Criminal law and procedure - Sentencing - Firearms offences - Offender convicted on plea of guilty of aggravated possession of a firearm without being the holder of a licence or permit and possession of ammunition without being the holder of a licence or permit - Offender sentenced on firearm offence to 9 months' imprisonment suspended for 18 months - Whether sentence manifestly inadequate - Whether suspended sentence was inappropriate in all the circumstances

Firearms Act 1973 (WA), s 19(1)

Dabag v The State of Western Australia [2005] WASC 140

Day v The Queen [2001] WASCA 284

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

Hall v Collins [2003] WASCA 74

House v The King [1936] HCA 40; (1936) 55 CLR 499

Latham v The Queen [2000] WASCA 338

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Malatesta v Pinch [2001] WASCA 224

Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213

Mercanti v The State of Western Australia [2005] WASC 122

R v Liddington, unreported; CCA SCt of WA; Library No 970614; 14 November 1997

R v Nevermann (1989) 43 A Crim R 347

Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Attenborough v The State of Western Australia [2005] WASCA 132

1 This is an appeal by leave by the complainant against the sentence imposed by the sentencing Magistrate on one of the charges in the complaint. That charge related to aggravated possession of an unlicensed firearm contrary to the Firearms Act 1973 (WA). That Act was recently amended so as to increase the possible penalty.

2 The complainant's grounds of appeal are that the sentence of imprisonment for 9 months was manifestly inadequate, and that the sentencing Magistrate erred in ordering that that term of imprisonment be suspended. The appeal raises the question of the appropriate approach to sentencing for firearm offences since the recent changes in the Firearms Act, as well as the question of the application of the standard for the reasons given by sentencing officers in the position of the sentencing Magistrate in this case.

3 I first consider the charges the respondent faced and the sentences he received. I then turn to consider the two grounds of appeal. I conclude with my orders.

The charges the respondent faced and the circumstances of the offending

4 On 12 February 2005 the respondent pleaded guilty to and was convicted of a number of charges. These charges arose out of his being stopped in a vehicle with a number of passengers he was driving in Northbridge in the early afternoon of the previous day.

5 The statement of material facts presented to the sentencing Magistrate was that a Phoenix .22 handgun was found in a bag in the car. The serial number on the gun had been removed by drilling out the numbers. With the gun in the bag was found a magazine containing four live .22 calibre rounds of ammunition. The bag also contained $5,825 in cash. At that time the respondent admitted possession of the firearm. The respondent also said that certain personal belongings in the bag were his.

6 After being taken to the police lock-up, and learning he had been denied bail, he struck and damaged a perspex shield. That shield protected computer equipment.

7 Also, at the time he was stopped the respondent did not have a current driver's licence. Counsel for the respondent explained that the respondent's licence had expired some two weeks previously.

8 By complaint PE12045/05 the respondent faced two firearms charges, one driving charge and one criminal damage charge.

9 One of the firearms charges was for aggravated possession of a firearm without being the holder of a licence or permit under the Firearms Act, contrary to s 19(1)(c) as that Act read at the time of commission of the offence. The circumstances of aggravation referred to in the complaint were that the firearm was a handgun, and that the serial number had been removed. This appears to have been a reference to the penalty provision in s 19(1ac)(b) (handguns) and (c) (defacement or removal of any numbers or identifying marks). I return to these provisions below.

10 However, I note there was another circumstance which under s 19 went to the maximum penalty, a circumstance which was present in this case, but which was not referred to in the complaint. This was the amount of money with which the firearm had been found in the bag. This is dealt with in s 19 (1ab)(a)(ii). I return to this provision below. It is for amounts greater than the prescribed amount: that amount was $3,000 as prescribed by reg 2B of the Firearms Regulations 1974 (WA) as those regulations read at the time of the commission of the offence. It was accepted before the sentencing Magistrate that this circumstance also existed in this case (TS 6, in AB 6). Its relevance to sentencing is another matter, to which I return below.

11 For convenience, I will call these circumstances, set out in s 19 so as to permit a change in the maximum penalty for offences under s 19(1), "s 19(1) aggravating factors" or similar. This is to distinguish them from "aggravating factors" for the purposes of sentencing under s 7(1) of the Sentencing Act 1995 (WA). As will be seen, s 19(1) aggravating factors are, in my view, relevant as aggravating factors for sentencing purposes, even outside the context of the higher maximum penalties to which those circumstances can give rise.

12 The other firearms charge was for possession of ammunition without being the holder of a licence or permit under the Firearms Act, also contrary to s 19(1)(c).

13 The driving charge was for driving while being disentitled to do so contrary to s 49 of the Road Traffic Act 1974 (WA). The criminal damage charge was for an offence against s 444 of the Criminal Code 1913 (WA).

14 On the first firearms charge, for aggravated unlawful possession of a firearm (s 19(1)), the respondent received a sentence of 9 months' imprisonment suspended for 18 months. On the second firearms charge, for unlawful possession of ammunition, the respondent received a fine of $300. On the driving charge, the respondent received a fine of $250. On the criminal damage charge, the respondent received a fine of $500. There were orders for the destruction of the firearm and the ammunition.

15 On 18 March 2005, and under s 187 of the Justices Act 1902 (WA), Jenkins J granted leave to appeal against the sentence on the first firearms charge in the following terms:

"a. The learned Magistrate erred in sentencing the Respondent to a term of 9 months imprisonment, which in the circumstances is manifestly inadequate.

