Kajevic v Noble
[2021] ACTSC 67
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Kajevic v Noble | ||||||||||
| Citation: | [2021] ACTSC 67 | ||||||||||
| Hearing Date: | 22 March 2021 | ||||||||||
| Decision Date: | 21 April 2021 | ||||||||||
| Before: | Loukas-Karlsson J | ||||||||||
| Decision: | See [47] | ||||||||||
Catchwords: | APPEAL – APPEAL AGAINST SENTENCE – Appeal from Magistrates Court – unauthorised possession of prohibited firearms – manifest excess – re-sentence | ||||||||||
| Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 86(1) Crimes (Sentencing) Act 2005 (ACT) ss 12, 33(1)(za) Crimes Act 1900 (ACT) ss 375(10) and (15), 381(1) Firearms Act 1996 (ACT) ss 7, 42(1)(a)(iii), 43(1)(a)(iii), 249(1), sch 1 Magistrates Court Act 1930 (ACT) Part 3.10 | ||||||||||
| Cases Cited: | Balthazaar v The Queen [2012] ACTCA 26 Barbaro v The Queen [2014] HCA 2; 207 CLR 58 Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 Cramp v R [2016] NSWCCA 305 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Hili v The Queen [2010] HCA 45; 242 CLR 520 KN v Frizzell [2020] ACTSC 217 Lowndes v The Queen [1999] HCA 29;195 CLR 665 Mack v R; Mack v R [2009] NSWCCA 216 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Baker [2020] ACTSC 186 R v Folauhola [2019] ACTSC 107 R v Gibbs [2014] ACTSC 292 R v Mikac [2018] ACTSC 269 R v Mitchell [2016] ACTSC 85 R v Okwechime [2015] ACTSC 129 R v Pattman; R v Pattman [2017] ACTSC 331 R v Scheele [2015] ACTSC 75 R v Sullivan [2019] ACTSC 163 R v Zdravkovic (No 3) [2020] ACTSC 258 R v Peter [2019] ACTSC 22 | ||||||||||
| R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 | |||||||||||
| Wells v Mount [2020] ACTSC 333 Walshe v The Queen [2020] ACTCA 5 Wong v The Queen [2001] HCA 64; 207 CLR 584 ZL v Corey [2020] ACTSC 143 | |||||||||||
| Parties: | Milan Kajevic (Appellant) | ||||||||||
| Michael John Noble (Respondent) | |||||||||||
| Representation: | Counsel | ||||||||||
| J De Bruin (Appellant) E Wren (Respondent) | |||||||||||
| Solicitors | |||||||||||
| Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |||||||||||
| File Number(s): | SCA 58 of 2020 | ||||||||||
| Decision under appeal: |
| ||||||||||
| LOUKAS-KARLSSON J: | |||||||||||
| Introduction |
1. On 18 December 2020, the appellant was sentenced by the learned Magistrate for the following offences:
(a) Unauthorised possession of prohibited firearms, contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT) (Firearms Act) (CC2020/13742). The maximum penalty for this offence is imprisonment for 10 years. As the appellant had elected for the offence to be disposed of summarily in the Magistrates Court pursuant to s 375(10) of the Crimes Act 1900 (ACT) (Crimes Act), the maximum penalty that could be imposed was imprisonment for 5 years (s 375(15)(a) of the Crimes Act). (b) Possession of ammunition, contrary to s 249(1) of the Firearms Act (CC2019/8304). The maximum penalty for this offence is a fine of 10 penalty units, $1,600. (c) Possession of offensive weapon with intent, contrary to s 381(1) of the Crimes Act (CC2019/8302). The maximum penalty for this offence is imprisonment for 1 year and or a fine of $2,000.
2. The appellant was sentenced as follows:
(a)
For the charge of unauthorised possession of prohibited firearms, the appellant was sentenced to imprisonment for 30 months, to be suspended after serving 12 months upon entering a Good Behaviour Order for 2 years. The Magistrate stated at sentence that the appropriate starting point prior to the discount for the plea of guilty being applied was 40 months imprisonment: Michael Noble v Milan Kajevic [2020] ACTMC 29 at [34] (Noble v Kajevic).
(b)
For the charge of possession of ammunition, the appellant was convicted and fined $900 (reduced from $1,200) with no time to pay.
