Kristiansen v Yeats
[2022] ACTSC 351
•16 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kristiansen v Yeats |
Citation: | [2022] ACTSC 351 |
Hearing Date: | 1 December 2022 |
DecisionDate: | 16 December 2022 |
Before: | Baker J |
Decision: | See paras [88] – [93] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – whether sentence affected by error of fact – where appellant sought to rely on new evidence on appeal – whether consequence of error is for Court to re-exercise sentencing discretion afresh |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5193 Crimes Act 1900 (ACT), ss 26A, 114C Road Transport (Driver Licensing) Act 1999 (ACT), s 32(2)(a) |
Cases Cited: | Barnes v R [2022] NSWCCA 140 Betts v The Queen [2016] HCA 25; 258 CLR 420 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 |
Parties: | Thor Kristiansen ( Appellant) Katherine Yeats ( First Respondent) Mathew Perkins (Second Respondent) |
Representation: | Counsel P Edmonds ( Appellant) K McCann ( Respondent) |
| Solicitors Paul Edmonds and Associate ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 22 of 2022 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate L Campbell Date of Decision: 3 March 2022 Case Title: Yeats v Kristiansen Court File Numbers: CC 2021/11549; CC 2021/11550; CC 2021/11551; CC 2021/2636; CC 2021/2637; CC 2021/2638; CC 2021/2639; CC 2021/2640; CC 2021/2641; CC 2021/2642; CC 2021/2644; CC 2021/3009; CC 2021/3010 |
BAKER J:
Introduction
The appellant appeals against sentences imposed on him by Magistrate Campbell (“the Magistrate”) in the Magistrates Court on 3 March 2022.
The appellant was sentenced for 13 separate charges, 9 of which resulted in sentences of imprisonment. The charges and individual sentences imposed are set out in the following table:
Court Number
Offence
Maximum penalty
Term of sentence imposed
Start/ end date
Series 1 – offences committed between 6 and 8 June 2020
1
CC21/11549
Deal with the proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT)
(namely a Mitsubishi Lancer)
200 penalty units and/or two years’ imprisonment
4 months 15 days
1/1/22 to 15/5/2022
2
CC21/11550
Unauthorised possession of two firearms, contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT)
(namely one 7 – 8 mm water gel ball, XYL Brand Python Model airgun with appearance of a six shot revolver, and one 7 – 8 mm water gel ball, unknown brand, airgun with appearance of a Heckler and Koch self-loading pistol)
5 years’ imprisonment
6 months 16 days
16/6/2022 to 31/12/2022
3
CC21/11551
Unauthorised possession of a prohibited firearm contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT)
(namely an air gun rifle)
10 years’ imprisonment
8 months 16 days
16/9/2022 to 31/5/2023
4
CC 21/2636
Drive vehicle with numberplate issued for another vehicle, contrary to s 22(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)
20 penalty units
$400 fine
5
CC21/2637
Drive whilst suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)
50 penalty units and/or six months’ imprisonment
2 months
16/4/2022 to 15/6/2022
6
CC 21/2638
Use unregistered vehicle contrary to s 18 (1) of the Road Transport (Vehicle Registration) Act1999 (ACT)
20 penalty units
$700 fine
7
CC21/2639
Drive whilst suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)
50 penalty units and/or six months’ imprisonment
2 months
16/5/2022 to 15/7/2022
8
CC 21/2640
Exceed speed limit, r 20 Road Transport (Road Rules) Regulation 2017 (ACT)
20 penalty units
$450 fine
9
CC21/2641
Resist a public official, contrary to s 361(1) of the Criminal Code 2002 (ACT)
200 penalty units and/or two years’ imprisonment
7 months 16 days
16/3/2023 to 31/10/2023
10
CC21/2642
Resist a public official, contrary to s 361(1) of the Criminal Code 2002 (ACT)
200 penalty units and/or two years’ imprisonment
7 months 16 days
16/3/2023 to 31/10/2023
11
CC21/2644
Unauthorised possession of ammunition, s 249(1) of the Firearms Act1996 (ACT)
(namely, possession of 6mm airsoft pellets)
10 penalty units
$400 fine
Series 2 – 18 March 2021
12
CC21/3009
Assaulting a frontline community service provider contrary to s 26A of the Crimes Act 1900 (ACT)
2 years’ imprisonment
2 months
1/1/2024 to 29/2/2024
13
CC21/3010
Resist public official, contrary to s 361 of the Criminal Code 2002 (ACT)
200 penalty units and/or two years’ imprisonment
6 months
1/8/2023 to 31/1/2024
The total period of imprisonment imposed was 26 months’ imprisonment, with a non-parole period of 17 months.
The appellant appeals each of the sentences that resulted in imprisonment. In particular, he contends that there is error in the sentence imposed for the offence of unauthorised possession of a prohibited firearm, namely the air gun rifle (CC 2021/11551). The appellant does not contend that there is any error in the sentences imposed by the Magistrate for any other offence.