(i) Parliament has recently amended the Firearms Act 1973 to substantially increase the penalties for these types of offences;

(ii) Given the current climate with respect to firearms offences the primary sentencing consideration should be general deterrence;

(iii) Recent incidents of gang-related or gun-related violence in Perth have caused community concern;

(iv) The reason the Respondent gave for being in possession of the firearm in Northbridge was self protection/defence;

(v) The Respondent was on bail for similar offences and has a previous relevant conviction;

(vi) The Respondent's antecedents suggest there is little prospect of rehabilitation; and

(vii) The learned Magistrate gave inadequate reasons for passing a sentence that was less than 1/18 of the maximum penalty available.

b. The learned Magistrate erred in ordering that the term of imprisonment be suspended because the suspension of the term was inappropriate in all the circumstances.

i) Refer to particulars (i) to (vi) above; and

ii) The learned Magistrate gave no reasons for suspending the term and only gave reasons for imprisonment."

Ground a: The appeal against the sentence of 9 months

17 The particulars resolve, it seems to me, to three different bases. One is the increase in penalties for the s 19(1)(c) offence and that increase's background, when these two are considered in relation to the circumstances of the offending (particulars (i) to (iv)). Another is the antecedents of the respondent and his prospects for rehabilitation (particulars (v) and (vi)). The third is the absence of adequate reasons for the sentence imposed (particulars (vii)). I deal with the ground by reference to that subdivision of the particulars.

18 The principal submissions for the appellant were by reference to the increase in penalties for the s 19(1)(c) offence and its background, when these are considered in relation to the circumstances of the offending. To appreciate the submissions, it is necessary to set out the text of s 19(1) and s 19's related provisions before the amendments, so that these may be analysed. I then do the same for the text of the amended s 19.

19 The relevant provisions of s 19 before the amendments were as follows:

(a) sells, delivers or disposes of;

(b) purchases or otherwise comes into possession of; or

(c) is in possession of,

any firearm or ammunition and is not the holder of a licence or permit under this Act entitling him to do so commits an offence unless subsection (1aa) provides otherwise or section 8 applies.

(a) in relation to the firearm concerned in the offence or a firearm of the same kind, the offender -

(ii) is disqualified from holding such a licence or permit; or

(b) the firearm concerned was a handgun;

(c) any numbers or identification mark which was on the firearm has been defaced or removed; or

(d) the firearm has been altered from the design or characteristics of its original manufacture,

imprisonment for 18 months or a fine of $6 000; otherwise, imprisonment for 12 months or a fine of $4 000."

20 This was the state of s 19 in the respects relevant to this appeal before 1 January 2005. That was the date of the coming into force of the Firearms Amendment Act 2004 (WA). It will be seen that s 19(1) provided for a maximum penalty of 12 months' imprisonment or a fine of $4,000, except in certain circumstances, where the maximum penalty was higher. The Firearms Amendment Act produced the form of s 19(1) under which the respondent was sentenced, and came into force on 1 January 2005, about one and a half months before the respondent committed the relevance offence and was sentenced.

21 As can be seen, the higher maximum penalty under the former legislation, was imprisonment for 18 months or a fine of $6,000. The circumstances attracting the possibility of that higher maximum were of four different types. One type was where, in relation to the firearm concerned or one of the same kind (as provided for in the regulations), the offender had had a licence or permit application refused, or had had a licence or permit revoked, or had been disqualified from holding a licence or permit. The second type was where the firearm was a handgun. The third type was where any numbers or identification mark had been defaced or removed. The fourth type was where the firearm had been altered from the design or characteristics of its original manufacture.

22 The relevant provisions of s 19 after the changes had been made by the Firearms Amendment Act were as follows:

(a) sells, delivers or disposes of;

(b) purchases or otherwise comes into possession of; or

(c) is in possession of,

any firearm or ammunition and is not the holder of a licence or permit under this Act entitling him to do so commits a crime unless subsection (1ae) or section 19AA provides otherwise or section 8 applies.

(1aa) A person who is guilty of a crime under subsection (1) committed in circumstances referred to in subsection (1)(a) is liable, on conviction, to imprisonment for 14 years if at the time of the offence the person was selling 3 or more firearms without a licence or permit entitling the person to sell any of them.

(1ab) A person who is guilty of a crime under subsection (1)

(a) committed in circumstances where the person was carrying both a firearm that is a subject of the offence and -

(i) a prohibited drug or prohibited plant, as defined in the Misuse of Drugs Act 1981, when not authorised to be in possession of that drug or plant under that Act; or

(ii) an amount of money equal to or greater than the prescribed amount,

is liable, on conviction, to imprisonment for 14 years;

(b) committed in circumstances where the person was in possession of 3 or more firearms without a licence or permit entitling the person to be in possession of any of them, is liable, on conviction, to imprisonment for 10 years unless subsection (1aa) applies.

(1ac) Unless subsection (1aa) or (1ab) applies, a person who is guilty of a crime under subsection (1) committed in relation to a firearm is liable, on conviction, to imprisonment for 7 years if -

(i) had been refused, or was disqualified from holding, a licence or permit referred to in subsection (1); or

(ii) had had a licence or permit referred to in subsection (1) revoked,

in relation to the firearm or a firearm of the same kind;

(b) the firearm was a handgun or a prescribed firearm;

(c) at the time of the offence, any number or identification mark which was on the firearm had been defaced or removed; or

(d) the firearm had been altered from the design or characteristics of its original manufacture.

Summary conviction penalty for a crime under subsection (1) committed in any of the circumstances described in this subsection: Imprisonment for 3 years or a fine of $12 000.

