Sultan v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0015

FAWAZ SULTAN	Appellant
v
THE KING	Respondent

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JUDGES:	KENNEDY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2022
DATE OF JUDGMENT:	21 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 205
JUDGMENT APPEALED FROM:	[2021] VCC 2011 (Judge M Tinney)

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CRIMINAL LAW – Appeal – Sentence – Appellant charged with being prohibited person in possession of a firearm and being a prohibited person in possession of an imitation firearm – Whether judge erred in finding that the possession by the appellant of the firearms was for a ‘criminal or sinister purpose’ – Whether sufficient evidence upon which judge could reach such a conclusion beyond reasonable doubt – Leave to appeal granted – Appeal allowed – Appellant re-sentenced.

Firearms Act 1996 s 5; Control of Weapons Act 1990 s 5AB(2).

Berichon v The Queen (2013) 40 VR 490; The Queen v Storey [1998] 1 VR 359; Bugmy v The Queen (2013) 249 CLR 571 considered.

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Counsel
Appellant:		Mr J O’Connor
Respondent:		Ms M Mahady
Solicitors
Appellant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
KAYE JA:

The appellant pleaded guilty, in the County Court, to one charge of being a prohibited person in possession of a firearm, one charge of being a prohibited person in possession of an imitation firearm, and one charge of negligently dealing with the proceeds of crime. He also pleaded guilty to a summary offence of committing an indictable offence while on bail.
Following a plea made on his behalf, he was sentenced on 6 December 2021 to a total effective sentence of 3 years’ imprisonment with a non-parole period of 22 months. That sentence was constituted as follows:

Charge on Indictment M11402433	Offence	Maximum	Sentence	Cumulation
1	Prohibited person possess a firearm (contrary to s 5 of the Firearms Act 1996)	10 years’ imprisonment	2 year and 4 months’ imprisonment	Base
2	Prohibited person possess an imitation firearm (contrary to s 5AB(2) of the Control of Weapons Act 1990)	10 years’ imprisonment	18 months’ imprisonment	5 months
3	Negligently dealing with proceeds of crime (contrary to s 194(4) of the Crimes Act 1958)	5 years’ imprisonment	8 months’ imprisonment	3 months
Related Summary Offence
5	Commit indictable offence on bail (contrary to s 30B of the Bail Act 1977) (Summary charge)	30 penalty units or 3 months’ imprisonment	2 days’ imprisonment	Nil
Total Effective Sentence:		3 years’ imprisonment
Non-Parole Period:		22 months
Pre-sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		153 days
Section 6AAA Statement:		4 years 4 months’ imprisonment with a non-parole period of 3 years and 2 months
Other relevant orders:		Forfeiture order pursuant to s 151 of the Firearms Act 1996

The appellant, having been granted leave, appeals against the sentences imposed on grounds 1 and 2, and the total effective sentence, on one ground, namely:
The learned sentencing judge erred in finding, beyond reasonable doubt, that there was a ‘criminal or sinister motive’ for the appellant’s possession of the firearm the subject of charge 1, and the imitation firearm the subject of charge 2.
At the conclusion of oral argument, we decided that the appeal should be allowed, the sentences imposed by the judge on charges 1 and 2, and the total effective sentence, be set aside, and that the appellant should be resentenced, on charge 1, to 15 months’ imprisonment, and, on charge 2, to 8 months’ imprisonment, with a total effective sentence of 21 months and a non-parole period of 14 months. The following are our reasons for that conclusion.

