Larussa v The State of Western Australia
[2023] WASCA 62
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LARUSSA -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 62
CORAM: MAZZA JA
BEECH JA
HALL JA
HEARD: 24 MARCH 2023
DELIVERED : 20 APRIL 2023
FILE NO/S: CACR 69 of 2022
BETWEEN: TONY LARUSSA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEVY DCJ
File Number : IND 2511 of 2019
Catchwords:
Criminal law - Appeal against conviction - Possession of prohibited drug with intent to sell or supply to another - Whether open on evidence to be satisfied of guilt beyond reasonable doubt - Where State case was appellant followed co‑accused to drug‑delivery location - Whether only reasonable inference was appellant was possessing drugs by exercising dominion and control over drugs
Criminal law and sentencing - Possession of unlicensed firearms and ammunition - Principles of sentencing for offences against Firearms Act 1973 (WA) - Where sentences for offences against Firearms Act were originally linked with conviction for, and made concurrent or cumulative with sentence for, drug possession - Where sentence for drug possession is set aside by reason of success of appeal against conviction - Whether and if so in what manner sentence for firearms offences should be varied
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(6), s 31(5)
Firearms Act 1973 (WA), s 19(1), s 19(1ab), s 19(1ac), s 19(1ad)
Result:
Appeal upheld
Conviction on count 1 set aside
Judgment of acquittal substituted on count 1
Appellant's sentences on counts 2 ‑ 11 varied
Category: B
Representation:
Counsel:
| Appellant | : | O P Holdenson KC & A J C Mossop |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Garde Wilson Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Clarke v The State of Western Australia [2018] WASCA 190
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
DL v The Queen [2018] HCA 32
Huynh v The State of Western Australia [2012] WASCA 8
Jago v The State of Western Australia [2022] WASCA 2
Jones v The State of Western Australia [2018] WASCA 105
Kalbasi v The State of Western Australia [2016] WASCA 144
Karakuyu v The State of Western Australia [2012] WASCA 75
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
La Bianca v The State of Western Australia [2019] WASCA 105
Lai v the Queen [1990] WAR 151
Le‑Ta v The State of Western Australia [2020] WASCA 14
Nuhana v The State of Western Australia [2018] WASCA 79
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Najem [2008] NSWCCA 32
Ricciardi v The State of Western Australia [2012] WASCA 106
Rinaldi v The State of Western Australia [2017] WASCA 48
Rinaldi; Gaskell v The State of Western Australia [2018] WASCA 8
Sakhie v The State of Western Australia [2017] WASCA 103
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Stagno v The State of Western Australia [2013] WASCA 166
Stone v The State of Western Australia [2010] WASCA 80
Strbak v The Queen [2020] HCA 10; (2020) CLR 494
Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217
JUDGMENT OF THE COURT:
Introduction
The appellant appeals against his conviction of a charge of possessing approximately 10 kg of methylamphetamine with intent to sell or supply it to another.
The appellant advances two grounds of appeal. The first complains of error in the judge's direction as to what the State was required to prove in order to establish the appellant's guilt. The second asserts that the verdict was unreasonable and cannot be supported by the evidence.
For the reasons that follow, in our opinion, ground 2 is established. We would uphold the appeal, set aside the judgment of conviction and substitute an acquittal. As a consequence, we would resentence the appellant in relation to other offences for which he was sentenced at the same time.
Background
The appellant and another, Antonio Pelle, were charged with having in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. Both the appellant and Mr Pelle pleaded not guilty to that charge, which was count 1 on the indictment. Counts 2 ‑ 11 alleged various firearms offences against the appellant only. The appellant pleaded guilty to the firearms offences.
Broadly speaking, many of the material facts relevant to the State case were not in any substantial dispute.
On the day of the alleged offence, 3 April 2017, police executed a search warrant at a farm property at 2000 Brand Highway, Breera (Breera farm). The property was a farm owned and operated by a trust associated with the appellant. At the time, the Breera farm was occupied by another man, Mr Giuseppe Strangio.
While the police were at the Breera farm speaking to Mr Strangio and conducting the search, Mr Pelle drove a white Honda Jazz along the driveway, which was said to be more than 100 m long, to the house at the Breera farm. Hidden within a concealed compartment within the Honda Jazz was approximately 10 kg of methylamphetamine.
Between 5 and 10 minutes after the arrival of the Honda Jazz, the appellant also drove his Toyota LandCruiser up the driveway. A search of the Toyota LandCruiser revealed a pistol, namely a SIG Sauer handgun, which had a magazine of ammunition inserted in it. The pistol was located on the backseat, behind the passenger seat, inside a toiletries bag.
The State's case against the appellant was put on two alternative bases.
The State's primary case was that both Mr Pelle and the appellant had possession of the methylamphetamine that was concealed in the white Honda Jazz. More specifically, Mr Pelle had actual possession, and the appellant had dominion or control over those drugs.
In the alternative, the State put its case against the appellant on the basis that Mr Pelle was in possession of the methylamphetamine and the appellant knowingly aided Mr Pelle to possess it.
Because it was and is common ground that if Mr Pelle was acquitted the appellant could not be convicted on the alternative basis, given Mr Pelle's acquittal it is not necessary to give detailed attention to the State's alternative case of aiding.
The State case at trial
In essence, the State case against the appellant was that he was exercising dominion over, and thereby in possession of, the drugs, in that he was following behind Mr Pelle to maintain control over, and provide security for, the drugs, which he knew were hidden in the Honda Jazz being driven by Mr Pelle. This was reflected in the prosecutor's opening[1] and closing address,[2] and in the trial judge's explanation of the State case.[3] On appeal, the respondent accepts that this was the State case at trial and that its position on appeal is confined in that manner.[4]
The prosecutor's opening and closing addresses
[1] ts 270.
[2] ts closing address, 3, 21.
[3] ts 825 - 827, 892 - 893, 898, 931. See also the jury aid provided to the jury by his Honour.
[4] Appeal ts 48.
In opening, the prosecutor introduced the State case as follows:[5]
Now, Mr Larussa's arrival at the property shortly after Mr Pelle was not a coincidence. The State's case is that Mr Larussa was following Mr Pelle because the Honda Jazz driven by Mr Pelle contained something very valuable, nearly 10 kilos of methylamphetamine.
Larussa or Mr Larussa was following Mr Pelle as Mr Pelle was conveying the drugs to Mr Larussa's farm. And Mr Larussa was following Mr Pelle we say, to maintain control over and provide security for the methylamphetamine which both Mr Pelle and Mr Larussa knew were hidden under the back seat of the Honda Jazz. (emphasis added)
[5] ts 270.
A little later in opening, in explaining the element of possession without physical custody, the prosecutor again told the jury that the appellant exercised dominion and control over the drugs by following the Honda Jazz being driven by Mr Pelle, with a loaded handgun in reach.[6]
[6] ts 280 - 281.
Immediately after the opening was completed, in the absence of the jury, the trial judge sought to clarify aspects of the prosecution opening, as it related to the alternative basis on which the State put its case. The prosecutor identified the relevant act of the appellant, for the purpose of s 7(b) of the Criminal Code (WA), as driving behind Mr Pelle, carrying a gun to provide security as Mr Pelle was transporting the drugs to the Breera farm.[7]
[7] ts 293 - 294.
