BA -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2021] WASC 370 (28 October 2021)

3 On 5 July 2021 the appellant applied for an extension of time within which to appeal and for leave to appeal against the sentence imposed for the firearms offences on the following single ground:[4]

There was a miscarriage of justice in that the court, the appellant and his counsel were given incorrect information as to the appellant's criminal history resulting in his not proceeding with an application for a spent conviction.

4 On 12 July 2021 a registrar of this court made an urgent appeal order in respect of the appeal and orders that the application for an extension of time within which to appeal and for leave to appeal be heard together with the appeal.

5 On 24 September 2021 the appellant applied for leave to admit additional evidence on the appeal.

6 On 4 October 2021 a registrar of this court made an order that the application to admit additional evidence on the appeal be heard together with the appeal.

7 On 13 October 2021 I heard the appellant's application for an extension of time within which to appeal, the appellant's application for leave to appeal and the appeal, as well as the application by the appellant to admit additional evidence on the appeal.

8 The last day for the appellant to apply for leave to appeal against the sentence imposed for the firearms offences was 20 February 2017.[5] The appellant filed his Appeal Notice on 5 July 2021, that is, in excess of four years out of time.

9 The appellant has filed in support of his application for an extension of time within which to appeal an affidavit sworn by him on 5 July 2021.[6]

10 The respondent opposes the application for an extension of time within which to appeal.

11 Ultimately the question is whether it is in the interests of justice to grant an extension of time.[7] In considering whether it is in the interests of justice to grant an extension of time the factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.[8]

12 Where there has been a lengthy delay a court should only grant an extension of time within which to appeal if exceptional circumstances are shown or if a failure to grant the extension would result in a substantial miscarriage of justice.[9]

13 The delay in filing the Appeal Notice is quite obviously very lengthy. In these circumstances it will not be in the interests of justice to grant the requested extension of time unless exceptional circumstances are shown or to refuse to do so will result in a substantial miscarriage of justice. Accordingly, I will defer making a final decision on the application for an extension of time until I have dealt with the merits of the application for leave to appeal.

14 The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[10] The ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[11] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[12]

15 As I have already indicated, the appellant pleaded guilty to, and was convicted of, the firearms offences on 19 January 2017.

16 Prior to the appellant entering his guilty pleas the appellant's counsel (a duty lawyer) informed the magistrate that the appellant was asking the court 'to consider a spent conviction order'.[13] The appellant's counsel informed the magistrate that the appellant 'comes to the court with no record'.[14]

17 After the appellant had entered his guilty pleas the prosecutor read the facts of the firearms offences to the magistrate. The facts as read were as follows:[15]

[O]n 6 December 2016, police have executed a Firearms Act warrant at the [appellant's] home address in Wonthella. During the search, seven long-armed rifles were located in the [appellant's] bedroom. At the time, he was not the holder of a West Australia firearm's licence; however, he did have a current Victorian firearm's licence, and all seven firearms were registered to him. So upon moving to WA he had failed to do the necessary paperwork to transfer those items to apply for a West Australian firearms licence...

So if this was occurring in Victoria, there would be no offence committed, but because he had brought the firearms with him to Western Australia without applying for a West Australian firearms licence he was then committing an offence.

18 After the facts of the firearms offences had been read to the magistrate, the appellant's counsel informed her Honour that at the time of the execution of the search warrant the firearms were 'still in bubble wrap from the transportation' and that 'the bolts were stored separately from the rifles'.[16]

19 By the end of the hearing the magistrate had decided that she required some further information to be provided to her by the prosecutor before she could proceed to sentence the appellant. Her Honour therefore adjourned the appellant's sentencing to 23 January 2017.

20 At the hearing on 23 January 2017 the prosecutor informed the magistrate, in response to one of the magistrate's enquiries, that the police had executed the warrant on the appellant's address as a result of information given to the police by a 'partner agency' that the appellant held a Victorian firearms licence and that the appellant had 'come across' to Western Australia.[17] The prosecutor also informed the magistrate that none of the firearms were properly stored at the time that they were found by the police, and that the appellant had 'failed to go through the proper process of transporting the items from Victoria to WA'.[18] The prosecutor stated that there were 'processes in place whereby firearm holders could move their firearms from one state to another'.[19]

21 During the hearing the magistrate asked the prosecutor whether the appellant had an eastern states criminal record.[20] In response to this question the prosecutor informed the magistrate that the appellant had 'fraud convictions from September of 2016, some dog attack convictions, and some sexually related offences from early 2000s'.[21]

22 During the hearing the prosecutor informed the magistrate that the .22 rifles were at the 'lower end', that the air rifle was not a high powered firearm, and that the point .303 rifle and the double barrelled shot gun were high powered firearms.[22]

23 After the magistrate had been provided with the information regarding the appellant's record the appellant's counsel (a duty lawyer), who was not counsel who appeared for the appellant on 19 January 2017, told the magistrate that the appellant had come to court with the expectation of applying for a spent conviction order and had provided references.[23] In response to this statement the magistrate asked, 'How do you overcome what's happening with his eastern state's record?'[24] The appellant's counsel answered the magistrate's question by stating that she had 'just explained that to [the appellant] at the bar table, so I can't take that application any further'.[25]

24 Immediately following the appellant's counsel's above referred to concession, the magistrate proceeded to make brief sentencing remarks and to impose the previously referred to fine for the firearms offences.[26]

25 In her sentencing remarks the magistrate described the firearms offences as 'very serious', referred to the fact that the firearms were not properly secured and stated that the number of firearms that the appellant had brought over with him from the eastern states was 'alarming'.[27] Her Honour stated that given the number of firearms offences coming before the court which involved improperly stored high powered weapons 'general deterrence has to loom large in the sentencing exercise' in addition to personal deterrence.[28] Her Honour noted that the information she had received indicated that the appellant had 'some serious offences on his eastern states record',[29] although she also noted that the previous offences were not of a similar nature to the firearms offences.[30] Her Honour concluded her remarks by saying that taking into account the appellant's early guilty plea, the need for general deterrence, the character references that the appellant had put before the court and the loss that the appellant would suffer as a result of the forfeiture of the firearms, the sentence would be the global $1600 fine.[31]

26 The parties have agreed a number of facts for the purposes of the appeal. The agreed facts are set out in a document entitled 'Agreed Statement of Facts for the Purpose of the Appeal' dated 6 September 2021 (Statement of Agreed Facts). At the commencement of the hearing of the appeal the appellant tendered the Statement of Agreed Facts with the consent and support of the respondent. I received the Statement of Agreed Facts as additional evidence on the appeal pursuant to s 40(1)(e) of the CAA.[32]

The firearms offences - additional agreed facts

27 The Statement of Agreed Facts records that in addition to the facts that were put before the magistrate, the following facts are agreed with regards to the firearms offences:[33]

1. At the time of committing the firearms offences the appellant held a Victorian firearms licence which was renewed in 2015 and which was valid until 6 December 2018. The firearms were registered in Victoria. On or about 13 December 2016, after the commission of the firearms offences, the Victorian authorities suspended the appellant's firearms licence. The licence was subsequently cancelled;

2. On 28 January 2016 at the Stawell Post Office in Victoria, the appellant obtained a money order payable to the 'Commissioner of Police' in the amount of $174;

3. The money order was used by the appellant in an application to the Western Australian Commissioner of Police for a Temporary Permit under the Firearms Act. The application was made on 29 January 2016;

4. On 29 January 2016 a Temporary Permit was issued by the Western Australian Commissioner of Police to the appellant which allowed the appellant to possess, carry, and lawfully use for recreational hunting and shooting the firearms in Western Australia during the period 2 February 2016 - 2 May 2016;

5. The appellant took no further steps to obtain a firearms licence or to register the firearms in Western Australia prior to 2 May 2016 or at all; and

6. At the time that the police entered the appellant's premises the firearms were all inside a locked gun safe in a walk-in wardrobe. However, the gun safe was not anchored in any way to immovable structural surfaces as required by schedule 4 of the Firearms Regulations 1974 (WA).

The respondent's concessions as to statements made by the prosecutor

28 Consistently with the terms of the Statement of Agreed Facts, the respondent concedes that during the hearing on 23 January 2017 the prosecutor made statements to the magistrate that were either inaccurate or incomplete. More specifically, the respondent concedes the following:

1. At the time of being sentenced for the firearms offences the appellant did not have any convictions for fraud offences or dog attack offences. In 2016 the appellant was charged in Victoria with fraud offences and dog attack offences. However, at the time of being sentenced for the firearms offences he had not returned to Victoria to answer the fraud charges and the dog attack charges;

2. Although the prosecutor's statement that the appellant had 'some sexually related offences from [the] early 2000s' was accurate so far as it went, the statement was substantially incomplete in that the sexually related offences were dealt with in the Ballarat Children's Court in Victoria when the appellant was 14 years old. It would not necessarily have been obvious to the magistrate that the appellant was a juvenile at the time of the sexually related offences and it may have been wrongly assumed by her Honour that the appellant had been convicted of these offences as an adult; and

3. The appellant had in fact 'gone through the proper process of transporting' the firearms from Victoria to Western Australia by applying for, and obtaining, the Temporary Permit from the Western Australian Police for the period 2 February 2016 - 2 May 2016. The firearms offences arose from the appellant's failure to take any steps to obtain a Western Australian firearms licence and to register the firearms in Western Australia in the seven months between the expiry of the Temporary Permit and the execution of the search warrant.

