Stark v Plant

[2010] WASCA 74

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   STARK -v- PLANT [2010] WASCA 74

CORAM:   McLURE P

OWEN JA
BUSS JA

HEARD:   13 APRIL 2010

DELIVERED          :   28 APRIL 2010

FILE NO/S:   CACR 11 of 2010

BETWEEN:   RICHARD JAMES STARK

Appellant

AND

MALCOLM ROSS PLANT
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

Citation  :STARK -v- THE QUEEN [2009] WASC 376

File No  :SJA 1115 of 2009

Catchwords:

Criminal law - Appeal against entry of conviction for contravention of Customs Act 1901 (Cth) s 233(1)(b), s 233(1)(c), s 234(1)(d)(i) - Import and export of objectionable material - Whether an error in failing to make an order under s 19B of the Crimes Act 1914 (Cth) - Turns on own facts

Legislation:

Crimes Act 1914 (Cth), s 19B(1)(d)
Customs (Prohibited Exports) Regulations 1958 (Cth), reg 3
Customs (Prohibited Imports) Regulations 1956 (Cth), reg 4A(1A)
Customs Act 1901 (Cth), s 233(1)(b), s 233(1)(c), s 234(1)(d)(i)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Bannerman Solicitors

Respondent:     No appearance

Case(s) referred to in judgment(s):

Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257

Matta v Australian Competition and Consumer Commission [2000] FCA 729

Nelson v The Queen [2001] WASCA 297

Ulf Weller (1988) 37 A Crim R 349

Uznanski v Searle (1981) 26 SASR 388

1. McLURE P:  The appellant seeks leave to appeal from the decision of McKechnie J dismissing his appeal from the decision of the Chief Magistrate to enter a conviction on four charges of contravening the Customs Act 1901 (Cth) (Customs Act).

2. The appellant was convicted on two counts of importing prohibited imports contrary to s 233(1)(b) of the Customs Act, one count of exporting prohibited exports contrary to s 233(1)(c) of the Customs Act and one count of intentionally making a false or misleading statement contrary to s 234(1)(d)(i) of the Customs Act. The appellant pleaded guilty to all charges and was convicted and fined $1,000 for each offence. The Chief Magistrate rejected the appellant's contention that he should be discharged without proceeding to conviction in respect of all charges under s 19B(1)(d) of the Crimes Act 1914 (Cth) (Crimes Act).

3. The facts are as follows. On 3 October 2008 the appellant, a South African national, arrived in Australia in order to commence studying psychology at Murdoch University. He arrived in Australia with a laptop computer which contained (inter alia) two publications. Publication 1 was entitled 'Porn Twins, Sex with Young Girls', and publication 2 was a duplicate of publication 1. The girls in the publications appeared to be under the age of 18 years. Publications 1 and 2 were prohibited imports, being 'objectionable goods' under the definition in reg 4A(1A) of the Customs (Prohibited Imports) Regulations 1956 (Cth) (the Import Regulations). Publications 1 and 2 were also prohibited exports, being 'objectionable goods' under reg 3 of the Customs (Prohibited Exports) Regulations 1958 (Cth) (the Export Regulations).

4. Between 3 October 2008 and 27 November 2008 the appellant arranged for a university acquaintance to copy some pornographic material to his laptop computer. Of that material, a further four publications were objectionable within the meaning of reg 4A(1A) of the Import Regulations and reg 3 of the Export Regulations. Publication 3 was entitled 'Anal Nurse Rape' and depicted scenarios of rape of an adult female. Publication 4 contained animated scenarios of rape. Publication 5 comprised footage of sex with a female dressed as a school girl who appeared to be under the age of 18. Publication 6 comprised footage depicting scenes of childhood including an opening scene with a child's bicycle with streamers and training wheels and a young female who appeared to be under the age of 18, who was bound and gagged with her head placed in a soft sack whilst various sexual acts were performed on her.

5. On 20 December 2008 the appellant flew from Perth to South Africa.  On 3 January 2009 the appellant returned to Perth from South Africa.  On 30 January 2009 the appellant left Perth for Vietnam.  On each occasion the appellant had with him his laptop which contained publications 1 ‑ 6.  On 7 February 2009 the appellant returned to Australia from Vietnam with his laptop and handed his incoming passenger card to a customs officer.  The appellant had answered no to each of the questions on the incoming passenger card, including a question which asked 'Are you bringing into Australia goods that may be prohibited or subject to restrictions?'

6. A customs officer selected the appellant's laptop for examination and asked the appellant whether there was any pornography on it.  The appellant admitted there was.  He then cooperated with customs officers throughout the investigation. 

7. The entry on 3 October 2008 was the subject of one charge, the entries on 3 January and 7 February 2009 were the subject of a second charge, the departures on 20 December 2008 and 30 January 2009 were the subject of a third charge and the final charge related to the statement made on the incoming passenger card.

8. The appellant was born on 27 November 1990.  The offences, which occurred between 3 October 2008 and 7 February 2009, were committed when he was aged between 17 years 10 months and 18 years 2 months. 