(c)
For the charge of possession of offensive weapon with intent, the appellant was convicted and required to enter into a Good Behaviour Order for 12 months to commence on the day he is released from custody.
3. The appellant appeals only against the sentence imposed for the charge of unauthorised possession of prohibited firearms.
Jurisdiction
The Court’s jurisdiction to hear the matter is derived from Part 3.10 of the Magistrates
Court Act 1930 (ACT), in particular s 208(1)(d) and (e) which deal with an appeal from a sentence imposed by the Magistrates Court and a sentence of imprisonment respectively.
Grounds of Appeal
5. In a Notice of Appeal dated 18 December 2020, the appellant relies on the following singular ground of appeal:
(a)
The sentence in relation to the charge of unauthorised possession of prohibited firearms imposed by the Magistrate was manifestly excessive.
Background to the Appeal
6. At the time the offence subject to appeal was committed, the appellant lived at the home of the complainant. Tension had been building between the appellant and the complainant. On 22 July 2019, the appellant was chopping wood at the front of the house using an axe. The complainant asked the appellant to move out, resulting in an argument between the appellant and the complainant. The complainant yelled at the appellant with words expressing his desire to evict him. The appellant walked towards the complainant to remonstrate with the axe pointed down. The appellant fell over and the complainant proceeded to complain to police: see Noble v Kajevic at [2].
7. Police attended the residence and arrested the appellant. Police obtained a search warrant to search the motor vehicle of the appellant and located a black briefcase in the boot of the car. Inside the briefcase, police located two small handguns and ammunition.
8. The appellant was initially charged with three offences arising from the events of 22 July 2019:
(a)
Possession of offensive weapon with intent, contrary to s 381(1) of the Crimes Act (CC2019/8302).
(b)
Unauthorised possession of firearms other than prohibited firearms, contrary to s 43(1)(a)(iii) of the Firearms Act (CC2019/8303).
(c)
Possession of ammunition, contrary to s 249(1) of the Firearms Act (CC2019/8304).
9. On 24 October 2019, the appellant indicated pleas of guilty to CC2019/8303 and CC019/8304. A plea of not guilty was entered in respect of CC2019/8302 and that matter was set for hearing.
10. On 25 August 2020 and 28 August 2020, the hearing in respect of CC2019/8302 proceeded and the Magistrate found the offence proved. All three of the initial charges were adjourned for sentencing to 24 November 2020.
11. On 24 November 2020, the sentencing proceedings commenced. Prior to submissions being made, the appellant was charged with and entered a plea of guilty to a fresh charge of unauthorised possession of prohibited firearms (CC2020/13742). The evidence at the hearing had revealed that the firearms were in fact prohibited weapons within the meaning of s 7, sch 1 of the Firearms Act and CC2019/8303 was subsequently withdrawn.
12. The fresh charge of unauthorised possession of prohibited firearms was amended by the prosecutor to be particularised as follows:
That he in the Australian Capital Territory on 22 July 2019 possessed prohibited firearms, namely a .25 calibre semi-automatic Colt brand self- loading pistol and a .22 calibre H&R Arms Co brand double action revolver whilst not authorised by a licence, permit or otherwise under the Firearms Act 1996.
13. The following documents were before the Magistrate on this occasion:
(a) Amended statement of facts in relation to CC2020/13742 only; (b) Criminal history of the appellant; (c) Victim impact statements of the complainant and of the complainant’s partner;
(d) Pre-Sentence Report dated 23 November 2020; (e) Report of Thomas Smale, Firearms Identification and Armoury Team of the Australian Federal Police.
14. The Pre-Sentence Report stated that the appellant had no stable accommodation since the offending and had been living out of his car. The Pre-Sentence Report also concluded that the appellant was not suitable for an Intensive Correction Order due to the appellant not having a fixed abode.
The appellant’s solicitor submitted that the appellant was a suitable candidate for a
community-based order. However, due to the appellant’s unsuitability for an Intensive
Corrections Order, the alternatives to fulltime imprisonment were limited. The
Magistrate rejected the submissions advanced by the appellant’s solicitor for a
community-based order and determined that no other sentence was applicable than a sentence of fulltime imprisonment due to the seriousness of the unauthorised possession of prohibited firearms offence.
