Merrigan v Oakley
[2016] TASSC 58
•19 October 2016
[2016] TASSC 58
COURT: SUPREME COURT OF TASMANIA
CITATION: Merrigan v Oakley [2016] TASSC 58
PARTIES: MERRIGAN, Phil (Constable)
BARNES, Alisha (Constable)
WILKIE, Scott (Senior Constable)
v
OAKLEY, Joshua Robin
FILE NO: 518/2016
DELIVERED ON: 19 October 2016
DELIVERED AT: Hobart
HEARING DATES: 3, 4, 12, 31 May, 12, 18 October 2016
JUDGMENT OF: Wood J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Firearms and drug offences and unlawful possession – Sentence of nine months' imprisonment, six suspended manifestly inadequate.
Blake v Adams [2013] TASSC 44, (2013) 22 Tas R 295; Williams v Parker [2016] TASSC 39, referred to.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicants: S Nicholson
Respondent: J Crotty
Solicitors:
Applicants: Director of Public Prosecutions
Respondent: James Crotty Barristers & Solicitors
Judgment Number: [2016] TASSC 58
Number of paragraphs: 55
Serial No 58/2016
File No 518/2016
CONSTABLE PHIL MERRIGAN, CONSTABLE ALISHA BARNES, SENIOR CONSTABLE SCOTT WILKIE v JOSHUA ROBIN OAKLEY
REASONS FOR JUDGMENT WOOD J
19 October 2016
On 2 February 2016 Joshua Robin Oakley was sentenced in the Magistrates Court for 21 offences contrary to the Firearms Act 1996, several drug offences, four offences of unlawful possession of property and one offence of breach of bail conditions. He was sentenced by Magistrate Webster to a term of imprisonment of nine months, with six months suspended on condition that he had to be of good behaviour for three years. The prosecution, identified as the applicants in these proceedings, seeks to review the sentence on the ground that it is manifestly inadequate. A number of issues were raised on the respondent's behalf regarding the charges contrary to the Firearms Act: whether the offences of possession or use of firearms without a licence as charged were known to exist; whether the respondent could properly be convicted of them, and that there had been no election by the respondent to the indictable offence of possession of stolen firearms contrary to s 107A of the Firearms Act. These issues receive some consideration but not all of them are properly raised for determination by an appeal confined to a review of the sentence. The primary question is whether the sentence is manifestly inadequate, revealing implicit error, such that it falls outside the bounds of the learned magistrate's wide sentencing discretion.
The offending
The respondent pleaded guilty to offences relating to three dates: 22 January 2015, 19 March 2015, and 18 November 2015.
The offences committed on 22 January 2015 are as follows:
· Four charges of possess a firearm when not the holder of a firearm licence of the appropriate category, contrary to s 9(1) of the Firearms Act. The firearms were a Harrington & Richardson .22 calibre revolver, a replica AK47 assault rifle, a replica M16 assault rifle and a replica Thompson machine gun.
· One charge of possess ammunition when not the holder of the appropriate firearm licence, contrary to s 105(3)(a) of the Firearms Act.
· Five charges of fail to take all precautions to ensure safekeeping of a firearm, contrary to s 84 of the Firearms Act. These charges concern the same firearms as the subject of the possession charges.
· One charge of possess a firearm part, contrary to s 107 of the Firearms Act. This charge relates to stock and barrel pieces.
· One charge of possess thing used for administration of controlled drug (minor offence) being a pipe used for inhaling methylamphetamine, contrary to s 23 of the Misuse of Drugs Act 2001.
· Two charges of possess a controlled drug (minor offence), contrary to s 24 of the Misuse of Drugs Act involving methylamphetamine and Diazepam.
The relevant facts of offending, as stated by the prosecutor at the sentencing hearing, are as follows:
"…on the […] 22nd of January police executed a firearm search warrant at an address in Blackman's Bay. Police said the defendant, his de facto, and their two children were present at the time. […] the defendant was shown a copy of a search warrant and asked if he wished to view the warrant and a systematic search was then conducted and they located a loaded .22 handgun with seven rounds of ammunition in the chamber located on the couch directly beside where the defendant was sitting hidden under a pillow, a smoking device, an ice pipe, located on the couch directly beside where the defendant was sitting, a quantity of ice, Methadone amphetamine decanted from the ice pipe located on the couch directly beside the defendant, sat-lock [sic] bags containing trace elements of ice, a quantity approximately 3.5 grams of ice Methadone amphetamine decanted, seven rounds of ammunition, a set of scales, a white I-phone and the Cockatoo I-phones, used sat-lock [sic] bags. There was a firearms target conversion kit containing two rounds of ammunition, firearms parts including stocks and barrel disassembled located inside a shopping bag beside the side of the couch, […] and a replica firearm AK-47 style located on the top shelf of the wardrobe in the master bedroom, Diazepam tablets located on a shelf in the master bedroom. A systematic search was conducted inside the storage area underneath the house and a number of firearm-related items were located, a wooden box containing firearms parts located under the house, two times book containing manuals for pistols located under the house, firearms parts, wooden stock pieces located in the top drawer of the red tool box under the house, black firearm stock located under the house, […] a replica realistic assault rifle located inside an empty television box under the house, a drum magazine which is a firearm part located inside an empty television box under the house, firearms and a realistic replica Thomson [sic] machine gun located inside an empty television box also under the house, ammunition magazines located inside an empty television box under the house. The defendant was arrested for investigation and conveyed to the Hobart Police Headquarters where he was taken to the Custody Officer and detained whilst further investigations were conducted. He was later interviewed and during the interview he made admissions he was the owner of a loaded .22 calibre revolver located, it was under his control as he was sitting next to it. He made 'no comment' about the additional ammunition located. He didn't have a firearms license [sic]. He made some comments that he had enemies. He made 'no comment' in relation to the alleged illicit drugs and ice pipe, and denied […] dealing in illicit drugs. He denied knowledge of the replica firearms and parts but then made comment indicating he had knowledge of them and that they were not capable of being fired […] He claimed not to be the resident of the house, stating that his parent's from an address in Darville Court was his principal residence."
