R v Willingham (No 2)
[2012] SASCFC 104
•3 September 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLINGHAM (No 2)
[2012] SASCFC 104
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)
3 September 2012
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Application for permission to appeal against conviction - appellant was convicted of two counts of possessing a firearm without a licence - whether the searches that led to the discovery of the firearm the subject of each count were illegal and, if so, whether the evidence of the search and discovery of the firearms should have been excluded.
Held (the Court): Permission to appeal against conviction granted - appeal against conviction dismissed - the Judge was correct in concluding that the searches were not illegal and that the evidence was therefore admissible.
Appeal against sentence - appellant's conduct breached a suspended sentence bond which had been imposed in respect of other offending - appellant's suspended sentence bond was estreated - total head sentence of 30 months imprisonment imposed by the Judge - non-parole period of 23 months fixed - the Judge also imposed fines in respect of the firearms offences - whether the Judge had power to both imprison and fine the appellant.
Held (the Court): Appeal against sentence allowed - the Judge did not have power to imprison and fine the appellant - appellant resentenced.
Controlled Substances Act 1984 (SA) s 32; Firearms Act 1977 (SA) s 11; Summary Offences Act 1953 (SA) s 67 and s 68; Criminal Law (Sentencing) Act 1988 (SA) s 18, referred to.
R v Rogers (2011) 109 SASR 307; Wilson v The Queen; Morrison v The Queen (1994) 176 LSJS 435; Crowley v Murphy (1981) 52 FLR 123; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, considered.
R v WILLINGHAM (No 2)
[2012] SASCFC 104Court of Criminal Appeal Gray, Sulan and Stanley JJ
THE COURT:
These are appeals against conviction and sentence.[1]
[1] Permission to appeal against conviction was granted during the course of submissions.
The defendant and appellant, Dale Paul Willingham, stood trial before a Judge alone in the District Court on four counts of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA) and on two counts of possessing a firearm without a licence contrary to section 11(1) of the Firearms Act 1977 (SA).
On 16 November 2011, the trial Judge acquitted the defendant of the four counts of trafficking in a controlled drug. On 30 March 2012, the Court of Criminal Appeal, on the application of the Director of Public Prosecutions, set aside the Judge’s verdict of acquittal on the four counts of trafficking in a controlled drug and ordered a retrial on each of those counts.
On 16 November 2011, the trial Judge convicted the defendant of the two counts of possessing a firearm without a licence. The defendant has appealed against his convictions of the two counts of possessing a firearm without a licence. It was the submission of the defendant that illegal searches led to the discovery of the firearm the subject of each count and that, as a consequence, the evidence of the search and discovery of the firearms should have been excluded. Absent the evidence of the search and discovery, it was said that the prosecution case had to fail.
The first of the counts alleged a firearm offence on 1 April 2009. In the early hours of that morning, police stopped and searched a vehicle being driven by the defendant. Items believed to be drugs, the subject of two of the four trafficking counts, were found in the vehicle. Police found a bag containing $51,000.00 in cash, knuckledusters, a slingshot and balaclavas and gloves. The defendant was arrested. His house was searched. Police found a crystalline substance in a glass jar that was believed to be amphetamines. A class H firearm was also located in his house.
The second of the counts alleged a firearm offence on 25 July 2009. Police returned on that occasion to the defendant’s house as a result of a report of a “drive-by shooting”. In the course of their investigation, police found a quantity of white powder believed to be methylamphetamine the subject of one of the four trafficking counts and police also found a class H firearm hidden in a mattress.
The Power to Search
Section 68 of the Summary Offences Act 1953 (SA) provides:
(1)A police officer may do any or all of the following things, namely, stop, search and detain—
(a) a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i) there are stolen goods; or
(ii) there is an object, possession of which constitutes an offence; or
(iii) there is evidence of the commission of an indictable offence;
(b) a person who is reasonably suspected of having, on or about his or her person—
(i) stolen goods; or
(ii) an object, possession of which constitutes an offence; or
(iii) evidence of the commission of an indictable offence.
(2) In this section—
stolen goods includes goods obtained by the commission of an offence.
