Carley v Birnie
[2015] WASC 494
•16 OCTOBER 2015
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 Act 2004 (WA), leave to appeal is required in respect of a ground of appeal and the court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of success.[1] I am satisfied that leave to appeal should be granted in respect of each of the grounds of appeal and that the appeal should be upheld on each ground.
[1] Samuels v The State of Western Australia [2005] WASCA 193.
For the reasons which follow, I am also satisfied that the order for permanent disqualification and for destruction of the ammunition should be set aside, and I propose to re-exercise the discretion whether to make orders of that kind in each case.
Before doing so, I should indicate two further matters. First, in support of his application for leave to appeal and in the appeal, the appellant sought to rely on an affidavit he swore on 29 June 2015, and I granted leave for him to rely upon that affidavit. Secondly, the appellant sought to amend his grounds of appeal. I did not understand the proposed amendment to be the subject of any dispute, and leave should be granted to permit the applicant to amend the grounds in terms of the minute of amended grounds of appeal filed by the appellant's counsel.
In these reasons for decision, I will deal with six matters:
1.The further affidavit filed by the appellant and its contents;
2.The amended grounds of appeal;
3.Why ground 1 of the grounds of appeal should be upheld;
4.Whether an order for forfeiture of the ammunition should be made;
5.Why ground 2 of the grounds of appeal should be upheld; and
6.Whether an order for disqualification for any period should now be made.
The further affidavit filed by the appellant and its contents
The conviction of the appellant in respect of the offences came about as a result of an endorsed plea of guilty that he entered in respect of each of the charges. The circumstances of the offence which were contained in the statement of material facts read to the Court on sentencing were as follows.
On 26 April 2015, the appellant was driving in Belmont and was stopped by the police.
It was ascertained that the appellant was not authorised to drive the class of motor vehicle he was driving and, in addition, his driver's licence had been disqualified and cancelled by the Magistrates Court. Consequently, the vehicle he was driving was impounded.
At 11.30 am on Thursday 28 April, police attended the police holding yard and searched the appellant's vehicle and uncovered a total of 1,320 rounds of ammunition and two magazines, which were loaded at the time of their being discovered.
On sentencing, the prosecutor requested an order for destruction of the ammunition and the magazines, and requested cancellation of the firearms licence, as well as costs. In response to those submissions, there was little provided by the learned Magistrate in his reasons for imposing the fines and the other orders that he did. He clarified the nature of the offences and the matters to which they pertained, then clarified that the prosecution sought an order for disqualification from holding a licence. The learned Magistrate then proceeded to make an order for disqualification and for destruction of the ammunition.
The further affidavit of the appellant sworn on 29 June 2015 provides further details of the circumstances of the offending. Reliance upon the affidavit was not opposed. The reason I granted leave to rely upon the affidavit pursuant to s 40(1)(e) of the Criminal Appeals Act was that, having regard to the observations of Pullin JA in De La Espriella‑Velasco v The Queen,[2] I was satisfied that it would serve the interests of justice for the information in the affidavit to be before the Court.
[2] De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150] (Pullin JA).
The contents of that affidavit contain material which might well have been provided to the Court in a plea of mitigation had the appellant been represented at the sentencing hearing. Those matters are of assistance and relevance in determining whether any further orders for disqualification or forfeiture should be made today.
The appellant deposes that when he was apprehended, he was driving his car on the way to the gun club. He deposes that when he was pulled over by the police and it was discovered that he was disqualified from holding a driver's licence, the police drove him to his home. He said:
I intended to remove all the ammunition from the car. I did take the firearms out and some ammunition. However I forgot about the ammunition which was in the boot of the car, that being the shotgun ammunition and .243 calibre rounds and some of the .22 calibre ammunition.
He says that of the 742 rounds of shotgun ammunition, 500 were in a case which his business had intended to contribute to his gun club as a prize for a competition that was being held that day. He said he was taking the .243 calibre ammunition to the gun club to give to a friend who has a rifle for that calibre. He also had in his possession some .22 calibre ammunition which he had been using the night before on a shooting expedition.
He says also that:
I had forgotten that the 2 small black .22 calibre rifle magazines were in the centre console of the car. They are [s]mall items (smaller than a matchbox) and they are easy to not see.
