Criminal law - Sentence - Firearms - Failing to keep secure - Permitting access to another - Penalty - Whether the evidence necessary to establish the commission of one charge is also the evidence necessary to establish another charge - Whether a plea of not guilty was treated as an aggravating circumstance - Whether means to pay taken into account

Firearms Act 1973 (WA)

Sentencing Act 1995 (WA), s 11, s 53, s 106

National Companies & Securities Commission v Falk (1993) 9 WAR 1

Phillips v Carbone (No 2) 10 WAR 169

(This judgment was delivered extemporaneously on 2 December 2009 and has been edited from the transcript.)

1 The appellant was charged with two offences under the Firearms Act 1973 (WA):

• Being the person having custody or control of a firearm and ammunition namely a 9mm self-loading Glock handgun and 9mm ammunition, failed to take all reasonable precautions to ensure its safekeeping [AL 1033 of 2007];
• Permitted JWB (his brother) to be in possession of a firearm and ammunition, namely a 9mm self-loading Glock handgun and 9mm ammunition while such person was not the holder of a licence or permit under the Firearms Act, entitling them to possess it and was not a person to whom s 8 or s 32 of the Firearms Act applied [AL 1034 of 2007].

2 On 18 February 2009 after trial he was convicted of each offence. On the first charge he was fined $1,500, there was an order for the forfeiture of the handgun and his firearm's licence was disqualified for 18 months. On the second charge he was fined $2,000.

3 Mr Berry appeals against his conviction and sentence.

4 I will only refer to evidence directly relevant to the grounds of appeal.

5 Constable Jeffers gave evidence that at about 10.30 am on 13 April 2007 he was in company with Constable Boggs doing a foot patrol in Albany when they walked past a car park at the rear of the Woolworths goods area and noticed a juvenile male, who turned out to be Mr Berry's brother, sitting on a wall with a backpack next to him. Inside the backpack was a loaded Glock pistol and a quantity of live ammunition together with a maroon-coloured balaclava which had been modified to form eye sockets or eye holes. The pistol contained 10 live rounds and a dummy round in the breech. The appellant was nearby in a vehicle. A search of the appellant's backpack located more ammunition of the same type located on his brother and that would suit the pistol. Also found in the appellant's back pack was a thigh holster, a knife and a box containing 50 rounds. The Glock pistol was licensed to the appellant.

6 Constable Hallett went to the appellant's home. In the main living area he saw ammunition and ammunition components on a small table in the living area. In the bedroom he saw two firearms sitting on a shelf and between the firearms a belt containing live shotgun cartridges. None of the items were in an approved gun cabinet. There was a gun safe in an upstairs locked area. Constable Hallett used a key to open the safe and found it to be empty. In his evidence, the appellant said (ts 72):

I fail to see how it can be used in that sense of unsafekeeping because the main point is that both me and my brother used that pistol at the club and despite the fact that he was found with it, the implication that it was unsafe and it was somehow unstored, and it was, you know - which is - basically, the charge, as far as I can see, is implied that I had - that I - there was some other criminal intent other than breaching that section of the act in relation to storage.

I don't understand how - if I've been charged with failure to secure, how I could then be charged with permit, because I assume that failure to secure is in terms of failure to keep it locked up or stored. But if that's the case, how come I was charged with permit unlicensed person? As in to permit would be to assume that you basically said, 'Yeah, here, take away, or do whatever you will with,' in relation to, you know, if I never see it again, it's not of my concern, which is kind of contrary to the - you know, in contrary to applying for a firearms licence in the first place. I mean, there are requirements and, I mean - yeah, that's - basically, that's my point there. They don't seem to comply with each other in relation to fail to secure and then to permit.

...

Either I fail to secure or I permit an unlicensed person to possess and as far as I can see, I don't see how I permitted an unlicensed person to possess in relation to those circumstances.

8 The appellant conceded he did not have a licence to manufacture ammunition. He admitted that he was in control of the gun safe. He had the key and he was the only one who could open the safe. He did not take the pistol out and give it to his brother:

I assumed it would have been out of the safe as my other firearms were.

'The convictions sustain contradictory charges'

9 They do not. The elements of each offence are different. No question of double jeopardy arises: National Companies & Securities Commission v Falk (1993) 9 WAR 1. As the magistrate found, if the appellant did not know that his brother had the gun, then he had not taken all precautions to ensure its safekeeping because it was in a position where someone else was able to get hold of it.

10 In relation to the second charge the magistrate found that at some point in the day the appellant knew his brother had the firearm.

'A firearm cannot be forfeited on the basis of inflating a Regulations breach'

12 Upon conviction the magistrate's discretion under the Sentencing Act 1995 (WA) s 106(1) was enlivened. The appellant's arguments ignore the fact that he was convicted of two offences under the Firearms Act, triggering the application of s 106: see s 106(1)(5)(e). There is no substance in this ground.

