Director of Public Prosecutions v Pain
[2018] VSC 108
•13 March 2018
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Not Restricted | |
Between:
S CR 2015 0024
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| and | |
| MAXWELL JOHN PAIN | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 16 May & 8 June 2017 (Plea); 8 August 2017 (Sentence); |
DATE OF RULING: | 13 March 2018 |
CASE MAY BE CITED AS: | DPP v Pain |
MEDIUM NEUTRAL CITATION: | [2018] VSC 108 First revision, 14 March 2018, para [13] |
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CRIMINAL LAW – Application for forfeiture of shotgun and rifle following respondent’s conviction for murder – Respondent, from driver’s window of utility, used shotgun to shoot and kill deceased – At same time, loaded rifle in respondent’s vehicle, but not used in shooting – Respondent consents to forfeiture of shotgun but not rifle – Whether respondent “has … become a prohibited person” since sentence – Whether rifle “in the possession of or used or carried by the [respondent]” – Whether rifle “was used, or was intended to be used, in, or in connection with, the commission of the offence” – Sentimental value of rifle – Forfeiture of both shotgun and rifle ordered – Application for disposal of other items (such as gunshot reside samples) unopposed – Disposal order made accordingly – Firearms Act 1996 (Vic), ss 3(1) & 151(1); Confiscation Act 1997 (Vic), ss 77(1) & 78(1) & (1A).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms L Taylor QC | Office of Public Prosecutions |
| For the Respondent | Mr J Desmond | Vines Lawyers |
HIS HONOUR:
Introduction
On 9 June 2014, while in his vehicle at the property of David Cameron Paris, Maxwell John Pain pointed a ‘Yildiz’ 12-gauge shotgun through the driver’s side window and shot Mr Paris in the stomach. Mr Paris, who was standing in his driveway, fell to the ground and died a short time later. At the time of the shooting, Mr Pain also had with him in the vehicle a loaded ‘Savage’ .17-calibre rifle.[1]
[1]The Queen v Pain [2017] VSC 454 at [3]-[6] & [28].
On 7 April 2017, following a trial in this Court, a jury found Mr Pain guilty of the murder of Mr Paris.[2] Following a plea in mitigation, on 9 August 2017, Mr Pain was convicted and sentenced to 23 years’ imprisonment, with a non-parole period of 18 years.[3]
[2]The Queen v Pain [2017] VSC 454 at [9].
[3]The Queen v Pain [2017] VSC 454 at [127].
Before this Court now are applications by the Director of Public Prosecutions (“the Director”) for:
a) a disposal order, pursuant to s 77(1) of the Confiscation Act 1997 (Vic), in relation to gunshot residue samples collected from the motor vehicle and the hands of Mr Pain, a shotgun wad, gunshot pellets, and a urine sample; and
b) a forfeiture order, pursuant to s 151(1)(a) of the Firearms Act 1996 (Vic), in relation to the ‘Yildiz’ 12-gauge shotgun and the ‘Savage’ .17-calibre rifle.
For reasons that follow, I shall grant the applications and make orders accordingly.
Background
Single draft disposal order
Initially, on 10 May 2017, the Director forwarded to the Court a single draft disposal order, purportedly in reliance on s 77(1) of the Confiscation Act. The draft order included all of the items mentioned above, including the shotgun and the rifle. On 16 May 2017 (the first day of the plea in mitigation), the Director made the application to the Court for a disposal order in the terms of the draft order.
On 9 June 2017 (the second day of the plea), both counsel made brief oral submissions on the application. I asked the parties for written submissions on the matter.
On 14 and 15 June 2017, counsel for the parties respectively sent through written submissions in relation to this proposed disposal order. At that stage, the only matter that appeared to be in dispute was whether the evidence was such that the rifle was properly caught by the terms of s 77(1) (read with s 78) of the Confiscation Act.
On 9 August 2017, prior to delivering my reasons for sentence, I raised concerns about the proposed order with counsel for the Director. I asked the parties for further submissions or an amended application that addressed my concerns. No further submissions were sent to the Court.
