KIRK -v- JACKSON [2016] WASC 17 (20 January 2016)

1. The application for leave to appeal is to be heard at the same time as the appeal.
2. An appeal book is not required to be lodged.
3. The appellant file and serve a short outline of his submissions on or before 4.00 pm on Monday 11 January 2016.
4. The respondent file and serve written submissions on or before 4.00 pm on Monday 18 January 2016.

3 Mr Kirk is not legally represented and is in custody. He did not file an outline of his submissions. He told me on the hearing of the appeal that he was not made aware of the orders made on 16 December 2015.

4 On the morning of the hearing of the appeal Mr Kirk provided a document entitled 'Appeal Grounds' which provided particulars of the existing ground of appeal and contained a proposed new ground of appeal as follows:

There was an error of law whereby the learned Magistrate failed to give the Appellant credit for his early pleas of guilty or to specify the reduction to his sentence pursuant to section 9AA of the Sentencing Act 1995.

5 Particulars of that proposed ground were also provided. Counsel for the respondents did not oppose the addition of that ground of appeal. It was a point on which she had made submissions in her outline of submissions filed on 18 January 2016. At the hearing of the appeal I granted Mr Kirk leave to add that ground of appeal.

6 The offences, sentences imposed and maximum penalties for those offences were as follows:

Unlawfully doing an act which resulted in bodily harm: s 304(1)(a) Criminal Code

Possession of a face mask with the intention of using it as a disguise in connection with committing an offence: s 557H Criminal Code

Possession of ammunition whilst not being the holder of a firearms licence or permit: s 19(1)(c) Firearms Act 1973

Driving a motor vehicle while unlicensed: s 49(1)(a) Road Traffic Act 1974

Aggravated possession of a firearm whilst not being the holder of a firearms licence or permit: s 19(1)(c) and (1ac) Firearms Act 1973

7 The penalties imposed on prosecutions PE 36610/2015 and PE 36612/2015 were not available penalties as imprisonment was not a sentencing option for each of those offences. While Mr Kirk was disqualified from holding a driver's licence he was not charged with the offence of driving while disqualified in PE 36612/2015. The learned Magistrate expressly noted in his sentencing remarks that Mr Kirk was not charged with driving while disqualified. I note in passing that the court file and Mr Kirk's record provide that on this charge Mr Kirk was disqualified from holding a motor driver's licence for 3 months. The transcript of the sentencing hearing does not show that disqualification was imposed. The court file and record appear to be in error.

8 The errors in the penalties imposed on prosecutions PE 36610/2015 and PE 36612/2015 do not affect the sentence to be served because the terms of imprisonment imposed for each of those offences were ordered to be served concurrently. Nevertheless I do not consider it appropriate for the sentences which were beyond the jurisdiction of the learned Magistrate to remain. I therefore granted Mr Kirk leave to amend his ground of appeal by adding a ground:

The learned Magistrate erred in law in imposing terms of imprisonment on prosecutions PE 36610/2015 and PE 36612/2015 when the maximum penalties that could be imposed for each of those offences was a fine.

9 The facts of the offences which Mr Kirk admitted and which appear to have been accepted by the Magistrate were that another person stole a Mazda Bravo utility with a trailer mounted with a water tank attached in Collie. Mr Kirk drove the stolen vehicle on 15 June 2015. He drove to a BP Roadhouse and placed $84.55 worth of fuel in the stolen vehicle. He then drove off at speed without paying for the fuel. The stolen vehicle was later found burnt out in a vacant block in Pinjarra.

10 On 29 July 2015 a police officer saw Mr Kirk park a motor vehicle in Pinjarra. Mr Kirk did not have a valid motor driver's licence. The police officer was wearing his blue police utility vest and his accoutrements and was displaying his identification card. He approached Mr Kirk, identified himself and ordered Mr Kirk to get out of the vehicle. Mr Kirk began to reverse the vehicle. The police officer punched the driver's window, reached into the vehicle, seized the keys and stopped the vehicle. The police officer received a 10 cm laceration to his right arm.

11 Mr Kirk was arrested and his vehicle was searched. Police officers located a green bag between the driver's seat and the front passenger's seat. In that bag they found a black balaclava, a grey face mask, an altered loaded bolt action rifle and a pair of gloves. There were five rounds of live .22 calibre ammunition. One round was in the chamber of the rifle. Four rounds were in the magazine attached to the rifle.

12 In his plea of mitigation counsel for Mr Kirk said that Mr Kirk took possession of the rifle to move it for a friend and that he did not check whether it was loaded or not. As he pleaded guilty to possession of a firearm and ammunition it seems clear that Mr Kirk knew that the rifle could readily be used. His counsel did not suggest otherwise to his Honour.

13 The offence of stealing a motor vehicle committed on 15 June 2015 breached an eight month suspended term of imprisonment that had been imposed on 25 July 2014 for an offence of driving a motor vehicle while unlicensed. On 30 September 2015 the learned magistrate ordered that the eight month sentence be served concurrently with the sentences he imposed on that day. I am not altering that order.

14 At the time he was sentenced on 30 September 2015 Mr Kirk was aged 28. He had a lengthy record of offending. It included offences under the Firearms Act 1973 (WA), offences of breaching violence restraining orders, offences involving violence, including an offence of aggravated assault, offences of criminal damage and serious driving offences. He had breached orders to which he had been sentenced, including suspended imprisonment orders. He had previously been sentenced to imprisonment to be served.

