Kurt Richard Wagner and v The Queen and

[2014] VSCA 157

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0091

KURT RICHARD WAGNER

Applicant

v

THE QUEEN

Respondent

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JUDGES:	MAXWELL P and REDLICH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2014
DATE OF JUDGMENT:	21 July 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 157
JUDGMENT APPEALED FROM:	DPP v Wagner [2014] VCC 350 (Chief Judge Rozenes)

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CRIMINAL LAW – Appeal – Sentence – Prohibited person in possession of an unregistered firearm – Finding that firearm had ‘recently’ been fired – Crown concession of factual error – Error immaterial – Separate errors as to maximum penalties for offences of possessing drug of dependence – Appeal allowed – Applicant re-resentenced on drug charges – Total effective sentence reduced by one month – Non-parole period unchanged.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Pica Criminal Lawyers
For the Crown	Ms S Borg	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. I will invite Redlich JA to deliver the first judgment.

REDLICH JA:

1. On 11 March 2014, the applicant, now aged 37, pleaded guilty to one charge of attempting to obtain property by deception (charge 1);  one charge of handling stolen goods (charge 2);  three charges of recklessly dealing with the proceeds of crime (charges 3, 4 and 5);  one charge of being a prohibited person possessing an unregistered firearm (charge 6);  and two charges of possessing a drug of dependence (charges 7 and 8).

1. Following a plea on 1 April 2014, he was sentenced in the following terms.

   
   
   

Charge on Indictment	Offence	Sentence	Cumulation
1	Attempt to obtain property by deception	6 months	2 months
2	Handle stolen goods	6 months	2 months
3	Recklessly deal with the proceeds of crime	6 months	2 months
4	Recklessly deal with the proceeds of crime	12 months	4 months
5	Recklessly deal with the proceeds of crime	6 months	2 months
6	Prohibited person in possession of unregistered firearm	24 months	Base
7	Possess drug of dependence - Methylamphetamine	6 months	2 months
8	Possess drug of dependence – Cannabis	3 months	-
Total Effective Sentence:		3 years and 2 months’ imprisonment
Non-Parole Period:		30 months
Pre-sentence Detention Declared:		729 days
6AAA Statement:		4 years’ imprisonment, with non-parole period of 3 years
Other orders: Disposal order. Forfeiture order.

1. For completeness I should set out the maximum penalties which his Honour identified,[1] a number of which contained error.  His Honour said that charge 1 carries a maximum penalty of six years’ imprisonment;  that charge 2 carries a maximum penalty of 15 years’ imprisonment;  that charges 3, 4 and 5 each carry a maximum penalty of 10 years’ imprisonment;  that charge 6 carries a maximum penalty of 10 years’ imprisonment;  and that charges 7 and 8 each carry a maximum penalty of five years’ imprisonment. 

   [1]DPP v Wagner [2014] VCC 350, [2] (Sentencing Remarks).

1. During the course of oral argument, it was recognised that his Honour had been led into error in relation to charges 6, 7 and 8.  The true position was that charge 6 carries a maximum penalty of 15 years’ imprisonment, that charge 7 carries a maximum penalty of one year’s imprisonment and that the maximum penalty that could be imposed on charge 8 was five penalty units, which meant that, unless his Honour was to take some other course, a fine was appropriate.

1. I will return to the consequences of those errors with respect to the maximum penalties later in my reasons but I should observe that the Chief Judge was entitled to greater assistance from both parties in ensuring that the Court was provided with the correct maximum sentences for the sentences imposed.

1. The facts are set out in his Honour’s sentencing remarks as follows:

In brief summary, on 20 March 2012 a Holden station wagon belonging to Gareth Hawley was stolen from his residence in Carrum Downs.  The vehicle contained a cheque book, which was also stolen.  I note that you are not charged with theft of either the car or the cheque book.  However, on 27 March 2012 you attended at the National Australia Bank in Glenhuntly Road, Elsternwick, and attempted to cash a cheque worth $500.00 using a cheque from Mr Hawley’s stolen cheque book.    In order to facilitate your deception you produced a Victorian Proof of Age card in the name of Gregory Rodin.  You had removed the owner’s photograph and replaced it with a photograph of yourself.

On the afternoon of 28 March 2012, police attended your factory in Seaford, where you were living and working.  You refused them entry, locking yourself inside.  Police eventually entered your premises and found you convulsing on the floor.  You were transported to the Frankston Hospital for treatment. 

Police conducted a search of your residence and found a large amount of stolen property and a .32 calibre semi-automatic handgun and loaded magazine clip. Pursuant to s 5(1A) of the Firearms Act you are deemed a prohibited person by virtue of the fact that you received a sentence of imprisonment not more than 5 years ago. Forensic testing confirmed the presence of your DNA on the gun, as well as the fact that the gun had recently been fired.

When later examining some of the items seized during the search, police discovered two small plastic bags containing, in total, 26.6 grams of methylamphetamine (ranging in purity from less than 0.25% to 100%), and two bags containing a total of 3.2 grams of cannabis. 

On 29 March 2012 you were transferred from Frankston Hospital to the Frankston police station and lodged in the cells there.  Whilst there, you were found to be in possession of a number of bags containing a total of 0.9 grams of 100% pure methylamphetamine.  Although I was not provided with any detail about this by your counsel, I can safely assume that you had previously secreted the drugs in your rectum and passed them while you were in police custody.  You have remained in custody since 29 March 2012 and have not made an application for bail.[2]

[2]Ibid [3]-[7].

