R v Graham [2007] VSCA 252

Court of Appeal (Vic)|2007-11-13|Before: VINCENT, REDLICH and KELLAM JJA

CRIMINAL LAW - Sentence - Possession of illegal firearm by prohibited person - s 5(1A) Firearms Act 1996 - Possession not in furtherance of any criminal purpose - Prior convictions of limited relevance - Sentence manifestly excessive.

**1 I will invite Redlich JA to deliver the first judgment.

2 On 4 May 2007, the appellant was sentenced to 18 months' imprisonment, with a non-parole period of nine months' imprisonment, on a count of being a prohibited person carrying an unregistered firearm. He was granted leave to appeal against that sentence on the sole ground that the sentence imposed was manifestly excessive.

3 The appellant was aged 40 at the time of this offence and admitted a number of prior convictions, including a conviction that on 3 July 2001 he took part in the manufacture of methylamphetamine, for which he was sentenced to a term of imprisonment of three years and ten months with a non-parole period of two years and three months. The appellant was, by reason of his prior convictions, a prohibited person in respect of the firearm as defined by s 3 of the Firearms Act 1996. The appellant's criminal record was otherwise of limited relevance, the sentencing judge noting in his remarks that the appellant had no prior convictions for violence involving the use of a weapon.

4 The appellant had acquired the gun, a .22 short-calibre Walther model SOSP self-loading target pistol, in about 2003. He had previously been the holder of a shooter's licence, which had been cancelled when he was sentenced to the term of imprisonment to which I have referred. Since he had acquired the gun, he had kept it in an unloaded condition in a locked safe under the matrimonial bed. The key to the safe was kept in the bedroom.

5 The sentencing judge accepted the appellant's explanation given to investigating police that he had retained the gun and kept it in the safe for peace of mind and to protect the family. It appears that in August 2006, as a consequence of unhappy differences between the appellant and his wife, the gun was taken from the locked safe by the appellant's wife and was handed to her father, who in turn handed it to officers of the Victoria Police. The appellant's wife gave evidence on the plea and informed the court that she had taken the gun from the safe and handed it to her father because she was in an emotional, jealous rage.

6 It is clear from these facts that the count correctly expressed should have alleged 'possession' of the firearm rather than 'carried'. The respondent does not oppose an amendment to the presentment to reflect the true position so long as the amendment does not carry the consequence of a re-opening of the sentencing discretion.[1] The appellant does not contend otherwise. I would amend the presentment on that basis.

7 The appellant, who reconciled with his wife some time before the plea, has five dependent children, the youngest of which is three. The appellant is a qualified diesel mechanic and truck driver and, as the sentencing judge noted in his remarks, has a very good work history. His present employer, who testified on the plea, spoke well of him. The appellant's wife and his eldest daughter both provided evidence on the plea, which appears undoubtedly correct, that the family would suffer from significant financial hardship if the appellant were to be imprisoned. His Honour also took into account the appellant's early plea of guilty.

8 In support of the claim that the sentence was manifestly excessive, counsel for the appellant directed attention to the cases considered by this Court involving a breach of s 5(1A) of the Firearms Act 1996, to establish that the sentence imposed was beyond the range reasonably open to the sentencing judge.[2] The cases relied upon are those decided since the Act was amended in 2003 to increase the maximum terms of imprisonment for possession of a registered firearm (s 5(1)) and possession of an unregistered firearm by a prohibited person (s 5(1A)) - in the latter case the increase being to 15 years' imprisonment.

9 The reasons for the increase in the maximum sentence were discussed in DPP v Faure.[3] Counsel for the appellant submitted that too much emphasis has been placed upon the sentence imposed in Faure, with the consequence that on some occasions, such as the present, insufficient weight is attached to the offender's personal circumstances.

10 Counsel for the respondent accepts that the appellant has identified all of the cases decided since this Court's decision in Faure and has accurately summarised the circumstances of each of those cases and the sentences imposed. Counsel for the appellant correctly submitted that in all of these cases - save for DJ, which was a case which involved a toy gun left by a stepson in the offender's car and where a sentence of two months' imprisonment was imposed - the firearms were either an integral part of other offending or had a part to play in an ongoing criminal activity. Even then, the sentence imposed in two thirds of those cases was 12 months' imprisonment, in two cases 18 months' imprisonment and in one, three years' imprisonment. In the last of these Smith, the offender, was carrying a pistol in preparation for the sale of a quantity of amphetamines, the offender having prior convictions for both murder and firearm offences.

11 Counsel for the respondent attempted to demonstrate that from amongst those cases cited by the appellant, arguably the most similar to the present case was McMahon,[4] it being one of the two cases in which an 18-month term of imprisonment had been imposed. In McMahon, the appellant had significant prior convictions for possession and use of a regulated weapon, the possession of ammunition, burglary and assaulting police. The relevant firearm was a Smith & Wesson 9 mm semi-automatic handgun which was found to be loaded with six rounds of ammunition in the magazine and one in the chamber. The appellant was also found to be in possession of a drug of dependence at that time. These offences were committed whilst the appellant had twice been granted bail in relation to a number of separate charges that were yet to be heard. The appellant when interviewed had proffered no explanation for the possession of the weapon.

