Rule v Commissioner of Police[2016] QDC 64

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 30 October 2015, the appellant filed a Notice of Appeal against the orders made in the Magistrates Court at Maroochydore on 30 September 2015 and in sentencing him (respectively) upon his guilty pleas to the following offences (all committed on 9 March 2015):

1. Contravene directional requirement (s 791(2) Police Powers and Responsibilities Act 2000) – convicted and not further punished.

2. Possession of a knife in a public place or school (s 51(1) Weapons Act 1990 – convicted and not further punished).

3. Possession of an explosive (a 22 calibre bullet) without authority (s 34(1) Explosives Act 1999) – convicted and not further punished.

4. Unlawful possession of a weapon (s 50(1) Weapons Act 1990) – 12 months imprisonment with a parole eligibility date fixed at 29 September 2016.

2. [2]
   Before summarising the facts and the circumstances of the appellant’s offending, as they were placed before the sentencing magistrate, it should be noted that like a number of matters that have come to the attention of this Court in more recent times,^[1] the longstanding and desirable practice of marking the documents received as evidence in sentencing proceedings, as exhibits, was not followed. It is, of course, of importance to understand that absent leave being granted to adduce new evidence, pursuant to s 223(2) of the Justices Act 1886, the appeal to this Court proceeds by way of rehearing on the original evidence, or the record and it is of course necessary at the outset to determine what that record was and therefore the materials to which this Court is to have regard. In this case, consideration of the transcript of the sentencing hearing, together with the Magistrates Court file enabled it to be determined that some materials had been provided to the Magistrate in advance of the hearing and then referred to in the course of the hearing and others were tendered to him in the course of the sentencing hearing. Whilst by that methodology, it was possible to determine and identify the documents that should have been marked as exhibits,^[2] it is an unnecessary distraction and has the potential to introduce uncertainty into proceedings in this Court as to what constituted the record below.

3. [3]
   It is not apparent as to why the longstanding practice, in all courts, as to noting the acceptance by the Court of such evidence for consideration, by actually stating that in the course of the hearing and noting it on the document so admitted. Typically that is formally done by announcing at an appropriate time that such a document is admitted and marked as an exhibit and given a number or other identifying notation. For the reasons just discussed, this is both a sensible and desirable practice and in my view should be followed, even in a busy magistrates court.

4. [4]
   Reference to the “Sentencing Schedule” that was placed before the Magistrate discloses the following as to the facts of the offences. At approximately 5:20pm on 19 March 2015, police who were attending an address at 2 Coraki Street, Battery Hill, noticed the appellant rummaging through the boot of a blue coloured Mitsubishi Lancer hatchback parked in Careen Street, Battery Hill. Due to their observations of him, police approached the appellant who was described as “sweating profusely, erratic in his movements, dilated pupils and very fidgety” and asked him what he was doing. He stated he was about to go to the Currimundi Hotel to meet a friend. On enquiry he told them that the owner of the vehicle was a friend he only knew as Mark but was unable to provide any contact details. When requested by police to say his full and correct name, the appellant stated his name to be Christopher John Pearce and that he did not have any identification on him. After checking in respect of that name and not being able to locate any record of it, the appellant was again asked to state his full and correct name and advised that it was an offence to provide a false name to police. He again provided the name Christopher John Pearce but after further questioning, he said to police “you’ve got me, I am wanted on a warrant, my name is Christopher John Rule”. It was then confirmed that the appellant was wanted on a return to prison warrant and he was arrested. When police advised that he was to be searched, he produced a large hunting knife from the side of his pants and declared that to police. He said he had the knife because he was “homeless and it’s not safe out there”. During the search of the vehicle and on the rear seat of it, police located a small black backpack and within that bag, located a homemade spring loaded handgun, which on inspection was observed to be loaded with a .22 calibre bullet within the barrel of that gun.

5. [5]
   The appellant, who was 24 when he offended, had a significant criminal history. From mid-2008 to mid-2010, he had six Magistrates Court appearances for dishonesty and other offending and fines and community based orders were imposed. Subsequently and in the District Court and on 18 August 2010, he was sentenced to 2 years and 6 months imprisonment, suspended after serving 6 months for an operational period of 3 years, and 6 months imprisonment and 3 years probation, concurrently and respectively for offences of armed robbery in company and attempted armed robbery in company, each committed on 30 May 2009. Then on 6 May 2011, he was again sentenced for an offence of doing grievous bodily harm on 29 April 2010 and some summary offences, to 4 years and 6 months imprisonment and after the declaration of 161 days of pre-sentence custody, a parole eligibility date was fixed at 5 January 2013. He had been released on parole on 9 January 2014, but that was suspended on 17 March 2014 and the appellant was returned to custody on 18 March 2014 and on 9 April his parole was indefinitely suspended. He was re-released to parole on 22 September 2014 but that parole was the suspended on 8 October 2014 and cancelled on 22 October 2014, before he was returned to custody after his arrest for the subject offences on 9 March 2015. He was due to and did complete serving the existing sentences on 7 November 2015 and prior to being sentenced on 30 September 2015, his existing parole eligibility date was 5 January 2013.^[3]   

The Appeal

6. [6]
   The ground of appeal in the Notice of Appeal is that the sentencing magistrate:

“… erred by sentencing Mr Rule for the simpliciter charge of possessing a Category H weapon on the basis that he offence occurred in public and therefore that s 50(1)(d)(iii) of the Weapons Act 1990 Qld applied and the minimum penalty was 12 months to be served wholly in a correctional centre in circumstances where neither the prosecutor nor his Honour amended the simpliciter charge to the circumstance of aggravation before sentence was passed.”