29 The appellant accepts that the respondent's concessions as I have stated them represent fully the extent of the inaccurate and incomplete statements made by the prosecutor to the magistrate.

30 The appellant submits that it was the making by the prosecutor to the magistrate of the inaccurate and incomplete statements relating to his criminal record (the incorrect statements) that caused him not to proceed with his application for a spent conviction order.[34] The appellant submits that if the prosecutor had provided to the magistrate the correct information relating to his criminal record he would have proceeded with his application for a spent conviction order and that it would have been appropriate for the magistrate to make a spent conviction order.[35] The appellant submits that in these circumstances the making by the prosecutor of the incorrect statements has resulted in a miscarriage of justice with the result that the sentencing discretion falls to be exercised afresh.[36] The appellant submits that on exercising the sentencing discretion afresh I should find that a spent conviction order should be made in respect of the firearms offences.[37] The appellant does not contend that the fine imposed by the magistrate was anything other than an appropriate penalty for the firearms offences.[38]

31 The respondent concedes that the errors made by the prosecutor in asserting, in substance, that the appellant had convictions for fraud offences, dog offences and sexually related offences were 'material errors' in that 'if the facts were true precisely as stated, they would have rendered futile any application for a spent conviction order'.[39] The respondent concedes the appellant was sentenced on an incorrect factual basis.[40] The respondent further concedes that the 'error of fact alleged in the ground of appeal is made out' and that a miscarriage of justice occurred.[41]

32 The respondent submits that the question to be determined in the appeal is whether 'the error gave rise to a substantial miscarriage of justice'.[42] The respondent submits that if the correct factual background of the appellant's prior offending and pending charges (referred to further below) had been put before the magistrate, no spent conviction order could properly have been made by her Honour and the same outcome would have resulted.[43] The respondent submits that similarly 'upon any resentencing by the appellate court, no spent conviction order should be made'.[44] Accordingly, the respondent submits that no substantial miscarriage of justice occurred as a result of the 'factual error that occurred at the sentencing hearing' with the result that the appeal should be dismissed as provided for by s 14(2) of the CAA.[45]

33 Although nothing of substance turns on the issue so far as the determination of the appeal is concerned, it is worth making the point, in light of the respondent's reference in her submissions to the 'error of fact alleged in the ground of appeal' that there is, of course, no allegation by the appellant that the magistrate made an error of fact. Nor could there be. The 'error' was made by the prosecutor, the appellant's contention being that the prosecutor's error led to a miscarriage of justice.

34 Section 7(1) of the CAA provides that a person who is aggrieved by a 'decision' of a court of summary jurisdiction may appeal to this court. The term 'decision' used in s 7(1) is defined in s 6 of the CAA to include:

...

(f) a sentence imposed, or order made, as a result of conviction or acquittal;

(g) a refusal to make an order that might be made as a result of a conviction or acquittal;

...

35 Section 8(1) of the CAA specifies the grounds on which an appeal under s 7 may be made. One of the specified grounds is that there has been a miscarriage of justice.[46]

36 The ground of appeal as pleaded does not expressly allege that a 'decision' of the magistrate resulted in a miscarriage of justice. More specifically, the ground of appeal does not expressly allege that the decision by the magistrate not to make a spent conviction order (a spent conviction order being an order that might have been made as a result of the appellant's convictions for the firearms offences) resulted in a miscarriage of justice. However, despite the pleaded wording of the ground of appeal, the essence of the appellant's complaint is that the magistrate's decision not to make a spent conviction order in respect of the firearms offences occasioned a miscarriage of justice because the decision was made on the basis of the incorrect statements and in light of the appellant's decision, consequent on the making of the incorrect statements, not to press his application for a spent conviction order. In these circumstances I am satisfied, despite the way in which the ground of appeal is pleaded, that the appeal is in substance an appeal against a decision of a magistrate not to make a spent conviction order on the ground that the decision occasioned a miscarriage of justice.

37 I note further in this context that although the magistrate did not in her sentencing remarks expressly state that she refused to make a spent conviction order there can be no question that her Honour did refuse to do so. This is patently apparent from her Honour's above referred to exchange with counsel in which she asked counsel how the appellant could overcome what was happening with his eastern states record. In any event, given the terms of s 39(2)(c) of the Sentencing Act 1995 (WA), the failure by a magistrate to make a spent conviction order must, in my view, be taken to constitute a refusal to make the order within the meaning of s 6(g) of the CAA.[47]

The approach to the determination of the appeal

38 By s 14(2) of the CAA, even if a ground of appeal might be decided in favour of an appellant, the court may dismiss the appeal if it considers no substantial miscarriage of justice has occurred.

39 As I have just pointed out, although the appellant does not by his ground of appeal as pleaded expressly allege that he suffered a miscarriage of justice because the magistrate did not make a spent conviction order in respect of the firearms offences this is, in reality, the essence of the appellant's complaint. This is the decision which it is alleged occasioned or gave rise to a miscarriage of justice.

40 Despite the way in which the ground of appeal is framed the parties, at least in their written submissions filed in advance of the appeal hearing and as is apparent from my above summary of their principal submissions, did not expressly and clearly address the following issues:

1. The test to be applied in determining if the magistrate's decision not to make a spent conviction order did occasion a miscarriage of justice; or

2. If the magistrate's decision not to make a spent conviction order did occasion a miscarriage of justice, the proper approach to determining if no substantial miscarriage of justice occurred within the meaning of s 14(2) of the CAA.

41 The parties failure to directly address in their written submissions the test to be applied in determining if the magistrate's decision not to make a spent conviction order did occasion a miscarriage of justice was no doubt due in large part to the fact that there was no contest between them that a miscarriage of justice had occurred. In any event, having raised and explored these issues with counsel during the hearing of the appeal, and having reviewed the relevant authorities, it is my opinion that the correct approach to the determination of the issues raised by the appeal is as follows.[48]

42 I must first decide if the established error or irregularity pleaded in the ground of appeal, specifically the making by the prosecutor of the incorrect statements, could not have made a difference to the magistrate's decision not to make a spent conviction order. If I am satisfied that the making of the incorrect statements could not have made a difference to the magistrate's decision not to make a spent conviction order I will conclude that the magistrate's decision did not give rise to a miscarriage of justice.

43 If I am not satisfied that the making by the prosecutor of the incorrect statements could not have made a difference to the magistrate's decision not to make a spent conviction order, I will conclude that a miscarriage of justice occurred. If I conclude that a miscarriage of justice occurred I will then be required to exercise the sentencing discretion afresh, at least in relation to whether or not a spent conviction order should be made. If, on exercising the sentencing discretion afresh, I decide that no spent conviction order should be made in respect of the firearms offences I will dismiss the appeal on the basis that no substantial miscarriage of justice has occurred. If, on the other hand, on exercising the sentencing discretion afresh I decide that a spent conviction order should be made in respect of the firearms offences, I will conclude that it cannot be said that no substantial miscarriage of justice has occurred and will consequently allow the appeal.

44 I note in relation to my above proposed approach that the respondent's counsel, in the course of his submissions, expressly refrained from accepting that the relevant question, in determining if the alleged miscarriage of justice occurred, is whether the making by the prosecutor of the incorrect statements could not have made a difference to the magistrate's decision not to make a spent conviction order.[49] Counsel was, of course, perfectly entitled to adopt this position. However, when I asked counsel for his submission as to how I should approach the determination of the question whether a miscarriage of justice occurred, counsel in effect limited himself to asserting why the respondent accepted that a miscarriage of justice had occurred in the present case, specifically because the making of the incorrect statements constituted a 'significant factual error' which allowed the sentencing of the appellant 'to proceed on an incorrect factual basis'.[50]

45 I note further in relation to my above proposed approach that neither counsel, in the course of making their oral submissions, took issue with the proposition that if I find the alleged (and conceded) miscarriage of justice to be established it will be necessary for me to exercise the sentencing discretion afresh, at least in relation to whether or not a spent conviction order should be made.

46 The appellant's application to admit additional evidence on the appeal was made pursuant to s 40(1)(e) of the CAA. The application was not opposed by the respondent. I made an order allowing the application during the hearing of the appeal. At the time of making the order I indicated to the parties that I would, in my written reasons for decision on the appeal, set out my reasons for allowing the application to admit the additional evidence.

47 The additional evidence relates to the appellant's contention that I should, in deciding if he should be granted a spent conviction order in respect of the firearms offences, find that:

1. he is of previous good character within the meaning of s 45(1)(b)(ii) of the Sentencing Act (to which I will make more detailed reference below); and

2. the failure to make a spent conviction order will impact adversely on his employment prospects.

48 The additional evidence is comprised of the affidavit sworn by the appellant on 5 July 2021,[51] and a further affidavit sworn by him on 2 September 2021.[52] As I have already indicated, the affidavit sworn by the appellant on 5 July 2021 was sworn in support of his application for an extension of time within which to appeal and for an urgent appeal order. However, the affidavit also contains material that is relevant to the questions whether the appellant is of previous good character and whether a failure to make a spent conviction order will impact adversely on his employment prospects.

49 The general rule as set out in s 39(1) of the CAA is that the appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 40(1)(e) of the CAA gives the appeal court the power to admit other evidence on the appeal.

