Burrarrwanga v Rigby [2009] NTSC 57
PARTIES:BURRARRWANGA, Andrew
v
RIGBY, Kerry Leanne
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 36 of 2009 (20807847)
DELIVERED: 6 November 2009
HEARING DATES: 6 November 2009
JUDGMENT OF: SOUTHWOOD J
APPEAL FROM: Dr J Lowndes SM
CATCHWORDS:
APPEAL AGAINST SENTENCE – Regulatory offence – failure to comply with the storage and safekeeping requirements under the Firearms Act – sole ground of appeal: recording of a conviction was manifestly excessive – general deterrence a paramount consideration – appeal dismissed
Hales v Adams [2005] NTSC 86; Lanham v Brake (1983) 34 SASR 578, applied
REPRESENTATION:
Counsel:
Appellant:G Lewer
Respondent: J Tierney
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Sou0911
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINBurrarrwanga v Rigby [2009] NTSC 57
No. JA 36 of 2009 (20807847)
BETWEEN:
ANDREW BURRARRWANGA
Appellant:
AND:
KERRY LEANNE RIGBY
Respondent:
CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 6 November 2009)
Introduction
On 8 July 2009, in the Court of Summary Jurisdiction, the appellant pleaded guilty to an offence that contrary to s 46 of the Firearms Act (NT), on 12 August 2007 at Darwin, he, being a person in possession of a Stirling 12 gauge shotgun, failed to comply with the storage and safekeeping requirements which apply to the firearm. The sentencing Magistrate convicted the appellant and placed him on a good behaviour bond for 12 months with security of $750 in his own recognisance.
The appellant appeals against the sentence imposed on him by the Court of Summary Jurisdiction. The only ground of appeal is: the sentence imposed by the sentencing Magistrate was manifestly excessive. The appellant maintains a conviction should not have been recorded against him.
Section 46 of the Firearms Act
Section 46 of the Firearms Act states a person in possession of a firearm must take all reasonable precautions to ensure: it is kept safely; it is not stolen or lost; it does not come into the possession of a person who is not authorised to possess it; and must comply with the storage and safe keeping requirements under this Act that apply to the firearm. Subsection 46(3) of the Firearms Act states the regulations may specify the minimum standards for storage and safe keeping of firearms or classes of firearms.
Regulation 21 of the Firearms Regulations states a category ‘A’ firearm must be stored in accordance with the following requirements: when the firearm is not being used or carried, it must be stored in a locked receptacle which complies with the requirements specified in Sch 2; if the receptacle weighs less than 150 kg when empty, it must be fixed to a wall or floor in a manner that prevents its easy removal; ammunition for the firearm must be stored in a locked container that…
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- AGLC
- Burrarrwanga v Rigby [2009] NTSC 57
- Case
- [2009] NTSC 57
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the sentence imposed by the Court of Summary Jurisdiction was manifestly excessive and whether the recording of a conviction was necessary for the purpose of general deterrence. The court also needed to consider the appellant’s remorse, his efforts to rectify his actions, and his prior good character. Furthermore, the court had to weigh the importance of general deterrence in cases involving regulatory offences aimed at maintaining public safety.
The court held that the sentence imposed by the Court of Summary Jurisdiction was not manifestly excessive. The court emphasised the paramount importance of general deterrence when sentencing for breaches of regulatory legislation aimed at maintaining public safety. The court found that the failure to store a firearm in accordance with the regulations was not a trivial offence and could have serious consequences. The appellant's attempt at storage fell well short of the standards required by the regulations. The court also noted that the appellant's position was no different from many other users of firearms in the Northern Territory who use their firearms for recreational hunting. The court concluded that the sentence was proportionate to the seriousness of the offence and that the sentencing magistrate had made due allowance for all relevant subjective factors. Consequently, the appeal was dismissed.
No order was made as to costs.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The appellant was genuinely remorseful. He regretted breaching the provisions of the Firearms Act and he has taken considerable steps to ensure he does not breach the Act or its regulations in the future, including undertaking a safety test relating to his competency with firearms and acquiring an appropriate safe for the keeping of firearms.Consideration In my opinion the sentence imposed by the Court of Summary Jurisdiction on the appellant was not manifestly excessive. The offence is a regulatory offence[3]. The deterrent aspect of punishment is paramount when an offender is being sentenced for a breach of regulatory legislation aimed at maintaining public safety and there must be good reason for not recording a conviction[4]. The weight to be given to prior good character is less in the case of regulatory offences than in the case of simple offences or crimes that contain overtones of considerable moral turpitude[5]. The purpose of the firearm storage regulations is to preserve public safety. The failure to store a firearm in accordance with the regulations is not a trivial offence and can have very serious consequences. The sentencing magistrate found that such offending is prevalent. The breach was a serious breach of the regulations. The appellant’s attempt at storage fell well short of the standards required by the regulations. The appellant’s position is no different to many other users of firearms in the Northern Territory who use their firearm for recreational hunting. The onus was on the appellant, as the user of a firearm, to ensure he was aware of and understood the storage requirements in relation to firearms. The sentence was proportionate to the seriousness of the offence and the sentencing Magistrate made due allowance for all of the relevant subjective factors to be taken into account in the sentencing process. In the circumstances the appeal is dismissed. I make no order as to costs.