Castiglione v Police No. Scciv-03-414

CASTIGLIONE v POLICE
[2003] SASC 209
Appeal Against Sentence
GRAY J

This is an appeal against sentence.
Background
The appellant Gaetano Castiglione, pleaded guilty to two counts of contravening the conditions of his firearms licence[1]. He failed to secure firearms in accordance with the Firearms Act 1977 (SA) and failed to store ammunition separately from a firearm.
[1] On the 23^rd day of July, 2002 at Norwood in the said State being the holder of a licence, contravened a condition of that licence.
It was the Crown case that on 23 July 2002 police attended at Mr Castiglione’s residence for the purposes of a firearms inquiry. They spoke with him and he showed them his firearms. A .22 air rifle was leaning on a bedside table next to Mr Castiglione’s bed. The rifle was loaded. Unsecured ammunition was located in the bedroom. A twelve gauge shotgun was in an unlocked wardrobe. The prosecutor sought forfeiture of the firearms.
Mr Castiglione told the police that he usually kept the walk-in wardrobe locked. He had experienced ongoing problems with his neighbours and local residents. He kept the rifle next to his bed for protection from possible intruders.
Counsel for Mr Castiglione made the following submissions to the magistrate in mitigation:
[Mr Castiglione] is a pensioner aged 72 years. He lives with his wife who is 75 years old. About two years ago his former next door neighbour had applied to the local council for approval of a building application to construct a house on his block. The defendant and the other neighbours lodged objections and the application was refused. After the next door neighbour sold the property and moved to another area, but was angry with our client for his objection to the application. He made threats towards the defendant. For the last two years the defendant has suspected his former neighbour of regularly spraying weed killer on his front lawn and more recently the night before the police attendance at the defendants house, somebody had smashed two dozen bottles on his front verandah. He suspected his former neighbour. The defendant usually stored to two firearms in the walk in robe under lock and key but because of the incident involving the broken bottles he placed the .22 Anschultz Air rifle next to his bed. The shotgun, however was inside the wardrobe. The defendant had no intention of using the firearms.
Counsel opposed the making of a forfeiture order. He informed the magistrate that since these charges Mr Castiglione had purchased a lockable steel cabinet so that his firearms would be stored in accordance with the Act. Counsel for Mr Castiglione tendered a psychological report. The report included the following:
[Mr Castiglione] reported feeling unjustly treated as he believes that he was wrongly accused of killing his neighbour’s cat. Police were called and his two guns were taken and he was apparently told that he was unfit to have guns.
…
Prior to the incident in question, Mr Castiglione reported that he was involved in a dispute with a previous neighbour, which began when he opposed a land subdivision application his neighbour had made to council. The subdivision was eventually rejected by council and lost on appeal. Mr Castiglione thought that his neighbour bore a grudge against him and disputation ensued, culminating with a restraining order being issued and his guns being confiscated by police. Mr Castiglione reported that he took the matter to court and he was completely exonerated, the restraining order was reversed and his guns were returned.
Mr Castiglione said that he has had a shotgun for some 20 years, which he used for hunting rabbits on a particular farm in the south-east of the state. He has also had an air-rifle for some 15 years. He previously had another rifle, which he handed into police during the gun buy-back period. He said that he used to store his guns in a locked wardrobe because he did not know that guns were by law supposed to be kept in a steel box with a padlock. He has subsequently made enquiries to purchase such a box from a firearms store on Magil Road.
On the basis of the history Mr Castiglione has given me and his general presentation, he appears to be psychologically intact, with a stable work history and family life. There is nothing in his background to suggest any previous psychological disturbance.
During our consultation, I did not detect evidence of emotional instability. Presently he is angry and feels harshly done by but this relates to the fact that he feels insulted given his achievements in the area of business and family life and to be apparently told that he is not a fit and proper person to be in possession of firearms.
I expect that his anger will resolve when his guns are returned. I do not know of any psychological reason as to why he should not be allowed to continue owning firearms.
Section 21 of the Firearms Act 1977 (SA) provides that it is an offence to fail to comply with the conditions of a firearms licence:
The holder of a licence who contravenes, or fails to comply with, a condition of the licence is guilty of an offence.
Maximum penalty:              where the condition relates to a prescribed firearm or a class C, D or H firearm—$10 000 or imprisonment for two years
in any other case—$5 000 or imprisonment for one year.