The appellant relies on a single ground of appeal, namely that the sentence imposed for the offence of possession of a prohibited weapon (namely, the air gun rifle) was affected by an error of fact. In particular, the appellant contends that the Magistrate erred in finding that the air gun rifle was capable of firing pellets at the time of possession. To establish this alleged error of fact, the appellant seeks leave to rely on a report of Clive Roberts, Forensic Firearms and Toolmark Examiner dated 21 January 2021 (“the Roberts Report”). The Roberts Report records that, at the time that it was seized, the battery of the air gun rifle was damaged.
The Roberts Report was not tendered in the proceedings before the Magistrate, and there was no other evidence before the Magistrate that suggested that the air gun rifle was not in working order at the time that it was seized. The Roberts Report had been served upon the appellant prior to the sentence proceedings. Mr Edmonds, who appeared for the appellant in the present appeal and in the proceedings below, accepted that the Report should have been tendered in the proceedings before the Magistrate. He explained that he overlooked the Report’s significance.
The appellant contends that if the evidence was admitted before the Magistrate, the Magistrate would have made a more favourable finding of fact on an issue relevant to the sentencing discretion.
The respondent submits that the evidence is not admissible on the appeal, and further submits that, if the evidence is admitted on the appeal, no lesser sentence is warranted. However, the respondent accepted that it was appropriate for the Roberts Report to be provisionally admitted for the purpose of considering the appeal, with the final decision concerning admissibility to be determined as part of the resolution of the appeal.
For the reasons outlined below, I have concluded that the Roberts Report is admissible in the particular circumstances of the appellant’s case. I have further concluded that the appeal should be allowed, and that a somewhat less severe sentence should be imposed for the offence of possession of a prohibited firearm.
Background to the offences
10.The sentences related to two series of offending. The first series of offending occurred between 6 and 8 June 2020 and the second series of offending occurred on 18 March 2021. As the appeal is limited in scope to the offence of possessing a prohibited firearm, it is only necessary to briefly summarise the general events giving rise to the offences.
The first series of offences
11.On 6 June 2020, the appellant was identified driving a stolen Mitsubishi Lancer, bearing registration plates which had also recently been reported as stolen from another vehicle. On 7 June 2020, the appellant was pictured driving in another vehicle at a speed of 125 km/h in a 100 km/h zone. Police later confirmed the appellant’s driver’s licence was suspended at each time the appellant drove during this series of offending.
12.Between 6 – 8 June 2020, a burglary occurred at a residence in Braddon where numerous items including a handgun style gel blaster were stolen. On 8 June 2020, the police attended the appellant’s residence to locate him. The appellant entered a VW vehicle in the garage which had no registration plates. The appellant did not comply with police directions to exit the vehicle and a physical struggle occurred where police deployed capsicum spray and tasered him. The appellant continued to resist arrest and was subsequently taken to hospital by an ambulance.
13.On 17 June 2020, police searched the VW vehicle that was seized from the accused’s residence. Police located three firearms in the vehicle, including the handgun gel blaster that was stolen from the Braddon residence. One of the firearms found was an air gun rifle. This is the firearm that gave rise to the charge that is the subject of the present appeal.
The second series of offending
14.On 18 March 2021, police observed a car known to be associated with the appellant travelling on MacFarland Crescent. The police pulled the car over, identified the driver as the appellant, and informed him that he was under arrest for a breach of parole. The accused fled.
15.Police chased the appellant as he ran into a residence where he continued to avoid arrest. The appellant was tasered, however, the police were unable to restrain him. The appellant moved his hand into his waist-band and police believed he was reaching for a weapon.
16.The appellant attempted to flee, and a police officer directed him to place his hands behind his back. The appellant grabbed the officer on his right arm above the wrist, causing him pain. Other officers attempted to restrain the appellant and he continued to resist. The appellant was again tasered. The appellant then jumped onto a trailer in an attempt to jump a fence, however the trailer gave way and at this point the police apprehended him.
Sentence proceedings
17.The appellant pleaded guilty to charges CC 2021/3009-3010 (the assaults that occurred in the second series of offending) on 30 April 2021. The appellant pleaded guilty to charge CC 2021/2642 (one of the resist officer offences from the first series of offending) on 11 June 2021. The appellant pleaded guilty to the remainder of the charges (CC 2021/11549; CC 2021/11550; CC 2021/11551; CC 2021/2637; CC 2021/2639; CC 2021/2641) on 13 December 2021.
18.The proceedings on sentence first came before the Magistrate on 13 December 2021. For a variety of reasons, they proceeded part-heard over 14 and 22 December 2021 and 18 January 2022 before her Honour delivered sentence remarks on 3 March 2022.
19.At the outset of the sentencing proceedings on 13 December 2021, the prosecutor tendered an Agreed Statement of Facts. As Ms McCann, who appeared for the respondent, properly acknowledged on appeal, that Statement of Facts was deficient in many respects. In particular, the total content of information concerning firearms in the Agreed Statement of Facts was:
During the search warrant conducted on the VW, numerous items of stolen property were located including a handgun style gel blaster.
20.The Agreed Statement of Facts did not contain any information about whether the air gun rifle that was the subject of the offence of possession of a prohibited weapon was loaded or in working order. Indeed, the Agreed Statement of Facts did not even refer to the fact that the air gun rifle had been located in the VW with the handgun style gel blaster.
