Pak v The Queen [2012] VSCA 4

1 I will ask Williams AJA to deliver the first judgment.

2 The appellant, Maksut Pak, was sentenced in the County Court on 18 March 2011 as follows. On presentment C0806416, he was sentenced to three years' imprisonment for trafficking methylamphetamines contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (base sentence) and to three months' imprisonment for trafficking cannabis in contravention of the same provision. On presentment X00928650, he was sentenced to twelve months' imprisonment for being a prohibited person in possession of an unregistered firearm under s 5(1A) of the Firearms Act 1996. Six months of the sentence for breach of s 5(1A) was to be served cumulatively upon the base sentence. The total effective sentence was three years and six months' imprisonment with a non-parole period of two years and four months.

3 The appellant has been granted leave to appeal against his sentence for the offence under s 5(1A) of the Firearms Act 1996 of possessing an unregistered firearm between 26 March and 8 April 2009, whilst being a prohibited person. That leave was restricted to the ground of appeal that 'the sentencing discretion miscarried in that no regard was had to the change in attitude of the Parliament in this type of offending behaviour.'

4 Between the dates of the appellant's offences and his sentence, assent was given to the Firearms and Other Acts Amendment Act 2010 (the amending act) which had the effect of repealing that part of s 5(1A) of the Firearms Act which made it an offence for a prohibited person to possess an imitation firearm.

5 The amending act also made changes to the definition section, s 3(1), of the Control of Weapons Act 1990, creating a new offence of possession of an imitation firearm without approval or exemption. The maximum penalty under s 5(1A)

applicable to the appellant's 2009 offence was 15 years' imprisonment. The maximum penalty for the new offence under the Control of Weapons Act is imprisonment for two years. The relevant provisions of the amending act commenced on 1 July 2011, after the appellant was sentenced.

6 The appellant submits that the reduction in the maximum term applicable to his type of offending behaviour indicates a relevant change in Parliament's attitude which the sentencing judge should have taken into account. The judge's failure to have regard to the change amounted to a sentencing error which should re-open the sentencing discretion. A lesser sentence should then be imposed.

7 The respondent first argues that the Court should not lightly entertain arguments that could have been but were not raised in the plea, citing R v Romero.[1] I am not, however, persuaded that the Court should not consider this recently raised ground of appeal, given the significant difference between the two penalties attracted by the same type of behaviour.

8 The parties make other submissions and I will return to them after referring to the relevant statutory provisions and authority.

The Firearms Act offence

9 Section 5(1A) of the Firearms Act is and was in these terms:

s 5(1A)

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

Penalty: 1800 penalty units or 15 years imprisonment.

10 It is common ground that, between 26 March and 8 April 2009, the appellant was a 'prohibited person' under s 3(1). This was because he had been convicted on 12 January 2005 of indictable offences of recklessly causing serious injury and theft and had been sentenced to two years' imprisonment wholly suspended for two years for that and other offences.

11 The appellant committed the s 5(1A) offence as a prohibited person in possession of an unregistered imitation Beretta self-loading pistol which, he concedes, closely resembled a real firearm. At the time, the definition of a 'firearm' in s 3(1) included such an imitation firearm.

12 Section 3(1)(c) of the amending act replaced the definition of 'firearm' in s 3(1) of the Firearms Act with one which did not refer to an imitation firearm. This had the effect of removing from s 5(1A) the offence of possession of an unregistered imitation firearm by a prohibited person.

The Control of Weapons Act offence

13 It was an existing offence under s 5 of the Control of Weapons Act to possess a 'prohibited weapon'. Section 5 (1) was in these terms:

s 5 Prohibited weapons

(1) A person must not -

...

(e) possess, use or carry -

a prohibited weapon without an exemption under section 8B or an approval under section 8C.

Penalty: 240 penalty units or imprisonment for 2 years.

14 A 'prohibited weapon' was one prescribed to be a prohibited weapon by regulation under the definition in s 3(1) of the Control of Weapons Act. The regulations did not prescribe a firearm (real or imitation) to be a prohibited weapon.

