Binns v Gardiner

[2004] WASCA 275

BINNS -v- GARDINER [2004] WASCA 275

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 275
Court:	THE FULL COURT (WA)
Case No:	SJA:1078/2002	Heard:	1 OCTOBER 2004
Coram:	TEMPLEMAN J JENKINS J SIMMONDS J	Delivered:	25/11/04
No of pages:	14	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	JOHN CHRISTOPHER MASON BINNS RUSSELL KEITH GARDINER
Catchwords:	Criminal law and procedure Appeal against sentence Firearms offences Disqualification from holding licence Whether permanent disqualification available under statutory provision for "such period as the Court determines" Whether permanent disqualification manifestly excessive
Legislation:	Firearms Act 1973, s 27 Justices Act 1902, s 192, s 206A, s 199 Sentencing Act 1995, s 104
Case References:	Bayens v Taylor, unreported; SCt of WA (Wallwork J); Library No 920631; 27 November 1992 Beckwith v The Queen (1976) 135 CLR 569 Binns v Gardiner [2002] WASCA 337 Chew v The Queen (1992) 173 CLR 626 Denton v Murdock, unreported, SCt of WA (Parker J); Library No 950572; 26 October 1995 Jackamarra v Orr [2003] WASCA 278 R v Tunde-Olarinde (1967) 51 Cr App Rep 249 Schamotta v The Queen [2002] WASCA 262 Stackhouse v Curulli, unreported; SCt of WA (Owen J); Library No 920251; 30 April 1992 Waldock v Taylor [2003] WASCA 43 Coumbe v Whittaker [1999] WASCA 262 Horton v Burton (1999) 28 MVR 415 Horton v Burton (1999) 29 MVR 132 Stevens v Viskovich, unreported; SCt of WA (Parker J); Library No 950596; 26 September 1996

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BINNS -v- GARDINER [2004] WASCA 275 CORAM : TEMPLEMAN J

JENKINS J
SIMMONDS J

HEARD : 1 OCTOBER 2004 DELIVERED : 25 NOVEMBER 2004 FILE NO/S : SJA 1078 of 2002 BETWEEN : JOHN CHRISTOPHER MASON BINNS

Appellant

AND

RUSSELL KEITH GARDINER
Respondent

ON APPEAL FROM:

For File No : SJA 1078 of 2002

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : HASLUCK J

Citation : BINNS -v- GARDINER [2002] WASCA 337

File No : SJA 1078 of 2002

Result : Application dismissed

(Page 2)

Catchwords:

Criminal law and procedure - Appeal against sentence - Firearms offences - Disqualification from holding licence - Whether permanent disqualification available under statutory provision for "such period as the Court determines" - Whether permanent disqualification manifestly excessive

Legislation:

Firearms Act 1973, s 27

Justices Act 1902, s 192, s 206A, s 199
Sentencing Act 1995, s 104

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : Mr R K Williamson
Respondent : Mr N C Monahan

Solicitors:

Appellant : Williamson & Co
Respondent : State Solicitor

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

Bayens v Taylor, unreported; SCt of WA (Wallwork J); Library No 920631; 27 November 1992
Beckwith v The Queen (1976) 135 CLR 569
Binns v Gardiner [2002] WASCA 337
Chew v The Queen (1992) 173 CLR 626
Denton v Murdock, unreported, SCt of WA (Parker J); Library No 950572; 26 October 1995
Jackamarra v Orr [2003] WASCA 278


(Page 3)

R v Tunde-Olarinde (1967) 51 Cr App Rep 249
Schamotta v The Queen [2002] WASCA 262
Stackhouse v Curulli, unreported; SCt of WA (Owen J); Library No 920251; 30 April 1992
Waldock v Taylor [2003] WASCA 43

Case(s) also cited:

Coumbe v Whittaker [1999] WASCA 262
Horton v Burton (1999) 28 MVR 415
Horton v Burton (1999) 29 MVR 132
Stevens v Viskovich, unreported; SCt of WA (Parker J); Library No 950596; 26 September 1996


(Page 4)

1 TEMPLEMAN J: Over 16 years ago, on 20 June 1988, the appellant John Christopher Binns discharged an unlicensed homemade firearm at least four times. First, at about 11.30 am on that day, the appellant fired at his father in an attempt to kill him. Later, after police had been called to the scene, the appellant fired twice in the direction of a police officer, apparently aiming at his head. As well, the appellant discharged the firearm in his own bedroom.

2 The firearm was a .22 calibre single shot pistol. The appellant made it himself. He admitted that he had obtained several .22 calibre bullets and that he had test fired the firearm previously.