In opening the appellant's case, counsel characterised the State case as involving the 'convoy theory', namely that the appellant was travelling in his Toyota LandCruiser, in convoy with Mr Pelle in the Honda Jazz, in order to provide security.[8] The State did not, at any stage of the trial, accept that characterisation of its case. To the contrary, it asserted throughout the trial that the convoy theory involved an unduly narrow view of the State case.
[8] ts 311.
The appellant advanced a no case submission, which the trial judge rejected. In advancing this submission, the appellant again characterised the State case as involving, in substance, the convoy theory.
In the course of submissions concerning the no case submission, the prosecutor accepted that a finding that the appellant was following Mr Pelle for the purpose of providing security was an indispensable link in the process of reasoning to guilt.[9]
[9] ts 697 - 698, 711.
In her closing address, the prosecutor submitted that the appellant exercised dominion and control over the drugs by following Mr Pelle onto the Breera farm, knowing that the drugs were in the Honda Jazz and intending to exercise control and dominion over those drugs.[10] The prosecutor submitted that the State did not assert that the appellant followed Mr Pelle all day. Rather, the State contended that, at the very least, when the appellant and Mr Pelle were in the Breera locality, turning into the property on which the farm was situated, the appellant was following Mr Pelle.[11]
[10] ts closing address, 3.
[11] ts closing address, 3.
The prosecutor invited the jury to consider whether the appellant's arrival at the Breera farm was purely coincidental, or whether the appellant had been deliberately following Mr Pelle onto the Breera farm while armed with a weapon, knowing that Mr Pelle was carrying methylamphetamine in the Honda Jazz.
The prosecutor submitted to the jury that in following Mr Pelle, the appellant had the SIG Sauer, with a loaded magazine, in his Toyota LandCruiser, which would have enabled the appellant to provide security for Mr Pelle, had Mr Pelle been stopped by anyone or if a situation had arisen that would have jeopardised the cargo in the Honda Jazz.[12]
[12] ts closing address, 21.
The prosecutor returned to the choice between coincidence and a finding of following at the conclusion of her closing address. The prosecutor submitted that the circumstantial evidence, viewed as a whole, should satisfy the jury that the appellant followed Mr Pelle to the Breera farm, and the fact they arrived up to only 10 minutes apart was not a coincidence.[13]
[13] ts closing address, 26.
As will be seen, in our view, these submissions set up a false dichotomy between the appellant's arrival within 10 minutes of Mr Pelle being a coincidence, or the arrival reflecting that the appellant followed Mr Pelle to the Breera farm to provide security for the drugs. This was a false dichotomy because, as explained later in these reasons, the two alternatives identified by the prosecutor did not exhaust the range of rational possibilities.
The judge's direction
The judge directed the jury as to the State case in a manner consistent with what we have already said.
In more detail, the judge gave the following directions as to the State case:
(1)The State case was that by driving behind Mr Pelle to provide security, knowing that Mr Pelle had the drugs in his possession, the appellant possessed the drugs. The appellant followed behind Mr Pelle with a firearm in the Toyota LandCruiser for the purposes of providing security for the valuable cargo in Mr Pelle's car.[14] The appellant's purpose in following behind Mr Pelle with a gun was to maintain control over, and provide security for, the drugs.[15]
(2)The State case was that the appellant was following behind Mr Pelle at a time shortly before they entered the Breera farm and also at Breera. Thus, the jury needed to be satisfied that the appellant was following behind Mr Pelle in the locality of Breera.[16]
(3)The judge provided the jury with a jury aid, the contents of which he read to them. It said that the State alleged that the appellant had control or dominion of the drugs in that he was following Mr Pelle in his Toyota LandCruiser with the weapon in the vehicle because he knew that Mr Pelle was conveying the drugs to the Breera farm in the Honda Jazz, and the appellant's act of following was for the purpose of maintaining control over, and providing security for, the drugs, which the appellant knew were hidden under the backseat of the Honda Jazz.[17]
(4)The judge told the jury that they could not convict the appellant on the State's primary basis unless they were satisfied beyond reasonable doubt that the appellant was following Mr Pelle for the purpose of maintaining control over, and providing security for, the drugs.[18]
(5)The trial judge summarised the prosecutor's closing address in a manner consistent with what is set out in [20] ‑ [21] above.[19]
(6)The judge told the jury that in order to find the appellant guilty, they must be satisfied beyond reasonable doubt that there was a significant period of following, significant enough to constitute a following for the purpose of providing security.[20] The judge reminded the jury that the State case was that that, being the act of following, occurred at least from when the appellant was turning into the Breera farm.[21]
[14] ts 825, 826. See also, to similar effect, ts 852 and 856.
[15] ts 827.
[16] ts 832.
[17] ts 892 - 893.
[18] ts 853, 893, 898.
[19] ts 899.
[20] ts 899.
[21] ts 899 - 900.
Shortly after the jury retired, the judge clarified an aspect of his direction that was concerned with the alternative aiding limb of the State case against the appellant. For the reasons in [12] above, the clarification is not relevant and so need not be detailed.
The jury subsequently submitted a note, which contained the following questions:[22]
We require clarification on the word 'Following' in this context as far as the law demands. As part of that is it required that (a) Larussa came from the same direction and (b) turned into the Breera property within a certain time period after Pelle. If there's a minimum reasonable time period what would that be?
Is meeting at the farm within 30 minutes regarded as security?
[22] ts 918.
After exchanges with counsel as to the appropriate response to the questions, the judge gave the following direction, the correctness of which is the central issue raised by ground 1:[23]
[23] ts 930 - 933.
The last part of [the jury's question] is the easiest to answer. This case is not about 30 minutes. This case is about on the State's case, Mr Larussa arriving within five to 10 minutes of Mr Pelle so you can ignore 30 minutes and in the context of this case, 30 minutes would not be regarded as security. That's not the case. I'm going to repeat what I said to you and hopefully try and explain this a little bit more about the State's case against Mr Larussa so either as a principal or as an aider.
So what I said to you was that in relation to Tony Larussa as a principal the State alleges that he had control or dominion of the drugs in that he was following Mr Pelle in his LandCruiser with the gun, the SIG Sauer, in the vehicle because he knew that Mr Pelle was conveying the drugs to Mr Larussa's farm in the Honda Jazz and Mr Larussa's act of following it was for the purpose of maintaining control over and providing security for the methylamphetamine which Mr Larussa knew was hidden under the back seat of the Honda.
That's as the principal and as an aider, it's put on the basis that - and hopefully you've seen the amended jury aid, I told you what it should read, it now reads as follows:
So as an aider in relation to Mr Larussa, you could not convict him as an aider unless you were satisfied beyond reasonable doubt that he was following Mr Pelle for the purpose of Mr Pelle maintaining control over and providing security to Mr Pelle for the methylamphetamine.
So on either case, the State is required to prove that he was following for the purposes of providing security. As a principal it's on the basis that he himself was in dominion and control and as an aider that he was aiding somebody else's possession but he himself was not in dominion and control himself.