(1ad) Unless subsection (1aa), (1ab) or (1ac) applies, a person who commits a crime under subsection(1) is liable, on conviction, to imprisonment for 5 years.

Summary conviction penalty: Imprisonment for 3 years or a fine of $12 000."

23 It will be seen that the Firearms Amendment Act introduced a new set of subsections, after s 19(1), and related to the penalties for offences under that subsection. The Act increased the base maximum penalty, and introduced a (higher) base maximum penalty for prosecutions on indictment. The Act also changed the penalty structure for offences against s 19(1), by adding two further levels of circumstances of s 19(1) aggravation to the previous one.

24 The new base maximum penalties were expressed to be a "Summary conviction penalty: Imprisonment for 3 years or a fine of $12 000", or liability on conviction to imprisonment for 5 years (s 19(1ad)). The summary conviction penalty appeared to apply to the offence regardless of how it was committed (see s 19(1ac), closing words; and s 19(1ad), closing words). However, the other penalty, which it was accepted before me was for prosecutions on indictment, was for circumstances to which none of the higher maximum penalties applied (see s 19(1ad)).

25 For offences against s 19(1)(c), the highest provided maximum penalty was now to be imprisonment for 14 years, on indictment. The circumstances to which this maximum applied were (in relation to s 19(1)(c)) where the person was carrying, both a firearm that was a subject of the offence, and either a prohibited drug or prohibited plant, as defined in the Misuse of Drugs Act 1981 (WA) (when the person was not authorised to be in possession of that drug or plant under that Act), or an amount of money equal to or greater than the prescribed amount (s 19(1ab)(a)). That amount, as I have indicated, was $3,000.

26 For offences against s 19(1)(c) the next level of maximum penalty down was now to be imprisonment for 10 years, again on indictment. The circumstances to which this maximum applied were (in relation to s 19(1)(c)) where the offender was in possession of three or more firearms without a licence or permit entitling the offender to be in possession of any of them (s 19(1ab)(b)). It is not altogether clear from the paragraph whether, if the circumstances of offending against s 19(1)(c) also attracted the maximum of 14 years, that maximum (under s 19(1ab)(a)) applied.

27 For offences against s 19(1)(c), the next level of maximum penalty down was now imprisonment for 7 years, again on indictment. The circumstances to which this maximum applied were the same as those which under the previous form s 19(1) attracted its higher maximum penalty of 18 months or $6,000. This new maximum penalty applied except where the circumstances of the offending were also such that one or other of the two other higher maximum penalties applied.

28 It will be seen then that all of the penalties under the Firearms Act were significantly increased by the Firearms Amendment Act. In addition, a finer grained graduation of penalties was introduced, for the purposes of prosecutions on indictment only.

29 Counsel for the appellant took me to the legislative history of these changes. These included expressions of concern about "the use of unlicensed handguns by criminals in the furtherance of criminal activities". These expressions appear in the grievance expressed to the Minister for Police and Emergency Services by the Hon Ms M M Quirk, Member for Girrawheen (Hansard, 20 March 2003 at 5687). The Minister's response (at 5688) is as follows:

"As a result of the member for Girrawheen's grievance, I have instructed the police to make sure this important area of law reform is included in the upcoming amendments to the Firearms Act, which we will need to put in place as part of the national gun law reform."

30 I note the Minister's second reading speech for the bill that became the Firearms Amendment Act 2004, which also refers to this exchange on Ms Quirk's grievance, is prefaced by a reference to the government's commitment (Hansard, 19 November 2003 at 13385) to:

"Sending a strong message to criminals who possess, carry and use firearms that the danger they pose to the community will not be tolerated and that they will face tough penalties when police apprehend them."

31 There was also reference to the shooting incident at Monash University the previous year.

32 Counsel for the appellant also reminded me, as those parliamentary sources also indicate, that the legislation did not require, for the higher penalties to apply, that the offender be found committing another offence, or have a criminal record. Apart from possession of either a prohibited drug or plant for the purposes of the Misuse of Drugs Act, other "objective" indicators were used. Those indicators were such as possession of a significant sum of money, multiple firearms, a handgun, a firearm with its identifying number defaced or removed, or a firearm that had been altered.

33 Counsel for the appellant reminded me that the offender here was found with a handgun, its identifying or serial number removed, as well as with ammunition (if not loaded in the handgun), and a sum of money larger than the prescribed amount. It seems the relevance of the ammunition, which is not a s 19(1) aggravating factor, was being said to lie in the threat it added to what was an unloaded firearm. So viewed, this appears to me to be a matter which a sentencing officer could appropriately take into account in that way.

34 In addition, counsel for the appellant said, the respondent through his counsel had admitted to the sentencing Magistrate that the handgun was for the purposes of self-defence. This indicated an intention to use the handgun contrary to law.

35 However, I note, as was put to me by the respondent, that the possession of a licensed firearm is not an offence. Nor is there an offence of possession of a licensed firearm for the purposes of self-defence. There is, however, a prohibition on the possession of certain other weapons, even if they are for the purposes of defence, whether the defence of the possessor or of others: see s 7(3) of the Weapons Act 1999 (WA) and Hall v Collins [2003] WASCA 74, Wheeler J, at [10] - [14]. This prohibition does not apply, however, to a "firearm" within the Firearms Act (Weapons Act, s 3 and the Weapons Regulations 1999 (WA) Sch 1 "Prohibited Weapons" and Sch 2 "Controlled Weapons"). The intention, I would surmise, is to leave the regulation of the possession of firearms to the Firearms Act.