21.Although the Agreed Statement of Facts did not contain any information relating to the air gun rifle, various photographs were tendered in the prosecution case, a number of which depicted the air gun (Photos 1, 2, 4, 5 and 6). One of those photographs (Photo 5) depicted small orange pellets which were proximate to the magazine of the gun.
22.The Magistrate asked the parties about the firearms (both the air gun rifle and the gel blaster), and specifically queried whether the firearms were in working order:
HER HONOUR: So that means none of them actually work?
PROSECUTOR: Well, they all fire gel blaster pellets. They don't fire real ammunition.
HER HONOUR: What does a gel blaster pellet do it if hits you?
EDMONDS: I would guess, your Honour, similar to a nasty mosquito bite.
PROSECUTOR: Your Honour, it might be worse than that. It is similar to a paintball.
HER HONOUR: Okay. Paintball was what came to mind for me.
PROSECUTOR: It is a similar - - -
HER HONOUR: Being so well experienced in relation those games.
PROSECUTOR: It is certainly not capable of causing lethal injury like a real firearm.
HER HONOUR: If I saw somebody holding one of those, I would be scared, though.
23.Shortly after this, the prosecutor referred the Magistrate to the photographs of the air gun rifle and made the following submission:
PROSECUTOR: In the top half of the pistol – of the picture is the air gun that is 25 depicted in photo 1 and 2. In the bottom half of the picture, your Honour can see a Coke bottle which is a little bit crushed.
HER HONOUR: Yes, yes.
PROSECUTOR: Underneath that is a black bit of plastic and when we go through the photos, your Honour will see that that is a handgun. So if your Honour goes to photograph 4, there is a closer-up picture and again you can't quite see the full gun but you can see the handle underneath the plastic Coke bottle. Photograph 5 shows the air gun rifle once it's been taken out of the car, as well as a magazine where your Honour can see some pellets, orange pellets. (emphasis added)
24.In his closing submissions, the prosecutor made the following submissions concerning the air gun rifle:
PROSECUTOR: In this particular case - and I agree with what my learned friend has said about the matters to be taken into account in determining the objective seriousness as set out in Kakovic v Noble, that your Honour would take into account those matters. So if I can also go through them. Here there is possession as opposed to use. The nature of the prohibited firearms - this is important, with respect, your Honour, because of the nature of it, as your Honour can see in the photograph - it is a large assault rifle. It is capable of firing. Not capable of firing real ammunition, but gel blasters. The most significant factor, in my respectful submission, your Honour, is the appearance of it. (emphasis added)
- The prosecutor then continued:
PROSECUTOR: Whether the prohibited firearms were loaded or not, there is at least some evidence that there was a magazine attached to the rifle, and your Honour can see in one of the photographs three of those pellets. It's at photographs 5 and 6.
HER HONOUR: So was the magazine just with it or actually inserted into it when it was found?
PROSECUTOR: It was inserted in it.
HER HONOUR: Okay.
PROSECUTOR: So your Honour can see the magazine inserted in it in photographs 1 and 2. In the photograph when it's being laid on the blue sheet, photograph 5 and 6, the magazine has been pulled out of the firearm, and you can then see those pellets. So, the obvious inference is those pellets were in that magazine. (emphasis added)
The Magistrate’s reasons for sentence
- The Magistrate delivered comprehensive reasons for sentence on 3 March 2022. In view of the limited scope of the appeal, it is only necessary to refer to the Magistrate’s findings concerning the firearms.
- In respect of the firearms, the Magistrate cited the decision of McWilliam J in R v Antoniak [2021] ACTSC 228, in which her Honour held that the objective seriousness of a firearm offence will be affected by a number of factors, including, inter alia, “whether the prohibited firearm was loaded or not.”
- The Magistrate then continued:
The definition of a firearm is very broad and the legislation does not distinguish between a replica and real firearm. Nevertheless, some things are obvious. Genuine weapons are more dangerous than imitations. The greater the number of firearms, the more serious the penalty. A loaded firearm is more dangerous than an unloaded one. Possession is less serious than actual use of a weapon. All three weapons were replicas. There was nothing to suggest that the two handguns were loaded or in the vicinity of appropriate ammunition. The air gun rifle, however, had pellets in it. It was capable of firing not real ammunition but with items I am told are called gel balls or blasters. It had a magazine inserted in it and there were gel balls within the magazine.
The new evidence
29.The appeal was listed before me for hearing on 1 December 2022. At that time, the appellant had filed a draft Notice of Appeal in which he foreshadowed an intention to seek to put further evidence before the Court on the appeal, but he had not filed an application seeking to adduce further evidence, as is required by r 5193 of the Court Procedures Rules 2006 (ACT).
- At the outset of the hearing, I indicated that I required a formal application to adduce the report and an affidavit in support of that application. I granted leave to the appellant to file that application together with a supporting affidavit, each of which were provided to my chambers later that day.