I forgot about the ammunition in the boot of the car because I was in a very distressed state at that time. Because I had no drivers licence I had planned not to drive to the gun club but to, instead, get a lift from a friend, but he had rung to say that he could not give me a lift. So against my better judgment, I drove. I was upset with myself and distressed about the consequences that would follow from being caught committing this offence.
In addition, the appellant deposes that he has been living in Western Australia and has been the holder of a gun licence in WA for 10 years, that he is a keen sporting shooter and has been a member of the WA Gun Club for 10 years, and that the use of firearms is central to his life outside work and is a pastime from which he derives considerable satisfaction.
The amended grounds of appeal
The grounds of appeal on which the appellant now seeks to rely are as follows.
Ground 1 contends that the applicant, in respect of each count, seeks leave to appeal against the order for the destruction of the ammunition the subject of the charge on the ground that the learned Magistrate erred in law in making the order in that he had no power to do so.
Ground 2 contends that the applicant, in respect of each count, seeks leave to appeal against the order that the appellant's firearms licence is cancelled and he be permanently disqualified from obtaining a firearms licence. There follow five particulars of that ground. It is unnecessary to set them out.
Why ground 1 of the grounds of appeal should be upheld
Ground 1 alleges an error of law by the learned Magistrate in making an order for the destruction of ammunition. The basis for this ground of appeal is a contention that no power exists in the legislation for the learned Magistrate to make an order for the destruction of the ammunition. It was not in dispute that that is the case. There is no power in the Firearms Act 1973 (WA) or in the Firearms Regulations made pursuant to that Act, or indeed in any other Act, which permits destruction of the ammunition in this case. The respondent accepted that that was so. Section 28 of the Firearms Act, however, does permit an order for forfeiture to be made by the court. Section 28 provides that on the conviction of a person for any offence whatever under any written law, the court may order that any firearm or ammunition to which the Firearms Act applies relating to the charge shall be forfeited to the Crown. Accordingly, the learned Magistrate had no power to order the destruction of the ammunition.
However, the respondent submitted that the order made by the learned Magistrate should, in effect, be understood as one for the forfeiture of the ammunition and that construed or understood in that way, there was no error of law by the learned Magistrate. In support of that proposition, counsel relied upon the decision of the Court of Appeal in Kiraly v Hall.[3] In my view, the respondent's submission should be rejected for two reasons.
[3] Kiraly v Hall [2011] WASCA 136.
First, while it is true that destruction of ammunition in this case would have been a possible outcome of a forfeiture order had that order been made by the learned Magistrate, it was not the only, nor indeed the inevitable, consequence of forfeiture. Under s 29 of the Criminal and Found Property Disposal Act 2006 (WA), the chief officer of a prescribed agency, who is in possession of forfeited property, has a discretion as to what should be done with respect to that property. One of the options is to destroy the property, but there are other options available to the officer in question. Secondly, Kiraly was a very different case from the present, both as to its circumstances and, to a lesser extent, in respect of the legislation which applied. In Kiraly, the items that had been forfeited, or that had been the subject of an order for destruction, were X‑rated 18+ videos which would necessarily have had to be destroyed following forfeiture. Furthermore, in Kiraly, it was observed by Hall J that it was likely that the items had already been destroyed by the time of the appeal. In my view, the pragmatic approach taken by Hall J in Kiraly is not open in the present circumstances.
In my view, it was not open to the learned Magistrate to make an order for destruction. The order he made cannot properly be understood as amounting simply to an order for forfeiture in circumstances where, under the Criminal and Found Property Disposal Act, the officer in possession of the forfeited property would have had a discretion as to how to deal with any property forfeited.
The remainder of the appellant's submissions in respect of ground 1 were, in essence, directed to the question whether this Court should exercise the discretion available to it to impose a forfeiture order. For the moment, it suffices to note that I am satisfied that leave to appeal should be granted in respect of ground 1 and that ground 1 should be upheld for the reasons I have given. The order for destruction should therefore be set aside.
The question then arises whether I should remit this matter back to the learned Magistrate or deal with the exercise of discretion under s 28 of the Firearms Act myself. Both parties submitted that I should deal with the matter today and, in all the circumstances, I am satisfied that it is appropriate for me to do so. I note that under s 14 of the Criminal Appeals Act, that course is open.
