Quarrell v White [2004] TASSC 45

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, distinguished.

R v Causby [1984] Tas R 54; Travers v Wakeham [1991] FCA 109; (1991) 54 A Crim R 205, referred to.

Judgment ID Number: [2004] TASSC 45

DION WILLIAM QUARRELL v SERGEANT GRAHAM ROSS WHITE

1 The applicant seeks to review that part of a magistrate's order made on 22 December 2003 that sentenced him to imprisonment for four months, on grounds that it was manifestly excessive and that the learned magistrate erred by taking into account as an aggravating factor the injury caused to the victim of a shooting.

2 He pleaded guilty to and was convicted of seven offences on complaint 30343/03, namely:

Count 1 - On 2 November 2002 at Launceston he possessed two .22 calibre bullets when he was not the holder of a licence for a firearm that took that ammunition, contrary to the Firearms Act 1996, s105(3)(a).

Count 2 - On 2 November 2002 at Launceston he possessed a shortened .22 calibre rifle when he was not the holder of a firearm's licence in respect of it, contrary to the Firearms Act, s9(1).

Count 3 - On 2 November 2002 at Launceston he possessed that rifle when it was an unregistered firearm, contrary to the Firearms Act, s74(1).

Count 4 - On 2 November 2002 at Launceston he possessed that rifle when it had been shortened to a length less than 65 centimetres, contrary to the Firearms Act, s116(b).

Count 6 - On 2 November 2002 at Ben Lomond he handled the rifle when he was under the influence of alcohol, contrary to the Firearms Act, s120(1).

Count 8 - On 2 November 2002 at Launceston he possessed a controlled plant product, cannabis, contrary to the Misuse of Drugs Act 2001, s25.

Count 9 - On 2 November 2002 at Launceston he used a controlled plant product, cannabis, contrary to the Misuse of Drugs Act, s25.

3 The learned magistrate's comments on passing sentence were brief:

"I take those factors into account and in relation to the complaint as a whole and having regard to your previous drug convictions and the fact that you were in possession of cannabis amounting to something just under 40 grams, and having regard to the matters advanced by your counsel and to those matters I've mentioned in the course of that submission, you are convicted and sentenced to a term of 4 months' imprisonment cumulative to the term you are currently serving. Further, you are disqualified from holding a firearms licence, that to be for 10 years following upon your release, and I order the destruction of the illicit items seized."

4 I will refer in due course to matters advanced by the applicant's counsel and matters to which the learned magistrate may have been referring.

5 The prosecutor stated the following facts to the learned magistrate:

"Yes this occurred on the 2nd November 2002. The defendant, Dion Quarrell, was taken into custody in relation to a firearm incident at Ben Lomond. As a result of being taken into custody his vehicle was searched, that being a Gemini. During the search a firearm was located in the boot, that firearm being a .22 calibre weapon. He was interviewed in respect to that and stated that it was originally a .22 rifle and had been shortened by himself. As a result of those modifications he made the firearm was now classified as a pistol. The defendant is not the holder of a current firearm's licence, and the firearm itself was not registered. Further, two .22 bullets were located in a bag behind the driver's seat. The defendant made admissions that these were his and that he did not have a licence to possess them. He made admissions that when the firearm was in the vehicle he'd removed the firearm from the boot, and that it was already loaded. He was showing his girlfriend the firearm. He stated that he just pulled the lever on that firearm back, but did not lock, and as a result the weapon then discharged. Also during the search a bag of cannabis was located, also in the boot of the vehicle. It weighed 39 grams. A smaller amount was located in a bag on the back seat too. That was .4 of a gram. The defendant acknowledged ownership of these items. He stated that he had smoked cannabis in the form of a joint that day. ... They are the facts and there are some prior matters, sir. The prosecution is seeking forfeiture and destruction of all drugs and firearms, sir."