Draft disposal order and draft forfeiture order
Instead, on 17 August 2017, the Director sent through two draft orders: a redrafted disposal order pursuant to s 77(1) of the Confiscation Act (concerning matters not in dispute, such as gunshot residue samples, shotgun wad, etc), and a draft forfeiture order pursuant to s 151(1) of the Firearms Act (concerning the shotgun and the rifle).
On 29 August 2017, my associate sent an email to counsel for Mr Pain asking whether any further response would be sent in relation to the proposed orders. Counsel indicated that he had no further submissions to make.
I did not, and do not, have any concern about the most recent application for a disposal order under s 77(1) of the Confiscation Act. There was no objection from the parties, and an order to that effect will be made substantially in the terms proposed in the draft order.
The application for a forfeiture order, however, was a different matter. On 10 October 2017, I had my associate send to the parties an email conveying my doubt that the draft forfeiture order, in the form in which it was expressed, was capable properly of capturing either the shotgun or the rifle. That draft order referred to the offence of “murder involving the possession, carriage or use of a firearm”. While the draft order did not specify that the order should be made under s 151(1)(b)(ii) of the Firearms Act, and instead referred only to s 151(1), the use of the words employed in s 151(1)(b)(ii) – “involving the possession, carriage or use” – suggested that it was drafted in reliance on that particular sub-paragraph of the provision. But, as was pointed out in the email, s 151(1)(b)(ii) requires a finding of guilt of “an offence under another Act involving the possession, carriage or use of a firearm”,[4] and yet the offence of murder – being a common law offence – would not fall under this provision.
[4]Emphasis added.
New draft forfeiture order
It was further noted in the email, however, that, because by then Mr Pain had been ordered to serve a term of imprisonment for an indictable offence and thereby had “become a prohibited person” within the meaning of s 151(1)(a) of the Firearms Act,[5] it could be that the Court “may order the forfeiture to the Crown of any firearm … in the possession of or used or carried by [him]”.
[5]See the definition of “prohibited person” in s 3(1) of the Firearms Act.
In those circumstances, the parties were asked whether they consented to an order forfeiting to the Crown both the shotgun and the rifle pursuant to s 151(1)(a). They were told that, if they consented, an order to that effect would be made in chambers; but that, if a party did not consent, a written submission should be filed with the Court and copied to the opposing party. They were also told that, if the Court considered it necessary, oral submissions may be required.
By email dated 12 October 2017, the solicitor for the Director indicated consent to the forfeiture order being made pursuant to s 151(1)(a) of the Firearms Act.
The same day, the solicitors for Mr Pain confirmed by email that they did not have instructions to consent, but accepted that the Court had a discretion under s 151(1)(a) to make the order. Further, the solicitors noted that Mr Pain “rel[ies] on the previous written submissions to the [effect] that the rifle was not used in or connected with the commission of the offence”, and submitted that “no order should be made for forfeiture of the rifle”. They also said, “We understand and repeat that it is a matter for [the Court] now”.
Submissions
Introduction
In his written submissions[6] opposing the original disposal order application vis-à-vis the rifle, counsel for Mr Pain had responded to the written submissions[7] filed on behalf of the Director. Despite the fact that both sets of submissions were made in respect of the application for a disposal order in purported reliance on ss 77 and 78 of the Confiscation Act, in order better to understand those submissions and how they might be adapted to the application for forfeiture of the rifle under s 151(1)(a) of the Firearms Act, it is necessary to set out the substance of both sets of submissions and the terms of ss 77(1) and 78(1) and (1A) of the Confiscation Act.
[6]Dated 15 June 2017.
[7]Dated 14 June 2017.