Section 34A provides the court with a number of powers:
(1) Where a court convicts a person of an offence against this or any other Act and the court finds that a firearm, receiver, mechanism, fitting or ammunition was involved in the commission of the offence the court must make one or more of the following orders:
(a)     where the firearm, receiver, mechanism, fitting or ammunition was owned by the convicted person—that the firearm, receiver, mechanism, fitting or ammunition be forfeited to the Crown or be disposed of in such other manner as the court directs;
(b)     that a licence held by the convicted person is subject to specified conditions;
(c)     that a licence held by the convicted person is suspended for a specified period or until further order;
(d)     that a licence held by the convicted person is cancelled;
(e)     that the convicted person is disqualified from holding or obtaining a licence for a specified period or until further order.
(2) Where, in the course of proceedings before a court, the court forms the view that a party to the proceedings who has possession of a firearm, receiver, mechanism, fitting or ammunition is not a fit and proper person to have possession of the firearm, receiver, mechanism, fitting or ammunition, the court must make one or more of the following orders:
(a)     that the firearm, receiver, mechanism, fitting or ammunition be disposed of in such manner as the court directs;
(b)     that a licence held by the party is subject to specified conditions;
(c)     that a licence held by the party is suspended for a specified period or until further order;
(d)     that a licence held by the party is cancelled;
(e)     that the party is disqualified from holding or obtaining a licence for a specified period or until further order.
The magistrate dismissed the charges without penalty. However he ordered that the firearms be forfeited. He gave no reasons for his decision.
The Legislative Scheme
General deterrence is of great importance in cases involving firearms. There is a real public interest in the safe and secure storage of firearms. As observed in Offe v Police:[2]
The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included providing community protection through the licensing and regulation of firearms. The legislation aimed to ensure that only responsible persons with the appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.
As earlier observed in 1996 following events at Port Arthur motions were put in place to develop uniform gun laws around Australia. The Firearms Act was amended to provide an even tighter means of weapon control. The amendments aimed to further restrict the ownership and use of firearms with a view to preventing criminal behaviour involving their use.
…
The community must not be complacent about the dangers of firearms and the damage that can be caused when they are not kept in accordance with the legislative requirements. Not only are weapons targets for thieves, they present a real danger to unsuspecting children and persons who may happen across them accidentally.
[2] (2002) 84 SASR 1 – see also Johnson v The Registrar (2001) 79 SASR 353
The firearms found in the possession of Mr Castiglione were both class A firearms.
Section 5 of the Firearms Act defines classes of firearms:
"class A firearms" means—
(a)     air rifles, air guns and paint-ball firearms; and
(b)     .22 rim fire rifles (not being self-loading rifles); and
(c)     single or double barrel shotguns (not being self-loading or pump action shotguns);
Regulation 19(1)(c) of the Firearms Regulations 1993 makes the storage of firearms in accordance with Part 6 of the Regulations a condition of a firearms licence. Regulation 29, (in Part 6) prescribes the conditions under which class A firearms are to be stored:
(1) A person (not being a dealer) who has possession of a class A or B firearm or the receiver of a class A or B firearm, must keep the firearm or receiver secured by—
(a)     securely attaching and locking it to part of the building in which it is kept; or
(b)     keeping it in a locked cabinet made of hardwood or steel that is securely attached to the building in which it is kept; or
(c)     keeping it in a locked safe made of steel that is securely attached to the building in which it is kept; or
(d)     keeping it in a locked steel and concrete strong room; or
(e)     such other method as is approved by the Registrar.
…
(4) Despite subregulations (1)(c) and (2)(a), a safe need not be attached to the building if its mass when empty is 150 kilograms or more.
The Appeal
Extension of Time
Mr Castiglione has sought an extension of time in which to appeal. It was submitted that he was an aged pensioner. It was said that he had taken some time to obtain the funds to finance this appeal. It was argued that the delay was short and that the Crown had not suffered any prejudice as a result.
The Crown objected to the grant of an extension of time. Counsel contended that the appeal did not raise any substantive issue from which it could be concluded that there was a miscarriage of justice.
Having regard to the absence of any sentencing remarks, and given Mr Castiglione’s personal circumstances it is appropriate to extend time in this case[3].
[3] Police v Warren [2000] SASC 285
Submissions
