Upston v Moore [2016] TASSC 32

Magistrates - Appeal and review - Tasmania - Motion to review - Other matters - Sentencing - Whether manifestly excessive - Drug and firearm offences - Partly suspended sentence of imprisonment.

This is a motion for the review of some sentencing orders made by a magistrate, Ms S Cure. On 17 June I made orders allowing the motion to review, quashing the sentencing orders, and adjourning the matter for re-sentencing. These are my reasons for those orders.
On 12 January 2016 the learned magistrate imposed on the applicant a global sentence of six months' imprisonment, of which three months was suspended on condition that he not commit an offence punishable by imprisonment within a period of 18 months. She also fined him $200. The motion to review related only to the sentence of imprisonment, and not to the fine. The applicant contended that the sentence was manifestly excessive.
These penalties were imposed in relation to 16 charges that arose from a police search of the applicant's home on 2 September 2015. Four of the charges related to drugs. The others related to three unregistered homemade firearms, some ammunition, and a crossbow.
The drug charges related to the following:
- Possession of 22 grams of crystal methylamphetamine.
- Possession of 96.9 grams of cannabis.
- Possession of a glass pipe, which could be used for smoking methylamphetamine.
- Possession of a device for smoking cannabis.
The learned magistrate was told that the 22 grams of crystal methylamphetamine were worth about $20,000.
The applicant was sentenced on the basis that the three homemade firearms were brought to his house by a friend; that they did not belong to him; that two of them did not work; that the third could only be made to work if a trigger were installed; that the applicant believed that none of them were capable of working; and that he did not realise that they needed to be registered or properly stored. The inoperable items comprised a homemade rifle and a homemade pistol. The third item had been created by modifying a device that is used by members of the emergency services to rescue people trapped in cars. The device, as designed, has a spring that activates a pointed part of the device that can be used to break windows. It also has a knife for the cutting of seat belts. It had been modified so that, on activation, the metal point would propel a bullet through a homemade barrel that had been added to it.
In relation to each of the three items, the applicant pleaded guilty to three offences:
- Possessing a firearm when not the holder of a firearm licence of the appropriate category, contrary to s 9(1) of the Firearms Act 1996.
- Possessing an unregistered firearm, contrary to s 74(1) of the Firearms Act.
- Failing to take all precautions to ensure the safekeeping of a firearm, contrary to s 84 of the Firearms Act.
All of those firearms offences are punishable by imprisonment and/or a fine.
The applicant pleaded guilty to a single charge of possessing ammunition when not the holder of the appropriate firearm licence, contrary to s 105(3)(a) of the Firearms Act. That charge related to a 12 gauge shotgun cartridge, a .38 hollow point ammunition cartridge, and two other ammunition cartridges. That offence was punishable only by a fine.
The applicant also pleaded guilty to having possession of a crossbow when not authorised in writing by the Commissioner of Police, contrary to s 15D(1) of the Police Offences Act 1935. That offence was punishable only by a fine, but the learned magistrate did not realise that. She sentenced the applicant on the basis that police officers had seen the crossbow during an earlier search and not realised that its possession was unlawful, and that the applicant had thereafter kept it without realising that his possession of it was unlawful.
The fine of $200 related to the two smoking devices and the ammunition. The partly suspended sentence of imprisonment related to the two charges of possessing controlled substances, the nine charges relating to the homemade firearms, and the charge relating to the crossbow.
These offences were all committed during a period of offending in respect of which the learned magistrate had previously imposed on the applicant a wholly suspended sentence of 12 months' imprisonment. She imposed that sentence on 22 October 2015. The offences to which it related, in chronological order, were as follows:
- On 10 August 2013, using a controlled drug.
- Between 10 and 11 August 2013, using a controlled plant or its products.
- On 14 August 2013, selling a controlled drug, possessing a firearm without the appropriate licence, possessing ammunition without the appropriate licence, possessing a firearm, possessing a silencer (two charges), possession of a controlled drug (two charges), possessing a controlled plant or its products, possessing a thing used for the administration of a controlled drug, and unlawful possession of property.
- On 17 August 2013, selling a controlled drug.
- On 20 September 2013, driving while unlicensed.
- On 22 January 2015, driving while unlicensed.
- On 11 May 2015, driving while unlicensed, driving an unregistered vehicle, and driving an uninsured vehicle.
- On 17 June 2015, possessing a controlled drug, possessing body armour without a permit, possessing a firearm without the appropriate licence, possessing ammunition without the appropriate licence, selling a controlled drug, possessing a controlled animal that had been brought into the State, possessing a restricted animal, and unlawful possession of property (three charges).
- On 26 August 2015, unlawful possession of property.
- On 22 October 2015 (after the commission of the offences to which these proceedings relate), breach of bail conditions, using a controlled drug, possessing ammunition without the appropriate licence, unlawful possession of property, possessing a controlled drug (two charges), selling a controlled drug, and overtaking to the left of a vehicle (two charges).
The learned magistrate sentenced the applicant on some other charges on 22 October 2015 that were not the subject of the wholly suspended sentence that she imposed that day. One of them was a charge of driving a motor vehicle whilst a prescribed illicit drug was present in his blood. That offence was committed on 11 May 2015.
When the applicant committed the offences to which these proceedings relate, he had no prior convictions for drug offences, but was on bail in relation to several drug offences and many other offences.
In my view the most serious charges to which this motion to review related were the charges relating to the possession of methylamphetamine and cannabis. In relation to those charges, the learned magistrate was told a number of things by the applicant's counsel, none of which were disputed by the prosecutor, as follows. At the time of the relevant search, the applicant had a drug problem. The drugs were for his personal use. Once he received the 12-month suspended sentence in October 2015, he ceased using illicit drugs, and distanced himself from his old associates. He was living at the home of his parents, in a separate living area below the family home. His parents were aware of his situation and were supporting him to overcome his addiction and to cease associating with certain individuals. There was no suggestion that he had breached the conditions of the suspended sentence.
The applicant made full admissions to the police following the search of his home. He had pleaded guilty to the charges, but at a late stage.
The applicant was 29 years old at the time of the police search and 30 when sentenced. He was fined in 2005 on four charges relating to an unregistered air rifle, for offences committed when he was 18 years old. Otherwise he had no significant prior convictions.
Suspended sentences are imposed with a view to encouraging rehabilitation. The information before the learned magistrate indicated that, in the period of about three months since receiving his wholly suspended sentence, the applicant had taken every reasonable step towards his rehabilitation. The quantity of methylamphetamine found in the applicant's possession on the day in question was certainly valuable, but it did not amount to a trafficable quantity for the purposes of the Misuse of Drugs Act 2001. He had been given a substantial suspended sentence on the basis that he had been a drug user. The wholly suspended sentence related to offences that included multiple drug offences committed both before and after the day of the police search. The 12-month suspended sentence related in part to drug offences committed on six or seven days during the period from 10 August 2013 to 22 October 2015. The new convictions related to just one more day during that period.
In the words of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, I think that, in all the circumstances, it was unreasonable and plainly unjust for the learned magistrate to send the applicant to prison for the offences to which these proceedings relate, particularly in the light of the information relating to his steps towards rehabilitation since the imposition of her previous sentence. I do not think the offences in question were so serious as to make such a sentence reasonable. In my view an additional wholly suspended sentence and/or a community service order would have been appropriate. The learned magistrate did not consider the making of a community service order.
For these reasons, I ordered that the motion to review be allowed and that the partly suspended sentence of imprisonment be quashed. I ordered a report from a probation officer as to the applicant's suitability for a community service order. I will hear counsel in relation to re-sentencing.

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