Zakkour v The Queen [2020] VSCA 72

2 This application for leave to appeal against sentence concerns only the sentence imposed on the weapon offence.

3 By virtue of s 3(1) of the Control of Weapons Act 1990 ('the Act'), a prohibited weapon is 'an imitation firearm or an article that is prescribed by the regulations to be a prohibited weapon'. Regulation 8 of the Control of Weapons Regulations 2011 ('the Regulations') provides that, for the purposes of the definition of prohibited weapon in s 3(1) of the Act, 'an article listed or described in Schedule 3 is a prohibited weapon'. Item 33 of Schedule 3 lists as a prohibited weapon:

A hand-held battery-operated article commonly known as a 'laser pointer' designed or adapted to emit a laser beam with an accessible emission limit of greater than 1 mW.[[6]]

The 'laser pointer' falls within a list of prohibited weapons which includes such things as Flick knife, Dagger, Knuckle knife, Butterfly knife, Throwing blade, Ballistic knife, Crossbow, Blow gun, Extendable baton, Knuckleduster, Throwing star, Sword, and a host of other weapons (such as a mace, a flail, a cat-o'-nine tails with knotted lashes, a scythe, ninja hand claws, nunchaku, sai, and so on).

4 On 11 December 2019, the judge sentenced the applicant to a total effective sentence of two years' imprisonment, with a non-parole period of 15 months. The individual sentence imposed on the weapon offence was two months' imprisonment, the whole of which was ordered to be served cumulatively on the base sentence. It is convenient to set out the sentence in the following table:

Forensic Sample Order and forfeiture of the laser pointer

5 The applicant relies on a single ground of appeal:

1. The sentence and the order for cumulation on charge 4 (possessing a prohibited weapon) is manifestly excessive.

Particulars:

(a) The offending falls into the low range of offences of this kind;

(b) The offending was not aggravated in any material way;

(c) The accused pleaded guilty to the offence at an early opportunity; and

(d) The sentence imposed significantly exceeds current sentencing practices for the offence.

6 In my view, the ground must succeed. I would grant leave to appeal, allow the appeal and set aside the sentence on the weapon offence, summary charge 4. In lieu, I would sentence the applicant on that charge to be convicted and discharged.[7]

7 The applicant came to be charged with the weapon offence in the following way.

8 On 13 November 2019, the applicant went to his former partner's property and, reaching through the lounge room window, pulled off a curtain covering a window. This was the basis of the criminal damage charge (charge 1). The applicant was arrested the next day, 14 November 2019, and his vehicle was searched. Police found a home-made laser pointer in the pocket of a jumper belonging to the applicant. This is the basis of the weapon offence (summary charge 4). After his arrest, the applicant was remanded in custody. While in custody, on 16 and 18 November 2019 the applicant made telephone calls whereby he attempted to have people call his former partner and ask her to withdraw her police statement. These activities were the subject-matter of the charge of attempting to pervert the course of justice (charge 2), and of the summary charge of contravening a family violence intervention order (summary charge 9).

9 Given that the applicant was represented by counsel, I assume that the applicant and his legal practitioners were satisfied that the home-made laser pointer that was the subject of the weapon offence charge was of sufficient power output to fit the definition in Item 3 of Schedule 3 of the Regulations, and that the applicant's plea of guilty constitutes an admission that this is so.

10 In his reasons for sentence, the judge observed:[8]

During a search of your vehicle police located a homemade laser pointer. Possession of that item constitutes the offence of carrying a prohibited weapon without an exemption, summary Charge 4. I consider that such a weapon is a potentially dangerous item capable of significant injury. At your plea hearing no explanation was proffered for your possession of it.

11 There was scant material put before the sentencing judge by the prosecution, however, to establish whether, and to what extent, the particular home-made laser in question was 'potentially dangerous' and capable of causing 'significant injury'. Indeed, in a reply to submissions by the applicant's counsel on the plea the prosecutor conceded in the following exchange that the applicant's weapon offence was 'at the low end':

[PROSECUTOR]: Your Honour, just to address what my learned friend was saying_. I agree in relation to the possess a prohibited weapon. It is at the low end._ I don't know if you can see this from here. I can pass the iPad up to you, but that is the laser itself.

