Firearms Act 1973 (WA), s 19(1)(c), s 19(1ac), s 19(1ad)

Etheridge v The Queen [2004] WASCA 152

Giglia v The State of Western Australia [2010] WASCA 9

McLaughlin v The State of Western Australia [2012] WASCA 204

Miller v The State of Western Australia [2009] WASCA 79

MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149

Penny v The Queen [2002] WASCA 235; (2002) 26 WAR 475

Quigley v The State of Western Australia [2013] WASCA 9

R v Starr [1999] WASCA 119

Rehu v The State of Western Australia [No 2] [2013] WASCA 50

Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

The State of Western Australia v Anderson [2004] WASCA 157

The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137

The State of Western Australia v Cheeseman [2011] WASCA 15

The State of Western Australia v Turaga [2006] WASCA 199

Thompson v Murray [2004] WASCA 168

1 BUSS JA: The appellant has applied for leave to appeal against sentence.

2 He was convicted in the District Court, on his pleas of guilty, on four counts in an indictment.

3 Count 1 alleged that on 23 August 2011, the appellant made a threat unlawfully to kill Mr Z, contrary to s 338B of the Criminal Code (WA) (the Code).

4 Count 2 alleged that on the same date and at the same place as in count 1, the appellant was armed with a dangerous weapon, namely a sawn-off .22 calibre lever repeater rifle, in circumstances likely to cause fear to other persons, contrary to s 68 of the Code.

5 Count 3 alleged that on 25 August 2011, the appellant was in possession of a firearm, namely a sawn-off .22 calibre lever repeater rifle, while not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so; and that a number or identification mark on the firearm had been removed; and that the firearm had been altered from the design or characteristics of its original manufacture; contrary to s 19(1)(c) and s 19(1ac) of the Firearms Act.

6 Count 4 alleged that on the same date and at the same place as in count 3, the appellant was in possession of ammunition, namely 113 rounds of assorted calibres, while not being the holder of a licence or permit under the Firearms Act entitling him to do so, contrary to s 19(1)(c) and s 19(1ad) of the Firearms Act.

7 On 25 October 2012, Birmingham DCJ imposed individual terms of immediate imprisonment, as follows:

8 His Honour ordered that the sentences for counts 2, 3 and 4 be served concurrently with each other and concurrently with the sentence for count 1. The total effective sentence was therefore 2 years 10 months' imprisonment. The sentences were backdated to 25 August 2011, when the appellant was taken into custody for the offences. A parole eligibility order was made.

The facts and circumstances of the offending

9 On the evening of 23 August 2011, the appellant drove his motor vehicle to a house in a Perth suburb owned by Mr X.

10 The appellant had previously been in a relationship with Mr X's daughter, Ms X. The appellant and Ms X had a young child.

11 When the appellant arrived, the victim, Mr Z, was at the house. Mr Z was the partner of Ms X's sister.

12 The appellant drove to Mr X's house with another man. At all material times the other man remained in the vehicle.

13 The appellant entered Mr X's house with a sawn-off rifle concealed in his trousers. The rifle was loaded with a hollow-tip bullet. A confrontation occurred between the appellant and Mr Z. This culminated in the appellant pointing the rifle at Mr Z, cocking the trigger and telling Mr Z:

(b) 'If you come near me, I am going to blow your head off';

14 On 25 August 2011, the appellant was apprehended by police. The police searched the appellant's vehicle and found an unlicensed firearm which matched descriptions given by Mr X and Mr Z of the weapon produced by the appellant at Mr X's house. When the police located the firearm it was loaded with a round in the chamber, it had a full magazine of soft-nosed hollow-pointed bullets, and the safety mechanism was disengaged.

15 The sentencing judge inferred that the rifle was in this state when the appellant confronted Mr Z and made the threats (ts 95).

16 An identification mark on the rifle had been removed and the weapon had been altered by cutting down the barrel and the butt. These alterations facilitated the concealment of the weapon.

17 The search by the police of the appellant's vehicle on 25 August 2011 also disclosed an assortment of unlicensed ammunition.

