R v Rosenow [2007] VSCA 265

Court of Appeal (Vic)|2007-11-22|Before: ASHLEY and REDLICH JJA and CURTAIN AJA

Criminal law - Sentence - Possession, as a prohibited person, of unregistered firearms and a registered firearm - Dishonestly handling stolen goods - Charges arising from later events considered by sentencing judge as bearing upon prospect of rehabilitation - Specific error - Appellant re-sentenced to total effective sentence of 19 months' imprisonment with non-parole period of 10 months.

1 Joshua Rosenow appeals by leave against the sentence imposed upon him in the County Court at Ballarat on 4 May 2007, he having earlier pleaded guilty to the following offences, all of which were committed on 2 October 2006:

Count 1 - Possession, being a prohibited person, of an unregistered firearm[1]

Count 2 - Possession, being a prohibited person, of a (second) unregistered firearm

Count 3 - Possession, as a prohibited person, of a (third) - but registered - firearm[2]

Count 4 - Dishonestly handling stolen goods[3]

2 The sentences imposed were as follows: on count 1, 16 months' imprisonment, on each of counts 2 and 3, six months' imprisonment, and on count 4, nine months' imprisonment. The learned sentencing judge cumulated two months of the sentences imposed on counts 2 and 3 and four months of the sentence imposed on count 4 on the sentence imposed on count 1. The total effective sentence was thus 24 months' imprisonment. His Honour fixed a non-parole period of ten months. The appellant having been on remand, in respect of unrelated matters, in the period 25 October 2006 to date of sentence, the judge specified that he had reduced the sentence to be served by the number of days in that period, which he took to be 191 days. That was, his Honour said, compliance in the particular case with what had been said in R v Wade.[4]

**3 By his full statement of grounds, the appellant complained of five errors in the sentencing process. First, that the sentence was, in multiple respects, manifestly excessive. Second to fifth, that the learned sentencing judge had erred -

• In finding beyond reasonable doubt that the appellant had possession of 'the firearms' for an unlawful purpose.

• In finding that the appellant had little or no prospect of rehabilitation.

• In treating as relevant for sentencing purposes the fact that the appellant had subsequently been charged with further offences.

4 It is unnecessary at this point to mention the argument advanced in respect of the first four grounds. The Crown has rightly conceded that the learned judge did err in the way complained of by the fifth ground of appeal. When the appellant came up for sentence, there were outstanding against him charges laid in consequence of events which had occurred after he had been bailed in early October 2006 in respect of the instant offences. Those charges were to be contested. At time of sentence there had not even been a committal hearing. Although his Honour reminded himself at one point in his reasons for sentence that the later alleged offences must not be used by him as prior convictions or as subsequent matters that had been proved, he treated them as 'proper matters to take into account in assessing [the appellant's] prospects for rehabilitation'. To do so was contrary to principle. In the event, the sentencing discretion is re-opened.**

**5 The appellant was arrested on 2 October 2006 after a car chase. Later that day, while in custody, he told a policeman that there were items at his mother's house which would be of interest to the police. A search was made. The police found all the items that were the subject of counts 1 to 4.

6 It appears that the firearms the subject of counts 2 and 3 ( in each instance a .22 calibre rifle) and most but not all of the items the subject of count 4[5] were items that had been stolen in the course of a burglary on 2 October.[6] The appellant told the police that he had agreed to buy the items, knowing them to be stolen.

7 The ultimate provenance of the weapon the subject of count 1 - a sawn-off .22 calibre rifle - was not altogether clear. The appellant told the police, and his counsel informed the judge below, that it had been acquired from the man who had sold him the other weapons and stolen goods. But where that man had obtained it was undisclosed.

8 The balance of the stolen goods the subject of count 4 were apparently proceeds of a burglary that had taken place in August 2006 at another premises.