Now, critically to this issue you have asked questions that are really questions for you to answer but within that time - the context, there are in this case, the following requirements. Firstly, you must be satisfied beyond reasonable doubt to convict Mr Larussa as either a principal or an aider that there was a real connection between Mr Larussa following Mr Pelle and obviously arriving at the premises.
There has to be a real connection and that's why the following for the purposes as I've explained, has to be confined to the Breera locality. So in this case if you look at the first question that you've posed for me:
Are they required to come from the same direction?
The State can't say to you which direction they came from. The State says to you 'It doesn't matter which direction they came from.' The defence says, 'Well, that's' - I'm not saying this is what's been said, 'That's ridiculous because if you don't even come from the same direction how can you say that there was a proximate link between them?'
Your - this is the issue that you need to decide. Was there a real temporal connection between the two so that Mr Larussa actually had dominion and control or he was providing security so that - and in that way aiding Mr Pelle to have possession. You also asked as part of that:
Is it required that they turned into the Breera property within a certain time period after -
- sorry -
- turned into the Breera property within a certain time period after Pelle? If there's a minimum reasonable time period, what would that be?
Well, the answer I can - again, that's the issue for you. It's not about whether there is a minimum period or a maximum period, the question for you is to determine whether you are satisfied beyond reasonable doubt that what actually occurred amounted to a following for the purposes of providing the control or security.
Now, this is the issue that has been raised in this case and for you to decide because fundamentally Mr Larussa says, 'Well, I was never following. How could I possibly be following because of there's at least five' - I'm suggesting five minutes but given the drawing of the inferences perhaps really you're looking at 10 minutes, 'and in those circumstances' he says, 'How could I be providing security when there's a gap of 10 minutes between us.'
That's his - that's the defence and that's the issue that you're now deciding. As I said to you, you are the jury and you decide the facts. You obviously have to apply the facts in the context of the law that I give you but I can't say to you as I've done in relation to some other things, 'The Criminal Code says - defines the word, 'Following', it doesn't. You need to look at that word in the context of this case and whether you're satisfied that on the evidence it compels the conclusion that the State is asking you to draw.
So as I say, whether you are looking at the allegation that he followed for the purposes of him actually having possession himself in the sense of dominion and control or whether you're looking at it as an aider remembering you can't look at it as an aider unless you're satisfied obviously that Mr Pelle is guilty.
In either case, you need to decide whether there is that proximate link between when he arrived and Mr Pelle arrived and to do that, you need to look at the totality of the evidence that is admissible on that point.
Now, hopefully that provides you with some further assistance. As I say, the question really is was he in dominion and control as a principal. Was he, in the alternative, aiding in the sense that he knew all of the relevant facts and had - was aiding Mr Pelle to commit the offence knowing that Mr - knowing the essential acts, aiding physically, having - Mr Pelle having committed the offence, having actual knowledge of the facts that amounted to the offence, so knowledge of the methylamphetamine, actually giving aid in the sense of providing the security and that he intended to do so.
All of that needs to be satisfied. (emphasis added)
In this passage, the judge told the jury that:
(1)The State's primary case was that the appellant had dominion or control of the drugs in that he was following Mr Pelle, with the handgun in his LandCruiser, knowing Mr Pelle's vehicle had the drugs, and in order to maintain control over, and provide security for, the drugs.
(2)In order to convict, the jury must be satisfied beyond reasonable doubt that there was 'a real connection' or a 'real temporal connection' between the appellant following Mr Pelle and the appellant's arriving at the Breera farm.
(3)Whether the State's primary case was established did not involve any specifiable minimum period of time. It was for the jury to determine whether what had occurred amounted to a following for the purposes of providing security.
After returning to their deliberations, the jury submitted a further note, in the following terms:[24]
Is it possible to have a transcript of the judge's clarification regarding the word, 'Following'?
[24] ts 936.
After further exchanges with counsel, the trial judge provided the jury with a portion of the transcript encompassing his Honour's earlier direction in response to the jury's first note.[25] The judge then gave the jury further directions as to the word 'following':[26]
Now, I am going to say a little bit more with respect to the issues, particularly in light of the fact that I've now received two notes from you that focusses on this word, 'Following.' I remind you that it's - that this is again, only a part of my directions.
It seems to me that the issue that you've asked me to further clarify relates to the second element of the offence, namely that the State proving that the accused was knowingly in possession of a prohibited drug with an intention to possess that prohibited drug. So as a principal, the question is did Mr Larussa personally have dominion over or control of the drugs in the Honda Jazz driven by Mr Pelle. So that's the question as the principal.
…
So the question is, has the State proven beyond reasonable doubt that Tony Larussa was in his LandCruiser with the gun following Antonio Pelle for the purposes of maintaining security and control of the drugs? That requires you to focus on his state of mind in two ways. In other words, what you're satisfied of beyond reasonable doubt he knew. And secondly, what he intended to do.
Fundamentally and firstly, you will be need to be satisfied beyond reasonable doubt that he knew that there was a very large quantity of methylamphetamine in the Honda Jazz. Secondly, you will need to be satisfied beyond reasonable doubt that Mr Larussa intended to have control over the drugs by following Mr Pelle with the gun. And thirdly, you will need to be satisfied beyond reasonable doubt that he actually had dominion and control of the drugs by following Mr Pelle in the LandCruiser with the gun.
So that's as the principal. Remembering that again, even if he was following Mr Pelle and even if he did intend to provide security and even if as a result he actually had dominion and control, that does not necessarily mean that Mr Pelle was guilty. The second way, the alternative pathway that the State relies upon as Mr Larussa as an aider, that only relates to Mr Larussa.
[25] ts 947.
[26] ts 947 - 949.
The judge proceeded to give further directions concerning the alternative aiding limb of the State's case.
Grounds of appeal
The appellant advances the following two grounds of appeal:
(1)The trial judge made a wrong decision on a question of law in answering the jury's question as to whether, to find the appellant guilty, it was required that the appellant came from the same direction as Mr Pelle. The judge should have directed the jury that, in order to convict the appellant, it was necessary for the jury to find beyond reasonable doubt that the appellant had, in driving his Toyota LandCruiser to the Breera farm, come from the same direction that Mr Pelle had come in driving the white Honda Jazz to the Breera farm.
(2)The verdict of guilty is unreasonable and cannot be supported by the evidence.
The appellant's submissions
The appellant submits that the State case was that the 'following' occurred on the way to the Breera farm - in other words, up to arrival at the farm. He points to the judge's direction that, by reason of the way the State had run its case, the following must have occurred in the locality of Breera.[27]
[27] Appellant's submissions [24], [28].
Consequently, the act upon which the State relied to establish that the appellant was exercising control or dominion over the drugs was his following behind Mr Pelle to maintain control over, and provide security for, the drugs hidden in the car driven by Mr Pelle. Establishing this act, the appellant submits, required proof of two things: first, that the appellant was, in fact, following behind Mr Pelle and, secondly, if the appellant was, that the purpose of that following was to maintain control over, and provide security for, the drugs.[28]
[28] Appellant's submissions [29] ‑ [30].