16. Following submissions from the parties on 24 November 2020, the Magistrate adjourned the proceedings to allow the parties to resolve an issue in respect of the
appellant’s reason for possessing the firearms. Having determined that a term of
imprisonment was appropriate, the Magistrate revoked the appellant’s bail and he
was remanded in custody to appear on 18 December 2020 for sentence.
17. On 9 December 2020, the Magistrate’s associate wrote to the parties seeking further
clarification in respect of the expert firearm report. The respondent obtained
clarification from Thomas Smale.18. On 18 December 2020, the appellant’s solicitor consented to the further information provided by Thomas Smale to form part of the agreed facts. The appellant’s solicitor made further submissions in relation to the appellant’s reason for possessing the
firearms, ultimately submitting that the firearms were held for a dual purpose. It was submitted that the appellant had the firearms both for his own protection and as sentimental collectibles due to their age and antiquity.
19. The Magistrate made the following findings in relation to the objective seriousness of the unauthorised possession of prohibited firearms offence: Noble v Kajevic at [9].
(a) There were two operable firearms. (b) There was no satisfactory reason advanced for the possession of the firearms but it was accepted that they were not linked to any wider criminal activity. (c) The firearms were stored in the appellant’s motor vehicle – a highly insecure storage place that is often stolen and relatively easy to break
into.(d) The firearms, if fully loaded, had between them the capacity to fire fourteen rounds without reloading. (e) Both of the firearms were easily concealable and able to be easily transported without drawing attention. The claim by the appellant’s solicitor that the firearms were ‘señoritas’ or purse guns did not reduce the
objective seriousness of his being in possession of them. Rather, the size and capacity of the firearms to fire multiple rounds meant that possessing them unlawfully increased the objective seriousness.
(f) The firearms were clearly not being kept for a sole purpose such as them being ‘collector’s items’ or ‘antiques’. The appellant was not licenced to
collect them, they were not stored in a lawful manner that reflected any alleged collectability, they both worked as intended by their respective manufacturers and, most importantly, they were stored quite insecurely in a car with over 200 rounds of ammunition suited to them.
(g) The amended police statement of facts noted that the appellant told police he kept the firearms ‘for his protection’. No submission was made as to
why the defendant required protection or what he was protecting himself
from. There was no lawful purpose or excuse for the possession.(h) The firearms were not loaded when located by police and there was no evidence that the appellant had discharged or otherwise used them. (i) The appellant apparently possessed at least one of the firearms for three years as he had previously shown it to the complainant at that time.
Consideration: Manifest Excess
20. The principles relevant to an appeal on the ground of manifest excess are usefully set out in the decision of Walshe v The Queen [2020] ACTCA 5 at [17]-[18], see also Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151.
The principles applying to whether or not a sentence is manifestly excessive are well-known. Nevertheless it is worth quoting this summary from Samani v The Queen [2017] ACTCA 23 at
[15] – [16]:
15. In Zdravokovic v The Queen [2016] ACTCA 53, the ACT Court of Appeal, at paragraphs [51] and [52], made the following remarks about identifying manifestly excessive sentences:
A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is
“manifestly excessive” in the sense that it is “unreasonable or plainly unjust”:
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and
Hayne J at [6]. But “manifest excess” is not established just because the
appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaar v The Queen [2012] ACTCA 26 at [61].
When deciding whether a sentence is “manifestly excessive”, the legislated
maximum penalty that applies to the “worst possible case” must be
considered; it provides a “yardstick” for assessing the appropriate penalty:
Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
16. In R v AB [2017] NSWCCA 88, the New South Wales Court of Criminal Appeal, at
paragraphs [57] and [58], described the principles in this way:The principles on which an appellate court will determine that a sentence is manifestly excessive or inadequate are well-established. An appellate court is not entitled to interfere with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].
In Barrett v The Queen [2016] ACTCA 38, the Court made this practical observation at [34]:
It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.
21. The appellant submitted that the following factors were relevant to determining whether the sentence imposed was manifestly excessive:
(a) Relevant sentencing principles. (b) Objective seriousness. (c) The appellant’s subjective circumstances. (d) Current sentencing practice.
22. The respondent submitted that the following factors were relevant in this matter in determining a claim of manifest excess:
(a)
Maximum penalty: see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31] (Markarian) and see s 375(15)(a) Crimes Act.
(b) Objective seriousness. (c) The appellant’s subjective circumstances.