50 This is not a case in which it is alleged that a miscarriage of justice occurred because the additional evidence was not before the lower court at the time of sentencing. Rather, in this case it is alleged that the miscarriage of justice occurred because the magistrate made her decision not to make a spent conviction order on the basis of incorrect and/or incomplete information which was put before her Honour by the prosecution and in light of the appellant's decision, consequent on the provision of the incorrect and/or incomplete information, not to press his application for a spent conviction order. Accordingly, the established principles to be applied in determining applications to admit additional evidence in cases in which it is alleged that a miscarriage of justice occurred because of a failure to put the evidence before the lower court at the time of sentencing are not directly applicable to the application that was made in the present case.[53] Rather, the correct approach to the determination of the application that was made in the present case is, in my view, reflected by the following statement made by Pritchard J in M v Seidner (citations omitted):[54]

For the purpose of determining whether failure to make a spent conviction order amounts to a miscarriage of justice, an appellate court may have regard to new information which has been gathered for the purposes of the appeal and shows the appellant's good character and the likely consequences of a conviction.

51 As I have indicated, the additional evidence relates to the appellant's previous character and the likely consequences for him of a failure to make a spent conviction order in respect of the firearms offences. The additional evidence is therefore clearly relevant to the determination of the question whether a spent conviction order should be made in respect of the firearms offences and consequently whether the fact that a spent conviction order was not made has occasioned a substantial miscarriage of justice. Accordingly, and being conscious of the respondent's position that the 'error' alleged in the ground of appeal had been made out, that a miscarriage of justice had occurred and that the question upon which the outcome of the appeal turned was whether a substantial miscarriage of justice had occurred, I allowed the application to admit the additional evidence on the appeal.

Did the magistrate's decision not to make a spent conviction occasion a miscarriage of justice?

52 Although the respondent submits that even if the prosecutor had provided the magistrate with the correct information relating to the appellant's criminal record and pending charges it would not, for a number of reasons, have been properly open to the magistrate to make a spent conviction order, the respondent does not seek to positively argue that the making of the incorrect statements could not (as opposed to should not) have made a difference to the magistrate's decision not to make a spent conviction order.

53 The incorrect statements related to matters that were clearly of relevance to any determination of whether a spent conviction order should be made in the appellant's favour. This is reflected by the fact that the magistrate, when the issue of a spent conviction order was referred to by the appellant's counsel, expressly asked counsel how the appellant's eastern states record could be overcome. Further, the making by the prosecutor of the incorrect statements clearly resulted in the appellant's counsel not pressing the previously made request for the magistrate to consider making a spent conviction order. In these circumstances I am unable to conclude that the making by the prosecutor of the incorrect statements could not have made a difference to the magistrate's decision not to make a spent conviction order. It follows that I am, consistently with the respondent's concession, satisfied that the magistrate's decision not to make a spent conviction order occasioned a miscarriage of justice.

54 Furthermore, although the issue is not one that the ground of appeal requires me to address, I state for the sake of completeness and to avoid any doubt on the issue, that given the magistrate's references in her sentencing remarks to the appellant's 'serious offences on his eastern states record', I am also unable to conclude that the making by the prosecutor of the incorrect statements could not have made a difference to the sentencing outcome in relation to the amount of the fine imposed. Accordingly, I am also satisfied that the magistrate's decision to fine the appellant $1600 for the firearms offences occasioned a miscarriage of justice.

55 Having arrived at the conclusion that a miscarriage of justice occurred it remains necessary for me to decide, in the fresh exercise of the sentencing discretion, whether a different sentence should be imposed for the firearms offences and/or whether a spent conviction order should be made in respect of the firearms offences.

The exercise of the sentencing discretion afresh - should a different sentence be imposed?

56 I can deal with the question whether a different sentence should be imposed for the firearms offences very briefly.

57 It is not suggested by the appellant that the imposition of the global fine of $1,600 was not an appropriate penalty for the firearms offences. In any event, having regard to the sentencing principles contained in the Sentencing Act[55] and all other applicable sentencing considerations, I am of the view that the global fine of $1600 was the appropriate sentence for the firearms offences.

The exercise of the sentencing discretion afresh - should a spent conviction order be made?

58 In determining if a spent conviction order should be made in respect of the firearms offences it is, of course, and as is common ground between the parties, necessary for me to take account of the correct information regarding the appellant's criminal record and pending charges as set out in the Statement of Agreed Facts as well as the other additional evidence admitted on the appeal.

Spent conviction orders - statutory provisions and general principles

59 Before turning to directly address the question whether a spent conviction order should be made in respect of the firearms offences, it is necessary to refer in more detail to the relevant statutory provisions and to the legal principles to be applied in determining if a spent conviction order should be made in any given case.

60 Section 39(1) and s 39(2)(c) of the Sentencing Act, when read together, relevantly provide that subject to s 45 a court sentencing an offender who is a natural person may impose a fine with or without making a spent conviction order.

61 Section 45(1) of the Sentencing Act provides:

Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -

(a) it considers that the offender is unlikely to commit such an offence again; and

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

62 Thus the section operates so as to direct the court not to make a spent conviction order under s 39(2) unless the court considers that the offender is unlikely to commit such an offence again and, having regard to one or other of the factors specified in subsection (1)(b), it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.[56] Therefore, there are two pre‑conditions that must be established before the court is permitted to consider if the offender should be relieved immediately of the adverse effect that the conviction might have on them.[57] First, that the offender is unlikely to commit such an offence again.[58] Second, that the offence is trivial,[59] or the offender is of previous good character.[60]

63 It is well established that if the pre-conditions for the exercise of the power to make a spent conviction order are satisfied, the court has a discretion, not an obligation, to make a spent conviction order.[61] The discretion is to be exercised having regard to the following propositions:[62]

1. The discretionary power to make a spent conviction order pursuant to s 45(1) should be regarded as being of an exceptional character to be sparingly exercised in a clear case;

2. In determining whether to exercise the discretionary power the court should have regard to the seriousness of the offence, the circumstances of its commission and the circumstances personal to the offender;

3. The court should take as the ordinary rule the fact that the conviction will be a matter of record with all the consequences that may entail into the future;

4. The court should look to see if there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender, but also, having regard to his or her rehabilitation, from the point of view of the community why the adverse effect of the conviction should be set aside; and

5. The exercise of the discretion involves the consideration of the interest of the offender and the public interest.

The first pre-condition - is the appellant unlikely to commit such an offence again?

64 The respondent concedes that it is open for me to find that it is unlikely that the appellant will commit such an offence again, that is, an offence arising from the possession of firearms and/or ammunition without being the holder of the necessary licence or permit.

65 At the time of committing the firearms offences the appellant had no prior convictions for firearms related offences. The appellant had previously complied with Victorian laws relating to firearms licences. At the sentencing hearing on 23 January 2017 an order for the forfeiture of the firearms and ammunition was made with the result that the appellant from that date onwards no longer had possession of any firearms or ammunition. Further, since being convicted of the firearms offences the appellant has not been convicted of any further such offences. In all these circumstances I am satisfied, consistently with the respondent's concession, that the appellant is unlikely to commit such offences again.

66 In Sharpe v Vinning[63] the court said the following in relation to the expression 'the offence is trivial' in s 45(1)(b)(i):

The expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act directs attention primarily to the type or nature of the offence in question, including the inherent seriousness of the offence and the maximum penalty, having regard to the spectrum of seriousness of offences created under written laws, including the inherent seriousness of the offences and the maximum penalties.

As we have mentioned, the term 'offence' in s 45(1) refers to the acts or omissions (that is, the factual ingredients or elements) under a written law in respect of which the offender is to be sentenced in accordance with the Sentencing Act and the written law which imposed the criminal penalty for the relevant acts or omissions. It is apparent, therefore, that the material facts establishing guilt, which are the specific acts or omissions which establish the particular offender's criminal responsibility under the written law, must also be taken into account in determining whether the offence is 'trivial', within s 45(1)(b)(i). However, the relevant factors to be taken into account in determining whether an offence is trivial do not extend beyond the material facts establishing guilt, so as to include such matters as mitigating factors that are not part of the material facts establishing the offender's guilt or the objective and subjective personal circumstances of the offender.

67 The appellant concedes that the firearms offences cannot be regarded as trivial.

68 I will say more about the seriousness of the firearms offences in due course. For present purposes it suffices to say that I am satisfied that the firearms offences were clearly not trivial.

69 The appellant submits that I should find that he is of previous good character essentially for three reasons. First, because he has no adult convictions. Second, because there is before me positive evidence of his good character in the form of character references. Third, because none of the matters pointed to by the respondent in support of the argument that he is not of previous good character, considered individually or together, preclude a finding that he is of previous good character.

70 The respondent submits that despite the fact that the appellant has no convictions as an adult, the combination of his proven juvenile offending, his proven adult offending and his failure to attempt to deal with criminal charges that have been laid against him in Victoria means that he has failed to establish that he is of previous good character.

71 In Tambyrajah v Gablonski[64] Le Miere J said the following:

There are two aspects to 'good character'. If the Court is told that nothing is known against a man, it assumes that he possesses a good character in the negative sense, namely that there are no black marks against him so far as is known. Secondly, there may be positive evidence as to a man's character and reputation that adds considerably to the weight that the Court attaches to the defendant's favourable record.

72 While the absence of prior convictions is usually regarded as evidence of previous good character, a review of the authorities makes clear that evidence of prior offending does not of itself preclude a court from concluding that a person is of previous good character for the purposes of s 45(1)(b)(ii).[65] Rather, evidence of prior offending is a factor that should be considered along with any positive evidence of good character. Thus, as Le Miere J said in Hull v Castledine:[66]

Traditionally, for evidence to be probative of good character, evidence of good works or positive, demonstrable character traits, are required. However, for the purposes of sentencing, the absence of discreditable acts or convictions will usually suffice.