The requirement of reasonable cause applies to the stopping of the vehicle as much as it applies to the subsequent search. There must be grounds for suspicion before the car is stopped.
In Rogers, Duggan J dealt with a question concerning the reasonableness of a police officer’s suspicion and said:[2]
[2] R v Rogers (2011) 109 SASR 307, [17]-[18], [21]-[22].
… The principal issue raised on behalf of the accused is whether this suspicion was reasonable in all the circumstances.
…
Their Honours [in George v Rochett] also referred to the definition in Chambers Dictionary quoted by Kitto J in Queensland Bacon Pty Ltd v Rees:[3]
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”.
…
…Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. It is relevant to note that the reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer. As Jacobs J observed in Manley v Tucs:[4]
Not only does “suspicion” carry less conviction than “belief”, but to say that a suspicion is “reasonable” does not necessarily imply that it is well-founded, or that the grounds for the suspicion must be factually correct.
The suspicion may be grounded upon matters which the police officer has observed and circumstances which have been reported. That is not to say that every matter reported as a fact may be legitimately taken into account in forming a suspicion. The requirement of reasonableness may require the police officer to assess the reliability of the informer or the hearsay information which has been communicated.
[3] (1966) 115 CLR 266 at 303.
[4] (1985) 40 SASR 1 at 9.
The questions to be asked in each case are first, whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
The Search on 1 April 2009
Section 68 of the Summary Offences Act does not require the police officer exercising the power provided for in that section to have knowledge of a particular offence or the commission of a particular offence.[5] Police had authority to stop and search the vehicle as there was reasonable cause to suspect that there were stolen goods in the vehicle. The test for stopping the vehicle is the same as that for a search of the vehicle.
[5] Wilson v The Queen; Morrison v The Queen (1994) 176 LSJS 435.
The defendant sought exclusion of evidence relating to the search of his vehicle on the morning of 1 April 2009. The complaint advanced was that police had acted unlawfully in stopping and subsequently searching the vehicle.
The Judge found that Sergeant Arthur saw the defendant’s vehicle drive from what Sergeant Arthur believed to be a building block on the corner of Haven and Trafford Roads, Mansfield Park in the early hours of the morning of 1 April 2009. Sergeant Arthur was aware that there were building sites in the area and that there had been reports of thefts from those building sites over a period of some months prior to the date of this offence.
The Judge accepted the evidence of Sergeant Arthur that he had reasonable cause to suspect that the vehicle driven by the defendant may have been carrying stolen goods. The Judge observed:[6]
The onus is on the defendant to establish the factual basis to found any illegality on the balance of probability.
I accept the evidence of Arthur when he says that he had a suspicion that the Navara seen leaving the allotment on Haven Street may have been carrying stolen goods. I accept this assertion principally because it accords with common sense. There had been thefts from the area. [Counsel for the defendant] says that the documents under subpoena show only five thefts, one of which can be discounted, in a three month period and do not demonstrate a significant number of thefts. …
It seems to me, however, that Arthur was not talking about a particular three month period. He was talking about a much longer period of time. It seems to me that common sense tells one that building sites are a good source of objects to steal because they are frequently unattached waiting attachment by builders. There are at night no persons likely to be on the site so as to prevent the theft and, if it is an extensive redevelopment, then there are not likely to be many people in the area at all as many houses are, at any particular stage, vacant land, houses in the course of construction or vacant houses not yet lived in.
These facts coupled with the fact that the vehicle was a utility and that the time was 2.00 am and there were no obvious signs of life around to explain the presence of the accused meant that, in my view, it was a reasonable suspicion to have been entertained by Arthur.
[6] R v Willingham [2011] SADC 169, [44]-[47].
The Judge was satisfied on the balance of probabilities that when Sergeant Arthur stopped the vehicle and spoke to the defendant, the driver, Sergeant Arthur had reasonable cause to suspect that stolen property might be hidden in the vehicle.
On appeal, counsel for the defendant submitted that the circumstances did not justify the Judge’s conclusion that Sergeant Arthur’s suspicion was reasonable. Attention was drawn to the fact that the block from which the vehicle was seen to leave was vacant and not a building site. It was said that Sergeant Arthur jumped to a conclusion without there being a proper basis from which a finding of reasonable suspicion could be made.
