counsel for the Commonwealth noted that the only mitigating factors found by the magistrate were the appellant's plea of guilty and the fact that the appellant meant no harm by his conduct. Counsel also noted that the magistrate made no specific finding of remorse. As to the latter issue, where an offender admits the offence when spoken to by an investigating officer, voluntarily undergoes a training procedure to gain knowledge of the appropriate procedures, pleads guilty at the earliest opportunity and expresses remorse through his counsel, it would be difficult for the magistrate to draw any conclusion other than the appellant accepted responsibility for his actions and was remorseful for them.
Notwithstanding the significant disparity between the matters referred to by counsel for the Commonwealth and those said by counsel for the appellant to be mitigatory, the Commonwealth's position was that the magistrate's consideration of the appellant's mitigatory matters was consistent with a proper exercise of his sentencing discretion. It was further said that the magistrate properly considered the appellant's personal circumstances and antecedents in determining that it was appropriate to suspend the sentence imposed under s 21B of the Crimes Act. Consequently, according to the Commonwealth, given the magistrate's findings as to the serious nature of the offence and the need for general deterrence, no error has been demonstrated in the exercise of the sentencing discretion. The immediate response I would make to the proposition that the appellant's personal circumstances were adequately considered with respect to whether the term of imprisonment should be immediately served is that these matters must also be taken into account in determining the appropriate sentencing option: s 16A of the Crimes Act. The question which then arises is whether they were.
The appellant's position is that, in view of the significant mitigating factors, notwithstanding the serious aspects of the offence and the need for general deterrence, the imposition of a substantial fine was clearly open and the magistrate's finding that no other disposition other than imprisonment was appropriate was clearly in error. Importantly, based on the information before the court, a fine would have been a significant personal deterrent and, on the authorities, would have had a generally deterrent effect.
In considering the sentence, the starting point must be its serious nature. Regulatory provisions such as the one breached by the appellant are designed to protect the public from being unwittingly and unwillingly exposed to dangerous, even quite catastrophic, situations, simply so commercial organisations can transport their goods around the country. Because of that potential for significant harm which arises from the nature of the goods, it is necessary for the court to impose sentences which send a clear message that the offences are serious, are taken seriously and will attract condign punishment. However, it does not follow that these aims can only be met by imposing terms of imprisonment, particularly where the general seriousness of the offence is ameliorated by particular circumstances of the offending and the offender.
It is trite to observe that, when sentencing, the judge must take into account not only the seriousness of the crime but also the circumstance in which it was committed, as well as the circumstances of the offender. There are many aspects of this type of offending which can escalate the seriousness of the offence. Acting for financial gain is an obvious example and one where set financial penalties are often of little deterrent effect. Transporting far more volatile and potentially dangerous goods is another. The offence could also be committed by someone who has previously or repeatedly breached his obligations under the Act. These are but some examples of circumstances which would elevate the seriousness of the offence.
With the greatest respect to the magistrate, I believe he failed to properly take into account certain aspects of the offence which make it a less serious offence of its type than was determined by him. Significantly, although the breach was deliberate, it was committed in circumstances where the appellant and his employer always understood that the product could be transported by air. Also, when the initial attempt to transport the product was rejected the reason given was that the package did not have the appropriate consignment note or documentation required for them to be carried on the plane. The appellant was not told that this product could not be transported by air. Therefore, although the conduct of repackaging the product was a deliberate breach of the requirements, the appellant believed the product could be transported in that manner, provided the appropriate documentation was in place. In fact, there was at the time no absolute prohibition on the product being transported by air. It is apparent that the appellant was not causing the goods to be transported in a way he knew to be dangerous and not permitted in any circumstances. It is true that ignorance is no defence, but it can be mitigatory in appropriate cases. In my view, this was such a case.
It is also apparent that the appellant was not motivated by greed. There was no financial incentive behind his conduct and, in fact, however misguided, his intention was simply to ensure that the product was provided to the hospital that urgently required it. Indeed, cases involving commercial advantage or incentive must be seen as the most serious category of offences of this type, amongst other reasons, because of the likelihood of repeat conduct.
Section 16A(2)(f) to (h) and (n) of the Act identifies as relevant to sentence the degree to which the offender has shown contrition for the offence, the fact that a guilty plea was entered, the degree of cooperation with the authorities, and the offender's prospects of rehabilitation. I have already referred to the fact that the appellant cooperated, admitted his conduct, pleaded guilty and underwent specific training. In those circumstances, even apart from the magistrate's comments about there being a lesser need for specific deterrence, on any interpretation, the appellant's prospects of rehabilitation were excellent.
I have already observed that I consider the appellant's cooperation, admissions, plea of guilty and expression of remorse through his counsel as being clear evidence of his acceptance of responsibility and his remorse for his actions, another significant factor when considering the need for specific deterrence and the appropriate penalty to be imposed.
When considering the appellant's culpability it is also important to note that the appellant appears to have had no or no adequate training in dealing with dangerous goods. Whilst this requires an inference to be drawn, as I have noted, I believe it is one which can and should be drawn in this case, particularly because of the nature of the company by whom the appellant was employed.

It is also a highly relevant factor in this context to consider that nothing was damaged and no‑one was injured in this case. It is accurate to say, as did the magistrate, that this was through no action of the appellant and was as a result of the vigilance of a TNT staff member. Nevertheless, when considering the penalty range available for this offence, damage and injury occurring would be a far more serious matter, although that would then raise the question of whether the matter should be dealt with summarily.
Perhaps one of the most significant matters personal to the appellant is that he has not previously committed an offence of this type and, in fact, has a total lack of prior convictions. A first offender does not necessarily avoid imprisonment. Indeed there are many matters which, of their nature, are such as to attract a custodial penalty notwithstanding the circumstances of the accused or any matter mitigating the offence. Whilst the offence might be categorised as 'serious' when considered in the context of offences generally and in the context of offences that justify sentences of imprisonment this offence, which carries a maximum term of 2 years imprisonment when dealt with summarily, could not, in my view, be regarded as so serious as to justify a term of imprisonment for a first offence committed by a first offender in all cases: see Moody v French where the Court of Appeal considered the meaning of 'serious offence' in the context of s 89(4)(a) of the Sentencing Act 1995 (WA).
This is not to say that there will not be cases involving the transport of dangerous goods by air where the circumstances of the offending and the absence of any real mitigating matters justify a term of imprisonment for a first offender. However, in my view, this is not such a case.
In terms of the appellant's personal circumstances, whilst he is in a position to pay a moderate to significant fine, to do so would certainly place a considerable burden on him. Further, the knowledge that taking a cavalier approach to the transport of dangerous goods would result in an individual paying fines in the vicinity of $5,000 to $10,000 would, in many cases, and in my view, have a substantially deterrent effect.
When all these factors are considered together, I believe it becomes apparent that the magistrate has failed to adequately address the matters personal to the accused, and the salient features I have identified, which reduce the level of seriousness of the offence. In this case, I believe the magistrate undervalued the matters personal to the appellant and that, despite the gravity of the offence, a term of imprisonment was not the only available option.
In my opinion the appeal should be allowed, the order appealed from set aside and, in lieu thereof a fine imposed.
Having taken into account the appellant's financial circumstances, as well as the need for general deterrence, I would impose a fine of $5,000.