Circumstances of the offending

On 6 July 2021, police executed two search warrants at the appellant’s home address in Lalor. During the search, police located a sawn-off .22 calibre rifle in a backpack in a shed at the rear of the premises (charge 1), an imitation revolver in a black bag that had been placed under the bonnet of a Volkswagen Golf motor vehicle that was parked in the front yard of the premises (charge 2), and a stolen black Harley Davidson motorcycle which was located in the front yard of the premises (charge 3).
The firearm, that was the subject of charge 1, was a .22 Long Rifle calibre semi-automatic rifle. The barrel had been shortened to 105 mm in length, and the wooden buttstock had been modified. On examination, the rifle was able to discharge cartridge ammunition. A single live round was found in the backpack. No magazine was located at the premises.
The imitation firearm, that was the subject of charge 2, was of lightweight metal construction. It was manufactured as a toy cap gun, but it had been heavily modified. The modifications included the drilling of a longitudinal hole through the barrel to create a bore, the drilling of four longitudinal holes through the cylinder to create chambers capable of accepting .22 long calibre cartridge ammunition, the replacement of the original hinge and hammer pins with after-market screws, and alteration to the trigger and internal hammer mechanism. Those modifications had the effect that the firearm had some characteristics of a crudely manufactured .22 calibre revolver. However, it was not capable of discharging ammunition due to a design flaw with the hammer nose as well as several other design flaws. Despite the modifications, there was still significant further work that was needed to be undertaken in order to make the gun capable of discharge.
At the time of the search, the appellant was a prohibited person, being subject to a recently imposed Community Corrections Order with a supervision condition. He was also on bail at the time.
Following the search, the appellant was arrested and transported to Reservoir Police Station, where he underwent a recorded interview. In the course of the interview, he said that he had purchased the sawn-off .22 rifle for between $300 and $400 from two people whom he had met on a train approximately three weeks previously. He said that the firearm would have been located in a backpack within a shed at the rear of the premises, and that he had purchased 18 rounds of .22 calibre ammunition when he acquired the firearm.
The appellant told police that he believed that the imitation firearm was a toy. He could not recall how he came to obtain it. He told police that the handgun would have been located in the Volkswagen that was situated in the front yard of his home.
In respect of the Harley Davidson motorcycle, the appellant said that he had received it from a friend about three months previously for the purposes of repairing it, because it was damaged. He said that he was initially suspicious that the motorcycle may have been stolen, however his friend later convinced him otherwise.
Following his arrest, the appellant was refused bail, and remanded in custody. Subsequently, approximately one week before the first committal mention in the Magistrates’ Court on 29 September 2021, the appellant notified police (through his solicitor) that he would plead guilty to the charges. On 29 September 2021, the parties attended a committal mention at which the matter was adjourned for summary hearing on 19 October. However, on that date, the application for a summary jurisdiction was refused by the magistrate and the matter was listed for plea in the County Court.

Appellant’s background circumstances

The appellant was born in Kuwait in January 1985. He was the third of six children of his parents. When the appellant was 15 years of age, Kuwait was invaded by Iraq at the start of the first Gulf War. As a result the appellant and his family fled Kuwait and lived in a refugee camp in Syria. Before their flight, the appellant was exposed to significant trauma. He had seen deceased people on the streets being run over by army trucks, and his neighbours’ houses had been bombed.
In 2000, the appellant’s family migrated to Australia. When they arrived in this country, the appellant did not speak any English. The appellant and his family first lived in Shepparton, where the appellant attended high school. He had difficulties in his education because of his limited facility with the English language. He left school and commenced an English course at TAFE for a short period, and then worked on a farm for two to three years. His family then moved to Melbourne, where he obtained employment in various capacities. For the next six years he was in regular employment. In December 2020, the appellant’s father underwent open heart surgery and was very unwell. The appellant ceased work at the time in order that he would not expose his family to the COVID-19 virus.
At the time of his arrest the appellant was married, and he and his wife had three children who were aged 10, 7 and 4 years. The appellant was living with his wife, children and parents in Lalor. He was the primary carer for his parents who were elderly and unwell.
The appellant has had a long-standing problem with the abuse of illicit drugs. It would appear that he had used cannabis and methylamphetamine for approximately fifteen years. When he was interviewed by a psychologist in November 2021 for the purposes of a report to be tendered on his plea, he reported a daily use of ‘a gram or two’ of cannabis, together with the use of between .1 of a gram and .5 grams of methylamphetamine each day.

