Coumbe v Whittaker

[1999] WASCA 151

COUMBE -v- WHITTAKER [1999] WASCA 151

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 151
Case No:	SJA:1089/1999	Heard:	13 AUGUST 1999
Coram:	McKECHNIE J	Delivered:	13/08/99
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed in part
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Parties:	RONALD KEITH COUMBE DAMIEN JAMES WHITTAKER
Catchwords:	Firearms Forfeiture Principles to be applied Suspension of licence Principles to be applied
Legislation:	Firearms Act 1973 (WA) s 23(10), s 28 Sentencing Act 1995 (WA) s 106
Case References:	Nil Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Chan v R (1989) A Crim R 337 House v R (1936) 55 CLR 499 R v Tait (1979) 46 FLR 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : COUMBE -v- WHITTAKER [1999] WASCA 151 CORAM : McKECHNIE J HEARD : 13 AUGUST 1999 DELIVERED : 13 AUGUST 1999 FILE NO/S : SJA 1089 of 1999 BETWEEN : RONALD KEITH COUMBE

Appellant

AND

DAMIEN JAMES WHITTAKER
Respondent

Catchwords:

Firearms - Forfeiture - Principles to be applied - Suspension of licence - Principles to be applied

Legislation:

Firearms Act 1973 (WA) s 23(10), s 28

Sentencing Act 1995 (WA) s 106

Result:

Appeal allowed in part

(Page 2)

Representation:

Counsel:

Appellant : Mr S M Wilson
Respondent : Ms C V M Barton

Solicitors:

Appellant : Stephen Wilson
Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Chan v R (1989) A Crim R 337
House v R (1936) 55 CLR 499
R v Tait (1979) 46 FLR 386

(Page 3)

McKECHNIE J:

A man shoots at a target on a reserve

1 The appellant lives in Kalgoorlie. On 6 January 1999 he was entertaining three friends from Switzerland. He decided to take them to the Lake Douglas Recreation Reserve. The appellant has owned firearms for many years. On this occasion he had with him a Ruger single-shot and a Mossburg repeating bolt-action rifle.

2 He took his friends to the reserve to try their hand at metal detecting. They also decided to shoot at a target. At the lake the appellant nailed a target to a tree. He then showed his friends how to fire at the target. A CALM ranger observed the activity. No consent to shoot on the reserve had been issued.

3 The appellant was summonsed on 3 May 1999. He came before the learned Stipendiary Magistrate on one charge. The charge was that on 6 January 1999 at Kalgoorlie he, without reasonable excuse, used a firearm, namely, a Ruger single shot rifle serial number 13254260, .243 calibre, on land owned by the City of Kalgoorlie Boulder Council without consent. He pleaded guilty. After hearing the facts and the plea in mitigation the Magistrate said:

"I take the view that anyone who neligiby (sic) misuses firearms, and I take the view that you did by showing other people without any form of training to use these weapons in what is a park. I understand when you say that there was no danger of the rounds hitting anyone else. But that’s not the issue. The issue here is a serious one. I take into account your good record. Your (sic) fined $100.00, $57.70 costs. There is a spent conviction order, which means you do not have a criminal record. However I am of the view that the weapons should be forfeit and you are disqualified from holding a firearms licence for a period two years."

4 Therefore, the appellant lost his firearms. Because of the disqualification other firearms have been seized.

5 The appellant appeals against the forfeiture of the firearms and complains that in the circumstances such penalty is manifestly excessive. He also complains that the Magistrate erred in fact when he relied on facts inconsistent with those presented by the prosecution by suggesting that

(Page 4)

the appellant negligently allowed people without training in firearms to use them.

6 He complains that his licence should not have been suspended for two years. By leave the appellant added a further ground at the hearing relating to the forfeiture of the Mossburg repeating rifle. In an affidavit tendered to this court the appellant says the firearms are valued at approximately $2500.

Principles in relation to firearms offences

7 When a court proceeds to conviction for any offence involving firearms the court is required to consider three separate matters. Although there is some overlap, they are, in reality, distinct matters for consideration:

(1) the appropriate penalty for the circumstances of the offence, including aggravating and mitigating factors;

(2) whether the firearm relating to the charge should be forfeited; Firearms Act 1973 s 28;

(3) whether the offender should be disqualified for holding or obtaining a firearm's licence for any period; Sentencing Act1995 s 106.