HIS HONOUR: The laser in question. Show it to - - -

[DEFENCE COUNSEL]: I've seen it, Your Honour.

HIS HONOUR: Or pass it up, I can't see it from here. Thank you.

12 Moreover, the judge's observation in his reasons for sentence that the home-made laser was a potentially dangerous item capable of significant injury does not sit comfortably with the observations he made in the course of the plea, as is clear from the following exchange between the judge and the applicant's counsel:

[COUNSEL]: I didn't touch on - there's a charge for possessing a controlled weapon, Your Honour, which relates to a laser pointer. In my submission that's an offence - that's an example of an offence which is, if I can call it, at the lowest end of that scale. It's a controlled weapon which doesn't even - it's often not carried as a weapon and in my submission that should be dealt with by way of a fine.

HIS HONOUR: What are the legitimate purposes for a laser pointer? Just remind me.

[COUNSEL]: What are some of them? Some of the legitimate - in my submission I can only think of purposes that aren't weapon related. It's not attached to a gun, that is a laser scope. It's anything fun and - it can be dangerous.

HIS HONOUR: I sometimes go to lectures where lecturers point at some board.

[COUNSEL]: Yes.

HIS HONOUR: Is that the same sort of equipment?

[COUNSEL]: It's the same laser pointer that - yes, that's what this particular item does. It does the same thing that Your Honour has seen, people point at lecture boards for, but it also - - -

HIS HONOUR: That's obviously not its only purpose though.

[COUNSEL]: I actually don't know why it's a weapon, but some of them - there have been occasions when other people have used it to, for example, shine in the cockpit of a plane.

HIS HONOUR: Shine at the cockpit of a plane as it passes overhead?

[COUNSEL]: Yes, and that's caused - not [the applicant] because he didn't do it, but as an example of a nefarious and non-nefarious way it's used, but I have encountered them more often as toys or fun items as opposed to weapons.

HIS HONOUR: If you use one of those and you're standing where you are and you shone it right at me, am I capable or potentially injured?

[COUNSEL]: It depends on the actual laser, because I've had - I don't know if Your Honour has had them pointed at you. I had them pointed at me when I was a kid and it didn't cause me issues but that might not be the same. It's probably not the same strength as what Parliament - - -

HIS HONOUR: It might be slightly different equipment.

[COUNSEL]: I think the situation is that Parliament are unable to say that a laser which hurts is a weapon and one that doesn't is not. It's simply an item that people shouldn't be carrying unless they have a reason.

HIS HONOUR: Well, either which way it seems that the prosecution do not suggest that was some sort of a particularly heinous piece of equipment.

[COUNSEL]: No, because he doesn't have an excuse. If he was a lecturer he wouldn't even need permission to use it. He would simply use that. Because it's a controlled weapon, it's - if he had an excuse he would be okay.

HIS HONOUR: But it's a laser, not a taser. Is that - - -

[COUNSEL]: It's not a taser, no. It's a laser. It's a laser pointer - - -

HIS HONOUR: It's a different matter entirely, yes.

[COUNSEL]: - - - so it's exactly what Your Honour says that you see when people have lectures. ...

13 It will be seen from the foregoing that the judge during the plea seemed to understand 'that the prosecution do not suggest that was some sort of a particularly heinous piece of equipment'. By the time he came to sentence the applicant, however, the judge seems to have arrived at the view that the laser in the applicant's possession was a potentially dangerous item capable of causing significant injury.

