DPP v Faure [2005] VSCA 91

2 I agree with Williams, A.J.A. that this appeal should be allowed and the respondent re-sentenced as her Honour proposes for the reasons she gives. I wish, however, to make two matters very clear. First, were it not for the allowance which this Court is bound to make for so-called double jeopardy and for the very significant likelihood that the respondent will spend a substantial part of his sentence in 23-hour lock-down, the appropriate sentence (including the non-parole period) would be substantially higher. Secondly, the sentences imposed in the County Court matter of R. v. Ferman and Musso on 30 March 2004 were, in my opinion, manifestly inadequate and should not be used as guides in sentencing for offences against s.5(1A) of the Firearms Act 1996.

3 On 28 October 2004 the respondent pleaded guilty in the County Court to one count of being a prohibited person in possession of an unregistered firearm, an offence under s.5(1A) of the Firearms Act 1996 ("the Act"). On 10 November 2004 he was sentenced to 18 months' imprisonment with a non-parole period of nine months.

The appeal

4 The Director of Public Prosecutions considered that a different sentence should have been passed and that an appeal should be brought in the public interest. On 10 December 2004 he gave the respondent notice of an appeal brought under s.567A(1) of the Crimes Act 1958, by service of a Notice of Appeal dated 8 December 2004 ("the notice of appeal"). Leave was not required, as the notice of appeal was served within time under s.567A(3).

5 The head sentence and the non-parole period were both challenged as manifestly inadequate and the following particulars were provided in the notice of appeal:

"In imposing a head sentence of 18 months' imprisonment and in fixing a non-parole period of 9 months' imprisonment, the learned sentencing judge:

(a) failed to adequately reflect the gravity of this offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(d) gave insufficient weight to the respondent's relevant prior criminal history; and

(e) gave insufficient weight to the maximum penalty applicable to this offence, being 15 years' imprisonment."

The Act

6 The Act relevantly provided:

(1) In this Act--

(iv) not more than 15 years have expired since the person finished serving a term of imprisonment of 5 years or more for such an offence; or

(v) not more than 5 years have expired since the person finished serving a term of imprisonment of less than 5 years for such an offence

"registered" means registered under Part 5; ...

5. Offence for prohibited person to possess, carry or use a firearm

(1) A prohibited person must not possess, carry or use a registered firearm.

Penalty: 1200 penalty units or 10 years imprisonment.

(1A) A prohibited person must not possess, carry or use a firearm that is not registered.

Penalty: 1800 penalty units or 15 years imprisonment. "

7 Before 1 July 2003, a prohibited person possessing, carrying or using a firearm was liable to a fine of 600 penalty units or seven years' imprisonment under s.5(1) of the Act. The Act was amended by the Firearms (Trafficking and Handgun Control) Act 2003 which significantly increased and, in many cases, doubled, the maximum penalties for the possession, carriage and use of firearms. The amending legislation doubled the maximum fine and increased, from seven to ten years, the maximum term of imprisonment for what might be described as the undifferentiated offence of possession of a registered firearm by a prohibited person. It also created the new offence under s.5(1A), providing for an even more severe penalty for the possession of an unregistered firearm by such a person.

8 In the second reading speech relating to the Firearms (Trafficking and Handgun Control) Bill the Minister referred to the history of the Act and described the purpose of the amendments when he said:

"In the aftermath of the Port Arthur incident in April 1996, the Australasian Police Ministers Council (APMC) entered into the National Firearms Agreement. Under that agreement broadly uniform regimes for the regulation and licensing of firearms were put into place in all states and territories.

Australian governments have subsequently entered into two further agreements to enhance community safety while preserving the privileges of responsible gun owners.

The first, the handgun control agreement, arises from the tragic events at Monash University on 21 October 2002 and the community's resultant demand to restrict the availability and use of handguns, particularly concealable handguns, for target shooting purposes to minimise the risk of future tragedies. That agreement will significantly strengthen controls over access to handguns throughout Australia.

The second, the firearms trafficking policy agreement, is designed to provide a broadly national approach to allow police to better detect and deter the illegal trade in unregistered firearms, which is an issue that has come to police attention nationally in recent years. ...

Increasing the penalties for the illegal possession, carriage or use of firearms

...The possession, carriage and use of unregistered firearms is a very serious matter because it flies in the face of firearms laws by subverting the licensing and registration system which is the cornerstone of the national agreement. Unregistered firearms, and particularly unregistered handguns, are the firearms of choice of firearms traffickers.

It is because the trade and use of unregistered firearms is so serious that the bill significantly increases the maximum penalties for possession, carriage and use of unregistered firearms in the act." [1]

The circumstances of the offence

9 On 19 May 2004, in the course of investigations relating to the murder of one Lewis Caine, police members of the Purana Taskforce searching the respondent's premises found a .22 calibre semi-automatic Ruger brand pistol in a bedside table in his bedroom, inside a woman's handbag. The pistol was some eight to nine inches long and had one round of ammunition in its magazine and another in its chamber. The barrel had been adapted to fit a silencer and there had apparently been an attempt to deface the serial number. However, the number was legible enough for it to be established that the weapon was unregistered. No silencer was found. Compatible ammunition was found at three other places in the house. When interviewed by police, the respondent admitted that he was not licensed or authorised to possess a hand gun or ammunition. He declined to comment about or explain the presence of the weapon.

