Chief Executive Officer of Customs v Powell [2015] QDC 97

DISTRICT COURT OF QUEENSLAND CITATION: Chief Executive Officer of Customs v Powell [2015] QDC 97 PARTIES: Chief Executive Officer of Customs (Crown) v Timothy Ian Charles Powell (defendant) FILE NO/S: BD2068/13 DIVISION: Appeal PROCEEDING: Sentence ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 6 May 2015 DELIVERED AT: Brisbane HEARING DATE: 4 March 2015, with final submissions received on 7 April 2015 JUDGE: Kingham DCJ ORDER: 1. The defendant is convicted and fined the sum of $6,000; the fine to be paid within 2 years. 2. The defendant must pay the appellant’s costs of the appeal, including reserved costs, as assessed, if not agreed by the parties. CATCHWORDS: APPEAL – APPEAL AGAINST SENTENCE – MANIFESTLY INADEQUATE – s19B CRIMES ACT 1914 (CTH) – RE-SENTENCE - where defendant originally sentenced pursuant to s19B Crimes Act – where sentence successfully appealed by the Crown as being manifestly inadequate – where the Crown argued both general and personal deterrence considerations of importance - where defendant has a similar prior conviction – where defendant argued a conviction should not be recorded due to employment factors – where defendant argued that health factors, financial status were relevant in mitigation of sentence – where defendant was convicted and fined $6000 to be paid within two years. -- 1 of 7 -- 2 COUNSEL: M J Byrne QC for the Crown Mr Powell appeared in person SOLICITORS: Australian Government Solicitor for the Crown [1] On 4 March 2015 I delivered my reasons for setting aside the decision appealed against and invited evidence from Mr Powell about his financial circumstances and further submissions on sentence. I have now received that material. [2] For the reasons which follow, I record a conviction and fine Mr Powell the sum of $6,000, with two years to pay. Recording a conviction [3] Mr Powell argues I could still consider proceeding under s19B of Crimes Act 1914 (Cth) and not record a conviction. In his submissions filed on 7 April 2015, Mr Powell argued matters I have already determined. On 4 March 2015 I gave reasons why s19B did not apply to Mr Powell’s case. Some further evidence was allowed on the appeal, most of which was specifically referred to in my previous reasons. It related to the requirement that Mr Powell disclose the conviction to his employer (he is a public servant) and the possibility that this could have an adverse impact on his employment. The further evidence does not advance matters materially. Mr Powell is now working in a capacity in which he says some form of security vetting or accreditation is required. However, there is no certainty Mr Powell’s employment will be affected by this conviction. The argument relating to his employment and the question whether to record a conviction has already been dealt with. This is not a case in for proceeding pursuant to s19B. The sentence [4] Section 16A of the Crimes Act 1914 (Cth) governs my determination on sentence. I am required to impose a sentence of appropriate severity taking into account all matters, including, to the extent they are relevant and known to the court, the non- exhaustive list of matters specified by s16A(2). I have addressed those factors which I consider are raised by Mr Powell’s case below. The nature and circumstances of the offence [5] I have already stated the view I take of the circumstances of the offence in my reasons of 4 March 2015. It is not a trivial offence. Customs offences are difficult to detect and courts recognise the need for general deterrence.1 Mr Powell imported an integral component of a dangerous military firearm. Although the piece was cut, little work was required to render it operable. Accepting a collector could have an innocent purpose for possessing a cut part, and that Mr Powell did not intend to reconstruct an operable weapon, the part could fall into the hands of others who might have a different and more dangerous intent. The Crown made submissions, but provided no direct evidence, that Customs detect and seize 4,000 to 6,000 illegal firearms or firearm parts each year. Regardless of the 1 Anderson v L Vogel & Son Pty Ltd (1967) 41 ALJR 264 at 267; Hayes v Weller (1988) 50 SASR 182 at 186 -- 2 of 7 -- 3 numbers detected and seized, I accept as a matter of common sense that considerable resources are devoted to policing the importation regulations. [6] Mr Powell’s character Mr Powell is not a young offender. At the time, he was 33 years old. He suffers a depressive disorder. He does have a criminal history but the only entries I consider relevant for this sentence is the prior conviction for the same offence and a Weapons Act offence. Most concerning is the prior importation. Mr Powell is well regarded by his work supervisors2 and a friend speaks highly of his character and his role in causing unregistered firearms to become registered and secured. He has also worked in a voluntary capacity, which reflects well on him. Dr Hatzipetrou has expressed the view that Mr Powell is well motivated to comply with the law. The effect of that opinion must be tempered, though, by my findings about Mr Powell’s failure to seek a ruling on the particular part he imported, although he was in correspondence with customs personnel at the time. Mr Powell’s recreation [7] Mr Powell has a long standing interest in firearms. His father was a collector. Mr Powell owned his own firearm at age 10. He holds a licence to possess various weapons; has completed various training courses in safety and law; and he is