15 Section 26 of the amending act inserted a definition of 'imitation firearm' into s 3(1) of the Control of Weapons Act and amended the definition of a 'prohibited weapon' to include an imitation firearm.

16 Under s 8B(2)(a) of the Control of Weapons Act, a 'prohibited person' (as defined in s 3(1) of the Firearms Act 1996) is ineligible for exemption from any provisions of s 5. Similarly, s 8C(2)(a) of that act prevents the Chief Commissioner of Police from granting approval for a prohibited person to do anything otherwise prohibited under s 5.

17 The elements of the offence under s 5 of the Control of Weapons Act are different from those of the offence under s 5(1A) of the Firearms Act which prohibited possession of unregistered firearms by a member of the particular class of 'prohibited persons' as defined in s 3(1). The Control of Weapons Act targets possession of prohibited weapons, which include imitation firearms, by persons who do not have the necessary exemption or approval. Even though prohibited persons (as defined under the Firearms Act) cannot obtain the exemption or approval which would allow them to possess a prohibited weapon, it is not an element of the Control of Weapons Act offence that the offender be a prohibited person.

18 It is common ground that, despite the creation of the new offence, s 114(2) of the Sentencing Act 1991 was not applicable to the appellant's offence, given that the penalty had been imposed before the amendments commenced and for other reasons.

19 Nevertheless, the appellant relies on the principle recognised by the New South Wales Court of Criminal Appeal in R v Ronen[2] and said to have been accepted by this Court in R v Bowen.[3]

20 In Ronen, the applicants were convicted of conspiracy to defraud the Commonwealth of taxation revenue. Before they were sentenced, the Crimes Act 1914 (Cth) provision creating their offence was repealed and the offence was replaced by a series of offences under the Criminal Code (Cth) under which the maximum penalty was half that under the repealed provision.

21 It was held that, although the reduced penalty for the fresh offences did not apply, the sentencing judge had been entitled to take into account the change in legislative policy as a matter which was not totally irrelevant. Howie J (with whom Spigelman CJ and Kirby J agreed) stated:

The Judge in the present case, as a matter of fairness and justice, took into account the change in attitude of the Parliament to the seriousness of the type of offences committed by the applicants when determining the appropriate sentences to impose upon them.[4]

22 Indeed, the Explanatory Memorandum for the amending bill under consideration in Ronen stated that the penalties under the repealed provisions were excessive, taking into account the criminality involved.[5] Howie J thought it impossible for the sentencing court to ignore such an indication of the Parliament's change of mind about the seriousness of the conduct in question.[6]

23 In Bowen, the sentencing judge had erred in treating the appellant as a serious sexual offender and the sentencing discretion had been re-opened.

24 When the appellant committed certain offences under s 69(4) of the Crimes Act 1958, he was liable to imprisonment for a maximum period of three years. The provision was repealed and a fresh offence with a maximum penalty of two years had been created before his sentence. This did not change the maximum penalty applicable to his offence.

25 The respondent points out that the Court in Bowen only addressed an argument as to the applicability of the principle in Ronen in obiter dicta. It declined to express a final view as to the circumstances or extent to which the principle should be applied.[7] Vincent JA observed that whether a reduced penalty regime would be regarded as governing the situation could depend upon factors such as changed circumstances, which might not bear on previous conduct but could result in a different view of the seriousness of the offending conduct.[8]

26 Vincent JA considered that the principle would be apposite to the situation in which the provision creating the offence for which the sentence was to be imposed had been repealed and a fresh offence with the same elements had been created with a lower penalty and s 114(2) of the Sentencing Act 1991 had no application.[9]

27 The respondent also relies upon the absence in this case of any Parliamentary pronouncement that the penalty for the s 5(1A) Firearms Act offence was too high or any reference to prohibited persons. The respondent cites the second reading speech and submits that the amendment was made for the different purpose of introducing a national scheme, rather than lowering the penalty for the existing offence. Mr Cameron, the Minister for Police and Emergency Services, stated in the second reading speech that the amendments were to implement a national agreement to regulate imitation firearms. The change would maintain 'adequate controls' over their display, use and storage whilst removing their regulation from the Firearms Act.[10]

28 The respondent seeks to distinguish Ronen on the additional basis that the amending act did not commence before the sentence, eliminating unfairness to the appellant by the failure to have regard to the lower maximum sentence for the substituted offence.