The charges relating to 19 March 2015 are two offences of unlawful possession of property, contrary to s 39(2) of the Police Offences Act 1935. The items the subject of the first charge were a titanium trumpet valued at $3,500 and mouth pieces. The items had been left in the owner's locked vehicle. On 8 March 2015 she noticed that the vehicle had been entered and property taken, including the trumpet.
It was discovered that the respondent was trying to sell the trumpet and mouthpieces on eBay, an online auction site. He also had seven watches in his possession, the subject of the second charge. These watches were reasonably believed by an investigating police officer to have been stolen or unlawfully obtained. The items were found by police in the possession of the respondent at a residential address on 19 March. He said the trumpet and watches belonged to a "mate" who said he had a few things to sell and did not have an eBay account himself. The respondent declined to name the person he described as his "mate".
The offences committed on 18 November 2015 are as follows:
· One charge of possession of a stolen firearm, contrary to s 107A(1) of the Firearms Act involving a .22 calibre Ruger pistol.
· Two charges of possess or use a firearm in contravention of a firearms prohibition order, contrary to s 132(1) of the Firearms Act involving the same Ruger pistol and a .22 calibre Young America revolver.
· One charge of possess a firearm part, contrary to s 107 of the Firearms Act, being a revolver barrel.
· One charge of possess ammunition when not the holder of the appropriate firearm licence, contrary to s 105(3)(a) of the Firearms Act.
· One charge of possess an unregistered firearm, contrary to s 74(1) of the Firearms Act, namely the same Young America revolver.
· Two charges of possess a firearm when not the holder of a firearm licence of the appropriate category, contrary to s 9(1) of the Firearms Act involving the same Ruger pistol and "Revolver Pistol".
· Two charges of fail to take all precautions to ensure safekeeping of a firearm, contrary to s 84 of the Firearms Act, namely the same Ruger pistol and revolver.
· Four charges of possess a controlled drug (minor offence), contrary to s 24 of the Misuse of Drugs Act, namely methylamphetamine, Temazepam, Diazepam and Alprazolam.
· One charge of possess thing used for administration of controlled drug (minor offence), contrary to s 23 of the Misuse of Drugs Act, namely four smoking pipes designed to be used to ingest methylamphetamine.
· Two charges of unlawful possession involving an Australian passport of Aidan Filby, and a Commonwealth Bank card in the name of Fatima Mohamad, reasonably believed by an investigating police officer to have been stolen or unlawfully obtained.
· One charge of breach of bail conditions, contrary to s 9 of the Bail Act 1994 in that he breached his bail condition that he was not to be found in the possession of a firearm or replica firearm.
The learned magistrate was informed that on 17 March 2015, the respondent was served with a Firearms Prohibition Notice under the Firearms Act. This notice is an "order" made by the Commissioner of Police under the Act. Under s 130(1), the Commissioner may make an order and have it served on a person prohibiting them from possessing or using a firearm. The Commissioner may take this step if, in the Commissioner's opinion, the person is unfit, in the public interest, to possess or use a firearm. The prohibition notice can be revoked by notice in writing. The order served on the respondent informed him that he would be committing an offence if he possessed or used firearms.