a member of Sporting Shooters Association of Australia. This is a personal passion for Mr Powell. He has previously served as the honorary secretary of the Arms Collectors Guild of Queensland, but his membership of that association was terminated because of his previous conviction. [8] It might be expected that Mr Powell will lose his licence to possess weapons as a result of this conviction. There is a review process, which Mr Powell has availed himself of in the past, successfully. But that is a matter for others to consider. In any case, there is good reason for authorities administering legislation such as the Weapons Act to be aware of a licensee’s convictions, particularly where they pertain to regulations aimed at public safety.3 [9] I have read the medical reports referred to later in these reasons. They disclose the unusual degree of emotional attachment that Mr Powell has to his recreation. To one of the practitioners, Mr Powell described his interest as obsessive. If Mr Powell cannot retain his weapons licence, I accept that this will affect him more severely than someone who does not have such a long standing and intense interest. Mr Powell’s employment [10] As I have observed already, I am not persuaded that Mr Powell will lose his job as a result of this conviction. However, I do accept that it is likely to affect his prospects generally. He is on a temporary contract which is subject to review. His chances of securing further contracts or to move into positions he would prefer and may be suitable for, such as game ranger, may be reduced by this further conviction and, possibly, the loss of his weapons licence. 2 Character reference under the hand of James Joseph O’Connor dated 28 March 2013; character reference under the hand of Shae Anne Robyn Krieger dated 27 March 2013. 3 Matta v ACCC [2000] FCA 729 at [13] -- 3 of 7 -- 4 [11] I accept Mr Powell will suffer consequences of his offending beyond the sentence that I will impose and will take that into account in passing sentence. Prior offending [12] This was Mr Powell’s second offence for importing a firearm part without a permit. Mr Powell’s appeal against the first conviction had not been heard or determined when he ordered this part. [13] It is appropriate to take into account both positive and negative antecedents in determining what sentence to impose. This is not to further punish for the earlier offence, but to have regard to relevant matters in determining what sentence is appropriate for a later offence.4 [14] It is of concern that, for the prior offence, Mr Powell also relied upon the same argument that he received confusing and conflicting advice from departmental officers. Accepting Mr Powell’s version of events about the prior offence, this should have placed him on notice of his need for caution for the subject importation. Mr Powell’s health [15] Mr Powell relies on the following reports:  Dr Frank Varghese, Clinical Psychiatrist dated 5 May 2009  Dr Gary Larder, Consultant Psychiatrist dated 25 May 2009  Dr Chad McCormick, Psychologist dated 15 February 2010  Dr Luke Hatzipetrou, Clinical Psychologist dated 15 April 2013 [16] The reports of Dr Varghese and Dr Larder were provided for WorkCover purposes because Mr Powell suffered a back injury. Dr Varghese diagnosed an Adjustment Disorder with some variable depressed mood and some anxiety; the adjustment issue being adjustment to his physical injury.5 He described the disorder as mild and not disabling.6 [17] Dr Larder described Mr Powell as presenting with anxious, angry and depressed mood. He diagnosed a Chronic Adjustment Disorder due to stressors including the injury, chronic pain, loss of employment, financial stress and the court proceedings. [18] Dr McCormick, who counselled Mr Powell over a period, considered the legal issues and court proceedings were the primary stressor, with the injury a secondary factor. He also diagnosed an Adjustment Disorder aggravated by a later and unrelated workplace incident. [19] Finally, and most recently, Dr Hatzipetrou recommended mental health intervention for Mr Powell. He diagnosed Recurrent Depression, Persecutory Ideation and a Chronic Adjustment Disorder, which he considered related directly to these proceedings. He noted protective factors that suggested Mr Powell was at low risk of recidivism, because he was motivated to comply with the law. 4 Weininger v The Queen [2003] 212 CLR 629 at [32] 5 Varghese report, p 5 6 Varghese report, p 6 -- 4 of 7 -- 5 [20] None of the report writers identified any condition that impaired Mr Powell’s decision making, such as to reduce his moral culpability or responsibility for the offence. Further, the reports reveal that Mr Powell experienced other stresses, including the injury and other workplace incidents, that contributed to an Adjustment Disorder at different times and for different reasons. [21] I have no doubt the lengthy course of both this and the previous prosecution have taken a toll on Mr Powell, emotionally and financially, and on his relationships. I note, though, that much of the delay is attributable to Mr Powell exploring his rights of appeal on the first conviction and, later, on this one. Penalty options [22] Mr Powell has submitted I could proceed under either s19B or s20 of the Crimes Act. I have already addressed s19B. Pursuant to s20(1)(a), the Court has the power to convict but release Mr Powell without passing sentence. For the reasons canvassed in relation to s19B, I do not consider it is appropriate to proceed by way of s20(1)(a) either. [23] The maximum