29 The respondent maintains that, whilst the sentencing judge could have taken the change into account, he was not obliged to do so, citing the New South Wales Court of Criminal Appeal's 2009 decision in Grenfell v R[11] in which Ronen was considered. There, as in this case, there had been the repeal of the offence for which the appellant was sentenced and the creation of a different offence which also covered the offending conduct and provided for a lesser penalty. Campbell JA and Harrison J held that this did not amount to a reduction in penalty for the repealed offence as the legislation had not said so and 'the implication that it did so was not strong'.[12] The sentencing judge had been entitled to take the change into account but had not been obliged to do so.[13]

30 The appellant replies that none of the matters raised bar the application of the principle in Ronen. He notes similarities between issues considered in Bowen and those before the Court and, in particular, the absence of any Parliamentary reflection on the existing penalty under the relevant legislation in that case.

31 The appellant argues that unfairness arises in the circumstances of this case in which there was a much longer period between the offending conduct in about April 2008 and the sentence on 18 March 2011 than there was between the sentence and the commencement of the new regime on 1 July 2011. He disputes the proposition that there is increased unfairness when the relevant provisions have commenced by the date of the sentence.

32 Whilst the elements of the two offences do differ and the amending act had not commenced by the date of sentencing, the change in penalty for offending behaviour of the type which attracted the higher penalty under the repealed provision might be taken as an indication of a change of the legislature's attitude towards the seriousness of the offence committed by the appellant and might be relevant to the exercise of the sentencing discretion. The issue of the applicability of the principle in Ronen was only the subject of obiter dicta in Bowen.

33 In my view, the significance of the change, if it were to be relevant, would be limited, in any event, given the differences between the elements of the more general offence and the repealed provision which had targeted possession of imitation firearms by prohibited persons.

34 It is not necessary, however, to decide whether or not the sentencing judge erred in the circumstances of this case by failing to have regard to the effect of the amending act, because the appellant has not satisfied me that a different sentence should be imposed in all the circumstances to which I will now refer.[14]

Circumstances of the offence and personal circumstances

35 The maximum penalty for the s 5(1A) offence was 15 years' imprisonment. This was a serious offence committed in the context of drug trafficking activities for which the appellant was also sentenced.

36 He conducted the business of trafficking in methylamphetamines between December 2007 and May 2008. He manufactured the drug in a clandestine laboratory. He also sold materials used for manufacture. Even after his arrest on 8 April 2008, the appellant continued to trade in chemicals and to offer methylamphetamines for sale.

37 It was when the appellant was arrested in relation to those offences that police found the imitation pistol beside or under the front seat of his car. He falsely told them that it was a child's toy, but telephone intercept evidence discloses that he proposed to use the imitation firearm to threaten and intimidate a person who had threatened an associate. He said that he would tell the man concerned that he would shoot him if he ever acted that way again.

38 The appellant was said to be 43 years' old at the date of his sentence. He is of Turkish origin and came to Australia at the age of three. He was educated to year 12 level. He had conflict with a strict father and left home at 16½. He worked in an engineering company before spending time in prison in 1986 for conspiracy to murder. He returned to Turkey after release and completed 18 months of national service. He lived in Sydney and Canberra before coming back to Melbourne and starting work as a bricklayer.

39 The appellant was married in 1986 and has three children from that 15 year marriage. He then had a relationship with a 20 year old woman with drug habit. He too developed one during their involvement. Two children now aged eight and nine were born of that relationship which ended in 2007. When sentenced, the appellant had been involved in a third relationship of more than three years' duration.

40 The appellant started using amphetamines in 2007 and he had experimented with cannabis. He was using methylamphetamines at the time of the current offences and claimed to have trafficked in the drug to cater for his own addiction

41 He admitted 11 prior offences from six court appearances. At the age of 18, he had been sentenced to imprisonment for three years with an 18 month non-parole period for conspiracy to murder. In 1987, he was convicted and fined for various minor street offences. In 1994, he was sentenced without conviction for theft and later convicted of handling stolen goods and fined. In January 2005, he received the sentence which resulted in his classification as a 'prohibited person' under s 3(1) of the Firearms Act. That sentence of six months' imprisonment suspended for two years was imposed for the offences of recklessly causing serious injury, possession of a controlled weapon, theft and being on premises without lawful excuse.

