DAY -v- THE QUEEN [2019] WASCA 60 (10 April 2019)

Last Updated: 10 April 2019

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : DAY -v- THE QUEEN [2019] WASCA 60

CORAM : BUSS P

MAZZA JA

ALLANSON J

HEARD : 15 MARCH 2019

DELIVERED : 10 APRIL 2019

FILE NO/S : CACR 197 of 2018

BETWEEN : MATHEW JOHN DAY

Appellant

AND

THE QUEEN

Respondent

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GETHING DCJ

File Number : IND 1866 of 2017

Criminal law and sentencing - Attempting to import firearms and ammunition - Dealing with property with intent that it become an instrument of a crime - Allegation of implied error - Whether total sentence of 3 years 6 months' immediate imprisonment manifestly excessive - Whether non-parole period of 2 years 4 months disproportionate

Legislation:

Crimes Act 1914 (Cth), s 16A

Criminal Code Act 1995 (Cth), s 400.6

Customs (Prohibited Imports) Regulations 1956, sub-regulation 4F

Customs Act 1901 (Cth), s 233BAB

Customs Regulations 2015 (Cth), reg 130, sch 7, pt 2, Item 4

Firearms Act 1973 (WA), s 19

Proceeds of Crime Act 2002 (Cth), s 320, s 329

Result:

Leave to appeal granted

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	G Cleary

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Bick v The Queen [2006] NSWCCA 408

Huynh v The Queen [2017] VSCA 216

Kim v The Queen; Fang v The Queen [2016] VSCA 238

R v Ly [2014] NSWCCA 78; (2014) 241 A Crim R 192

R v Pham [2015] HCA 39; (2015) 256 CLR 550

Salman v Director of Public Prosecutions (Cth) [2011] NSWCCA 192

Stipkovich v The Queen [2018] WASCA 63

Stone v The State of Western Australia [2010] WASCA 80

JUDGMENT OF THE COURT:

On 25 May 2018, the appellant pleaded guilty to two charges:

(1) attempting to import tier 2 goods, namely multiple firearms and ammunition contrary to s 233BAB(5) of the Customs Act 1901 (Cth) (count 1);

(2) dealing with money or other property with the intent that it become an instrument of crime contrary to s 400.6(1) of the Criminal Code 1995 (Cth) (count 2).

The offences were committed between 3 March and 22 March 2017. The appellant was arrested on 22 March 2017.
Each of the offences is punishable by imprisonment for 10 years.
The appellant was sentenced to 3 years 6 months' immediate imprisonment on count 1, and 2 years' immediate imprisonment on count 2. The sentences were ordered to be served concurrently, with a minimum term of 2 years and 4 months before eligibility for parole.
The appellant seeks to appeal the sentences on a single ground alleging:

(1) each individual sentence is manifestly excessive;

(2) the total sentence and the non-parole period are disproportionate to the total criminality, having regard to the circumstances of the offences, the appellant's personal circumstances and sentencing standards.

The appellant was represented at the sentencing, but not in the appeal.

Circumstances of the offending

The sentencing judge sentenced the appellant on the basis of a statement of material facts that was not disputed.
On 7 March 2017, the appellant placed an order for
- 3 x Glock 17 pistols,
- 1 x Jericho 941 pistol,
- 1 x Smith and Wessen Model 4006 pistol, and
- 100 x 9 mm rounds of Winchester Jacketed hollow point ammunition.

The total price was US$8,050 (A$10,693.62), not inclusive of the commission payable to the market place, AlphaBay.[1] The appellant intended to sell the pistols and ammunition but had no buyer organised.[2]

To pay for the pistols and ammunition, the appellant withdrew funds from two bank accounts on 18 February 2017, 24 February 2017, and 7 March 2017. The funds were transferred to Independent Reserve, a cryptocurrency exchange, to facilitate the purchase of Bitcoin which was to be used for the purchase.[3]
The transaction was organised over that part of the internet known as the Dark Web or Dark Net. AlphaBay is an internet marketplace accessible through the Dark Web. The appellant interacted with the seller by emails which were encrypted. Some of the messages retrieved from electronic devices owned by the appellant were not able to be deciphered.
It is not disputed that the 'seller' of the pistols was an undercover police officer. The admitted facts do not reveal whether or to what extent others were involved. There is no evidence about the circumstances in which the appellant embarked on his plan to import the items, or about how he first came into contact with the seller.
The appellant was arrested when he attended to accept delivery of the pistols and ammunition.
The appellant was interviewed but made no admissions.