Objective Seriousness
23. In relation to the assessment of objective seriousness, the decisions of Mack v R; Mack v R [2009] NSWCCA 216 and R v Mitchell [2016] ACTSC 85 (Mitchell) are relevant. See also: R v Zdravkovic (No 3) [2020] ACTSC 258 at [10].
24. To assess the objective seriousness of this type of offence, noting that the number of prohibited firearms is already included in the offence, regard must be had to the following factors:
(a) Possession or use of the prohibited firearms. (b) Nature of the prohibited firearms. (c) Purpose for possession of the prohibited firearms. (d) How the prohibited firearms came into the possession of the offender. (e) The length of time that the prohibited firearms were in the possession of the offender. (f) The storage of the prohibited firearms. (g) Whether the prohibited firearms were loaded or not.
25. In relation to the factor of possession or use, the offence was limited to possession and it was accepted that there was no suggestion of wider criminal activity in connection with the firearms.
26. The appellant conceded that the storage of the firearms, in a briefcase inside the boot of his motor vehicle, did increase the objective seriousness of the offence. Nevertheless, the appellant submitted that when having regard to other potential locations in which a firearm may be stored, such as on display in a home where children reside, or abandoned in a public park, this factor did not support a conclusion
that the objective seriousness of the offending was ‘very high’ as determined by the
Magistrate.
27. The respondent submitted that contrary to the appellant’s submission, the offence
was not towards the lower end of objective seriousness. The respondent drew upon the fact that the appellant was in possession of two firearms, that the firearms were stored in a motor vehicle rather than a locked safe, that firearms were small and easily concealable, that the firearms were operable and stored near suitable ammunition and that the appellant did not advance a satisfactory reason as to why he had possession of the firearms. The respondent submitted that this was consequently an objectively serious example of this offence.
28. I underline that the offence is serious. I note the observations of Refshauge J in the decision of Mitchell that as a result of the Port Arthur massacre in Tasmania, there was a national reform of gun laws in the Territory and the rest of Australia: see R v Folauhola [2019] ACTSC 107 (Folauhola) at [67] and R v Peter [2019] ACTSC 22 at [30]. His Honour in Mitchell set out underlying principles in relation to firearm possession and stated at [2]-[3]:
It is clear that a most important consideration in the regulation of firearms is safety and their proper storage.
While this context is important for an understanding of the offences created by the Act, and is relevant to sentencing, it is important to recognise that sentencing for offences, even under the Firearms Act, should be conducted with regard to standard sentencing principles.
29. In my view neither the label ‘very high’ nor ‘lower end’ is apt. The identifying features
are more akin to mid-range. That being said, it must be recognised labels occasionally obfuscate more than they illuminate: see Wells v Mount [2020] ACTSC
333 at [95]. As has been expressed in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR
103 at [24]:
…references to low-range, mid-range and high-range objective seriousness are
unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.
30. I have considered the identifying features outlined in the submissions of the appellant and the respondent. The identifying features set out above highlight the seriousness of this matter.
Subjective Circumstances
31. At the time of sentencing, the appellant was 66 years old. The Magistrate accepted that continued time in custody would likely have a greater impact on the appellant, than on a younger healthier man: see Noble v Kajevic at [20]. The most recent criminal conviction for the appellant had been for an offence of driving whilst licence cancelled, committed in 1990. That is some thirty years ago. It was submitted that the conviction free period combined with the appellant having had been subject to bail conditions since 23 July 2019, with no allegations of breach or reoffending in the 16- month period before he was remanded in custody, indicated that the appellant had prospects of rehabilitation of significance. I accept this submission.
The respondent accepted that the last entry on the appellant’s criminal history was in
1990 and noted that much of the appellant’s recent criminal history related to traffic
offences which were of little relevance to the present offence. The respondent
submitted that the appellant’s prior conviction for possession of a firearm in 1972,
approximately fifty years ago, was of significance. For that offence, the appellant had received a term of imprisonment of 2 months following an appeal. The respondent submitted that the fact the appellant had yet again come before the court in relation to possession of firearms was properly considered a matter of concern by the Magistrate.
33. I accept that the conviction from almost fifty years ago is not entirely insignificant. Nevertheless, the approximate half a century that has passed since then must be of real significance and is important in assessing its relevance today. Being of quite some antiquity, its relevance must perforce be somewhat limited in the process of instinctive synthesis.