- Mr Edmonds’ affidavit attached a copy of the Roberts Report. There are two significant findings that are recorded in the Report:
(i)First, on page 6 of the Report, Mr Roberts records that “[t]he battery was located in the stock of the [air gun rifle] and found to be damaged”;
(ii)Second, the Report did not record that any gel pellets were located in the air gun rifle, or provided to him as a separate exhibit by police. Rather, on page 7 of the Report, Mr Roberts states that he sourced reconstituted gel ball pellets from the FIAT ammunition store, and that, once a new working battery had been attached, the air gun rifle was found to be capable of discharging a projectile by means of compressed air.
- The appellant contends that these two aspects of the report demonstrate that the Magistrate erred in finding that the air gun rifle was loaded and that it had the capacity to fire gel pellets at the time of possession by the appellant.
- Mr Edmonds explained that the reason why this evidence was not adduced by the appellant before the sentencing Magistrate is that he:
assumed from the photographs tendered on sentence by the prosecution that the prohibited firearm must have been loaded and overlooked the potential significance of this evidence.
- Ms McCann accepted that an inference should be drawn from the Roberts Report that Mr Roberts did not himself find any pellets within the air gun rifle after it had been provided to him by police. However, in view of the orange pellets depicted in Photograph 5, she did submitted that an inference be drawn that police located gel pellets in the air gun rifle when they found it in the VW.
- It was not clear from the evidence before the Magistrate whether Photograph 5 was taken by police immediately after the air gun rifle was seized, or by Mr Roberts as a part of his examination of the weapon. If the latter, it would follow that the pellets pictured must have been those that had been sourced by Mr Roberts.
36.Both parties agreed that if Photograph 5 was taken after the air gun rifle was supplied to Mr Roberts, the Magistrate’s finding that the “air gun rifle had pellets in it” was in error, and that this Court would then proceed to resentence. For this reason, the respondent was granted leave to file evidence in response to the appellant’s application to file the Roberts Report.
37.On 5 December 2022, the appellant filed an affidavit which annexed various statements relating to the air gun rifle. That evidence was also provisionally admitted on the appeal. Those statements demonstrate that Photograph 5 was taken by investigating police immediately after the air gun rifle was seized. The appellant accepts that it follows that the orange gel pellets pictured in that photograph were found by police in the air gun rifle at the time of seizure.
38.There was no evidence from the investigating officers explaining how the pellets were removed from the air gun rifle. In an email dated 2 December 2022, which was also attached to the respondent’s affidavit, Mr Roberts explained that hydrated gel balls do “dry out” over time, and that when this occurs, they may not hold in place in the magazine. Mr Roberts said that the gel balls may have been photographed outside of the magazine either because they were removed by police, or because they had dehydrated and fell out when the magazine was detached by police.
Determination
The application for the admission of new evidence on appeal
39.Section 214 of the Magistrates Court Act1930 (ACT) provides as follows:
(1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies).
(2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3) In an appeal to which this section applies, the Supreme Court must—
(a) if it considers it necessary or expedient to do so in the interests of justice—
(i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and
(ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and
(iii) receive the evidence, if tendered, of any witness; and
(b) receive evidence with the consent of the parties to the appeal.
(4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
40.In Greenwood v Barlee [2018] ACTSC 46, Mossop J observed that s 214 provides for three different bases upon which new evidence may be admitted on an appeal from the Magistrates Court. These are where:
(i)The parties consent to the receipt of evidence: s 214(3)(b);
(ii)There is a reasonable explanation for the previous failure to adduce the evidence, the evidence is likely to be credible, the evidence would have been admissible in the proceedings below, and the Court is not satisfied that the evidence would not afford a ground for allowing the appeal: s 214(4); or
(iii)The Court considers it “necessary or expedient” in “the interests of justice” to admit the evidence of a witness: s 214(3)(a).
41.Categories (ii) and (iii) correspond, in general terms, with common law authorities concerning the distinction between ‘fresh’ and ‘new’ evidence: see Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 517 and Lawless v The Queen [1979] HCA 49; 142 CLR 659 at 675. Category (ii) broadly corresponds with what is referred to as ‘fresh evidence’, namely, evidence that could not have been obtained with the exercise of reasonable diligence, whilst category (iii) broadly corresponds with what is referred to as ‘new evidence, namely evidence that could have been obtained with the exercise of reasonable diligence.
42.At common law, ‘fresh evidence’ is received more readily than ‘new evidence’: see similarly Barnes v R [2022] NSWCCA 140 at [28]. Similarly, under s 214(4), the evidence must be admitted where there is a reasonable explanation for the previous failure to adduce the evidence, provided the evidence is credible, the evidence would have been admissible in the proceedings below and the evidence could afford a ground of appeal. Where there is no reasonable explanation for the failure to adduce the evidence, the appellant must satisfy the Court that it is “necessary or expedient” in “the interests of justice” to admit the evidence.
43.In the present case, the appellant accepts that there is no reasonable explanation provided for his failure to tender the Roberts Report in the sentence proceedings before the Magistrate, and accordingly does not invoke s 214(4) of the Magistrates Court Act. Rather, the appellant contends that the Court should find that it is “necessary or expedient” in “the interests of justice” to admit the Roberts Report under s 214(3)(a) of the Act.
