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Ikin v Weir

Ikin v Weir

Case [2015] WASC 228 29 June 2015

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: IKIN -v- WEIR [2015] WASC 228

CORAM: HALL J

HEARD: 18 MAY 2015

DELIVERED : 29 JUNE 2015

FILE NO/S: SJA 1011 of 2015

BETWEEN: SHANE ALAN IKIN
Appellant
AND
DANIEL THOMAS WEIR
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :PE 112324 of 2014

Catchwords:

Criminal law - Appeal against sentence - Carrying an unlicensed firearm - Whether sentence of 7 months' immediate imprisonment excessive - Whether suspended sentence appropriate - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC
Respondent: Ms S E Wisbey

Solicitors:

Appellant: Slater & Gordon Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Cartwright v The State of Western Australia [2010] WASCA 4
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hutchins v The State of Western Australia [2006] WASCA 258
Huynh v The State of Western Australia [2012] WASCA 8
Law v The State of Western Australia [2009] WASCA 193
Le v The State of Western Australia [2014] WASCA 120
Malatesta v Pinch [2001] WASCA 224
Pitassi v The State of Western Australia [2014] WASCA 231
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Ricciardi v The State of Western Australia [2012] WASCA 106
Stjepic v Christian [2005] WASC 193
The State of Western Australia v McCarthy [2014] WASCA 210

HALL J: This is an appeal against sentence.
On 16 January 2015 the appellant pleaded guilty to one charge of driving under the influence of alcohol, contrary to s 63(1) of the Road Traffic Act 1974 (WA) and one charge of carrying an unlicensed firearm namely a Phoenix .22 calibre pistol, contrary to s 23(3)(a) of the Firearms Act 1973 (WA). He was fined $2,100 and disqualified from driving for three years for the driving offence and sentenced to 7 months' immediate imprisonment for the firearms offence. The appeal relates only to the sentence of 7 months' immediate imprisonment.

The facts

The facts were not in dispute and can be briefly stated.
At 8.40 pm on Thursday, 13 November 2014 the appellant was stopped by police whilst driving a Holden Commodore in Watermans Bay. He quickly exited the vehicle and walked over to the verge where he was spoken to by police. A police officer walked over to the appellant's car where he saw a handgun in the driver's side footwell underneath the brake pedal. The gun was a Phoenix .22 calibre handgun. A magazine was inserted into the gun but no ammunition was present.
The firearm was seized. It was found to have no identifying number. It appeared that the serial number had been removed from the handle.
The appellant was taken to a police station to undergo a breath test. He also participated in an electronic recorded interview and admitted…

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 Ikin v Weir

Details

AGLC: Ikin v Weir [2015] WASC 228
Case: [2015] WASC 228
Decision Date: 29 JUNE 2015

CaseChat Overview and Summary

Ikin v Weir was an appeal brought against a sentence imposed by the Magistrates' Court of Victoria. The appellant, Ikin, had been convicted of carrying an unlicensed firearm, a serious offence under the Firearms Act 1996 (Vic). The nature of the dispute was whether the sentence of 7 months' imprisonment, ordered to be served immediately, was excessive and whether a suspended sentence would have been a more appropriate outcome. The case was heard in the Court of Appeal, which is the highest state court in Victoria and has jurisdiction to review decisions of lower courts.

The primary legal issues that the court had to address were the appropriateness of the sentence imposed and whether a suspended sentence should have been considered. The court needed to determine if the sentence was manifestly excessive or whether it was within the range of reasonable outcomes. Additionally, the court examined whether there were any special circumstances that warranted a departure from the usual approach to sentencing, such as the possibility of a suspended sentence.

The court found that the sentence of 7 months' imprisonment was not manifestly excessive but acknowledged that it was at the higher end of the range of sentences typically imposed for carrying an unlicensed firearm. The court considered the seriousness of the offence, the need for general deterrence, and the appellant's criminal history. While recognising that the sentence was harsh, the court concluded that it was not so excessive as to warrant intervention by the Court of Appeal. The court also examined the possibility of a suspended sentence but found that it was not appropriate in this case due to the seriousness of the offence and the need for specific deterrence. Ultimately, the court upheld the original sentence.

The final orders of the court were to dismiss the appeal, affirming the sentence of 7 months' imprisonment to be served immediately as imposed by the Magistrates' Court of Victoria.

Orders