Current Sentencing Practice
34. The appellant provided sentencing statistics and extracted decisions of this Court and the Court of Appeal in relation to offences of unauthorised possession of prohibited firearms: R v Baker [2020] ACTSC 186; Folauhola; R v Sullivan [2019] ACTSC 163; R v Mikac [2018] ACTSC 269; R v Pattman; R v Pattman [2017] ACTSC 331; R v Okwechime [2015] ACTSC 129; R v Scheele [2015] ACTSC 75; R v Gibbs [2014] ACTSC 292. Pursuant to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), current sentencing practice is a factor to be taken into account.
Conclusion
35. The principles in relation to appeals of this nature are well known and not controversial. In order for the appellant to succeed and to justify appellate intervention, it is not sufficient that an appeal Court would have imposed a different sentence: see Balthazaar v The Queen [2012] ACTCA 26 at [61]; Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [57]; Markarian at [28].
36. The High Court has on many occasions stated that the ground of manifest excess is to be considered in the context of the fact that sentencing is not a mathematical exercise and there is no single correct sentence. Judges must be allowed as much flexibility in sentencing as accords with consistency of approach and applicable sentencing principle: see Cramp v R [2016] NSWCCA 305 at [41].
37. By its very nature, manifest excess is a conclusion that does not admit of lengthy exposition: see Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [59]; KN v Frizzell [2020] ACTSC 217 at [95]. Nevertheless, it must be underlined that manifest
excess is not ‘fundamentally intuitive’: see Hili at [60].
38. The respondent conceded that the sentence imposed by the Magistrate was
‘undoubtedly stern’. However, the respondent submitted that due to the objective
seriousness of the offence, the fact that the appellant had previously been convicted of such an offence, and that the appellant was not eligible to serve the term of imprisonment by way of Intensive Corrections Order led to a conclusion that the sentence was not manifestly excessive.
39. The respondent was correct to concede that the sentence imposed by the Magistrate
was ‘undoubtedly stern’. In my view, it was more than undoubtedly stern, it was
manifestly excessive.
40. As stated above, to justify appellate intervention, it is not sufficient that an appeal court would have imposed a different sentence. Intervention is only warranted where the difference is such that, in all the circumstances, the appellate court concludes that there must have been a misapplication of principle even though where and how is not apparent from the statement of reasons: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Hili at [59]; Barbaro v The Queen [2014] HCA 2; 207 CLR 58; ZL v Corey [2020] ACTSC 143 at [76]. In this case, such a pronounced difference exists. That difference bespeaks misapplication of principle.
41. In this matter, appellate intervention is warranted.
42. The ground of manifest excess is upheld. In light of this finding, the appellant is to be resentenced.
Re-sentence
Appellant’s Submissions
43. In oral submissions, the appellant submitted there was little utility in requesting an updated Intensive Corrections Order suitability report.
44. The appellant ultimately submitted that if the appeal was to be upheld, a reduced period of the term in custody would be the appropriate re-sentencing outcome.
Respondent’s Submissions
45. In oral submissions, the respondent submitted that if the appeal was to be upheld, a term of imprisonment would still be appropriate due to the nature of the offending and the limited nature of leniency that could be afforded to the appellant due to his criminal history.
Conclusion
46. Taking all factors into account, both objective and subjective, in the process of instinctive synthesis the appropriate period of imprisonment is 22 months, after a discount of approximately 25% for the plea of guilty, that is from a starting point of 30
months. The appellant’s sentence is to be suspended after a period of 6 months, from
21 May 2021.
Orders
47. I make the following orders:
(a) The appeal is allowed. (b)
The sentence recorded by the Magistrate in relation to the offence of unauthorised possession of prohibited firearms (CC2020/13742) is set aside.
(c) The appellant is re-sentenced as follows:
(1)
In respect of the offence of unauthorised possession of prohibited firearms (CC2020/13742), the offender is re-sentenced to a term of 22 months of imprisonment, commencing on 22 November 2020 and ending on 21 September 2022.
(2)
Pursuant to s 12 of the Crimes (Sentencing Act) 2005 (ACT), the sentence will be suspended after serving 6 months imprisonment, upon the appellant entering into a Good Behaviour Order for a period of 2 years with the core conditions as prescribed by s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT).
I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson
Associate: Rhiannon McGlinn
Date: 21 April 2021
5
0
0