6 In answer to a question from the magistrate that related to the allegation made by count 6, the prosecutor indicated that it was that the applicant had handled the firearm when under the influence of cannabis and not when under the influence of alcohol. The prosecutor did not utter another word in the course of the hearing.

7 Once the prosecutor had concluded stating the facts, all that had been explained about the incident at Ben Lomond, to which only count 6 related because the other counts charged offences committed at Launceston, was that the applicant had stated that he had removed the loaded rifle from the boot of his vehicle, showed it to his girlfriend, pulled a lever on the firearm back, did not lock, and as a result the firearm discharged. The learned magistrate could infer that at that time the applicant was under the influence of cannabis.

8 The prosecutor did not seek to have the learned magistrate take into account the consequences of the discharge of the rifle, nor did he state them, no doubt because at the time the applicant had already been convicted and sentenced in the criminal court for his conduct in bringing about those consequences. I will explain this by referring to information provided to me about the matter by counsel, some but not all of which was provided to the learned magistrate and none of which came from the prosecutor. As a result of the discharge of the rifle, a woman referred to as the applicant's girlfriend was shot in the neck and rendered a quadriplegic. As a consequence of what happened at Ben Lomond, the applicant was tried in a criminal court on an indictment charging him on a first count with committing an unlawful act intended to cause bodily harm, contrary to the Criminal Code, s170, and alternatively, on a second count, with causing grievous bodily harm by culpable negligence in his use and management of the rifle, contrary to s172. The jury found him not guilty of the first count but guilty of the second count. The presiding judge sentenced him to two years' imprisonment commencing on 5 December 2002, with a non-parole period of 18 months. The learned judge took into account that on the day of the shooting the applicant had smoked cannabis and consumed alcohol to the extent that he had an alcohol content of about .12 per cent per 100 millilitres of blood.

9 Notwithstanding that the prosecutor did not seek to raise the dire consequences of the Ben Lomond incident, the learned magistrate did so. As counsel for the applicant was about to address in mitigation of sentence, his Worship said: "Well I cannot pretend I am not aware of the incident that was referred to. He shot his partner didn't he?" Counsel was forced to say something about the matter. He said:

"It was an incident at Ben Lomond in November of last year. Mr Quarrell was charged with intentional wounding under the Criminal Code as an alternative an accidental wounding. That matter proceeded to trial, or culpable negligent wounding. At the completion of the trial Mr Quarrell was found not guilty of intentionally wounding the victim but guilty of culpable negligence amounting to the wounding or causing the wounding. His Honour, Mr Justice Evans, sentenced Mr Quarrell on the 24th September in respects to that charge. Mr Quarrell was sentenced to two years' imprisonment which was backdated to the 5th December 2002. His Honour set a non-parole period of 18 months. This means that Mr Quarrell's earliest release day or the first date that he is eligible to apply for parole is the 5th June 2004. It's my submission that the matters before you today are clearly linked to those matters that were dealt with by his Honour when sentencing Mr Quarrell on the 24th September. The culpable negligence arose out of the misuse of the firearm ... this particular firearm. The fact that Mr Quarrell being affected by drugs was a factor that was taken into account."

MR HUGHES: This particular firearm. The fact that Mr Quarrell being affected by drugs was a factor that was taken into account.

MR HUGHES: No it was seen as an aggravating factor in as far as the negligence is concerned.

MR HUGHES: It was aggravating as far as his Honour was concerned. It's my submission that your Worship can properly take into account the sentence already imposed by the Supreme Court and I seek you can take that into account when you are imposing sentence today."

11 The fact that the victim had been rendered a quadriplegic was not mentioned. However, at one point counsel for the applicant stated that the applicant was in a stable relationship with the victim, that she had accepted the jury's verdict that the shooting was accidental, that they were working through their relationship together, that they still had regular contact despite the incident, that it was their intention to reconcile and eventually find their own home upon the applicant's release from prison, that the applicant intended to provide support to her upon his release and that although he would not be her main carer and she would require nursing assistance, it was his intention to some extent atone for what occurred by providing her with practical and daily care.