36 The respondent put it to me that the presence of a concern by the respondent for his safety, to which the handgun was a response at the least, pointed away from the use of the weapon for criminal purposes. In that sense, the purpose was a factor which went to the significance of the s 19(1) aggravating factor represented by the handgun. In terms of the legislative history to which I have referred, that seems to me to be correct. However, the self-defence purpose does not remove altogether the significance of the offender being in possession of a handgun, as opposed to another sort of firearm that did not attract a higher maximum penalty on indictment. I return to this below.

37 With respect to the removal of the serial number on the handgun, there was no material before the sentencing Magistrate that the offender had himself done the removal. Rather, it was said, the indications were that he had acquired the gun in that condition, although I have not been able to find any such indications in the transcript of the hearing below. Counsel for the respondent put it to me that this substantially nullified the relevance of this matter. However, while I agree that not showing the accused removed the numbers makes the factor less serious than otherwise, I do not see it as lessening it to the extent suggested. As with the fact of the offender having a handgun, the fact its identifying marks had been removed, whether or not by the respondent, showed the circumstances of the offending were more serious than would have been the case otherwise.

38 With respect to the money, counsel for the respondent put it to me this should have no weight at all in relation to the sound exercise of sentencing discretion. That was because it was not pleaded in the complaint, and because there was an explanation for the respondent's possession of it that showed it should not be taken as an indicator of criminality. No issue had been taken with that explanation before the sentencing Magistrate. That explanation was that the money was for the payment of sponsorship fees that day for the offender's boxers who were being trained in his boxing training business. However, he had been unable to pay those fees, as the premises he had visited for the purpose shortly before the incident in question had been closed (TS 7, AB 18).

39 I do not agree that the failure to plead in the complaint as a (s 19(1)) aggravating factor the possession of such a sum of money made such possession irrelevant to the sound exercise of sentencing discretion. The relevance of the possession of money of such an amount would appear to be the legislature's recognition of its potential to indicate criminal purposes as a context to possession of a firearm. In this case, however, the possession of the money was not unexplained, and the explanation was one which in my view largely removed what might be called that possession's statutory criminal stain. I consider that the money's relevance to the seriousness of the offence was at most slight, and significantly less than that of the firearm being a handgun, accompanied by ammunition, and with the gun's serial numbers removed.

40 In relation to the antecedents of the respondent, counsel for the appellant referred to the fact the respondent at the time of the offending was on bail on what was described as two similar charges of aggravated unlawful possession of a firearm, under s 19(1)(c) of the Firearms Act, and 1 charge of using a silencer, under s 23(7) of the Act. There is said to have been a reference to these matters in the submission to the sentencing Magistrate that the matter should be dealt with on indictment (TS 5, AB 16B), although the reference is only to the accused being "currently on bail for similar offences, ..., as well as a serious drug offence".

41 However, the respondent submitted that, of itself, being on bail on a serious offence when the offence charged was committed should be regarded as irrelevant, as they were at most pending charges of which no final disposition had been made. To take them into account for the purposes of sentencing would be to undermine the presumption of innocence. Counsel for the appellant agreed. However, counsel for the appellant also said that the fact of being on bail on firearms charges of the same sort as the one here had drawn to the respondent's attention the sensitivity of authorities to the particular sort of offence to whose subsequent commission he pleaded guilty. In this sense, the fact of being on bail for those charges, although not the serious drugs ones, was relevant to the seriousness of the respondent's conduct. To that extent, I agree. It is one of the matters to be borne in mind in the sound exercise of sentencing discretion as bearing on the seriousness of the offence.

42 Counsel for the appellant also referred me to gang-related activity in the Northbridge area at the time of the offending. About three weeks before the offending, there had been a serious (and highly publicised) incident of a knifing and a shooting in a Northbridge nightclub: see Dabag v The State of Western Australia [2005] WASC 140; and Mercanti v The State of Western Australia [2005] WASC 122. In submissions to the sentencing Magistrate in relation to remitting the matter to be dealt with on indictment, rather than summarily, there was a reference by the prosecution to the accused's "links with people who are involved in organised crime, in fact linked with people who are involved in a shooting in a nightclub about two or three weeks ago" (TS 5, AB 16B). I note, however, that before the sentencing Magistrate, there was no development of the nature of the "links", except to indicate the respondent's friendship with one of those allegedly involved in the nightclub incident.

43 Below I consider the relevance of the prevalence of a particular offence in assessing its seriousness for the purposes of the sound exercise of sentencing discretion. The point I am considering here is a different one, in my view. It is whether it was appropriate to take account of general community concern at conduct of this sort, at least where such concern was likely to have been known to the offender. There is a clear indication the sentencing Magistrate did take account of such concern in such circumstances, as I will indicate below. It seems to me that, in assessing the importance to be attached to general deterrence in relation to the sentencing of the offender with such presumed knowledge, and the related matter of the need to demonstrate the condemnation of the community for conduct of that kind, such a community concern may appropriately be considered. I return to these matters below.

44 Counsel for the appellant also referred me to the offender's prior conviction and fine in the amount of $200 in 1999 for possession of an unlicensed firearm. This was also put to the sentencing Magistrate as part of the prosecution's submission to remit the matter to be dealt with on indictment. This was the only circumstance to which the sentencing Magistrate specifically referred when he determined not to remit the matter. Apparently by particular reference to the amount of the fine, he noted that the prior offence was a "simple" possession, and "not this type of offence" (TS 6, AB 17).