It was open to the Judge to conclude that section 68 of the Summary Offences Act permitted Sergeant Arthur to stop and search the defendant’s vehicle and that the suspicion held by him was reasonable in all the circumstances. In this regard, it should be noted that the Judge had the benefit of seeing and hearing the witnesses give their evidence.
The Judge was correct to conclude that the evidence of the subsequent search of the vehicle was admissible.
The Search on 25 July 2009
The defendant sought exclusion of the evidence located during the course of a search of his house on 25 July 2009.
The search of the house arose out of a report of a “drive-by shooting” at that address in the early hours of the Saturday morning, 25 July 2009. The police attended and spoke to the defendant. Although an apparent target of the shooting, the defendant refused to cooperate with police. He claimed to be unaware of any drive-by shooting. This claim was not believable. He declined to answer any further questions. An examination of the premises disclosed evidence suggesting that there had been a drive-by shooting.
During the course of the morning the exterior of the house was examined by police ballistics experts. Subsequent to that, Detective Senior Constable Chamberlain and Constables Lienert and Tran entered the house. They did so pursuant to a general search warrant.
Later that same day, Detective Sergeant Clarke attended at the defendant’s house. She was the holder of a general search warrant. She suspected that a crime had occurred at that house and that evidence of the crime might be present at the house. The Judge, in the Court’s view, correctly accepted the evidence of Detective Sergeant Clarke. It was during the course of Detective Sergeant Clarke’s search that the hand gun the subject of the second of the firearms offences was located. The Judge found that there was no illegality attended upon that search and that the fruits of that search should not be excluded as a matter of discretion.
General search warrants are issued under section 67 of the Summary Offences Act, which provides:
(1)Despite any law or custom to the contrary, the Commissioner may issue general search warrants to such police officers as the Commissioner thinks fit.
(2)Every such warrant must be in the form in the Schedule, or in a form to the same effect, and must be signed by the Commissioner.
(3)Every such warrant will, subject to prior revocation by the Commissioner, remain in force for six months from the date of the warrant, or for a shorter period specified in the warrant.
(4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a) the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b) the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—
(i)there are stolen goods; or
(ii)there is anything that may afford evidence as to the commission of an offence; or
(iii)there is anything that may be intended to be used for the purpose of committing an offence;
(c) the officer may seize any such goods or things to be dealt with according to law.
The exercise of the power to search must be performed reasonably in the sense, at least, that it is not used for an extraneous or improper purpose. This topic was considered by Doyle CJ at some length in Question of Law Reserved (No 1 of 1998).[7]His Honour quoted a number of passages from Crowley v Murphy, including the following remarks of Franki J:[8]
[7] Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281.
[8] Crowley v Murphy (1981) 52 CLR 123, 132, as cited in Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, 295.
The task of a person seeking to show that more than a reasonable search is being sought will never be easy. I reiterate that what is a reasonable search depends on the particular circumstances existing at the moment when objection is taken to the search being made.
Doyle CJ also referred to Lockhart J’s observations:[9]
[9] Crowley v Murphy (1981) 52 CLR 123, 144, as cited in Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, 295-296.
Lockhart J, after considering the obligations imposed upon a person who issues a search warrant, then considered the obligations of the searcher. He said (at 144):
The overriding obligation of the searcher is to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances of a particular case he has whatever documents are necessary to answer the terms of the warrant. Plainly this must vary from case to case. What is permissible on one occasion is impermissible on another. Much must be left to the sense of responsibility of the police officer and the person whose premises are to be searched. Limits on the search may be imposed by the justice issuing the warrant; but, in the end, it is for the courts to supervise the exercise of the power, subject to any relevant legislation.
…
It is therefore not surprising that search warrants are frequently framed in rather general and wide terms. But that very generality in width calls for particular care on the part of the policeman executing the warrant to ensure that the liberty of the subject and inviolability of his premises are interfered with only so far as is necessary to give effect to the warrant. It calls also for vigilance from the courts to firmly restrain abuses of the exercise of the powers of entry, search and seizure. The courts must balance the necessity, in appropriate cases, for entry into a person's premises against the freedom he enjoys there.