The factors relevant to sentence

The sentencing judge stated the following factors as going to the seriousness of the offending:

... the first factor is you attempted to buy five firearms and a hundred rounds of ammunition and obviously the more firearms and ammunition are imported, the greater the potential for harm to the Australian community and the pistols imported were readily concealable semi-automatic handguns.

The firearms and ammunition were capable of use and in working order. The ammunition could have been used with each pistol, except for the Smith and Wesson which takes 10mm ammunition.

... the ammunition was hollow point. ...

... The firearms could have only ever been intended for sale on the black market or some other illegal purpose.

Moreover, there is a significant risk that the firearms and ammunition could have been used against police officers and so the importation posed a serious danger to the public health, safety and order.

The second is that the amount of money involved in the transaction was in excess of $10,000, so this is not able to be characterised as a low-level spontaneous transaction.

The third is your motivation ... to make financial gain. Now, it is unclear on the materials before me as to what that gain was likely to be. On the one hand, you told the author of the presentence report you were going to make a $2000 profit. On the other hand, from the materials in the brief it appears that the black market value of the guns was significantly more.

In any event, you displayed a callous disregard for the potential consequences of the introduction into the community of such a large quantity of inherently dangerous unregistered illegal pistols.

The fourth is that even though you are only charged with attempting to import the firearms and ammunition, you are as culpable as if you had in fact completed the transaction. You were only prevented from completing the transaction by the intervention of police at the point of collection.

The fifth is you went to considerable effort to disguise your offending. This involves the use of the Dark Web, encrypted transactions, encrypted emails, Bitcoin and anonymised payment mechanisms, so the transaction involved a considerable degree of planning on your part.

It involved detailed identification and verification procedures at the point of handover. You used a different vehicle to the one which you owned when you sought to take delivery of the firearms and in doing so took steps to protect yourself from detection at the point of actual delivery of the firearms.

However, I do accept that you are not to be held criminally culpable for any unlawful conduct which could have been engaged in by the end users of the imported firearms.[4]

None of those findings is expressly challenged. However, they must be considered carefully in the factual context that the seller was either a police officer or acting on behalf of the police. The delivery was controlled by the authorities, presumably for the purpose of identifying and apprehending whoever was attempting to import the weapons. The transaction was not going to be completed.
The sentencing judge expressly took into account the steps that had been taken to disguise the offending, including the use of Bitcoin, in determining the seriousness of count 1. As a result, his Honour imposed a wholly concurrent sentence for count 2.
The appellant was 25 when he committed the offences and 26 at the time of sentence. He was in a stable relationship, with no children. His upbringing was unremarkable. He has been in regular employment since leaving school.[5]
The appellant suffered a serious motor cycle accident in November 2016, which resulted in both physical and financial problems.
The appellant has a history of drug use, but it is neither recent nor causally related to the offence.
He has previous criminal convictions, but no record of similar offending. The sentencing judge described the appellant's record as reasonably modest and, although the appellant could not claim prior good character, his record was 'essentially neutral' in the sentencing process.[6]
A presentence report and a psychiatric report were obtained. The appellant does not suffer from a mental illness, but has been diagnosed as having a mixed personality disorder with antisocial and borderline characteristics.[7]
The appellant had been engaged in psychological counselling since October 2017. The psychologist reported that he had made significant progress.[8] The sentencing judge concluded that the appellant had 'significantly engaged in the rehabilitation process' and represented a low risk of reoffending.[9]
The sentencing judge said that the appellant was entitled to significant mitigation for the plea of guilty, although the plea was in response to a very strong Commonwealth case. His Honour also accepted that there was 'some level of remorse'.
The sentencing judge had regard to other matters that had been raised in mitigation.
Both the appellant and his partner consented to the forfeiture of Bitcoin, with an agreed value at time of forfeiture of $63,666.75.[10] The Bitcoin was wholly derived or realised from the commission of the offence under s 400.6, and proceeds of that offence.[11] By s 320 of the Proceeds of Crime Act 2002 (Cth) the court can have regard to the appellant's cooperation in the forfeiture, but not the forfeiture order 'to the extent that the order forfeits proceeds of the offence'.