Sections 77(1) & 78(1) of the Confiscation Act
In so far as is relevant, ss 77(1) and 78(1) and (1A) of the Confiscation Act provide as follows:
77 Application for disposal order
(1) If a person has been convicted of a Schedule 1 offence,[8] the DPP or an appropriate officer may, without notice, subject to subsection (2), apply to the Magistrates’ Court or the court before which the person was convicted of the offence for a disposal order in respect of—
[8]A Schedule 1 offence includes an indictable offence, of which murder is an example.
…
(e) any other property that—
(i) is of negligible value; or
(ii) is not fit for the use for which it is intended and cannot be readily made fit for that use—
that was used, or was intended to be used, in, or in connection with, the commission of the offence or was derived or realised, directly or indirectly, by that person or another person, from the commission of the offence.
…
78 Disposal order
(1) Subject to subsection (1A), if an application is made to a court under section 77(1) for an order in respect of particular property, the court may, if it considers it appropriate, order that the property be forfeited to the State and destroyed or disposed of in such manner as is provided in the order if it is satisfied that the property is property described in that section.
(1A) If an application under section 77(1) is made in respect of property of the kind described in paragraph (e) of that section, the court must be satisfied as to the following matters before making a disposal order under subsection (1)—
(a) that the property—
(i) is of negligible value; or
(ii) is not fit for the use for which it is intended and cannot be readily made fit for that use; and
(b) if there is any other person who has an interest in the property to which the application relates, that the person is not likely to have any objections to the disposal of the property; and
(c) that there is no other reason not to dispose of the property.
Director’s submissions (under s 77 application)
Relevantly, the Director’s written submissions were as follows:
[2] [Mr Pain] consents to the disposal of all items listed in the schedule except the second item, namely the … rifle … .
[3] The power to make the order is set out in section 78 of the Confiscation Act 1997, which states, relevantly, that the property must be that which was used, or intended to be used, in, or in connection with, the commission of the offence.
...
[5] Clearly, the rifle was not used in the commission of the murder. Rather, the fatal shot was fired from the … shotgun.
[6] It is submitted that the Court can be satisfied that the rifle was intended to be used in or in connection with the commission of the offence. The prosecution points to the following factors:
a)[Mr] Pain loaded [two] weapons before leaving to travel to the home of the deceased. One would provide maximum damage at close range and the other would provide greatest accuracy at distance.
b)He loaded them at a time when he intended to then travel to [the] home of the deceased, having earlier made threats to hurt the deceased.
c)If he only intended to confront and/or frighten the deceased (meaning that the murderous intent was formed subsequent to his departure) there was absolutely no need to load the weapons. The Crown reiterates its submission that the murderous intent was formed prior to [Mr] Pain leaving his home.
d)It is a reasonable inference that [Mr] Pain loaded two weapons, with different capacities, because he did not and could not possibly know what situation he would encounter at the home of the deceased. That is, at the time he loaded both a shotgun and a rifle, he intended that he would use whatever one was the most appropriate when he found the deceased.
e)As it turned out, the deceased emerged onto the driveway of his home and [Mr] Pain, after executing the U-turn in the driveway, positioned himself within 2.5-3 metres of the deceased. In that circumstance, he chose to fire the shotgun.
[7] Accordingly, the prosecution submits that notwithstanding that, in the event, the rifle was not used to fire the fatal shot, it nonetheless has sufficient nexus with the commission of the murder to satisfy the test in section 78 of the Act. [Mr] Pain had the intention to use it, in or in connection with the murder at the time he loaded and took it with him.
Defence submissions (under s 77 application)
The written response of counsel for Mr Pain was as follows:
[1] The Crown’s application for a disposal order in relation to the Savage … rifle … is opposed.
[2] The onus is on the Crown to establish the item “was used, or intended to be used, in or in connection with, the commission of the offence”.
[3] The Crown relies only on the second limb that is, the rifle was “intended to be used in connection with the offence”.
