Pak v The Queen - [2012] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0110
MAKSUT PAK	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN JA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	16 January 2012
DATE OF JUDGMENT:	19 January 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 4
JUDGMENT APPEALED FROM:	R v Pak (Unreported, County Court of Victoria, Judge Chettle, 18 March 2011)

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CRIMINAL LAW – Sentence – Possession of imitation firearm whilst a prohibited person – Effective repeal of provision creating offence – Offending conduct now proscribed by different provision with a lower maximum penalty – Legislative changes assented to at time of sentence but not in effect – Elements of fresh offence different from those of offence charged – No error – R v Ronen (2006) 161 A Crim R 300, R v Bowen [2008] VSCA 33 and Grenfell v R (2009) 196 A Crim R 145 considered – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	C Marshall & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Williams AJA to deliver the first judgment.

WILLIAMS AJA:

The appellant, Maksut Pak, was sentenced in the County Court on 18 March 2011 as follows. On presentment C0806416, he was sentenced to three years’ imprisonment for trafficking methylamphetamines contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (base sentence) and to three months’ imprisonment for trafficking cannabis in contravention of the same provision. On presentment X00928650, he was sentenced to twelve months’ imprisonment for being a prohibited person in possession of an unregistered firearm under s 5(1A) of the Firearms Act 1996. Six months of the sentence for breach of s 5(1A) was to be served cumulatively upon the base sentence. The total effective sentence was three years and six months’ imprisonment with a non-parole period of two years and four months.

The appellant has been granted leave to appeal against his sentence for the offence under s 5(1A) of the Firearms Act1996 of possessing an unregistered firearm between 26 March and 8 April 2009, whilst being a prohibited person. That leave was restricted to the ground of appeal that ‘the sentencing discretion miscarried in that no regard was had to the change in attitude of the Parliament in this type of offending behaviour.’

Between the dates of the appellant’s offences and his sentence, assent was given to the Firearms and Other Acts Amendment Act 2010 (the amending act) which had the effect of repealing that part of s 5(1A) of the Firearms Act which made it an offence for a prohibited person to possess an imitation firearm.

The amending act also made changes to the definition section, s 3(1), of the Control of Weapons Act 1990, creating a new offence of possession of an imitation firearm without approval or exemption. The maximum penalty under s 5(1A)

applicable to the appellant’s 2009…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pak v The Queen

Details

AGLC: Pak v The Queen [2012] VSCA 4
Case: [2012] VSCA 4
Decision Date: 19 January 2012

CaseChat Overview and Summary

The case of Pak v The Queen was heard in the Supreme Court of Victoria. The defendant, Pak, was convicted of possessing an imitation firearm while being a prohibited person. The dispute centred on the sentencing of Pak, specifically whether the court should consider a provision that had been effectively repealed by the time of sentencing. The repealed provision carried a higher maximum penalty than the new provision that now applied to the same conduct.

The legal issues before the court were whether the court should impose a sentence under the repealed provision, which was in force at the time of the offending conduct, or whether it should apply the new provision that was in force at the time of sentencing. The court had to determine if there was an error in not applying the lower penalty from the new provision, despite legislative changes being assented to after sentencing but not in effect at the time. The court also considered whether the elements of the fresh offence differed from those of the offence charged, and if so, whether this constituted a point of principle.

The court held that there was no error in the sentencing process. It reasoned that the new provision, which had a lower maximum penalty, was different in its elements from the offence charged, and thus could not be applied retrospectively. The court referred to previous cases, including R v Ronen, R v Bowen, and Grenfell v R, to support its decision. The court found that there was no point of principle that required the lower penalty to be applied, and therefore upheld the sentence imposed under the repealed provision.

No further orders were made by the court. The defendant's sentence remained as determined by the original conviction and sentencing under the provision that was in effect at the time of the offending conduct.

Orders