Williams v Parker [2016] TASSC 39 (29 July 2016)

Groenewege v Tasmania [2013] TASCCA 7, applied.

1. The principles to be applied in determining a motion to review a sentence imposed by a magistrate on the ground of manifest excess or inadequacy have been stated on many occasions. The appeal cannot succeed unless the sentence imposed is unreasonable or plainly unjust; so obviously excessive that some error in the exercise of the sentencing discretion can be implied: Bresnehan v The Queen [1992] TASSC 55 at [13], [1992] TASSC 55; 1 Tas R 234 at 242; Visser v Smart [1998] TASSC 151; Lusted v Kenway [2008] TASSC 47, 50 MVR 533 at 539 [38]. This Court must not substitute its own opinion for that of the sentencing magistrate, who has a wide discretion. The expression of manifest excess or manifest inadequacy is a conclusion formed by giving regard to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45, 242 CLR 520 at 539 [59].
2. The applicant was entitled to some mitigation for his plea of guilty but he could hardly have had a defence to the most serious charge, and his repeated offending disclosed no claim to remorse. There was little to suggest from the applicant's record and personal circumstances that there was any real prospect of reform or rehabilitation.
3. The quantity of controlled substances found in the applicant's possession on 24 December 2015 did not warrant the sentence imposed, but added to the applicant's overall criminality. His record for drug offending is poor and he possessed the illicit drugs despite the recent imposition of a suspended sentence for, in part, offences of a similar nature.
4. The firearm offences are obviously the most serious. A person who possesses a firearm and is not the holder of a firearm licence of the appropriate category as specified in Div 2 of the Act in respect of that firearm, commits an offence against s 9(1), punishable summarily by a fine not exceeding 100 penalty units, or imprisonment for a term not exceeding two years, or both. Only a month before this offence was committed, s 9 was amended to double the maximum fine which may be imposed by a magistrate, but also to provide for the charge to be indictable and thus punishable under the Criminal Code. Both amendments indicate the view of the legislature about the seriousness of the offence. Possession of a shortened firearm is an offence contrary to s 116(b) and is punishable by a fine not exceeding 50 penalty units, or imprisonment for a term not exceeding two years, or both. By s 130(1), if the Commissioner of Police forms the opinion that a person is unfit, in the public interest, to possess or use a firearm, the Commissioner may make an order called a firearm prohibition order. Upon service, the order prohibits the person from possessing or using a firearm. A person who possesses a firearm in contravention of such an order commits an offence punishable by a fine not exceeding 50 penalty units or imprisonment for a term not exceeding two years, or both: s 132(1). The applicant was served with such an order on 24 January 2014.
5. A person who possesses a stolen firearm commits an offence against s 107A. Section 107A was inserted into the Act by amendment in 2015 and became operative on 4 November 2015 as a legislative response to concern about the association between stolen firearms and other crimes of dishonesty and violence. The offence is an indictable offence punishable under the Code or may, as in this case, be tried summarily. If dealt with summarily, the offence is punishable by a fine not exceeding 100 penalty units, or imprisonment for a term not exceeding five years, or both. By reference to the Minister's second reading speech made in the House of Assembly on 24 and 25 March 2015, the creation of the offence and the heavy potential penalties which accompany it, disclose a legislative intention that those found in possession of a stolen firearm should face a harsh punishment.
6. The applicant was found in possession of a stolen shortened single barrel shotgun. Whilst involving only one course of conduct, it involved serious criminality reflected in the numerous offences which he thereby committed. With his record he could never have obtained a licence for any form of firearm. It follows from the terms of s 107A(5) that the applicant was unable to provide a satisfactory account for his possession of the firearm. It is difficult to imagine that there could ever be a legitimate and innocent reason for possessing such a weapon. The applicant certainly had no such reason. Whilst he was to be sentenced on the basis that he acquired the gun because of his perceived need for protection from the threats of violence, that explanation provides no mitigation. The law must strongly discourage resort to unauthorised possession of firearms, especially those of this nature, for purposes of personal protection. As the sentencing magistrate correctly recognised, it is a recipe for dangerous lawlessness. The firearm prohibition order to which the applicant was subject was obviously made because of the applicant's bad record for unlawfully possessing firearms, especially those of the type so often associated with a violent or dishonest purpose, and to discourage his future possession and use of such firearms. His possession of a stolen weapon of this character made breach of the terms of that order a particularly serious offence. He showed disrespect for the order and disregard for the law. Unless breach of such orders results in harsh punishment, their purpose and effect is undermined. The order and sentences of imprisonment did not dissuade the applicant from continuing to offend. It was an aggravating factor that the offences were committed only two months after imposition of a suspended sentence. It was also aggravating that the applicant had possession of the firearm when he was in possession of and using illicit drugs. That added to the danger to the public. As the sentencing magistrate made clear, the overwhelming sentencing considerations were punishment and general and specific deterrence. Although the applicant was not to be punished for his record, it pointed to a very strong need for personal deterrence and protection of the public.
7. The circumstances of these offences, taken with the terms and object of the maximum statutory penalties available to the magistrate, clearly reveal that a head sentence of imprisonment for 14 months was not beyond the range of sentences reasonably open to the magistrate.