12 The learned magistrate maintained his interest in the consequences of the Ben Lomond incident. The following exchange occurred:

"HIS WORSHIP: Well I can't ignore the fact that this was associated with the discharge of the weapon which wounded his partner, can I. I can't ignore that.

HIS WORSHIP: It's a circumstance that I should take into account.

MR HUGHES: It's a circumstance which shows that the sentence that was imposed by the Supreme Court ought be taken into account in sentencing in this occasion in my submission because they are intrinsically linked and they might well have been dealt with by the Supreme Court if they were capable of being dealt with. But I would seek that you yes approach that in that way."

13 Later, in the course of his submissions, counsel explained that the applicant had shortened the firearm so that he could carry it in a backpack when he was hunting wallabies. He also explained that at the criminal trial there was evidence that the rifle was prone to misfire through wear and tear, it being over 60 years old. There was then the following exchange immediately before the learned magistrate commenced his comments on passing sentence:

"HIS WORSHIP: So it was an old unstable firearm in the hands of a person under the influence of drugs.

MR HUGHES: Yes and Mr Quarrell was sentenced for that act or that negligence. The-

HIS WORSHIP: And he's a person who's had the benefit of training by experience in the handling of weapons having grown up in the country and that experience seems to have gone by the board.

MR HUGHES: Yes, and his Honour noted these matters and Mr Quarrell has been sentenced for that culpable negligence by receiving a significant penalty of 2 years' imprisonment. I seek that you take those matters into account. His cannabis usage is for personal use. There's no suggestion in his prior matters of it being for any other purpose. The Courts imposed fines in the past. '96 and '97 he was for possession of cannabis only. And then in '98 it was for possession and use. The Court imposed not substantial penalties on those occasions. I would seek that you take those matters into account."

14 One ground of the motion to review is that the learned magistrate erred by taking into account as an aggravating factor when sentencing, the injury caused to the victim of the shooting. Counsel for the applicant pointed to the passage in the brief comments on passing sentence when the learned magistrate said that he had "regard to the matters advanced by your counsel and to those matters I've mentioned in the course of that submission". It was submitted that it was clear that the learned magistrate was saying that he took into account the wounding of the shooting victim as an aggravating factor and that by doing so his Worship breached the principles of R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

15 I understood counsel for the applicant to submit that the authority of De Simoni is that where an indictment, or other document charging an offence, does not refer to particular circumstances of aggravation, the sentencing officer may not have regard to those circumstances if they would render the defendant liable to a greater punishment. However, that is an inaccurate statement of what was held by the majority in that case. The circumstances of it were that the accused was indicted under the Western Australian Criminal Code, s391, for robbery. Section 393 prescribed the maximum punishment for robbery to be 14 years' imprisonment, but if (inter alia) at or immediately before or immediately after the time of the robbery the offender wounded any person, the maximum punishment was life imprisonment. The majority of the High Court held that because the indictment did not refer in that case to that particular circumstance of aggravation, it could not be taken into account. No similar legislative circumstance arose here and accordingly, De Simoni cannot avail the applicant.

16 The De Simoni principle is based on and arises out of a more fundamental common law principle, that circumstances of aggravation not alleged in the indictment or other document containing the charge, must not be taken into account if those circumstances could have been made the subject of another offence that was not charged. An example of the application of the common law principle is to be found in Lovegrove v R [1961] Tas SR 106. It acknowledges the general principle that the sentence imposed on an offender may take account of all the circumstances of the offence, including victim impact and the like, provided that no-one should be punished for an offence of which he has not been found guilty and is not before the court for sentence.

17 If the learned magistrate had taken into account as an aggravating factor with regard to count 6, that the woman was shot when the applicant handled the rifle at Ben Lomond when he was under the influence of a drug, the principles to which I have referred, including the one determined in De Simoni, would not have been breached for it would not have meant that the applicant was being sentenced for an offence for which he was not before the court and the aggravating factor was not one that needed to be stated in the particulars to count 6.