44.It will be necessary or expedient in the interests of justice to admit evidence if the absence of that evidence in the proceedings before the Magistrate has given rise to a miscarriage of justice: see Betts v The Queen [2016] HCA 25; 258 CLR 420 at [10].
45.The parties drew my attention to the decision of Mossop J in SBT v Wright [2021] ACTSC 322 at [43] – [67]. In SBT, his Honour held that, even where further evidence is admitted under s 214 of the Magistrates Court Act, it remains necessary for an appellant to demonstrate error in the Magistrate’s decision: SBT at [66]. His Honour observed that such error may be demonstrated by reference to the evidence admitted under s 214, and that the “establishment of error may become easier if evidence is admitted.”
46.If it is necessary to admit the Roberts Report to avoid a miscarriage of justice, it will follow that there was error in the decision below (albeit error that is not in any way attributable to the Magistrate).
47.The appellant contends that the Roberts Report demonstrates that a factual finding made by the Magistrate was erroneous, and that this factual error resulted in the appellant serving a longer period of imprisonment than he would have if the error had not occurred. I accept that a factual error that resulted in the imposition of a longer period of imprisonment would amount to a miscarriage of justice that requires admission of the evidence.
Does the new evidence demonstrate a factual error in the Magistrate’s finding?
48.The finding of the Magistrate that is impugned by the appellant is as follows:
All three weapons were replicas. There was nothing to suggest that the two handguns were loaded or in the vicinity of appropriate ammunition. The air gun rifle, however, had pellets in it. It was capable of firing not real ammunition but with items I am told are called gel balls or blasters. It had a magazine inserted in it and there were gel balls within the magazine. (emphasis added)
49.The Magistrate did not err in finding that the air gun rifle “had pellets in it” or that “there were gel balls within the magazine”. The evidence tendered by the respondent in reply to the appellant’s application demonstrates beyond reasonable doubt that the air gun rifle had pellets in it at the time that it was seized.
50.However, the appellant’s contention is that the Magistrate erred in finding that the air gun rifle “was capable” of firing pellets. The appellant submits that it is clear that the Magistrate was referring to the capacity of the air gun rifle to fire pellets at the time of possession, and not at some future time. He further submits that the air gun rifle was not capable of firing pellets at the time that it was in his possession, both because its battery was damaged, and because the pellets contained within it were “dried out and incapable of being fired.”
51.The evidence sought to be tendered on appeal is equivocal as to whether the gel balls found within the air gun rifle were incapable of being fired because they had dried out. In his email, Mr Roberts stated that the pellets may have been taken out of the air gun rifle either because they were dried out and fell out of the magazine or because they were removed by police. There is no evidence from investigating police as to whether the pellets were removed by police or whether they fell out of the magazine.
52.It is not necessary to resolve this issue. The evidence before this Court unequivocally demonstrates that the battery of the air gun rifle was damaged. Accordingly, the appellant’s broader submission that the air gun rifle was not capable of being fired at the time of possession must be accepted.
53.Ms McCann properly accepted that a finding that the air gun rifle was capable of being fired at the time of possession would increase the objective seriousness of the offence. However, she submitted that “it is unclear what, if anything other than describing the state in which the firearm was found, her Honour made of the fact that the firearm was loaded.” Ms McCann submitted that the Magistrate was simply contrasting the capacity of the air gun rifle to fire gel pellets “as opposed to real ammunition”.
54.Despite the able submissions of Ms McCann, I am of the view that, when read in the context of her decision as a whole, in finding that the air gun rifle was “capable” of firing gel pellets, the Magistrate was referring to the capacity of the air gun rifle to fire gel pellets at the time that it was seized, and that her Honour concluded that this capacity made the possession of that firearm more objectively serious. My reasons for this conclusion are as follows.
55.At the outset of her consideration of the objective seriousness of the firearms offences, the Magistrate observed, in accordance with authority, that “genuine weapons are more dangerous than imitations” and that “a loaded firearm is more dangerous than an unloaded one.”
56.Her Honour then referred to the two handguns, noting that there was “nothing to suggest that either of those were loaded or in the vicinity of appropriate ammunition.” Her Honour contrasted these handguns with those of the air gun rifle, which “had pellets in it”, before finding that the air gun rifle “was capable of firing not real ammunition [but] gel balls or blasters…”
57.In other words, when read in the context of the decision as a whole, it is clear that whilst her Honour recognised that the gel pellets were not “real ammunition”, her Honour assessed the possession of the air gun rifle as having heightened objective seriousness because, unlike the other firearms located in the VW, the air gun rifle was capable of being fired at the time of possession.
58.The new evidence clearly demonstrates that this finding was in error. At the time of possession, the air gun rifle was not capable of firing gel pellets, as it had a damaged battery. This error was not in any way attributable to the Magistrate, who had not been provided with any evidence of the damaged battery, and was in fact told by the prosecutor that the air gun rifle was “capable of firing”.
What are the consequences of the error?