Counsel for Mr Castiglione submitted that the magistrate had erred in his exercise of discretion to order forfeiture. Neither of the firearms had been used in an offence. The firearms had been in the possession of Mr Castiglione without incident for many years and were usually secured. Attention was drawn to section 34A(1) of the Firearms Act. As earlier observed this section provides options for the court when dealing with a person convicted of an offence under the Act. It was said that section 34A(1) did not apply because Mr Castiglione had not been convicted. The magistrate did not make a finding that Mr Castiglione was not a fit and proper person to own a firearm pursuant to section 34A(2). It was said that the absence of such a finding the magistrate erred in ordering forfeiture. The magistrate’s failure to give reasons was said to have exacerbated the purported error.
Counsel for the Crown submitted that there no error had been demonstrated. The magistrate’s discretion had not miscarried. Mr Castiglione had admitted that the weapons were not stored in accordance with the legislative requirements. It could be implied from the magistrate’s order that he had found Mr Castiglione was not a fit and proper person to own a firearm. In any event it was said that having regard to the objects of the Firearms Act and the seriousness of the breach, Mr Castiglione was not a fit and proper person to possess firearms. The magistrate was correct to order that the firearms be forfeited. The failure to give reasons has not resulted in unfairness.
Sentencing Remarks
Section 9 of the Criminal Law (Sentencing) Act 1988 (SA) provides:
(1) A court must, upon sentencing a defendant who is present in court—
(a) state its reasons for imposing the sentence; and
(b) cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(2) The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
The magistrate did not provide sentencing remarks. He should have done so. Although this was not a ground to set aside the sentence it does raise difficulties. The appeal court has been given no guidance as to the basis on which the sentence was imposed.
In this case the absence of sentencing remarks may have led to confusion on part of the appellant. The lack of explanation for the forfeiture order appears to have left Mr Castiglione feeling aggrieved. The provision of short but appropriate sentencing remarks may have obviated the need for an appeal.
Consideration of the Issues
The storage of firearms in a wardrobe does not provide the measure of security intended by the regulations. In any event, when the firearms were discovered at Mr Castiglione’s home, neither were locked in a wardrobe, one was loaded and ammunition had not been secured. This was a clear breach of the legislative scheme.
Information before the magistrate disclosed that Mr Castiglione had been involved in a long running dispute with a former neighbour. He suspected his former neighbour of being the perpetrator of conduct which had caused him great offence. This included the spraying of weed killer on his front lawn and the smashing of bottles on his front verandah. Apparently the loaded rifle was at his bedside as a means of dealing with further problems. The other firearm was unsecured nearby for the same purpose. Mr Castiglione’s conduct was a serious breach of the law. Surrounding oneself with weapons of this nature so as to guard against antagonistic neighbours cannot excuse or justify disobedience of the gun laws. The psychological report suggested that Mr Castiglione does not have a proper understanding of modern gun laws. It was reported that Mr Castiglione was angry at the forfeiture of his firearms. The report does not disclose any awareness or understanding of the dangers of keeping loaded firearms in a private home. This evidence alone justifies a finding that Mr Castiglione was not a fit and proper person to be in the possession of firearms.
I am satisfied that the magistrate formed the view that Mr Castiglione was not a fit and proper person to possess firearms and as a result he made the forfeiture orders. The forming of this view was, in the absence of the recording of a conviction, a statutory prerequisite to a forfeiture order pursuant to provisions of section 34A(2) of the Firearms Act. Mr Castiglione was fortunate that the magistrate did not make an order cancelling his licence.
Conclusions
No error of principle has been demonstrated. The order for forfeiture was appropriate. This appeal is dismissed.
JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT
1 On the 23^rd day of July, 2002 at Norwood in the said State being the holder of a licence, contravened a condition of that licence.
Section 21 of the Firearms Act, 1977.
This is a summary offence.
2On the 23^rd day of July, 2002 at Norwood in the said State being the holder of a licence, contravened a condition of that licence.
Section 21 of the Firearms Act, 1977.
This is a summary offence.
3 (2002) 84 SASR 1 – see also Johnson v The Registrar (2001) 79 SASR 353
4 Police v Warren [2000] SASC 285

Section 21 of the Firearms Act, 1977.
This is a summary offence.

On the 23^rd day of July, 2002 at Norwood in the said State being the holder of a licence, contravened a condition of that licence.
Section 21 of the Firearms Act, 1977.
This is a summary offence.

[2003] SASC 209

4 July 2003