18 As a general rule and subject to the principles involved in De Simoni, a court which is imposing sentence is entitled to take into account all the surrounding circumstances of the offence. In some cases it may even be permissible to do so notwithstanding that they might have been the subject of a distinct charge. R v Causby [1984] Tas R 54 at 58; Walsh v R [1996] TASSC 59; (1996) 6 Tas R 70 at 76, 88, 89 and 95; R v Teremoana (1990) 54 SASR 30 at 38. Professor Warner, in her Sentencing in Tasmania, 2nd ed, at 44 - 46, pointed to the difficulties that the De Simoni principles can create.

19 Counsel for the respondent correctly submitted that consistent with what was said in R v Causby (supra) at 58, when considering the sentence appropriate for count 6 the learned magistrate was entitled to "take into account" the fact that a consequence of the handling of the rifle by the applicant while under the influence of drugs was that a person was shot, not as an aggravating factor but merely for the purpose of having regard to the context surrounding the commission of the offence.

20 It is not surprising that the prosecutor did not seek to raise what happened to the shooting victim as a material factor with regard to counts 1 to 4 because those offences, charged as having taken place at Launceston, occurred at a different time and place from those of the shooting at Ben Lomond. The injuries to the victim could in no sense be regarded as a consequence of the commission of those offences. In the case of count 6, a different consideration arose, for it could have been argued that the victim's injuries were caused by the applicant's handling of the rifle while under the influence of cannabis (as well as alcohol). However, as he had been sentenced to two years' imprisonment arising out of his culpably negligent handling of the firearm, and it appears from the comments on passing sentence of the sentencing judge that the fact that he had smoked cannabis and consumed alcohol was taken into account when determining the sentence, it would not have been appropriate for the learned magistrate to punish the applicant again upon a basis that because he was effected by cannabis the woman was shot. Required was an "avoidance of curial imposition of a sentence in punishment of conduct which had previously been the subject of curial imposition of a sentence in punishment". Travers v Wakeham [1991] FCA 109; (1991) 54 A Crim R 205 at 211. The concession by counsel for the respondent that the grievous consequences of the offence could not be regarded by the learned magistrate as aggravating so as to increase the sentence was warranted. It would have been unjust if the sentence had been increased on that basis, because the sentence imposed in the criminal court took into account that a person had suffered grievous injuries as a result of the applicant taking drugs.

21 With respect to the learned magistrate, he failed to explain and should have explained what he meant by some of his brief comments when sentencing. I think that it may reasonably be inferred that when his Worship opened with the words "I take those factors into account" he was responding, at least in part and perhaps wholly, but I cannot be certain, to the submission upon which the applicant's counsel had just closed his plea in mitigation, that there was no suggestion in the applicant's record that his involvement with cannabis had been for a purpose other than for personal use. The applicant had been fined $200 in 1997 and again in 1998 for possession of a prohibited substance and in 1999 he was fined $200 for use and possession of a prohibited substance. That submission of counsel was relevant to counts 8 and 9. However, it is impossible to understand what his Worship meant when he said "and having regard to the matters advanced by your counsel and to those matters I've mentioned in the course of that submission, you are convicted and sentenced to a term of four months' imprisonment cumulative to the term you are currently serving". It is conceivable that his Worship had regard to the consequences of the shooting as relevant to all counts and not just to count 6, which would have amounted to an error, but I cannot tell. It is possible that his Worship had regard to them and increased the punishment as a result, but once again I cannot tell. Just what "having regard to" the mentioned matters meant cannot be understood, nor can it be ascertained whether his Worship accepted or rejected counsel's submissions concerning the consequences of the shooting and the sentence of the criminal court. I conclude that I am unable to determine that the specific error complained of by the applicant in fact occurred.