[4] There is no authoritative case directly on point. However, it is submitted in the forfeiture/tainted property case of Chalmers[9] the Court stated:
[9]Chalmers v The Queen [2011] VSCA 436.
a)the word ‘used’ was to be given its ordinary meaning of “employed, or made use of, for a particular end or purpose”;
b)the statutory phrase is of wide scope. The inclusion of the words “in connection with” was plainly intended to extend the scope of the definition of “tainted property” beyond circumstances where the property could be said to have been “used in the commission of” the offence;
c)whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree. It is not necessary for it to be established that there was a “substantial” connection or that the crime could not have been committed without using the property;
d)the nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the Court’s discretion whether or not to order forfeiture of the property;
e)express statutory provision apart, the mere fact that an act is done in or on a particular property will ordinarily not suffice to bring that property within the definition. That is because, as a matter of ordinary language, this could not be characterised as a “use” of the property. The Court referred (see par [80]) in this regard to White v Director of Public Prosecutions (DPP) (WA) (2011) 243 CLR 478.
[5] The subject rifle:
a)was not used nor was it pointed at the deceased whilst [Mr] Pain was in the car;
b)further [Mr] Pain did not exit the ute immediately after the shooting with the rifle;
c)similarly no statements were made by [Mr] Pain regarding the rifle, the use of the rifle or an intended use of the rifle.
[6] At its height the Crown argument [that] the loaded rifle was intended to be used in connection with the offence is speculative at best.
[7] It is submitted mere presence at the time of the shooting is insufficient to demonstrate to any comfortable level of satisfaction the subject rifle was intended to be used in the commission of the offence whether by actually discharging it or making use of it in any threatening or like fashion.
[8] The argument that having the rifle provided ‘greatest accuracy at distance’ defies the narrative of the case. [Mr] Pain drove straight into the property at close distance to those present. The incident occurred on a dark night and the purported argument of a possible distant night time shooing is fanciful.
[9] The mere presence of the loaded rifle is both tenuous and remote to the commission of the offence.
[10] It is submitted the only relevance of the loaded rifle, to the subject application, is it was present when the offence occurred.
[11] Whilst the Crown may not have to establish a substantial connection between the “intended use” with the commission of the offence, the same is a question of degree.
[12] It is submitted when examining evidence in this case concerning “the nature, extent and significance’ of the alleged ‘intended use’ the same demonstrates
·the actual use was confined to the ‘loading’ and being in possession of the loaded rifle;
·neither pointing or discharging the rifle;
·leaving the rifle in the ute when [Mr] Pain got out of the ute;
·further the fact of the offence being committed without resort to using the loaded rifle in any fashion reflects of itself same was not intended to be used in connection with the offending.
[13] It is further submitted, the mere possession of the loaded rifle at the time of the offending, does not necessarily fit comfortably within the concept of an ‘intended use’ applied to the rifle. There was no use of the weapon for a particular purpose or end. The Crown argument concerning same is speculative at best and not based on any evidence.
[14] The fact the rifle was loaded, in the circumstances of this case was not an attribute that gave [Mr] Pain any advantage in the commission of the offence – as it was:
·neither used; nor
·attempted to be so used; nor
·threatened with either words or actions to be used.
See “used” in relation to tainted property in [DPP(NSW) v] King (2002) 49 NSWLR 727.
[15] Finally, it is observed within the commentary in the Sentencing Manual the authors state “where property is of sentimental value to a person, this may provide sufficient reason not to dispose of the property”.
[16] Counsel’s instruction[s] are the accused is an avid ‘hunter’ and the subject rifle is of sentimental value to him. Should the order not be made, the accused would nominate a suitably licenced person to retain possession of same.
[17] In the premises, it is submitted the Crown on this application has failed to meet its “burden”, be it ‘balance of probabilities’ or ‘comfortable satisfaction’.
The parties’ positions
Given the foregoing, it can be taken that there is no dispute between the parties that, in the circumstances of this case, s 151(1)(a) of the Firearms Act gives the Court the power to make a forfeiture order in respect of both the shotgun and the rifle.
It is also implicit in the Director’s applications that it is submitted that, in so far as there is a discretion to exercise, forfeiture of both the shotgun and the rifle should occur.