Doyle CJ later concluded:[10]
In the judgments in each of these cases can be found the notion that a statutory power to search and seize, expressed in general terms, authorises only such a search as is reasonable in all of the circumstances. The cases illustrate the difficulty that the courts have had in deciding what is reasonable.
I agree that the statutory powers of search and seizure are to be construed narrowly, because they involve an intrusion upon common law rights that are regarded as basic or fundamental individual rights. To be more specific, they are to be construed as not authorising an interference with those rights beyond what is stated expressly, or beyond what follows by necessary implication. …
[10] Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, 296.
In the present proceeding, the Judge, in concluding that the search of the house by Detective Sergeant Clarke was legal, being authorised by her general search warrant, made the following findings:[11]
There is, however, in my opinion, no evidence upon which I could conclude that the police search was lacking in bona fides. There was clear evidence of a drive-by shooting which must have caused alarm to the neighbours of the accused. The community would demand that the police investigate such a matter. The police knew from an early stage that the accused was not cooperating. It would have been apparent to them that the incident was probably related to some activity of the accused that he did not want the police to know about, probably because it was illegal. The alleged involvement of the accused with the Hells Angels would highlight that suspicion but the foundation for the whole episode lay not in the accused being a member of the Hells Angels but rather in the fact that a drive-by shooting occurred and the victim was not cooperating.
It was quite reasonable that the police would want to obtain evidence by searching his premises for signs of illegal activity which might give them a motive for the shooting and at least narrow down the range of possible suspects. Such evidence might include evidence of previous contact with individuals or organisations with the accused which might explain the shooting.
…
The onus of proof in this matter is on the defendant on the balance of probabilities. I am not satisfied that there was a lack of bona fides by the police in the investigation and use of search warrants in examining the premises of the accused.
Accordingly I have held that the search which located the offending material was a lawful search.
[11] R v Willingham [2011] SADC 170, [113]-[114], [121]-[122].
On the appeal, the defendant submitted that the police awareness of the defendant’s membership of the Hells Angels Motorcycle Club and of the discovery of drugs during the search of 1 April 2009 provided all the evidence they needed of motive. It was said that the real reason for the search was to cause inconvenience to the Hells Angels. It was claimed that there was no bona fides intent to investigate the drive-by shooting.
It was open to the Judge to conclude that embarking upon the search by Detective Sergeant Clarke was a bona fides act. Detective Sergeant Clarke gave evidence that it was relevant for the police to conduct a thorough search in an attempt to ascertain why the drive-by shooting had occurred. The police were aware that the defendant was a member of the Hells Angels, that he was denying that any shooting had taken place and that he was providing no other information. It was evident that a shooting had taken place as a consequence of information provided to the police and as a result of the examination of the house by ballistics experts. Any information that would be relevant to establishing a motive for the shooting may well have assisted the apprehension of those responsible.
The Judge was correct in concluding that the search was not illegal and that the evidence was therefore admissible.
The Appeal Against Sentence
On 24 March 2007, the defendant together with another man committed an offence of aggravated assault for which the defendant received a suspended sentence of nine months imprisonment. It was a term of the three year suspended sentence bond that the defendant be of good behaviour. The two firearm offences, the subject of the within proceedings, involved conduct by the defendant in breach of the suspended sentence bond. The second offence was committed while the defendant was on bail for the first offence.
The maximum penalty for each of the offences of possessing a firearm without a licence was “$35 000 or imprisonment for seven years”.[12]
[12] Firearms Act 1977 (SA) section 11(7).
In relation to the aggravated assault, the Judge estreated the suspended sentence bond and ordered that the sentence of nine months imprisonment come into effect and commence on 27 October 2011. He also ordered payment of the sum of $500.00. In respect of the first offence of possessing a firearm without a licence, the Judge imposed a sentence of eight months imprisonment, cumulative on the penalty for the aggravated assault. In respect of the second offence of possessing a firearm without a licence, the Judge imposed a sentence of 13 months imprisonment, cumulative on the sentence for the first firearm offence. Accordingly, the Judge imposed a head sentence of 30 months imprisonment. A non-parole period of 23 months was fixed. Further, the Judge prohibited the defendant from holding or obtaining a firearms licence until further order and ordered forfeiture of both firearms.
