Malatesta v Pinch
[2001] WASCA 224
•30 JULY 2001
MALATESTA -v- PINCH [2001] WASCA 224
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 224 | |
| Case No: | SJA:1022/2001 | 30 JULY 2001 | |
| Coram: | MILLER J | 30/07/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentences of finite imprisonment quashed and sentences of suspended imprisonment imposed in lieu thereof | ||
| PDF Version |
| Parties: | JASON DAVID MALATESTA BRADLEY STEVEN PINCH |
Catchwords: | Criminal law Sentence Imprisonment for 12 months for offences related to unlicensed and stolen firearm and ammunition without licence to possess the same Offender with minor record Whether imprisonment the only disposition open |
Legislation: | Nil |
Case References: | Dinsdale v The Queen (2000) 74 ALJR 1538 Lowndes v The Queen (1999) 195 CLR 665 Bessell v The Queen, unreported; SCt of WA; Library No 980199; 4 March 1998 Denton v Murdock, unreported; SCt of WA; Library No 950572; 26 October 1995 Harwood v The Queen, unreported; CCA SCt of WA; Library No 950372; 27 July 1995 Lynch v Sharpe (1901) 4 WALR 10 R v Tait (1979) 46 FLR 368 Stackhouse v Curulli, unreported; SCt of WA; Library No 920251; 30 April 1992 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
BETWEEN : JASON DAVID MALATESTA
- Appellant
AND
BRADLEY STEVEN PINCH
Respondent
Catchwords:
Criminal law - Sentence - Imprisonment for 12 months for offences related to unlicensed and stolen firearm and ammunition without licence to possess the same - Offender with minor record - Whether imprisonment the only disposition open
Legislation:
Nil
Result:
Appeal allowed
(Page 2)
Sentences of finite imprisonment quashed and sentences of suspended imprisonment imposed in lieu thereof
Representation:
Counsel:
Appellant : Mr J L H Formby
Respondent : Ms C L Bathurst
Solicitors:
Appellant : Formbys
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 74 ALJR 1538
Lowndes v The Queen (1999) 195 CLR 665
Case(s) also cited:
Bessell v The Queen, unreported; SCt of WA; Library No 980199; 4 March 1998
Denton v Murdock, unreported; SCt of WA; Library No 950572; 26 October 1995
Harwood v The Queen, unreported; CCA SCt of WA; Library No 950372; 27 July 1995
Lynch v Sharpe (1901) 4 WALR 10
R v Tait (1979) 46 FLR 368
Stackhouse v Curulli, unreported; SCt of WA; Library No 920251; 30 April 1992
(Page 3)
1 MILLER J: The appellant was charged in the Court of Petty Sessions, Collie with the following four offences:
(a) conveying in a motor vehicle a Ruger make bolt repeater .243 calibre rifle, Serial Number 7398936, reasonably suspected of having been stolen or unlawfully obtained, contrary to the provisions of s 69 of the Police Act;
(b) being in possession of a Ruger make bolt repeater .243 calibre rifle, Serial Number 7398936, whilst not being the holder of a licence or permit under the Firearms Act, contrary to s 19(1)(c) of that Act.
(c) being in possession of 13 rounds of PMC make .243 calibre ammunition whilst not being the holder of a licence or permit under the Firearms Act, contrary to s 19(1)(c) of that Act; and
(d) being in possession of seven rounds of Winchester make .22 calibre ammunition whilst not being the holder of a licence or permit under the Firearms Act, contrary to s 19(1)(c) of that Act.
2 These offences occurred on 2 February 2001 at Collie. As a result of the appellant having been stopped in relation to a driving offence on the Worsley Back Road, police located a .243 Ruger bolt repeater rifle; 13 .243 rounds and seven .22 rounds in the vehicle. The appellant did not have a firearms licence for either the rifle or ammunition and he was conveyed to Collie Police Station where a computer check revealed that the rifle had been stolen from a Boyup Brook property in December 2000. When interviewed, the appellant stated that he had bought the firearm and ammunition from an unknown male person for $100, the purchase having been made in a bush location about two weeks beforehand in circumstances where the appellant came upon the seller by chance.