Whether an order for forfeiture of the ammunition should be made
The principles in relation to the exercise of discretion under s 28 of the Firearms Act were dealt with by McKechnie J in Coumbe v Whittaker. His Honour noted:
Community concern over recent years as to the possession and use of firearms has caused Parliament to enact strict laws to control the possession and use of firearms and ammunition.
When a person is convicted of a firearms offence, the forfeiture provision of the Act, namely s28, is triggered. The court is given the discretion to order the forfeiture of the firearms relating to the charge.
Although from the offender's viewpoint the forfeiture of valuable firearms following a conviction is an additional penalty or punishment, that is not the proper way to view forfeiture. By the Sentencing Act s8, the effect of forfeiture is not a mitigatory circumstance decreasing the extent to which an offender may be punished.
Forfeiture provisions, such as Firearms Act s28 and more generally those applicable under the Crimes (Confiscation of Profits) Act (WA) 1989, reflect a public interest in taking from an offender the instrument used to commit the offence. Forfeiture may be seen as a statutory reflection of an overarching principle, general deterrence, visiting upon offenders loss of the instrument of the offence as a matter of course.
In the case of firearms offences, an added consideration is the general purpose of the Firearms Act to strictly control the misuse of firearms. While the decision to forfeit a firearm will always be a matter of discretion in a particular case, generally the matters of policy which I have outlined would suggest that the discretion will be exercised in favour of forfeiture.[4]
[4] Coumbe v Whittaker [1999] WASCA 151 [9] - [14] (McKechnie J).
Insofar as the factors which would be relevant to the exercise of the discretion whether to grant an order for forfeiture are concerned, the parties accepted that the factors identified by Heenan J in relation to not dissimilar legislation (the Weapons Act 1999 (WA)), in Brameld v Salt[5] will be relevant. His Honour observed that the power to make an order for forfeiture under the Weapons Act is discretionary:
... and while no specific factors are identified for consideration in the exercise of that discretion, the discretion should be exercised in accordance with the public interest in the forfeiture of weapons from irresponsible users, the need for general deterrence, the interest of the offender, and the circumstances of the offending. Often the discretion is exercised in favour of forfeiture because of the public interest in controlling or restricting the use of weapons. (citations omitted)
[5] Brameld v Salt [2010] WASC 227 [17] (Heenan J).
In addition to these considerations, the purpose and objects of the Firearms Act are also relevant. It is clear from the long title to that Act that the Act is concerned to make provision for the control and regulation of firearms and ammunition and to impose serious consequences on persons who fail to comply with the requirements of the Act, no doubt having regard to the implications for public safety if those requirements are not met.
Turning then to the circumstances which are relevant to the exercise of discretion in this case, this is a situation in which the offences of failing to comply with the storage requirements of the Firearms Regulations were very unusual. As I have already noted, the appellant has deposed in his affidavit that following the decision by the police to impound his car, he was given the opportunity to remove items from the car. He says that he was in a distressed state at the time and that he simply forgot to take the totality of the ammunition from the car. He did, however, have the presence of mind to take the firearms and some of the ammunition. The ammunition which was left behind, however, was of a significant quantity.
I digress to note that the failure to properly store the ammunition in this case appears to have been relied upon as arising once the ammunition in the appellant's vehicle was taken into the police impoundment facility. The fact that he had the ammunition in the car on the way to the gun club was not the basis for the storage offences alleged. (While owners of firearms are subject to obligations under s 23(9) of the Firearms Act to take all reasonable precautions to ensure the safekeeping of firearms or ammunition while carrying or in the possession of those items other than by way of storage, the storage requirement does not apply while the items are being carried.) The gravamen of the offending in this case was that the appellant left ammunition in the car, even once it had been taken away by the police, and failed to take steps to retrieve that ammunition even after the car had been impounded.
The other circumstances of the offending and of the appellant that I take into account are that he has held a firearms licence for 10 years in this State and has had no prior convictions for firearms offences.
I have also taken into account the nature of the items in question in this case. The ammunition involved was of a large quantity. It was agreed between the parties that it was of a very modest value, of less than $500.