Further, the learned magistrate was informed that, as at 18 November, the respondent was subject to a bail condition that he was not to be found in possession of firearms or replica firearms. On 1 October 2015 the respondent had appeared in the Magistrates Court in relation to various matters and was granted bail with that condition. Against that background, details of offending on 18 November were stated as follows:
"At 7:50 a.m. on the 18th of November 2015 members of the Southern Drugs Investigation Service executed a drug-related warrant at an address in Darville Court, Blackman's Bay. Upon entry by the police the defendant jumped from a lounge chair and ran down the hallway of the premises where he was restrained. At the time of the entry the defendant's partner and five-year-old were in the bathroom and his twelve-year-old son was in bed. At the location where the defendant had been seated in the lounge room it was located on his left-hand side was a radio scanner allowing him to listen to the police communications, on the right-hand side a loaded Young America .22 revolver. A systematic search of the premise was conducted and the following items located: in a black Nike pouch on the lounge room floor a Ruger .22 calibre pistol containing a magazine holding ten rounds, 61 .22 calibre rounds of ammunition. This firearm has been confirmed to have been stolen during an aggravated burglary at Brighton in April 2014. And in a black Adidas pouch on the couch underneath the cushion were the following items: […] 44 .22 calibre rounds, vehicle keys, snap-lock bags containing various items, drugs crushed, Temazepam tablets, Diazepam tablets, Alprazolam tablets. On the lounge room floor was a .22 calibre round. Concealed in the back of a photo frame on the dining table was an Australian passport in the name of Aidan Philby [sic]. Enquiries into the passport have determined that it had been sent via Australia Post to Philby who resides at a nearby address, however had not arrived and it had been deemed missing. […] Underneath the oven behind the kit [sic] panel was a revolver barrel in a snap-lock bag. On the kitchen bench was a 15 .22 calibre rounds, and in the wardrobe of the master bedroom was a 1 .22 calibre round. There were also four ice pipes and were also located throughout the residence. At the conclusion, the defendant was placed under arrest, transported to the Hobart Police Station. He did not wish to take part in a record of interview."
Circumstances of the offender
The respondent was aged 30 and 31 at the time of offending. His prior convictions commence in 2003 when he was aged 18. They include the following relevant offences of dishonesty:
· two for receiving stolen property committed in 2002 and 2013;
· three for unlawful possession of property in 2004, and two in 2013.
And the following firearms and ancillary offences:
· four for possess ammunition when not the holder of the appropriate firearm licence committed in 2011 and 2013;
· six for possess firearm when not the holder of a firearm licence of the appropriate category in 2013;
· six for fail to take all precautions to ensure safekeeping of firearm in 2013;
· two for possess crossbow in 2013;
· three for possess shortened firearm in 2013.
And the following drug offences:
· 20 offences for cultivating controlled plant, using and possession between 2004 and 2013;
· one for trafficking in a controlled substance committed in 2009.
A sentence of six months' imprisonment was imposed for the trafficking matter. For other drug offending and firearms offences, suspended terms of imprisonment were imposed. The respondent's record of prior convictions reveals that he has a poor record for breaching conditions of sentencing orders by reoffending. He breached a community service order in 2008; he breached a condition of a suspended sentence of imprisonment imposed in 2008 resulting in the activation of two months' imprisonment in 2011; he breached conditions of a partially suspended sentence of imprisonment, and in November 2013 the Court made no order with respect to the suspended portion of two months. On the same date the Court activated a suspended term of imprisonment of two months. Again, on the same date the Court imposed a sentence of nine months' imprisonment, three months suspended subject to a condition that the respondent was not to reoffend for three years. The sentence was imposed for offences including firearms offences, possession of stolen property and drug offences. On 7 December 2015 there were proceedings with respect to breaching that suspended period by committing the offences before the Court in January and March 2015. The three month term of imprisonment was activated and ordered to commence on 19 November 2015. When the sentence under review was imposed on 2 February 2016 it was required to be served cumulatively to that three month period.
It was put in the plea in mitigation that the respondent had been in prison since 18 November 2015, apart from a short period when he was released in error on 18 December 2015. It was noted that he did not offend while at large, and during that short period of release he made an enquiry to see if he could participate in a drug rehabilitation program. It is not apparent precisely how long he was at large before he was returned to custody, but his enquiry was made on 22 December.
Matters raised by the respondent's counsel regarding the circumstances of the firearms offences in January were that he had the revolver in his possession because he had been threatened by a person who had been supplying him with drugs, and he was concerned about those threats. It is noted that the respondent had a loaded revolver or revolvers in his possession on both 22 January and 18 November, but the circumstances of the November offending were not specifically addressed. The respondent's counsel handed up a court-mandated drug in-take assessment report dated 1 December 2015 that made reference to the offending on 22 January and 19 March. As a result of his plea of guilty to those offences, the Court had ordered a report assessing his suitability for the court-mandated drug program. That report had been handed to the Court during proceedings on 7 December 2015. As I mentioned, those were the proceedings that had resulted in the learned magistrate activating the three month suspended term. The report was relied upon in the plea in mitigation on 2 February 2016 and, as I have noted, made reference to his offending on 22 January and 19 March.
In relation to the firearms offences on 22 January, the report provided some further information regarding the circumstances of his possession of the firearms. The respondent had told the persons who had threatened him to come to his house, where he was waiting with the loaded .22 calibre pistol when the police attended. He was under the influence of the drug "ice" at the time of the offence. He conceded that paranoia resulting from his drug use may have played a role in the events.
The report detailed matters of background regarding his abuse of drugs. The respondent had commenced using illicit substances at 12 years of age. His drug use escalated, and by 15 years of age, he was using cannabis on a daily basis. His drug use had a significant impact on his schooling. The respondent's highest level of formal schooling was grade 10. His employment, educational and recreational endeavours had been limited because of his illicit substance use. The respondent started using ecstasy at 20 years of age. Ultimately, he replaced his use of ecstasy with amphetamines and eventually, methamphetamine or "ice". At the time of the report, the respondent had been using approximately one gram of ice per day for 18 months.
