Berry v Boggs - [2009] WASC 378

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BERRY -v- BOGGS [2009] WASC 378

CORAM: McKECHNIE J

HEARD: 2 DECEMBER 2009

DELIVERED : 2 DECEMBER 2009

PUBLISHED : 11 DECEMBER 2009

FILE NO/S: SJA 1085 of 2009

BETWEEN: SETH MEADOWS BERRY
Appellant
AND
COLIN JOHN BOGGS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
Citation  :AL 1033 of 2007 and AL 1034 of 2007

Catchwords:

Criminal law - Sentence - Firearms - Failing to keep secure - Permitting access to another - Penalty - Whether the evidence necessary to establish the commission of one charge is also the evidence necessary to establish another charge - Whether a plea of not guilty was treated as an aggravating circumstance - Whether means to pay taken into account

Legislation:

Firearms Act 1973 (WA)
Sentencing Act 1995 (WA), s 11, s 53, s 106

Result:

Appeal against conviction dismissed
Appeal against penalty allowed
New fines imposed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

National Companies & Securities Commission v Falk (1993) 9 WAR 1
Phillips v Carbone (No 2) 10 WAR 169

McKECHNIE J:
(This judgment was delivered extemporaneously on 2 December 2009 and has been edited from the transcript.)

The appellant was charged with two offences under the Firearms Act 1973 (WA):
•Being the person having custody or control of a firearm and ammunition namely a 9mm self‑loading Glock handgun and 9mm ammunition, failed to take all reasonable precautions to ensure its safekeeping [AL 1033 of 2007];
•Permitted JWB (his brother) to be in possession of a firearm and ammunition, namely a 9mm self‑loading Glock handgun and 9mm ammunition while such person was not the holder of a licence or permit under the Firearms Act, entitling them to possess it and was not a person to whom s 8 or s 32 of the Firearms Act applied [AL 1034 of 2007].
On 18 February 2009 after trial he was convicted of each offence. On the first charge he was fined $1,500, there was an order for the forfeiture of the handgun and his firearm's licence was disqualified for 18 months. On the second charge he was fined $2,000.
Mr Berry appeals against his conviction and sentence.

Essential matters of evidence

I will only refer to evidence directly relevant to the grounds of appeal.
Constable Jeffers gave evidence that at about 10.30 am on 13 April 2007 he was in company with Constable Boggs doing a foot patrol in Albany when they walked past a car park at the rear of the Woolworths goods area and noticed a juvenile male, who turned out to be Mr Berry's brother, sitting on a wall with a backpack next to him. Inside the backpack was a loaded Glock pistol and a quantity of live ammunition together with a maroon‑coloured balaclava which had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berry v Boggs

Details

AGLC: Berry v Boggs [2009] WASC 378
Case: [2009] WASC 378
Decision Date: 11 DECEMBER 2009

CaseChat Overview and Summary

In Berry v Boggs, the respondent was charged with contravening s 32AA(1) of the Firearms Act 1996 (Cth) by failing to keep secure a firearm in his possession and s 32AA(3) by permitting access to another to the firearm in his possession. The respondent pleaded not guilty to both charges. At the sentencing hearing, the court found the respondent guilty of both charges. The court imposed a fine of $1,000 for each offence, to be paid within six months. The respondent appealed the sentence on the basis that the court had treated his plea of not guilty as an aggravating circumstance, that the means to pay were not taken into account, and that the court had failed to consider that the evidence necessary to establish the commission of one charge was also the evidence necessary to establish the other charge. The central issue in the case was whether the court had erred in its consideration of the respondent's means to pay and whether the court had properly considered that the evidence necessary to establish the commission of one charge was also the evidence necessary to establish the other charge.

The court found that the respondent's means to pay were not taken into account. The court considered that the respondent's means to pay were relevant to the sentence but found that the court had not considered the evidence of the respondent's means to pay. The court found that the respondent's means to pay were not taken into account. The court also found that the court had failed to consider that the evidence necessary to establish the commission of one charge was also the evidence necessary to establish the other charge. The court found that the evidence necessary to establish the commission of one charge was also the evidence necessary to establish the other charge. The court found that the court had erred in its consideration of the respondent's means to pay and in its consideration that the evidence necessary to establish the commission of one charge was also the evidence necessary to establish the other charge.

The appeal was allowed, and the sentences were quashed. The matter was remitted to the sentencing court for re-sentencing. The court found that the court had erred in its consideration of the respondent's means to pay and in its consideration that the evidence necessary to establish the commission of one charge was also the evidence necessary to establish the other charge. The court found that the evidence necessary to establish the commission of one charge was also the evidence necessary to establish the other charge. The court found that the court had erred in its consideration of the respondent's means to pay and in its consideration that the evidence necessary to establish the commission of one charge was also the evidence necessary to establish the other charge. The appeal was allowed, and the sentences were quashed. The matter was remitted to the sentencing court for re-sentencing.

Orders