7. [7]
   That is and as the matter was argued before this Court, it is contended that the Magistrate erred in sentencing the appellant on the basis of an uncharged circumstance of aggravation, as is provided in s 50(1)(d)(iii) of the Weapons Act 1990 and in accordance with what is there provided as a “minimum penalty” (or as it was referred to by the prosecutor below and the respondent in this Court, variously as a “mandatory minimum penalty” or “minimum mandatory penalty”). It is therefore convenient to set out s 50 of the Weapons Act 1990:

“50 Possession of weapons

1. (1)
   A person must not unlawfully possess a weapon.

Maximum penalty—

1. (a)
   if the person unlawfully possesses 10 or more weapons at least 5 of which are category D, E, H or R weapons—13 years imprisonment; or

2. (b)
   if paragraph (a) does not apply and the person unlawfully possesses 10 or more weapons—500 penalty units or 10 years imprisonment; or

3. (c)
   if paragraphs (a) and (b) do not apply—

1. (i)
   for a category D, H or R weapon—300 penalty units or 7 years imprisonment; or

2. (ii)
   for a category C or E weapon—200 penalty units or 4 years imprisonment; or

3. (iii)
   for a category A, B or M weapon—100 penalty units or 2 years imprisonment.

Minimum penalty—

4. (d)
   for an offence, committed by an adult, to which paragraph (a), (b), (c)(i) or (c)(ii) applies—

1. (i)
   if the person unlawfully possesses a firearm and uses the firearm to commit an indictable offence—18 months imprisonment served wholly in a corrective services facility; or

2. (ii)
   if the person unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence—1 year’s imprisonment served wholly in a corrective services facility; or

3. (iii)
   if the person unlawfully possesses a short firearm in a public place without a reasonable excuse—1 year’s imprisonment served wholly in a corrective services facility; or

5. (e)
   for an offence, committed by an adult, to which paragraph (c)(iii) applies—

1. (i)
   if the person unlawfully possesses a firearm and uses the firearm to commit an indictable offence—9 months imprisonment served wholly in a corrective services facility; or

2. (ii)
   if the person unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence—6 months imprisonment served wholly in a corrective services facility.

1. (1A)
   For the purpose of subsection (1), penalty, paragraph (d)(iii), but without limiting that provision, it is a reasonable excuse to unlawfully possess the short firearm in the public place if—

1. (a)
   a licence was in force within the 12 months immediately before the day the person committed the offence but is no longer in force at the time of the offence; and

2. (b)
   the person would have been authorised under this Act to possess the short firearm in the public place at the time of the offence if the licence was still in force at that time; and

3. (c)
   it was not a reason for the licence being no longer in force that the licence had been surrendered, suspended or revoked under this Act.

1. (1B)
   It is not a reasonable excuse for subsection (1), penalty, paragraph (d)(iii) to unlawfully possess the short firearm in the public place for the purpose of self-defence.

2. (2)
   A court, in sentencing a person found guilty of an offence against subsection (1), may take into consideration whether the person stored the weapon in the way prescribed under a regulation for the weapon.
3. (3)
   In this section—

public place includes any vehicle that is in or on a public place.”

8. [8]
   As is pointed out by the appellant, this charge, as it was before the Magistrate and upon which the sentence in issue was imposed, was set out in the bench charge sheet as follows:

“WEAPONS ACT 1990 50(1) UNLAWFUL POSSESSION OF WEAPONS

That on the 19th day of March 2015 at Battery Hill in the State of Queensland one Christopher John Rule unlawfully possessed a weapon namely a Category H homemade spring loaded handgun.”

The procedure adopted for the charging of the appellant appears to have been pursuant to s 42(2) of the Justices Act 1886, which requires that “particulars of the charge against the defendant shall be entered on the bench charge sheet” and treats that as an alternative form of complaint for the purpose of commencement of proceedings under that Act.^[4] As pointed out for the appellant, the offence charged pursuant to s 51 (the Weapons Act 1990), is an indictable offence that may be dealt with summarily, at the election of the prosecution.^[5] Accordingly and as that occurred here, the maximum penalty which may then be imposed is 150 penalty units or 3 years imprisonment.^[6] It may be further noted that s 159 of the Weapons Act1990 requires that:

“The Criminal Code , with all necessary adaptions, is to be read and construed with this Act.”

9. [9]
   It is then pointed out that if there is prosecution by indictment:

1. (a)
   Section 564(2) of the Criminal Code provides that:

“If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment”;

2. (b)
   In the Criminal Code, “circumstance of aggravation” is defined, in s 1, as meaning:

“… Any circumstance by reason whereof an offender is liable to greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance”; and

3. (c)
   The indistinguishable provisions of the Western Australian Criminal Code were the basis of the decision of the High Court in R v De Simoni,^[7] which determined that in sentencing an offender, it was not permissible to have regard to any circumstance that would amount to an uncharged circumstance of aggravation.

10. [10]
    However, it was also correctly recognised that this offence was not dealt with on indictment, but rather as “simple offence”, as that term is defined in s 4 of the Justices Act 1886, as meaning:

“… Any offence (indictable or not) punishable, on summary conviction before a Magistrates Court, by fine, imprisonment, or otherwise.”