Appellant’s previous convictions

The appellant has an extensive criminal history. It commenced in 2006 with his conviction for a number of road traffic offences, and one charge of recklessly causing injury. It is evident that that charge related to the appellant’s driving of a motor vehicle.
Apart from road traffic offences, the applicant’s history of offending commenced in May 2009 when he was fined, without conviction, on charges of possession and use of cannabis. Subsequently, and in particular since 2012, he has been before the courts on a number of occasions, principally on charges of dishonesty and on charges concerning the possession and use of drugs.
The appellant’s previous convictions also included a number of firearm charges. In February 2012, he was convicted before the Melbourne Magistrates’ Court on charges of being a non-prohibited person in possession of an unregistered category A longarm and possession of an unregistered general category handgun and being an unlicenced person storing ammunition in an insecure manner. In February 2015, he was before the Broadmeadows Magistrates’ Court on drug charges, and also on a charge of possessing a prohibited weapon without an exemption or approval. In November 2016, he was again convicted by the Broadmeadows Magistrates’ Court on charges involving possession of methylamphetamine and cannabis, together with a charge of being in possession of a prohibited weapon without exemption or approval.
Relevantly, the appellant did not have any previous matter for an offence of violence.

The plea

On the plea, counsel for the appellant, by way of mitigating circumstances, relied, first, on the appellant’s early plea of guilty which, it was submitted, in the circumstances of the current pandemic, should be given particular weight. In addition, it was submitted that the plea of guilty was attended by remorse. In his interview the appellant had made frank admissions as to his possession of the firearm, the imitation firearm and the motorcycle. Counsel also relied, as mitigating circumstances, on the appellant’s work record, the difficult conditions in which he had been held in custody since his arrest, and the effects of the trauma to which he had been exposed during the first Gulf War. In that respect, counsel tendered a report of Ms Christine Kennedy, a psychologist, who had interviewed the appellant in November 2021. Ms Kennedy concluded that the appellant satisfied the DSM diagnostic criteria for Post-Traumatic Stress Disorder, resulting from the serious psychological trauma and emotional neglect he had experienced as a child in a war zone and his family’s experience as refugees. Ms Kennedy also considered that he satisfied the diagnostic criteria for Anti-social Personality Disorder, and for severe stimulant and cannabis use disorders.
A significant part of the plea was occupied by discussion between the judge and counsel as to the circumstances in which the appellant had acquired the two firearms, and the purposes for which he had possessed them. Counsel for the appellant told the judge that the appellant had purchased both the firearm and the imitation firearm from the people he had met on a train, and that the appellant had purchased the firearm with the intention of using it for hunting in the area of Wangaratta and Benalla, although the appellant himself had not used it for those purposes before his arrest.
The judge expressed strong doubt about both explanations. In the course of the plea, he stood the matter down so that counsel for the appellant could clarify his instructions. On the resumption of the plea, counsel confirmed the matters that had been put to the judge in that respect, and added that the appellant instructed her that, when he purchased the firearm, he did not notice that it was sawn-off. In response, the judge remarked that he considered that the instructions were ‘totally unrealistic’ and that he rejected them. His Honour stated:
I think it [the firearm] inescapably is connected up with a criminal purpose … There is no non-criminal purpose for having that weapon.