3 The appellant was charged with a number of offences including that of discharging a firearm to the danger of the public, contrary to s 23(9a) of the Firearms Act 1973.

4 The appellant pleaded guilty to that offence in the Perth Court of Petty Sessions. He was sentenced by a Magistrate to imprisonment for 3 months and was disqualified "from holding or obtaining a firearms licence permanently".

5 On 9 August 2002, in circumstances which are not presently relevant, a Judge of this Court gave the appellant leave to appeal against the permanent disqualification from holding a firearms licence:

"on the grounds that the learned Magistrate erred in law when he or she did not determine a period of disqualification (as required under s 27 of the Firearms Act)."

6 At the material time, s 27 of the Firearms Act provided as follows:

"On the conviction of a person for any offence whatever under this Act or for any offence against the person in which it appears from the facts that the convicted person unlawfully used or had in his possession any firearm or ammunition, any court before which the offender is convicted may declare any licence or permit held by the convicted person under this Act to be cancelled, and may declare the convicted person to be disqualified from holding a licence or permit under this Act for such period as the court determines." [emphasis added]

7 The appeal was heard on 23 October 2002 by Hasluck J. His Honour delivered comprehensive reasons in which, having set out the text of s 27 above he noted:

(Page 5)

"The crucial words according to counsel for the appellant were 'for such period as the court determines.' The presence of these words, he argued, obliged the learned Magistrate to determine and stipulate a specific period of disqualification. He failed to do this with the result that the order for disqualification 'permanently' should be set aside." Binns v Gardiner [2002] WASCA 337 at par 16.

8 The conclusion reached by Hasluck J was that in determining the period of disqualification to be imposed under the Firearms Act, it was open to the Magistrate to fix a specific period of months or years "or to fix a more substantial period of disqualification which was indefinite but not infinite" (at [40]). His Honour therefore dismissed the appeal.

9 Hasluck J subsequently gave leave to appeal against his decision on the ground that:

"The learned Judge erred in law when he held that the learned Magistrate did determine a period of disqualification (as required under s 27 of the Firearms Act) when he ordered that the applicant be disqualified permanently."

10 The submissions addressed to this Court in support of the appeal were essentially those made to Hasluck J. Those submissions, the respondent's submissions and his Honour's conclusion are set out in [2002] WASCA 337 at [17] – [41].

11 Having given careful consideration to those matters, I am not persuaded that Hasluck J erred as contended in the ground of appeal.

12 His Honour referred to Schamotta v The Queen [2002] WASCA 262 where the Full Court summarised the way in which the law relating to disqualification from holding a firearms licence had changed since the repeal of the Firearms Act in 1995. The Court said:

"5 At one time, firearms offences involved a liability to disqualification under s 27 of the Firearms Act 1973, but this section was repealed in 1995. The power that is now applicable is that contained in s 106 of the Sentencing Act 1995, subs (1) of which provides:

'A court sentencing an offender for an offence specified in subsection (4a) may order that, for a term set by the court, the offender be disqualified

(Page 6)

from holding or obtaining a licence or a permit or an approval, or any particular licence, permit or approval, under the Firearms Act 1973.'

The offences specified in subs (4a) are the following:

'(a) a firearms offence;

(b) an offence involving assault with a weapon;

(c) an offence involving violence.'


What is relevant here, of course, is par (a), a firearms offence. There is also a definition, for the purposes of the section, in subs (5), of 'firearms offence', the relevant paragraph of which is '(e) an offence under the Firearms Act 1973'. The other offences which are firearms offences may be summarised as offences concerned with stealing or receiving a firearm or ammunition or using a firearm or ammunition during the commission of an offence, or after its commission in order to avoid apprehension.

6 Section 106 is in Pt 15 of the Sentencing Act, in which, by the use of the same form of words as that employed in s 106(1), courts are authorised to disqualify an offender sentenced for a motor vehicle offence from holding or obtaining a driver's licence (s 105(1)), and an offender sentenced for a marine offence from holding or obtaining a certificate of competency under the Western Australian Marine Act 1982 (s 107(1)). Part 15 opens with s 102, s 103 and s 104, which apply generally in respect of orders under the Part. Section 102 is headed 'Principles'; subs (1) specifies that an 'order under this Part may be made in conjunction with any sentencing option available to a court sentencing an offender who is a natural person', and subs (3) provides: 'An order under this Part forms part of the sentence.' Section 104 makes it clear that a disqualification may be imposed for life."

