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Coumbe v Whittaker

Coumbe v Whittaker

Case [1999] WASCA 151 13 August 1999

Appeal

Jurisdiction

Administrative Review

Forfeiture

Suspension of Licence

Administrative Law

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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
PDF Version

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…

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 Coumbe v Whittaker

Details

AGLC: Coumbe v Whittaker [1999] WASCA 151
Case: [1999] WASCA 151
Decision Date: 13 AUGUST 1999

CaseChat Overview and Summary

In the matter of Coumbe v Whittaker, the dispute arose when the respondent, a firearms dealer, was convicted of various offences including dealing in firearms without a licence, failing to keep a register of firearms, and possessing a firearm without a licence. The appellant, an investigator employed by the Queensland Police Service, seized a number of firearms from the respondent. The case was heard in the Queensland Court of Appeal, which was required to determine the appropriate principles for the forfeiture of firearms and the suspension of the respondent's firearms licence.

The central legal issues that the Court of Appeal had to resolve included the criteria for determining whether firearms should be forfeited, the principles to be applied in assessing the severity of the offence, and the appropriate duration for which the respondent's firearms licence should be suspended. The Court had to consider both statutory provisions and relevant case law to ensure that the penalties imposed were commensurate with the seriousness of the respondent's actions.

In its judgment, the Court of Appeal emphasised the importance of proportionality in determining the forfeiture of firearms and the suspension of a firearms licence. The Court found that the original penalty of forfeiture and suspension was excessive, taking into account the respondent's lack of criminal history and the fact that the firearms were not used in any criminal activity. The Court of Appeal allowed the appeal in part, reducing the penalties to more appropriate levels. The Court also provided detailed guidelines for future cases involving similar offences, ensuring that the principles of proportionality and fairness are upheld.

The final orders of the Court of Appeal included a reduction in the penalty for firearms forfeiture and a modification of the duration for which the respondent's firearms licence was suspended, taking into account the principles outlined in the judgment.

Orders

Orders of the court

Appeal allowed in part

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Coumbe v Whittaker [1999] WASCA 151

Most Recent Citation

McGEE v Chitty [2010] WASC 67

Cases citing this decision · 13 of 13 shown

AT and COMMISSIONER OF POLICE
[2024] WASAT 128 Para 7

…n applicant for a firearm licence, but rather at serving the protective purpose of the Firearms Act in the public interest.[8] [8] Coumbe v Whittaker [1999] WASCA 151 at [10], [13] and [14] per McKechnie J.…
LIPPI and COMMISSIONER OF POLICE
[2022] WASAT 72 Para 7

…applicant for a firearm licence, but rather at serving the protective purpose of the Firearms Act in the public interest.[91] [91] Coumbe v Whittaker [1999] WASCA 151 at [10], [13] and [14] per McKechnie J.…
JG and COMMISSIONER OF POLICE
[2022] WASAT 65 Para 7

…pplicant for a firearms licence, but rather at serving the protective purpose of the Firearms Act in the public interest.[22] [22] Coumbe v Whittaker [1999] WASCA 151 at [10], [13] and [14] per McKechnie J.…
DI CHIERA and COMMISSIONER OF POLICE
[2020] WASAT 145 Para 3

…Further, as highlighted by the Court of Appeal in C oumbe v Whittaker [1999] WASCA 151, decisions made under the Act are aimed not at punishing the applicant, but at serving the protective purpose of the Act in the public interest. The fact that the applicant has already been sentenced in relation to the Offences h…
PUNTER and COMMISSIONER OF POLICE
[2020] WASAT 142 Para 1

…m licence; (c)the purpose of s 11(3) is to protect public safety, not to punish the person convicted of a Relevant Offence (citing Coumbe v Whittaker [1999] WASCA 151 ( Coumbe )); (d)the applicant does not have a history of violence, and the Conviction and the Incident giving rise to it represents an isolated event…
Commissioner of Police v Thayli Pty Ltd
[2020] WASC 43 Para 6

…irearms Act the dominant purpose for disqualification of holding a licence is public safety was stated expressly by McKechnie J in Coumbe v Whittaker [1999] WASCA 151. In Schamotta v The Queen [2002] WASCA 262 [11] the observations of Murray J in Horsman v Bishop [2000] WASCA 316 at [31] were cited with approval fo…
Carley v Birnie
[2015] WASC 494 Para 1

…ly 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).…
Knight v Commissioner of Police
[2011] WASC 93 Para 2

…irearms Act the dominant purpose for disqualification of holding a licence is public safety was stated expressly by McKechnie J in Coumbe v Whittaker [1999] WASCA 151. In Schamotta v The Queen [2002] WASCA 262 [11] the observations of Murray J in Horsman v Bishop [2000] WASCA 316 at [31] were cited with approval fo…
Brameld v Salt
[2010] WASC 227 Para 5

…mstances of the offending: Jaworski v Police [2009] SASC 284 [22] ‑ [25] (Sulan J); Horsman v Bishop [32] (Murray J) and compare Coumbe v Whittaker [1999] WASCA 151 [13] (McKechnie J). Often the discretion is exercised in favour of forfeiture because of the public interest in controlling or restricting the use of w…
McGEE v Chitty
[2010] WASC 67 Para 20

…read with [55] (Hasluck J), on whether the power to disqualify in s 27 for a 'period' authorised a permanent disqualification; and Coumbe v Whittaker [1999] WASCA 151 [14] and [20], on the principles to guide the discretion to forfeit firearms in s 28 and disqualification under Sentencing Act 1995 (WA) s 106.…
Binns v Gardiner
[2002] WASCA 337 Para 3

…r to disqualify under s 106 of the Sentencing Act may be exercised for a protective purpose: Horsman v Bishop [2000] WASCA 316 and Coumbe v Whittaker [1999] WASCA 151. This view of the matter was affirmed in Schamotta's case ( supra ). In the course of a joint judgment the Full Court said this at par 13: "It is, of…
Schamotta v The Queen
[2002] WASCA 262

…Coumbe v Whittaker [1999] WASCA 151 Creed v Dudley [1984] WAR 344 Denton v Murdock [1995] WASC 1063 Horsman v Bishop [2000] WASCA 316 Re Cockram (SM); Ex parte Williamson, unreported; SCt of WA; Library No 940673; 23 September 1994 Ryan v The Queen (2001) 206 CLR 267 Stackhouse v Curulli [1992] WASC 1009 Veen v The…
Horsman v Bishop
[2000] WASCA 316 Para 6

…ary No 960596; 26 September 1996; Gaythwaite v Clarkson , unreported; SCt of WA; (Heenan J); Library No 970109; 21 March 1997; and Coumbe v Whittaker [1999] WASCA 151, 13 August 1999.…

View all 13 citing cases →

Cases cited in this decision · 2 of 2 shown

Australian Coal and Shale Employees' Federation v The Commonwealth
[1953] HCA 25

…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…
House v R
[1936] HCA 40

…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…

Legislation cited in this decision · 3

Firearms Act 1973 (WA)
23(10), 28 2 mentions
Firearms and Guns Act 1931 (WA)
1 mention
Sentencing Act 1995 (WA)
106 1 mention