Reasons for sentence

In his reasons for sentence,[1] the judge concluded that the offending by the appellant, in respect of charges 1 and 2, was ‘undoubtedly serious offending’.[2] His Honour rejected the explanations given by the appellant, in respect of how he had obtained the two firearms, and the purpose for which he had acquired them, as being ‘quite ridiculous’. He regarded the appellant’s explanation, of having purchased the sawn-off weapon from two men on a train, as ‘absurd’. He noted that the weapon was sawn down for ‘ease of concealment’. It was operational and had ammunition of the right calibre. He also noted that the imitation firearm (charge 2) was a realistic item, and that it was in a pouch that contained ammunition that fitted the redesigned mechanism. His Honour regarded the firearm as a ‘pretty serious imitation firearm in the circumstances’.[3]
[1]DPP v Sultan [2021] VCC 2011 (‘Reasons’).
[2]Ibid [54].
[3]Ibid [54].
The judge then gave consideration to a passage in the judgment of Redlich JA in Berichon v The Queen,[4] which described two broad categories of offence involving the possession of an unregistered firearm. The first category consists of cases in which it is not open to conclude that the possession of the firearm was associated with some ongoing criminal purpose, and the second category is constituted by cases in which the evidence does enable a conclusion that the possession of the firearm was for a criminal activity or a specific criminal purpose.
[4](2013) 40 VR 490, 496 [26] (‘Berichon’).
Having referred to those principles, the judge then stated his conclusion as to that matter in the following passage, in terms which are the focus of the proposed ground of appeal:
No one could lawfully possess the style of actual firearm that you possessed. No one. You had it and it is plain from your criminal history that you are a criminal who commits offences relating to drugs and stolen property. It was a sawn down and operational weapon with a round in close proximity in a back pack. I have tried but I cannot think of any lawful use or non-criminal purpose to which either of these guns could be employed. There are only sinister or criminal purposes. It is true that neither the real weapon or the imitation are there and then being pressed into some imminent criminal exercise but there is just no sensible view of your possession other than there being a criminal or sinister motive for you having them. I am satisfied of that beyond reasonable doubt. You were also on bail at the time.
It is obvious then to me, that the prohibited person charge with the real weapon is a long way removed from the low order examples of the offending that are referred to in those cases that I have mentioned. As to the imitation, well it was not some innocent toy found in some children’s playthings or toy box. It was not something there for dress-ups or fancy dress or for display. It was not on display. It was not possessed as a joke. It was a realistic imitation and one that had been altered or modified and it was contained within a with ammunition which fitted the real weapon and the modified non-operational imitation. It was deliberately hidden under the bonnet of a car in the backyard. It is there to be accessed. You just will not tell me why.[5]
[5]Reasons [59]–[60].
His Honour thus concluded that this was ‘serious offending’.[6] He regarded the offence that was the subject of charge 3 as being ‘less serious but still serious enough’.[7]
[6]Ibid [61].
[7]Ibid [62].
The judge accepted that there were a number of mitigating circumstances. In particular he accepted that the appellant’s guilty plea was entered at the earliest stage, and that the plea was worthy of extra weight for the reasons stated in Worboyes v The Queen.[8] His Honour was prepared to infer some degree of remorse from the appellant’s early guilty plea.[9] He regarded the appellant’s prospects of rehabilitation as being ‘guarded’, but accepted that he had ‘some’ prospects of rehabilitation.[10] The judge noted that the appellant had family support and he had employment available to him.[11] His Honour acknowledged the psychologist’s diagnosis that the appellant had suffered Post-Traumatic Stress Disorder as a result of the difficult circumstances of his adolescence.[12] Accordingly, he accepted that the principle stated by the High Court in Bugmy v The Queen[13] applied.
[8][2021] VSCA 169 (‘Worboyes’).
[9]Reasons [38].
[10]Ibid [46], [64].
[11]Ibid [44].
[12]Ibid [47].
[13](2013) 249 CLR 571 (Bugmy’).
The judge also accepted that the restrictions that were operative in custody, as a result of the COVID-19 pandemic, had increased the burden of the appellant’s experience of custody.[14] Finally, the judge took into account that the appellant had served 95 days’ imprisonment which would not be taken into account as pre-sentence detention, and thus should be accorded some weight under the principles explained in R v Renzella.[15]
[14]Ibid [49].
[15][1997] 2 VR 88.

