Williams v Parker
[2016] TASSC 39
•29 July 2016
[2016] TASSC 39
COURT: SUPREME COURT OF TASMANIA
CITATION: Williams v Parker [2016] TASSC 39
PARTIES: WILLIAMS, Stephen James
v
PARKER, John (Sergeant)
FILE NO: 890/2016
DELIVERED ON: 29 July 2016
DELIVERED AT: Launceston
HEARING DATE: 18 July 2016
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Firearm and drug offences – Sentence of 14 months' imprisonment without parole not manifestly excessive.
Sentencing Act 1997 (Tas), s 17.
Groenewege v Tasmania [2013] TASCCA 7, applied.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: G Tucker
Respondent: S Thompson
Solicitors:
Applicant: Grant Tucker Solicitors
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 39
Number of paragraphs: 23
Serial No 39/2016
File No 890/2016
STEPHEN JAMES WILLIAMS v SERGEANT JOHN PARKER
REASONS FOR JUDGMENT PEARCE J
29 July 2016
By this motion the applicant, Stephen Williams, seeks review of a sentencing order made by Magistrate S Brown on 24 March 2016. The applicant pleaded guilty to injuring property, possessing a firearm in contravention of a firearm prohibition order, possessing a shortened firearm, possessing a firearm without a firearm licence, possessing a stolen firearm, two counts of possessing a controlled drug, possessing a controlled plant and using a controlled plant. He was sentenced to imprisonment for 14 months. His Honour did not make an order as to the applicant's eligibility for parole. When imposing that sentence, the sentencing magistrate also activated a three-month suspended sentence of imprisonment and ordered that it be served from 24 December 2015. There is no challenge to the making of that order. His Honour ordered that the sentence he imposed be served cumulatively to the activated suspended sentence.
One ground of the motion is pursued. That ground asserts that the sentence is manifestly excessive.
The circumstances of the offence and the offender
On 23 December 2015 the applicant became involved in a confrontation with two other men, and a violent physical altercation with one of them. The altercation took place outside the applicant's house in Launceston. The applicant said the other men were the aggressors. He was acquitted of charges arising from the altercation and was not sentenced for anything arising from it, except that he admitted that he had thrown rocks at the car the men were in, and damaged it. That was the basis of the charge of injuring property. The following day, 24 December 2015, police officers went to a unit in Ravenswood. As they arrived, another car arrived in which the applicant was a front seat passenger. The police saw him run inside the unit carrying a black bag. They then saw him inside the unit smoking cannabis using a bong. After obtaining a telephone warrant the police went inside. The applicant was the only person there. Inside the bag he had been carrying was a shortened single barrel shotgun. A search of the police database revealed that the shotgun was stolen. The police also found a total of 4.4 grams of methylamphetamine and 3 grams of cannabis. When interviewed the applicant denied having been in possession of the bag and its contents, but admitted that the drugs were his and that he had used cannabis. At the time, the applicant was subject to a firearm prohibition order made under the Firearms Act 1996 ("the Act"), s 130.
The applicant is, and was at the time of sentence, aged 34. He has three children from past relationships and, until his imprisonment, had contact with all of them. He was sentenced by the magistrate on the basis that he had obtained the firearm for protection from violence threatened over a period of a month, or by one of the men with whom he had been involved in the altercation the day before. According to the applicant, the man had suggested by social media that there may be a "gun fight".
An important factor in the exercise of the sentencing discretion was the applicant's bad criminal record. In 2001, when he was 20, he was given a sentence of three months' imprisonment for destroying property, and separate sentences of nine months and three years' imprisonment for numerous offences of dishonesty. Half of the latter sentence was suspended. In 2003, following numerous further offences of dishonesty, he was sentenced to imprisonment for three years, with a non-parole period of two years, and ordered to serve the balance of the earlier suspended sentence. He was released on parole on 9 March 2006, but his parole was twice revoked. Following his eventual release in 2007 he was given a good behaviour bond for minor drug offences, but in early 2008 he was imprisoned again for 10 months for trafficking in methylamphetamine and ecstasy. There was then a gap until 27 November 2013 when he was sentenced by a magistrate to imprisonment for two years, backdated to 21 August 2013 for numerous summary drug offences, dishonesty offences and, most relevantly, for serious breaches of the Act. The firearm offences were committed in early 2012 and included possession of a 9mm Glock pistol with ammunition, a .22 calibre Berretta pistol, a shortened 20 gauge shotgun, a loaded .22 calibre rifle which he had in public, and a silencer, all of which were unregistered and for which he had no licence. He was also found in possession of .22 and .44 calibre ammunition. In 2014 he was sentenced to imprisonment for three months, to be served concurrently, for unlicensed possession of a firearm and ammunition in September 2013. Since his release the applicant has offended again, although not for firearm offences. On 22 October 2015 he was sentenced to imprisonment for three months, wholly suspended, for driving offences, dishonesty and minor drug offences.