Difficulty arises in respect of 'blemished offenders', that is offenders whose record is not wholly free of discredit. For the purposes of s 45(1)(b)(ii) of the Sentencing Act a person may have past convictions and still be of good character. Whether a defendant with previous convictions is of previous good character is a complex problem. It is an area in which generalisations are hazardous. Whether such a person is to be treated as of good character is for the Judge to determine.

Some past offences may be such as to lead to the offender losing the mantle of good character entirely. Similarity between the offences past and the current offence tend to diminish the chances of the offender being of good character as will repeated offences and more recent criminal activity.

73 On 18 February 2002, when the appellant was 14 years old, he was dealt with in the Ballarat Children's Court in Victoria for one offence of sexually penetrating a child aged between 10 and 16 and two offences of indecent assault (juvenile offences).[67] For the juvenile offences the appellant was released without conviction on a good behaviour bond to reappear in the Children's Court on 17 February 2003.[68] The imposition of the good behaviour bond carried with it a finding that the appellant was guilty of the juvenile offences.[69]

74 On 17 February 2003 the appellant reappeared as required and, having complied with his good behaviour bond, was discharged from the juvenile offences.[70]

75 There is no evidence before me as to the facts of the juvenile offences.

76 By reason of s 584 of the Children, Youth and Families Act 2005 (Vic) (CYFA) the fact of the juvenile offences and the orders made in respect of them could not now be the subject of evidence in any legal proceedings in Victoria, due to the orders having been made more than 10 years ago.[71]

77 The respondent submits that the prohibition upon admissibility after 10 years contained in the Victorian legislation does not apply in this State. Further, the respondent correctly points out in this context that the approach in Western Australia to provisions contained in the Young Offenders Act 1994 (WA) (YOA) that are similar to s 584 of the CYFA, specifically s 189(2) of the YOA, is that a subsequent sentencing court is not prevented from taking account of the fact of a finding of guilt in respect of a prior juvenile offence when considering an appropriate sentence for a subsequent offence.[72]

78 The respondent concedes the fact of the appellant's commission of the juvenile offences cannot, of itself, preclude the conclusion that he is of previous good character. However, the respondent submits that the fact of the appellant's commission of the juvenile offences can be considered in conjunction with the appellant's manifestations of character as an adult in determining if he is of previous good character for the purposes of s 45(1)(b)(ii) of the Sentencing Act.

79 The appellant does not seek to contend that I am precluded by the CYFA from having regard to the juvenile offences in determining if he is of previous good character. Rather the appellant submits, in substance, that given he committed the juvenile offences approximately 19 years ago when he was only 14 years old, and given the sentencing principles that apply in this State in relation to juvenile offending including the need to facilitate the rehabilitation of the offender,[73] the juvenile offences do not provide support for the conclusion that he is not of previous good character even when considered in conjunction with other matters upon which the respondent places reliance.

80 Section 584 of the CYFA cannot operate so as to preclude me from taking the juvenile offences into account in determining if the appellant is of previous good character for the purposes of s 45(1)(b)(ii). Further, it is common ground between the parties that there is no provision in the Sentencing Act, the Spent Convictions Act 1988 (WA) or any other Act of this State which precludes me from doing so. Accordingly, and consistently with the approach taken in this State to findings of guilt in respect of prior juvenile offences in sentencing an offender for later offences, it is in my opinion open to me to have regard to the juvenile offences in determining if the appellant is of previous good character for the purposes of s 45(1)(b)(ii). Whether the juvenile offences of themselves, or in conjunction with other matters, preclude me from finding that the appellant is of previous good character is a question that I will return to.

81 In May 2012 the appellant was charged in Victoria with one offence of theft (the theft charge). The theft charge alleged that he committed the offence in June 2011.[74]

82 The alleged facts forming the basis of the theft charge were as follows.[75]

83 In mid to late June 2011 the appellant was working for the complainant doing work around her house. During this period the complainant decided to hold a garage sale. LW attended the garage sale and offered to buy a water feature for $100. The offer was rejected because the water feature was worth $300. Approximately two weeks later LW returned to the complainant's house and offered to buy the water feature for $200. This offer was also rejected. Approximately one week later LW again returned to the complainant's house. LW spoke to the appellant who was working in the front yard. LW offered to buy the water feature for $150. The appellant accepted this offer. A few days later LW attended the complainant's house to collect the water feature. The appellant and an unknown male loaded the water feature into LW's trailer. At the end of June the complainant noticed that the water feature was missing and reported its absence to the police. In October 2011 the police found the water feature at LW's premises and returned it to the complainant. On 3 May 2012 the appellant attended the Ararat Police Station. He was interviewed but denied committing the offence.

84 The appellant was dealt with for the theft charge under a diversion program pursuant to s 59 of the Criminal Procedure Act 2009 (Vic).[76] Under s 59(2)(a) of the Criminal Procedure Act 2009 (Vic) a pre‑condition to the appellant being permitted to participate in the diversion program was that he acknowledged to the Victorian Magistrates Court his responsibility for the offence the subject of the theft charge (theft offence).[77]

85 The appellant completed the diversion program in June 2013.[78] As a result of completing the diversion program the appellant was not required to plead to the theft charge[79] and the Magistrates Court discharged him from the charge without making a finding of guilt.[80]

86 Under s 59(3) of the Criminal Procedure Act 2009 (Vic) the appellant's acknowledgment of responsibility to the Magistrates Court for the theft offence is inadmissible as evidence in a proceeding for the offence and does not constitute a plea by the appellant.[81] Further, under s 59(4)(c) of the same Act, the fact of the appellant's participation in the diversion program is not to be treated as a finding of guilt except for certain specified limited purposes (forfeiture or restitution of items, and compensation).[82]

87 The appellant submits that a discharge following participation in a diversion program under the relevant provisions of the Criminal Procedure Act 2009 (Vic) can be distinguished from a situation in which an offender is granted a spent conviction order under s 45(1) of the Sentencing Act. In this regard the appellant draws attention to the following matters. First, that before a spent conviction order can be made the offender must plead guilty to, and be convicted of, the offence. Second, that the making of a spent conviction order does not mean that a conviction is not recorded and does not remain on the offender's record.[83] Third, that under s 14(2)(b) and s 25(1) of the Spent Convictions Act a court may have regard to a spent conviction when it is relevant to the determination of an appropriate punishment to be imposed by the court for an offence.

88 The appellant submits that in light of the differences between a discharge following participation in a diversion program under the relevant provisions of the Criminal Procedure Act 2009 (Vic) and the making of a spent conviction order under s 45(1) of the Sentencing Act, 'little weight' ought to be given to the appellant's acknowledgment of responsibility for the theft offence in determining if he is of previous good character.[84] The appellant does not contend that I am prohibited from having regard to the appellant's acknowledgment of responsibility for the theft offence in determining if he is of previous good character.

89 The respondent submits that I am entitled, in determining if the appellant is of previous good character, to take account of his acknowledgment of responsibility for the theft offence. The respondent submits that the situation is akin to that in which an offender is granted a spent conviction order under the Spent Convictions Act in which case the conviction the subject of the spent conviction order is able to be taken into account in any sentencing of the offender for a subsequent offence.[85]

90 The above referred to provisions of the Criminal Procedure Act 2009 (Vic) cannot dictate what use, if any, I am permitted to make of the theft offence in determining if the appellant is of previous good character for the purposes of s 45(1)(b)(ii).

91 Notwithstanding that the appellant did not plead guilty to, and was not convicted of, the theft offence, he acknowledged to the Victorian Magistrates Court his responsibility for the offence. In other words, he acknowledged that he had committed the theft offence. In these circumstances it would, in my opinion, offend common sense to approach the matter on the basis that I cannot, due to the fact that the appellant did not plead to the theft charge and was not convicted of the theft offence, take into account the theft offence in determining if he is of previous good character within the meaning of s 45(1)(b)(ii) of the Sentencing Act. Whether the appellant's commission of the theft offence of itself, or in conjunction with other matters, precludes me from finding that the appellant is of previous good character is a question that I will return to.

92 On 27 August 2015 the appellant was spoken to by police in relation to dog attacks alleged to have been carried out by his two dogs on that date.[86]

93 On 14 November 2015 the appellant reported to Willaura police that his car had been stolen and made an insurance claim with respect to the reported theft.[87]

94 On 8 December 2015 the appellant was interviewed by police at Ararat Police Station.[88] He was advised by the police that he may be charged with offences relating to setting fire to his car, reporting his car as stolen and making an insurance claim in relation to the reported theft.[89]

95 On 11 January 2016 the appellant was charged in Victoria by summons with three offences of being the owner of a dangerous dog that attacked or bit an animal contrary to s 29(2) of the Domestic Animals Act 1994 (Vic), and one offence of permitting a dog to worry a person contrary to s 8(e) of the Summary Offences Act 1966 (Vic) (the dog charges).[90] The maximum penalty for an offence against s 29(2) of the Domestic Animals Act 1994 (Vic) is imprisonment for 6 months or a fine of $18,200.[91] The maximum penalty for an offence against s 8(e) of the Summary Offences Act 1966 (Vic) is a fine of $758.[92]

96 On 1 February 2016 the summons for the dog charges was served by mail at the appellant's address at 57 Warranooke Street, Willaura, Victoria.[93]

97 The appellant left Victoria for Western Australia on or about 2 February 2016.[94]

98 On 21 March 2016 the Ararat Magistrates Court issued a bench warrant for the appellant's arrest as a result of his failure to appear in court in answer to the dog charges.[95] The appellant remains liable to arrest on the warrant.[96] The appellant has not taken any steps to have the dog charges resolved.[97]

99 On 26 September 2016 the appellant was charged in Victoria by summons with the three following offences relating to his reported theft of his car and his subsequent insurance claim made with respect thereto (the car charges):[98]

1. Criminal damage by fire with a view to gain contrary to s 197(3) and s 197(6) of the Crimes Act 1958 (Vic) (which carries a maximum penalty of 15 years imprisonment);

2. Making a false report to police contrary to s 53 of the Summary Offence Act 1966 (Vic) (which carries a maximum penalty of 12 months imprisonment or a fine of $18,200); and

3. Attempting to obtain property by deception contrary to s 81 of the Crimes Act 1958 (Vic) (which carries a maximum penalty of 5 years imprisonment).