14 In support of the contention that the sentence for the weapon offence was manifestly excessive, the applicant's counsel submitted in writing that the laser pointer had not been used as a weapon, and it was not used in connection with any of the other offending. There were no aggravating features. Counsel for the applicant submitted that, in the course of the plea, the prosecution had agreed with the defence characterisation of the offence as falling at the lowest end of the scale for this type of offence. Counsel had submitted to the sentencing judge that the weapon offence was deserving of no more than a fine. The prosecution did not demur nor attempt to persuade the judge otherwise. Significantly, the sentencing judge at no point raised with the parties the prospect of imposing imprisonment on the weapon charge, let alone the prospect of ordering the cumulation of the sentence on that charge upon the sentences for the other offending.

15 The respondent's counsel submitted in writing that the sentence on the weapon offence falls within the permissible range and that the order for cumulation was appropriate. Similar submissions were made orally.

16 Except insofar as they may have illustrated that possession of far more dangerous weapons (in greater quantities) generally attracts far more moderate sentences than that imposed by the judge in this case, none of the sentencing cases related to weapons possession cited by the parties - including Barwick,[9] Ahmad,[10] Ludwig,[11] Elmaghraby[12] and Djemal[13] - was of much use in the determination of this application.

17 Nothing was put before the sentencing judge from which he could have found that the applicant's home-made laser pointer was a potentially dangerous weapon capable of significant injury, or could have concluded that the weapon offence was other than at the 'low end' on the scale of offending for this kind of offence. I have viewed the same photograph that the prosecutor showed the sentencing judge. It was not apparent to me from that viewing - nor could it have been apparent to the judge - that it has any conspicuously dangerous qualities.

18 Despite the fact that the applicant has prior convictions for possessing a controlled weapon, and for possessing a prohibited weapon, when proper regard is had to the intrinsic nature of the 'weapon' in this case; the lack of any material as to whether the applicant had, could have or would have used it (or how); and the complete absence of any evidence supporting the judge's findings that it was potentially dangerous and could cause injury; it is plain that the sentence that the judge imposed on the weapon offence is egregiously excessive.

19 As I have indicated, leave to appeal must be granted; the appeal allowed; and the sentence on the weapon offence set aside. On summary charge 4 I would order that the appellant be convicted and discharged.

20 I would confirm the individual sentences on charges 1 and 2 - and the order for cumulation - and the sentence on the other summary charge. As a consequence, the total effective sentence will be 22 months' imprisonment. I would fix a new non-parole period of 13 months. All other orders and declarations made by the sentencing judge should be confirmed.

[1] Crimes Act 1958, s 197. The maximum penalty is 10 years' imprisonment.

[2] Common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 25 years' imprisonment.

[3] See Criminal Procedure Act 2009, s 145.

[4] Control of Weapons Act 1990, s 5AA. The maximum penalty is 240 penalty units or imprisonment for two years (or both).

[5] Family Violence Protection Act 2008, s 123(2). The maximum penalty is 240 penalty units or imprisonment for two years (or both).

[6] The mW, or milliwatt (one thousandth of a Watt), is used to rate the power output of different types of lasers.

[7] Sentencing Act 1991, s 73.

[8] Emphasis added to this and following passages.

[9] Barwick v The Queen [2015] VSCA 100. In Barwick, the Court of Appeal imposed a sentence of two months' imprisonment (one month cumulative on sentences for drug trafficking and other offences) for possession of eight weapons, including two flick knives, a set of knuckle dusters, an extendable baton, a boxcutter, two laser pointers and a taser.

[10] Ahmad v The Queen [2015] VSCA 23.

[11] Ludwig v The Queen [2015] VSCA 35. The applicant in Ludwig was fined $500 each for possessing a knuckleduster and a laser pointer, and $1000 each for possessing an imitation handgun and a hunting knife, all prohibited weapons.

[12] Elmaghraby v The Queen [2016] VSCA 326. In Elmaghraby an aggregate fine of $1000 on four charges possessing a prohibited weapon.

[13] Djemal v The Queen [2020] VSCA 25. In Djemal sentences of imprisonment of 14 days, one month and three months - one month being cumulative on sentences for drugs and firearms offences - were imposed for possession of a sling shot; a cross bow; and swords and machetes.