The magistrate's sentencing remarks
Despite the applicant's bad record, the injure property charge was a minor one and, before the magistrate, very little attention was paid to it by either the prosecutor or the applicant's counsel. It did not justify a sentence of imprisonment. Some remarks were made about his possession of illicit drugs, but the learned magistrate properly directed most of his attention to the firearm offences when sentencing the applicant. In the course of other proceedings before him, the magistrate had the opportunity to observe an audio-visual recording of an interview of the applicant conducted by the police. When sentencing, his Honour commented:
"You are a mature man. The clear impression I gained from your record of interview and indeed your presentation in court during these proceedings is that you are a far from unintelligent man. You are plainly aware of the consequences of having guns, yet you committed the offences for which you appear for sentence anyway. You did so in breach of a suspended sentence which was imposed only several months earlier. It seems to me that it is apparent that there is a clear, even pressing need, to deter you personally.
These offences are serious and, as I have said, against your background that are most concerning and against the factual background that occurred in the day leading up to this. By being in possession of the gun in question you were a real danger to the community. I believe that general deterrence must also play a very significant role in sentencing you, as should condemnation for this type of offending. Having a firearm for protection is no more than an explanation. It is no excuse whatsoever. The possession of guns for protection by people such as you is to be deplored. Your drug history is also extensive and concerning. The combination of drug use and possession of guns for protection is also a concerning one. Your offending is significantly aggravated in my view by you being in possession of that gun in defiance of a firearm prohibition order and the sentence which I pass today must, in my view, be seen to vindicate the making of that order, which was clearly justified in your case."
Was the sentence manifestly excessive?
The principles to be applied in determining a motion to review a sentence imposed by a magistrate on the ground of manifest excess or inadequacy have been stated on many occasions. The appeal cannot succeed unless the sentence imposed is unreasonable or plainly unjust; so obviously excessive that some error in the exercise of the sentencing discretion can be implied: Bresnehan v The Queen [1992] TASSC 55 at [13], 1 Tas R 234 at 242; Visser v Smart [1998] TASSC 151; Lusted v Kenway [2008] TASSC 47, 50 MVR 533 at 539 [38]. This Court must not substitute its own opinion for that of the sentencing magistrate, who has a wide discretion. The expression of manifest excess or manifest inadequacy is a conclusion formed by giving regard to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45, 242 CLR 520 at 539 [59].
The applicant was entitled to some mitigation for his plea of guilty but he could hardly have had a defence to the most serious charge, and his repeated offending disclosed no claim to remorse. There was little to suggest from the applicant's record and personal circumstances that there was any real prospect of reform or rehabilitation.
The quantity of controlled substances found in the applicant's possession on 24 December 2015 did not warrant the sentence imposed, but added to the applicant's overall criminality. His record for drug offending is poor and he possessed the illicit drugs despite the recent imposition of a suspended sentence for, in part, offences of a similar nature.
The firearm offences are obviously the most serious. A person who possesses a firearm and is not the holder of a firearm licence of the appropriate category as specified in Div 2 of the Act in respect of that firearm, commits an offence against s 9(1), punishable summarily by a fine not exceeding 100 penalty units, or imprisonment for a term not exceeding two years, or both. Only a month before this offence was committed, s 9 was amended to double the maximum fine which may be imposed by a magistrate, but also to provide for the charge to be indictable and thus punishable under the Criminal Code. Both amendments indicate the view of the legislature about the seriousness of the offence. Possession of a shortened firearm is an offence contrary to s 116(b) and is punishable by a fine not exceeding 50 penalty units, or imprisonment for a term not exceeding two years, or both. By s 130(1), if the Commissioner of Police forms the opinion that a person is unfit, in the public interest, to possess or use a firearm, the Commissioner may make an order called a firearm prohibition order. Upon service, the order prohibits the person from possessing or using a firearm. A person who possesses a firearm in contravention of such an order commits an offence punishable by a fine not exceeding 50 penalty units or imprisonment for a term not exceeding two years, or both: s 132(1). The applicant was served with such an order on 24 January 2014.
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.