Accordingly, it was noted that:

1. (a)
   Regard was necessary to s 47(4) of the Justices Act 1886, which provides:

“Unless otherwise expressly provided, if, for the purpose of the assessment of penalty in respect of a simple offence, it is intended to rely upon a circumstance which renders the defendant liable, upon conviction, to a greater penalty than that to which the defendant would otherwise have been liable, that circumstance shall be expressly stated in the complaint made in respect of that offence.”; and

2. (b)
   In Constable SJ Miers v Blewett,^[8] this provision was recognised as combining “the definition of ‘circumstance of aggravation’ in s 1 of the Criminal Code and the provision in s 564(2) of the Criminal Code, with textual alterations to cater for effects of differences between simple offences and indictable offences” and as attracting the principle determined in R v De Simoni.

11. [11]
    Accordingly and in essence, the submission for the appellant is that:

“Section 50(1)(d)(iii) of the Weapons Act 1990 provides for a circumstance of aggravation that had to be expressly stated in the complaint if it was to apply. The sentencing Magistrate erred in ruling otherwise. The sentencing Magistrate’s discretion miscarried when he proceeded on the basis that any term of imprisonment imposed for the offence must be at least 1 year wholly served in a correctional facility.”^[9]

12. [12]
    The ruling to which reference is made, occurred in the following circumstances:

1. (a)
   When the prosecutor sought to draw the Magistrate’s attention to what he referred to as “a minimum mandatory period of imprisonment”, the appellant’s solicitor sought to point out that he “hasn’t been charged with any aggravation, so it’s a possess weapon simpliciter” and further contended that “[m]andatory sentencing only applies if the aggravation has been charged” and that as it “hasn’t been charged, he can’t be sentenced on that basis”.^[10]

2. (b)
   The prosecutor sought to maintain that the provisions of s 50(1)(d)(iii) did apply and after some further submissions were made, including reference by the appellant’s solicitor to the decision in R v De Simoni and a short adjournment, the prosecutor maintained the position that the provision was not required to be charged because it sets a “mandatory minimum” and “doesn’t mean the defendant is liable to a greater punishment”, but and in the alternative, intimated an intention “to make application to amend the charge”;^[11] and

3. (c)
   After further adjourning to consider the matter, the Magistrate ruled, after referring to some aspects of the legislative provisions, that “it appears that the submissions by the prosecutor are correct… and it does not require to be a specific element of the charge”. Then and after allowing the appellant’s solicitor some time to confer with the appellant, the matter proceeded on that basis.^[12]

13. [13]
    Leaving aside some subsequent discussion as to a parole eligibility date needing to be set rather than a parole release date,^[13] the sentencing remarks of the Magistrate included the following:

“Yes. I accept the pleas of guilty. I’ve taken into consideration the facts and submissions. As indicated by Miss Smith, the – today’s proceedings were delayed by the requirement of the analysis certificate by the prosecution in relation to charges which has subsequently been [indistinct]^[14]… In relation to charges 1, 2 and 3, the defendant’s convicted and not further punished.

In relation to the possession of the category H weapon, the Act provides that if the person possesses the firearm – the short firearm in a public place without a reasonable excuse, one year’s imprisonment served wholly in a corrective services facility is the minimum penalty to be imposed. Having regard to the defendant’s previous history, the offences – most recent offences, the – is the attempted armed robbery, robbery in company and there’s an attempted robbery – robbery whilst armed and in company. I think it’s appropriate in the circumstances that the defendant serve imprisonment rather than community service and I order that the defendant be sentenced to imprisonment for a term of 12 months and the parole release date being the 29^th of September 2016. I further order that the weapons and explosives be forfeited to the Crown.”

Discussion

14. [14]
    The initial written submissions for the respondent sought to make two points as to why what was variously, referred to as a “mandatory minimum penalty” and a “minimum mandatory penalty”, as provided in s 50(1)(d)(iii), was not to be regarded as a circumstance of aggravation but was “simply a penalty provision that applied to the charge simpliciter in section 50(1)”:

1. (a)
   First, it was submitted by particular reference to an observation in R v D,^[15] that a “circumstance of aggravation” as defined in s 1 of the Code, is to be limited to “a circumstance which increases the maximum penalty to which a person is exposed”; and

2. (b)
   Secondly, it was contended that “the provision does not actually add any additional circumstance to the charge simpliciter in s 50(1)”.

The first submission was not pursued in oral argument, although the proposition that this was just a penalty provision rather than a circumstance of aggravation, was maintained. 

15. [15]
    It may be seen that these submissions are correctly directed at the discreet elements of the concept of “circumstance of aggravation”, as defined in s 1 of the Criminal Code and as reflected in s 47(4) of the Justices Act 1886, in that there must be provision for:

1. (a)
   a circumstance or circumstances,^[16] which may be differentiated from and in that sense, are additional to what is required as to the elements of the offence, otherwise (but which, as the decision in R v De Simoni demonstrates, need not be completely unrelated or separate to those elements);

2. (b)
   that makes a defendant liable to a greater punishment or penalty.

16. [16]
    It must be concluded that the effect of s 50(1)(d)(iii) is to require the establishment of a combination of circumstances that is additional to and able to be differentiated from the elements of the offences stated in s 50(1)(a), (b), (c)(i) and (c)(ii), in that for the stated minimum penalty to apply, it is required that the offence be committed by an adult, by possessing a short firearm, in a public place, without a reasonable excuse.