The respondent was raised in a caring and supportive family environment. There was no abuse in any form and it was a drug-free environment. His family has continued to support him in recent years despite his involvement with the criminal justice system.
The author of the report noted that it was preferable that outstanding charges (the offences that were committed on 18 November) were resolved before the respondent was sentenced to a Drug Treatment Order. The respondent was assessed as being at a very high level risk of reoffending. There were serious concerns held in relation to his suitability to participate in a Drug Treatment Order. Those concerns included a lack of evidence of any genuine efforts on the part of the respondent to address his substance abuse in the past, including a lack of engagement with any drug and alcohol counselling, psychological counselling or any other professional support, which led to a conclusion that the respondent was, at that time, not ready for treatment and not suitable for a Drug Treatment Order.
Comments made in sentencing
I set out an exchange that occurred between the magistrate and the respondent's counsel, before the magistrate sentenced the respondent. This is relied upon by the respondent as revealing the magistrate's reasons for the particular sentence he imposed, in addition to his comments made a short time later when sentencing:
"MR CROTTY: […] So you have a situation where upon his release from prison we would seek to move him into something which will assist in rehabilitation. Whether that could be a Court mandated programme or not---
HIS HONOUR: Well it won't be called mandated programme because he hasn't got a report to say that he's suitable.
MR CROTTY: Well some time's gone by, so we're not sure, but if that isn't available it may be that conditions imposed upon a suspended sentence were to be so moved can be sufficiently broad though to ensure that the benefit that might have been had from a Court mandated programme, at least in some part, is still available to the defendant, because there wouldn't seem, with all due respect, a great deal of point just putting him in, getting him out at the other end.
HIS HONOUR: Well does he want a condition that he be place., if I place., suspend part of his sentence and to be placed on probation for twelve months an undergo any drug treatment or drug testing as required by his probation officer?
MR CROTTY: That's the usual condition---
HIS HONOUR: Well yeah, I've no trouble with that. I mean he may not want it because the trouble with that is that if he does breach it, he'll go to gaol.
MR CROTTY: That's been explained to him, your Honour.
HIS HONOUR: Okay well if I can I will. I'd be happy to accommodate."
After a short discussion, not relevant for present purposes, the learned magistrate proceeded to impose sentence, remarking as follows:
"HIS HONOUR: … I take into account all the matters raised by the Counsel. I take into account the fact that you've on the 14th of November 2013 you were sentenced to nine months' imprisonment for possession of guns and other matters, and that you were given nine months, as I said, nine months imprisonment, six months of which was wholly suspended, and that in the 7th of December 2015 I gave effect to the suspended part of that sentence and sentenced you to three months' imprisonment to pleading guilty to one of the charges that formally form part of the charges now before the Court. You're now aware if you weren't before that suspended sentences are not mere words. They will be given effect to, and that any possession of guns or stealing will result in your imprisonment. You're aged 32, you have a history of dishonesty and firearm offences. I take into account the totality principal, that is, that you're service prison [sic] at the moment and so obviously any sentence I give you now should be less than I might otherwise give you. Record conviction on all matters. There'll be an in globo sentence. It will be nine months imprisonment cumulative upon the period of imprisonment imposed on the 7th of December 2015, six months of which will be wholly suspended for three years on condition you've good behaviour [sic]. Sixty-two dollars sixteen Court costs, five hundred dollars Victims of Crime."
On a later date, his Honour made an order correcting the sentence to reflect what he had intended, revealed by his exchange with counsel. His Honour added a condition to the partially suspended sentence that the respondent had to be subject to supervised probation commencing on 3 May 2016 for 12 months, and during that time undergo such psychiatric and medical tests and drug and alcohol testing and treatment at the direction of his probation officer.
Could the respondent be properly convicted of three of the charges
It was argued for the respondent as a preliminary issue that the Crown appeal could not succeed insofar as it related to three of the charges contrary to s 9(1) of the Firearms Act committed on 22 January 2015, involving the replica military-type weapons, as the offences as particularised did not exist, and the respondent could not be properly convicted of them. Section 9, at the time the respondent was charged, was in the following terms:
"9 Possession or use of firearms
(1) A person must not possess or use a firearm unless the person is the holder of a firearms licence of the appropriate category as specified in Division 2 in respect of that firearm."
The type of firearms, notwithstanding they were replicas, fall within the definition of prohibited firearms under Sch 1 of the Act and cannot be licensed. There is no appropriate category in Div 2 of the Act that applies to the firearms the subject of these charges. The particulars refer to category D, but the firearms do not fall within that category, or any other category. It is noteworthy that the section has since been amended and, in its current form, extends to prohibit possession or use of a firearm "in relation to which a firearms licence may not be issued".
The question is the meaning of s 9, and the effect of the words "unless the person is the holder of a firearms licence of the appropriate category as specified in Division 2 in respect of that firearm". The offence is committed by possessing or using a firearm, unless a state of affairs exists. In my view, the natural meaning of the words does not convey that the firearm must be capable of being licensed and must fall within a category of Div 2 before an offence would be committed.
