Jesse Ayres v The Queen

[2014] VSCA 318

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0215

JESSE AYRES	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 December 2014
DATE OF JUDGMENT:	5 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 318
JUDGMENT APPEALED FROM:	DPP v Ayres [2014] VCC 591 (Judge O’Neill)

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CRIMINAL LAW – Conviction – Appeal allowed despite guilty plea – Applicant pleaded guilty to being prohibited person in possession of firearm – Applicant not prohibited person at time of offence – Judgment of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	No appearance
For the Crown	No appearance	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA
PRIEST JA:

1. On 12 May 2014, following a guilty plea on 14 April 2014, a judge of the County Court convicted the applicant of being a prohibited person in possession of a firearm (’the firearms charge’), and sentenced him on that charge to be imprisoned for seven days.[1], [2]

   [1]The applicant pleaded guilty to armed robbery (charge 1), false imprisonment (charge 2) and being a prohibited person in possession of a firearm (charge 3).  He was sentenced to a total effective sentence of three years and six months’ imprisonment, upon which a non-parole period of two years was fixed.  The present application relates only to charge 3.

   [2]By reason of s 16(1) of the Sentencing Act 1991, this sentence was to be served concurrently with the sentences imposed on the other charges.

1. Despite having pleaded guilty to the firearms charge, the applicant seeks leave to appeal against his conviction.  The respondent concedes that notwithstanding the applicant’s plea of guilty he should not have been convicted on the firearms charge, since he was not a ‘prohibited person’ within the meaning of the of the Firearms Act 1996 (‘the Act’) at the time when the offence was committed.  That concession was properly made.

1. We need not discuss the offence in detail.  On 2 January 2012 the applicant committed an armed robbery at the Melton Country Club whilst armed with a sawn-off firearm.  At the time of possessing that firearm, however, the applicant was not a ‘prohibited person’.

1. Section 5(1) of the Act provides that, ‘[a] prohibited person must not possess, carry or use a firearm’.[3]  The Act defines ‘prohibited person’ in s 3.  It is common ground that the applicant did not fall into any of the categories of persons who are, for the purposes of the law, to be considered a ‘prohibited person’.  Thus, despite his plea of guilty to the offence, the applicant could not lawfully have been convicted of the firearms charge.[4]

   [3]The penalty is 1200 penalty units or 10 years’ imprisonment.

   [4]R v Forde [1923] 2 KB 400, 403; R v Stewart [1960] VR 106; R v Murphy [1965] VR 187, 188; R v Pauli (1991) 55 A Crim R 297, 299; Meissner v The Queen (1995) 184 CLR 132, 157; R v Tait [1996] 1 VR 662, 665; R v GJB (2002) 4 VR 355, 362 [12]; DHC v The Queen [2012] VSCA 52; Beqiri v The Queen (2013) 271 FLR 220.

1. For these reasons, we would grant the application for leave to appeal against conviction;  treat the appeal as instituted instanter and allow it; quash the conviction and sentence on charge 3; and enter a judgement of acquittal on that charge.  We would confirm all other ancillary orders.

1. So as to avoid doubt, we make it clear that it is our intention that the convictions and sentences on charges 1 and 2 on the indictment, and any ancillary orders and declarations made by the County Court, are to be left undisturbed.

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