100 On 18 October 2016 the appellant received in Western Australia by post the summons with respect to the car charges.[99] On receiving the summons the appellant rang Victorian Police and the Ararat Magistrates Court.[100] As a result of making these phone calls he became aware that a bench warrant had been issued for his arrest as a result of his failure to appear in court in answer to the dog charges.[101]

101 On 16 December 2016 the Ararat Magistrates Court issued a bench warrant for the appellant's arrest as a result of his failure to appear in answer to the car charges.[102] The respondent remains liable to arrest on the warrant.[103]

102 Since receiving the summons for the car charges the appellant has not taken any steps to appear in court in Victoria in answer to the charges or to otherwise resolve the charges.[104]

103 In his affidavit sworn on 5 July 2021 the appellant deposes that on 14 September 2015 he obtained a final order from the Federal Circuit Court of Australia granting him sole parental responsibility for his two children, and permitting him to relocate the children to Western Australia.[105] He annexes to his affidavit a copy of the final order.[106]

104 In his affidavit sworn on 22 September 2021 the appellant deposes to the following matters:[107]

1. Before leaving Victoria he contacted the police to tell them that he was going to be leaving the State and to query what was happening in relation to the possibility of him being charged. He was asked to provide the police with a forwarding address and he did so;

2. He was not aware of the summons for the dog charges until he contacted the Ararat Magistrates Court after being served with the summons for the car charges on 18 October 2016. He had moved address approximately three weeks prior to his departure from Victoria. He accepts that he did not inform the police of this change of address and that this may be why he did not receive the summons for the dog charges;

3. When he rang the Ararat Magistrates Court after being served with the summons for the car charges he asked whether he could appear by video link or audio link but was told that this was not possible and that if he failed to attend court a warrant would be issued; and

4. He did not travel to Victoria to appear as required, and has not done so since, to deal with the dog charges and the car charges because he does not have the financial means to do so. He has also been focused on raising his children and dealing with his health issues.

105 The respondent did not require the appellant to make himself available for cross-examination on his affidavits.

106 The respondent submits that the appellant's conduct with respect to the pending Victorian charges is something that I can take into account in deciding if the appellant is of previous good character. The respondent further submits, for reasons that I will elaborate upon in due course, that the appellant's conduct in this regard demonstrates that he is not of previous good character.

107 The appellant accepts the respondent's contention that his conduct in relation to the pending Victorian charges is something that I can take into account in deciding if he is of previous good character. However, the appellant submits that his conduct does not, when viewed in light of his above outlined affidavit evidence and the positive evidence as to his character (referred to below), provide a basis for concluding that he is not of previous good character.

108 In my opinion, and subject to what I will say below in relation to the requirement that regard is to be had to the 'previous' good character of the appellant, it is open for me to take account of the appellant's conduct with respect to the pending Victorian charges in determining if he is of previous good character. Again, whether the appellant's conduct in this regard, either of itself or in conjunction with other matters, precludes me from finding that he is of previous good character is a question that I will return to.

Positive evidence as to the appellant's character

109 The appellant has annexed to his affidavit sworn on 5 July 2021 an undated character reference prepared by Mr Christiaan Jacobs.[108] Mr Jacobs is a friend of the appellant and the appellant's potential employer.

110 The appellant has annexed to his affidavit sworn on 22 September 2021 a character reference prepared by his friend Mr Rory Mitchell dated 21 July 2021,[109] two character references prepared by his friend Ms Brooke Bennett dated 5 July 2021 and 18 September 2021,[110] and two character references prepared by his friend Mr Rodney Bennett (who I infer is the partner of Ms Bennett) also dated 5 July 2021 and 18 September 2021.[111] Mr Mitchell, Ms Bennett and Mr Bennett have prior to providing their references been made aware of the juvenile offences, the theft offence, the firearms offences, the dog charges and the car charges.

111 Mr Jacobs is the owner and driver of a taxi. In his reference he states that he met the appellant and the appellant's two children about 12 months ago. He states that the appellant and the appellant's children have become good friends and work colleagues. He describes the appellant as a kind, smart and hardworking man and an excellent father. He further describes the appellant as being of 'great character' and as 'always ready to lend a hand'.

112 Mr Mitchell in his reference states that he has known the appellant on a personal basis for approximately 15 years. He describes the appellant as being a kind, honest and generous person both with his time and willingness to help others. He states that even knowing about the appellant's juvenile and adult record in Victoria and Western Australia he still has the personal belief that the appellant is a man of good character who is hardworking and always strives to provide for his family and to 'do good' by his friends. He states that he has only ever known the appellant to act in good faith.

113 Ms Bennett is a certified practising accountant. In her references she states that she has known the appellant for approximately six years and that he is a close friend of her family. She states that she has spent a great deal of time with the appellant and has observed his behaviour both with his family and in society. She states that the appellant has never acted in any manner which would give her any cause for concern and has always acted with the utmost honesty and consideration for others. She states that in the time that she has known the appellant he has only ever conducted himself in a trustworthy manner with honesty. She states that she is aware of the appellant's offending history and pending charges in Victoria, that she does not consider these matters to be reflective of the person she knows, and that she still considers the appellant to be of excellent character.

114 Mr Bennett in his references states that he has known the appellant for eight years and that the appellant is a close family friend. He states that he has spent a great deal of time with the appellant and has observed his behaviour in many different scenarios. He, like Ms Bennett, states that the appellant has never acted in any manner which would give him any cause for concern and that he has always acted with the utmost honesty and consideration for others. He states that he has never known the appellant to behave aggressively, dishonestly or unlawfully. He states that he does not consider the appellant's offending history or pending charges in Victoria to be reflective of his character.

Conclusion as to whether the appellant is of previous good character

115 Against the background of my above expressed conclusions and the above referred to evidence, I turn to dealing directly with the question whether the appellant is of previous good character for the purposes of s 45(1)(b)(ii).

116 As is apparent from what I have said, both parties have approached the matter on the basis that the appellant's conduct since his convictions for the firearms offences is relevant to my determination of whether he is of 'previous' good character for the purposes of s 45(1)(b)(ii). However, in doing so they have not sought to directly address the question whether the reference in s 45(1)(b)(ii) to an offender's 'previous' good character is a reference to the offender's character prior to the date of their conviction for the offence or offences in respect of which a spent conviction order is being sought, or a reference to the offender's character prior to the date of sentencing for the offence or offences in respect of which a spent conviction order is being sought. The parties only directly addressed this question in response to me raising the issue during the hearing of the appeal.

117 In the vast majority of cases the time lapse between an offender's conviction for an offence and their sentencing for the offence will be either non-existent or of only short duration. Consequently, in the vast majority of cases the evidence of an offender's character prior to the date of their conviction will be precisely the same as the evidence of the offender's character prior to the date of their sentencing. The result will be that nothing will turn on the question whether the offender's 'previous' good character in s 45(1)(b)(ii) is a reference to their good character prior to the date of their conviction or a reference to their good character prior to the date of their sentencing. Where, however, there is a significant delay between an offender's date of conviction and the date of the offender's sentencing (or, in the case of an appeal, the date of a fresh exercise of the sentencing discretion) there might be evidence of conduct engaged in by the offender since the date of their conviction which provides a basis for asserting that their 'previous' character at the time of conviction does not reflect their 'previous' character at the time of their sentencing.

118 In my opinion, the reference in s 45(1)(b)(ii) to the 'previous' good character of the offender must be interpreted as referring to the good character of the offender prior to the date of their conviction rather than prior to the date of their sentencing. If the position were otherwise there would, in any given case, be nothing to prevent a court, in deciding if an offender is of 'previous' good character, from taking account of the very offence or offences in respect of which the spent conviction order is being sought. This cannot have been the intention of the legislature.[112] Of course, none of this is to say that evidence of post-conviction conduct by an offender adduced at the time of their sentencing for the relevant offence cannot bear upon the determination of whether they were, prior to the date of their conviction, of previous good character. However, it is the offender's character prior to the date of their conviction to which regard must be had.

119 Clearly, evidence of an offender's post-conviction conduct may well be directly relevant not only to the determination of whether the offender is 'unlikely to commit such an offence again' within the meaning of s 45(1)(a) but also, if the pre-conditions for the making of a spent conviction order are met, whether the court should exercise its discretion to make such an order.

120 Having made the above points I return to the juvenile offences.

121 The juvenile offences, given their nature, were clearly serious. However, the appellant committed the juvenile offences when he was only 14 years old, approximately 15 years before he committed the firearms offences. He has not committed any offences of a similar nature since. Moreover, although the evidence before me does not reveal the facts of the juvenile offences, the way that the appellant was dealt with for them does support the inference that they were not at the top end of the scale of seriousness for offences of their type. For these reasons I am not persuaded that the fact of the appellant's commission of the juvenile offences, of itself or considered in conjunction with any subsequent conduct of the appellant, provides a basis for concluding that the appellant was not of previous good character at the time that he was convicted of the firearms offences.