1. The learned magistrate did not make an order under s 17(2), either that the applicant is not eligible for parole at all, or is not eligible for parole until the expiration of a specified period. His Honour did not mention the issue of parole. Consequently, by operation of subss (3A) and (6), the result is that the applicant is not eligible to be released on parole in respect of the sentence his Honour imposed. It would have been desirable for his Honour, in accordance with the terms of subs (7), to give reasons for a decision to make, or not make, an order under subs (2). However his Honour is an experienced magistrate and reserved sentence for more than a week. It must be assumed that his Honour decided not to make an order for parole. The failure to give reasons is not a ground of the motion and, sometimes, the sentencing remarks themselves sufficiently reveal why an order was, or was not, made. Reasons for not making an order are readily discernible in this case.
2. By not making an order under Sentencing Act, s 17(2), the sentencing magistrate effectively increased severity of the punishment by delaying the applicant's possible release from prison: Hunt v The Queen [1999] TASSC 63 at [23]-[26]. The Sentencing Act, s 17(4), provides the court with guidance in exercising its discretion with respect to parole eligibility. The non-parole period should be "the minimum period the judge determines that justice requires the prisoner must serve, having regard to all the circumstances of the offence": Power v The Queen [1974] HCA 26, 131 CLR 623 at 629; , ; ; at 452 per Blow CJ; at -[53]. It is convenient to repeat what was said by Porter J in at -[57]:

"Under the Sentencing Act 1997 s17, there is no parole eligibility unless it ordered that the offender is not eligible for parole before the expiration of a specified period. That period must be not less than one half of the head sentence. A non-parole period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances. The fixing of a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines: Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629; Carr v R [2002] TASSC 60; (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47].

"Of course, there is no presumptive starting point for parole eligibility, but those cases provide an indication of the types of matters which may justify the benefit of the total available opportunity for parole. Without wishing to be prescriptive, apart from the nature of the offending itself, one factor which would justify a requirement to serve a greater proportion of the head sentence than one half, is a bad criminal record: Enniss v Tasmania [2012] TASCCA 10 at [21]; Wahl v Tasmania [2012] TASCCA 5. Other, perhaps associated, factors would be the protection of the community as a whole: Mabb v Tasmania [2008] TASSC 22 at [27], and a poor previous parole history."

1. Evans J, sitting as a member of the Court of Criminal Appeal in Devine v The Queen [2003] TASSC 52, said at [30]:

"The totality principle applies to both the head sentence and a non-parole period, Mill v R [1988] HCA 70; (1988) 166 CLR 59. Subject to the need to preserve a sentence's capacity to achieve all its intended objectives, in my view, a court should, in its approach to fixing a parole eligibility date, if any, be optimistic about a prisoner's rehabilitation prospects. If that optimism proves to be misplaced, it is reasonable to expect that the prisoner will not be paroled as the Parole Board is only empowered to grant a prisoner parole after considering the matters detailed in the Corrections Act, s72(4), which include the rehabilitation of the prisoner, the likelihood of the prisoner re-offending, and the protection of the public."

1. Many of the factors relevant to determination of the head sentence are also relevant to the grant of parole. Considered in isolation, the nature and circumstances of the offences committed by the applicant provide no strong indication, one way or another, about whether parole eligibility should be ordered. However the nature and circumstances of the offences assume more significance when considered in light of the applicant's bad criminal history and the obvious need to protect the community. His record, albeit in 2006 and 2007, demonstrated poor compliance with parole. The applicant offended despite previous lengthy sentences of imprisonment and the suspended sentence to which he was subject. There was nothing put before the sentencing court which pointed to any real chance of reform or rehabilitation, and so it cannot be said that his prospects of rehabilitation required an allowance for conditional freedom. The applicant's record pointed to the contrary.
2. It is relevant in this case that the sentence the applicant was required to serve is cumulative to the three-month suspended sentence which his Honour activated, resulting in a total term of 17 months without parole. The activation of that sentence is relevant in considering the totality and proportionality of the aggregation of the sentences. The principle of totality applies when a person is sentenced at a time when he or she is already serving or liable to serve other sentences of imprisonment: R v Gordon (1994) 71 A Crim R 459; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 308; Harland-White v The Queen [1998] TASSC 1; Draper v Tasmania Police [2004] TASSC 120; Director of Public Prosecutions v Farmer [2005] TASSC 15; 13 Tas R 418 per Evans J at [24]; LWR v Lusted [2009] TASSC 3, 19 Tas R 233, and per Crawford CJ at [18]. As Hunt CJ at CL in pointed out at 466:

(1974) 131 CLR 623

(2002) 11 Tas R 362

(1988) 166 CLR 59

(1997) 189 CLR 295