1. The applicant appeals against sentence on only one ground, namely that the sentencing judge erred in finding that ‘[f]orensic testing confirmed the presence of your DNA on the gun as well as the fact that the gun had been recently fired’.  That finding of fact relates to charge 6, concerning the applicant’s possession as a prohibited person of an unregistered firearm, on which his Honour sentenced the applicant to 24 months’ imprisonment. 

1. In his reasons, his Honour set out the circumstances concerning the possession of the gun which his Honour regarded as elevating the seriousness of the applicant’s offending:

The possession of a handgun, particularly one that is operational and found in close proximity to live ammunition, elevates your offending, I think, beyond the scope of the jurisdiction of the Magistrates’ Court.  This fact, combined with your criminal history, leads me conclude that this is serious offending that warrants the imposition of a considerable term of imprisonment.  Imposing a sentence that does not include non-parole period would result in you being released into the community without supervision and support and this is something that I am not prepared to do.  You are, of course, aware of the consequences of breaching parole.  If, as your mother says, your daughter is your motivation for not committing further offences, you will be able to successfully complete a period of parole and this would go some way to assuaging my concerns in relation to your prospects for rehabilitation.

It is clear that most of your offending is motivated by or connected to your drug use. The possession of guns in that environment is often productive of serious criminal conduct.  The possession by you of a large number of credit cards and other documents of identification indicate an intention to commit acts of deception.  You have a number of prior convictions involving guns and controlled weapons and dishonesty.  Specific deterrence and protection of the community must loom large in the sentencing process.[3]

[3]Ibid [15]-[16]

1. During the course of the plea in mitigation there was some discussion about the firearm at the applicant’s premises and its condition.  The prosecutor, during oral argument, referred the sentencing judge to evidence given at the committal by a firearm expert who had discharged the firearm on a number of occasions and who was of the opinion that after it had been cleaned, it had been fired by someone.  The expert was unable to say how long prior to this examination it was when the firearm had been previously discharged.

1. The impugned comment in the sentencing judge’s sentencing remarks was in the context of reciting the facts in relation to the possession of the firearm.  It was accepted in oral argument that his Honour fell into error in describing the firearm as having recently been fired.  The question was, as became clear in debate during oral argument before this Court, whether that was a material error of fact.  Counsel for the applicant submitted that his Honour’s conclusion that the firearm had been recently fired denoted a temporal qualification which led to the view that his Honour had sentenced the applicant on the basis that the applicant must have recently used the firearm in his possession.  But, as was pointed out, his Honour made no such finding.  Rather, his Honour made the impugned finding in the context of discussing the fact that the firearm was operational. 

1. In my view, the error made was not a material error.  The question whether or not an error is material depends primarily on whether, had the judge known the true situation, it is reasonable to suppose that a lower sentence would or might have been imposed.  That principle has been discussed in a number of decisions of this Court.[4]  There is nothing in the sentencing remarks that suggests that his Honour attached any significance whatsoever to the fact that the firearm had been recently fired.  I am not persuaded that it was a material error.

   [4]R v Fox [2003] VSCA 138; R v Liang [2009] VSCA 18.

1. Furthermore, even if it had assumed an importance in his Honour’s reasoning, which I am unable to detect, I am not satisfied that a different sentence should be imposed for this offence.  The applicant has two prior convictions for such offences amongst his many prior convictions.  Although his Honour made no finding as to the purposes for which the applicant possessed the firearm, there having been no submission made by either party before him as to purpose, it seems to me that, even allowing that the firearm may not have been possessed for any criminal purpose, the applicant’s history is such that it cannot be said that a sentence of 24 months was other than entirely appropriate for offending of this nature. 

1. Accordingly, in my view, leave should not be granted on this ground. 

1. I turn briefly to the errors flowing from the misstatement of the maximum sentences for various offences upon which his Honour sentenced the applicant. 

1. In relation to charge 6, it is apparent that his Honour proceeded on an unduly favourable view of the maximum penalty applicable to this charge. Section 5(1A) of the Firearms Act1996 (Vic), containing the offence of which the applicant was convicted, provided for a penalty of 15 years’ imprisonment. That section was repealed some three months after the applicant committed the offence, in May 2012, and a new s 5(1) was introduced providing for a maximum penalty of 10 years’ imprisonment for what was a slightly different offence, namely an offence of using or possessing a firearm, the firearm no longer having to be unregistered. In my

view, the error in the maximum penalty made no difference to the sentence that was imposed, and certainly not one of which the applicant could complain.

1. Turning to charges 7 and 8, concerning the possession of drugs of dependence, his Honour imposed an individual sentence of six months’ imprisonment on the charge of possessing 25 grams of amphetamine (charge 7) and a sentence of three months for possession of 3.2 grams of cannabis (charge 8).

1. Because of the errors that I have identified, I would allow the appeal with respect to charges 7 and 8 pursuant to s 281(1) of the Criminal Procedure Act2009 (Vic), as I am satisfied that there is an error in the sentence first imposed.

1. As I have said, a term of imprisonment was not available for charge 8.  I would quash the sentence on that charge and substitute a fine of $200 in respect thereof. 

1. For charge 7, the maximum sentence was not five years but rather one year.  I would quash the sentence of six months, impose a sentence of two months’ imprisonment and order that one month of that sentence be served cumulatively on the base sentence and on the other orders for cumulation made with respect to other sentences;  thus making a total effective sentence of three years and one month.  I would reinstate a non-parole period of 30 months’ imprisonment.

MAXWELL P:

1. I agree.

OSBORN JA:

1. I also agree.

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