59.The respondent submitted that the Court would decline to exercise the discretion in s 214(3)(a) on the basis that it is not necessary or expedient in the interests of justice to receive the evidence. In particular, the respondent submitted that:
(i)The evidence was available to be used but was not and there is no explanation for its failure to be adduced;
(ii)The appellant has attempted to resile from a position he took at first instance (referring to Zreika v R[2012] NSWCCA 44; 223 A Crim R 460 at [79] – [81]); and
(iii)The evidence does not support any ground of appeal.
60.As to (i) and (ii), it is extremely regrettable that the Magistrate was not provided with accurate information as to the working state of the air gun rifle. However, Mr Edmonds has provided an explanation for his failure to adduce the Roberts Report on behalf of the appellant, namely that he overlooked the significance of the Report. I am satisfied that this is not a case where a deliberate forensic decision was made to not rely on the Report. The fact that the battery of the air gun rifle was damaged was a factor which unequivocally operated in the appellant’s favour on sentence: see Zreika at [82].
61.As McCallum J (as her Honour then was) held in Griffin v R [2018] NSWCCA 329 at [36], whilst the appellant’s legal representative’s failure to assist the Magistrate was “unfortunate”, the observations made in Zreika should not preclude the Court from entertaining the ground of appeal. This is particularly so in circumstances where the prosecutor also appears to have overlooked the significance of the Report, in that, when the Magistrate specifically asked the prosecutor whether any of the firearms “actually worked”, the prosecutor made no reference to the damaged battery of the air gun rifle.
62.As to (iii), for the reasons outlined above, I am satisfied that the Magistrate found, consistent with authority, that the objective seriousness of the offence of possessing the air gun rifle was higher because that firearm was capable of firing pellets at the time of possession. I accept that the degree to which the objective seriousness was increased may not have been much, given that the Magistrate was, understandably, more concerned about the appearance of the firearm than its capacity to fire non-lethal pellets. However, although the objective seriousness of the offence of possessing the air gun rifle may not have been increased by much, it is clear that the sentence imposed by the Magistrate was higher as a result of her finding that the air gun rifle was capable of firing pellets at the time that it was possessed.
63.For this reason, I am satisfied that the new evidence supports the ground of appeal pleaded. Accordingly, I admit the evidence of the Roberts Report. I also admit the affidavit read by the respondent in reply to that evidence.
64.Having admitted that evidence, I find the ground of appeal established.
Resentencing
The nature of the resentencing task
65.Section 218 of the Magistrates Court Act provides as follows concerning the orders that may be made by this Court on an appeal under s 214:
218 Orders by Supreme Court on appeals
(1) On an appeal to which this division applies, the Supreme Court may—
(a) confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or
(b) give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate.
(2) A judgment or order of the Supreme Court under subsection (1) (a) or (b) has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.”
66.In New South Wales, it is well established that where an error in the reasons for sentence given by a District Court judge has the capacity to affect the sentence imposed, s 6 of the Criminal Appeal Act 1912 (NSW) requires the Court of Criminal Appeal to undertake the whole of the sentencing exercise afresh: Kentwell v The Queen [2014] HCA 37; 252 CLR 601. It is only in very limited circumstances (including the correction of arithmetic errors) that the New South Wales Court of Criminal Appeal may adjust a sentence to correct a discrete error in the sentencing discretion without reconsidering the exercise of the sentencing discretion afresh: Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205 at [72]; see also Green v The Queen [2022] NSWCCA 230 at [50] – [58] and the cases cited therein.
67.However, in Morrison v Maher [2021] ACTSC 312, Mossop J observed that the text of s 218 of the Magistrates Court Act is broader than s 6(3) of the Criminal Appeal Act 1912 (NSW). In particular, whilst s 218 confers jurisdiction on this Court to “confirm, reverse or vary” the sentence appealed from, s 6(3) of the New South Wales legislation is more limited. Section 6(3) requires that, if the Court of Criminal Appeal “is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed”, the Court:
Shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
68.Justice Mossop emphasised the importance of giving attention to the differences in the text of the two provisions: Morrison at [40]. His Honour concluded (at [48]) that:
The generality of the language [of s 218] means there are fewer constraints upon the court in determining the approach that should be adopted once error is detected. In an appropriate case, the difference between the statutory language may be of significance.
69.However, in Morrison, his Honour found that, having regard to the nature of the errors conceded in that case (which raised questions of totality and concurrency), it was necessary for the appellant to be resentenced in accordance with Kentwell: see Morrison at [53].
70.Both parties urge me to adopt the same approach in the present case. Neither party suggested that this was a case where the Court could appropriately “adjust” the sentence imposed to address the error.
71.I agree. The error that I have found is a factual error which affects the instinctive synthesis by which the Magistrate determined the appropriate sentence to be imposed for the offence of possessing the air gun rifle. I cannot adjust the sentence to correct this error and it is necessary for me to re-exercise that sentencing discretion afresh.
72.The appellant submitted that on the re-exercise of my sentencing discretion, I would reduce the sentence imposed for possession of the air gun rifle to “no more than the sentence that was imposed by the Magistrate for the two unprohibited firearms”, namely to imprisonment for six and a half months. In particular, Mr Edmonds submitted that because the air gun rifle was not capable of being loaded, it was “no more serious than the offence of possession of two non-prohibited firearms.”
