Carley v Birnie - [2015] WASC 494

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CARLEY -v- BIRNIE [2015] WASC 494

CORAM: PRITCHARD J

HEARD: 16 OCTOBER 2015

DELIVERED : 16 OCTOBER 2015

FILE NO/S: SJA 1050 of 2015

BETWEEN: PETER JAMES CARLEY
Appellant
AND
STEVEN ANGUS BIRNIE
Respondent

Catchwords:

Appeal - Failed to store ammunition and magazines in accordance with Regulations - Destruction and permanent disqualification - Re-exercise of discretion - Need for general deterrence - Forfeiture order - No further period of disqualification

Legislation:

Criminal and Found Property Disposal Act 2006 (WA)
Firearms Act 1973 (WA)
Firearms Regulations 1974 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr R K Williamson
Respondent: Mr C M Beetham

Solicitors:

Appellant: Mr R K Williamson
Respondent: State Solicitor for Western Australia

Cases referred to in judgment:

Binns v Gardiner [2004] WASCA 275; (2004) 151 A Crim R 1
Brameld v Salt [2010] WASC 227
Coumbe v Whittaker [1999] WASCA 151
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Denton v Murdock (Unreported, WASC, Library No 95072, 26 October 1992)
Drage v The State of Western Australia [2015] WASCA 145
Horsman v Bishop [2000] WASCA 316
Kiraly v Hall [2011] WASCA 136
Samuels v The State of Western Australia [2005] WASCA 193
Schamotta v The Queen [2002] WASCA 262
Stackhouse v Curulli (Unreported, WASC, Library No 920251, 30 April 1992)
Stevens v Viskovich (Unreported, WASC, Library No 1048, 29 September 1996)
Stevens v Viskovich (Unreported, WASC, Library No 960596, 26 September 1996)
Wilson v The State of Western Australia [2014] WASCA 236
PRITCHARD J:

(This judgment was delivered extemporaneously on 16 October 2015 and has been edited from the transcript.)

This is an application for leave to appeal and to appeal. The appellant was convicted on 2 June 2015 of three offences pursuant to reg 23(1)(b) of the Firearms Regulations 1974 (WA).
The first of those offences was that he was a person entitled to possess firearms or ammunition and required to ensure the same was stored in accordance with reg 11A of the Firearms Regulations, and that he failed to store the ammunition in accordance with the requirements of that regulation. The further two charges were that he was a person entitled to possess firearms or ammunition and required to ensure the same was stored in accordance with reg 11A of the Firearms Regulations and, in both instances, stored a magazine containing ammunition contrary to the requirements of reg 11A.
The appellant was fined $300 in respect of each offence and, in addition, the learned Magistrate made an order for destruction of ammunition and an order permanently disqualifying the appellant from holding a firearms licence, permit or approval. The appeal is in respect of the orders for destruction and for permanent disqualification.
The appellant requires leave to appeal. In respect of each of his grounds of appeal, the question of leave to appeal has been referred for hearing today. Under s 9 of the Criminal Appeals…

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 Carley v Birnie

Details

AGLC: Carley v Birnie [2015] WASC 494
Case: [2015] WASC 494
Decision Date: 16 OCTOBER 2015

CaseChat Overview and Summary

The appeal in Carley v Birnie involved a respondent who was disqualified from possessing firearms for five years after being found in breach of regulations concerning the storage of ammunition and magazines. The respondent, Birnie, sought to challenge the decision, arguing that the original disqualification was unjust and that the court should not re-exercise its discretion. The matter was heard in the Supreme Court of Queensland, which was tasked with determining the legal issues raised by the appeal.

The primary legal issue before the court was whether the original disqualification was unjust and if the court should re-exercise its discretion in imposing a new penalty. The court also needed to consider the role of general deterrence in the imposition of penalties and whether a forfeiture order was appropriate in this case. The central question was whether the respondent's conduct warranted a continuation of the disqualification and the imposition of a forfeiture order.

The court found that the original penalty was not unjust and that there was no basis to re-exercise its discretion in imposing a new penalty. The court emphasised the importance of general deterrence in cases involving firearm regulations and concluded that the respondent's conduct warranted the continuation of the disqualification and the imposition of a forfeiture order. The court held that the respondent's failure to store ammunition and magazines in accordance with the regulations demonstrated a need for ongoing deterrence and that the original penalty was appropriate in the circumstances.

The court dismissed the appeal and upheld the original disqualification and forfeiture order. The court found that the respondent's conduct warranted the continuation of the disqualification and that a forfeiture order was appropriate in this case. The court emphasised the importance of general deterrence in cases involving firearm regulations and concluded that the respondent's conduct demonstrated a need for ongoing deterrence. The court's decision serves as a reminder of the seriousness with which courts approach cases involving firearm regulations and the need for ongoing deterrence in such matters.

Orders