17. [17]
    It can be noted that the basic offence is defined in s 50(1), as requiring proof that a person unlawfully possessed a weapon.^[17] It is then unquestionably, a circumstance of aggravation to establish that, the weapon was in a specified category^[18] and here it was expressly charged as a Category H weapon. Similarly, the circumstance  required by s 50(1)(d)(iii) provide for additional differentiation of the circumstances of the offender’s possession of a weapon.

18. [18]
    It is therefore beside the point that in the circumstances of this case, it may be contended that:

1. (a)
   The appellant as the person charged with and who admitted the offence, was in fact an adult;^[19]

2. (b)
   The appellant’s admitted possession of the weapon necessarily meant that the weapon was possessed in a public place;^[20]

3. (c)
   There are potentially only fine points of differentiation that might exist as between the definitions of a “Category H weapon”^[21] and a “short firearm” (which relevantly only requires “a Category H weapon that is a firearm”)^[22] or that on the undisputed facts here the weapon was a “firearm”,^[23] or that the definition of “weapon” may be satisfied by the thing being “a firearm” or alternatively “within a category of weapon”;^[24] and/or

4. (d)
   No suggestion was raised as to any reasonable excuse for the appellant’s possession of the weapon.

19. [19]
    This is because:

1. (a)
   The question is whether such circumstances require distinct identification, particularly as to being relied upon rather than being established;

2. (b)
   As has been noted, there is a particular combination of circumstances addressed in s 50(1)(d)(iii), which includes the absence of reasonable excuse, which is an obviously additional requirement to the element of unlawfulness and specifically addressed in ss (1A) and (1B); and

3. (c)
   Any conclusion in respect of s 50(1)(d)(iii), must be consistent with the operation of s 50(1)(d)(i) and (ii) and which respectively identify additional circumstances of a similar type to that seen as circumstances of aggravation in respect of other offences.^[25]

20. [20]
    The respondent was correct to abandon the reliance placed upon the statement in R v D. That case was not concerned with determining what amounts to a circumstance of aggravation but rather the issue as to whether it was permissible in sentencing an offender for a single offence of indecent dealing, to take into account the complainant’s evidence that the offender had committed other sexual offences against her. Initially, reliance was sought to be placed on sub-paragraph 2(c), in the following passage:

“Conclusions

Sentencing judges ought experience little difficulty in practice if there is unqualified adherence to the fundamental principles which emerge from the decisions of the High Court in De Simoni and subsequent cases. We will try to summarise those principles in a manner which should be adequate for most purposes.

1. Subject to the qualifications which follow:

1. (a)
   a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;

2. (b)
   common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at p. 593, R. v. T. at p. 455); and

3. (c)
   an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

2. An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:

1. (a)
   a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;

2. (b)
   a more serious offence than the offence of which the person to be sentenced has been convicted; or

3. (c)
   a "circumstance of aggravation" (Code, s. 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed.…”^[26]

As is clear from the introduction, the principle so stated was said to be drawn from “the decisions of the High Court in De Simoni and subsequent cases”, which had been discussed at some length earlier in the judgment. That reference is to R v De Simoni^[27] and it is apparent from consideration of that case and the other cases referred to^[28] that the statement in R v D merely reflects the fact that the earlier decisions had been concerned with circumstances that operated to increase the maximum penalty for an offence. Accordingly the statement should not be taken or applied as being addressed to or deciding the meaning of the concept of making or rendering an offender liable to greater punishment or penalty, such as to constitute a circumstance of aggravation.^[29]

21. [21]
    In the course of submissions, counsel for the respondent was prepared to concede that s 50(1)(d)(iii) does have the effect of creating liability to greater punishment or penalty. However, she otherwise maintained the contention that it was merely a provision related to sentencing and the sentence to be actually imposed, rather than a circumstance of aggravation. In other words, it was to be equated with provisions such as s 9(4), s 156A of the Penalties and Sentences Act 1992. As was agreed, on both sides in the course of argument, such provisions are not properly to be regarded as circumstances of aggravation, notwithstanding that the application of each provision may be to effect greater punishment or penalty than would otherwise be the case.

22. [22]
    It may be noted that the Court of Appeal dealt with a similar issue in R v WAY; ex-parte Attorney-General (Qld)^[30] and in determining that s 176(3)(b) of the Youth Justice Act 1992:

“Are not circumstances of aggravation which must be charged in the indictment if intended to be relied upon as increasing the applicable penalty”.^[31]

It was noted that the relevant provisions of s 176 were:

"176 Sentence orders – life and other significant offences

3. (1)
   If a child is found guilty of a relevant offence before a court presided over by a judge (the court), the court may—

…

2. (b)
   make a detention order against the child under subsection (2) or (3).

…

3. (3)
   For a relevant offence that is a life offence, the court may order that the child be detained for—

1. (a)
   a period not more than 10 years; or

2. (b)
   a period up to and including the maximum of life, if—

1. (i)
   the offence involves the commission of violence against a person; and

2. (ii)
   the court considers the offence to be a particularly heinous offence having regard to all the circumstances.

