Ikin v Weir - [2015] WASC 228

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 being in possession of the unlicensed handgun. A recording of the interview was not made available to the magistrate. However, it was referred to in submissions.

Sentencing submissions

Counsel for the appellant in the sentencing proceedings said that the appellant is 43 years of age with two children, one of whom is dependent on him. He is in a relationship with a woman who was in court in support of him. She had been diagnosed with a terminal illness and the appellant had found this difficult to deal with. He works as a scaffolder and has been employed in that capacity for over 20 years.
When interviewed the appellant made full admissions and gave permission for the police to search his home. They did so and nothing was located of any interest. The appellant told police that he knew he had done the wrong thing and that he was 'just being silly'.
Counsel submitted that at the time of the offence the appellant was on his way home from a friend's house where he had had a few drinks. He had discussed with his friends that he wanted to go shooting for target practice in 'the Pines'. One of his friends offered him a gun and said 'why don't you take this?' The appellant did not own a gun so he took it. He was heavily under the influence of alcohol at the time. He did not realise that the serial number on the gun had been removed. He had only been in possession of the gun for a few hours before being pulled over by the police. He was not aware where his friend obtained the handgun. He never used the weapon as he was pulled over shortly after it came into his possession. In any event, the gun did not have any bullets in it and there was no suggestion that any bullets were found in the appellant's possession.
The appellant entered a plea of guilty on his second appearance on the charges. There was no doubt that the pleas of guilty were entered at the first reasonable opportunity. The sentencing magistrate did not nominate the discount for pleading guilty as required by s 9AA of the Sentencing Act 1995 (WA) but no complaint is made by the appellant about that.

Grounds of appeal

The amended grounds of appeal are as follows:
1.The learned sentencing magistrate erred by sentencing the appellant on the basis of disputed factual matters which were not conceded by the appellant nor established by the facts before the court.
Particulars
(a)The learned sentencing magistrate wrongly rejected the appellant's contention that the firearm was in his possession for recreational purposes.
(b)The learned sentencing magistrate dealt with the matters on the basis that the appellant knew that the serial number of the weapon had been removed.
2.The learned sentencing magistrate erred in law in failing to suspend the term of imprisonment.

Sentencing remarks

The magistrate's sentencing remarks were brief. They were as follows:
I can't understand why you would have wanted a firearm to go target shooting, if that was the reason for it, but the reality is that you were driving around with a handgun with its serial numbers removed, and you were in charge of it. It puts a dangerous weapon into the community, and it's quite incredulous [sic] that you would simply ask a friend for one and then accept it. In my view, this is a very serious offence, and one for which an immediate term of imprisonment is required to reflect the community's concern about unlicensed handguns being within the community.
In relation to that charge you will be sentenced to 7 months' imprisonment. There is a formal order for the destruction of the firearm (ts 5).
Counsel for the appellant then raised a question as to whether the sentence could be suspended. His Honour said:
No. My view is a term of immediate imprisonment is required to reflect the seriousness of the charge. There doesn't seem to be any issue of rehabilitation involved. He made a positive choice to reflect it [sic]. There's no indication of particular problems. No, it will be an immediate term (ts 6).