45 In relation to the adequacy of the sentencing Magistrate's reasons, counsel for the appellant's written submissions were that the sentencing Magistrate had imposed a sentence less than one-eighteenth of the maximum available. That was a reference to the term of 14 years for a conviction on indictment. However, the Magistrate was dealing with the matter as a summary offence. In terms of the summary conviction penalty, his sentence of 9 months was one quarter of the maximum available. However, it seems to me there is some concern with dealing with the matter in those terms, because of the approach to the use of maximum terms in Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213, to which I return below. That approach is, except in rare cases, inconsistent with using maximum sentences as sentencing starting points.

46 Undoubtedly, the sentencing Magistrate had not specifically referred to the legislative history of the form of s 19(1) under which the offender was being sentenced. Nor had he specifically referred to the circumstances in which the offender had committed the offence. I have already indicated that, of the circumstances listed in the submissions for the appellant, those that were in my view relevant as relatively significant aggravating factors were the facts the firearm was a handgun, with ammunition, and the removal of the serial number on the handgun, if not by the respondent. The matter of the money was a factor of much less significance, given the uncontested explanation for its possession.

47 However, the sentencing Magistrate had been addressed on the change to the highest maximum penalty (14 years' imprisonment) in the prosecution's submissions on remission of the matter to be dealt with on indictment (TS 4, AB 15D). In the prosecution's subsequent submissions on sentence, there was reference (at TS 10, AB 21) to:

"Driving around Northbridge with a firearm in the vehicle, a large sum of money, and the amendments to the Firearms Act are such that inference can be drawn that the only reason that that would be the case is that it's related either to organised crime or there's a sinister purpose for that to occur, otherwise parliament wouldn't punish this offence with a maximum of 14 years imprisonment, albeit that's not in this jurisdiction."

48 Counsel for the appellant reminded me that, as the prosecution had earlier indicated to the sentencing Magistrate, the driving was in the early afternoon, with passengers who it transpired were boxers, in an environment (Northbridge) likely to be a busy one.

49 The sentencing Magistrate, in determining not to remit the matter, concluded that the "circumstances in which the offence was allegedly committed" were not "so serious" that, if the offender were convicted, the Court would not be able to "adequately punish" the offender (Criminal Code, s 5(3)). There was a submission of counsel for the respondent that, while the money permitted the court to impose "a greater penalty", nothing had been put before the sentencing Magistrate to show the money was linked with organised crime (TS 11 - TS 12, AB 21 - AB 22). The sentencing Magistrate acknowledged this submission, just before sentencing the offender for the possession of the firearm, when he said this (TS 11, AB 22):

"I'm addressing the firearm's offence, the possession of the firearm - the handgun which had its serial number removed as the most serious of the offences obviously before me.

It's important for me to ensure that you're not sentenced for what other people have done. In relation to this matter you have one prior firearms offence which you were fined $200. I would infer from that that matter was relatively minor and was not an aggravated offence.

The relevant legislation provides for this court to deal with the matter by way of a sentence of a period of imprisonment not exceeding 3 years or a $12,000 fine. The court is not to impose a sentence of imprisonment unless there are no other options available to it. At the same time, the court must recognise that there is alarm, particularly in light of recent events and you must have been well acquainted with what was going on and the concern that that had caused in the community. It therefore is in my view important that a deterrent offence is imposed which is both personal and general."

50 It seems to me that these remarks of the sentencing Magistrate indicate he has taken account of all of the matters of concern in the submissions for the appellant, except perhaps for the ammunition. In relation to the ammunition, there was of course the separate offence of being in possession of it, for which the offender was sentenced immediately after being sentenced for the handgun offence. The ammunition was relevant to the handgun, as I have indicated. In all of those circumstances, I do not consider there was a failure to express sufficient reasons for the sentence. I note for this purpose R v Nevermann (1989) 43 A Crim R 347, per Malcolm CJ at 350, where he said:

"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delays to the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68, per Bray CJ and Ciccone (1974) 7 SASR 110. It is enough if the sentencing judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."

51 However, as the present ground indicates, the appellant relies heavily on the manifest inadequacy of the sentence. It is of course the case that manifest inadequacy does not require the identification of any other error in the sentencing process: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J, at [6]. The well known dictum from House v The King [1936] HCA 40; (1936) 55 CLR 499, per Dixon, Evatt and McTiernan JJ, at 505, is worth referring to in this context: where

"Upon the facts [the sentence] is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance".

52 In determining whether a sentence is manifestly excessive, or, it seems, manifestly inadequate, it is appropriate for an appellate court, such as the one I constitute, to have regard to factors such as the "prevalence of a particular offence and sentencing patterns" in this state: see Markarian (supra) per Gleeson CJ, Gummow, Hayne and Callinan JJ, at [44]. Given the recent changes in the Firearms Act, however, it is unlikely that any useful patterns have yet emerged. Nor, as I will note below, was there a tariff in respect of the previous form of s 19. I return below to what I have been able to glean about the imposition of sentences of imprisonment under the prior form of s 19. Concerns about the use of unlicensed firearms by criminals in the furtherance of criminal activities underpinned the changes to s 19 as I have indicated.

53 Further, I note that sentencing courts should take account of maximum sentences, particularly where they have recently been changed: see Markarian (supra), per Gleeson CJ, Gummow, Hayne and Callinan JJ, at [30]. At [31] their Honours went on to say this also commenting on the reasons of Hulme J in the decision appealed from:

"It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case." (footnote omitted).

54 The sentencing Magistrate's reasons do not expressly refer to his use of the new maximum for summary offences to ground a consideration of the worst possible case relative to the case before him, or as a yardstick. However, I refer again to Nevermann (supra), and I note what the sentencing Magistrate did say, particularly in relation to whether the matter should be remitted to be dealt with on indictment, and his clear acknowledgement of the new maximum penalty on summary convictions. I do not consider there is error shown here in the Magistrate's failure to make clearer than he did the relevance of that new maximum penalty.

