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Binns v Gardiner

Binns v Gardiner

Case [2002] WASCA 337 10 December 2002

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

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

CORAM: HASLUCK J

HEARD: 23 OCTOBER 2002

DELIVERED : 10 DECEMBER 2002

FILE NO/S: SJA 1078 of 2002

BETWEEN: JOHN CHRISTOPHER MASON BINNS
Appellant
AND
RUSSELL KEITH GARDINER
Respondent

Catchwords:

Criminal law - Sentencing - Firearms Act - Appeal against sentence - Disqualification from holding licence permanently - Whether within power to disqualify permanently - Whether this amounted to disqualification for a period - Purpose underlying disqualification provision - Disqualification order held to be within power - Appeal dismissed

Legislation:

Criminal Code, s 283, s 294

Firearms Act 1973-1980, s 8, s 11, s 17(3), s 18(2), s 19, s 20, s 23(9)(d), s 23(9a), s 27
Justices Act 1902
Road Traffic Act 1974, s 63
Sentencing (Consequential Provisions) Act 1995, s 46

Sentencing Act 1995, s 104, s 106

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

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

Solicitors:

Appellant: Williamson & Co
Respondent: Crown Solicitor

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

Calico Printers' Association v Higham [1912] 1 KB 93 at 101
Coumbe v Whittaker [1999] WASCA 151
Creed v Dudley [1984] WAR 344
Denton v Murdock, SCt of WA; Library No 950572; 26 October 1995
Horsman v Bishop [2000] WASCA 316
Horton v Burton, unreported; SCt of WA; Library No 990127; 17 March 1999
Hutchison v Architects Registration Board [1925] VLR 195
In re Marryat; Westminster Bank v Hobcroft (1948) 1 Ch 298
Schamotta v The Queen [2002] WASCA 262
Stackhouse v Curulli, unreported; SCt of WA; Library No 920251; 30 April 1992
Stevens v Viskovich, unreported; SCt of WA; Library No 960596; 26 September 1996

Case(s) also cited:

Bayens v Taylor, unreported; SCt of WA; Library No 920631; 27 November 1992

HASLUCK J: The appellant obtained leave to appeal the decision of a Magistrate given in the Perth Court of Petty Sessions on 16 August 1989 that the appellant be disqualified from holding or obtaining a firearm licence "permanently". Leave to appeal was granted recently on the ground that the learned Magistrate erred in law in that he did not determine a period of disqualification as required by s 27 of the Firearms Act 1973‑1980.
The appeal is brought pursuant to provisions of the Justices Act 1902 which allow a Judge of the Supreme Court powers to dismiss the appeal, set aside, quash or vary the decision of the Magistrate and to substitute a decision that he ought to have made. There is also power to remit the case for rehearing by the Magistrate with or without any direction to him.

The 1988 Incident

The decision appealed against arose out of an incident at the appellant's residence on 20 June 1988. The relevant statement of material facts reads as follows:
"At about 11.30 am on Monday, 20th June, 1988, the accused was at his home address, when he fired a firearm at his father, in an…

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 Binns v Gardiner

Details

AGLC: Binns v Gardiner [2002] WASCA 337
Case: [2002] WASCA 337
Decision Date: 10 DECEMBER 2002

CaseChat Overview and Summary

The appeal was brought by the defendant, Binns, against a sentence imposed by Gardiner, a magistrate, in relation to a breach of the Firearms Act. Binns was found guilty of possessing a firearm without a licence and was sentenced to a fine and a permanent disqualification from holding a firearm licence. Binns contested the permanent nature of the disqualification, arguing that it exceeded the magistrate's sentencing powers and was not authorised by the Act. The central legal issues before the court were whether the magistrate had the authority to impose a permanent disqualification from holding a firearm licence and whether such a disqualification could be interpreted as a disqualification for an indefinite period.

The court examined the relevant statutory provisions and the legislative intent behind the disqualification provisions. It concluded that the magistrate's power to disqualify an individual from holding a firearm licence was intended to be broad, reflecting the seriousness of firearm offences and the need to protect public safety. The court found that the term 'permanent' in the context of the Act did not necessarily preclude a disqualification that could be indefinite. Instead, the court interpreted the disqualification as effectively being for an indefinite period, aligning with the protective purpose of the Act. Consequently, the court held that the magistrate's decision to impose a permanent disqualification was within their sentencing powers and did not contravene the Act.

The appeal was dismissed, and the original sentence, including the permanent disqualification from holding a firearm licence, was upheld. The court emphasised the importance of a broad interpretation of the disqualification provisions to achieve the underlying legislative objectives of preventing firearm-related harm and ensuring public safety. The decision underscored the court's deference to the magistrate's sentencing discretion, provided it remained within the bounds of the statutory framework and served the legislative intent.

Orders