Section 142A of the Evidence Act 2001 (Tas) states as follows:
"142A Proof of exemption
(1) It is not necessary in any complaint or indictment to specify, negative or prove any exemption, exception, proviso, condition, excuse or qualification.
(2) If a defendant or an accused relies on any exemption, exception, proviso, condition, excuse or qualification, the proof lies on the defendant or the accused."
If the words in the section amount to an exception, proviso, condition, excuse or qualification, within the meaning of s 142A, the existence of any such exception need not be proved by the prosecution as an element of the offence. Whether the words of s 9 are a statutory exception is a matter of statutory construction. Equivalent provisions to s 142A have been considered in a number of decisions which assist in identifying matters bearing on the task of construing Parliament's intention. The High Court decision of Chugg v Pacific Dunlop (1990) 170 CLR 249, per Dawson, Toohey and Gaudron JJ at 258, provides assistance in this regard. The form of the language used may suggest that the matter is an exception upon which the defendant bears the onus of proof (Chugg at 258). Here, the word "unless", given its ordinary meaning, suggests an exception to a general prohibition. In DPP v Belani (2005) 64 NSWLR 319 at 332, significance was attached to the word "unless" and it was treated as denoting an exception and not an element of the offence for the prosecution to prove.
An indication that a matter is a statutory exception is that it sets up some new or different matter from the subject matter of the rule. Ordinarily this is the case where "there is a prohibition on the doing of an act 'save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities'" (Chugg, per Dawson, Toohey and Gaudron JJ at 258, referring to R v Edwards [1975] QB 27 at 40). Here, there is a general prohibition against having possession of firearms, save in circumstances where the individual is licensed and the holder of a licence of the appropriate category.
Applying these principles, I conclude that the offence is proved if the prosecution establishes beyond reasonable doubt that the person was in possession of or using a firearm. The onus is on a defendant to prove that they had a licence of the appropriate category as a statutory exception to the offence. The fact that a licence could not be granted merely reveals the inapplicability of the exception. It is not an element of the offence that a licence was not issued, or could be issued but was not. If the person is not licensed then the exception does not apply and possession or use is prohibited and an offence has been committed. If there is no licence which could be issued because the firearm in question does not fall within an appropriate category, the exception does not apply.
The amendment to the section on 4 November 2015, creating a separate offence for the possession of a prohibited firearm without an exemption or a licence, does not suggest that this construction of the section is incorrect. Rather than provide for an hiatus, the creation of the new offence was in order to reflect the gravity of the offence and to provide that it is indictable (second reading speech, Tasmania, House of Assembly, Parliamentary Debates (Hansard), 24 March 2015 at 41).
The reference in the particulars to category D in the three charges under discussion is erroneous. That is not fatal as the words are surplus to the offence that was committed, which was having possession of the firearms in question.
The respondent's argument is a counter-response to the argument of manifest inadequacy with respect to a global sentence. Of course, even if I am incorrect in my interpretation of s 9, the global sentence should still be set aside if the sentence was a manifestly inadequate penalty for all the remaining charges. Finally, it may be noted that presently, the three charges do not refer to the fact that the particularised military-type weapons are replicas. There is agreement that the complaint should be amended to reflect this significant fact.
No election by respondent with regard to indictable offence
An issue raised on review by the respondent was that the offence contrary to s 107A of the Firearms Act is an indictable offence punishable under the Criminal Code or may be tried summarily. The respondent contended that defendants have an election as to which court will deal with the matter, and pointed out that the respondent pleaded guilty without expressly electing to be tried summarily. I note that the words do not necessarily convey that the defendant has an election and one interpretation of the section that is open is that the choice of jurisdiction rests solely with the prosecution. The review as it stands expresses a grievance about the sentence. If there is to be a challenge to jurisdiction and an attack on conviction and sentence arising from a failure by the respondent to elect summary proceedings, then the so-called omission should be raised as a discrete error and not just as an issue on the review. In addition to the question of whether the defence has an election, questions arise as to whether the election may be waived, and if not, whether, absent an election, the Court had jurisdiction to impose sentence. There have been no submissions on these matters. I decline to decide this issue when it has not been raised as a ground of review and when it is unrelated to the applicants' contentions attacking the sentence. If there is a challenge to the sentence on this procedural matter of the election, the challenge needs to be properly articulated and contentions presented.
Manifestly inadequate
The contention for the applicants was that the sentence was manifestly inadequate and disclosed error. There was particular attention given to the nature of the firearms offences and the respondent's prior history of offending. It was argued for the respondent that the term of imprisonment was significant, particularly having regard to the cumulative effect of the sentence giving rise to a total period of 12 months' imprisonment, six months suspended. It was submitted that, "The suspension of six months of the sentence imposed was to give effect and enhance the rehabilitative potential of the overall sentencing and promote the good behaviour of the defendant." The submissions emphasised that the sentence imposed stringent post-release conditions upon the respondent for a lengthy period of three years.