55 I also note the factors, to which I have previously referred, and on which the sentencing Magistrate had been addressed by the prosecution and the appellant, that might be said to be aggravating. I also note the respondent's criminal record, which had been shown to the sentencing Magistrate (TS 5, AB 16). That record showed traffic related offences, for the most part. However, there were also instances of assault, disorderly conduct, escaping lawful custody, fraud, resisting arrest, escaping custody, misleading police officers and resisting arrest. None of these offences had finally resulted in custodial penalties, except for one instance of assault, in 1995, where the respondent had been imprisoned until the rising of the court. Counsel for the appellant indicated this record, which is lengthy, showed a propensity for repeated offending which very much qualified the offender's prospects of rehabilitation. However, without my diminishing the respondent's offending, every year since 1987 (with the exception, I observe, of 2004), I note that the last previous offence which was not traffic related was in 1999, and the last imposition of a penalty greater than $900 was in 1996. I also note again that the only other custodial disposition was the imprisonment until the rising of the court, for assault, 1995, to which I earlier made reference. I would not conclude from this pattern that a sentencing officer could only infer no or negligible prospects for rehabilitation from such a record.

56 It is true that, as I have noted, the respondent had been on bail for a number of offences, including it seems two of aggravated unlawful possession of a firearm. However, I do not conclude that his commission of the present offence shows he is inclined to flout the law or otherwise has no or negligible prospects of rehabilitation. At the same time, this bail background, as I have explained, could appropriately be weighed as going to the seriousness of his conduct in committing the present offence.

57 I further note the factors which might be seen to be mitigating to which I have not yet made reference, and on which the respondent's counsel addressed the sentencing Magistrate. These were his early pleas of guilty, the fact he was married with a young child, and the nature of his current business, training boxers, which meant there was a significant number of people dependent upon him. I turn to consider these in more detail.

58 The early or fast track plea of guilty would weigh significantly against a more severe sentence, the more where it facilitated the administration of criminal justice. In this case, the prosecution case, based on possession of the handgun and ammunition, was circumstantially a strong one. However, as counsel for the respondent indicated, the handgun and the ammunition had been found in a bag in the car physically separated from the offender, and there were other passengers in the car. That being said, I am of the view that not as much weight should be given to the plea here, as would have been appropriate had the means of proof of the offence been less circumstantially strong.

59 It should also be noted that this appears not to be an offence to which the transitional provisions in Sentencing Act 1995, Sch 1 applied. This is in view of the changes to the penalties for the s 19(1) offence made after the coming into force of the new provisions in the Sentencing Act (Sch 1, Item 2(5)(a)).

60 The matter of the respondent's family, with a dependent wife and a small child, was put to the sentencing Magistrate as the context in which the concern he had for his safety should be seen. That concern had arisen from two recent death threats.

61 I have already indicated my view of that concern so far as it went to the purpose for which he was carrying the handgun. I did this in terms of the legislative purpose underlying the increase in penalties and change in the penalty structure for contraventions of s 19. I indicated this qualified the weight of this s 19(1) aggravating factor. I would go further, to add (perhaps unnecessarily) that in any event I do not consider this circumstance to be a mitigating one: as the sentencing Magistrate himself said, when addressed on this point (TS 9, AB 20):

"Well, that itself [carrying the firearm for such a purpose] is alarming that people would be prepared to resort to carrying around firearms in those sort of circumstances."

62 Counsel for the respondent also put to the sentencing Magistrate the offender's efforts to carry on with his life, notwithstanding the freezing of his business assets arising out of charges of serious drug offences he was facing. These efforts were in the form of the development of a successful business training boxers, which meant numerous people were heavily depending upon him.

63 Counsel for the appellant put it to me none of the family or business matters were at all out of the ordinary, and should not have been weighed heavily against the matters of concern to which I have referred. However, I consider it was indeed appropriate to give them significant if not exceptional weight in the instinctive or intuitive synthesis that Markarian calls for.

64 I further note the appeal against sentences of imprisonment to be immediately served in Malatesta v Pinch [2001] WASCA 224 including a sentence of 4 months' imprisonment for unlawful possession of a firearm contrary to the previous form of s 19(1). That appeal was successful, but the lengths of the sentences were not changed: I return to this decision in connection with the aspect to do with the imposition on appeal of a suspension of the sentence. Nor were there any s 19(1) aggravating factors evident from the report of the decision. There was, however, a reference to the seriousness of the offence by reference to where it was committed, in the Bunbury region.

65 In Malatesta (supra), the accused had two previous convictions for unlawful possession of firearms, the most recent only five months earlier. The remainder of his criminal record was characterised as relatively insignificant, being made up of traffic offences and possession of prohibited drug and a smoking implement. The accused had pleaded guilty, was 24 and appears not to have had dependants. There was no suggestion of any sinister purpose in the possession of the firearm.

66 I have not been able to find other recent cases of terms of imprisonment for offences under the present or former s 19. Fines appear to have frequently been imposed. Both counsel before me indicated they had not been able to find a tariff for sentences under that provision.

67 In weighing all of this material, I must of course bear one further matter in mind. It is that that it is not enough to ground a finding that a sentence was manifestly inadequate that an appellate court, had it been the sentencing court, would have imposed a longer term: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. This is particularly apposite in an appeal against sentence by the prosecuting authority, where the court should be concerned lest it intervene too readily, thereby exposing an offender to a form of double jeopardy: Dinsdale (supra), per Kirby J, at [61] and [62]; Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293, per Barwick CJ, at 310.