9. It is unnecessary to set out the terms of s 19B of the Crimes Act. In essence, if a person is charged with a federal offence and the court is satisfied that the charge is proved but is of the opinion, having regard to specified factors (including age), that it is inexpedient to inflict any punishment, or any punishment other than nominal punishment or to release the offender on probation, the court has a discretion to, inter alia, discharge the person without proceeding to conviction upon the person giving security, with or without sureties, by recognizance or otherwise to the satisfaction of the court that the person will comply with specified conditions. The power to make an order under s 19B is discretionary: Cobiac v Liddy (1969) 119 CLR 257; Matta v Australian Competition and Consumer Commission [2000] FCA 729.

10. In his appeal to a single judge of this court, which was heard by McKechnie J, the appellant relied on two grounds of appeal.  He contended first that the Chief Magistrate 'failed to adequately consider' the appellant's age when he downloaded the material and when he committed the offences and secondly, he claimed the 'sentence' was manifestly excessive.

11. McKechnie J did not deal with each ground separately. He identified them as raising the question whether the Chief Magistrate had erred in refusing to make an order under s 19B of the Crimes Act [9], [16].

12. The grounds on which the appellant seeks leave to appeal to this court are that McKechnie J failed to 'properly and/or adequately consider a relevant mitigating factor', being the appellant's age, and failed to 'properly and/or adequately consider the appellant's grounds of appeal'.

13. The grounds of appeal to the primary judge and to this court reflect a lack of understanding of the role of an appeal court.  A court hearing an appeal cannot intervene to disturb an order made in the exercise of a discretion simply because it would have imposed a different order.  It can only intervene if the appellant establishes that the primary judge made an express or implied material error of law or fact.  An example of an express error is a failure to take into account a relevant consideration.  There will be an implied error if the order is unreasonable or unjust.  An order will only be unreasonable or unjust if it is outside the range of a sound exercise of the statutory discretion.  When considering an appeal against sentence, there will be implied error if the sentence is manifestly excessive (or manifestly inadequate).  However, we are not here concerned with an appeal against sentence. 

14. The appellant's first ground in the single judge appeal does not raise an error that is capable of enlivening an appeal court's power to intervene.  It could properly have been dismissed out of hand.  The second ground of appeal is also misconceived.  A claim of manifest excess could only apply by way of analogy. 

15. Having regard to the defects in the grounds of appeal, it was proper for McKechnie J to consider the substance of the challenge which was that the Chief Magistrate had erred in a way that would enliven the power to intervene.  He concluded that the Chief Magistrate had taken into account all relevant considerations, including the appellant's age, and had made no relevant error in the exercise of his discretion.

16. The grounds of appeal to this court suffer from the same defects as the grounds in the single judge appeal.  That is, they do not raise an error capable of enlivening this court's power to intervene.  Notwithstanding the deficiencies, I have considered whether McKechnie J erred in concluding

that the Chief Magistrate did not make any material error in entering a conviction on all charges.

1. It is apparent from the express terms of the Chief Magistrate's reasons that he took into account the appellant's age when considering his application for an order under s 19B of the Crimes Act. The first ground of appeal is nothing more than a thinly disguised attempt to dress up a complaint about the weight given to the appellant's age in the exercise of the discretion. There is no arguable foundation for a claim that the Chief Magistrate made an express error. Moreover, the appellant has no reasonable prospect of establishing that the failure to make an order under s 19B was outside the range of a sound exercise of the statutory discretion.

2. The circumstances in which it is appropriate to invoke s 19B have been described as rare, exceptional, and special or singular: Ulf Weller (1988) 37 A Crim R 349, 350, 355 ‑ 356; Uznanski v Searle (1981) 26 SASR 388, 394; Matta; Nelson v The Queen [2001] WASCA 297.

3. The appellant focused attention on the mitigating factors which, on any view, are significant. However, there are a number of factors which weigh in the balance against making an order under s 19B. It is the objectionable nature of the material that is the gravamen of the import and export offences. The circumstances of those offences, in particular the possession of objectionable material involving sexual conduct with children, put this case at the high end of the scale of seriousness of offences of this type. Further, the widespread prevalence of offences in which the possession of such material is an element, requires that significant weight be given to the need for general deterrence. Moreover, the nature of the conduct is of a kind that should, in the public interest, be on the public record. General deterrence is also a weighty factor in connection with the s 234(1) offence which depends on self‑assessment and thus increases the difficulty of detection. In all the circumstances there is no proper foundation for a claim that the decision of the Chief Magistrate to enter a conviction on all charges was outside the range of a sound exercise of the discretion in s 19B.

4. The appellant has no reasonable prospect of establishing that the Chief Magistrate or McKechnie J made any relevant error.  I would refuse leave to appeal and dismiss the appeal.

5. OWEN JA:  I agree with McLure P.

1. BUSS JA:  I agree with McLure P.