Further, it is apparent that Mr Pain takes no objection, on any basis, to the proposed forfeiture of the shotgun.
Mr Pain, however, objects to forfeiture of the rifle. Given the combination of his solicitor’s email and his counsel’s earlier submissions, Mr Pain must be taken to submit that two factors militate against forfeiture:
a) first, it cannot be said that the rifle “was used, or intended to be used, in or in connection with, the commission of the offence”; and
b) secondly, he is an avid hunter and the rifle is of sentimental value to him.
Analysis
I turn now to my reasons for concluding that forfeiture of both the shotgun and the rifle can and should occur pursuant to s 151(1)(a) of the Firearms Act.
Section 151 of the Firearms Act
Section 151 of the Firearms Act provides as follows:
(1) If a person has by the operation of a finding by a court or the making of an order by a court—
(a) become a prohibited person; or
(b) been found guilty of—
(i) an offence against this Act; or
(ii) an offence under another Act involving the possession, carriage or use of a firearm—
the Supreme Court, or the court who makes the finding or order, may order the forfeiture to the Crown of any firearm, cartridge ammunition, silencer or prescribed item in the possession of or used or carried by the person.[10]
(2) The court must notify the Chief Commissioner of the forfeiture of the firearm, cartridge ammunition, silencer or prescribed item.
[10]Emphasis added.
Thus, it can be seen that neither of Mr Pain’s submissions has any application to whether the rifle is caught by the opening words of s 151(1)(a) of the Firearms Act. At best, those submissions might have some relevance to two matters, namely:
a) whether the circumstances fall within the closing words of s 151(1); and/or
b) whether the forfeiture should be refused on a discretionary basis.
Nevertheless, I think it prudent to go through each of the elements of s 151(1)(a) in turn as they might apply to both the shotgun and the rifle.
Precondition to exercise of power:Person “has … become a prohibited person”
First, s 3(1) of the Firearms Act provides that “prohibited person” means, inter alia, a person who is serving a term of imprisonment for an indictable offence. Thus, as a result of his being sentenced to a term of imprisonment on 9 August 2017 for the indictable offence of murder, Mr Pain “has by … the making of an order by a court … become a prohibited person” within the meaning of s 151(1)(a). Accordingly, a precondition to a consideration of whether to exercise the power to order forfeiture under s 151(1) has been satisfied.
The power in s 151(1)
Secondly, that power is contained in the closing words of s 151(1), where it is said that this Court “may order the forfeiture to the Crown of any firearm … in the possession of or used or carried by the person”.
The first thing to note about this part of the provision is that, by use of the permissive “may”, a discretion is imported. I shall return to this issue later.
Next, I observe that, while “use” and “used” are not defined, s 3(1) of the Firearms Act provides inter alia that:
· “‘carry’ in relation to a firearm, includes the carriage of that firearm either as a whole or in parts and either by one person or more than one person”; and
· “’possession’ in relation to a firearm includes … (a) actual physical possession of the firearm; and (b) custody or control of the firearm; or (c) having and exercising access to the firearm, either solely or in common with others”.
Thirdly, questions arise as to the scope of the power to order forfeiture, including whether that power extends to instances of possession, use or carriage of a firearm occurring before Mr Pain became a prohibited person or whether it is confined to instances occurring afterwards. There are factors pointing in both directions.
For example, the use of the present perfect tense in each of the preconditions to the exercise of the power to make an order (“has … become a prohibited person” and “has … been found guilty of [an offence]”), together with what, on the face of it, appears to be the use of the present tense in the words “in the possession of”, tend to suggest that only instances of possession occurring after becoming a prohibited person (or being found guilty of the necessary offence) would be caught by s 151(1). Further, it might be argued that, had the legislature intended to include instances of possession occurring before the occurrence of the preconditions to the exercise of the power, it might have used different language, such as “was or is in the possession of”. This reasoning might have been important in the present case, because, as will be seen, while it is clear that Mr Pain was in the possession of both the shotgun and the rifle until the police seized them, I do not think it can be said that he has been “in the possession of” either of those firearms at any time after becoming a prohibited person.