68 In sum, in view of the change to the statutory penalty on summary conviction, the context to the change to the legislation to which I have referred from the legislative history, the s 19(1) aggravating factors of the handgun (albeit an unloaded one) with its numbers removed (if not by the respondent), the accompaniment of ammunition, and the respondent's prior warning through his bail on charges of similar offences, and after allowing for the qualifications of the s 19(1) factors to which I have referred, and for the mitigating circumstances in this case to which I also have referred, I conclude that the sentence of 9 months' imprisonment was manifestly inadequate in this case. In my view, a significantly longer sentence was called for in the sound exercise of sentencing discretion.

69 I consider that the respondent must be re-sentenced. Both counsel indicated to me that, if I reached that conclusion, I should re-sentence rather than sending the matter back. I agree. Taking account of the factors I have referred to, I have determined that a sentence of imprisonment is called for, and that it should be one of 18 months.

70 I have considered the question whether a conclusion like this one would not be appropriate without prior indication from the courts. Undoubtedly in my view, the changes to the legislation mean, for an offence of the sort in this case that a sentence of imprisonment, of a duration like the one I have determined upon, is more likely. However, I was referred to Day v The Queen [2001] WASCA 284. In that case the Court of Criminal Appeal (Kennedy J, Steytler and Miller JJ) quashed a sentence on a charge of cultivating cannabis with intent to supply. Both Steytler J and Miller J indicated ([38] and [46], respectively) that there had been a firming up of penalties for offences of that nature and prior penalties could no longer be regarded as providing a reliable guide. Those penalties had been the ones current at the time of the sentencing in question. Kennedy J appears not to have commented on the point. I was invited to conclude from the passages I have referred to that an appellate court should not evaluate sentences having regard to a change in the maximum penalties without a prior warning. I do not find the judgments support that conclusion. It seems to me that, rather, they support a more limited conclusion, that a court should consider the sentencing environment applicable at the time of the sentencing in question. In this case the sentencing environment had changed by the time, both of the commission of the offence, and of the sentencing in question.

71 I have thus upheld the first ground of appeal. I turn now to consider the second, which leads me to address the matter of suspending a sentence of the sort I have indicated I would impose.

Ground 2: The appeal against the suspension of the sentence

72 The bases for this ground are that the issues of general deterrence were of such significant weight in this case, based on the matters rehearsed under the previous ground, that a suspended sentence was inappropriate. In any event, the sentencing Magistrate had failed to give any reasons for the imposition of a suspended sentence.

73 The law with respect to whether or not to suspend a custodial term is well established. I adopt for this purpose the statement of that law made in the context of a (successful) appeal against a failure to suspend a term of imprisonment in Malatesta, itself a case under the former s 19 of the Firearms Act, per Miller J, at [10]:

"Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538 makes it clear that the decision whether to suspend a sentence of imprisonment under s 76(2) of the Sentencing Act involves the exercise of a wide discretion and that discretion is not to be limited to considerations of rehabilitation of the offender alone. Section 76(2) provides that suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. The words 'in all the circumstances' mean the circumstances of the offence as well as those personal to the offender. As Gleeson CJ and Hayne J pointed out in Dinsdale v The Queen at [13], it is only if the Court is satisfied that it is not appropriate to impose a term of suspended imprisonment that the Judge may impose a term of imprisonment which is to take effect immediately. Kirby J (at [85] - [87]) said:

'[85] ... the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of "all the circumstances". This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.

[86] Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the "complete discretion" which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss.

[87] The approach which I favour also appears more consistent with what has recently occurred in Western Australia where factors quite distinct from the rehabilitation of the offender or mercy in the particular case have influenced the suspension order made or confirmed. Requiring the primary judge, asked to suspend a sentence of imprisonment, to consider anew all of the relevant circumstances both reinforces the two-step approach which the statute mandates and facilitates a desirable flexibility in sentencing options that permits in a particular case, the exploration of alternatives to immediate custodial punishment'."

74 My attention was drawn to authorities in which the limited general deterrence of suspended sentences was referred to: Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999, per Kennedy J, at 6 ("it is not generally considered to provide any significant deterrence"); and Latham v The Queen [2000] WASCA 338, per Parker J, Wallwork and McKechnie JJ agreeing, at [34] ("where the conduct of the offender is serious and warrants imprisonment and a clear general deterrent element in the sentence is called for, a suspended sentence may well be considered inappropriate").

75 I note that Latham was a case decided after Dinsdale. I also note that extensive reference is made to Dinsdale in Parker J's reasons in Latham. I note further that a fuller statement of Parker J's view in Latham at [34] makes clearer the qualified character of the view being expressed in that case, which was an appeal against the failure to suspend a sentence of imprisonment:

"While it should not generally be concluded that the imposition of a suspended term of imprisonment will have little or no general deterrent value, the nature of this punishment involves inherent limitations on its value as a general deterrent. Where the conduct of the offender is serious and warrants imprisonment and a clear general deterrent element in the sentence is called for, a suspended term of imprisonment may well be considered inappropriate. That was the view taken by his Honour in this case. It cannot be concluded, in this respect, that the exercise of his discretion was faulty."