The applicant was found in possession of a stolen shortened single barrel shotgun. Whilst involving only one course of conduct, it involved serious criminality reflected in the numerous offences which he thereby committed. With his record he could never have obtained a licence for any form of firearm. It follows from the terms of s 107A(5) that the applicant was unable to provide a satisfactory account for his possession of the firearm. It is difficult to imagine that there could ever be a legitimate and innocent reason for possessing such a weapon. The applicant certainly had no such reason. Whilst he was to be sentenced on the basis that he acquired the gun because of his perceived need for protection from the threats of violence, that explanation provides no mitigation. The law must strongly discourage resort to unauthorised possession of firearms, especially those of this nature, for purposes of personal protection. As the sentencing magistrate correctly recognised, it is a recipe for dangerous lawlessness. The firearm prohibition order to which the applicant was subject was obviously made because of the applicant's bad record for unlawfully possessing firearms, especially those of the type so often associated with a violent or dishonest purpose, and to discourage his future possession and use of such firearms. His possession of a stolen weapon of this character made breach of the terms of that order a particularly serious offence. He showed disrespect for the order and disregard for the law. Unless breach of such orders results in harsh punishment, their purpose and effect is undermined. The order and sentences of imprisonment did not dissuade the applicant from continuing to offend. It was an aggravating factor that the offences were committed only two months after imposition of a suspended sentence. It was also aggravating that the applicant had possession of the firearm when he was in possession of and using illicit drugs. That added to the danger to the public. As the sentencing magistrate made clear, the overwhelming sentencing considerations were punishment and general and specific deterrence. Although the applicant was not to be punished for his record, it pointed to a very strong need for personal deterrence and protection of the public.
The circumstances of these offences, taken with the terms and object of the maximum statutory penalties available to the magistrate, clearly reveal that a head sentence of imprisonment for 14 months was not beyond the range of sentences reasonably open to the magistrate.
Parole
The real question in this motion is whether the fact that the applicant was not given any eligibility for parole makes the sentence manifestly excessive. The Sentencing Act 1997, s 17, provides:
"(2) A court that imposes a sentence of imprisonment on an offender, either on the conviction of the offender or on the determination of an appeal, or, on appeal, confirms the imposition of such a sentence, may order —
(a)that the offender is not eligible for parole in respect of that sentence; or
(b)that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.
(3) The period specified in an order under subsection (2)(b) is not to be less than one-half of the period of that sentence.
(3A) Where a court imposes a sentence of imprisonment and does not make an order under subsection (2), the offender is not eligible for parole in respect of that sentence.
(4) In exercising its discretion under subsection (2), a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:
(a)the nature and circumstances of the offence;
(b)the offender's antecedents or character;
(c)any other sentence to which the offender is subject.
(5) An order under subsection (2) forms, for all purposes, part of the sentence to which it relates.
(6) An offender in respect of whom —
(a)an order has been made under subsection (2)(a); or
(b)subsection (3A) applies —
is not eligible to be released on parole in respect of his or her sentence.
(7) A court must give reasons for making an order under subsection (2)."
The learned magistrate did not make an order under s 17(2), either that the applicant is not eligible for parole at all, or is not eligible for parole until the expiration of a specified period. His Honour did not mention the issue of parole. Consequently, by operation of subss (3A) and (6), the result is that the applicant is not eligible to be released on parole in respect of the sentence his Honour imposed. It would have been desirable for his Honour, in accordance with the terms of subs (7), to give reasons for a decision to make, or not make, an order under subs (2). However his Honour is an experienced magistrate and reserved sentence for more than a week. It must be assumed that his Honour decided not to make an order for parole. The failure to give reasons is not a ground of the motion and, sometimes, the sentencing remarks themselves sufficiently reveal why an order was, or was not, made. Reasons for not making an order are readily discernible in this case.
By not making an order under Sentencing Act, s 17(2), the sentencing magistrate effectively increased severity of the punishment by delaying the applicant's possible release from prison: Hunt v The Queen [1999] TASSC 63 at [23]–[26]. The Sentencing Act, s 17(4), provides the court with guidance in exercising its discretion with respect to parole eligibility. The non-parole period should be "the minimum period the judge determines that justice requires the prisoner must serve, having regard to all the circumstances of the offence": Power v The Queen [1974] HCA 26, 131 CLR 623 at 629; Deakin v The Queen [1984] HCA 31, 11 A Crim R 88; Director of Public Prosecutions v Harris [2013] TASCCA 5; 22 Tas R 448 at 452 [10] per Blow CJ; Young v Wilson [2015] TASSC 16 at [51]–[53]. It is convenient to repeat what was said by Porter J in Groenewege v Tasmania [2013] TASCCA 7 at [56]–[57]:
"Under the Sentencing Act 1997 s17, there is no parole eligibility unless it ordered that the offender is not eligible for parole before the expiration of a specified period. That period must be not less than one half of the head sentence. A non-parole period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances. The fixing of a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines: Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629; Carr v R [2002] TASSC 60; (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47].