123 The theft offence did not involve the taking of property of great monetary value. Nonetheless, in committing the theft offence the appellant engaged in behaviour that was not only dishonest but which also involved a breach of the trust of the complainant for whom the appellant was working at the time. In these circumstances it cannot, in my view, be said that the theft offence fell at the lowest end of the range of seriousness for offences of its type, although it clearly fell towards the lower end of the range. On the other side of the ledger, however, is the fact that the appellant committed the theft offence over 10 years ago (in excess of five years prior to committing the firearms offences) when he was 24 years old, that is, still a relatively young man. Furthermore, following his acknowledgment of guilt for the theft offence the appellant successfully completed the diversion program. Balancing these competing considerations, I am not persuaded that the appellant's commission of the theft offence warrants a finding that he was not, at the time of being convicted of the firearms offences, of previous good character.

124 I come now to the respondent's conduct with respect to the pending Victorian charges.

125 The respondent does not submit that I should find on the evidence that the appellant moved to Western Australia because he had been charged with the dog offences. Nor does the respondent submit that I should find that his move to this State was primarily motivated by a desire to flee Victoria to avoid prosecution for the car charges. The respondent accepts in light of the appellant's evidence regarding his obtaining of the final order from the Federal Circuit Court of Australia, that the appellant intended to move to this State from sometime prior to 14 September 2015.

126 The respondent does not, and obviously could not, contend that the appellant is guilty of the dog charges and the car charges.

127 The respondent points to the fact that as at 19 January 2017 the appellant knew that a warrant had been issued for his arrest on the dog charges and that he had known this since 18 October 2016. The respondent submits that as at 19 January 2017 the appellant, given the above outlined chronology relating to the pending charges and his failure to appear in court in Victoria in answer to the car charges, must also have known that it was at least highly likely that a warrant had been issued for his arrest on the car charges at some relatively short period of time after 18 October 2016. The respondent submits that the appellant's failure to take any steps since being dealt with for the firearms offences, a period in excess of four and a half years, to resolve the situation relating to the dog charges and the car charges justifies the conclusion that as at 19 January 2017 he had no intention to return to Victoria in answer to the dog charges and the car charges. The respondent submits that in all these circumstances the appellant's failure prior to 19 January 2017 to return to Victoria in answer to the dog charges and the car charges demonstrates that he was not, as at that date, of previous good character. The respondent submits, in essence, that a person who refuses to submit to the jurisdiction of the court of another State and who frustrates the criminal justice system of another State cannot be regarded as a person of previous good character in this State.

128 The appellant points out that he is presumed innocent of the dog charges and the car charges. He submits that in these circumstances the only relevance of the dog charges and the car charges is that he failed to comply with summonses issued in respect of the charges. He submits, in substance, that given that he is presumed innocent of the dog charges and the car charges, and given his deposed to explanations for not returning to Victoria to deal with the dog charges and the car charges, his failure to return to Victoria to deal with the charges, either prior to or since being dealt with for the firearms offences, is not a circumstance that supports the conclusion that he is not of previous good character.

129 I am satisfied that the appellant, when he appeared before the magistrate on 19 January 2017, knew that a warrant had been issued by the Victorian Magistrates Court for his arrest as a result of his failure to appear in answer to the dog charges.

130 I am satisfied that the appellant, when he appeared before the magistrate on 19 January 2017, believed (correctly) that a warrant for his arrest had been issued by the Victorian Magistrates Court as a result of his failure to appear in answer to the car charges. In my view this is the only inference reasonably available to be drawn from the agreed facts to which I have referred. It was not suggested on behalf of the appellant that this was not the position even though the issue is not one which he expressly addresses in his affidavits.

131 I am also satisfied, in accordance with the submission made by the respondent, that the only inference reasonably available to be drawn from the appellant's failure since 19 January 2017 to return to Victoria in answer to the dog charges and the car charges is that he had little or no intention of doing so at the time that he appeared before the magistrate in relation to the firearms offences on 19 January 2017.

132 As the respondent concedes, the available evidence does not provide a basis for finding that the appellant left Victoria because he had been charged with offences or in an attempt to avoid being charged with offences. The appellant only found out about the dog charges and the car charges, and about the existence of the warrant that had been issued for his arrest on the dog charges, well after his arrival in this State.

133 I accept that the appellant has reasons, unconnected with the issue of his guilt or innocence for the dog charges and the car charges, for not wanting to return to Victoria of his own volition to be dealt with for the charges, specifically his desire not to place strains on his limited financial resources, his health issues and his responsibilities as a sole parent (his children now being aged 10 and 13). I accept that these reasons existed as at the date of his convictions for the firearms offences. I am also willing to accept that the appellant's financial position, his health issues and his parental responsibilities are likely, at various points in time including prior to 19 January 2017, to have made it difficult for him to return to Victoria to be dealt with for the dog charges and the car charges (although I note that during the hearing on 19 January 2017 the appellant's counsel told the magistrate that the appellant and his family were proposing to travel to the Northern Territory to care for an unwell parent of his partner which indicates that interstate travel was not an insurmountable difficulty for the appellant at that time). Nonetheless, the fact remains that the appellant, at the time that he appeared before the magistrate on 19 January 2017, had for a period of approximately three months deliberately refrained from returning to Victoria despite knowing that he had been charged with serious offences in that State and despite knowing that he was under a legal obligation to appear in that State in answer to the charges. In engaging in such conduct he deliberately frustrated the operation of the criminal justice system in Victoria. In addition, at the time that he appeared before the magistrate on 19 January 2017 the appellant, as I have found, had little or no intention of returning to Victorian to answer to the charges. In other words, his intention was to continue to act in defiance of, and frustrate, the Victorian legal system. For these reasons, and while bearing in mind that the appellant is presumed innocent of the dog charges and the car charges, it is my opinion that the appellant's conduct in not returning to Victoria in answer to the dog charges and the car charges prior to 19 January 2017, and in not having made any substantial attempt to otherwise resolve the charges prior to 19 January 2017, is a 'blemish' on his character of such significance that it precludes the conclusion that he was of previous good character at the time that he was convicted of the firearms offences or, to put it another way, that he is of previous good within the meaning of s 45(1)(b)(ii).

134 In arriving at my above expressed conclusion I have not overlooked the positive evidence of the appellant's character as revealed by the character references. I accept, on the basis of the character references, that the appellant has some good characteristics and attributes. However, in my opinion the appellant's deliberate refusal over a number of months to return to Victoria so that he could be dealt with for the dog charges and the car charges means that despite his good characteristics and attributes he is not of previous good character within the meaning of s 45(1)(b)(ii).

135 It follows from my conclusion that the appellant is not of previous good character within the meaning of s 45(1)(b)(ii) that the pre-conditions for the exercise of the discretion to grant a spent conviction order have not been met.

136 If contrary to my above expressed conclusion the appellant is of previous good character within the meaning of s 45(1)(b)(ii), the pre-conditions for the exercise of the discretion to grant a spent conviction order are met in his case. Accordingly, for the purposes of completeness and on the assumption that contrary to my above expressed conclusion the appellant is of previous good character, I turn to consider whether it is appropriate, in the exercise of the discretion, to make the requested spent conviction order. I do so bearing in mind the already referred to propositions to which regard must be had in exercising the discretion.

137 I have reviewed a number of previous appellate decisions of single judges of this court that have concerned decisions of magistrates refusing to make a spent conviction order in respect of offences involving the unlicensed possession of firearms. In one of the cases the appeal resulted in the making of a spent conviction order.[113] In the other cases the appeals resulted in the upholding of the lower court's decision not to make a spent conviction order.[114] However, each of the cases, unsurprisingly, turned very much on their particular facts and circumstances. Accordingly, they are of no real assistance in determining how the discretion should be exercised in the appellant's case.

138 In his affidavit sworn on 5 July 2021 the appellant deposes to the following matters:[115]

1. Mr Jacobs owns and drives a taxi and has been training him to take over driving his taxi; and

2. When he applied for a Passenger Transport Driver's (PTD) Licence his application was denied because of his convictions for the firearms offences.

139 In his previously referred to character reference Mr Jacobs confirms that he asked the appellant to obtain his PTD Licence because he wants to offer the appellant a full-time position driving his taxi. Mr Jacobs expresses the belief that if the appellant obtains his PTD Licence this will help him (Mr Jacobs) out 'immensely' because there is a great shortage of Taxi drivers in the regional centre where he and the appellant live, and because employment as a Taxi driver will help the appellant to build a future for his children and obtain financial stability.

140 It is common ground between the parties that the appellant, as a result of being convicted of the firearms offences, cannot be granted a PTD Licence (authorisation) for a period of 10 years from the date of his convictions.[116] It is also common ground between the parties that this prohibition will not apply if the convictions are spent convictions.[117]

141 The appellant submits that given that he has the opportunity to work as a Taxi driver if he is able to obtain a PTD Licence, and given that in the absence of his convictions for the firearms offences being the subject of a spent conviction order he is unable to obtain a PTD Licence, the failure to make a spent conviction order in respect of the firearms offences will have an adverse impact on him.