There were serious aspects to the respondent's offending. The three offences of unlawful possession involve items of property that were intrinsically valuable or of a kind that they would be valued by their owner. It is acknowledged that the offence does not involve an element of knowledge that the property was stolen. It was not permissible for the respondent to be sentenced on the basis that he had that knowledge as that would be to take account of an aggravating factor which is an element of a more serious offence, and would punish him for an offence for which he has not been convicted: R v De Simoni (1981) 147 CLR 383.However, while falling short of such knowledge, the respondent's culpability for the offence of unlawful possession was still significant – he did not give any account for his possession, the items were obviously of value and he was reckless as to whether they were stolen or not.
The firearms offences give rise to particular concerns. The regime of penalties of the offences under the Firearms Act is informative about the relative seriousness of the offences. As at the date of the offences in November 2015, the penalty for possession or use of firearms contrary to s 9 attracted a maximum penalty of 100 penalty units or imprisonment not exceeding two years, or both. On 4 November 2015 the provision had been amended to increase the maximum fine from 50 penalty units and to provide that the charge was indictable and punishable under the Code. Indictable offences dealt with in the Supreme Court are subject to a maximum sentence of 21 years' imprisonment. The offence of fail to take all reasonable precautions to ensure safekeeping of a firearm contrary to s 84 attracts a maximum penalty which depends on whether the firearm is prohibited or not. A prohibited firearm attracts a maximum penalty of up to 50 penalty units or imprisonment for a term not exceeding two years, and any other firearm attracts a fine of up to 20 penalty units or a maximum term of imprisonment of 12 months. The offence of possession of a firearm part contrary to s 107, and possession of ammunition when not the holder of an appropriate licence contrary to s 105(3)(a) both carry a maximum penalty of 50 penalty units. Possession of a stolen firearm contrary to s 107A, and possess or use firearm in contravention of a firearm prohibition order contrary to s 132(1) attract a penalty of up to 100 penalty units or a maximum of five years' imprisonment, or both. The offence of possession of a stolen firearm is a new offence introduced by amendment to the Act which took effect on 4 November. A further indication of the seriousness of this new offence of possession of a stolen firearm is that it is indictable and may be dealt with in the Supreme Court.
In Blake v Adams [2013] TASSC 44, (2013) 22 Tas R 295, Porter J at [45] considered the serious nature of breaches of firearms legislation and the comments of Gray J in Offe v Police [2002] SASC 259, (2002) 84 SASR 1, with respect to the legislative scheme under the South Australian Firearms Act 1977 and at 9, made comments equally applicable to the Tasmanian legislation:
"[22] …The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included providing community protection through the licensing and regulation of firearms. The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.
[23] As earlier observed, in 1996 following events at Port Arthur motions were put in place to develop uniform gun laws around Australia. The Firearms Act was amended to provide an even tighter means of weapon control. The amendments aimed to further restrict the ownership and use of firearms with a view to preventing criminal behaviour involving their use."
In Williams v Parker [2016] TASSC 39, Pearce J at [11] commented on the seriousness of the offence of possession of a stolen firearm and the legislative intention:
"A person who possesses a stolen firearm commits an offence against s 107A. Section 107A was inserted into the Act by amendment in 2015 and became operative on 4 November 2015 as a legislative response to concern about the association between stolen firearms and other crimes of dishonesty and violence. The offence is an indictable offence punishable under the Code or may, as in this case, be tried summarily. If dealt with summarily, the offence is punishable by a fine not exceeding 100 penalty units, or imprisonment for a term not exceeding five years, or both. By reference to the Minister's second reading speech made in the House of Assembly on 24 and 25 March 2015, the creation of the offence and the heavy potential penalties which accompany it, disclose a legislative intention that those found in possession of a stolen firearm should face a harsh punishment."
In this case, it may be noted that it was not asserted by the prosecution that the respondent had knowledge that the particular firearm, the .22 calibre Ruger pistol, was stolen. Absence of knowledge was not mentioned in the plea in mitigation. Knowledge is not an element of the offence and in that respect, there is an absence of an aggravating factor. It is inherent in the plea of guilty though that the respondent did not have a satisfactory account for his possession of the firearm. If he had, he would have had a defence: s 107A(5).
The possession on 22 January of the firearms, the Harrington & Richardson .22 calibre revolver and the Ruger pistol, and the Young America revolver on 18 November, are serious examples of this offence. The facts speak for themselves. The firearms were loaded, not stored correctly and were easily accessible to the respondent or anyone on the premises. On the first occasion the respondent was anticipating a confrontation that he had initiated. Evidently, on at least the first of the two occasions he was under the influence of crystal methylamphetamine, a drug linked to erratic, violent and criminal behaviour. On the second occasion, he had the same drug in his possession. On both occasions there were young children present. His explanation for possessing two loaded revolvers on 18 November was for self-protection. However, to resort to possession of firearms for self-protection from threats of violence is not mitigating: Pearce J in Williams v Parker. Indeed, as his Honour stated at [12]: "The law must strongly discourage resort to unauthorised possession of firearms, especially those of this nature, for purposes of personal protection." His Honour endorsed a sentencing remark of Magistrate Brown which labelled resort to firearms in such circumstances as "a recipe for dangerous lawlessness". I agree with that characterisation.