9 It remains to say that, by reason of the commission of prior offences, the appellant was a prohibited person for the purposes of the Firearms Act.[7] So much was not in dispute.**

**10 The appellant was aged 19 at the time of the instant offending. He had been born and raised in the Ballarat area. The sentencing judge below described his family history as 'dysfunctional' - his parents having separated when he was ten years of age, and having later formed new relationships.

11 The appellant's schooling had only been to year 9. He had been asked to leave school because of disruptive behaviour. His employment history thereafter had been very patchy. At one point he had commenced an apprenticeship as a plasterer with his father; but that had not continued. Nonetheless, he had worked sporadically in his father's business up until shortly before 2 October 2006.

12 From age 13 or 14 the appellant had fallen into abusing alcohol and to using both illicit and prescription drugs. He had used cannabis, amphetamine, 'ice' and benzodiazepines.[8]

13 Between March 2004 - he would then have been aged 16 - and May 2006, the appellant had been before the courts on eight occasions, in respect of some 49 offences in respect of which findings of guilt or conviction had been recorded. Many of the offences had pertained to driving or were driving-related. But his offending had also included six thefts, two burglaries, one instance of dealing with the proceeds of crime, one instance of possessing a controlled weapon without an excuse - we were told today that it was a pocket knife - and two instances of failing to answer bail.

14 In respect of his past offending the appellant had been given bonds, placed on probation, given a Community-Based Order (which he had breached), fined, and sentenced to detention in a Youth Training Centre. It appears that he had been sentenced to one month's detention when he breached the Community-Based Order, that he was sentenced to five months detention in February 2006, and that he was sentenced on two occasions thereafter to seven days detention. He had not, however, spent time in an adult prison as at October 2006.**

**15 It was submitted for the appellant[9] that he was a young man who had pleaded guilty at the earliest possibility, who had assisted the police by revealing the location of the firearms, who was facing his first confinement in an adult prison, and who was the less culpable because of his drug addiction. Reliance was also placed on his unstable and dysfunctional background. Further, counsel submitted that it had been wrong for the judge to find that the appellant had possessed 'the firearms' for an unlawful purpose; and he urged this Court not to make any such finding. Again, he contended that the judge should not have found that the appellant had little or no prospect of rehabilitation; and he urged this Court not to do so. Such a conclusion, he submitted, would require satisfaction to the criminal standard.[10]

16 In advancing those submissions counsel drew, as can be seen, upon matters raised by grounds 1 to 4 as I have previously noted them.**

**17 Counsel for the Crown submitted that these were serious offences involving three illegal guns. One of them was the sawn-off .22 rifle, which had no purpose other than to be used in committing offences. The purpose of the firearms legislation was to reduce the number of firearms in the community which could be used for an unlawful purpose. For that reason, each offence was a separate offence calling for cumulation.

18 General and specific deterrence, counsel contended, should be the dominant purposes of the sentence. Counsel drew attention to the appellant's bad prior history.

19 Acknowledging matters operating in favour of the appellant, including his plea of guilty, his assistance to the police which resulted in the recovery of a great deal of stolen property, and the appellant's youth, counsel nonetheless submitted that, in all, the circumstances called for significant terms of imprisonment, together with significant cumulation particularly on counts 1 to 3. He contended that sentences of the order which had in fact been imposed were clearly within range and appropriate.**

**20 I would re-sentence the appellant to 16 months' imprisonment on count 1, six months' imprisonment on each of counts 2 and 3 and eight months' imprisonment on count 4. I would order that three months of the sentence on count 4 be cumulated on the sentence on count 1, this yielding a total effective sentence of 19 months' imprisonment. I would fix a non-parole period of 10 months. I would indicate, in passing such a sentence, that I have allowed three months in favour of the appellant in respect of the head sentence by reason of the fact that he was on remand in respect of unrelated offences for a period, as it seems, of 194 days between 25 October 2006 and 5 May 2007. That is, I would have proposed that the appellant be sentenced to a total effective sentence of 22 months' imprisonment had it not been for the period of remand in respect of which s 18 of the Sentencing Act 1991 (Vic), relevantly, has nothing to say.