42 The appellant had a relevant subsequent offence. He re-offended after his arrest and whilst on bail in relation to the current offences. He was convicted and was sentenced in the County Court to 25 months' imprisonment, with all but 407 days of the sentence suspended, in respect of three counts of trafficking in a drug of dependence, being methylamphetamine, hydroxybutanoic acid and ecstasy (MDMA).

43 The appellant was assessed by Warren Simmons, a Drug Clinician and Consulting Psychologist, on 19 May 2010 for the purposes of the plea. Mr Simmons recorded his personal circumstances and noted his heavy drinking in teenage years before and after his imprisonment for attempted murder. He noted his amphetamine use at the time of his troubles with his second partner.

44 Mr Simmons concluded that there was little to suggest that the appellant had significant anti-social personality traits and that he did not demonstrate a significant depressive disorder. He was showing symptoms of depression reactive to his impending court case. Should he avoid drugs and alcohol, Mr Simmons said, the likelihood of further offending appeared minimal.

45 The appellant pleaded guilty to the firearms offence only on the day his trial was to commence. He had initially lied to police that the imitation firearm was a child's toy.

46 The appellant re-offended whilst on bail for the offences which are the subject of this appeal.

47 The appellant submits that the sentence imposed by the sentencing judge was excessive in all the circumstances and, in particular, if the Court were to have regard to the legislature's change in attitude to the seriousness of the type of offence he committed.

48 Whilst conceding that the firearm closely resembled a real firearm, he also submits that the fact that it was a toy must substantially reduce the seriousness of the offence in comparison with those involving real firearms.[15]

49 The appellant relies upon the absence of any prior conviction for firearms offences in his history as well as the fact that he was not alleged to have used the imitation firearm. He notes too that he was a 'prohibited person' by virtue of a wholly suspended sentence. He cites his guilty plea.

50 The respondent defends the sentence, pointing out the resemblance between the imitation firearm and a Beretta self-loading pistol and the conversations in which the appellant indicated its envisaged use.

51 Each party refers to sentences in what are submitted to be comparable cases.

52 This was a serious example of the offence by a man whose criminal history, as the sentencing judge noted, indicated little respect for the law.

53 The appellant's past offending had resulted in his characterisation as a prohibited person under the Firearms Act and that is a significant distinction between him and another offender not so categorised, even if he had received a wholly suspended sentence. His subsequent re-offending whilst on bail does raise an issue for me relating to his prospects of rehabilitation, despite Mr Simmons' opinion in that regard.

54 It is also significant that the imitation handgun in the appellant's possession was not a toy accidentally left in a vehicle. Rather, it closely resembled a real self-loading pistol and the appellant had discussed its use to threaten and intimidate a third party.

55 Even taking into account what may be described as the legislative attitude demonstrated by the much lower maximum penalty now applicable to such offending behaviour and the impending commencement of the amending act, I consider the sentence imposed by the sentencing judge and the order for cumulation to have been the appropriate penalty.

57 I agree. The order of the Court is that the appeal is dismissed.

[1] [2011] VSCA 45; (2011) 206 A Crim R 519, [11], (Redlich JA (Buchanan and Mandie JJA agreeing)).

[2] (2006) 161 A Crim R 300; [2006] NSWCCA 123.

[3] [2008] VSCA 33.

[4] [2006] NSWCCA 123; 161 A Crim R 300, 305, [41].

[7] [2008] VSCA 33, [12] (Vincent JA (Buchanan JA and Kellam AJA agreeing)).

[10] Victoria, Parliamentary Debates, House of Assembly, 24 June 2010, 2621 (Bob Cameron).

[11] [2009] NSWCCA 162; (2009) 196 A Crim R 145.

[14] See s 281(1) of the Criminal Procedure Act 2009.

[15] Citing the penalty in DPP v Faure [2005] VSCA 91.