The sentencing judge's sentencing remarks and the appellant's personal antecedents

18 There was a history of tension between the appellant and Mr Z. On the evening of 23 August 2011, before the appellant went to Mr X's house, Mr Z, in company with Mr X, attended the appellant's parents' house and made a number of threats. Mr Z made the threats because he believed the appellant had done a 'burn out' on Mr X's lawn. This was denied by the appellant. Defence counsel submitted to the sentencing judge that the appellant was especially aggrieved by Mr Z's behaviour because the appellant's mother was ill and Mr Z had seen her while she was not wearing her head scarf (a matter of cultural significance).

19 His Honour referred to this earlier incident in his sentencing remarks. He then said:

I'm not sure that that was the prime motivating circumstance to go there and the impression I gain from reading the papers and the picture painted by the depositions is that of an angry drug-affected person, keen to establish that he's not going to be pushed around ...

It's apparent you had no issues with [Mr X] but you clearly had some issues with [Mr Z] and you confronted him and I am satisfied, beyond reasonable doubt, that on this day you were the aggressor when you went to that house as you did (ts 95).

20 The sentencing judge found that the appellant went to Mr X's house on the evening of 23 August 2011, with another man and with the rifle, as part of a plan to confront Mr Z and cause him to be in fear of the appellant (ts 96).

21 The appellant was aged 27 when the offending occurred and 28 when sentenced. He completed year 12 at school. He then studied at TAFE and, later, at university. He did not complete his tertiary studies because of criminal convictions. The appellant has had significant periods of unemployment. He was in a relationship with Ms X for about six years. Their relationship ended when he was imprisoned for prior offences. Before it ended, the relationship had deteriorated because both of them were using illicit drugs.

22 According to the author of a pre-sentence report in relation to the appellant, the appellant has an entrenched pattern of offending, which indicates that there is 'a significant risk of further offending in a like manner in the future' (4). He 'continues to struggle with poly-substance use and poor and impulsive decision-making' (4). The appellant was affected by methylamphetamine when he committed counts 1 and 2.

23 The appellant is not of good character. He has an extensive prior criminal record. The appellant has convictions for possessing a prohibited weapon (multiple offences), criminal damage (multiple offences), common assault (multiple offences), possessing prohibited drugs (multiple offences), burglary (multiple offences), possessing prohibited drugs with intent to sell or supply (multiple offences), reckless driving, other traffic violations (multiple offences), possessing an unlicensed firearm, possessing unlicensed ammunition (multiple offences), damaging property (multiple offences), breach of a bail undertaking (multiple offences), giving false personal details to police (multiple offences), resisting police, threatening words or behaviour (multiple offences) and disorderly conduct (multiple offences).

24 The sentencing judge referred to the appellant's prior criminal record and noted that it was not a circumstance of aggravation, but did show the need for personal deterrence (ts 102).

25 On 25 August 2011, the appellant was arrested for the offences in question. On 28 March 2012, after four disclosure/committal hearings, he entered pleas of guilty in the Magistrates Court. But the appellant later sought to change his pleas from guilty to not guilty. He appeared on eight occasions in the District Court. On 4 October 2012, the appellant withdrew his application to change his pleas from guilty to not guilty. However, written submissions and affidavits had been filed by the appellant and the State before the application was withdrawn. On 4 October 2012, the appellant entered pleas of guilty in the District Court.

26 The sentencing judge made these comments about the value and timing of the pleas of guilty:

Significantly you pleaded guilty at an early stage albeit you then sought to change your plea for whatever forensic purpose and the matter has then proceeded on the basis that you were seeking to change your plea up until you changed your plea and entered pleas to the indictment when presented to you earlier this month.

It's accepted by the State that you should receive some credit in respect of that plea and in particular that it hadn't progressed to a state where you had or the State had completed the final preparation of the brief for trial and the matter had not been set down for a hearing. So there is that mitigation and to that extent, to the extent that your plea has assisted in the administration of justice, I have regard to it (ts 101).

27 His Honour referred to other information he had been given which mitigated the seriousness of the appellant's offending and which he took into account in deciding upon the sentencing outcome. This information is set out in the schedule to these reasons. The schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.