21 The following matters bear upon the sentence which in my opinion ought be imposed.

22 First, in my view the offence comprehended by count 1 was a quite serious instance of a serious offence. The Parliament has recognised it to be an intrinsically serious offence, involving as it does the combination of a prohibited person and an unregistered weapon.[11] Beyond that, the learned sentencing judge found that the appellant had possession of the weapon for an unlawful purpose. It is easy to see why his Honour so concluded. The weapon was unsuited to sporting shooting, was of a kind used in criminal activity, and the appellant was a young man with a drug addiction and a poor criminal history. Moreover, when interviewed by the police he said, in respect of the three weapons, that it was his intention to use them for shooting 'rabbits and that'. But on the plea, his counsel submitted that 'he tells me that it was an item of fascination more than anything else. It was certainly not purchased ... with a view to using to threaten people ...' Thereafter, counsel agreed with the observation of the learned sentencing judge that it was nonsense to suggest that the appellant was going to use the particular weapon to go and shoot rabbits.

23 Like his Honour, I am very sceptical of the explanation that was ultimately proffered on the plea, and that scepticism is increased by the difference between that explanation and what the appellant told the police. Nonetheless, I am not prepared to find, to the criminal standard, that the weapon was in the appellant's possession for the execution of some unlawful purpose. On the other hand, I am certainly not prepared to conclude on balance of probabilities that the appellant had possession of the weapon for a lawful purpose.[12]

24 In all the circumstances, including those going generally in mitigation of penalty, I would impose, as I said earlier, a sentence of 16 months' imprisonment for this offence.[13] I would have imposed a greater sentence were it not for what may be called the Wade consideration.

25 Second, I consider that the sentences which were imposed below in respect of counts 2 and 3 were in all the circumstances appropriate.

26 Third, considering all the circumstances, I think that the sentence which the learned judge imposed on count 4 was quite appropriate. The sentence which I would impose only differs from the sentence imposed below because of what I have called the Wade consideration.

27 Fourth, despite the cogent submission for the Crown that there should be a measure of cumulation on counts 1, 2 and 3, I have reached a contrary conclusion. The three weapons were acquired on the one occasion as a kind of 'job lot'. There was no reason to conclude that the weapons the subject of counts 2 and 3 were to be used for an unlawful purpose; rather the contrary.

28 Fifth, in my opinion the nature of the offence comprehended by count 4, and the items the subject of that offence, render the offence sufficiently distinct from the offence the subject of count 1 as to require a degree of cumulation.

29 Sixth, the learned judge found that the appellant had little or no prospect of rehabilitation. He gave reasons why he had reached that conclusion: The appellant had a significant and unresolved drug addiction, he had little or no support in the community, he had limited prospects of employment, and he had 'significant matters pending'.

30 I am not persuaded that the appellant's prospects of rehabilitation should have been found to be so bleak. That is so particularly bearing in mind the issue of onus which was the subject of relevant observations in the joint judgment of Winneke P and Charles JA in Pickard.[14]

31 I consider, even on a favourable view, that the appellant's prospects of rehabilitation should not be accounted good. Most of the matters to which the learned sentencing judge referred, and the appellant's prior criminal history, tell to the contrary - although the second matter to which his Honour referred was doubtful, and the fourth was irrelevant. On the other hand, the appellant was at time of sentence a young offender, and I am persuaded that the importance, in the general run of cases, of rehabilitation in the case of young offenders[15] should assume some prominence in the particular case. Even so, other sentencing considerations - including just punishment, and general and specific deterrence - are in my opinion very pertinent.

32 Seventh, the appellant is to be given credit, and I have given him credit in the sentencing synthesis, for the matters advanced in mitigation: his early plea of guilty, the assistance which he provided to the police and his unsatisfactory family background. I have not accepted, however, the contention that the appellant's drug addiction reduced his culpability for the instant offending. I am not satisfied that the circumstances established the required nexus between the appellant's drug addiction and the offending.[16] At most it could possibly have done so in respect of some of the stolen property.