…

3. (10)
   In this section—

relevant offence means a life offence … ."^[32]

23. [23]
    Although it was noted that the resolution of this issue was strictly unnecessary for the disposition of that case, it was considered to be “a question which the court should resolve”^[33] and it was observed that:

“The answer to the question is by no means straight forward but for the following reasons I am ultimately persuaded that reliance on s 176(3)(b)(ii) is not a circumstance of aggravation under s 1 Criminal Code.”^[34]

After noting that the respondent’s contention was that the application of s 176(3)(b)(ii), in particular, involved “a circumstance of aggravation within the meaning of s 1 and s 564(2) of the Criminal Code which was required to be pleaded in the indictment if the prosecution intended to rely upon it”,^[35] the essential reasoning was as follows:

“[44] The respondent's contention stems from The Queen v De Simoni where the plurality held that, if an indictment does not refer to particular circumstances of aggravation, a sentencing judge may have regard to those circumstances only if they would not render the accused liable to a greater punishment. De Simoni pleaded guilty to robbery which is punishable by a maximum penalty of imprisonment for 14 years. The maximum penalty was increased to life imprisonment where the offender was armed with any dangerous or offensive weapon or instrument or wounded or used any other personal violence. De Simoni wounded the victim in the course of the robbery but that circumstance was not charged. It was a circumstance of aggravation which should have been charged if it was to be relied upon to impose a heavier sentence. De Simoni is patently distinguishable from the present case. There is no direct or close analogy between the situation in De Simoni and the provisions of s 176(3)(b)(ii) with which this case is concerned.

[45] There are difficulties with the respondent's contention. The first is that s 176(3)(b)(ii) allows the court to make a judgment as to whether the offence is a particularly heinous offence, having regard to all the circumstances. This does not seem analogous to requiring proof of a circumstance of aggravation. The second is that, unlike a circumstance of aggravation which must be pleaded in the indictment which the prosecution presents to the court, the terms of s 176(3) make plain that it is for the court to determine the penalty for those offences to which s 176(3) applies. The court must determine whether the child offender is to be sentenced under s 176(3)(a) and detained for a period of not more than 10 years or under s 176(3)(b) for a period up to and including the maximum of life where the court considers the offence to be a particularly heinous one having regard to all the circumstances. This is inconsistent with the prosecutor pleading the matter as a circumstance of aggravation in the indictment.”^[36] (citations omitted)

Further, the Court of Appeal drew an analogy with the application of s 161B(3) of the Penalties and Sentences Act 1992 and which provides a discretion to a Court to declare an offender as convicted of a serious violent offence, as part of the exercise of sentencing discretion and which had been determined in R v Ellis,^[37] to not provide for a circumstance of aggravation which must be pleaded in the indictment.

24. [24]
    It can be observed that s 50(1)(d)(iii) of the Weapons Act is a provision that appears to be more analogous to the situation in De Simoni. One consideration is that the provision appears in conjunction with the statement of the offence and the fixing of the maximum penalty for the relevant offence. Although, it may not be a sufficient distinction that other provisions are stated in legislation directed at the exercise of sentencing discretion. For instance, it can be noted that s 108B of the Penalties and Sentences Act, which is only applicable where a prescribed offence^[38] is committed in a public place,^[39] while the offender is adversely affected by an intoxicating substance, is expressly stated to be a circumstance of aggravation.

25. [25]
    Also, it can be noted that s 320 of the Criminal Code provides as follows:

"320 Grievous bodily harm

3. (1)
   Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years.

3. (2)
   If the offender is a participant in a criminal organisation and unlawfully does grievous bodily harm to a police officer while acting in the execution of the officer's duty, the offender must be imprisoned for a minimum of 1 year with the imprisonment served wholly in a corrective services facility.

3. (3)
   It is a defence to the circumstance of aggravation mentioned in subsection (2) to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity.

3. (3A)
   The Penalties and Sentences Act 1992, section 108B also states a circumstance of aggravation for an offence against this section.

3. (4)
   In this section—

participant, in a criminal organisation, see section 60A.”

Although subsection (2) is directed at different circumstances attending the commission of the offence defined in subsection (1), the same effect in relation to minimum liability is stated and in subsection (3), this is expressly recognised to be the statement of a circumstance of aggravation, with subsection (3A) also expressly recognising the circumstance of aggravation which may apply pursuant to s 108B of the Penalties and Sentences Act 1992. These are not provisions which may be seen to be definitional or deeming such a consequence but rather are statements in recognition of the effect of those provisions.^[40]

26. [26]
    In Constable S J Miers v Blewett,^[41] it was noted that not every circumstance that may be taken into account in sentencing an offender and which may be reflected in the sentence imposed, is to be regarded as a circumstance of aggravation, within the meaning of s 1 of the Criminal Code and s 47(4) of the Justices Act 1886. It was observed in respect of the latter provision:

“That does not comprehend a circumstance which merely bears upon the exercise of the sentencing discretion in a way which might result in a more severe penalty than otherwise would be the case. If s 47(4) had that effect it would require every complaint of a simple offence to set out every circumstance which might influence the sentencing discretion in favour of a more severe penalty. The section does not have such a broad and impractical affect. Rather, s 47(4), and thus s  47(5), refer to a circumstance which increases what otherwise would be a defendant’s potential liability for punishment for the offence. That will occur where the relevant circumstance results in a greater penalty or a greater maximum penalty. Relevantly to this matter, s  47(5) refers to a circumstance, to previous convictions for the same offence, which results in a greater maximum penalty.”^[42]

27. [27]
    Further and although it was part of the expression of a different view to the majority and as to whether in the circumstances, the fact of the wound to the victim’s head could have been taken into account in R v De Simoni, it remains notable that in the judgement of Brennan J, his Honour observed:^[43]

“By definition a circumstance of aggravation is a fact rendering an offender liable to greater punishment; it is not a fact which makes the proper sentence for the offender’s conduct greater than the sentence which would be appropriate if the circumstance of aggravation did not exist. A circumstance of aggravation affects the limits of the sentencing power, not the sentence to be imposed.”