Submissions

In support of the application for leave to appeal, counsel for the appellant noted that the judge relied on two principal reasons for the conclusion that the sawn-off rifle, and the imitation gun, were possessed by the appellant for a criminal or sinister purpose. In particular, the judge relied on the fact that the appellant had a lengthy criminal history, and, secondly, on the fact that the operative firearm ‘was a sawn down and operational weapon with a round in close proximity in a back pack’.[16]
[16]Reasons [59].
Counsel submitted that those two factors were insufficient to support a finding by the judge that the appellant possessed the two firearms for criminal purposes. Counsel noted that on the plea the prosecutor had stated that there was no positive evidence to suggest that the appellant had any plan to use the firearm in any specific way, whether in connection with his drug offending or otherwise. Counsel further noted that although the appellant had a lengthy criminal record, he did not have any relevant previous convictions for offences involving violence. The prosecutor did not submit, on the plea, that any of the appellant’s previous convictions had involved the use by him of firearms. Further, counsel noted that, although the appellant had a long history of drug related offending, nevertheless there was no link between that offending and the use by the appellant of firearms. The appellant’s drug offending concerned multiple low-level offences of using or possessing methylamphetamine and cannabis, which reflected his long-term and significant issues with those drugs. Counsel submitted that that was not offending for which a firearm might be a ‘tool of the trade’.

For those reasons, it was submitted, the judge erred in imposing the sentences on charges 1 and 2.
In respect of re-sentencing, counsel submitted that a different and lesser sentence should now be imposed having regard to the mitigating circumstances on the plea, including:
(a)The appellant’s early plea of guilty, combined with the additional weight which should be attributed to it in the context of the COVID-19 pandemic;
(b)The judge’s finding that the plea was evidence of some remorse;
(c)The appellant’s cooperation with the police and his ready admissions concerning the possession of the two firearms;
(d)The fact that the appellant had abstained from drugs while in custody and that he had completed a number of courses, as demonstrated by certificates that were tendered on the plea and on this application;
(e)The judge’s conclusion that the appellant did have some prospects of rehabilitation, albeit that they were ‘none too bright’;[17]
(f)The difficult circumstances in which the appellant was serving the present sentence in custody as a result of the COVID-19 pandemic;
(g)The fact that the appellant had served 95 days’ imprisonment which was ‘dead time’.
[17]Reasons [46].
In response, counsel for the respondent submitted that it was open to the judge to conclude that the appellant’s offending was ‘serious’[18] and that it was ‘a long way removed from the lower order of instances of offending’ referred to in Berichon.[19] Counsel submitted that that conclusion was justified by reason of the appellant’s criminal history, the fact that he was on bail at the time, the nature of the firearm and the imitation firearm, the fact that each weapon was found with ammunition, and the fact that the judge was satisfied, beyond reasonable doubt, that there was a criminal or sinister motive for the appellant’s possession of the two firearms.
[18]Reasons [54]–[61].
[19]Ibid [60].
Counsel for the respondent further submitted that it was open to the sentencing judge to conclude that there was a criminal or sinister motive for the appellant’s possession of the firearms. In support of that submission counsel relied on the following circumstances:
(a)The firearm itself was a sawn-off rife, which had been shortened both at the stock and at the barrel; as the judge observed, such a weapon exists for ease of concealment;
(b)The firearm was operational and was housed with a round of ammunition, and the ammunition found with the imitation firearm could also be used in the firearm;
(c)The judge unsurprisingly rejected the appellant’s account that he was unaware that the firearm had been sawn-off when he purchased it.
(d)The appellant’s reason for purchasing the firearm — to shoot rabbits — was implausible;
(e)The imitation firearm was a realistic item and it had been modified in order to make it operational. It was found with ammunition which fitted the modified mechanism;
(f)The imitation firearm had been hidden under the bonnet of a car;
(g)The appellant’s account of how he came to possess the firearm and the imitation firearm was absurd;
(h)The appellant had an extensive criminal record.
Counsel submitted that the combination of those circumstances permitted the judge to be satisfied, beyond reasonable doubt, that the appellant had a criminal or sinister motive for possessing both the firearm and the imitation firearm. Accordingly, it was submitted, the judge did not err in making that finding.