10 However, during the plea, counsel for the respondent told the court that he had been given the pistol as a teenager, by a man now deceased, and had previously used it to shoot rabbits. The respondent was said to have kept the pistol for self protection, having become concerned when it was rumoured that, because of his association with members of his own family, he might be targeted in the war then being waged between criminal groups in Melbourne. The learned sentencing judge found that there was no material before her "inconsistent with the proposition that the pistol was kept by the respondent for the purposes of self defence", and otherwise made no specific finding as to the alleged reason for the respondent's possession of the gun.

The sentencing remarks

11 In her comprehensive sentencing remarks the judge identified the need for general and specific deterrence and denunciation of the respondent's conduct, as well as appropriate punishment for the offence. Her Honour took account of the plea of guilty.

12 The judge expressed great concern about the respondent's possession of the gun, in light of his history of violent offending. Her Honour referred specifically to a number of relevant prior convictions. The respondent had been convicted in June 1987 of armed robbery, in circumstances in which his co-accused had a firearm, and, in September 1987, for unlicensed possession of a pistol. In September 1993, he had also been convicted of manslaughter in relation to a victim who had been shot in the head.

13 The judge took the respondent's personal circumstances into account. Her Honour found that he was a 49 year old man at the date of the sentence who had a significant criminal history. He had been in custody since his arrest, spending two weeks of that time in St. Vincent's Hospital, and his condition had also been monitored as an outpatient. St. Vincent's Health medical reports indicated that he had initially been diagnosed as suffering from a right cavernous sinus lesion causing a right fourth nerve paralysis, wide-spread enlargement of lymph glands, of uncertain etiology, as well as apparently active hepatitis C-related liver disease and probable resulting chronic liver damage. The respondent also had problems relating to chronic ethanol abuse, cigarette smoking and depression. He had been thought likely to require ongoing frequent encounters with a major health service in relation to the nerve lesion and the liver disease. However, in September 2004, the lesion had been found to have resolved. The respondent had also been treated for recurring bouts of confusion, for which tests had failed to reveal any organic cause.

14 Her Honour found that the respondent's ill health and the fact that he had also been subjected to 23 hour lockdown conditions during 66 days of pre-sentence detention had resulted in his time in custody being particularly onerous.

15 The judge stated that she had decided to fix a shorter non-parole period than she would otherwise have done, because of the likelihood that the respondent's illness would increase the burden of incarceration for him.

Submissions

16 Counsel for the appellant refers to the applicable principles governing appeals by the Director of Public Prosecutions summarised by Charles, J.A. in R v Clarke[2]. She submits that an appeal was warranted in this rare and exceptional case, in order to establish a point of principle. Counsel contends that the Court should provide guidance for courts imposing sentences under the amended legislation, in order to establish an adequate standard of punishment for the newly created offence. She argues that the sentence is manifestly inadequate, when the legislative purpose revealed by the amendments and the circumstances of the offence and the respondent's prior offences are taken into account.

17 Senior counsel for the respondent contests the proposition that the sentence is inadequate. He relies upon the factors taken into account by the sentencing judge: the guilty plea, the circumstances of the offence and the respondent's personal circumstances, as well as the increased burden upon a man in ill health of incarceration in 23 hour lockdown conditions. He submits that, in the exercise of the sentencing discretion, significance should be attached to the additional burden of virtual solitary confinement.[3]

18 Senior counsel for the respondent contends that the offence should be regarded as one at the less serious end of the range of criminality. He relies upon the pistol's age, its length of some 8 or 9 inches and the absence of a silencer. He points out that it was found in a readily accessible position, rather than hidden away. He refers to the absence of any material to contradict the assertion that the gun was to be used for the respondent's self defence. He submits that there is no indication that it was used in connection with a crime or, more specifically, the offence of trafficking in firearms targeted by the amendments to the Act.

19 Counsel for the appellant replies that the respondent's offence should not be characterised as one at the lower end of the scale of seriousness. She argues that the age of the pistol does not indicate the length of time during which it was in his possession and, accordingly, should be regarded as a neutral factor in relation to the sentence. Further, if the respondent's account were accurate, he would have had the weapon in his possession when he committed the relevant prior offences, which would constitute an aggravating feature of those crimes. She submits that no significance should be attached to the fact that nothing is known about any illegal purpose for which the gun might have been in the respondent's possession. If it had been used in connection with another offence, that crime would have attracted an additional penalty. On the other hand, if the respondent had indeed kept the pistol for self protection, that fact would not constitute a mitigating circumstance.

20 Counsel for the appellant concedes the relevance to the head sentence of what she agrees is the real likelihood of the respondent being subjected to 23 hour lockdown conditions and resulting deprivation of the educational, social and recreational activities otherwise available. However, she submits that concerns in relation to its effects could more appropriately be met by the fixing of a shorter non-parole period, without impacting adversely upon the need for general and specific deterrence.