Obviously, whether a non-parole period is appropriate has to be assessed not only on the basis of the whole of the circumstances of the case, but in the light of the length of the head sentence."
A little later in his reasons his Honour continued, at [59]:
"Of course, there is no presumptive starting point for parole eligibility, but those cases provide an indication of the types of matters which may justify the benefit of the total available opportunity for parole. Without wishing to be prescriptive, apart from the nature of the offending itself, one factor which would justify a requirement to serve a greater proportion of the head sentence than one half, is a bad criminal record: Enniss v Tasmania [2012] TASCCA 10 at [21]; Wahl v Tasmania [2012] TASCCA 5. Other, perhaps associated, factors would be the protection of the community as a whole: Mabb v Tasmania [2008] TASSC 22 at [27], and a poor previous parole history."
Evans J, sitting as a member of the Court of Criminal Appeal in Devine v The Queen [2003] TASSC 52, said at [30]:
"The totality principle applies to both the head sentence and a non-parole period, Mill v R [1988] HCA 70; (1988) 166 CLR 59. Subject to the need to preserve a sentence's capacity to achieve all its intended objectives, in my view, a court should, in its approach to fixing a parole eligibility date, if any, be optimistic about a prisoner's rehabilitation prospects. If that optimism proves to be misplaced, it is reasonable to expect that the prisoner will not be paroled as the Parole Board is only empowered to grant a prisoner parole after considering the matters detailed in the Corrections Act, s72(4), which include the rehabilitation of the prisoner, the likelihood of the prisoner re-offending, and the protection of the public."
Many of the factors relevant to determination of the head sentence are also relevant to the grant of parole. Considered in isolation, the nature and circumstances of the offences committed by the applicant provide no strong indication, one way or another, about whether parole eligibility should be ordered. However the nature and circumstances of the offences assume more significance when considered in light of the applicant's bad criminal history and the obvious need to protect the community. His record, albeit in 2006 and 2007, demonstrated poor compliance with parole. The applicant offended despite previous lengthy sentences of imprisonment and the suspended sentence to which he was subject. There was nothing put before the sentencing court which pointed to any real chance of reform or rehabilitation, and so it cannot be said that his prospects of rehabilitation required an allowance for conditional freedom. The applicant's record pointed to the contrary.
It is relevant in this case that the sentence the applicant was required to serve is cumulative to the three-month suspended sentence which his Honour activated, resulting in a total term of 17 months without parole. The activation of that sentence is relevant in considering the totality and proportionality of the aggregation of the sentences. The principle of totality applies when a person is sentenced at a time when he or she is already serving or liable to serve other sentences of imprisonment: R v Gordon (1994) 71 A Crim R 459; Postiglione v The Queen (1997) 189 CLR 295 at 308; Harland-White v The Queen [1998] TASSC 1; Draper v Tasmania Police [2004] TASSC 120; Director of Public Prosecutions v Farmer [2005] TASSC 15; 13 Tas R 418 per Evans J at [24]; LWR v Lusted [2009] TASSC 3, 19 Tas R 233, and Rae v State of Tasmania [2010] TASCCA 8 per Crawford CJ at [18]. As Hunt CJ at CL in R v Gordon pointed out at 466:
"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."
The applicant was entitled to little regard to totality. The suspended sentence was not a long one, arose from quite separate criminality and did not result in a crushing total sentence. It was not an unfair or disproportionate representation of the applicant's total criminality.
A decision by the sentencing magistrate to make some allowance for parole would have been unimpeachable. It would then have been left to the Parole Board to assess the applicant's chance of rehabilitation, the likelihood of re-offending and protection of the public when considering whether to grant parole. However, whether such a course may have been adopted is not the question. Rather, I am to determine whether, taking into account all matters relevant to sentence, the sentence was unreasonable or plainly unjust. In my view, it was not. The sentence, even taking into account that eligibility for parole was not ordered and the requirement to serve the cumulative suspended sentence, did not result in the sentence becoming so obviously excessive that some error in the exercise of the sentencing discretion can be implied. The sentence is not manifestly excessive.
Conclusion and orders
The ground of appeal fails. The motion is dismissed.
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