12 In my view, the circumstances of that case are quite different from the present. But McMahon does serve to demonstrate the point made by counsel for the appellant that sentences of this order have generally been reserved for cases where possession of the firearm was found to be associated with some ongoing criminal activity or that inference remained open.[5]

13 Counsel for the respondent also relied on the very recent decision of this Court in R v Shannon,[6] in which the appellant had been sentenced to 18 months for possession of an unregistered firearm as a prohibited person. In substance it was argued that, as there was little distinction between that case and the present, it could not be said that a sentence of 18 months' imprisonment was outside the range for this category of offending. I do not agree. In Shannon, although there was no finding that the appellant's possession of the firearm was in furtherance of any criminal design, it was associated with other offending, and the appellant's personal circumstances were quite dissimilar to those of the appellant in the present case. There, the appellant also pleaded guilty to possession of two other prohibited weapons, a sword and a canister of mace, claiming that he had possession of all of these weapons for his protection and to fend off attackers. In that case the appellant had a terrible criminal record. He had some 90 prior convictions and had been in custody for approximately 17 of his last 20 years, which the court considered was relevant to the sentence which should be imposed. Not surprisingly, the appellant in that case had a poor work history. He had an emotionally disturbed personality and was diagnosed as suffering from an Attention Deficit Hyperactivity Disorder, bipolar disorder and substance abuse disorder. His conduct could only be appropriately controlled if he took prescribed medication. At the time of sentence for these offences, he was also completing a twelve-month sentence for other offences which had also been committed whilst he was in an unmedicated state.

14 Here, having regard to the nature and date of the appellant's prior convictions, the appellant falls to be assessed on the basis of his present conduct. As Buchanan JA observed in R v DJ,[7]**

The appellant's history of prior offending could not itself warrant the terms of imprisonment which he received. The previous criminal history of an offender may be taken into account in determining a sentence, but it cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence.

**15 The appellant had not been involved in any ongoing criminal activity for some years. He had a history of a prior legal use of firearms for sporting purposes. Beyond the fact that the appellant's prior criminality made him a prohibited person, his criminal history did not aggravate the commission of this offence. The possession of the firearm was not for the furtherance of any criminal design.

16 As the firearm had not been found by police in his possession nor at his premises, the appellant's admission that he was the owner of and in possession of the firearm was critical to the prosecution's proof of the offence. Thus it was submitted that his admission to police and his subsequent plea had a very significant value.

17 Counsel for the respondent argued that the fact that the appellant had, by his admission, retained the firearm over a lengthy period of time prior to the date charged, gave context to his offending and showed that it was not a momentary lapse or a fleeting aberration. I do not think that the length of time the appellant had possession of the firearm should be treated as an adverse factor. In the present case it was not an aggravating circumstances, but, on the contrary, it reinforced the appellant's claim that the possession was not linked to any criminal design.**

**18 For these reasons, I have concluded that the appeal should be allowed. The offence is an inherently serious one which, as Vincent JA observed during argument, is designed to deter those with particular prior convictions from possessing or carrying an illegal firearm. Its commission does not mean that a sentence of the order fixed by the learned sentencing judge, must always be imposed, no matter how extenuating the circumstances. The sentencing judge retains the discretion to impose a much lower sentence if the circumstances require it. That is not to say that the sentence which was imposed will necessarily be inappropriate where a prohibited person has possession of an unregistered firearm in circumstances unrelated to any criminal design. An offender's criminal history or other personal circumstances may require it. Shannon is a case in point. But the present circumstances are an example of offending at the very low end of seriousness of this type of offending, which did not, in my view, warrant a sentence of that order. I would therefore propose that the appellant be sentenced to seven months' imprisonment.

21 It is directed that the presentment be amended by the deletion of the word 'carried' and the substitution of the word 'possessed' in the count.

22 The appeal against sentence is allowed. The sentence imposed in the Court below is quashed and in lieu thereof the appellant is sentenced to imprisonment for a period of seven months.

23 It is declared that the period of 194 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.**

24 The Court otherwise confirms the forfeiture order made on 4 May 2007 pursuant to s 151 of the Firearms Act 1996.

[1] See R v DD [2002] VSCA 112; [2002] 5 VR 243, esp 52-54, and R v Marais and ors [2005] VSCA 202, [46]-[52].

[2] Counsel referred to R v Hall [2007] VSCA 218; R v Barca [2007] VSCA 167; R v DJ [2007] VSCA 148; R v Quinn [2006] VSCA 141; R v Novakovic [2007] VSCA 145; R v Latina [2007] VSCA 78; R v Gibson [2007] VSCA 258; R v McMahon [2006] VSCA 240; R v Bui [2006] VSCA 96; R v Smith [2006] VSCA 23.

[3] [2005] VSCA 91; (2005) 12 VR 115, [7]-[8] (Williams AJA).

[5] An offender's prior convictions may have that effect.

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