In support of ground 1, the appellant submits that:
(1)It is significant that the judge's alleged misdirection occurred in response to a question from the jury.[29]
(2)The judge's response, set out at [29] above, was a misdirection resulting in a substantial miscarriage of justice. The trial judge ought to have directed the jury that it was necessary for them to be satisfied that the appellant had come from the same direction as Mr Pelle and within a period of time by which they could be satisfied, beyond reasonable doubt, that the appellant was following behind Mr Pelle for the purposes of maintaining control over, and providing security for, the drugs.[30]
[29] Appellant's submissions [31] - [34].
[30] Appellant's submissions [37], [42].
In support of ground 2, the appellant submits as follows:
(1)Because the issues at trial did not turn on the credibility or reliability of any witness, this court is well positioned to assess the quality of the evidence before the jury and, in particular, what evidence was capable of establishing the inferences required by the State case.[31]
(2)The appellant contends that the question of whether the appellant was physically following behind Mr Pelle arises before any question of purpose falls to be considered.[32]
(3)The evidence capable of bearing on the question of whether the appellant was physically following behind Mr Pelle was to the following effect:[33]
(a)The appellant arrived at the Breera farm between 5 and 10 minutes after Mr Pelle.
(b)The speed limit on Brand Highway in the vicinity of Breera was 110 km per hour.
(c)There was no evidence that the vehicles arrived from the same direction or, more generally, as to the route taken by either vehicle.
(e)There was no forensic link between the appellant and the drugs.
(f)During the search of his LandCruiser, the appellant said he only knew about Mr Strangio being at the Breera farm and had no knowledge of a white car.
(g)Mr Pelle's unchallenged evidence was that Mr Strangio had requested Mr Pelle drive the Honda Jazz to the Breera farm, that Mr Pelle was running late and he had not told anyone he was running late. Mr Pelle denied speaking to the appellant on that day and said there was no prior arrangement with the appellant to attend the Breera farm.
[31] Appellant's submissions [50].
[32] Appellant's submissions [53].
[33] Appellant's submissions [55].
Having regard to this evidence, it was not open to the jury, acting reasonably, to conclude beyond reasonable doubt that the appellant was following behind Mr Pelle. The circumstantial evidence relied on by the State was capable of bearing on the appellant's intention in following behind Mr Pelle, but only if it were first found that the appellant had been so following.[34]
[34] Appellant's submissions [57].
The appellant submits that, even if the jury were satisfied that the appellant's arrival at the Breera farm within 5 to 10 minutes of Mr Pelle was not a coincidence, and even if the jury were satisfied that the appellant knew Mr Pelle was going to arrive at the Breera Farm in the Honda Jazz containing the drugs, an inference that the appellant followed Mr Pelle there for the purpose of maintaining control over, and providing security for, the drugs was not the only reasonable inference on the evidence. An alternative reasonable inference was that, knowing the drugs were on their way to the Breera farm in the Honda Jazz, the appellant was going to the Breera farm in order to do something in relation to the drugs - for example, to take possession of the drugs or to acquire them.[35] The appellant's arrival might not have been a coincidence, as it might have been the result of communication with another or others, including Mr Strangio.[36]
[35] Appeal ts 31 - 32.
[36] Appeal ts 33 - 34.
The appellant submits that, like earlier decisions of this court in Le‑Ta v The State of Western Australia[37] and La Bianca v The State of Western Australia,[38] this was a case in which the State confined its case in a particular way, with the result that the verdict was unreasonable and not supported by the evidence.
[37] Le‑Ta v The State of Western Australia [2020] WASCA 14.
[38] La Bianca v The State of Western Australia [2019] WASCA 105.
The respondent's submissions
In essence, the respondent submits that both grounds are based on a false premise, namely that in order to find the appellant guilty of the charge, the jury had to be satisfied beyond reasonable doubt that the LandCruiser driven by the appellant turned into the Breera farm from the same direction as the Honda Jazz driven by Mr Pelle and that it did so within a specific limited number of minutes of the Honda Jazz's arrival.
The respondent submits that, as the jury were correctly directed by the trial judge, in order to be satisfied that the appellant possessed the methylamphetamine, the jury needed to be satisfied that he was intentionally exercising dominion or control over the methylamphetamine, knowing that it was secreted in the Honda Jazz. The State case was that the circumstantial evidence excluded, beyond reasonable doubt, any inference that the appellant's arrival at the property within minutes of the arrival of the Honda Jazz was merely coincidental or otherwise consistent with his innocence. It was thus open to the jury to draw the inference, to the necessary standard, that the appellant intentionally exercised dominion or control over the methylamphetamine, which he knew was hidden in the Honda Jazz, and that he had been following the Honda Jazz, at least while in the precinct of Breera, for the purpose of maintaining his control over the methylamphetamine and providing security for it.[39]
[39] Respondent's submissions [3] ‑ [4].
The respondent submits that while, on the State case, the jury had to be satisfied that the appellant was following Mr Pelle for the purpose of maintaining control and providing security, the State case was not limited to a finding that the vehicles travelled in convoy or within sight of each other.[40]
[40] Respondent's submissions [10].
That the appellant followed Mr Pelle with the specified purpose was, on the State case, an inference capable of being drawn from circumstantial evidence falling into seven broad categories:[41]
(1)evidence connecting the appellant to the purchase of the Honda Jazz;
(2)evidence of the appellant's involvement in the transportation of the Honda Jazz to Sydney and back;
(3)evidence indicating the Honda Jazz was sent to New South Wales to be modified;
(4)evidence linking the appellant to the Honda Jazz on 3 April 2017;
(5)evidence regarding the presence of firearms and ammunition at the Breera farm;
(6)evidence regarding mobile phones found during searches of the appellant, the Toyota LandCruiser, the Breera farm and a property in North Perth (in which the appellant lived with his wife); and
(7)evidence rebutting any innocent association between the appellant and the drugs in the Honda Jazz.
[41] Respondent's submissions [11].
The respondent submits that the appellant's case on appeal, like his case at trial, seeks to draw a distinction between proof of the physical act of following and the purpose for which that act was performed. The appellant, the respondent contends, wrongly seeks to confine the evidence that is capable of bearing on the first of those matters, when the true position is that the jury could have regard to all of the circumstantial evidence in considering whether the act of following had occurred, as well as in considering the purpose of any such following.[42]
[42] Respondent's submissions [23] ‑ [25].
The respondent points to the evidence that the appellant was involved in the purchase and modification of the Honda Jazz, coupled with the arrival of the Honda Jazz, loaded with methylamphetamine and a hidden BlackBerry like the BlackBerrys possessed by the appellant, at a rural farming property associated with the appellant as sufficient to permit the jury to infer that the appellant was aware that the methylamphetamine was in the Honda Jazz.[43]
[43] Respondent's submissions [26].
The respondent submits that those circumstances, coupled with the appellant's arrival at the rural property 5 to 10 minutes after the Honda Jazz in possession of a loaded gun, suggest that the appellant was intending to exercise control and dominion over the methylamphetamine by remaining in proximity to it and thus providing security for it. These circumstances are sufficient to infer that the appellant's arrival was not coincidental but, rather, the appellant had followed the Honda Jazz to the Breera farm.[44]
[44] Respondent's submissions [27].