The penalty in this case

8 In the circumstances, the Magistrate considered that a penalty of $100 was appropriate. He also made a spent conviction order. There is no issue as to this disposition which is within the range of sentences commonly imposed for a breach of the Firearms Act1973 s 23(10).

Forfeiture of firearms: general principles

9 The preamble to the Firearms Act reads:

"An Act to make provision for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with or manufacturing firearms and ammunition, the repeal of the Firearms and Guns Act 1931-1971, and for incidental and other purposes."

(Page 5)

10 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.

11 When a person is convicted of a firearms offence, the forfeiture provision of the Act, namely s 28, is triggered. The court is given the discretion to order the forfeiture of the firearms relating to the charge.

12 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 s 8, the effect of forfeiture is not a mitigatory circumstance decreasing the extent to which an offender may be punished.

13 Forfeiture provisions, such as Firearms Act s 28 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.

14 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.

The application of the principles to the present case

15 The appellant made a conscious decision to use his firearms in circumstances which amounted to a breach of the Firearms Act. Public safety was not a direct issue but public safety in fact underlines the purpose of the Firearms Act. There was nothing before the Magistrate which positively pointed towards the exercise of a discretion in favour of the appellant. The particular errors of fact said to have been made do not, in my judgment, affect the general policy considerations as to forfeiture. Therefore, I am of opinion that the Magistrate's discretion to forfeit the Ruger rifle did not miscarry.

Forfeiture of the Mossburg rifle

16 The Firearms Act s 28 states:

(Page 6)

"Court may order forfeiture on conviction of offender

On the conviction of a person for any offence whatever under any written law, the court may order that any firearm or ammunition, silencer or other thing to which this Act applies relating to the charge shall be forfeited to the Crown …" ("my emphasis")

17 The actual complaint in this case relates solely to the Ruger rifle. The factual circumstances are that two firearms were admittedly used by the appellant in breach of the section.

18 It would have been open to the prosecution to lay separate complaints in respect of both firearms. Indeed, that is what should have been done. However, the complaint as laid referred only to the Ruger licence. As a matter of fact and law, use of the Mossburg at the same time and place on the public reserve cannot "relate to the charge" as to the use of the Ruger. The consequence is that following conviction, the Magistrate had no power under the Firearms Act s 28 to order the forfeiture of a rifle which was not named in the complaint and was not, therefore, related to the charge; namely, the Mossburg.

Disqualification of firearms licence: general principles

19 The third matter is whether to disqualify the offender from holding or obtaining a firearm's licence. Disqualification from holding or obtaining a driver's licence is, in practical terms, a measure of punishment under the Road Traffic Act, particularly when a period in excess of the statutory minimum is imposed.

20 Different considerations may apply under the Firearms Act. Here the dominant purpose for disqualification is public safety. This requires an assessment of the characteristics of the offender and a prediction, based on the offender's antecedents and the circumstances of the offence, as to whether the community may require the protection which a period of disqualification will bring.

21 In that assessment, the fact that the offender has access to firearms on his or her licence other than those which may be forfeit at the time of the conviction is a relevant consideration.

22 The court may be guided in the exercise of a discretion as to disqualification by the factors relevant to the exercise by the

(Page 7)

Commissioner in the discretion to grant a licence under the Firearms Act s 11.

Application of the principles to the present case

23 The appellant is a mature man with no previous convictions for firearm or other offences. The circumstances of the offence did not give rise to issues of public safety. Importantly, the Magistrate, in deciding to make a spent conviction order under the Sentencing Act s 45, must have been affirmatively satisfied that the appellant was unlikely to commit a similar offence. Beyond his categorisation of the issue as serious, the Magistrate gave no reasons for the imposition of a term of disqualification.

24 In my judgment, having regard to the general principles which I have outlined, the necessary conclusion is that the circumstances did not call for a disqualification of the appellant's firearm's licence for any period.

25 For these reasons, I allow the appeal in part. I set aside the order for forfeiture of the Mossburg rifle. I set aside the order for suspension of the appellant's firearms licence.