13 The appellant contends that the inference to be drawn from the fact that s 104 of the Sentencing Act now enables a court to disqualify an

(Page 7)

offender for life, is that no such order could have been made previously. However, Hasluck J was of the view that:

" … in a sense, s 104 of the Sentencing Act makes explicit what was previously implicit in s 27 of the Firearms Act." (at [40])

14 I respectfully agree with Hasluck J and with his Honour's reasons at [26] to [41].

15 The appellant contends that a disqualification for life is infinite: and that, as a matter of ordinary English grammar, a court imposing a lifetime disqualification has not "determined" the period of such disqualification.

16 I do not accept that submission. Indeed, it is answered by the definition of the word "period" in the Oxford English Dictionary provided to the Court by counsel for the appellant. The definition includes:

"An indefinite portion of time, of history, or of some continuous process, as life."

Once it is accepted that the word "period" can include a lifetime, it must follow that a permanent (ie lifetime) disqualification is not infinite, but indefinite, as Hasluck J held, at [40]. A court imposing a permanent disqualification has therefore "determined" that the relevant period shall be a period ending with the offender's death.

17 There is authority directly in point, although Hasluck J was not referred to it. In R v Tunde-Olarinde (1967) 51 Cr App Rep 249 the English Court of Appeal heard an appeal by an offender who had been disqualified from driving for life. The appeal was based on the proposition that a disqualification for life "was not a period certain and ascertainable to enable disqualification to be reckoned by reference to it".

18 Parker LCJ, giving the judgment of the court, noted that under the English Road Traffic Act, s 62, the court must disqualify "for a period". His Lordship continued:

"Granted that it must be a period certain, this Court is quite satisfied, and indeed courts throughout the country have been acting on this basis for years, that disqualification for life is for a period certain." (at p 250-251)

19 In his submissions to this Court, counsel for the appellant referred to a decision of the High Court in Chew v The Queen (1992) 173 CLR 626 as authority for the proposition that:

(Page 8)

"When two meanings are available and you're dealing with a penal provision, that the meaning or construction which favours the liberty of the subject is to be favoured." (TS 41)

20 That proposition is not entirely correct. In Chew (supra) Mason CJ, Brennan, Gaudron and McHugh JJ said (at p 632), in relation to s 229(4) of the Companies (Western Australia) Code, that had the provision been ambiguous:

" … all other indicia having failed, the provision, being penal in character, should be interpreted in favour of the strict, that is the purposive, meaning in preference to the causative meaning."

Their Honours referred to a number of authorities including Beckwith v The Queen (1976) 135 CLR 569, where Gibbs J, at p 576 said:

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563 at pp 567-568; Craies on Statute Law, 7th ed. (1971), pp 529-534. The rule is perhaps one of last resort."

21 In my view, the rule (such as it is) has no application here. That is because there is no ambiguity (in the usual sense) in saying that a provision which permits disqualification for a specific period, also permits disqualification for life: the greater includes the lesser. Indeed, the distinction is somewhat artificial. On the appellant's argument, it would have been permissible for the Magistrate to have imposed a disqualification of 100 years, a period which would have exceeded the span of the appellant's life in any event.

22 In my view, therefore, Hasluck J was correct in his decision. I would dismiss the appeal.

An application for leave to appeal against sentence

23 At the hearing of the appeal, the appellant sought leave to add a further ground of appeal – a ground not raised before Hasluck J. It is as follows:

(Page 9)

"That to make the disqualification order permanent was manifestly excessive."

24 Counsel for the applicant made his application pursuant to s 192 of the Justices Act 1902. That section provides:

"The Court may, on such terms and conditions as it thinks fit –

(a) on application made by the appellant before the hearing of the appeal; or

(b) on the hearing of the appeal,


amend or add to, or grant leave to the appellant to amend or add to, the grounds of the appeal."

25 Counsel for the respondent opposed the amendment on a number of grounds, including the fact that the Court was sitting on an appeal from the decision of Hasluck J pursuant to s 206A of the Justices Act, whereas s 192 is concerned with appeals from courts constituted by justices.

26 However, s 206A(4) of the Justices Act provides that:

"Subject to this section, the provisions of this Part (other than section 186) and the relevant rules of court apply, with all necessary changes, to –

(a) an application for, and an order granting, leave under this section;

(b) proceedings relating to the application and the appeal;

(c) the discontinuance, failure to prosecute, or re-instatement of the appeal;

(d) the disposition of the appeal; and

(e) the consequences thereof,


as if they were respectively –

(f) an application for leave under section 185 and an order granting leave to appeal under section 187;

(Page 10)

(g) proceedings relating to such an application and appeal;

(h) the discontinuance, failure to prosecute or re-instatement of such an appeal;

(i) the disposition of such an appeal; and

(j) the consequences thereof."