On the other hand, the phrases “used … by” and “carried by” each tend to suggest the past tense and the present tense. Thus, it might be argued that instances of use or carriage of the item occurring either before or after the person’s becoming a prohibited person would be caught by the provision. As will be seen, I think that there were instances of use and carriage of the shotgun and the rifle before, but not after, Mr Pain became a prohibited person.
I have been unable to find any authority directly on the point. There is, however, authority – if any were necessary – for the proposition that there need not be any connection between the firearm to be forfeited and fulfilment of the precondition to the exercise of the power to order forfeiture. Thus, in Sidebottom v County Court of Victoria & O’Connell,[11] which concerned an application to this Court for certiorari against orders of the County Court, Hedigan J rejected a submission that, upon a finding of guilt of an offence by a person under the Firearms Act, s 151(1)(b) did not empower a court to order forfeiture of the person’s firearms and cartridge ammunition that were not the subject of the offence. On the contrary, while his Honour noted that it “may be that in many cases the Court would decline to order forfeiture of all firearms and ammunition”, thereby confirming the existence of a discretion in s 151(1), he could not see anything in either the provision or in the parliamentary record preceding the introduction of the Act, which occurred in the wake of the massacre at Port Arthur, that “would suggest any limitation on the breadth of the power conferred upon the Court to order forfeiture of any firearm and cartridge”.[12]
[11]Sidebottom v County Court of Victoria & O’Connell [2011] VSC 18.
[12]Sidebottom v County Court of Victoria & O’Connell [2011] VSC 18 at [13].
Mr Sidebottom had pleaded guilty in the County Court (upon appeal from the Magistrates’ Court) to offences under the Firearms Act connected with his concealment of an unregistered air rifle in a cavity in his home.[13] After recording convictions and imposing fines, the judge ordered the forfeiture of all firearms and cartridge ammunition in the possession of, used or carried by Mr Sidebottom, including those listed in an exhibit, which included 20 firearms that were possessed legally. While it is not entirely clear from the decision, it appears that the forfeiture order was made in reliance on Mr Sidebottom’s present possession of the firearms. It was said that, at the time of the order, those firearms were being held, as a matter of convenience, by a firearms dealer. Hedigan J remarked that, “[e]ven if that were so, … that did not deprive the owner of possession”.[14] Thus, it appears that his Honour had no occasion to consider whether Mr Sidebottom’s earlier possession of the firearms would have sufficed for the purposes of an application under s 151(1)(b).
[13]It appears that Mr Sidebottom may also have been a “prohibited person” at the time of the hearing in the County Court: Sidebottom v County Court of Victoria & O’Connell [2011] VSC 18 at [13].
[14]Sidebottom v County Court of Victoria & O’Connell [2011] VSC 18 at [16].
While, as might be apparent by now, I consider it unnecessary in this case to decide whether the words “in the possession of” in s 151(1) extend beyond any firearm (etc) presently possessed by the person and to those that were possessed by him or her prior to becoming a prohibited person or being found guilty of the requisite offence, I think that the better view is that the provision should be read in that way. That construction seems to me to be consistent with the words “used or carried by”, with the “public safety and peace” purpose of the legislation[15] and with the fact that relief from forfeiture is available to others who might have a present entitlement to the firearm.[16] But, as I say, I leave that question to another day.
[15]See s 1 of the Firearms Act 1996 (Vic).
[16]See s 152(b)(i) of the Firearms Act 1996 (Vic).
However, despite the use of the present perfect tense in each of the preconditions to the exercise of the power to make an order, the use of the past tense in the words “used or carried by” is enough to satisfy me that s 151(1)(a) extends the power of forfeiture to firearms (etc) used or carried by a person before the occurrence of those preconditions.