Analysis and conclusion

As we have noted, in concluding that the appellant possessed the two firearms in question for ‘sinister or criminal purposes’, the judge referred to and discussed the passage in the judgment of Redlich JA in Berichon, in which his Honour had stated that the conduct of a prohibited person in possession of an unregistered firearm may be placed in ‘one of two broad categories of seriousness’. Redlich JA stated:
The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham and Armistead v The Queen. The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order. Such sentences will be appropriate where the firearm is for example possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.[20]
[20]Berichon, 496 [26].
In the present case, the judge did acknowledge that the principles stated by Redlich JA do not establish fixed sub-categories of offending which constrain the sentencing discretion, and that, in a case in which it is not proven that the possession of the firearms was directed to criminal purposes, nevertheless a more severe sentence might be justified in the circumstances.[21]
[21]Reasons [58].
The judge was, with respect, correct to acknowledge those qualifications to the principles stated by Redlich JA in Berichon. In a number of subsequent decisions, this Court has made it clear that the passage from the judgment of Redlich JA does not establish a prescriptive framework or fixed sub-categories of the offending in question which prescribe the manner in which a sentencing court must assess the gravity of the offending in a particular case.[22] In each case, the assessment of the objective seriousness of the offending, and of the offender’s subjective culpability, must depend on an informed analysis of the particular facts of the case and the circumstances of the offender.
[22]See for example DPP v Basic [2017] VSCA 376, [81] (Weinberg, Osborn, Priest JJA); Kelly v The Queen [2020] VSCA 171, [44] (Priest, Kyrou JJA); Begg v The Queen [2020] VSCA 183, [82] (Priest, Kaye and T Forrest JJA).
Although the judge did acknowledge those qualifications to the principles contained in the dictum of Redlich JA in Berichon, nevertheless it is clear, from reasons of his Honour, that his finding, that the appellant possessed the two firearms for ‘sinister or criminal purposes’, was the principal, if not sole, reason for his conclusion that the possession by the appellant of each weapon was serious offending.[23]
[23]Reasons [59]–[61].
The offending, that was the subject of charge 1 and charge 2 respectively, was constituted by the appellant, as a prohibited person, being in possession of a firearm (charge 1) or an imitation firearm (charge 2). It was not an element of either offence that the possession of the firearm, or imitation firearm, was for the purposes of committing a criminal offence or some other ‘sinister’ objective. Accordingly, the finding by the judge, to that effect, was a conclusion by him as to the existence of an aggravating circumstance in respect of each of the two offences. It follows that the judge could only make, and rely on, such a finding, as an aggravating circumstance, if he had been satisfied, beyond reasonable doubt, that the possession of the particular firearm was for a sinister or criminal purpose.[24]
[24]The Queen v Storey [1998] 1 VR 359, 371 (Winneke P, Brooking and Hayne JJA, Southwell AJA); R v Olbrich (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
It is clear, both from a number of the judge’s exchanges with counsel for the appellant on the plea, and from the passage of the judge’s sentencing reasons in issue, that his Honour relied, fundamentally, on three factors for the conclusion that the appellant possessed the two firearms for a ‘criminal or sinister’ purpose. Those factors were:
(1)The style and nature of the firearm in question, the circumstances in which they were located, and the fact that ammunition was found with them;
(2)The appellant was a ‘criminal’ who had previous convictions relating to drugs and stolen property;
(3)The appellant had not provided a credible explanation why he was in possession of the two firearms.
In essence, the judge relied on a combination of those three considerations to conclude, beyond reasonable doubt, that the appellant had possessed each of the two weapons for criminal or sinister purposes.
In the absence of any direct evidence that the appellant had used, or intended to use, the weapons for those purposes, the judge could not permissibly reach that level of satisfaction, unless the conclusion in question was the only reasonable inference which could be drawn from the three factors upon which he relied.[25] On this application, the question, then, is whether it was open to the judge to conclude, from those three factors, that the only reasonable inference was that the appellant possessed the two weapons for criminal or sinister purposes.
[25]Shepherd v The Queen (1990) 170 CLR 573; Chamberlain v The Queen(No 2) (1984) 153 CLR 521.