28. [28]
    Later his Honour also observed:

“Reliance upon a circumstance of aggravation, in the context of s 582, means a dependence upon a particular circumstance in order to establish the extent of the accused person’s liability to punishment. At the time when s 582 is to have effect, that is, when the indictment is signed and presented, it is premature for the Crown to intend to rely upon a circumstance as relevant to the exercise of a sentencing discretion; but it is not premature for the Crown formally to state its contention that the accused person’s conduct makes him liable to punishment to a greater extent than he would be if he were guilty only of an unaggravated offence. If the accused person by his plea admits what is alleged against him, the extent of his liability is established according to the tenure of his plea. If the accused person does not admit what the indictment alleges against him, his liability to punishment and the extent of that liability must be determined by the verdict returned after a trial upon the indictment.”^[44]

29. [29]
    Hence it may be seen that the concession by counsel for the respondent that the provisions of s 50(1)(d)^[45] of the Weapons Act 1990, do create liability to greater punishment or penalty, if correct, would lead inextricably to the conclusion that what is provided for are circumstances of aggravation that are required to be pleaded in the charge, if reliance is to be placed on any of them and more critically here, if the minimum penalty provisions are to apply.

30. [30]
    That concession was made in the context that the respondent’s submission was that these provisions effected mandatory minimum penalties. That is, that in all circumstances where they applied, the sentencing discretion was constrained in that whilst there was an applicable maximum provided, in each instance the sentence had to be imprisonment and no less than the stated minimum period and to be served wholly in a correctional facility. Obviously and on that basis, the provision provides for circumstances that create a liability to greater punishment or penalty, in the sense of being directed at the limits of the sentencing power and would be properly regarded as a circumstance of aggravation.

31. [31]
    However and as has been noted, that is not the way that the magistrate approached the matter, after it was submitted to him that the effect of the decision in Forbes v Jingle^[46] was to leave open the prospect of other sentencing options, such as community based orders. Accordingly, the magistrate first determined whether imprisonment was required as the appropriate sentencing option and unsurprisingly, in the circumstances of the appellant’s more recent criminal history and the position of his parole status when the offence was committed and his position in terms of then serving his existing period of imprisonment when sentenced, the magistrate determined that it was and then acted under the constraint of imposing the stated minimum penalty.

32. [32]
    This approach is specifically noted in the written submissions for the appellant and on the hearing of the appeal, the mandatory effect of the minimum penalty provisions which were contended by the respondent, was not conceded on behalf of the appellant. That is a potentially complicating feature. That is because, if the submission made below is correct and the effect of s 50(1)(d)(iii) is not as a mandatory minimum period of 12 months’ imprisonment to be served wholly in a correctional facility, in all cases to which it applies, then it may be less obviously seen as a limit of the sentencing power, in cases where it is applicable.

33. [33]
    Notwithstanding that s 50(1)(d) is expressed in an arguably significantly different form to the provision which is the subject of the decision in Forbes v Jingle,^[47] counsel for the appellant was content to submit that the limitation upon the sentencing discretion, where, as in this case, it is determined that imprisonment is the appropriate sentencing option, or put another way, the effect of the limitation as to the imposition of imprisonment as a sentencing option, is sufficient to make or render an offender to whom the provision applies, liable to greater punishment or penalty.

34. [34]
    Accordingly, the true effect of the limitation imposed by s 50(1)(d) and/or the application of the reasoning in Forbes v Jingle was not the subject of any further submission or otherwise put in issue in this matter and it is unnecessary to decide the question.

35. [35]
    This is because the appellant’s position should be accepted, with the conclusion being that even if the limitation placed on the exercise of sentencing discretion by s 50(1)(d) is no more than as to the duration and form in which imprisonment may be imposed, where that is the appropriate sentencing option, that is a sufficient limitation of the sentencing power and suffice to amount to making or rendering an offender to whom s 50(1)(d) applies, liable to greater punishment or penalty.

36. [36]
    Accordingly, it must be concluded that the provisions of s 50(1)(d) provide for circumstances of aggravation which are required to be included in the charge, pursuant to s 47(4) of the Justices Act 1886 and that the absence of such pleading of reliance on the circumstances under s 50(1)(d)(iii) in this case, means that the magistrate was in error in acting on that provision and in imposing the minimum penalty.

Should amendment of the charge be allowed?

37. [37]
    In that event, the further submission of the respondent was that the Court should grant leave to amend the charge, to include the circumstance of aggravation and it was observed “should the appellant wish to enter a plea of guilty to this amended charge, the Court must sentence the appellant to a minimum period of 12 months imprisonment wholly served in a Corrective Services facility”.^[48] Although, it was also contended that the matter could be remitted to the Magistrates Court at Maroochydore for rehearing with respect to the amended charge.^[49]

38. [38]
    Those submissions were made in reference to the breadth of the power of this Court pursuant to s 225(1) of the Justices Act 1886 and particularly in allowing the Court to “make any other order in the matter the Judge considers just” and also, as stated in s 225(3), permitting a Judge to “exercise any power that could have been exercised by whoever made the order appealed against”. Accordingly, reference was also made to the following provisions of s 48(1) of the Justices Act 1886:

“If at the hearing of a complaint, it appears to the Justices that –

1. (a)
   there is a defect therein, in substance or in form, other than noncompliance with the provisions of s 43;

2. (b)
   there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or

3. (c)
   there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;

then –

4. (d)
   if an objection is taken for any such a defect or variance – the Justices shall; or

5. (e)
   if no such objection is taken – the Justices may;

make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.”