'The disqualification Order has compounded the unlawful seizure and retention of my .22 magnum rifle and my 12 gauge shotgun'

13 This ground does not raise any issue in relation to the conviction and has no reasonable prospects of success so leave to appeal on this ground is refused.

Ground 4 - 'Two fines cannot be imposed on the same evidence'

14 The Criminal Code (WA) by s 16 provided that 'a person shall not be twice punished for the same act or omission'. That was considered in Phillips v Carbone (No 2) 10 WAR 169 where the court held that the word 'act' as it is used in s 16 means 'the thing done' rather than the 'means of doing it'. Section 16 was repealed and the same principle enacted but not in the same terms in the Sentencing Act s 11(1) which provides relevantly:

If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.

15 Section 11 is wider in its scope and allows a judge to take a realistic look at the evidence to ensure that a person does not receive double punishment for the one act of criminality.

16 The way the prosecution case was mounted, evidence for both charges was the finding of the Glock pistol and ammunition in the brother's backpack. The same evidence led to conviction on the first charge by necessary inference. The evidence essentially gave rise to the one act of criminality.

Ground 5 - 'The sentence cites my "not-guilty" plea as aggravation'

Well, having heard the evidence in this matter I'm satisfied beyond reasonable doubt, beyond any doubt, in fact, that both of these charges have been proven and, in fact, Mr Berry made no contribution whatever to his defence, and it astounds me that he didn't plead guilty to the charges.

19 In his evidence the appellant had admitted the necessary elements of each charge albeit that he expressed a mistaken view as to the law. When sentencing the magistrate said (ts 97):

My concern is that, as I expressed, it appears to me you've got absolutely no idea about why people have licences, firearms licences. Why there's the requirement for it to be in a safe. You've got no concept of it -

Mr Berry, your best bet today would have been to accept the fact that you were guilty of the charges, and come along and plead guilty, show a bit of remorse, appreciate that you had made a mistake, and you might not be getting your licence - your firearms licence disqualified.

But you adopted a completely different approach where you maintained that you were guilty - that you were not guilty; that you've done nothing wrong. Well, if that's your mentality that you have done nothing wrong, then it's not appropriate for you to have a firearms licence.

21 The magistrate used the plea of not guilty in exercising his discretion to forfeit the firearm not in setting the penalty. He was entitled to do so.

22 Any person has the right to plead not guilty to a charge and that right will be undermined if, upon conviction, they are exposed to a greater penalty. That is why the Sentencing Act s 7(2) provides that an offence is not aggravated by the fact that the offender has pleaded not guilty to it.

23 Although not completely clear, I consider the repeated references by the magistrate to the plea of not guilty give rise to an inference that the magistrate did impermissibly take it into account in setting the penalty. This ground is established.

Ground 6 - 'The sentence is grossly disproportionate to the corresponding sentence and the degree of conviction demonstrated by Police'

24 The appellant's brother was placed on a 12 month good behaviour bond and given a spent conviction. The appellant's brother was a juvenile and dealt with under the Young Offenders Act 1994 (WA) where different principles of sentencing apply. Moreover, the appellant's criminality in permitting his brother to have possession of the firearm was greater. That argument cannot be sustained.

25 However, there is another argument advanced in relation to this ground, and that is that the magistrate did not inquire as to the appellant's means before imposing a fine. The Sentencing Act s 53(1) says relevantly that if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as practicable, take into account:

(b) the extent to which payment of the fine will burden the offender.

26 At sentencing, following the prosecution's submissions, the magistrate said, 'Yes, well, anything you want to say? Anything more you want to say?' and the appellant answered 'No'. The magistrate then imposed fines. It would have been practical for the magistrate to have asked the appellant as to his means. The question, 'Anything more you want to say?' does not discharge the obligation under s 53 to, as far as practicable, take into account the means of the offender and the extent to which the fine will burden the offender. The ground is established.

Ground 7 - 'The Decision accommodates defamation and misrepresentation'

27 This ground makes no sense and leave to appeal in respect of it is refused.

28 In my conclusion then, the appeal against convictions are dismissed. The appeal against sentence is allowed. I have inquired of the means of the appellant to pay a fine. He advises me that he is working, earning around about $340 a week, which is a low wage. His firearms were confiscated. They were worth some $7,500 - $8,000, which represents the loss of an asset to him. I will have regard to his income in setting the fine. I will disregard the fact that he pleaded not guilty to the particular charges as irrelevant.

29 In relation to the charge of permitting another person to possess a firearm, AL 1034/07, I set aside the fine of $2,000 and I substitute a fine of $1,500. In relation to the first charge, AL 1033/07, that of failing to take all reasonable precautions, I consider that charge arose out of the same evidence, so pursuant to the Sentencing Act s 11, I set aside the fine and impose no penalty. The order for disqualification and forfeiture, however, remain attached to that conviction.