3 The matter came before the Court of Petty Sessions at Collie on 7 February, where the appellant was represented by duty counsel. It was submitted to the court that the appellant ought properly to be dealt with by a financial penalty. Reference was made to a prior conviction for possession of an unlicensed firearm in relation to which the appellant had been fined the sum of $250, together with a fine of $100 for possession of unlicensed ammunition. These convictions were on 12 July 2000.
(Page 4)
4 The learned Magistrate took the view that the only disposition of the matter which was open was a sentence of imprisonment. He pointed out the seriousness of the offence of conveying in a motor vehicle the Ruger repeater rifle when it was reasonably suspected of having been stolen or unlawfully obtained (the maximum penalty for which was a fine of $2000 or imprisonment for 2 years), and stressed that this was the most serious of the four offences. The learned Magistrate accepted that there was nothing sinister in the appellant's intended use of the firearm but said:
"What is of pivotal concern is the fact that the firearm was within your possession in the motor vehicle and to which there was a reasonable suspicion as to your proper entitlement to convey.
There is to that the now knowledge which was not known, nor is it imputed to you by the prosecution, that the firearm was in fact the subject of property stolen as a result of a burglary in Boyup Brook in December of 2000, very recently, It's acknowledged by you that the firearm was acquired some 2 or 3 weeks previously in the bush from an unknown male person who offered it to you for sale on the occasion when you were taking in the facilities of that bush setting, fishing or hunting, for $100.
With the greatest of respect to you, and with the advantage of having seen the firearm today, it would be patently obvious to any person who has remote knowledge as to firearms or anyone who has not, that this particular firearm was certainly worth more than $100 - substantially more. And I can suggest to you that it would have been patently clear to any reasonable person and I impute to you the fact that it was necessarily a very, very significant bargain; in fact, so significant that the price alone, despite the circumstances, would give rise to a suspicion as to how the vendor - the person selling the property - acquired it. When one imports and brings into play the circumstance in which it was offered for sale, by a person who was unknown to you previously, you had no previous dealings with, and at a time when it was a matter that was simply a sudden offer of sale, in unexceptional circumstances, or exceptional circumstances, it would add further, I would have thought, to the suspicion and ask the question, 'Why is this person in such a hurry to get rid of this firearm?'."
(Page 5)
5 The learned Magistrate then made reference to the fact that the firearm was unlicensed and had been in the possession of the appellant for some two to three weeks without his having made any endeavour to licence it. Reference was made to the previous conviction for possession of an unlicensed firearm and unlicensed ammunition and his Worship then added:
"The final matter of direct import is of course that the firearm was in every respect a .243 calibre of which the court's entitled to take judicial notice that it is a high powered firearm. It was a potentially dangerous weapon.
The community, the courts and the law enforcement agencies are rightly concerned with the free flow of firearms within the community, and certainly are concerned with the proper licensing and control of firearms. No better example of the concerns of the community is had than here today. This was, as I say, without your knowledge, a firearm, the proceeds of a burglary. You made no endeavour -- had no intention of licensing this firearm. It was self-evidently a free flowing firearm with which the community is properly concerned."
6 The learned Magistrate then concluded that there was nothing which mitigated the appellant's conduct, save for the fact that he was only 24 years of age and had pleaded guilty. His Worship added:
"Nothing short of imprisonment in my respectful view will suffice in respect of the conveyance or the possession. And nor is it appropriate in the circumstances for the court to give consideration to the suspension of that period of imprisonment.
I would have thought what's called for is an immediate period of imprisonment. I have, as I've said, afforded you the benefit of your plea of guilty and your youth. You are, in respect of the offence under section 69 of the Police Act sentenced to 12 months' imprisonment. In respect of the possession of the firearm, without being the holder of the appropriate licence or permit, 4 months' imprisonment. In respect of each of the possession of the ammunition, 1 month's imprisonment. The periods are necessarily concurrent one with the other, giving you a total sentence of 12 months and in the circumstance to reflect the rehabilitative aspects, you're declared to be eligible for parole."
(Page 6)
7 On 16 February 2001 I granted to the appellant leave to appeal the sentences of imprisonment. The ground upon which leave was granted was that the sentences were manifestly excessive having regard to the following factors:
"(a) The Applicant pleaded guilty at the first opportunity.
(b) The Applicant's personal circumstances and antecedents generally called for a more lenient sentence.