As to ground 1, the respondent submits that, for the reasons already given, the State case did not necessitate a finding that the LandCruiser had come from the same direction as the Honda Jazz within a limited or specified period of time.
Legal principles
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. The principles established by the leading High Court decisions have been outlined by this court many times. For example, in Jago v The State of Western Australia,[45] this court summarised the principles. So far as is relevant, those principles include:
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.
(5)The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6)A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(8)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act2004 (WA) (Criminal Appeals Act) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
[45] Jago v The State of Western Australia [2022] WASCA 2 [144].
The prosecution case relied on an inference. The principles relating to criminal cases turning, as this case does, upon circumstantial evidence were restated in R v Baden‑Clay, as follows:[46]
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the accused's guilt only where guilt is not simply a rational inference but, rather, the only rational inference that the circumstances permit.
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[46] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [46] ‑ [47].
In a case such as the present, where (a) the prosecution case was circumstantial, (b) the evidence adduced by the prosecution was largely uncontested, and (c) the appellant did not give evidence, the jury's advantage over the appeal court in discerning the inferences properly to be drawn from the facts adduced in evidence is slight.[47] The task of this court is to undertake its own independent assessment of the whole of the evidence to determine whether the only rational inference available on the evidence was as alleged by the State and, if not so satisfied, to determine whether the jury's satisfaction could be attributed to some identified advantage that the jury had over this court.[48]
[47] Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 [17]; Le‑Ta [96].
[48] Dansie [37] - [38].
Disposition
We accept that it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was aware that the drugs were in the Honda Jazz and that the appellant's arrival at the Breera farm shortly after the Honda was not a mere coincidence. To our minds, that inference was compelled by the seven categories of circumstantial evidence referred to by the respondent in [45] above. However, that fact alone was insufficient to establish the appellant's guilt.
Because the appellant was not in physical possession of the drugs, in order to establish that the appellant possessed the drugs, it was necessary for the State to prove that the appellant had control or exercised dominion over the drugs.[49] The State sought to establish the exercise, by the appellant, of dominion over the drugs by proof that the appellant was following behind Mr Pelle to maintain control over, and provide security for, the drugs he knew to be hidden in the Honda Jazz. Thus, proof by the State that the appellant so acted was not of mere evidentiary significance - it was the means by which the State sought to prove the essential element of dominion and thereby to prove possession.
[49] Lai v the Queen [1990] WAR 151 [155]; Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [179]; Kalbasi v The State of Western Australia [2016] WASCA 144 [91] - [92]; Nuhana v The State of Western Australia [2018] WASCA 79 [73].
In our view, the evidence at trial did not prove beyond reasonable doubt that the appellant was following Mr Pelle to maintain control over, and provide security for, the drugs hidden in the Honda Jazz. The State case required the jury to draw an inference to that effect. In our view, the evidence, as a whole, did not sustain that inference to the exclusion of all other rational hypotheses.
The evidence was that the appellant arrived 5 to 10 minutes after Mr Pelle. The evidence suggested that the speed limit on Brand Highway was 110 km/h. It is thus open on the evidence for the appellant to have been approximately 9 to 18 km behind Mr Pelle when Mr Pelle turned into the driveway of the Breera farm, even if it is assumed that he came from the same direction.
The respondent sought to emphasise the elasticity and context‑related connotation of the notions of 'follow' and 'provide security'.[50] In the abstract, that may be accepted. However, to our minds, the respondent sought to stretch these notions beyond their limits, particularly bearing in mind that, on the State case, it was by following the Honda Jazz to provide security for the drugs that the appellant was said to have exercised dominion over the drugs. We are unable to accept the respondent's submission that driving, say, 15 km behind Mr Pelle could amount to following him to provide security for the drugs and thus exercising dominion over the drugs.[51] On the State case, providing security for the drugs in the circumstances of this case involved the appellant using or threatening to use the handgun to ensure the Honda Jazz completed its journey to the Breera farm without anyone accessing the drugs and without Mr Pelle absconding with them. In circumstances where Mr Pelle was driving on Brand Highway - and in the absence of evidence of communication between Mr Pelle and the appellant - following the Honda Jazz in order to provide security for the drugs seems to us to require a reasonably close physical proximity to the drugs. That is all the more so in light of the jury's acquittal of Mr Pelle, reflecting their not being satisfied that he knew of the drugs. If Mr Pelle were ignorant of the drugs, that would reinforce the need to be reasonably close to the Honda Jazz in order to keep the drugs secure.
[50] Appeal ts 50 - 54, 60 - 64.
[51] Appeal ts 62 - 64.
Thus, in our view, the evidence did not sustain an inference, as the only rational hypothesis, that the appellant drove close enough behind Mr Pelle to be following him for the purpose of providing security.
Further, as the respondent properly conceded,[52] if the appellant drove to the Breera farm from his other farm, further north on Brand Highway, he could not be said to have followed Mr Pelle, who came to the Breera farm from the metropolitan area. There was no evidence as to the direction from which the appellant came before he turned into the driveway of the Breera farm. It seems to us, on the evidence as a whole, to be a plausible scenario that, anticipating delivery of the drugs in the Honda Jazz to the Breera farm, the appellant waited at his other farm, which is conveniently close to the Breera farm, thereby avoiding the risk of detection had he waited at the Breera farm. We are not satisfied that the evidence excluded, as a reasonable hypothesis, that the appellant drove to the Breera farm from his other farm.
[52] Appeal ts 66.
The only part of the journey that was proven on the evidence to be common to the Honda Jazz and the appellant's vehicle was the approximately 100 metre driveway from Brand Highway to the Breera farm. However, given the 5 to 10 minute difference in their arrival times, the Honda Jazz must have already arrived at the destination before the appellant turned into the driveway. It was, thus, not reasonably open to infer that the appellant could have exercised dominion or control by following the Honda Jazz on the driveway.
Without more, going to the Breera farm knowing that the drugs would be delivered there and intending to deal in some way with them would not make the appellant guilty of the possession charge he faced (although he may have thereby been guilty of attempting to possess the drugs). Thus, an inference that the appellant so acted is, in the relevant sense, a 'hypothesis other than guilt'.[53] On our assessment of the evidence as a whole, we are not persuaded that such an inference can be excluded as a rational hypothesis.
[53] Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 634; Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104; Baden‑Clay [46]; Le-Ta [94].
In seeking to exclude this inference, the respondent pointed to the presence of the SIG Sauer handgun, with a magazine of ammunition in it, in the back seat of the appellant's car. The respondent submits that, given the presence of several weapons at the Breera farm, had the appellant been acting in the manner outlined in [61] above, there would have been no need for him to have the SIG Sauer handgun in his car. Thus, the respondent submits, the presence of the handgun belies the appellant having any purpose apart from providing security for the drugs.[54] In seeking to exclude this inference, the respondent also pointed to the absence of evidence from the appellant in support of it.[55]
[54] Appeal ts 57 - 59.
[55] Appeal ts 55.
We do not accept these submissions. Having a weapon loaded with ammunition immediately available for use would have enabled the appellant to deal with any conflict he met upon, or shortly after, his arrival at the Breera farm. By contrast, in such a scenario and without having a loaded weapon immediately available, the appellant would have needed to go inside and obtain access to the guns. For this reason, in our view, the presence of the loaded handgun in the appellant's car did not exclude, as a reasonable hypothesis, an inference to the effect in [61] above.