It is convenient, first, to consider the second and third factors relied on by the judge. On analysis, neither of those factors, whether taken in isolation, or in combination, could support an inference that the appellant possessed the two firearms for criminal or sinister purposes.
The second factor was that the appellant was a ‘criminal who commits offences relating to drugs and stolen property’. There was no suggestion that the appellant had used firearms in the commission of any of the previous offences for which he had been convicted, or that firearms had in any way been associated with that offending. The previous offences committed by the appellant were not the kind of offending with which firearms are necessarily or ordinarily associated. On the plea, the prosecution acknowledged that there was no positive evidence of any plan by the appellant to use the firearms in a specific way, or to use both, or either, of them in some kind of drug related offending. The judge’s description of the appellant as a ‘criminal’ did not add, at all, to the likelihood that he had possession of the firearms for criminal or sinister purposes.
The third factor, relied on by the judge, was equally of neutral value. The fact that the appellant had not proffered a credible explanation for his possession of the two firearms did not, and could not, support an inference that, accordingly, his possession of them was for criminal or sinister purposes.
In relying on that factor, the judge, correctly, did not suggest that the failure by the appellant to proffer a credible explanation for his possession of the firearms, constituted some form of incriminating conduct by the appellant. In addition, his Honour specifically disclaimed treating that factor, of itself, as an aggravating feature of the offending[26] Rather, the judge relied on the lack of such an explanation as one of the factors that supported an inference that the appellant possessed the firearms for a criminal or sinister purpose.[27] Such a process of reasoning necessarily involved an inversion of the onus of proof. The fact, that the appellant had not put forward a plausible explanation for his possession of the firearms, would have the effect that there was no evidence, which could contradict an inference which might otherwise be available. However, it could not, of itself, be capable of supporting such an inference.
[26]Reasons [55].
[27]Reasons [54], [60].
In view of those considerations, the critical question is whether the nature of the two firearms in question was such as to support an inference, beyond reasonable doubt, that the appellant’s possession of them was directed to the performance by him of either a criminal or sinister purpose.
In addressing that question, the starting point is that, as the judge noted, sawn-off firearms are commonly used in the commission of violent criminal offences, because they are capable of being concealed. The imitation firearm had been significantly modified so that it resembled a functional weapon. Each of the modifications were part of a process which, if it had been completed, might have rendered the firearm functional. The imitation firearm was found next to a number of rounds of ammunition of the same calibre for which the imitation weapon had been modified to use.
On the other hand, there were a number of factors, concerning the two weapons, which reduced the cogency of any inference which might be drawn from the possession of them by the appellant. The police did not, on searching the appellant’s premises in Lalor, locate a magazine which could be fitted to the sawn-off firearm. The imitation firearm of itself was a toy cap gun. The evidence does not support any finding that it was the appellant who had made some modifications to it. The imitation weapon could not be used as a firearm; the report that was tendered on the plea indicated a number of steps which would need to be undertaken in order to make it operable.
Despite those considerations, the nature of the two firearms, and the circumstances in which they were located, are factors which tend in favour of a conclusion that the appellant had possession of them for some sinister or criminal purpose. The question is whether the nature of the two firearms, standing alone, could constitute, in the circumstances of this case, a rational basis for a conclusion, beyond reasonable doubt, that the appellant did possess them for such purposes.
The difficulty, in reaching such a conclusion, is that there was no evidence, at all, before the judge that the appellant had been, was, or planned to be, involved in any form of criminal or sinister activity involving the use of either or both of the firearms in question. The prosecution acknowledged that there was no evidence that the appellant was involved in, or himself planned, any intended or contemplated offending which might involve the use by him of a firearm. Other than his conviction in 2006 for recklessly causing injury, the appellant did not have any history of violent offending. His previous convictions, for drug offences and offences of dishonesty, do not constitute a previous history which, of itself, evidenced any form of activity necessary, or relevant part of which, was the use by him of firearms. The search by the police of the appellant’s premises in Lalor did not produce any evidence that, at the time of the offence the appellant had been, or was contemplating, some form of offending which would or might include the use by him of one or both of the firearms.