(c) The Learned Magistrate failed to give any or any adequate consideration to:
(i) Sections 6, 7 and 8 of the Sentencing Act 1995 as amended.
(ii) The options contained in Section 39(2)(a) to (h) of the Sentencing Act as amended as required by Section 39(3) of the Sentencing Act as amended.
(d) The sentence was manifestly excessive having regard to the Applicant's prior record."
8 I should say at the outset that the learned Magistrate's reasons reveal that he did consider the relevant provisions of the Sentencing Act, in the sense that his Worship clearly considered that the seriousness of the offences was such that only imprisonment could be justified. Although not stating this in specific terms, it is implicit in what his Worship had to say about the seriousness with which the community is concerned about the possession of unlicensed high powered firearms. Likewise, it seems to me that the learned Magistrate did consider alternative sentencing options. Although not referring to the specific provisions of s 39 of the Sentencing Act and to the numerous options which are therein contained, his Worship was clearly of the view that a sentence of imprisonment was the only appropriate disposition. As to that, consideration was given by him to the question whether it would be appropriate to suspend the sentences of imprisonment he intended to impose. This his Worship declined to do. However, the question which remains is whether in all the circumstances the offences were punishable only by imprisonment and by a finite term of imprisonment immediately to be served.
9 It seems to me that there is substance in the submissions made on behalf of the appellant that more consideration should have been given to his age and antecedents generally; his plea of guilty at the first
(Page 7)
- opportunity; and his relatively minor criminal record. It was true that the appellant had prior convictions for possession of unlicensed firearms (two charges) and for possession of unlicensed ammunition (one charge), but in relation to those offences he had been fined $250 on each charge in relation to the firearms and $100 in relation to the ammunition. Whilst the learned Magistrate was concerned that within five months of those convictions the appellant was back before the court on similar charges, the fact remained that the appellant was only 24 years of age and had no other convictions of any significance. Those that he did have were traffic related, save for convictions in July 2000 of possession of a prohibited drug and possession of a smoking implement. In relation to these he was fined $120 on each charge.
10 I can accept that the learned Magistrate rightly considered the offences committed by the appellant to be serious, and coming as they did five months after previous convictions for possession of unlicensed firearms and unlicensed ammunition, a sentence of imprisonment might be considered. However, in my view the learned Magistrate dismissed too quickly the question whether consideration should be given to suspension of any sentence of imprisonment which might have been called for. Dinsdale v The Queen (2000) 74 ALJR 1538 makes it clear that the decision whether to suspend a sentence of imprisonment under s 76(2) of the Sentencing Act involves the exercise of a wide discretion and that discretion is not to be limited to considerations of rehabilitation of the offender alone. Section 76(2) provides that suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. The words "in all the circumstances" mean the circumstances of the offence as well as those personal to the offender. As Gleeson CJ and Hayne J pointed out in Dinsdale v The Queen at [13], it is only if the Court is satisfied that it is not appropriate to impose a term of suspended imprisonment that the Judge may impose a term of imprisonment which is to take effect immediately. Kirby J (at [85] - [87]) said:
"[85] … the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence
(Page 8)
- the decision whether to suspend the term of imprisonment.
- [86] Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the 'complete discretion' which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss.
[87] The approach which I favour also appears more consistent with what has recently occurred in Western Australia where factors quite distinct from the rehabilitation of the offender or mercy in the particular case have influenced the suspension order made or confirmed. Requiring the primary judge, asked to suspend a sentence of imprisonment, to consider anew all of the relevant circumstances both reinforces the two-step approach which the statute mandates and facilitates a desirable flexibility in sentencing options that permits in a particular case, the exploration of alternatives to immediate custodial punishment."
11 In the present case I consider that the learned Magistrate was too quick to dismiss consideration of "all the circumstances" which, in my view, would have justified suspending the sentences of imprisonment which would otherwise have been imposed. The appellant's age, relatively minor record (notwithstanding the previous convictions for possession of unlicensed firearms and ammunition) and the circumstances of the offence generally would, in my view, have justified suspension of the sentences which were imposed.
12 In Lowndes v The Queen (1999) 195 CLR 665 the High Court restated the well-known principles according to which an appellate court
(Page 9)
- may interfere with the exercise of a discretionary judgment by a sentencing Judge. The Court said at [15]:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
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