Wong v Bradley[2011] QDC 339

[2011] QDC 339

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE DEVEREAUX

No 434 of 2011

BRISBANE 

DATE 09/09/2011

ORDER

HIS HONOUR:  The appellant was charged with one count of unlawful possession of weapons pursuant to section 50{1) of the Weapons Act 1990 and one count of possessing an unauthorised explosive pursuant to section 11(1) of the Explosives Act 1999. Both offences occurred early in the morning of 9 August 2010.

The appellant pleaded guilty to those charges later that morning before a Magistrate at Southport.

The appellant was 28 years old at the time and has no criminal history.

The Magistrate imposed a sentence of two years' imprisonment, wholly suspended, for the Weapons Act charge and convicted but did not further punish the appellant for the Explosives Act charge.

The appeal is against sentence and both sentences are recorded on the Notice of Appeal. So, I consider that they are both open to my further adjudication.

This appeal under section 222 of the Justices Act is an appeal by way of rehearing on the original evidence, and I have read that material.

The prosecutor told the learned Magistrate that at about 4.15 a.m. on 9 August 2010 detectives from the Gold Coast CIB intercepted a vehicle on the Pacific Motorway at Oxenford in relation to another matter. The appellant was the front passenger. He was searched and police found a loaded pistol located and seized from his underwear. It was a 22 calibre Gunman semiautomatic pistol. The pistol was rendered safe by Coomera police officers.

Pleading guilty as soon as it was possible on that morning with the assistance of a duty lawyer, the appellant told the court that he lived in Brisbane with his mother and girlfriend, he was born in Hong Kong and moved to Australia in 1994. He was very intoxicated and only came into contact with the pistol a few hours before the car was stopped. He didn't realise there was any ammunition in it. He acknowledged that possessing the weapon was a very stupid thing to do.

The duty lawyer, as well as telling the magistrate these things on the appellant's behalf, told the magistrate that the appellant was nervous when she spoke to him. He'd never been in trouble with the police before. The appellant was working full-time as a chef at the Brisbane Domestic Airport. So, he was in a steady job and a stable relationship, a man of 28 years from Hong Kong originally with no criminal convictions.

The magistrate, with respect, quite reasonably, considered the facts of the case very concerning. It was a concealable illegal firearm and it was loaded and the appellant was intoxicated and travelling in a vehicle in the early hours of the morning. His Honour described the offence as an appalling lack of judgment and a gross failure to take into account the risk that the loaded concealed firearm may pose to the public. With respect, I think those comments are entirely appropriate.

His Honour went on:

"You have offered absolutely no reason for being in possession of it other than you came into contact with the pistol a few hours earlier."

I think that's right, too.

In terms of the nature of the offence, there's little mitigation, and this is an offence which carries a maximum of seven years' imprisonment dealt with summarily upon prosecution election.

Mr Smith, on the appellant's behalf, has referred me to a number of cases. For completeness, I'll read into the record their names: Di Palmer - a District Court decision of 10 July 2007, Dalby and Ah-Quee - [2001] QCA 347, Stanek - a Magistrates Court decision on 23 March 2001, Rogers and Smith [2005] QDC 428, R v. Scherer [1994] QCA 377 and Carnes and Essenberg [1999] QCA 399.

Predominantly, those cases involve imposition of fines. One of them involves a suspended sentence. None of them really factually fits the present case.In a sense, some are more serious. They involve the use of weapons on drug plantations - in one case, even wielding it at a police officer. But at the end of the day, they don't provide great assistance to the decision that his Honour had to make and that I must make.

I am satisfied that it was within range, given the circumstances of the case, even in the face of the appellant's lack of criminal history, for the learned Magistrate to conclude that a sentence of imprisonment wholly suspended was called for. I'm also satisfied, however, that a sentence of two years is manifestly excessive, even though it was wholly suspended. In my view, it was appropriate to impose a sentence of six months, but wholly suspend it. Now, what has happened is Mr Wong has been subject to the suspended sentence for about 13 months. I've also concluded that it's in the community's interest for Mr Wong to be under supervision and the way to achieve that is to impose a probation order on the second charge that he faces.