Ground 1 - disputed facts

The appellant submits that the magistrate made findings, at least inferentially, that (a) the appellant intentionally took possession of the pistol in the knowledge that the serial number had been removed and (b) that he had not intended to use it for target practice in the Pines. There are no express findings in this regard but the appellant submits that the magistrate's sentencing remarks, together with his earlier exchanges with counsel, indicate that he did not accept the propositions that had been put forward in submissions. In particular, his Honour said:
He has taken a firearm, a handgun, its markings removed. People don't carry those things. They don't take them for target shooting in the Pines. They don't have anything to do with them. He has chosen to do it (ts 5).
It is contended that if the magistrate was not prepared to accept defence submissions made to him in regard to these factors he should have afforded the appellant an opportunity to call evidence. It was accepted that both of these matters were mitigating factors that it fell to the appellant to prove if they were challenged. Whilst the prosecution did not challenge them, if the magistrate was not prepared to act on the assertions made on the appellant's behalf it is submitted that he should have advised counsel of this fact. The appellant submits that procedural fairness required the sentencing magistrate to make known to counsel that he did not accept her submissions so that the appellant had the opportunity to call evidence to substantiate his claims: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Hutchins v The State of Western Australia [2006] WASCA 258 [25]; and Law v The State of Western Australia [2009] WASCA 193 [31] ‑ [32].
The respondent contended that the magistrate made no express findings on these issues and that it is open to conclude that he sentenced on the basis of the submissions advanced on the appellant's behalf. This contention appeared to be at odds with the comments made by the magistrate during the course of the submissions. Alternatively, counsel for the respondent said that the magistrate made it clear that he doubted the submissions advanced by defence counsel. In these circumstances it was the responsibility of counsel to seek to call evidence.
At the hearing of the appeal I pointed out to counsel for the appellant that in the event that this ground succeeded it may be necessary to remit the matter to the Magistrates Court to allow for findings of fact to be made. It was suggested that it was possible for those findings to be made by me and for any resentencing to occur in this court. Some concessions in this regard were made by the respondent. It was accepted that the appellant had only recently came into possession of the firearm and that that was the appropriate basis on which he should be sentenced. It was also accepted that there was no suggestion of the appellant possessing the gun for any sinister purpose including, as in many cases, of it being used as an enforcement tool in a drug business. The respondent accepted that the appellant's case was less serious than most, if not all, of the comparable cases referred to on this appeal.
I appreciate that the proceedings in the Magistrates Court were over very quickly. That is, of course, in the nature of summary proceedings. It is easy with the benefit of hindsight to be critical of the process. However, in my view, it must have been plainly apparent to defence counsel that the magistrate was not willing to accept some of the matters that were being raised on the appellant's behalf.
In any event, this appeal does not ultimately turn on this ground because irrespective of whether the procedure adopted afforded a fair opportunity to the appellant to call evidence in support of his claims, this was a case that involved a number of significant uncontested mitigating factors that made an immediate sentence of imprisonment inappropriate.