27 In my view, it must follow from the fact that s 192 falls within the same part as s 206A and permits a new ground of appeal to be raised at the hearing before the single Judge, that a new ground may be raised also before the Full Court.

28 The relevant Rules of Court are those contained in O 65A, which applies generally to appeals under the Justices Act. Rule 12 applies to appeals to the Full Court from the decision of a single Judge: and by O 65A r 9,

"Subject to the [Justices] Act and this order, the provisions of Order 63 and Order 65 apply with necessary modifications to appeals under this order."

29 Order 63 applies generally to appeals to the Full Court. Rule 2 contemplates that the grounds of appeal will be directed to an error or errors in the "judgment or order" under appeal. The strict application of that rule would preclude the raising of a ground of appeal which had not been taken before the single Judge. However, in my view, because s 206A(4) of the Justices Act makes the rules applicable "with all necessary changes", O 63 r 2 must give way to the contrary legislative intention.

30 I therefore conclude that the Full Court does have jurisdiction to entertain an entirely new ground of appeal. The question then arises, whether the Court should exercise the jurisdiction in this case.

31 In answering that question, it is necessary to have regard to a number of factors. First, there is the excessive and unexplained delay in making this application. In Waldock v Taylor [2003] WASCA 43, Roberts-Smith J heard an application for leave to appeal against sentence made over three years out of time. His Honour said:

"Where the delay is substantial an extension of time will be granted only where exceptional circumstances are shown or

(Page 11)

where there has been a substantial miscarriage of justice which would remain uncorrected if the extension were not granted: Lancaster v The Queen (1989) WAR 83 at 85 and 91.

The exceptional circumstances must ordinarily afford a reason for the delay such that it would be unjust to hold the applicant to the statutory time limit. It is in that sense that (the) reason for the delay must be satisfactorily explained. The longer the time which has elapsed, the more exceptional the circumstances have to be: see Stafford v The Queen, unreported; SCt of WA; Library No 4154; 28 May 1981.

The question whether there has been a substantial miscarriage of justice which would remain uncorrected if the extension of time were not granted necessitates a consideration of the merits of the proposed appeal."

32 In the applicant's affidavit dated 17 June 2002, in support of his application for leave to appeal on the ground that he could not lawfully have been disqualified for life from holding a firearms licence, he said he understood the disqualification "to last for ever" (AB 29). The applicant did not say he regarded the order as excessive. He did not seek to appeal on that ground either initially, or in 2002. The application was made only on the day before the hearing of this appeal. In my view, those circumstances are not so exceptional as to warrant the extension of time sought by the applicant in this case.

33 Secondly, even if there was a reasonable explanation, the delay cannot be ignored. If the applicant was to be re-sentenced by this Court it would be necessary, pursuant to s 199(1)(c) of the Justices Act, to:

"substitute a decision that ought to have been made by [the magistrate]."

34 The Court would therefore have to transport itself back in time to 1988, when the approach to sentencing may well have been different. Further, it might now be impossible to establish the diagnosis or prognosis of the applicant's mental state, as it was in 1988: there is no evidence of these matters. The same difficulty would arise if the Court remitted the case for re-sentencing to a Magistrate.

35 Thirdly, there is the difficulty of identifying an error in the original sentencing process, or some other reason to justify a review of the decision: Justices Act, s 186(1).

(Page 12)

36 The difficulty arises from the fact that there is no record of the reasons given by the sentencing Magistrate. Counsel for the applicant said he assumed – justifiably in my view – that reasons were given orally. However, there is no transcript, nor is there any tape from which a transcription could be made.

37 That might not be an insuperable difficulty in every case. For example, a penalty might be so obviously excessive as to demonstrate error, whether or not reasons had been given for its imposition. But in my view, that is not the case here. I accept that a disqualification for life is the longest period of disqualification which might have been imposed under s 27 of the Firearms Act, as it was in 1988. As Barker J said in Jackamarra v Orr [2003] WASCA 278, at [42], albeit in relation to permanent disqualification from holding a motor driver's licence:

"No matter how one looks at it, permanent disqualification is at the absolute outer limit of the discretion to disqualify …"

Such a penalty must therefore have been reserved for the most serious categories of cases of unlawful use of a firearm.