The parties agreed that the value of the ammunition 'cut both ways' in relation to whether an order for forfeiture should be made. There certainly was no evidence that an order for forfeiture would have any particularly significant financial consequence for the appellant. In addition to the matters I have already referred to, I note that a large proportion of the ammunition in question was not intended for the appellant's use in any event. Part of it was intended as a gift to the gun club and part of it was intended to be given to a friend, as I have already noted.
Finally, I take into account the need for general deterrence. Firearms offences are, by their nature, very serious offences. The storage requirements of the Firearms Act are serious obligations on firearms owners. The penalties imposed for a breach of those offences reflect the seriousness of the offending. As McKechnie J observed, the need for general deterrence is such that it will often, if not ordinarily, be the case that a forfeiture order will follow a firearms offence as an incidence of general deterrence.
I should mention that counsel for the appellant submitted that a forfeiture order should not be made in this case for two reasons. First, he submitted that the fines imposed already constituted an adequate penalty. Secondly, he submitted that to impose a forfeiture order would appear to condone the erroneous approach of the learned Magistrate, namely that an order for destruction or forfeiture should inevitably be made in any event.
I do not accept those submissions. As McKechnie J pointed out in Coumbe, a forfeiture order is not part of the penalty imposed in respect of firearms offences. It is an additional order which can be made by the court over and above a penalty as an incident of the need for general deterrence. Further, a forfeiture order does not constitute part of the penalties reflected in the Sentencing Act 1995 (WA). This was accepted in the course of submissions by counsel for the appellant.
Thirdly, to impose a forfeiture order now could not be in any way understood as condoning the approach of the learned Magistrate, which I have clearly indicated involved an error.
In all of the circumstances to which I have referred, I have concluded that it is appropriate to make an order for forfeiture of the ammunition and the magazines the subject of each of the three offences. Of the factors to which I have referred, the factor of general deterrence, in my view, weighs in the balance as warranting an order for forfeiture in this case. This is in circumstances where, despite the very unusual nature of the offending, it remains the case that the appellant removed some of the ammunition in his possession from the car along with the firearms but nevertheless left a very large quantity of ammunition in the car at the time the impounding took place. It is appropriate to make an order for forfeiture to reinforce the need for firearms licence holders to be extremely vigilant about their compliance with the storage requirements of the Firearms Act, whatever the storage situation or circumstances may be.
Why ground 2 of the grounds of appeal should be upheld
The respondent conceded that the learned Magistrate erred in imposing a permanent disqualification order on the basis that the learned Magistrate failed to give reasons for doing so, and because a permanent disqualification order was manifestly excessive in all of the circumstances. I accept that that was a proper concession.
No reasons were given by the learned Magistrate for imposing a permanent disqualification in this case. There is no doubt that Magistrates must give adequate reasons for their decisions. That obligation is expressly acknowledged in s 31 of the Magistrates Court Act 2004 (WA). However, that section makes it clear that the reasons need not constitute a detailed exposition of every piece of evidence adduced or argument advanced in a case, but need only identify those facts the Court has accepted in reaching its decision, the law that the Court has applied and, in each case, its reasons for doing so.
Furthermore, many cases have confirmed that Magistrates are expected to undertake the work of the Magistrates Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Accordingly, appellate courts should not scrutinise the reasons for decisions given by Magistrates with an eye keenly attuned to the identification of error.
In the present case, however, the learned Magistrate gave, in effect, no reasons for the imposition of a permanent disqualification order. It is difficult to resist the conclusion that the learned Magistrate either considered himself obliged to make that order or was simply prepared to accede to the submission by the prosecutor that such an order should be made. While I would not in any sense wish to be understood to imply that detailed reasons must be given by a Magistrate in respect of these matters, nevertheless, the reasoning process of the Magistrate must be made clear. This will be all the more important in a case involving an order of the significance of a permanent disqualification from holding a licence.
Insofar as the respondent accepted that the learned Magistrate erred on the basis that the penalty imposed, that is, the permanent disqualification, was a manifestly excessive determination or disposition, I accept that that concession is properly made. The principles in relation to appeals against sentence involving the allegation of manifestly excessive penalty have been considered and are well-established.[6] It is clear that a permanent disqualification order should be reserved for cases of the most serious kind and that this is not a case meeting that description.