The fact that the appellant did not give evidence in support of an inference to the effect in [61] above does not assist the respondent. It was for the State to prove its case. That required the State to exclude inferences other than guilt. It was not incumbent on the respondent to give evidence in support of an inference. This was not a case of the rare and exceptional kind illustrated by Weissensteiner v The Queen.[56] Nor is it a case like Baden-Clay, where the accused gave evidence that thereby limited the range of inferences that were available as reasonable hypotheses from the evidence led by the prosecution.[57]
[56] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217. See, for example, Strbak v The Queen [2020] HCA 10; (2020) CLR 494 [1], [13].
[57] See the discussion of Baden-Clay in BSJv The State of Western Australia [2023] WASCA 5 [66] - [76].
For these reasons, ground 2 is established. In those circumstances, it is not necessary to decide ground 1 and no purpose would be served in doing so. The appeal must thus be upheld, the judgment of conviction on count 1 set aside and a judgment of acquittal entered on count 1. Consequent upon the setting aside of the conviction on count 1, the drug trafficker declaration must also be set aside.
Varying the appellant's other sentences
The appellant submits that, if his appeal is upheld, the court should consider the exercise of its power to vary the sentences imposed at the same time.[58]
Is the power to resentence enlivened?
[58] Appeal ts 39 - 42.
Section 30(6) of the Criminal Appeals Act empowers this court, where it enters a judgment of acquittal for an offence, to vary any sentence imposed in respect of other offences if two conditions are satisfied. Firstly, the appellant was sentenced for the other offence(s) at the same time as he was sentenced for the offence the subject of acquittal. Secondly, the sentence(s) for the other offence(s) 'took into account' the sentence for the offence in respect of which the court enters a judgment of acquittal.
As already noted, in addition to pleading not guilty to count 1, which is the subject of this appeal against conviction, the appellant pleaded guilty to counts 2 - 11, which alleged various firearms offences. The appellant was sentenced for all 11 offences at the same time. Thus, the first condition is satisfied.
The trial judge imposed the following sentences:
| Count | Offence | Section | Maximum penalty | Sentence imposed | Concurrency/ cumulacy |
| 1 | Possessing methylamphetamine with intent to sell or supply | s 6(1) of the Misuse of Drugs Act | 25 years' imprisonment or a fine not exceeding $100,000 or both | 13 years' imprisonment | Cumulative |
| 2 | Possessing an unlicensed firearm, namely a SIG Sauer 9-mm pistol, while in possession of 3 or more unlicensed firearms, and the SIG Sauer was a handgun and had its number or identification mark removed | s 19(1), s 19(1ab)(b), s 19(1ac)(b) and s 19(1ac)(c) of the Firearms Act | 10 years' imprisonment | 18 months' imprisonment | Concurrent |
| 3 | Possessing an unlicensed firearm, namely a Glock 17 9-mm pistol, while in possession of 3 or more unlicensed firearms, and the Glock 17 was a handgun and had its number or identification mark removed | s 19(1), s 19(1ab)(b), s 19(1ac)(b) and s 19(1ac)(c) of the Firearms Act | 10 years' imprisonment | 18 months' imprisonment | Concurrent |
| 4 | Possessing unlicensed ammunition, namely 67 rounds of 9-mm ammunition | s 19(1)(c) of the Firearms Act | 5 years' imprisonment | 2 months' imprisonment | Concurrent |
| 5 | Possessing an unlicensed firearm, namely a Bruni .22-calibre pistol, while in possession of 3 or more unlicensed firearms, and the Bruni was a handgun | s 19(1), s 19(1ab)(b) and s 19(1ac)(b) of the Firearms Act | 10 years' imprisonment | 12 months' imprisonment | Concurrent |
| 6 | Possessing unlicensed ammunition, namely 251 rounds of 9-mm ammunition | s 19(1)(c) of the Firearms Act | 5 years' imprisonment | 2 months' imprisonment | Concurrent |
| 7 | Possessing unlicensed ammunition, namely 44 rounds of .22-calibre ammunition | s 19(1)(c) of the Firearms Act | 5 years' imprisonment | 1 month's imprisonment | Concurrent |
| 8 | Possessing unlicensed ammunition, namely 3 rounds of .45-calibre ammunition | s 19(1)(c) of the Firearms Act | 5 years' imprisonment | 1 month's imprisonment | Concurrent |
| 9 | Possessing unlicensed ammunition, namely 17 rounds of .223-calibre ammunition | s 19(1)(c) of the Firearms Act | 5 years' imprisonment | 1 month's imprisonment | Concurrent |
| 10 | Possessing an unlicensed firearm, namely a Taurus 9-mm pistol, and the Taurus was a handgun | s 19(1) and s 19(1ac)(b) of the Firearms Act | 7 years' imprisonment | 12 months' imprisonment | Cumulative |
| 11 | Possessing unlicensed ammunition, namely 20 rounds of 9-mm ammunition | s 19(1)(c) of the Firearms Act | 5 years' imprisonment | 1 month's imprisonment | Concurrent |
The second condition of s 30(6) of the Criminal Appeals Act, namely that the sentences for the other counts took into account the sentence for count 1, is, in our view, also satisfied. Apart from count 10, the sentences for all offences were ordered to be served concurrently with the sentence on count 1. The decision to order that the term be served concurrently, which is part of the 'sentence' for each offence, was informed by and thus took into account the sentence of 13 years' imprisonment imposed in respect of count 1. The same is true of the sentence for count 10, in that it was ordered to be served cumulatively on count 1.
We will outline the facts of the offending, the appellant's personal circumstances and the judge's sentencing remarks before turning to the question of whether - and, if so, in what manner - we should exercise the power to vary the appellant's sentences in respect of counts 2 - 11.
The facts
Some of the facts of the offending in each count are expressed in the terms in which each charge was framed. We will not repeat the detail embedded in each charge. Beyond that, the material available to be taken into account by this court provides little detail or context as to the facts of the firearms and ammunition offences. Unusually, the prosecutor did not state the facts of the offences.[59] While a statement of material facts was evidently on the court file, it was not referred to in the sentencing proceedings or in the trial judge's sentencing remarks. Consequently, we do not rely upon it.
[59] Section 129(3) of the Criminal Procedure Act 2004 (WA) requires a prosecutor to state aloud the material facts of an offence to which an accused has pleaded guilty. The failure of the prosecutor to do so was not raised in this appeal by the appellant and nothing more need be said about it.
The judge made the following findings as to the facts of the offending and the surrounding circumstances.
Counts 2 - 11 were all committed on 3 April 2017. Counts 2 - 9 were committed at the Breera farm.[60] Counts 10 - 11 were committed at 8 Ethel Street, North Perth (the North Perth property), where the appellant lived with his wife.[61]
[60] ts 984.
[61] ts 985.
The Breera farm is, as already noted, a semi-rural property on which sits a large working farm owned by the appellant's family through a trust.[62] The appellant, who had been employed in the family business for a long time, worked on the farm and had a bedroom in the farmhouse.[63]
[62] ts 986.