The three offences of possession of firearms when not the holder of the appropriate licence on 22 January involving the three replicas, the AK47 assault rifle, M16 assault rifle and Thompson machine gun are, in one respect, low level examples of this offence. They were imitations and not capable of being fired. However, there were concerning aspects regarding their possession. While there was no explanation provided to the learned magistrate for the possession of these replicas of military-type weapons, presumably, it was thought that these imitations, in addition to the revolver, would be effective in intimidating anyone who might be seen as a threat. Such a purpose anticipates lawless engagement with a criminal or drug cohort, and again, if that was the purpose, it is not mitigating. Another concern is that such items could fall into other hands and be used in the course of criminal activity to intimidate innocent and law-abiding members of the community.
The two offences committed in November of possessing a firearm in contravention of a firearms prohibition order show a resistant attitude to police authority and a disregard for the law. The respondent had been personally and expressly prohibited by the Commissioner of Police from having possession of firearms. His conduct in having possession of two loaded revolvers, both stolen, was a blatant breach of that order. I agree with remarks made by Pearce J in Williams v Parker at [12] regarding the offence of possessing a firearm in contravention of a firearms prohibition order, and that unless breach of such orders results in harsh punishment, their purpose and effect is undermined.
The other firearms offences and the offences of possessing drugs are also to be taken into account and reveal an extensive level of offending. On the two occasions that the respondent committed firearms offences, he was also in possession of illicit drugs. This is an aggravating factor with respect to his illegal possession of firearms, adding to the danger to the public: Williams v Parker at [12].
The respondent's offending, and his history of similar offending, demonstrated there was a stark need for specific deterrence. At the time he committed the offences under review in January, March and November, he was in breach of the suspended sentence imposed in November 2013 for firearms and other offences similar to those under review. The head sentence imposed of nine months was plainly inadequate and failed to reflect the gravity of his offending and the prominence of general deterrence. The first occasion of offending in January, on its own, required a prison sentence of at least nine months.
The suspension of six months imprisonment with conditions of probation and drug testing was imposed in order to achieve the respondent's reform. However, there seemed little reason to consider such an order would be effective. Suspended sentences had not been effective in the past. In December, when the drug assessment report was provided to the Court, the respondent had not demonstrated any desire to address his substance abuse, and had made no genuine efforts to engage with services that had been available to assist him. The plea in mitigation referred to a desire to address his drug problem and that he had made an enquiry with regard to a drug rehabilitation program. Admittedly, he also had the continued support of his parents, but this was a positive factor only if and when he resolved to address his drug addiction.
Without being sceptical, it must be said that the prospects that he would comply with the conditions of a suspended sentence of imprisonment were bleak. The more recent firearms offences in November were committed, not only when he was subject to a suspended sentence, but also when on bail for similar offending in January. He had not been deterred by a firearm prohibition order or bail conditions. He had breached both in a blatant fashion. Apart from a recent enquiry about drug rehabilitation, he had a history of not engaging with intervention and counselling. That enquiry may prove hollow given his history. I am conscious that the sentence under review was ordered to be served cumulatively to a three month term of imprisonment imposed in November. However, that three month period was not so lengthy though that it might be expected to result in a turn-around in the respondent's offending, justifying a subsequent lenient sentence. It was a relatively short period for someone who had been to prison on a number of occasions.
A sentence of nine months' imprisonment, the greater proportion of which was suspended, was an inadequate deterrent to the respondent and most unlikely to deter other like-minded offenders, especially those offenders who may be tempted to resort to firearms in a lawless context or for self-protection. There is a risk, in the circumstances of this case, that such a sentence may be perceived by the community as so light as to encourage the view that such offences are not serious, countermanding the purpose of the legislation. That risk is pronounced, given an awareness by members of the community of the respondent's circumstances, particularly the lack of mitigating circumstances and the number of opportunities the respondent had been given by the courts, the little effort he had made to address his drug problem, and that he was not, in some other respect a worthy candidate for leniency.
It is argued that the principle of totality lent justification for the suspension of six months of the sentence. The principle means that the court is bound to ensure that the aggregate of cumulative sentences is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295, per Dawson and Gaudron JJ at 304, per McHugh J at 307-308. In this case, the learned magistrate was bound to ensure that the accumulation of the sentence he was imposing with the activated suspended sentence of three months was a just and appropriate measure of all the criminality involved. However, the sentence under review is not rendered adequate by reference to the operation of the principle of totality. The aggregate period, 12 months with an effective period of six months, was wholly inadequate for the aggregate of the activated suspended sentence and the offending under review.
The sentence is plainly inadequate and amounted to clear error in the exercise of the learned magistrate's sentencing discretion.