142 In response to the appellant's submissions relating to his inability to obtain a PTD Licence, the respondent refers to the fact that the relevant legislation provides that the chief executive officer of the relevant department or an authorised delegate (decision maker) may (not must) refuse to grant a PTD Licence if a person 'is charged with a disqualification offence'.[118] The respondent points out that both the damage offence and the fraud offence with which the appellant is charged in Victoria are 'disqualification offence[s]' because they are 'constituted by conduct that is substantially the same as the conduct constituting an offence [in Western Australia]', specifically the offences of criminal damage by fire contrary to s 444(1) of the Criminal Code (WA) (Code) and the offence of fraud contrary to s 409 of the Code.[119] The respondent points out that if the appellant is convicted of the charged damage offence he will be permanently disqualified from obtaining a PTD Licence.[120] The respondent further points out that the decision-maker will know that the appellant has been charged in Victoria with the damage offence and the fraud offence because these charges appear on the appellant's National Police Certificate.[121]

143 In light of the above the respondent submits that the likelihood of the decision maker granting a PTD Licence to the appellant, a person 'facing serious criminal charges (which would, upon conviction, permanently disqualify the [appellant] from holding a [PTD Licence]) is entirely speculative.'[122] The respondent further submits that 'the prospects of [this] occurring must surely be very low in the event that the decision-maker appreciated that not only had the [appellant] been charged with such offences, but was the subject of [a] bench warrant for his arrest for failing to appear in response to them, and that the [appellant] had thereby been "wanted" in another State for more than 4 years'.[123] Thus, the respondent submits, there is no basis for the court to conclude on the evidence that if a spent conviction order is made in respect of the firearms offences the appellant will be a realistic candidate for a PTD Licence.

144 The undisputed evidence before me is that the appellant's application for a PTD Licence was declined because of his convictions for the firearms offences. This is as far as the evidence goes. Further, I am simply not in a position to make any sensible prediction as to whether the decision-maker will, in light of any additional material that the appellant decides to provide in support of his application for a PTD Licence and in the exercise of his discretion, refuse to grant a PTD Licence to the appellant because he has been charged in Victoria with the damage offence and the fraud offence. This is so even assuming that the decision maker is informed or otherwise finds out that a warrant has been issued for the appellant's arrest on these charges. I simply do not know what, if any, impact the existence of the damage charge and the fraud charge will have on the decision-maker's decision. In these circumstances I am not persuaded that the matters adverted to by the respondent provide a basis for me to conclude that the failure to make a spent conviction order in respect of the firearms offences will not, in any real sense, have an adverse impact on the appellant's ability to obtain a PTD Licence. To the contrary, I am satisfied that the failure to make a spent conviction order in respect of the firearms offences will have an adverse impact on the appellant in that it will prevent him from having any chance of obtaining a PTD Licence for a significant period of time.

145 I turn to the issue of the seriousness of the firearms offences which is a relevant consideration in deciding if I should, in the exercise of the discretion, make a spent conviction order.

146 In assessing the seriousness of the firearms offences it does need to be borne in mind that this is not a case in which the appellant came to Western Australia with the firearms and ammunition without having obtained the necessary licence and with the intention of attempting to conceal the firearms from the Western Australian Police. Rather, the appellant's criminality lies in his failure to apply for the Temporary Permit that he had obtained to be extended in respect of the firearms. Nonetheless, the firearms offences were serious. I say this in light of the following matters:

1. The maximum penalty for the offence relating to the seven firearms is 10 years imprisonment.[124] The maximum penalty for the offence relating to the ammunition is 5 years imprisonment;[125]

2. The appellant was in possession of a significant number of firearms at least two of which were high powered;

3. The appellant, it can be inferred from his obtaining of the Temporary Permit and the terms thereof, was at all times cognisant of the requirement for him to obtain a licence in this State to retain possession of the firearms and ammunition on a permanent basis;

4. The appellant, despite his knowledge of the need to obtain a licence in this State to retain possession of the firearms and ammunition, had been in possession of the firearms and ammunition without holding the necessary licence or permit for a significant period by the time of the execution of the search warrant (approximately seven months). Therefore, his offending conduct was not of short duration and cannot be described as a momentary overlooking of his obligations under the Firearms Act; and

5. The firearms, although inside a locked gun safe, were inadequately stored in the sense that the safe was not secured to the premises in accordance with the relevant schedule of the Firearms Regulations.[126] Accordingly, the safe was vulnerable to removal by intruders who could then force the safe at their leisure.

147 In my opinion the above identified matters preclude the conclusion that the firearms offences fall towards the lower end of the range of seriousness for offences of their type.

148 In deciding if the discretion should be exercised in favour of granting a spent conviction order it is relevant to bear in mind that general deterrence is an important consideration in sentencing offenders for the offence of possessing firearms without a licence. The fundamental and obviously important purpose behind the licensing regime contained in the Firearms Act is to enable the relevant authorities to do all that they can to keep track of firearms in the community and to prevent them falling into the possession of criminals and other people who cannot be entrusted with their possession. Therefore, in sentencing an offender for offences such as those committed by the appellant it is important to give weight to the need to impose a penalty that is capable of deterring others from taking or retaining possession of firearms without obtaining the required licence or permit.[127] The imposition of a sentence that is not accompanied by the making of a spent conviction order will, generally speaking, have a greater deterrent effect than the imposition of a sentence that is accompanied by such an order because the making of a spent conviction order will diminish the extent to which the conviction and sentence will be exposed to public scrutiny.[128]

149 Consideration also needs to be given to the public interest in deciding if the discretion should be exercised in favour of granting a spent conviction order. The appellant does not yet appear to have any established career path with the result that it is not currently possible to predict which, if any, forms of employment, in addition to Taxi driving, he may seek to pursue in the future. It follows that it cannot be said that it is unlikely that circumstances will arise in which a potential employer may have a legitimate interest in taking account of the appellant's convictions for the firearms offences. Accordingly, there is a public interest in the appellant's convictions for the firearms offences not being spent over and above the public interest associated with ensuring that the sentence imposed for the offences is capable of acting as a general deterrent. [129]

150 A factor which in my opinion points against exercising the discretion in the appellant's favour is that warrants have been issued for his arrest in Victoria as a result of his failure to appear in that State in answer to serious charges. There is, in my opinion, an obvious public interest in not making an order which will potentially improve the appellant's employment prospects in this State and hence his ability to remain in this State when he should be returning to Victoria to answer the serious charges that have been laid against him in that State.

151 There are factors that point in favour of making a spent conviction order in respect of the firearms offences. The appellant's only adult offence is the theft of property of a relatively low value which he committed in excess of 10 years ago and in relation to which he successfully completed a diversion program. He is unlikely to commit another firearms related offence in the future. Indeed, given his personal circumstances, most particularly his parental responsibilities, and the fact that he has not committed any further offences in this State since the firearms offences, it is reasonable to infer that he is unlikely to commit any serious offence in the future. In addition, the failure to make a spent conviction order has and continues to preclude him from having any chance of taking up a definite employment opportunity as a Taxi driver.

152 I am conscious of the following remarks made by Hall J in Hussaini v Szolnoski[130] (citations omitted):

... In appropriate circumstances comparatively serious conduct may be offset by good character and the unlikelihood of committing a further offence. It is not the case that a spent conviction order cannot be given for an offence of a serious nature. The seriousness of the offence is a relevant factor in the exercise of any discretion and may in appropriate circumstances be a very weighty factor. However, it is not a disqualifying factor.

153 Despite Hall J's cautionary statements, in my opinion this is a case in which the seriousness of the firearms offences and the associated need for general deterrence, as well as the public interest, compels the conclusion that despite the factors that point in favour of making a spent conviction order, the discretion should not be exercised to make such an order. Indeed, in my opinion the seriousness of the firearms offences and the associated need for general deterrence are of themselves, even taking into account the countervailing considerations to which I have referred, such as to preclude the conclusion that the appellant's case is of a sufficiently exceptional character to warrant a departure from the ordinary rule that a conviction will be a matter of record.

154 In short, even if I had decided that the appellant is of previous good character and consequently that the pre-conditions for the exercise of the discretion to make a spent conviction order had been met, I would have concluded, for the reasons I have stated, that it was not appropriate to make a spent conviction order in respect of the firearms offences.

155 Given my conclusions that a fine of $1600 is the appropriate sentence for the firearms offences and that a spent conviction order should not be made in respect of the firearms offences, it necessarily follows that I am satisfied that no substantial miscarriage of justice occurred as a result of the magistrate's imposition of the fine or as a result of the magistrate's decision not to make a spent conviction order in respect of the firearms offences. Accordingly, I would dismiss the appeal.

156 I come back now to deal with the application for an extension of time within which to appeal.

157 In support of his application for an extension of time the appellant, in his affidavit sworn on 5 July 2021, deposes to the following matters: [131]

1. On the basis of the information that the prosecutor provided to the magistrate about his criminal record, his duty lawyer told him he could not proceed to make an application for a spent conviction order;

2. He did not 'entirely understand what was happening in court' and therefore did not realise that the information that had been provided to the magistrate by the prosecutor was incorrect;

3. Because he did not understand that the information that the prosecutor provided to the magistrate was incorrect he did not immediately follow up the matter or seek legal advice in relation to an appeal;

4. After his application for a PTD Licence was refused he sought legal advice from the Legal Aid office situated in the regional centre in which he lives about applying for a spent conviction order. Legal Aid's office referred his matter to their appeals team and he was assigned to a lawyer;

5. He was in Perth from 23 January 2021 to have a cancerous growth removed and at this time he arranged to see Ms Natalie Sinton. Ms Sinton provided him with some advice and requested some materials in support of his applications for an extension of time and an urgent appeal order. Upon returning to his place of residence he obtained some of the requested materials and sent them to Ms Sinton who assisted him to prepare his affidavit.