28 The sole proposed ground of appeal alleges that the sentence imposed for count 1 (being the threat unlawfully to kill) was manifestly excessive.

29 Counsel for the appellant emphasised the appellant's plea of guilty, his antecedents, the nature and extent of the criminality involved in the offending, sentences imposed in broadly comparable cases and the matters set out in the schedule to these reasons.

30 Initially, the appellant had sought to rely on an additional ground, but this ground was abandoned at the hearing (appeal ts 5).

The merits of the proposed ground of appeal

31 Section 338B(a) of the Code provides, relevantly, that any person who makes a threat unlawfully to kill a person is guilty of a crime and is liable to imprisonment for 7 years.

32 As Malcolm CJ (Ipp & White JJ agreeing) noted in R v Starr [1999] WASCA 119 [14], the gravamen of the offence under s 338B(a) is the making of the threat. The provision does not require an intention actually to carry out the threat. If, however, such an intention is established, that is an aggravating factor which is of relevance to the sentence to be imposed.

33 A threat unlawfully to kill will be more serious if it is made in circumstances where the offender has a present ability to carry out the threat; for example, where the threat is made while the offender is armed with a knife or other weapon. See The State of Western Australia v Turaga [2006] WASCA 199 [19] (Wheeler JA).

34 A review of previous sentencing dispositions in relation to the offence of threatening unlawfully to kill reveals that there are significant variations in the facts and circumstances of each offending and offender. The sentence to be imposed in each case depends on the particular facts and circumstances of the offence, having regard to the maximum penalty and the personal circumstances of the offender. The cases I have reviewed include The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137; Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319; Miller v The State of Western Australia [2009] WASCA 79; Turaga; Thompson v Murray [2004] WASCA 168; Etheridge v The Queen [2004] WASCA 152; The State of Western Australia v Anderson [2004] WASCA 157; Penny v The Queen [2002] WASCA 235; (2002) 26 WAR 475; The State of Western Australia v Cheeseman [2011] WASCA 15; McLaughlin v The State of Western Australia [2012] WASCA 204; Quigley v The State of Western Australia [2013] WASCA 9; and Rehu v The State of Western Australia [No 2] [2013] WASCA 50. It is unnecessary to reproduce the facts and sentencing dispositions in those cases.

35 The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are well-established by the case law.

36 In the present case, the appellant's offending in relation to count 1 was undoubtedly serious. There was little by way of mitigation apart from the appellant's plea of guilty and the matters set out in the schedule to these reasons. However, the appellant's delay in entering the plea in the Magistrates Court and his subsequent attempt to change his plea from guilty to not guilty indicate that he had little remorse or contrition for his offending. The appellant has a history of illicit drug use and criminal behaviour including previous convictions for possessing an unlicensed firearm and unlicensed ammunition. He manifested, in his commission of count 1, a continuing attitude of disobedience of the law. Although the appellant could not be (and was not being) punished again for past criminal behaviour, his prior record reflected on his moral culpability for the offence in question. It also showed that this offence was not an uncharacteristic aberration.

37 In the circumstances, the individual sentence of 2 years 10 months' immediate imprisonment for count 1 was high, but it was not

unreasonable or plainly unjust. The principal sentencing considerations were appropriate punishment and personal and general deterrence. I have taken into account the maximum penalty, the circumstances of the commission of the offence (including the fact that the appellant made the threats while he was armed with a loaded rifle and pointing the rifle at Mr Z, and with the safety mechanism disengaged and the trigger cocked), the mitigating factors (including the plea of guilty and the matters set out in the schedule to these reasons), the appellant's personal circumstances and antecedents and the sentencing pattern revealed by the cases I have reviewed. I am satisfied that the appellant has no reasonable prospect of contending successfully that the sentence was manifestly excessive. Error should not be inferred from the sentencing outcome.

38 Finally, I note that the high individual sentence for count 1 was softened by the sentencing judge's order that the individual sentences for counts 2, 3 and 4 be served concurrently with each other and concurrently with the sentence for count 1. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).

40 Leave to appeal should be refused because the proposed ground of appeal does not have a reasonable prospect of success. The appeal must therefore be dismissed.