33 Eighth, the effect of Wade - which traces to what was said by this Court in Renzella[17] - is that time served on remand in respect of unrelated changes - and so which prior to sentence does not qualify as pre-sentence detention under s 18 of the Sentencing Act - should be taken into account in a general way in determining what the appropriate sentence ought be. The exercise, it has been emphasised, is not a mathematical one. Very often, sentencing courts have allowed considerably less than the entire period. All in all, I have formed the opinion that three months of the approximate six months in question should be brought to account in imposing sentence for the instant offences.**

**34 Ninth, it was, I think, paradoxical that the learned sentencing judge, having fixed a head sentence of 24 months, and having concluded that the appellant had little or no prospect of rehabilitation, should then have fixed a non-parole period of 10 months. Allowing for the appellant's youth, the desire to facilitate his rehabilitation, and the other matters going in mitigation, I am of opinion that the totality of considerations mean that the appellant should serve not less than 10 months of a head sentence of 19 months.

37 I agree with the reasons advanced by the learned presiding judge and the orders proposed.

The sentences imposed below are quashed and in lieu thereof the appellant is sentenced as follows:

The Court directs that three months of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of 19 months' imprisonment.

The Court fixes a non-parole period of 10 months' imprisonment.
It is declared that the period of 202 days, being the period between 4 May and up to but not including 22 November 2007, 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 that declaration was made and its details.

[1] Section 5 (1A), Firearms Act 1996 (Vic). The maximum penalty is 1800 penalty units or 15 years' imprisonment.

[2] Section 5(1), Firearms Act. The maximum penalty is 1200 penalty units or 10 years' imprisonment.

[3] Section 88, Crimes Act 1958(Vic). The maximum penalty is 15 years' imprisonment.

[4] [2005] VSCA 276, [11]-[14]. See also R v Renzella [1997] 2 VR 88, 96-98; and R v McMahon [2006] VSCA 240, 18] - [22], Vincent JA.

[5] Two firearms, martial arts weapon, a quantity of ammunition, a quantity of alcohol, a quantity of jewellery, a video camera and case, a leather wallet and two knives.

[6] The appellant at all times denied that he had been a participant in the burglary itself. He was not charged with such offence.

[9] In support of ground 1, but it bears upon the re-sentencing exercise.

[10] Citing R v Pickard [1998] VSCA 50, [3], (Winneke P and Charles JA) and R v Low [2002] VSCA 167; (2002) 135 A Crim R 79, 86-87, [22], [24], (Callaway JA).

[11] The background to the enactment of s 5(1A) is described by Williams AJA in DPP v Faure [2005] VSCA 91, [7]-[8]. See also [24].

[12] If such a finding could be made, it would stand in mitigation of sentence.

[13] In recent years this Court has considered a number of instances of commission of this offence. R v Smith [2006] VSCA 23, R v Latina [2007] VSCA 78, R v Quinn [2007] VSCA 141, R v McMahon [2006] VSCA 240, R v Novakovic [2007] VSCA 145, R v DJ [2007] VSCA 148, R v Barca [2007] VSCA 167, R v Hall [2007] VSCA 218 and R v Graham [2007] VSCA 252, [8]-[13] (Redlich JA). The sentences imposed have varied between two months (in the case of an imitation gun which the appellant had no intention of using) and three years. But it is uncertain how much can be drawn from those statistics. Most often the offence either accompanied other criminal activity, or the prospective use of the weapon for other criminal activity was clear or could not be discounted. Quite often the sentence imposed for the weapons offence was not the sentence imposed for what was treated as the principal offence. Totality might well have borne upon the sentence imposed for the weapons offence.

[15] R v Mills [1998] 4 VR 235, 241-242 (Batt JA), R v Tran [2002] VSCA 52; (2002) 4 VR 457, 462 (Callaway JA).

[16] R v Lacey [2007] VSCA 196 [12]-[16].

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