The appellant's submissions

The appellant represented himself. In detailed written submissions he referred to several matters relevant to sentencing.
First, he referred to specific matters of remorse, and matters that had been raised in mitigation.
Second, the appellant submitted that the court should have regard to the absence of any harm caused by the crimes, and this should mitigate his culpability and the seriousness of the offences.
Third, the appellant referred to authorities on entrapment and encouragement by the police.
Fourth, the appellant also referred to his personal circumstances, his cooperation in the forfeiture of the Bitcoin, and his plea.
Finally, the appellant referred to the decision in Huynh v The Queen,[12] as a comparable decision.

Sentencing pursuant to the Crimes Act

Sentencing for a federal offence is governed by pt 1B of the Crimes Act 1914 (Cth). The court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.[13] The court must also take into account such of the matters set out in s 16A(2) as are relevant and known to the court. Relevantly, in this case, the court must take into account:

(1) the nature and circumstances of the offence;

(2) any injury, loss or damage resulting from the offence;

(3) the degree to which the appellant has shown contrition for the offence;

(4) the plea of guilty;

(5) the degree to which the appellant has co-operated with law enforcement agencies in the investigation of the offence or of other offences; and

(6) specific and general deterrence.

The court must also have regard to matters personal to the appellant, including his character, antecedents, age, means and physical or mental condition; the prospect of rehabilitation of the appellant; and the probable effect the sentence would have on any of his family or dependants.

Manifest excess and implied error

Manifest excess is revealed if, on consideration of all of the matters that are relevant to fixing the sentence, the imposed sentence is so clearly unjust that the court may infer that the sentencing discretion has miscarried.
In R v Pham, French CJ, Keane and Nettle JJ said:

Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[14]

Principles derived from comparable cases

There are no comparable cases of sentences under s 233BAB(1) of the Customs Act. Many different kinds of items are prescribed as tier 2 goods. They include firearms and other weapons,[15] but also human body tissue and fluids, child pornography and child abuse material, and counterfeit credit, debit and charge cards.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, an intermediate appellate court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that the court has no directly comparable cases to provide a yardstick against which to measure the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See McAlpine v The State of Western Australia[16] and the cases there cited.
Both parties referred to Huynh v The Queen where the sentence for an offence of importing firearms, contrary to s 233BAB, was considered by an intermediate court of appeal. The case is superficially similar, in that the offender imported three handguns and ammunition, but it is not truly comparable. The sentence followed pleas of guilty to a series of offences, including nine state and federal offences relating to possession of and trafficking in a drug of dependence. The offender was sentenced for the offence under s 233BAB on the basis that the firearms importations were 'part and parcel of the business of drug manufacturing and trafficking’ in which the offender had involved himself.[17]
The authorities on sentencing where the tier 2 goods are child pornography or abuse material are not comparable, and the principles which guided sentencing in those cases are not directly applicable. In general, those cases hold that a range of factors bear upon the objective seriousness of the offence. Some of those factors may provide guidance by analogy, including 'the nature and content of the material informing the degree of "offensiveness" of the material, ... the number of images, whether the importation is for sale or further distribution and whether the importation is for profit', and the importance of both general and specific deterrence.[18]
There are also numerous authorities on sentencing for State offences under s 19(1) of the Firearms Act 1973 (WA), for the purchase, sale or possession of firearms or ammunition without a licence. The offences are not comparable. But it is relevant, in our opinion, that the cases reflect concern about the possession and use of firearms, and emphasise general deterrence as a major sentencing consideration and the lesser role played by personal circumstances.[19]
There is more guidance in relation to sentencing on count 2. Several decisions of intermediate courts of appeal have identified principles to guide sentencing for offences against div 400 of the Criminal Code.[20] Relevantly to this appeal:
1. The statutory scheme has a series of offences varying in gravity depending on the amount of money or property involved and the mental element.
2. 'Attention must be focussed on the precise circumstances of what the offender did, including the actions which constituted the dealing for the purposes of the offence, the period of time over which the offence was committed, the number of transactions involved, the amount involved in the offending, and the role of the offender in the money laundering arrangement (including whether the offender was the author or instigator of that arrangement ...)'.[21]