38 The applicant rightly accepts that his offence was serious. He contends, however, that it was not so serious as to warrant the extreme penalty which was imposed on him. In support of that contention, the applicant points to the fact that this was his first offence. That is so: see his criminal record at AB 55.

39 The appellant then points to his relatively young age at the time of the offence: he was then 25 years old. The appellant submits that disqualification is a matter of penalty: it is not intended for the protection of the public. In support of that proposition, the applicant relies on Stackhouse v Curulli, unreported; SCt of WA (Owen J); Library No 920251; 30 April 1992 and Bayens v Taylor, unreported; SCt of WA (Wallwork J); Library No 920631; 27 November 1992 and Denton v Murdock, unreported, SCt of WA (Parker J); Library No 950572; 26 October 1995.

40 That being so, the applicant submits, a life-long disqualification is inconsistent with the well established objective of rehabilitation. However, a lifetime disqualification from holding a firearms licence is not the same as a sentence of life imprisonment, which curtails the basic right of the subject to freedom. In contrast, the grant of a firearms licence must, I think, be regarded as a privilege. Clearly, the considerations

(Page 13)

which lead to the denial of freedom are quite different from those leading to the denial of a privilege.

41 The appellant next relies on the fact that the offence was a result of the emotional and psychological difficulties from which he was suffering at the time. The appellant contends there was nothing to suggest that he would not recover from or overcome his difficulties and that his conduct was out of character.

42 While I accept that disqualification is a matter of punishment, the risk that an offender might re-offend is always a proper matter to be taken into account in sentencing. The magnitude of that risk would clearly depend on the diagnosis and prognosis of the applicant's emotional and psychological difficulties. As I have noted, there was no evidence as to those matters. In those circumstances, I do not think it can be said to have been unreasonable for the Magistrate to take a pessimistic view. Indeed, if there was no relevant evidence, it would have been imprudent not to do so.

43 The applicant next relies on the fact that the firearm was a homemade .22 calibre pistol. The applicant points to the fact that Hasluck J referred to it as "amateurish" (AB 9, par [12]). However, Hasluck J was there referring to the description given by Nicholson J who sentenced the applicant following his conviction of discharging the loaded firearm at his father, with intent unlawfully to kill him, and with unlawfully attempting to strike a police officer with a projectile, namely the bullet from the firearm. Although it is true that Nicholson J referred to the firearm as "amateurish", his Honour went on to describe it as a "potentially lethal weapon" and to the fact that the applicant had live ammunition in his possession.

44 Finally, the applicant contends that "the essential criminality of the incident comprising of a discharge of the two relevant shots was the intent to resist arrest". The appellant relies on the fact that the sentences imposed on him by Nicholson J in the Supreme Court did not involve any disqualification from holding a firearms licence. However, Nicholson J was dealing with the offences with which the applicant had been charged pursuant to s 294 and s 283 of the Criminal Code. He was not dealing with offences charged under the Firearms Act which attracted a penalty of disqualification.

(Page 14)

45 The applicant was sentenced on 4 August 1989 by Nicholson J and appeared before the Perth Court of Petty Sessions on 16 August 1989 in respect of the Firearms Act offences.

46 In my view, it is reasonable to assume that when Nicholson J sentenced the applicant, he knew that there were outstanding charges under the Firearms Act, which were to be heard in the Court of Petty Sessions, and in respect of which, appropriate sentences would be passed in due course.

47 It is, of course, possible to imagine far more serious cases than this. However, even making due allowance for the matters referred to above, I think it justifiable to say that to use a firearm in an attempt to kill another person and, shortly afterwards, to discharge it twice in the direction of a police officer seeking to apprehend the offender in the execution of his duty, does put the offence in the most serious of categories.

48 The Court has not been referred to any sentencing decisions made under the Firearms Act. It is therefore impossible to say whether any tariff existed, with which the penalty imposed on the applicant could have been compared. In those circumstances, I have come to the conclusion that although a permanent disqualification from holding a firearms licence was a very severe penalty, in all the circumstances, it was a penalty which was open to the Magistrate to impose in the proper exercise the sentencing discretion.

49 I am not persuaded, therefore, that there has been a substantial miscarriage of justice which would remain uncorrected if the applicant was not granted the extension of time he seeks.

50 I would dismiss the application.

51 JENKINS J: I have had the advantage of reading, in draft, the reasons to be published by Templeman J. I agree with those reasons and have nothing to add.

52 SIMMONDS J: I have had the advantage of reading the draft judgment of his Honour Templeman J. For the reasons he gives, I too would dismiss this application.