Burrarrwanga v Rigby - [2009] NTSC 57

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 DARWIN
Burrarrwanga 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…

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 Burrarrwanga v Rigby

Details

AGLC: Burrarrwanga v Rigby [2009] NTSC 57
Case: [2009] NTSC 57
Decision Date: 6 November 2009

CaseChat Overview and Summary

In the matter of Burrarrwanga v Rigby, the appellant, a traditional Aboriginal man, appealed against the sentence imposed by the Court of Summary Jurisdiction for a regulatory offence under the Firearms Act. The appellant was found guilty of failing to comply with the storage and safekeeping requirements for firearms. The sole ground of appeal was that the recording of a conviction was manifestly excessive. The appellant argued that he was genuinely remorseful, had taken steps to rectify his actions, and had a good character.

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

If a person who is found guilty of committing an offence against the Firearms Act receives neither a pecuniary penalty nor a custodial sentence, the person maybe re-granted a firearms licence forthwith by the Commissioner. The provisions of s 10(2A) of the Firearms Act do not prevent the Commissioner granting the appellant a licence forthwith. An order made under s 13 of the Sentencing Act is of similar effect to an order made under s 10 or s 11 of the Sentencing Act and in any event s 10(2A) of the Firearms Act only provides for a suspension of licence when a person is either convicted and a fine imposed or convicted and a custodial sentence imposed.The Facts The facts are as follows. The appellant is a traditional Aboriginal man. He was born on 2 April 1941. He is 68 years of age. The appellant is a senior man for his clan. He grew up on Elko Island. The appellant’s first language is Gumatj. He speaks a number of Yolgnu Matha languages. He has limited English. He cannot read English. The appellant teaches the Gumatj language at Sanderson High School on a part time basis. He has run workshops on spear making. The appellant is a recreational shooter who shoots for hunting purposes. He goes hunting almost every weekend. He hunts for turtle at Buffalo Creek. Before being sentenced by the Court of Summary Jurisdiction on 8 July 2009, the appellant only had one prior conviction. On 29 July 2004, the appellant was convicted by the Court of Summary Jurisdiction of failing to carry safety equipment on his boat. The offence was committed on 29 February 2004. The appellant was convicted and fined $300. On 3 March 2006 the appellant was issued a firearm licence. On 12 August 2007, the appellant underwent a firearms audit at his home. During the audit a single barrel 12 gauge shotgun was located in a rectangular steel tube near a wall in the main bedroom of his home. The tube was approximately 1.5 metres in length. The appellant did not have the required storage facility for the shotgun which was registered in his name. It was also common ground between the parties that the appellant’s firearm licence was revoked under the provisions of s 96A(5) of the Firearms Act on 27 November 2007. During 2008, with the assistance of an interpreter, the appellant studied a book entitled, National Firearms Safety Code Book, and in December 2008 he passed a verbal firearms safety test about the safety, storage and safe keeping of firearms. The test was conducted by the Northern Territory Police. The offender also purchased an approved Firearms Safe and a Crown Lands Permit.The remarks of the sentencing Magistrate When passing sentence on the appellant, the sentencing Magistrate made the following remarks:Today I am going to record a conviction in relation to this matter. I take into account the appellant’s guilty plea. I have taken into account the steps he has taken after the offence to make things right. I also take into account his good character. Although, I see on his record, he has been to court once before. He was previously convicted for failing to carry safety equipment on his boat. This firearm offence is a bit like that because he has failed to store his firearm. So I am really worried that it is not once but twice he has failed to do things that are safe. I record a conviction. I am going to place him on a good behaviour bond, which means he promises to the court he will stay out of trouble for the next 12 months. If he gets into trouble, he is going to have to come back to court and explain the trouble. If he gets into trouble, then I can punish him again for this offence and he will also have to pay $750 because that is the order I make today.The reason I am recording a conviction is I need to let other people know, if they get into the same trouble, they are going to be punished with a conviction. The other thing I am worried about is firearm offences are very common. They happen quite a bit. So I have to make sure other people do not do the same thing.There will be a victim levy of $40 and 28 days to pay the victim levy.The arguments of the appellant

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.