Taking those matters together, in our view it could not be reasonably concluded, beyond reasonable doubt, that the appellant had possession of the two firearms, or either of them, for some criminal or sinister purpose. In the circumstances of the present case, such a conclusion was not the only reasonable inference or conclusion available on the facts.
In those circumstances, the ground of appeal upon which this application is brought must succeed. It follows that the sentences imposed on the appellant, in respect of charges 1 and 2, and the total effective sentence, must be set aside and the appellant re-sentenced.
In re-sentencing the appellant, the starting point is, of course, that the offences, to which the appellant pleaded guilty, were of themselves serious criminal offences, the maximum sentence for each such offence being 10 years’ imprisonment. In the present case, the appellant did have a lengthy criminal history, including, on three occasions, sentences in respect of the possession by him of firearms, and he was on bail at the time of his arrest. As a consequence, specific deterrence is an important consideration.
On the other hand, the appellant did have available a number of mitigating circumstances, to which we have referred. His plea of guilty was made at the earliest possible stage in the proceeding. As this Court recognised in Worboyes, at the present time, in the context of the current COVID-19 pandemic, it is important that the weight attributed by courts to a guilty plea reflect the added utilitarian effect of the plea. In addition, the judge did make a finding that the appellant’s plea was, to some extent, attended by a degree of remorse.
Upon his arrest, the appellant cooperated with the police, by making frank admissions as to his possession of the firearms, and as to his possession of the stolen motorcycle. Notwithstanding his extensive previous convictions, he had an impressive work history, which is particularly commendable in view of the difficult circumstances of his youth, and in which he migrated to Australia. The fact that the appellant had, as a young fifteen year-old adolescent, been exposed to severe trauma in the course of the first Gulf War, as a result of which he had sustained Post-traumatic Stress Disorder, did, at least to a degree, mitigate his morale culpability for the offending. Put simply, the appellant’s culpability could not be equated with that of a person who committed the same offence, but who had had the advantage of a normal, stable upbringing during his younger years.[28]
[28]Bugmy 594, [40]; DPP v Drake [2019] VSCA 293, [32]; Bergman (a pseudonym) v The Queen [2021] VSCA 148, [87] (Maxwell P, Kaye and McLeish JJA).
In addition, the restricted circumstances of imprisonment, which have been necessitated by the COVID-19 pandemic, are a relevant mitigating circumstance. During his time in custody, the appellant has abstained from drugs, and has undertaken courses which are directed to his rehabilitation. The ‘dead time’ totalling 95 days, in which the appellant had been in custody, is a further relevant consideration.
Counsel for the appellant referred us to a number of sentencing decisions of this Court, which were summarised in Kelly v The Queen,[29] and also to the decision of the Court in Powell v The Queen.[30] Those decisions, in a broad sense, are helpful indications of the sentencing range for the offences under consideration. In that respect, it should, be kept in mind that, as the High Court specified in DPP (Vic) v Dalgleish,[31] current sentencing practices are but one of a number of factors that should be taken into account in determining the appropriate sentence in an individual case.
[29][2020] VSCA 171, [54]–[65] (Priest and Kyrou JJ).
[30][2015] VSCA 93( Weinberg and Kyrou JJ).
[31](2017) 262 CLR 428, 434 [9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82]–[83] (Gageler and Gordon JJ).
Taking the foregoing matters into account, we consider it is appropriate to re-sentence the appellant as follows:
Charge 1 – 15 months’ imprisonment.
Charge 2 – 8 months’ imprisonment.
Charge 3 – 8 months’ imprisonment.
Charge 5 (summary offence) – 2 days’ imprisonment.
We direct that 3 months of the sentence imposed on charge 2, and 3 months of the sentence imposed on charge 3, be served cumulatively on each other and on the sentence imposed on charge 1. Thus the total effective sentence is 21 months’ imprisonment. We fix a non-parole period of 14 months’ imprisonment.
Pursuant to s 6AAA of the Sentencing Act 1991, if the appellant had not pleaded guilty to the charges, we would have sentenced him to 30 months’ imprisonment with a non-parole period of 20 months.

[2022] VSCA 205

21 September 2022