[63] ts 986.
During a search of the Toyota LandCruiser driven by the appellant onto the Breera farm on 3 April 2017, police located a SIG Sauer handgun with a magazine of ammunition inserted in it (count 2). [64] There was no bullet in the breach.[65] A further magazine inside a toiletries bag was also located in the LandCruiser.[66]
[64] ts 987.
[65] ts 987.
[66] ts 987.
A search of the Breera farm also revealed a Glock 17 (count 3), together with ammunition (part of count 4) in a barrel in the shed, as well as a Bruni imitation firearm in the house (count 5).[67]
[67] ts 991.
The sentencing judge noted that the various searches conducted of the Breera farm, the North Perth property, the LandCruiser and the appellant himself revealed further 'indicia of drug dealing' beyond the firearms and ammunition:[68]
(1)There were three mobile phones on the passenger seat of the LandCruiser and one in the glove box.
(2)There was a BlackBerry in the appellant's jeans.
(3)There were BlackBerry boxes found in the main bedroom of the Breera farm.
(4)There were three BlackBerrys located at the North Perth property.
(5)There were cryovac bags located in the second bedroom and other areas of the Breera farm, as well as at the North Perth property.
(6)There was a cryovac machine at both the Breera farm and the North Perth property.
(7)There was a set of electronic scales in the third bedroom at the Breera farm.
[68] ts 987 and 991.
The trial judge found that the appellant's possession of the SIG Sauer (count 2) was 'inextricably linked' to his offending on count 1. His Honour was satisfied beyond reasonable doubt that the appellant possessed the SIG Sauer handgun for the purpose of enabling him to have dominion and control over the drugs in the Honda Jazz.[69]
[69] ts 989.
Further, his Honour did not accept that the remainder of the firearms and ammunition located at the Breera farm were 'totally unrelated to [the appellant's] offending on count 1', nor did his Honour accept the assertion, made in the psychological report to which we will refer later, and also made in defence sentencing submissions,[70] that the firearms and ammunition were merely a product of paranoia flowing from a home invasion in 2013.[71]
[70] ts 964.
[71] ts 991.
Although his Honour was not satisfied as to the centrality of the appellant's paranoia in the commission of the possession of firearms and ammunition offences, he did find that there 'may well have been an element of increased paranoia associated with the commission of the offence[s]'.[72]
[72] ts 992.
In light of our conclusions on count 1, the finding in [79] above necessarily falls away. Nevertheless, as observed in [53] above, the evidence at trial compelled the inference that the appellant was aware that the drugs were in the Honda Jazz and his arrival shortly after the Honda was not a mere coincidence. In those circumstances, and bearing in mind the matters in [78] above, we would draw the same conclusions as the sentencing judge (see [80] above) in that we would not accept, as a mitigating factor, that the firearms and ammunition offences, including count 2, were the result of the home invasion in 2013.
The appellant's personal circumstances and mitigating factors
The appellant was 43 years old at the time of offending and 49 years old at the time of sentencing.[73] The appellant is the younger of two children born to his parents' union.[74]
[73] ts 992.
[74] ts 992.
The appellant's father emigrated from Italy to Australia at the age of 16. He was committed to his work and worked hard to establish financial security for his family.[75] Over the years, the appellant's father bought a number of farming properties.[76] The appellant's mother was born in Australia and, by all accounts, similarly worked hard.[77]
[75] ts 992.
[76] ts 992.
[77] ts 992.
The appellant had an unhappy family life, with there being difficulties between him and each of his family members.[78] In particular, the appellant has had a difficult and acrimonious relationship with his mother.[79] By contrast, the appellant's sister and his mother have always had a close relationship, with the appellant explaining to his psychologist that he was treated differently to his sister from early on.[80]
[78] ts 992 - 993.
[79] ts 993.
[80] ts 993.
In his early teens, the appellant noticed that his father had become detached and had begun to drink heavily.[81] The appellant disclosed, to his father, that he believed his mother was having an affair.[82] Consequently, at the age of 14, the appellant was kicked out of home by his mother with his father's acquiescence.[83] The appellant remains estranged from his mother and was estranged from his father for a substantial period.
[81] ts 993.
[82] ts 993.
[83] ts 993.
Notwithstanding this estrangement, the appellant has worked in family businesses all his life.[84] After reconciling with his father, the appellant worked with his father on the family's farming properties full‑time, and the appellant continues to work long hours at the Breera farm.[85] The judge accepted that the appellant had an excellent work history.[86]
[84] ts 993.
[85] ts 993.
[86] ts 996.
The appellant has been married for more than 30 years, and he and his wife have a daughter, who was aged 16 at the time of sentencing.[87] During an interview with the psychologist, the appellant's wife described him as a good man and a good provider for his family.[88]
[87] ts 993.
[88] ts 993.
Though the appellant had some criminal convictions, they were so long ago that the judge considered them of no relevance.[89]
[89] ts 993.
The appellant began smoking cannabis at the age of 12, with the appellant using cannabis on a daily basis until 2013.[90] The appellant began using heroin at the age of 30 to cope with family-related issues.[91] In the psychological report before the sentencing judge, the author described the appellant's use of heroin, which occurred about four times a year, as 'opportunistic'.[92] The judge also noted that the appellant was found in possession of small quantities of drugs on 3 April 2017.[93]
[90] ts 994.
[91] ts 994.
[92] ts 994.
[93] ts 994.
In 2013, the appellant was the victim of a home invasion, which the sentencing judge noted was undoubtedly an 'extremely traumatic event'.[94] His Honour accepted the psychologist's findings that, consequently, the appellant suffered considerable anxiety, together with symptoms of post-traumatic stress disorder.[95]
[94] ts 994.
[95] ts 994.
The judge also accepted that the home invasion caused the appellant to become preoccupied with his own security; however, his Honour noted that this did not mean that security fears could be considered the sole purpose for which the appellant possessed the unlicensed firearms and ammunition.[96]
[96] ts 994.
The psychologist was of the view that the appellant did not have a personality disorder but, rather, presented with personality disturbances and features of post-traumatic stress disorder.[97] The appellant was, at one stage, medicated, but he was taken off the medication due to its adverse effects.[98]
[97] ts 994.
[98] ts 994.
The psychologist was also of the opinion that the appellant suffers from chronic drug usage.[99] Testing indicated the appellant has year 12‑level reading abilities, with the appellant generally in the low to average range of intellectual functioning.[100] The psychologist described the appellant as having 'concrete, naïve and simplistic views of the world'.[101]
[99] ts 994.
[100] ts 994.
[101] ts 994.
The judge identified as mitigating factors:
(1)The pleas of guilty - as already noted, the appellant pleaded guilty to counts 2 - 11 on the first day of trial.[102] The sentencing judge noted that while these pleas were not entered at the first reasonable opportunity, they were nonetheless deserving of credit.[103] The sentencing judge applied a discount of 10% for each plea of guilty on counts 2 - 11.[104]
(2)Delay - as to which the sentencing judge noted the following facts:[105]
(a)The appellant committed the offences on 3 April 2017;
(b)It took some two and a half years before the appellant was committed to the District Court; and
(c)The trial was then listed in 2020 and 2021, with both of those trials vacated because of Covid issues, which were not factors of the appellant's making,
and the judge was satisfied that the significant delay not attributable to the appellant's conduct was mitigatory in that it unreasonably extended the period in which the appellant was in a state of suspense and, further, the appellant had positively moved on with his life.
