BALODIS v Police

[2014] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BALODIS v POLICE

[2014] SASC 111

Judgment of The Honourable Justice Kelly

20 August 2014

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS

Appeal against conviction – appellant pleaded guilty to one count of failing to store properly ammunition contrary to the Firearms Act 1977 (SA) and Firearms Regulations 2008 (SA) – plea of guilty entered by counsel for the appellant upon the prosecution agreeing to withdraw three separate firearms charges – appellant convicted and fined $450 – appellant subsequently applied for a rehearing, which application was refused.

Whether charge of failing to store ammunition in accordance with reg 41(1) of the Firearms Regulations 2008 (SA) was appropriate in circumstances where ammunition stored separately from, or in absence of, firearms. Held: the appellant’s submission is inconsistent with factual basis alleged by prosecution at sentencing submissions – the Firearms Regulations require ammunition to be stored in a locked container regardless of its proximity to any firearms.

Whether fine imposed by the Magistrate was excessive.  Held:  the fine imposed was well within the discretion available to the Magistrate – the appellant has failed to demonstrate any error in the approach of the Magistrate.

The appeal is dismissed.

Firearms Act 1977 (SA) s 11(1), s 11(8); Firearms Regulations 2008 (SA) reg 38(2), reg 41(1), reg 61, referred to.

BALODIS v POLICE
[2014] SASC 111

Magistrates Appeal:   Criminal

KELLY J.

1. On 23 April 2014 in the Mount Barker Magistrates Court, the appellant through his solicitor, pleaded guilty to one count of failing to store ammunition in a locked container separately from firearms contrary to reg 41(1) and reg 61 of the Firearms Regulations 2008 (SA). Regulation 41(1) of the Firearms Regulations 2008 (SA) requires that ammunition must be stored in a locked container, whether or not it is in physical proximity to any firearms, which locked container must not contain both ammunition and firearms.

2. Three other charges of possess a class C firearm without a licence contrary to s 11(1) and s 11(8) of the Firearms Act 1977 (SA), fail to store a class D firearm in accordance with reg 38(2) of the Firearms Regulations 2008 (SA) and unlawful possession of a Fabrique Nationale .22 self-loading rifle contrary to s 41(1) of the Summary Offences Act 1953 (SA) were dismissed on application of the prosecutor.

3. The maximum penalty for failing to store ammunition in accordance with the Firearms Regulations 2008 (SA) is a fine of $2,500.[1] 

   [1]    Firearms Regulations 2008 (SA), reg 61.

4. The Magistrate agreed that the circumstances of the charge of failing to properly store the ammunition were at the lower end of the scale and dealt with the matter by way of a fine of $450 plus costs.  In imposing penalty the Magistrate took into account the fact that the appellant has two relevant prior convictions; the first on 7 May 2009 for failing to store ammunition in a locked container and failure to keep a firearm secured, the second, on 16 June 2011 for three counts of possession of an unregistered firearm.

5. On 14 May 2014 the appellant appeared unrepresented before another Magistrate and made an application to set aside the conviction and penalty.  That application was refused by the subsequent Magistrate.  The appellant now appeals to this Court on the grounds that the original Magistrate erred in recording a conviction and that the penalty he imposed was excessive.  The appellant seeks an order that the conviction and penalty be set aside. 

6. The appellant appeared on the hearing of this appeal unrepresented.  As far as I understand the argument on appeal the appellant’s grievance is that he has been convicted of possessing one box of ammunition in circumstances where there were no guns stored at his premises as they are all currently held in the Mount Barker Police Station and the box of ammunition had been given to him by a neighbour for safe keeping.  The appellant wants the conviction set aside as he considers that the charge is inappropriate in light of the fact that he does not have possession of any guns.

7. I have reached the conclusion that the appellant’s arguments are misconceived.  In the first place his submissions overlook the fact that, acting on his instructions, his solicitor entered a plea of guilty on his behalf in the Magistrates Court at Mount Barker on 23 April 2014. 

8. The appellant’s legal representative on that day, Ms Demertzis, filed an affidavit in these proceedings explaining how it was that she came to enter a plea of guilty on the appellant’s behalf upon the prosecution agreeing to withdraw the other three firearm charges relating to the possession of unlicensed firearms.  In the end the appellant did not dispute that he gave those instructions to Ms Demertzis citing, in the course of his oral submissions on appeal, a letter he wrote to his solicitor to that effect.

9. In submissions before the Magistrate on 23 April 2014 the police relied on the factual basis as the background to the offending as follows:

   At about 2.00 pm on Monday the 15^th of April, 2013, police attended at 12 Rankine Street, Clayton Bay, in relation to a firearms search after information had been received indicating firearms were on the premises.  Whilst at that location police searched a shed at the rear of the residence and located a .22 calibre rifle and a box of .22 calibre ammunition.  Both those items were insecure; the rifle was located wrapped in cloth behind a box and the ammunition was on a shelf in an unlocked cupboard.  The firearm and ammunition were seized by police, however the seized firearm is not the subject of the charge currently before the court.  When spoken to by police the defendant declined to answer questions in relation to the seized items.

10. The submission made by the appellant that the charge of storing ammunition was not appropriate either on the basis that his guns had earlier been removed from the premises or because the charges relating to the presence of the .22 calibre rifle located at the same time were withdrawn cannot be sustained; first, because that submission is inconsistent with the factual basis alleged by the prosecution during sentencing submissions; second, because the Firearms Regulations 2008 (SA) require that ammunition be stored in a locked container even when it is not in physical proximity to any firearms.

11. Finally, the appellant does not dispute that on his instructions Ms Demertzis entered a plea of guilty on his behalf at the Mount Barker Magistrates Court on 23 April 2014. 

12. The Magistrate’s remarks were brief and to the point.  While he acknowledged that the offence was at the lower end of the scale for this type of offending, he also recognised that this was not the appellant’s first appearance before the Court for similar offending in the past.  The conviction and the fine were well within the discretion available to the Magistrate.  The appellant has failed to demonstrate any error in the approach of the Magistrate. 

13. I would add that the appellant appears to have received the benefit of a favourable exercise of the prosecution discretion not to proceed with the three other counts on the complaint. 

14. The appeal is dismissed.