39. [39]
    In essence, the respondent’s submission is that such an amendment is necessary or desirable in the interests of justice, for the following reasons:

1. (a)
   it is apparent that the prosecution always intended to rely on the factual circumstances amounting to the circumstance of aggravation;

2. (b)
   at the sentencing proceedings and although maintaining the position that s 50(1)(d)(iii) applied notwithstanding it was not averred in the charge, it was indicated that:

“If your Honour is not with us on that point, the prosecution is left with little option other than to make application to amend the charge…”;^[50]

3. (c)
   reference to the judgment of Dawson and McHugh JJ in Maxwell v R^[51] indicates that:

“A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it cannot occur otherwise then by formal entry of the plea upon the record of the court… a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused.”; and

4. (d)
   because and after the objection was made below to the application of s 50(1)(d)(iii) and the ruling of the magistrate that the provision applied to the charge before the Court and after the respondent’s solicitor had been given time to take instructions and there was therefore an opportunity to consider how the respondent wished to proceed after that decision, it was indicated that the respondent was “prepared to go on with the sentence”^[52] and it was indicated that the respondent “accepted the facts that have been handed to your Honour in the Schedule”.^[53]

40. [40]
    From those premises, it is contended that this Court should grant leave for the amendment of the charge and that by reference to Hayes v Wilson; ex parte Hayes,^[54] the amendment would be to charge a cognate offence and it was contended that there is no prejudice to the appellant, particularly because he would be re-charged and able to enter a plea and the matter remitted for hearing, should he wish to contest the amended charge.

41. [41]
    There are some immediate difficulties which are apparent in respect of this approach:

1. (a)
   First, the approach may be seen as inconsistent with the decision in R v De Simoni and the absence of any suggestion, in that case, that the omission might be amenable to cure by amendment, in comparable circumstances and where the respondent had pleaded guilty to an offence which only charged the use of actual violence and not the circumstance of aggravation of wounding, as a consequence of that actual violence. In that case, there was no dispute as to a wounding having occurred, yet the conclusion was that the offender could only be sentenced by taking into account the use of actual violence but not the consequence of wounding, quite apart from any increase in the applicable maximum penalty not being applicable;^[55]

2. (b)
   Secondly, the applicability of the passage taken from the judgment of Dawson and McHugh JJ in Maxwell v R, may need to be carefully considered in the light of other decisions^[56] and as to any such reasoning being applicable to problems that emerge in respect of the way in which the prosecution have pleaded a case. In any event, no application for amendment was actually made or considered by the magistrate and the proceeding that is now before this Court is consequential to the conviction of the appellant for the offence without the circumstance of aggravation;

3. (c)
   Thirdly and whilst it is apparent that no specific issue was raised in respect of the actual application of s 50(1)(d)(iii), after the magistrate ruled that it was applicable without being specifically charged, it is otherwise apparent that the appellant had not abandoned the point that was taken, in the context of his having pleaded guilty to the offence without the circumstance of aggravation and where there was no express reference to the circumstances of aggravation in the agreed schedule of facts. Although it was clear that he was before the Court to be dealt with as an adult, there was no express acknowledgement, by way of guilty plea that the weapon was accepted to be a short firearm or that it was possessed in a public place without a reasonable excuse; and

4. (d)
   Finally, it should be noted that Hayes v Wilson; ex parte Hayes was concerned with amendment of a charge that occurred in the course of a summary trial and with the application of s 48(1)(c) of the Justices Act 1886 and the reference to “cognate offences” must be viewed in that context.

42. [42]
    Whilst it may be accepted that had the prosecution sought to do so, at the outset below, it may have been possible to seek an amendment of the charge or a fresh charge brought in substitution, it is another thing altogether to contend that leave might have been given to amend what was otherwise a regularly made charge, without any defect on the face of it, after the defendant had pleaded guilty and had correctly taken the point that he could not be punished for a more serious offence, with which he had not been charged or convicted. Moreover, the respondent must now convince the Court that it is appropriate to allow such an outcome after the conviction of the less serious offence has been formalised and the appellant’s contention has been vindicated on appeal.

43. [43]
    As was correctly noted by the appellant and particularly if the matter was to be remitted to the Magistrates Court for further proceeding for a new offence, he would face the prospect of being resentenced to the minimum penalty, in circumstances where only the time he has spent in custody in relation to the earlier imposed sentence and after he completed serving his earlier sentences on 7 November 2015, could be declared as pre-sentence custody already served in respect of any term then imposed. It would not then be possible to take into account the time served from 30 September 2015 to 7 November 2015, to in any way ameliorate that situation and this would necessarily result in a sentence having an increased effect, beyond the minimum sentence that had been originally imposed.

44. [44]
    Although it may be accepted that upon an appeal conducted in this Court by way of re-hearing,^[57] it may, as a general proposition, be open to the Court to consider the exercise of the power to allow amendment under s 48 of the Justices Act 1886, it is unnecessary to reach any conclusion as to whether that should be allowed, as an exercise of discretion (or as to whether such leave should have been granted by the magistrate). That is because, for the appellant, that question has not been engaged. Rather, a more fundamental contention made for the appellant, should be accepted and that in the circumstances of this case such a course is, at least, not appropriate.