Ground 2 - suspended sentence

It is clear that the magistrate expressly considered the question of whether a suspended sentence should be imposed and rejected it. Accordingly this ground is, in effect, a claim that the sentence imposed was manifestly excessive. Such a ground depends upon it being shown that although no express error was made the sentence imposed was one that could not be imposed in the proper exercise of the sentencing discretion.
In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentences customarily observed, the place which the criminal conduct occupies on the scale of seriousness, and the personal circumstances of the offender. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is no single correct sentence.
Sentences must be commensurate with the seriousness of the offence: s 6(1) of the Sentencing Act. The seriousness of the offence must be determined by taking into account the factors in s 6(2). Section 6(4) requires a court not to impose a sentence of imprisonment of any type unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. Section 39(2) of the Act sets out the various sentencing options. Section 39(3) provides that a court must not use a sentencing option in s 39(2) unless it is inappropriate to use any less serious option. The effect of this is that imprisonment of any type cannot be imposed unless the seriousness of the offence is such that only imprisonment is justified or the protection of the community requires it. Further, a term of immediate imprisonment cannot be imposed unless the sentencer is satisfied that a suspended imprisonment is inappropriate: Cartwright v The State of Western Australia [2010] WASCA 4 [8].
In determining whether a suspended imprisonment order can be imposed a sentencer must revisit all of the circumstances relevant to the decision to impose the term of imprisonment: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84] and [85]. A sentence should be suspended whenever all of the circumstances make it appropriate to do so: The State of Western Australia v McCarthy [2014] WASCA 210 [56].
The maximum penalty for carrying or using a firearm without a licence or permit and where the firearm is a handgun is 7 years' imprisonment. The summary conviction penalty is 3 years' imprisonment or a fine of $12,000. The summary conviction penalty is a jurisdictional limit rather than a maximum penalty for the offence.
The appellant placed particular reliance on Stjepic v Christian [2005] WASC 193. This case was cited by the police prosecutor in the Magistrates Court. The offender in Stjepic was convicted after a plea of guilty of one count of aggravated possession of a firearm without being the holder of a licence or permit and to possession of ammunition without being the holder of a licence or permit. He was sentenced to 9 months' imprisonment suspended for 18 months. The State appealed against the sentence on the basis that it was manifestly inadequate. The appeal was allowed and the term of imprisonment was increased to one of 18 months but remained a suspended sentence, being suspended for 24 months.
The facts of Stjepic had some similarity and some differences to that of the appellant. Both offenders were found in possession of Phoenix .22 calibre pistols. The serial numbers in both cases were removed and both offenders pleaded guilty at a relatively early stage. However, in Stjepic he was found to be also in possession of four live .22 calibre rounds of ammunition and a bag containing $5,825 in cash. The offender in Stjepic had a prior conviction of a similar type and was also on bail for a number of offences, including two aggravated unlawful possessions of a firearm. He was also facing serious drug charges at the time.
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.
The respondent made reference to Malatesta v Pinch [2001] WASCA 224. In that case the offender was convicted of offences which included one offence of possessing a firearm and two offences of possessing ammunition, (including ammunition for the firearm), whilst unlicensed. The offender had prior convictions for possessing an unlicensed firearm and ammunition, for which he had been fined. He had been in possession of the firearm for two to three weeks and had purchased it in circumstances that strongly suggested it was stolen. A sentence of 12 months' immediate imprisonment was set aside on appeal because a suspended sentence was appropriate given the offender's early guilty plea and relatively good antecedents.
The appellant's offending was clearly less serious than that in Malatesta. Unlike Malatesta, the appellant had no prior firearms offences. Whilst he had a minor criminal record, it consisted almost entirely of traffic related offences. Unlike Malatesta, the appellant had not acquired the firearm in suspicious circumstances and did not have ammunition for the weapon.
Other cases referred to by the parties included Ricciardi v The State of Western Australia [2012] WASCA 106, Le v The State of Western Australia [2014] WASCA 120, Huynh v The State of Western Australia [2012] WASCA 8 and Pitassi v The State of Western Australia [2014] WASCA 231. However, all of those cases involved offences dealt with on indictment and involved more serious circumstances. No range of sentences can be discerned and those cases provide little assistance given the significant differences between them and the case of the appellant.
The respondent accepted that the sentence imposed on the appellant was severe, but submitted that it was not outside the range of discretion. As I have noted earlier, a sentence of imprisonment to be served cannot be imposed unless it is possible to exclude a suspended sentence. In the present case the magistrate excluded a suspended sentence on the basis of the seriousness of the offence and that there was no issue of rehabilitation. The discretion to impose a suspended sentence is not limited by considerations of rehabilitation alone: Dinsdale v The Queen. All of the relevant factors should be considered again when deciding whether it is open to suspend a sentence. It would be ironic if the fact that a person is of otherwise good character, low risk of re‑offending and, therefore, in no real need of rehabilitation, excluded a person from the benefit of a suspended sentence. In fact, those are factors that favoured a suspended sentence. Other, uncontested, facts also favoured that conclusion, including; that the appellant had possessed the gun for a very short time, that he made immediate admissions to the police and entered an early plea of guilty and that the gun was unloaded and the appellant did not possess any ammunition for it.
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. In these circumstances ground 2 must succeed.
Before being released on bail pending the appeal, the appellant served 17 days in custody. That is a factor that must now be taken into account. Since a suspended sentence cannot be backdated, it would be appropriate to reduce the term that was previously imposed. I would make the following orders:
1.Leave to appeal granted.
2.Appeal allowed.
3.The sentence imposed by the magistrate on the firearm charge be set aside and replaced with a sentence of 6 months and 2 weeks' imprisonment, suspended for a period of 8 months.