15 Mr Kirk was legally represented and his counsel made a plea in mitigation on his behalf. His counsel said that the offending occurred after a breakdown of a significant relationship. He said that Mr Kirk acknowledged that he had a problem with alcohol abuse. He said that Mr Kirk found himself without work and with the sole responsibility for two young children. At the time of the sentencing hearing those children were in the care of close friends. Mr Kirk's counsel said that Mr Kirk was remorseful for his offending. He acknowledged the seriousness of the offending and said that Mr Kirk was anticipating a term of imprisonment and submitted that the totality principle would come into play.

16 When sentencing Mr Kirk the learned Magistrate summarised the facts of the offending and Mr Kirk's record. He said that the offences were serious and noted that the firearm was ready to be used. His Honour noted the presentence report, a letter that Mr Kirk had written and the numerous references that had been provided to him. His Honour said that having regard to the seriousness of the offending and Mr Kirk's record it was not appropriate to suspend the sentence. He imposed the sentences that I have listed earlier in these reasons, made Mr Kirk eligible for parole and back dated the sentence to 29 July 2015.

17 I will deal first with the ground of appeal that the learned Magistrate failed to take into account the pleas of guilty and specify the reduction in the sentence by reason of those pleas. In imposing the sentences the learned Magistrate referred to Mr Kirk's pleas of guilty but did not state that he was making any reduction in the sentences by reason of those pleas.

18 If a person pleads guilty to an offence s 9AA(2) of the Sentencing Act 1995 (WA) permits the sentencing judicial officer to reduce the head sentence imposed for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea. If the sentencing judicial officer reduces the head sentence for an offence pursuant to s 9AA(2) then the judicial officer is required by s 9AA(5) to state in open court both that the sentence has been reduced to recognise those benefits and the extent of that reduction.

19 The section does not expressly require a sentencing judicial officer to reduce a sentence by reason of a plea of guilty. It is yet to be decided whether, and if so in what circumstances, a plea of guilty may not result in any, or any significant discount.[1]

20 The learned Magistrate was clearly aware that Mr Kirk pleaded guilty to all charges. The question remains whether he adjusted the sentences which he imposed by reason of that fact.[2]

21 The learned Magistrate did not state that he made any reduction to the sentences by reason of the pleas of guilty. The failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judicial officer has overlooked it.[3]

22 The pleas of guilty for the offences were entered at an early stage of the prosecutions. Counsel for the respondent acknowledged on the hearing of the appeal that the pleas warranted consideration of allowing the maximum reduction in sentence of 25%. I infer from the failure to refer to consideration of a reduction in the sentence by reason of the plea of guilty that in respect of each of the charges the learned Magistrate overlooked doing so. That inference is confirmed by the individual sentences imposed and the total sentence. If the learned Magistrate had decided to allow the maximum reduction in sentence of 25% then the total sentence before that reduction would have been 3 years' imprisonment, which in my view is outside the range of appropriate sentences for Mr Kirk's offending. I conclude that the learned Magistrate erred in law by failing to consider whether to give any reduction in the sentence by reason of the plea of guilty.

23 Whether that error should result in a different sentence can be considered when considering the first ground of appeal.

24 The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[4]

25 The ground of appeal that the total sentence infringes the first limb of the totality principle is an allegation of implied error. Mr Kirk's offending was undoubtedly serious, as the learned Magistrate found. Mr Kirk's record demonstrated that there was a need for both personal and general deterrence. It is my view clear that terms of imprisonment to be served were the only appropriate dispositions for the offences of stealing a motor vehicle, unlawfully causing bodily harm and aggravated possession of a firearm.

26 The maximum summary penalties for those offences are jurisdictional limits only. It is the statutory maximum penalties that are relevant in assessing the seriousness of an offence.[5]

27 There is no established range of sentences for offences of unlicensed possession of firearms. Sentences ranging between 6 to 12 months were referred to in Huynh v The State of Western Australia.[6] In Huynh sentences of 2 years' imprisonment for offences of unlicensed possession of firearms were upheld. The offending in this case was serious, but not as serious as the offending in Huynh. In Huynh the offender was in possession of loaded firearms for the purpose of protecting himself while dealing in significant amounts of drugs..

28 Apart from Mr Kirk's early pleas of guilty there was little by way of mitigation. Nevertheless his offending and his personal circumstances, in particular those early pleas of guilty, in my view lead to a conclusion that the total sentence did not bear a proper relationship to the overall criminality involved having regard to the circumstances of the offences and the matters personal to Mr Kirk. This ground of appeal has been made out.

29 I will resentence Mr Kirk. I allow a reduction in the sentences by reason of his early pleas of guilty of 25%. The sentences of imprisonment I impose are:

30 I order that the sentences of 6 months' imprisonment on PE 36609/2015 and the sentence of 4 months' imprisonment on PE 36616/2015 each be served cumulatively on the sentence of 9 months' imprisonment on PE 36613/2015. The total sentence is 19 months' imprisonment.

31 I set aside the sentences imposed on PE36610/2015 and PE36612/15. I fine Mr Kirk $750 on PE36610/2015 and I fine him $200 on PE 36612/15. Those fines are payable immediately. In default Mr Kirk is to serve imprisonment to be served concurrently with the sentences of imprisonment he is serving.

32 The sentence of a fine of $400 on PE 36617/2015 is unaltered.

33 The total effective sentence is 19 months' imprisonment, deemed to have commenced being served on 29 July 2015. Mr Kirk remains eligible for parole.

34 I give leave to appeal on all three grounds, I allow the appeal and resentence Mr Kirk in the terms I have specified.

[1] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [59].

[2] Roberts v The State of Western Australia [2014] WASCA 239 [48].

[3] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10].

[4] Woods v The Queen (1994) 14 WAR 341; Roffey v The State of Western Australia [2007] WASCA 246.

[5] Wiltshire v Mafi [2010] WASCA 111.

[6] Huynh v The State of Western Australia [2012] WASCA 8.