45. [45]
    That is because of the statutory limitations that are placed upon this appeal and the necessity that the powers of the Court be exercised in respect of that appeal and in the context of the statutory constraints placed on that proceeding.

46. [46]
    The appeal that has been made, is against the sentence, not the conviction of the appellant. Appeals against both conviction and sentence are contemplated and allowed by s 222 of the Justices Act 1886. However, s 222(2)(b) and (c) place important restrictions upon what orders may be the subject of an appeal, such as the one now before the Court. In particular, s 222(2)(c) has the effect of limiting the availability of appeal to the issue of sentence, or more particularly the orders imposed in sentencing the appellant.^[58]

47. [47]
    Accordingly, the appellant’s conviction is not the subject of the appeal and not before the Court. Any amendment that might be allowed to now include the circumstance of aggravation, would necessarily be directed at the appellant’s conviction,^[59] as is expressly recognised in R v De Simoni and implicitly recognised in the respondent’s submission as to the necessity to re-arraign the appellant, should leave be granted to make the amendment.

48. [48]
    Therefore, the powers in s 225 should only be exercised, in this case, in respect of the orders made in sentencing the appellant, including the powers provided in s 225(3) and in s 225(1) to “make another order in the matter the Judge considers just”.

49. [49]
    Accordingly, it is not appropriate to accept the respondent’s submission to consider whether to grant leave to amend the indictment but rather, the appropriate outcome is to allow the appeal and effectively resentence the appellant, without reference to the circumstance of aggravation and therefore any minimum penalty. He is therefore to be sentenced for the offence of unlawful possession of a category H weapon, in respect of which the maximum available penalty is 150 penalty units or three years imprisonment.^[60]

Resentencing the appellant

50. [50]
    As was earlier noted, there is no dispute that particularly having regard to the combined seriousness of the offences that were before the Magistrate^[61] and particularly the appellant’s more recent criminal history and the circumstances in respect of his parole status, when he offended, that a term of imprisonment is warranted. On the other hand, there is a need to recognise the appellant’s timely guilty pleas and that he is now 25 years old, has since 2010 spent most of his life in prison and has the prospect of accommodation and support with his sister, in Nanango (and therefore away from past associations on the Sunshine Coast), upon his release from custody.

51. [51]
    Although and pursuant to s 225 of the Justices Act 1886, this Court may have broader powers than those that would be available if the matter were remitted to the Magistrates Court for resentence and particularly in the power to vary the originally imposed sentence, the exercise of that power here would necessarily confront the problem that in respect of the 12 months term originally imposed, the appellant has now served almost 6 months of it and because that term was imposed at a time when it took effect as part of a period of imprisonment that both exceeded 3 years and in respect of which there had been a cancelation of parole, it would be necessary to fix a parole eligibility date.^[62]

52. [52]
    That would lead to an undesirable outcome. Even if the parole eligibility date was fixed now or soon, the obvious practicalities are that it is likely to be some time yet before it might be expected that any release on parole could occur. Such an outcome would leave only the prospect of an undesirably short period of parole supervision, upon any such release to the community. As was contended by the respondent, such supervision is particularly desirable, for the protection of the community as well as the appellant’s support and benefit, upon any such release. Accordingly, it may be seen that there is less support for the alternative of suspension of the appellant’s term of imprisonment, as was proposed in submissions made for him, as a means of ameliorating the contended injustice of his situation.

53. [53]
    However, the present circumstances allow for another more appropriate result. If the Court acts to set aside the orders made in sentencing the appellant in the Magistrates Court, which would also be the necessary precursor to any order pursuant to s 225(2) to remit the matter to the Magistrates Court, the position is effectively no different in this Court. Any term of imprisonment then imposed instead of the order originally made, can only have effect from the day it is made.^[63] Accordingly, the time served from 8 November 2015 may properly be regarded as “time that the offender was held in custody in relation to proceedings for the offence and for no other reason”, within the meaning of s 159A(1) of the Penalties and Sentences Act 1992 and therefore declared as time served in respect of any such term of imprisonment.

54. [54]
    Also, and approached in that way, it may be concluded that despite being effectively served consecutively and without any actual release from custody, there is not then a period of imprisonment within the meaning of s 4 of the Penalties and Sentences Act 1992,^[64] so as to complicate the applicability of setting a parole release date pursuant to s 160B of the Penalties and Sentences Act 1992. The position is then analogous to a situation where the appellant had remained in custody on remand in relation to this matter after the completion of serving his earlier sentences and now stood to be sentenced for this matter. Although the terms run consecutively, particularly with the pre-sentence custody being declared, they do not overlap and in that sense constitute an unbroken period of imprisonment.

55. [55]
    Accordingly, the orders of the Court are to:

1. Set aside the orders made on 30 September 2015, in sentencing the appellant for the offence of unlawful possession of a weapon, to 12 months imprisonment and fixing his parole eligibility date as 29 September 2016.

2. Instead, it is ordered that:

1. (a)
   The appellant is to serve 12 months imprisonment;

2. (b)
   It is declared that 137 days of presentence custody (from 8 November 2015 to 23 March 2016) is to be taken as imprisonment already served under this sentence;

3. (c)
   The appellant’s parole release date is fixed as 29 March 2016.