Additionally, the Judge imposed fines in respect of the firearms offences, namely a fine of $10,000.00 in respect of the first offence and $30,000.00 in respect of the second offence.
The Judge, when sentencing, was under the misapprehension that the maximum sentence he could impose in respect of each firearm offence was “imprisonment for seven years or a fine of $35,000.00 or both”. It is to be observed that the Firearms Act in fixing a maximum penalty does not include the words “or both”. The defendant and the Director joined in submitting that there was no power to both imprison and fine and that in doing so the Judge had acted beyond jurisdiction. In these circumstances, the Director accepted that the sentences imposed by the Judge should be set aside and that the defendant should be resentenced. It was the Director’s submission that the matter should be remitted to the District Court for resentencing so that sentencing could occur once the remitted drug charges had been resolved. It was the defendant’s submission that this Court should resentence the defendant and not remit the matter.
The defendant was convicted of two offences under section 11 of the Firearms Act. Section 11(7) relevantly provides:
Subject to this section, the maximum penalty for an offence against this section is as follows:
…
(b) where the firearm is a class C, D or H firearm—$35 000 or imprisonment for seven years;
…
The use of the word “or” is not determinative of a statutory provision having a disjunctive effect. The learned authors of Statutory Interpretation in Australia[13] refer to two categories of cases in which statutory provisions have been interpreted as having a conjunctive effect despite the presence of the word “or”. In the first category of cases, courts have applied a conjunctive interpretation where the use of “or” appears to have resulted from a drafting or printing error. In the second category of cases, courts have deemed that the word “or” has not resulted from a drafting error but that, nevertheless, the cumulative effect of the provision should not be dictated by the presence of the word.
[13] Pearce and Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) [2.29]-[2.30].
There are several indications that Parliament intended that the penalties specified by section 11(7) of the Firearms Act can only be imposed in the alternative. First, the structure of other penalty provisions in South Australian legislation support such a reading. By contrast with section 11(7), numerous South Australian penal provisions provide for maximum sentences of a fine or imprisonment “or both”. This would indicate that the use of “or” in section 11(7) was deliberate and that the legislature’s intention was to provide these penalties in the alternative.
Secondly, section 18 of the Criminal Law (Sentencing Act) 1988 (SA) empowers courts to substitute certain penalties for those listed in the statute creating the offence. Section 18 provides:
Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a)where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose—
(i) a fine; or
(ii) a sentence of community service; or
(iii) both a fine and a sentence of community service; or
(b)where the special Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose—
(i) a sentence of imprisonment only; or
(ii) a fine only; or
(iii) a sentence of community service; or
(iv) both a fine and a sentence of community service; or
(c)where the special Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose—
(i) a sentence of community service; or
(ii) both a fine and a sentence of community service; or
(d)where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.
It is notable that subsection 18(c) contemplates that a statutory provision may prescribe a sentence of imprisonment and a fine as alternatives, and does not expressly empower courts to impose both penalties in such a situation.
These circumstances allow the conclusion that the Judge did not have power to imprison and fine.
Resentencing
In the Court’s view, it is appropriate that this Court resentence the defendant. The remitted charges of trafficking in drugs have not yet been retried. That process may take some time. There may be further appeals. It is desirable that the defendant be resentenced in respect of the firearms offences as soon as practicable.
It was the defendant’s submission that the first of the firearms offences should not have led to an order of imprisonment and that the second of the offences, although warranting an order of imprisonment, should have led to a lesser term than that imposed. It was claimed in this Court for the first time that the weapon the subject of the first firearm offence had been found in a rusty state by the defendant when he was out jogging and that the firearm found on the second occasion had been hidden in the mattress by some other person.
The firearm the subject of the first offence was a handgun located in the kitchen of the house. It was in a disassembled state but was capable of being assembled so as to be fired. Certain components were missing but those components related to safety features. The serial number on the handgun had been removed.