21 Senior counsel for the respondent acknowledges the effect of the amendments to the Act. He submits that the Court should adopt a similar approach to that taken in cases in which past sentences for a particular offence have been thought too low[4], urging that regard should be had to past sentencing practice and any change should be introduced only gradually. He submits that, in all the circumstances, the respondent should not be the victim of a sudden shift in approach. He refers, in this regard, to R v Ferman and Musso[5] in which sentences of 12 months' imprisonment were imposed upon each of two offenders, aged 22 and 25, respectively, in relation to offences under s. 5(1A) of the Act, committed whilst on parole.

22 Counsel for the appellant submits that a single sentence does not set the standard. Further, she seeks to distinguish the facts in Ferman and Musso from those in relation to which the respondent was sentenced. She relies upon the comparative youth of the offenders and the contrast between the sentences which, in each case, had resulted in their classification as prohibited persons. Ferman and Musso had each been sentenced to less than five years' imprisonment for attempted armed robbery, whereas the respondent was a prohibited person as a consequence of his six year sentence for manslaughter.

Conclusions

23 I am not satisfied that the learned sentencing judge erred by failing to take account of the need for general and specific deterrence. Her Honour specifically referred to both matters. However, although her Honour expressed concern in relation to the respondent's criminal history, I am persuaded that she gave insufficient weight to both his prior convictions and the gravity of his offence in all the circumstances.

24 Section 5(2)(a) of the Sentencing Act 1991 obliges the court to have regard to the maximum penalty for the offence and s.5(2)(c) requires the nature and gravity of the offence to be considered. The amendments to the Act not only increased the maximum penalty for the offence of possession of a firearm by a prohibited person, such as the respondent, but they also created the new offence for which harsher penalties were introduced. The amendments demonstrated the seriousness with which the legislature viewed the new offence, reflecting relevant community concern in the aftermath of several widely publicised shooting incidents.[6]

25 Even if the sentences imposed upon Ferman and Musso were to be regarded as having established a "current sentencing practice", to be taken into account under s.5(2)(b) of the Sentencing Act 1991, the circumstances in that case were distinguishable, for the reasons given by counsel for the appellant and because Ferman and Musso were both considered youthful enough to be rehabilitated, notwithstanding their extensive prior criminal histories. The distinguishing features diminished the limited significance otherwise attributable to any inconsistency between their sentences and that imposed upon the respondent.[7]

26 I am not persuaded by the respondent's submission that this case is one in which the sentence imposed below should not be disturbed and that a warning should given of an impending change in sentencing practice.

27 In my opinion, notwithstanding the well-recognised principles limiting the exercise of judicial power in relation to Crown appeals[8], the Court should intervene in this case to increase the sentence which is wholly disproportionate to the gravity of the crime[9] and manifestly inadequate. The respondent should be re-sentenced.

28 The respondent's entitlement to a discount for double jeopardy[10] must be taken into account. The mitigating factors detailed by the sentencing judge and the additional burden of his likely incarceration in 23 hour lockdown conditions also warrant a significant reduction in the sentence which might otherwise have been imposed.

29 In my opinion, the appeal should be allowed and the sentence quashed. The respondent should be re-sentenced to imprisonment for a period of three years and a non-parole period of two years should be fixed.

[1] Hansard, Legislative Assembly, Second Reading speech, 27 February 2003, Mr Haermeyer, Minister for Police and Emergency Services, p. 167- 170.

[2] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[3] See: R v. Rostom [1996] VicRp 60; [1996] 2 VR 97 and Bekink v. R [1999] WASCA 160; (1999) 107 A.Crim.R. 415.

[4] See: Slattery v Davis [1993] NTSC 13; (1993) 111 F.L.R. 250 at 263. Compare: Poyner v. R (1986) 66 A.L.R. 264.

[5] (Unreported, County Court, 30 March 2004): the only examples of sentences imposed in respect of the newly created offence to which the Court was referred.

[6] As to the relevance of community concerns and expectations, see: R v. Hall (1994) 76 A. Crim. R. 454 at 475 per Crockett and Southwell, JJ..

[7] See: R v. Burnett (1993) 70 A. Crim. R. 469 at 475 per Coldrey, J..

[8] D.P.P. v Johnston [2004] VSCA 150 at [26]- [28] per Chernov, JJ.A; GAS v. R; SKJ v. R [2004] HCA 22; (2004) 206 A.L.R. 116 at [14]; [2004] HCA 22 at [14]; [2004] HCA 22; 78 A.L.J.R. 786 at 790; R v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522 per Charles, JA..

[9] See: R v Burton (1996) 87 A. Crim. R. 581 at 585 per Southwell, A.J.A..

[10] DPP v. VH [2004] VSCA 180 at [14] per Callaway, J.A. and [26] per Eames, J.A.; D.P.P. v Johnston [2004] VSCA 150 at [28] per Chernov, J.A..