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,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Francis v Firkins

Details

AGLC: Francis v Firkins [2008] WASC 189
Case: [2008] WASC 189
Decision Date: 2 SEPTEMBER 2008

CaseChat Overview and Summary

In Francis v Firkins, the respondent was found guilty of transporting dangerous goods and sentenced to imprisonment. The appellant sought to appeal the sentence on the grounds that it was excessive and the reasons provided by the sentencing judge were inadequate. The respondent had transported dangerous goods on a plane believing it was permissible, despite the presence of clear warnings and instructions prohibiting such conduct. The appeal raised questions about the relevance of the respondent's state of mind and the adequacy of the reasons given for the sentence.

The court considered whether the sentence was appropriate, given the deliberate nature of the breach and the respondent's belief that the product could be transported by air. It examined whether the sentencing judge had adequately addressed the mitigating factors and whether the sentence was proportionate to the offence. The court concluded that the sentence was excessive and that the reasons provided by the sentencing judge were inadequate, as they did not fully account for the respondent's state of mind and the mitigating factors.

Consequently, the appeal was allowed, and the order appealed from was set aside. The court imposed a fine in lieu of the imprisonment sentence, considering the mitigating factors and the respondent's state of mind. The court emphasised the importance of properly considering the relevant factors and providing adequate reasons for the sentence imposed. The final orders included setting aside the original sentence and imposing a fine instead.

Orders

Orders of the court

Appeal allowed

Order appealed from set aside

Fine imposed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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