Kiraly v Hall
[2011] WASCA 136
•28 JUNE 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KIRALY -v- HALL [2011] WASCA 136
CORAM: McLURE P
BUSS JA
HALL J
HEARD: 9 MAY 2011
DELIVERED : 28 JUNE 2011
FILE NO/S: CACR 134 of 2010
BETWEEN: MATTHYAS KIRALY
Appellant
AND
ANDREW HALL
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
Citation :KIRALY -v- HALL [2009] WASC 290
File No :SJA 1070 of 2009
Catchwords:
Criminal law - Appeal against convictions - Possession of classified X 18+ film - Possession of controlled weapon - No reasonable prospect of success
Criminal law - Appeal against sentence - Error in maximum statutory penalty
Legislation:
Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 81(2), s 117
Criminal Appeals Act 2004 (WA), s 9(2), s 14(1)(c), s 18
Sentencing Act 1995 (WA), s 6(2)(a)
Weapons Act 1999 (WA), s 7
Result:
Extension of time to appeal granted
Leave to amend grounds of appeal granted
Leave to appeal against convictions refused
Appeal against convictions dismissed
Appeal against sentence allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr C S Bydder
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
McLURE P: I agree with Hall J.
BUSS JA: I agree with Hall J.
HALL J: On 26 March 2009 the appellant was convicted in the Magistrates Court of one count of possessing a film classified X 18+ with the intention of selling the film contrary to s 81(2) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (Classification Enforcement Act) and one count of possessing, without lawful excuse, a controlled weapon contrary to s 7 of the Weapons Act 1999 (WA). An application for leave to appeal against those convictions was dismissed by McKechnie J on 7 September 2009. The appellant now seeks leave to appeal to this court from McKechnie J's decision.
The notice of appeal was filed on 27 August 2010. Accordingly an extension of time would be required. The appellant filed an affidavit which referred to illnesses he had suffered and medications that he had been taking. Whether these factors adequately explain the long delay is not clear. In any event, for reasons which I will state shortly, the appellant's appeal against his conviction is without merit.
There was no appeal against sentence either before McKechnie J or to this court. However, on the hearing of the appeal the respondent drew attention to the fact that the magistrate had made an error in referring to the maximum penalty applicable to the Classification Enforcement Act offence. In these circumstances the respondent submitted that it would be appropriate for the appellant to be given leave to amend his grounds to include a ground in respect of that sentence, to grant the appeal in that regard and re‑sentence the appellant for that offence. In my view that is the appropriate course.
Appeal against conviction
The facts of the offending were that on 26 October 2008 the appellant had in his possession a number of copied films classified X with the intention of selling them. He was apprehended endeavouring to sell the films at a swap meet. At the time the police also found him in possession of a pepper spray.
On appeal to McKechnie J the grounds of appeal were assertions that both the films and the pepper spray were freely available from other sellers. There was no reasonable prospect of success in respect of those grounds and leave to appeal was correctly refused: s 9(2) Criminal Appeals Act 2004 (WA).
In this court the appellant's ground was expressed as 'court not take consideration real facts and wrongly informed over details of the matter around charges'. In the written submissions he expanded upon this ground by again asserting that both the films and pepper spray were freely available from other outlets, that he had taken steps to avoid children seeing the films he was attempting to sell, that a distinction should be made between the films he was attempting to sell and others which he suggested were more offensive, that he had the pepper spray for self defence and that he was unaware of any prohibition on possessing it. Whilst some of these matters may be relevant to penalty, none of them raise any reasonably arguable issue as to the correctness of the convictions. Accordingly, leave to appeal should not be granted in respect of the ground of appeal against conviction and that appeal should be dismissed.
Appeal against sentence
The Classification Enforcement Act s 81(2) states:
Possession or copying of certain films
(2)A person must not possess or copy -
(a)an unclassified film that would, if classified, be classified X 18+, R 18+ or MA 15+; or
(b)a film classified X 18+,
with the intention of selling the film or the copy, or exhibiting the film or the copy in a public place.
Penalty: $10,000.
In sentencing the appellant the magistrate said:
I note the penalty under s 81 of the Act is a fine of up to $20,000. I will be imposing a fine of $2,000, order for destruction of the material. I will be imposing a fine of $300 on the possessing a controlled weapon, order for destruction of the pepper spray as well as the film and the tapes. Costs of $114.20.
As is apparent the magistrate erred as to the applicable maximum penalty for the Classification Enforcement Act offence. One of the factors which determines the seriousness of an offence is the statutory penalty: s 6(2)(a) Sentencing Act 1995. Clearly the magistrate's mistaken view that the maximum penalty for this offence was twice what it in fact is was material to his determination of the appropriate sentence.
In these circumstances, in my view, it is appropriate that the appellant be granted leave to amend his grounds of appeal to include a ground that there was an error in law in that there was a reasonably arguable ground of appeal in regard to the magistrate's misdirection to himself about the maximum penalty applicable to the offence under the Classification Enforcement Act.
It is appropriate that the appellant be granted an extension of time in respect of this ground and that leave to appeal also be granted in respect of it. I would allow the appeal on that ground and pursuant to s 14(1)(c) and s 18 of the Criminal Appeals Act2004 (WA) set aside the fine of $2,000 imposed by the magistrate and in lieu thereof impose a fine of $500. A fine in that amount appropriately reflects the number and nature of the films and the circumstances in which the appellant endeavoured to sell them. The fine for the other offence, the orders for destruction and the costs order are unaffected.
At the hearing of the appeal the appellant requested that the films seized from him be returned. Those films were the subject of an order by the magistrate for destruction. Such an order is open where a person has been convicted of an offence under s 81(2): s 117 Classification Enforcement Act. Properly speaking it is an order for forfeiture to the Crown with a power for the thing to then be destroyed or otherwise dealt with. Given the time that has now elapsed it is likely that the order has now been enforced. In any event, there is no basis for concluding that the order ought not to have been made or that the films should have been returned to the appellant. Accordingly, I would not interfere with that order.
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