[6] Wilson v The State of Western Australia [2014] WASCA 236; Drage v The State of Western Australia [2015] WASCA 145.
Counsel for the respondent very helpfully provided a schedule of cases in which disqualification orders have been made in firearms offences cases and he referred, amongst others, to Binns v Gardiner;[7] Schamotta v The Queen;[8] Horsman v Bishop;[9] Coumbe v Whittaker;[10] Stevens v Viskovich;[11] Denton v Mudrock;[12] and Stackhouse v Curulli.[13] The circumstances of this case in comparison to most of those cases demonstrate that the present case involves a less serious case of breach of the Firearms Regulations and, in my view, clearly demonstrate that a permanent disqualification in the present case was well outside the range of sentences customarily imposed for offences at this less serious end of the spectrum. In particular, I refer to Coumbe v Whittaker in which McKechnie J declined to order disqualification on appeal in respect of a case where the offender had unlawfully discharged a firearm in a public reserve without a danger to any person and with no likelihood of repetition.
[7] Binns v Gardiner [2004] WASCA 275; (2004) 151 A Crim R 1.
[8] Schamotta v The Queen [2002] WASCA 262.
[9] Horsman v Bishop [2000] WASCA 316.
[10] Coumbe v Whittaker [1999] WASCA 151.
[11] Stevens v Viskovich (Unreported, WASC, Library No 960596, 26 September 1996).
[12] Denton v Murdock (Unreported, WASC, Library No 95072, 26 October 1992).
[13] Stackhouse v Curulli (Unreported, WASC, Library No 920251, 30 April 1992).
Accordingly, I grant leave to appeal in respect of ground 2, I uphold ground 2 of the appeal, and I set aside the order for permanent disqualification.
I now turn to explain why it is that I form the view that no further period of disqualification should be ordered in this case.
Whether an order for disqualification for any period should now be made
The question which was the focus of the hearing today was whether the Court should make an order for disqualification for some period. For the reasons I have already given, in my view, it is appropriate for the Court to consider the exercise of that discretion rather than remitting that back to the Magistrates Court.
The starting point in exercising the discretion is to have regard to s 106 of the Sentencing Act. Section 106 permits a court sentencing an offender for an offence specified in subsection (4a) to order that, for a term set by the court, the offender be disqualified from holding or obtaining a licence or a permit or an approval, or any particular licence, permit or approval, under the Firearms Act. The section applies to a firearms offence, an offence involving assault with a weapon and an offence involving violence.[14] The term 'firearms offence' is defined, amongst other things, to mean an offence under the Firearms Act. Counsel for the parties were unable to assist the Court with submissions in relation to whether an offence under the Firearms Regulations can be said to fall within the description of an offence under the Firearms Act. However, for the reasons which follow, it is not necessary for the Court to determine that question. It was clearly an error by the learned Magistrate to impose a permanent disqualification. I do not consider it appropriate to make an order for disqualification for any term.
[14] Sentencing Act 1995 (WA) s 106(4a).
I should also note that the term of a disqualification order under the Sentencing Act may be for the life of the offender, as s 104 makes clear. That is, a permanent disqualification is a possible order which can be made in the exercise of the power under s 106. In addition, s 102(3) makes clear that an order for disqualification forms part of a sentence imposed on an offender.
In relation to the question of disqualification, in addition to all of the factors to which I have already referred in relation to the question of forfeiture, two further matters should be noted. First, of the cases to which counsel for the respondent referred, where disqualification orders have been made in a context of firearms offences, there are no cases which are directly analogous. But perhaps the closest analogy in terms of the seriousness of the offending lies in Coumbe v Whittaker and consideration of that case discloses that an offence at the less serious end of the spectrum of offending for firearms offences, as is this case, may not warrant a disqualification order being made.
Like Parker J in Stevens v Viskovich,[15] I am not persuaded that I should impose a further disqualification in circumstances where the appellant has been without his firearms licence since the date of the offence, a period of some four and a half months, and where he has been put to the expense of pursuing an appeal in order to set aside the permanent disqualification order which was made. Taking all of those matters into account, therefore, I decline to make an order for disqualification on this occasion.
[15] Stevens v Viskovich (Unreported, WASC, Library No 1048, 29 September 1996) (Parker J).
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