The firearm the subject of the second offence was also a handgun in working order and was apparently located hidden in a mattress in a bedroom of the house. Its serial number had also been removed.
The Judge, when sentencing the defendant, and having noted the earlier suspended sentence bond, remarked:
I acquitted you in relation to the offences involving those drugs but I convicted you of Possessing a Firearm without a Licence, as when police searched your premises they located your dismantled class H firearm. That offence breaches your good behaviour bond that you entered into on 25 July 2007.
As if that was not enough, on 25 July 2009, there was a drive-by shooting at your premises and investigating police located in your house a firearm hidden in the mattress. Again, this was a class H firearm for which you held no licence.
The maximum penalty for each of the offences of Possessing a Firearm without a Licence under the Firearms Act is imprisonment for seven years or a fine of $35,000 or both.
The second offence on 25 July 2009, also breaches your suspended sentence bond, entered into in the Elizabeth Magistrates Court on 25 July 2007.
In my view the second offence is more serious than the first as it occurred against a background of the first firearm having been discovered and this offence having occurred three months later also constitutes a second breach of your suspended sentence bond. The firearm in this instance was operative and not in a dismantled condition.
I note that you are 31 years of age and have lost your employment as a stevedore as a consequence of these charges. You have been caring for your father who needs assistance with the affairs of everyday living. You have a stable domestic relationship which has been ongoing for about two years.
I also note that your criminal record includes only the one offence of any great moment, the Aggravated Assault.
Having regard to the fact that you have breached your bond by the commission of not one but two serious offences within the time of the bond, I can find no proper grounds for failing to estreat it and ordering that the sentence comes into effect.
It is to be noted that the Judge reduced the terms of imprisonment due to the amount of the fines he intended to impose.
Both offences were very serious. The defendant was in possession of firearms for which he held no licence and on which the respective serial numbers had been removed. There was no justification at all for the defendant to be in possession of such weapons. The removal of the serial numbers allows the inference to be drawn that they were intended for some inappropriate use, more particularly, for use in some illegal activity. The Court considers that the sentences imposed were merciful.
The Court does not consider that any basis has been established to do other than revoke the suspended sentence of imprisonment of nine months. It was appropriate to estreat that bond. It is appropriate that the sentence of nine months imprisonment commence on 27 October 2011. Having determined to revoke the suspended sentence, it would be inappropriate to consider a further suspended sentence for the first firearm offence. Further, the Judge was correct to suspend the sentence.
In respect of the first of the offences of possessing a firearm without a licence, a sentence of imprisonment of eight months cumulative on the sentence of nine months imprisonment should be imposed.
In respect of the second of the offences of possessing a firearm without a licence, a sentence of imprisonment of 13 months cumulative on the sentence of eight months imprisonment should be imposed.
As a consequence, the defendant is to be imprisoned for a total of 30 months with a non-parole period of 23 months commencing on 27 October 2011. The order of forfeiture of both firearms made by the sentencing Judge is confirmed. The order made by the sentencing Judge that the defendant be prohibited from holding or obtaining a firearms licence until further order is also confirmed.
The Court orders:
·that permission to appeal against conviction is granted;
·that the appeal against conviction is dismissed;
·that the appeal against sentence is allowed;
·that the sentence imposed by the District Court Judge is set aside;
·that the defendant is resentenced by this Court as follows:
- that the suspended sentence bond entered into on 25 July 2007 is estreated;
- that the sentence of nine months imprisonment commence on 27 October 2011;
- that the defendant is sentenced in respect of the offence of possessing a firearm without a licence on 1 April 2009 to a term of imprisonment of eight months cumulative on the sentence of nine months imprisonment;
- that the defendant is sentenced in respect of the offence of possessing a firearm without a licence on 25 July 2009 to a term of 13 months imprisonment cumulative on the sentence of eight months imprisonment;
- that a non-parole period of 23 months is fixed to commence on 27 October 2011;
·that the order made for forfeiture of the firearms is confirmed;
·that the order made that the defendant be prohibited from holding or obtaining a firearms licence until further order is confirmed.
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