Disposition

The potential harm from the introduction of unregistered weapons into the community requires a personal and a general deterrent sentence. Guns are not only a threat to public safety, but, as counsel for the Commonwealth submitted, can be used repeatedly and remain as a lasting threat. The following further matters are, in our opinion, relevant to assessing the seriousness of the offending in count 1:

(1) the number of firearms and the quantity of the ammunition;

(2) the nature of the firearms, including that they were readily concealable and semi-automatic, and the nature of the ammunition;

(3) what the appellant intended to do with them - in this case, his intention to sell them on the black market;

(4) the appellant's motive of financial gain;

(5) the degree to which the importation was planned; and

(6) the steps taken to disguise the offending and avoid detection, and the difficulty of detecting such offences.

By reference to those factors, even though the offence was never going to be completed, the attempted importation was a serious offence.
The law enforcement authorities were involved in the progress of the transaction, including the organisation of the meeting at which the appellant believed he would take delivery. But the appellant has not shown that he was encouraged or induced to commit an offence which he would not otherwise have committed. Further, there was no submission before the sentencing judge that the appellant had been encouraged or induced to commit either offence. There was no entrapment.
It is relevant, however, that the potential harm to the community from the importation of weapons was not and would never have been realised.
There was some mitigation, most significantly, the appellant's pleas of guilty. Those matters in s 16A(2) of the Crimes Act which were relevant to mitigation were taken into account by the sentencing judge.
The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to the correct sentence for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
After evaluating all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant sentencing factors, including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court, in the context of:

(a) the applicable statutory sentencing framework;

(b) the maximum penalty for count 1 (10 years' imprisonment);

(d) the importance of personal and general deterrence as sentencing factors; and

(e) the appellant's personal circumstances and all matters of mitigation,

we are not satisfied that the individual sentence for count 1 was unreasonable or plainly unjust.

We are not persuaded that error by his Honour in the exercise of his discretion in relation to the sentence imposed for count 1 should be inferred from the sentencing outcome.
With regard to count 2, the value of the property dealt with was near the minimum threshold ($10,000) for an offence against s 400.6. The mental element, that the appellant intended the property to become an instrument of a crime, was the most serious in the statutory scheme.
The appellant made three transactions between 18 February and 7 March 2017, by withdrawing money for the purchase of Bitcoin which he intended to use to illegally purchase guns. It is a small number of transactions over a relatively short period, but the appellant's conduct demonstrates a degree of planning and was part of a greater criminal scheme that persisted until his arrest on 22 March 2017.
After evaluating all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant sentencing factors, including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court, in the context of:

(a) the applicable statutory sentencing framework;

(b) the maximum penalty for count 2 (10 years' imprisonment);

(d) the importance of personal and general deterrence as sentencing factors; and

(e) the appellant's personal circumstances and all matters of mitigation,

we are not satisfied that the individual sentence for count 2 was unreasonable or plainly unjust.

The order that each sentence be served concurrently results in a total effective sentence of 3 years and 6 months, which is not disproportionate to the overall criminality involved in the offending as a whole.