Maximum penalties and sentencing principles
[102] ts 985.
[103] ts 986.
[104] ts 986.
[105] ts 994 - 997.
As the sentencing judge noted, the maximum sentences for the appellant's offences were: [106]
(1)10 years' imprisonment, as specified by s 19(1ab)(b) of the Firearms Act, for each of counts 2, 3 and 5;
(2)7 years' imprisonment, as specified by s 19(1ac)(b) of the Firearms Act, for count 10; and
(3)5 years' imprisonment, as specified by s 19(1ad) of the Firearms Act, for each of counts 4, 6, 7, 8, 9 and 11.
[106] ts 985.
As observed in Rinaldi v The State of Western Australia,[107] the Firearms Act was extensively overhauled in 2004. Relevantly, new offences with very significant maximum penalties were created and the penalties for established offences were increased.
[107] Rinaldi v The State of Western Australia [2017] WASCA 48 [61].
In the Second Reading speech for the Firearms Amendment Bill 2003 (WA), it was said that one of the Bill's objectives was to support 'the establishment of substantial penalties for illegal possession of a firearm':[108]
The Bill includes the new circumstance of aggravation to section 19 and an increased penalty of 14 years' imprisonment when a person traffics or sells three or more firearms without a licence or permit.
…
The penalties contained in the Firearms Act 1973 have not been reviewed since 1996, and it was considered timely to review their appropriateness. A number of penalties will be significantly increased through this Bill. For example, the offences relating to carrying, defacing and altering identification marks on a handgun will be subject to seven years' imprisonment - an increase from the current penalty of 18 months' imprisonment or a fine of $6,000 - and in the case of other types of firearms, a new penalty of five years' imprisonment is recommended in place of the current penalty of six months' imprisonment or a fine of $2,000.
[108] Western Australia, Parliamentary Debates, Legislative Assembly, 19 November 2003, 13385 (Ms M Roberts, Minister for Police and Emergency Services).
In Rinaldi, their Honours, quoting this Second Reading speech, noted the need to 'send a strong message of deterrence by introducing tough penalties for offenders who carry unlicensed firearms and drugs or money'.[109]
[109] Rinaldi [61].
In R v Najem, Hulme J explained the rationale underlying statutory firearms offences in equivalent provisions in New South Wales, in terms which apply equally to the Firearms Act, as including:[110]
a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others' rights.
[110] R v Najem [2008] NSWCCA 32 [40].
It is well established that general deterrence is the main consideration when sentencing for offences against the Firearms Act, with personal circumstances playing a lesser role.[111] The common connection of firearms offences with drug dealing has also often been noted.[112]
[111] Stagno v The State of Western Australia [2013] WASCA 166 [44]; Sakhie v The State of Western Australia [2017] WASCA 103 [29]; Stone v The State of Western Australia [2010] WASCA 80 [19]; Ricciardi v The State of Western Australia [2012] WASCA 106[45].
[112] Stagno [44]; Karakuyu v The State of Western Australia [2012] WASCA 75 [41].
Most decisions of this court involving appeals against sentence that include firearms offences also involve one or more drug offences. However, the appellant's conviction on count 1 having been quashed, all of the appellant's offending involves solely firearms and ammunition offences. Consequently, limited assistance can be gained from consideration of comparable cases.
However, there are several cases involving one or more drug offences combined with one or more firearms offences in which the firearms offences have substantially increased the total effective sentence - by more than 18 months and sometimes appreciably more - where an appeal on totality grounds was dismissed and in which this court has emphasised the seriousness of the firearms offences.[113] Moreover, individual sentences of 2 years or more have been imposed without any suggestion of error. In light of the maximum penalties for such offending, that is not surprising.
Should the sentences be varied and in what manner?
[113] See, for example, Rinaldi; Gaskell v The State of Western Australia [2018] WASCA 8; Clarke v The State of Western Australia [2018] WASCA 190; Huynh v The State of Western Australia [2012] WASCA 8.
The power in s 30(6) of the Criminal Appeals Act is discretionary. The court's power to resentence in s 31(5) is, when it arises, a power coupled with a duty to exercise its own independent judgement as to the appropriate sentence.[114] By contrast, in our opinion, the power in s 30(6) is a true discretion, to be exercised to the extent, and only to the extent, that the court considers it is appropriate to do so.
[114] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [35]; DL v The Queen [2018] HCA 32 [9]; Jones v The State of Western Australia [2018] WASCA 105 [27].
We turn to the question of whether, and in what manner, the power should be exercised in the circumstances of this case.
In our view, having regard to the respective maximum penalties, the circumstances of each offence, the appellant's personal circumstances, the applicable sentencing principles, the mitigating factors and to such assistance as can be gained from consideration of other sentencing decisions, the sentences imposed by the trial judge can fairly be said to be somewhat lenient. Were we to resentence the appellant on counts 2 - 11, in the circumstances and on the basis of his acquittal on count 1, we would not impose a lesser sentence on any count than was imposed by the trial judge.
There is nothing to suggest that the judge decreased the length of the individual sentences imposed on the ground of totality. Rather, as his Honour said, and as is conventional, he first fixed what he thought to be the appropriate sentence for each individual offence and then determined what he considered the appropriate total effective sentence, in light of which he determined questions of concurrency and cumulacy.
In these circumstances, we would not exercise the power in s 30(6) in relation to the individual sentences imposed by the trial judge.
However, as we have said, the judge's determination of questions of concurrency and cumulacy was framed around the sentence on count 1. That being so, it is appropriate to vary that aspect of what the trial judge did.
Reflecting our view that a total effective sentence of 2 years 6 months' immediate imprisonment is a proper reflection of the appellant's overall criminality in all the circumstances, including his personal circumstances, we would order that the sentence on count 10 be served cumulatively with the sentence on count 2. All other terms of imprisonment should be served concurrently with the term imposed on count 2.
There is no proper basis to vary, and we would not vary, the trial judge's orders that the sentence be backdated to 22 June 2022 and the appellant be eligible for parole.
Orders in resentencing
Consequently, we would vary the appellant's sentences by sentencing him as follows:
(a)count 2: 18 months' imprisonment;
(b)count 3: 18 months' imprisonment;
(c)count 4: 2 months' imprisonment;
(d)count 5: 12 months' imprisonment;
(e)count 6: 2 months' imprisonment;
(f)count 7: 1 month's imprisonment;
(g)count 8: 1 month's imprisonment;
(h)count 9: 1 month's imprisonment;
(i)count 10: 12 months' imprisonment;
(j)count 11: 1 month's imprisonment; and
(k)the sentence on count 10 is to be served cumulatively with the sentence on count 2. All other sentences are to be served concurrently with the sentence on count 2.
Conclusion
For the above reasons, we would uphold the appeal against conviction and vary the appellant's sentence.
We would make orders in terms of [65] and [112] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Research Associate to the Honourable Justice Beech
20 APRIL 2023
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