Crown appeal and resentencing
This is a Crown appeal and special considerations apply arising from concerns about unfairness and exposure of the respondent to double jeopardy. These considerations were discussed recently in Parker v Hall [2015] TASSC 60. To succeed the applicants must demonstrate very clearly the error of which they complain and there is a "residual discretion" to dismiss a Crown appeal, even if the sentence is determined to be manifestly inadequate. The Court may take double jeopardy considerations into account in deciding whether or not to intervene or dismiss the review and is not precluded from taking these considerations into account by s 110 (2AB) of the Justices Act 1959. See the discussion in Wilkie v Cohen [2016] TASSC 14 at [20]; Parker v Hall at [14]–[15] and Lyons v Bakes [2015] TASSC 37 at [16].
The respondent has had his freedom placed in jeopardy a second time because of the prosecution appeal. A respondent to an appeal in this situation suffers added anxiety and stress because of the delay in having their charges resolved, the uncertainty of what the outcome may be and the possibility of a harsher sentence on appeal. The stress and anxiety faced by the respondent in this case is heightened by the fact that he had served the immediate part of his sentence and in fact, had been released from prison some six weeks before the motion to review was heard. However, in this case, intervention is clearly warranted. The offending is serious, the sentence was excessively lenient, and the error should be corrected to maintain sentencing standards and ultimately, to maintain community confidence in those sentencing standards.
In resentencing, s 110(2AA) of the Justices Act permits me to take into account matters that have occurred since the matter was dealt with by the learned magistrate. As noted, the respondent has served the effective part of his sentence and was released on 18 March 2016. More recently, he has been sentenced for other matters. On 20 June 2016 he was sentenced to 28 days' imprisonment for offences of breach of bail committed on 8, 9, 10 and 12 June 2016. On 27 July 2016 he received a sentence of four months' imprisonment, commencing on 11 July, two months' suspended for an offence of common assault committed on 15 November 2015, and a cumulative term of imprisonment of two weeks for six offences of breach of an interim family violence order on 13, 14, 15, 20, 22 and 26 February 2016, and a concurrent term of imprisonment of two weeks for driving offences.
It was submitted on the respondent's behalf that because of the resentencing of these matters and the sequencing of that resentence and the imposition of the recent sentences, mentioned above, the respondent has lost an opportunity to have those recent sentences imposed concurrently with the sentence for these matters. However, it seems highly unlikely that concurrent or partly concurrent sentences would have been imposed. The common assault involved a wholly different kind of offending committed on a different date. It is also unlikely that the driving offences and breaches of interim family violence order would have been concurrent with a term of imprisonment for the matters under review. The sentence for the driving offences was already ordered to be served concurrently with the sentence for the breaches and the common assault. In light of the submission, the principle of totality has application and I have had regard to the aggregate of recent sentences imposed. It is accepted that there has been stress associated with the prospect of returning to custody after a recent release for other matters. It would have been less onerous to have experienced a cumulative period of incarceration for the matters under review than to have to experience the adjustment of returning to custody after a short period of freedom.
The applicants consented to information being taken into account in resentencing which was available at the time of sentencing, but was not before the learned sentencing magistrate. [The remainder of this paragraph has been redacted in the published version of this judgment.]
Having regard to the matters that have occurred since the respondent was sentenced and the additional matter attracting a discount that was not before the sentencing magistrate, I conclude a reduced sentence of 18 months' imprisonment is appropriate. I consider that the respondent may well benefit from parole and I will impose the minimum non-parole period. In the circumstances, I will extend further leniency and treat the three months' imprisonment that has been served by the respondent as equivalent to six months, noting the terms of the order to be made as to eligibility to apply for parole.
Orders
A sentence of 18 months' imprisonment is appropriate and reflects the discount to be allowed and considerations I have mentioned. I treat six months as effectively served and the balance of 12 months' imprisonment will be imposed, effective from yesterday and I will make an order imposing the minimum non-parole period of six months. The probation order will stand in the same terms and commence on the date of his release. Yesterday, I allowed the motion to review, quashed the sentence imposed by the learned magistrate and I will now impose sentence in the terms as indicated.
It is agreed that orders should be made amending the particulars of the charges 2, 3, 4, 7, 8 and 13 on complaint 626/15, which make reference to the AK47 assault rifle, M16 assault rifle and Thompson machine gun to add the word "replica" in the description of the firearms, which is a significant omission. Complaint 627/15 should be dismissed as a duplication of charge 13 on complaint 626/15. I order accordingly.
Orders made on 18 October as follows:
1 The motion to review is allowed.
2 The sentence imposed by the learned magistrate is quashed.
Orders made on 19 October as follows:
3 Complaint 627/15 is dismissed.
4The word "replica" is added to the description of the firearms, namely the AK47 assault rifle, M16 assault rifle and Thompson machine gun, on charges 2, 3, 4, 7, 8 and 13 on complaint 626/15.
5On all other complaints a global sentence is imposed and the respondent is ordered to serve 12 months' imprisonment from 18 October 2016. He is not to be eligible to apply for parole until he has served six months of that sentence.
6A supervised probation order is imposed for a period of 12 months from the date of release, and during that time the respondent is to undergo medical (including psychological) assessment and treatment and drug and alcohol testing and treatment at the direction of his probation officer.
6
11
0