73.I do not accept that the approach contended for by Mr Edmonds is appropriate. In applying Kentwell (as urged by the appellant), I must “independently” exercise the sentencing discretion “afresh”: Kentwell at [42]. It would be inconsistent with the Kentwell approach to resentencing to attempt to predict the sentence that the Magistrate in the proceedings below would have imposed if she had been provided with the correct factual information.
74.In any event, I do not accept Mr Edmonds’ submission that possession of an air gun rifle that is not capable of firing at the time of possession is no more serious than possession of a non-prohibited firearm (or two non-prohibited firearms). The maximum penalty of the two offences differs significantly: the offence of possessing a non-prohibited firearm carries a maximum penalty of 5 years’ imprisonment, whereas the maximum penalty for the offence of possessing a prohibited weapon carries a maximum penalty of imprisonment for 10 years. I also note the evidence of Mr Roberts that the firing mechanism of the air gun rifle was found to be fully automatic, with the ability to propel projectiles in rapid succession during one application of rearward pressure of the trigger. Most importantly, as the Magistrate observed, it was the appearance of the air gun rifle that was of particular significance in assessing the objective seriousness of the offence of possession of the prohibited firearm.
The appropriate sentence to be imposed for the prohibited firearm offence
75.In accordance with the decision in Kentwell, I have independently assessed the appropriate sentence to be imposed for the charge of possession of a prohibited firearm, namely an air gun rifle (CC21/11551).
76.In assessing the appropriate sentence to be imposed, I have considered each of the matters addressed by the Magistrate, none of which, apart from the Magistrate’s finding as to the capacity of the air gun rifle to be fired, were the subject of challenge in this Court. Those matters include:
The maximum penalty for the offence
77.The maximum penalty for the offence, of imprisonment for 10 years.
The objective seriousness of the offence
78.In assessing the objective seriousness of the offence, I have taken into account the following matters:
(i)where the firearm was found, namely in the footwell of the VW which was, as the Magistrate found, a highly insecure storage place,
(ii)the possession was of short duration (a few days at most),
(iii)the fact that, at the time of possession, the air gun rifle was not then capable of being fired because of its damaged battery, and
(iv)the appearance of the firearm, which would, as the Magistrate found, “cause alarm in any ordinary lay person at whom [it was] pointed”.
The appellant’s subjective circumstances
79.I have taken into account the appellant’s criminal history and the fact that the offence was committed whilst the appellant was on parole. As the Magistrate found, the appellant’s criminal history is long. It is not one which would attract leniency on that account. The fact that the offences were committed whilst the appellant was on parole is an aggravating matter on sentence: R v Collins (No 2) [2021] ACTSC 262 at [117].
80.I was not provided with any subjective material on the appeal, but I was referred to the decision of Burns J in R v Kristiansen [2017] ACTSC 292, which was before the Magistrate in the proceedings below as evidence of the appellant’s subjective circumstances. That judgment describes the appellant’s background of neglect by his mother, his father’s frequent incarceration, and his unstable childhood. Like the Magistrate, I have applied the principles set out in Bugmy v The Queen [1990] HCA 18; 169 CLR 525. In particular, I find that the appellant’s moral culpability is reduced as a result of his background of disadvantage. For this reason, I have ameliorated, to some extent, the weight to be given to general deterrence and denunciation.
81.As the Magistrate observed, considerations of rehabilitation remain of importance. Like the Magistrate, I have taken into account the appellant’s completion of the Solaris Therapeutic Program. No further evidence relating to rehabilitation has been tendered on the appeal.
Discount
82.I also apply the same 15% discount imposed by the Magistrate for the appellant’s plea of guilty.
Conclusion
83.Taking into account each of these matters, I conclude that the appropriate sentence for the charge of possess prohibited weapon (CC21/11551) is a term of imprisonment for 9 months. Applying a 15% discount and rounding down, this results in a term of imprisonment of 7 and a half months.
84.Both parties submitted that I should not reconsider the sentence imposed by the Magistrate for any of the other offences to which the accused pleaded guilty. As discussed above, the breadth of the text of s 218 of the Magistrates Court Act may have justified such a confinement of the scope of the appeal, even if that had not been the agreed position of the parties. In any event, an appellate court is permitted to adopt the unchallenged findings of the court below, even under a strict Kentwell resentencing: Sigalla v The Queen (No 2) [2021] NSWCCA 151 at [40]. Accordingly, the terms of imprisonment for each of the other offences will remain unchanged.
85.However, it remains necessary for me to reconsider questions of totality and concurrency. In the independent exercise of my discretion, I impose the following commencement dates:
86.