22 I next deal with the ground that the sentence was manifestly excessive. I will state some of what was submitted by the applicant's counsel by way of mitigation, without repeating what I have already mentioned. Counsel said that the applicant was 29 years of age. He was described as single but in a stable relationship with the victim of the shooting. However, his immediate intention was to live with his parents. He had been employed in the farming industry and had worked for 12 months with Blue Ribbon, until made redundant, and since then had been seeking employment. He intended to seek employment on release from prison. His use of firearms had commenced at a very early age and he had "extensive experience" with them.

23 The applicant had a long record for a variety of offences commencing with dishonesty in 1988, when he was 14 years old. From then until 1993, when he was 19, he committed 10 offences of dishonesty, and on his last appearance was sentenced to a short, partly suspended term of imprisonment. In 1992, 1993 (two charges) and 1995 he was convicted of injuring or damaging property. He was convicted of assaults committed in 1991 and 1995 (four charges), on the last occasion being sentenced to 12 months' imprisonment. He had also committed a variety of other offences over the years since 1998. However, since 1996 his offences were limited to the possession or use of prohibited substances, referred to earlier in these reasons, an offence under the Road Safety (Alcohol and Drugs) Act 1970 and miscellaneous traffic offences.

24 The sentence of four months' imprisonment was made cumulative to the sentence of two years' imprisonment imposed in the criminal court on 24 September 2003. A non-parole period of 18 months was ordered with respect to the earlier sentence, but the learned magistrate made no mention of parole in his comments or in his orders. As a consequence, the applicant will have no entitlement to parole with respect to the sentence imposed by his Worship and he will need to serve 22 months in prison before becoming eligible for parole pursuant to the criminal court's sentence, by reason of the Sentencing Act 1997, s17(3A), and the Corrections Act 1997, s71(2).

25 The maximum penalties prescribed for the applicant's offences were for count 1, a fine of $5,000, and for each of counts 2, 3, 4, 6, 8 and 9, a fine of $5,000 or imprisonment for two years, or both. By virtue of the Sentencing Act, s11, the learned magistrate had the power to impose one sentence for all of the seven offences for which the applicant was being sentenced, provided that the penalty did not exceed the sum of the maximum penalties that could otherwise have been imposed for those offences. That meant that the total maximum penalty that was prescribed was $35,000 or 12 years' imprisonment, or both. Clearly the sentence of four months' imprisonment was well below the prescribed maximum. However, I note that the learned magistrate was obliged to have regard to elements of duplication in the charges and to reduce the level of the sentence as a consequence. For example, the applicant could not have used cannabis, as charged in count 9, without being in possession of it, which was charged in count 8.

26 Counsel for the applicant sought to emphasise that he had no prior record for offences against firearms legislation. That was correct. Nevertheless, his record generally could not be ignored, including in particular his record for violence and dishonesty. The learned magistrate was justified in giving little weight to a plea of leniency by reason of there being no prior firearm offences in his record, because of the other offences he had committed. Possession of an unregistered firearm that had been unlawfully shortened by him, and for which he had no licence to possess, deserved fairly substantial punishment for a man with his record and having regard to the fact that he was being sentenced for drug offences, albeit not overly serious in themselves, for the fourth time in six years, I am not persuaded that the sentence of four months' imprisonment that was imposed was manifestly excessive. The learned magistrate had a discretion to exercise and I have concluded that I would not be warranted in interfering. In coming to this conclusion I have not taken account of a matter that was not mentioned to the learned magistrate but which was pressed upon me by counsel for the respondent, that is, that the four convictions for assault for which in 1995 the applicant was sentenced to 12 months' imprisonment, concerned the use of a shotgun. If I had allowed the motion to review in some way and resentencing had fallen to me, I would have had regard to that and the sentence would have been no less than that imposed by the learned magistrate.

27 For the reasons I have expressed the motion to review will be dismissed.