penalty for the offence is $110,000.7 Because the prosecution commenced in the Magistrates Court of Queensland, any penalty in excess of $22,000 is taken to have been abandoned.8 [24] Before imposing a fine, I must take into account Mr Powell’s financial circumstances.9 He has filed material to demonstrate his financial situation is poor. His capacity to pay the fine is an important consideration but cannot be the dominant factor in fixing the amount of the fine.10 [25] Other sentencing principles that assume prominence in this case are those of general and personal deterrence. Because of the difficulty in detecting the offences, courts impose sentences intended to deter others. In Mr Powell’s case, there is a demonstrated need for personal deterrence. A previous prosecution, convictions and fine of $1,500 did not deter this offence. [26] I have been assisted by tables of comparable sentences provided by the Crown. None of the cases are on all fours, but provide some guidance in how such matters have been approached by the Courts. Mr Powell relied on the case of Foster,11 in which case the offender was dealt with under s20(1)(a). It is not a comparable case. The defendant was only 25 years old, had pleaded guilty and co-operated, had no prior convictions, and had references which indicated this behaviour was out of character. [27] The Crown drew my attention to the cases of Seagrott12 and Moojen13. I regard both as more serious than Mr Powell’s case. In Seagrott, a fine of $8,500 was imposed on a permanently disabled man, financially dependent on his wife who was a firearms collector. He pleaded guilty and had no prior convictions. However, he had imported 7 Customs Act 1901 (Cth) s233, s233AB(2) 8 Customs Act 1901 (Cth) s233(1AA), s233AB(2), s245(4) 9 Crimes Act 1914 (Cth) s16C 10 Darter v Diden [2006] SASC 152 at [30] 11 R v Foster, sentenced on 30.10.03 by Magistrate Gordon 12 R v Seagrott, sentenced on 20.07.07 by Kingham DCJ 13 R v Moojen, sentenced on 03.07.14 by Magistrate Comans -- 5 of 7 -- 6 a complete trigger mechanism. In contrast, Mr Powell imported a machined part that was not immediately useful, although it could be modified for use. [28] In Moojen, the court sentenced a mature man with prior offences. In this respect his case is similar to Mr Powell’s. However, I regard his importation as more serious. A fine of $10,000 was imposed for three importations involving a stock, receiver and firearm barrel. Together they constituted a potentially operative firearm. [29] I have also had regard to the fine of $8,500 imposed in Spicer.14 Although the defendant co-operated and had no prior convictions, there were multiple offences and a clear intention to deceive in the way in which the items were labelled. I consider this to be a more serious example also. [30] As I consider each of Seagrott, Moojan and Spicer to be have more serious features than Mr Powell’s offence, a lesser fine should be imposed. However, it does need to reflect the seriousness of his offending, particularly in light of Mr Powell’s knowledge of the regulations, his past experience and understanding of the desirability of checking prior to importing a firearm part and his proximate access to departmental advice about the particular part he imported. [31] Taking all the circumstances of the offending into account, including Mr Powell’s personal and financial circumstances, I will impose a fine of $6,000. [32] Taking into account Mr Powell’s financial circumstances, I allow 2 years for him to pay the fine and make no order as to any period of imprisonment in default of payment. Costs [33] The costs of an appeal are at the discretion of the judge.15 This discretion must be exercised without caprice, having regard to relevant considerations and established principles.16 [34] In considering the general principle that costs follow the event, it is appropriate to have regard, not only to the order obtained by the appellants but, to the range of issues ventilated on appeal and the appellants’ success in respect of those issues.17 The Crown has succeeded in this appeal and ordinarily, costs should follow the event. [35] Here there is a dispute about the costs reserved when the appeal hearing was adjourned on 28 July 2014. Mr Powell was out of time for filing an application to strike out the Notice of Appeal. That application was unsuccessful. [36] Mr Powell was on notice from prior contact with the Registry (in April 2014) that 28 July was a potential hearing date. It was a Registry error that led to notice being sent to the wrong address, but the appellant bears no responsibility for that. Mr Powell failed to provide the Registry with his address for service, which possibly contributed to the confusion in the Registry about how to notify him. In any case, he was aware of the hearing date when he contacted the Registry on 22 July, only two business days 14 R v Spicer, sentenced on 07.07.11 by Magistrate Lee 15 Justices Act 1896 (Qld) s226 16 Oshlack v Richmond River Council (1998) 193 CLR 72 at 96. 17 Alborn & Ors v Stephens & Ors [2010] QCA 58 at [8]; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26 at 60-61. -- 6 of 7 -- 7 less than the ten day period the Registry is required to give. Given those matters, I consider it just to include the reserved costs in an order in favour of the appellant. Orders 1. Mr Powell is convicted and fined the sum of $6,000; the fine to be paid within 2 years. 2. Mr Powell must pay the appellant’s costs of the appeal, including reserved costs, as assessed, if not agreed by the parties. -- 7 of 7 --