I just wanted to make plain, if it's not already obvious from the remarks I've made, that this is a very serious offence. It's a very worrying example of the offence, as the learned magistrate said. It carries quite a substantial maximum penalty. That penalty has been in place since about 2003. Before that, it was, from memory, two years for this category of weapon. So, in 2003, the Parliament decided that it needed to be increased to seven years.

It is a very significant maximum penalty and it's a very serious example of the offence, in my view, and that's why it requires a penalty of imprisonment, but in the circumstances, it's proper that it be wholly suspended and one only of six months. His having already been subject to a suspension for more than a year, the appropriate operational period is six months.

So, Mr Smith has told me that Mr Wong would consent to a probation order if I were minded. So, rather than my recite the conditions that would apply, I'll make these orders:

The sentences imposed by the learned Magistrate are set aside.

Instead of them, for the charge under the Weapons Act , I impose a sentence of imprisonment for six months, suspended immediately for an operational period of six months. That means that to avoid the activation of that period of imprisonment, Mr Wong must not commit an offence within the next six months that is punishable by imprisonment.

For the Explosives Act offence, I order that Mr Wong be released under the supervision of an authorised Corrective Services officer for 12 months on the conditions set out in section 93(1) of the Penalties and Sentences Act .

I make it plain that if there is a breach of that, action can be taken to return Mr Wong to Court. One of the options will be re-sentencing for the offence.I also make it plain that the order may be amended or revoked upon the application of Mr Wong, or an authorised Corrective Services officer, or the Director of Public Prosecutions.

Mr Smith, will you tell your client in detail the conditions of-----

MR SMITH: I will, your Honour.

HIS HONOUR: -----probation.  Thank you for that.  Any other orders required?

MR SMITH: I do seek costs, your Honour, of $1,500. My client has funded the appeal. It's not his fault that the sentence was excessive. So, it would be appropriate for him to be compensated for his cost at least to that extent. I don't think your Honour can make an Appeal Costs Fund Certificate-----

HIS HONOUR:  No.

MR SMITH: -----because the Crown's involved. So, whichever way it came about, the money would come out of the Appeal Cost Fund or from the police service, whichever way it was, but I do ask for those costs-----

HIS HONOUR:  Hm-mmm.

MR SMITH:  -----today, your Honour.

HIS HONOUR: What's the section about costs that relates to the - the costs of the appeal in section 232 says:

"If upon any appeal the judge orders either party to pay the costs, such order shall direct such costs to be paid to the Registrar to be paid over to the party entitled to the same."

And that's it.

MR SMITH: So, there is a general discretion as to how much - whether they should be awarded. The regulation limits it to $1,500, including counsel and solicitor, except if it's a complex matter, but I'm not arguing that, your Honour.

HIS HONOUR: The difficulty is that it was an indictable offence dealt with summarily, you see.

MR SMITH:  Oh, I-----

HIS HONOUR: Subsection (4) - there were two charges here. One was summary, but one was indictable-----

MR SMITH:  Oh, I see.

HIS HONOUR: -----and that was really the - where all the energy went. Subsection (4) requires that no order-----

MR SMITH:  Yes.

HIS HONOUR: -----as to costs be made.

MR SMITH: Yes, I see - I see, your Honour, your Honour's point there.

HIS HONOUR: I think at the end of the day I'm not inclined to order costs.

MR SMITH: I've made my submissions, your Honour.

HIS HONOUR:  Yes.

MR SMITH:  Thank you.

HIS HONOUR: And I'll say that plainly - that because of the provisions of subsection (4) of 232 of the Justices Act , it is not open to make an order for costs on the appeal in relation to an indictable offence dealt with summarily. Indeed, (b) goes on to say : "Or any preceding preliminary or incidental to an appeal mentioned in paragraph A." That seems to-----

MR SMITH:  That probably does cover it.

HIS HONOUR: -----also exclude costs-----

MR SMITH:  Yes.

HIS HONOUR: -----for the summary charge.

MR SMITH:  Yes, definitely.  Thank you, your Honour.

HIS HONOUR:  Thank you both.

MR COOK:  Thank you, your Honour.

HIS HONOUR: In case it's not clear - and it won't be clear if I don't say so, I record a conviction on the Explosives Charge-----

MR SMITH:  Yes, your Honour.

HIS HONOUR:  -----with the probation order.

MR SMITH:  Thank you, your Honour.