Court Number
Offence
Maximum penalty
Term of sentence imposed
Start/ end date
Series 1 – offences committed between 6 and 8 June 2020
1
CC21/11549
Deal with the proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT)
(namely a Mitsubishi Lancer)
200 penalty units and/or two years’ imprisonment
4 months 15 days
1/1/22 to 15/5/2022
2
CC21/11550
Unauthorised possession of two firearms, contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT)
(namely one 7 – 8 mm water gel ball, XYL Brand Python Model airgun with appearance of a six shot revolver, and a 7 – 8 mm water gel ball, unknown brand, airgun with appearance of a Heckler and Koch self-loading pistol)
5 years’ imprisonment
6 months 16 days
16/6/2022 to 31/12/2022
3
CC21/11551
Unauthorised possession of a prohibited firearm contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT)
(namely an air gun rifle)
10 years’ imprisonment
7 months 15 days
16/9/2022 to 30/4/2023
4
CC21/2637
Drive whilst suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)
50 penalty units and/or six months’ imprisonment
2 months
16/4/2022 to 15/6/2022
5
CC21/2639
Drive whilst suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)
50 penalty units and/or six months’ imprisonment
2 months
16/5/2022 to 15/7/2022
6
CC21/2641
Resist a public official, contrary to s 361(1) of the Criminal Code 2002 (ACT)
200 penalty units and/or two years’ imprisonment
7 months 16 days
16/2/2023 to 01/10/2023
7
CC21/2642
Resist a public official, contrary to s 361(1) of the Criminal Code 2002 (ACT)
200 penalty units and/or two years’ imprisonment
7 months 16 days
16/2/2023 to 01/10/2023
Series 2 – 18 March 2021
8
CC21/3009
Assaulting a frontline community service provider contrary to s 26A of the Crimes Act 1900
2 years’ imprisonment
2 months
01/12/2023 to 31/1/2024
9
CC21/3010
Resist public official, contrary to s 361 of the Criminal Code 2002
200 penalty units and/or two years’ imprisonment
6 months
1/7/2023 to 31/12/2023
86.The sentence imposed by the Magistrate has been stayed pending the resolution of the appeal pursuant to s 216 of the Magistrates Court Act. However, as the appellant remained in custody during that time, the respondent submitted that the sentence should be backdated to take account of that time. I have back-dated the sentence in accordance with this submission.
87.The total sentence imposed will be imprisonment for 25 months with a non-parole period of 16 months. The total sentence will expire on 31 January 2024 and the non-parole period will expire on 30 April 2023.
Orders
88.I grant leave to the appellant to adduce the evidence contained in the affidavit of Paul Edmonds affirmed on 1 December 2022.
89.I grant leave to the respondent to adduce the affidavit of Emma Margaret Roff affirmed on 5 December 2022.
90.The appeal is allowed.
91.The sentences imposed by the Magistrate for charge numbers CC21/11549, CC21/11550, CC21/11551, CC21/2637, CC21/2639, CC21/2641, CC21/2642, CC21/3009 and CC21/3010 are set aside.
92.I resentence the appellant as follows:
93.
Court Number
Offence
Maximum penalty
Term of sentence imposed
Start/ end date
Series 1 – offences committed between 6 and 8 June 2020
1
CC21/11549
Deal with the proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT)
(namely a Mitsubishi Lancer)
200 penalty units and/or two years’ imprisonment
4 months 15 days
1/1/22 to 15/5/2022
2
CC21/11550
Unauthorised possession of two firearms, contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT)
(namely one 7 – 8 mm water gel ball, XYL Brand Python Model airgun with appearance of a six shot revolver, and a 7 – 8 mm water gel ball, unknown brand, airgun with appearance of a Heckler and Koch self-loading pistol)
5 years’ imprisonment
6 months 16 days
16/6/2022 to 31/12/2022
3
CC21/11551
Unauthorised possession of a prohibited firearm contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT)
(namely an air gun rifle)
10 years’ imprisonment
7 months 15 days
16/9/2022 to 30/4/2023
4
CC21/2637
Drive whilst suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)
50 penalty units and/or six months’ imprisonment
2 months
16/4/2022 to 15/6/2022
5
CC21/2639
Drive whilst suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)
50 penalty units and/or six months’ imprisonment
2 months
16/5/2022 to 15/7/2022
6
CC21/2641
Resist a public official, contrary to s 361(1) of the Criminal Code 2002 (ACT)
200 penalty units and/or two years’ imprisonment
7 months 16 days
16/2/2023 to 01/10/2023
7
CC21/2642
Resist a public official, contrary to s 361(1) of the Criminal Code 2002 (ACT)
200 penalty units and/or two years’ imprisonment
7 months 16 days
16/2/2023 to 01/10/2023
Series 2 – 18 March 2021
8
CC21/3009
Assaulting a frontline community service provider contrary to s 26A of the Crimes Act 1900
2 years’ imprisonment
2 months
01/12/2023 to 31/1/2024
9
CC21/3010
Resist public official, contrary to s 361 of the Criminal Code 2002
200 penalty units and/or two years’ imprisonment
6 months
1/7/2023 to 31/12/2023
93.The total sentence imposed is imprisonment for 25 months with a non-parole period of 16 months. The total sentence will expire on 31 January 2024 and the non-parole period will expire on 30 April 2023.
| I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A Bucci Date: 30 January 2023 |
Amendments
30 January 2023 Replace “the respondent” with “the appellant” Paragraphs: [37]
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