158 The respondent submits that the delay in making the application for leave to appeal is lengthy and inadequately explained, and that given that no substantial miscarriage of justice has occurred the application for an extension of time should be refused.

159 The delay in the making of the application for leave to appeal is by any measure gross. Moreover, the applicant's explanation for the lengthy delay is not satisfactory. It is, even allowing for the fact that the appellant was at the time of being dealt with for the firearms offences in a stressful situation, not easy to understand how he did not, at least after the sentencing hearing, come to the realisation that at least some of what the prosecutor had told the magistrate about his record was incorrect and that he should therefore seek legal advice as to whether he could appeal the magistrate's decision. Indeed, it is difficult to escape the conclusion that that the real reason for the delay in the filing of the appeal is that the appellant made a conscious decision not to bother challenging the magistrate's decision until it became apparent to him that his convictions for the firearms offences acted as an impediment to him taking up the opportunity of employment as a Taxi driver. In these circumstances and given my decision as to the merits of the appeal, I refuse the application for an extension of time.

160 For the reasons I have given I would make orders in the following terms:

1. The application for an extension of time within which to apply for leave to appeal is dismissed;

2. The application for leave to appeal is dismissed; and

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[4] The applications were made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).

[5] CAA, s 10(3).

[7] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] - [14].

[8] Duckworth v The State of Western Australia [No 4] [2018] WASCA 2 [24] - [25].

[9] Lancaster v The Queen [1989] WAR 83, 85; Elmi v Rozario [2013] WASC 38 [15].

[10] CAA, s 9(2).

[11] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[12] CAA, s 9(3).

[33] Statement of Agreed Facts, pars 30 - 36.

[34] Appellant's Outline of Submissions dated 23 July 2021 (Appellant's Submissions), par 3; Appellant's Submissions in Reply dated 7 September 2021 (Appellant's Reply), par 33.

[36] Appellant's Submissions, par 4, 13 and 17.

[37] Appellant's Submissions, par 33; Appellant's Reply, par 4 and 34.

[39] Respondent's Outline of Submissions dated 6 September 2021 (Respondent's Submissions), par 12.

[41] Respondent's Submissions, par 13; Appeal ts 26 and 27, 13 October 2021.

[46] CAA, s 8(1)(b).

[47] Azy v McIntosh [2021] WASC 34 [29].

[48] Crocker v Vinicombe [2019] WASC 416 [42] - [60]; Ninyette v Holmes [2015] WASC 287; (2015) 72 MVR 81 [58]-[65]; Stack v Joye [2021] WASC 322 [28]-[32]. I am conscious that the decisions in Crocker v Vinicombe, Ninyette v Holmes and Stack v Joye were concerned with alleged errors of law and/or fact by the lower court as opposed to alleged miscarriages of justice. Nonetheless, in my opinion the statements made in these cases support the adoption of my below stated approach to the determination of the ground of appeal as pleaded.

[49] Appeal ts 23 - 24, 13 October 2021.

[50] Appeal ts 26 - 27, 13 October 2021.

[53] For a statement of these principles see Jetta v Director of Public Prosecutions for Western Australia [2021] WASC 234 [80].

[54] M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17 [26] - [28]; cited with approval in TWFE v Greenlees [2019] WASC 330 [40].

[55] Sentencing Act, s 6(1), s 6(2), s 7(1) and s 8(1).

[56] Wright v McMurchy [2012] WASCA 257; (2011) 42 WAR 113 [50] and [102].

[57] Sharpe v Vinning [2020] WASCA 79 [94].

[58] Sentencing Act, s 45(1)(a).

[59] Sentencing Act, s 45(1)(b)(i).

[60] Sentencing Act, s 45(1)(b)(ii).

[61] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [11]; Wright v McMurchy [59]; Sharpe v Vinning [96].

[62] R v Tognini [27] - [28]; Brewer v Bayens [18]-[24]; Wright v McMurchy [59]; JJF v Tattersall [2018] WASC 170 [16].

[63] Sharpe v Vinning [110] - [111].

[64] Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18 [28].

[65] NLJ v Martin [2010] WASC 310; FJM v Cameron [2016] WASC 109; Kerdel v Wichman [2016] WASC 128; Kretzmann v Vinicombe [2019] WASC 128 [35].

[66] Hull v Castledine [2005] WASC 252 [23] - [25].

[72] Thompson v The Queen (Unreported, WASCA, Library No 980600, 19 October 1998, 19 - 20).

[73] See YOA, s 46.

[75] Statement of Agreed Facts, par 6 and Attachment A.

[77] Criminal Procedure Act 2009 (Vic), s 59(2)(a); Statement of Agreed Facts, par 7.

[79] Criminal Procedure Act 2009 (Vic), s 59(4)(a); Statement of Agreed Facts, par 7.

[80] Criminal Procedure Act 2009 (Vic), s 59(4)(b); Statement of Agreed Facts, par 7 and Attachment B.

[82] Statement of Agreed Facts, par 10.

[83] M v O'Neill [2013] WASC 187; (2013) 230 A Crim R 511 [23]; B v Coan [2021] WASC 127 [169].

[85] In making this submission the respondent points out that Victoria did not at any material time, and does not, have spent convictions legislation and that the diversion scheme under the Criminal Procedure Act 2009 (Vic) is the current mechanism by which offenders are able to be relieved from the immediate adverse effects of a conviction.

[86] Statement of Agreed Facts, par 12.

[87] Statement of Agreed Facts, par 21.

[88] Statement of Agreed Facts, par 22.

[89] Statement of Agreed Facts, par 22.

[90] Statement of Agreed Facts, par 13. The alleged facts of the dog charges, to which I need not refer, are set out in Attachment C to the Statement of Agreed Facts.

[91] Statement of Agreed Facts, par 14.

[92] Statement of Agreed Facts, par 14.

[93] Statement of Agreed Facts, par 15.

[94] Statement of Agreed Facts, par 16.

[95] Statement of Agreed Facts, par 18.

[96] Statement of Agreed Facts, par 18.

[97] Statement of Agreed Facts, par 20.

[98] Statement of Agreed Facts, par 25. The alleged facts of the car charges, to which I need not refer, are set out in Attachment D to the Statement of Agreed Facts.

[99] Statement of Agreed Facts, par 26.

[100] Statement of Agreed Facts, par 19.

[101] Statement of Agreed Facts, par 19.

[102] Statement of Agreed Facts, par 29.

[103] Statement of Agreed Facts, par 29.

[104] Statement of Agreed Facts, par 28.

[110] Exhibit 2, Annexures BA2 and BA3.

[111] Exhibit 2, Annexures BA4 and BA5.

[112] I find support for my interpretation in statements made by Le Miere J in Hull v Castledine [27] and by McKechnie J in JJA v Yow [2008] WASC 69 [34].

[113] Middlecoat v Bluett [2010] WASC 300.

[114] Furtak v Timmers [2001] WASCA 65; Voges v King [2001] WASCA 201; (2001) 122 A Crim R 435; Robertson v Lawrence [2008] WASC 111.

[116] Transport (Road Passenger Services) Act 2018 (WA), s 89, s 97(2) and s 118(1); Transport (Road Passenger Services) Regulations 2020 (WA), regs 79, 88 and sch 3, cl 1, table item 15.

[117] Transport (Road Passenger Services) Regulations, sch 3, cl 1(5); Spent Convictions Act, s 13 and s 25(1).

[118] Transport (Road Passenger Services) Act, s 97(1).

[119] Transport (Road Passenger Services) Regulations, regs 79, 88 and sch 3, cl 1, table item 36.

[120] Transport (Road Passenger Services) Regulations, regs 79 and 88, and sch 3, cl 1, table items 9, 10 and 36.

[122] Respondent's Submissions, par 54.

[123] Respondent's Submissions, par 54.

[124] Firearms Act, s 19 (1)(c) and s 19(1ab)(b).

[125] Firearms Act, s 19(1)(c) and s 19(1ab)(b). Although the ammunition related offence was 'committed in circumstances where the person was in possession of three or more firearms' the number of firearms was not pleaded as part of the charge relating to the ammunition offence with the result that the higher maximum penalty provided for in s 19(1ad) did not apply.

[126] In the present case the appellant was not in actual physical possession, custody or control of a firearm other than by way of storage within the meaning of s 23(9)(a) of the Firearms Act. Nor, given that he was not licensed to be in possession of the firearms, was he the person 'responsible for' the storage of the firearms within the meaning of s 23(9)(d) of the Firearms Act: Martino v Green [2001] WASCA 181; (2001) 123 A Crim R 301 [33], [35] and [39]. As a result the appellant could not be charged with an offence against either s 23(9)(a) or s 23(9)(d) arising out of his failure to store the firearms in accordance with the Firearms Regulations. It follows, as is accepted by the appellant, that it is appropriate to treat the appellant's inadequate storage of the firearms as an aggravating factor within the meaning of s 7(1) of the Sentencing Act in assessing the seriousness of his conduct in committing the firearms offences: cf Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368.

[127] Ricciardi v The State of Western Australia [2012] WASCA 106 [45]; Sakhie v The State of Western Australia [2017] WASCA 103 [29].

[128] Brewer v Bayens [18] - [19].

[129] Robertson v Lawrence [2008] WASC 111 [52].

[130] Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586 [47], cited with approval by Hill J in TWFE v Greenlees [2019] WASC 330 [48].

[131] Exhibit 1, pars 4 - 7, 12 and 22 - 26.