The non-parole period

The decision in fixing of the non-parole period is also discretionary, and this court can only interfere if the appellant demonstrates a material error.
The general principles relevant to setting the non-parole period were recently considered by this court in Stipkovich v The Queen:
1. The Crimes Act creates a separate and exhaustive regime for fixing non-parole periods for sentences of imprisonment for federal offences. In applying that regime, the court has no regard to sentencing practice and decisions under the State regime for non-parole periods. ...
2. Generally, with specified exceptions, a court must fix a single non-parole period when sentencing for a federal offence and when imposing a sentence exceeding 3 years' imprisonment upon a person not already serving a federal sentence.
3. The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender.
4. The length of the non-parole period should be the minimum time that a judge determines justice requires that the offender must serve, having regard to all the circumstances of the offence. The evident legislative intention is for a non-parole period to provide for mitigation of the punishment of the prisoner in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires must be served, having regard to all the circumstances of the offence.
5. When fixing the non-parole period, the court must consider all of the circumstances of the case, including the matters listed in s 16A(1) and (2) of the Crimes Act. The considerations which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be attached to those factors, and the manner in which they are relevant, will differ due to the different purposes underlying each function. Sentencing factors counting against mitigation may increase both the length of the head sentence and the proportion that the non-parole period bears to the head sentence. The converse is true of factors in favour of mitigation.
6. The following have been described as the main factors relevant to the determination, in any case, of the appropriate ratio between the non-parole period and the head sentence:

Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: (see R v Bernier (1998) 102 A Crim R 44 at 49 and R v Sweet [2001] NSWCCA 445; 125 A Crim R 341 at 346), the seriousness of the offence and the prospects of rehabilitation (see R v Stitt (1998) 102 A Crim R 428 and R v Meloh [2001] NSW CCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see R v Drazkiewicz unreported, Court of Criminal Appeal, No 60705 of 1992, NSW 23 November 1993).

The discretion to fix the non-parole period is not constrained by a requirement to bear a particular relationship with the head sentence. It is wrong to approach the discretion from a judicially determined percentage as a norm or starting point. [22]
The sentencing judge referred to all relevant matters in mitigation. His Honour accepted that the appellant had good prospects of rehabilitation and had already made progress. But the sentencing judge also took into account the need for firm penalties by way of personal and general deterrence for the attempted illegal importation of firearms, and where the Dark Web is used to facilitate attempted illegal transactions.
The appellant has not demonstrated that the non-parole period or its relation to the head sentence is unreasonable or plainly unjust so as to show error in the exercise of the sentencing discretion.
We would grant leave but dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KL

Associate to the Honourable Justice Buss

10 APRIL 2019

[1] White AB 115 -116 [17] - [18].

[2] White AB 45 - 46.

[3] White AB 127 - 128 [69] - [70].

[4] White AB 33 - 34.

[5] White AB 63.

[6] White AB 67.

[7] Psychiatric report, 10.

[8] White AB 181.

[9] White AB 66.

[10] White AB 68 - 69.

[11] See Proceeds of Crime Act 2002 (Cth) s 329.

[12] Huynh v The Queen [2017] VSCA 216.

[13] Crimes Act s 16A(1).

[14] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28].

[15] See Customs Regulations 2015 (Cth), reg 130 and pt 2 of sch 7, Item 4, read with sub-regulation 4F(1) of the Customs (Prohibited Imports) Regulations 1956.

[16] McAlpine v The State of Western Australia [2018] WASCA 195 [54].

[17] Huynh v The Queen [2017] VSCA 216 [41].

[18] See, for example, Salman v Director of Public Prosecutions (Cth) [2011] NSWCCA 192 [46] - [47].

[19] See, for example, Stone v The State of Western Australia [2010] WASCA 80.

[20] The authorities are collected and summarised in Kim v The Queen; Fang v The Queen [2016] VSCA 238 [61] and R v Ly [2014] NSWCCA 78; (2014) 241 A Crim R 192 [86].

[21] Kim v The Queen; Fang v The Queen [61].

[22] Stipkovich v The Queen [2018] WASCA 63 [29] - [35]. The quote at [34] is from Bick v The Queen [2006] NSWCCA 408 [15] (citations omitted).

Authorities Cited11

Referred to (11)