76 In my view, the view in Latham I have quoted requires, in a case where the conduct of the offender was "serious" and a clear general deterrent element in the sentence is "called for", that a sentencing officer who was otherwise minded to suspend a sentence give careful consideration to the appropriateness of doing so. However, it is also the case that suspension may be appropriate even in such cases. It was acknowledged on both sides in this appeal that the legislature, when it made the changes to s 19, did not withdraw the option of a suspended sentence from sentencing officers, or indicate it was calling for a different approach to the use of that option from the approach in Latham.

77 I have already referred to the range of factors, both aggravating and mitigating, put to the sentencing Magistrate in this case. Consistently with Dinsdale, they needed to be considered in relation to the matter of suspension. At the same time given the seriousness of the conduct in this case, as indicated by the aggravating circumstances as I have assessed them, and the importance of general deterrence evident from the recent change in the penalties for s 19 of the Firearms Act, as well as the community concern to which the sentencing Magistrate referred, careful consideration needed to be given to the appropriateness of suspending a sentence of imprisonment in this case.

78 I am satisfied that the sentencing Magistrate, in the remarks on sentencing which I quoted above, did indeed recognise the seriousness of the respondent's offending and the importance of general deterrence in this case. He indicated, it seems to me, that he had given the double consideration called for by Dinsdale. I would thus not uphold that aspect of the present ground that went to failure to give reasons for suspending imprisonment.

79 It follows those remarks also satisfy me that he bore the factors of the seriousness of the offence and the matter of general deterrence in mind in determining whether or not to suspend the term of imprisonment on which he was determining. I refer again to his acknowledgement in his (brief) sentencing remarks that this was an "aggravated offence", to be distinguished (in light of what had gone before) from the simple one he associated with the offender's prior unlawful possession offence. I also refer again to his acknowledgement in those remarks of the need for his sentencing disposition to have both a "personal" and a "general" deterrent character. In relation to the degree of elaboration to be reasonably expected in the reasons given by sentencing Magistrates, I note again the extract from Nevermann quoted above.

80 It is a different matter whether in fact the sentencing Magistrate bore the considerations of seriousness and general deterrence carefully in mind, as I have indicated a sentencing officer in his position was required to do. However, I do not see in the decision to suspend the term of imprisonment a disposition that was manifestly inadequate, that is, outside the range of the exercise of a sound sentencing discretion which would have indicated such an error.

81 However, I have already indicated that I would uphold the first ground of appeal, and re-sentence the respondent to a term of 18 months. I need to consider whether or not to suspend that term, and, if so, for what period.

82 For the purpose of determining whether or not to suspend the sentence I would impose, I derive assistance, in performing the analysis required by Dinsdale, in reviewing the range of relevant considerations listed in R v Liddington, unreported; CCA SCt of WA; Library No 970614; 14 November 1997 per Steytler J, at 3 - 4), where he said this:

"Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels [1974] 8 SASR 465; The Queen v Kruger [1977] 17 SASR 214 at 221; Causby, [(1985) 17 A Crim R 461] at 469-474; Kirk (1984) 6 Crim App Rep (S) 231, and GP, supra, per Malcolm CJ at 42, Murray J at 24 and Steytler J at 6), whether there is any element of persistence (see Wood v Samuels, supra, at 468 and The Queen v Kruger, supra, at 221); general deterrence (Causby, supra at 469); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P [1992] FCA 626; (1992) 111 ALR 541 at 551; R v Locke [1973] 6 SASR 298 at 302; Jarrett v R [1992] 58 SASR 457 at 459; Scott v SA Police [1993] SASC 4038; [1994] 61 SASR 589 at 592 and cf R v Percy, supra, at 72-3); the need to demonstrate the condemnation of the community for offences of that kind (Causby, supra, at 469; GP, supra, per Malcolm CJ at 42); and reasons militating in favour of an exercise of mercy (R v Osenkowski [1982] 30 SASR 212 at 212 - 213; R v P, supra, at 551 and GP, supra, per Murray J at 24).

That list is, of course, not exhaustive."

83 I have already commented on the prospects for rehabilitation in this case. The prospect of personal deterrence would need to be evaluated, as counsel for the appellant indicated, by reference to the commission of the offence while on bail for a similar offence. At the same time there is a difference, it seems to me, between that situation and one of being on a suspended sentence, especially given the lack of any previous custodial terms, with the one exception, in 1995, to which I have referred.

84 I have discussed the matters of the seriousness and intrinsic nature of the offences, particularly in relation to the s 19(1) aggravating factors, after assessing those factors as I did. I also discussed the matter of general deterrence in relation to legislative history of the changes to s 19. The need to demonstrate the condemnation of the community for offences of this kind emerges, I believe, from that legislative history, as well as from the immediate community context to the commission of the offence. Latham indicates in my view that it is possible for a suspended sentence to serve the purposes of general deterrence, and, I believe, community condemnation, but in a qualified way. That qualification is why, in suspending a sentence in a case like this one, particular care has to be taken.

85 There was no persistence in relation to firearms offences, and, in relation to the claim of more general persistence in the commission of offences, I refer again to my discussion of this matter in relation to the prospects for rehabilitation.

86 I have discussed the factors personal to the offender. Those factors go not only to mitigate the sentence which might otherwise be imposed, but also militate in favour of an exercise of mercy in a case such as this one.

87 In sum, having regard to these matters I consider from this analysis, and carefully weighing whether it is appropriate to suspend the sentence in this case, that I should suspend the term of imprisonment in this case, for a period significantly longer than the suspended term. That suspension period should be 24 months.

88 I have concluded that the appeal should be allowed, the sentence of 9 months' imprisonment suspended for 18 months quashed and in lieu of that sentence a sentence of 18 months' imprisonment suspended for 24 months imposed.