Turning to the facts of the present case, both the shotgun and the rifle were seized by police around the time of Mr Pain’s arrest on the night of the killing and have not been returned to him in the meantime. Thus, while Mr Pain still may have some present right to seek the return of the guns, I doubt that it can be said either that he is “in the possession of” them at the moment or that he has been “in the possession of” them at any time since the Director filed the application under s 151(1), on 17 August 2017. (Again, this issue need not be determined in the present case.)
It is, however, plain that Mr Pain “used” and “carried” the shotgun at the time of the murder. Either of those findings alone would be sufficient to engage the closing words of s 151(1) in relation to the shotgun.
I turn now to the rifle. I have considered the written submissions. While I am not satisfied that the rifle “was used, or intended to be used, in … the commission of the offence”, I am satisfied that it “was used … in connection with … the commission of the offence”. For the purposes of sentencing, I found that Mr Pain went to Mr Paris’s home “armed with two guns [i.e. the shotgun and the rifle], and with an ill-formed plan to confront him, at least with a threat of violence”.[17] In my view, that amounts to a sufficient nexus between the rifle and the offence to meet the “connection” test posed by s 77(1) of the Confiscation Act. Of course, that is not the applicable test here, as the application is brought under s 151(1). But, as it happens, the tests overlap in this instance. This is because, to use a rifle in any fashion, whether or not it was in connection with an offence, strikes me as “use” falling within s 151(1).
[17]The Queen v Pain [2017] VSC 454 at [81].
In any event, there was evidence at trial that, as a farmer, Mr Pain had “used” his guns (which I take to include the rifle) in the past for hunting foxes.[18] Further, it might be thought to be implicit in the assertions in the written submissions extracted above – namely, that Mr Pain is an avid hunter and that the rifle is of sentimental value to him – that he has “used” the rifle for hunting in the past.
[18]See the evidence of Mr Pain’s brother-in-law Mr Guerra, recorded in the trial transcript of 23 March 2017 at p 731.
Accordingly, on any or all of these bases, I am satisfied that Mr Pain used the rifle in the past, such that the closing words of s 151(1) are engaged.
Further and in any event, it is clear, from the evidence of the CCTV footage from Mr Pain’s home, and there was no dispute about this at trial, that he physically “carried” the rifle to his ute before the murder. In my view, the finding that Mr Pain “carried” the rifle on that occasion is enough also to engage the closing words of s 151(1).
Discretion
That then brings me to the discretion.
I observe that the discretion disclosed in ss 78(1) and (1A) of the Confiscation Act is expressed far more elaborately than is the discretion in 151(1) of the Firearms Act. That said, I do not think that the discretion in s 151(1) should be regarded as limited because of that fact.
I should think that the use previously and ordinarily made of an item sought to be forfeited, and its sentimental value to the owner, are matters to be considered in exercising the discretion in s 151(1).
Thus, while, as I have said, this is a failure to meet a test under a different provision in a different Act, that I am not satisfied that the rifle “was used, or intended to be used, in … the commission of the [murder]” is a factor I am prepared to weigh in the balance in Mr Pain’s favour in considering the exercise of the discretion. Further, as I have also said, I am satisfied that Mr Pain has used the rifle for the legitimate purpose of hunting foxes in the past. I also accept that the rifle has sentimental value to him. Further, as I understand it, Mr Pain was appropriately licensed at the time and his rifle was registered, which are matters also to be reckoned in the balancing exercise.
On the other hand, Mr Pain did have the rifle, loaded, sitting beside him in the ute at the time of murder. Further, as I have found, the rifle “was used … in connection with … the commission of the [murder]”. I regard these facts as very troubling, to say the least.
In my respectful opinion, it would be a rare case – if ever – that a person convicted of murder by shooting with a firearm would be able successfully to resist forfeiture of any of his or her firearms, whether or not they were used in or in connection with the offending, whether or not they were registered and he or she was licensed, and whether or not they were of sentimental value. Certainly, I am of the view that the factors urged on behalf of Mr Pain do not come within a bull’s roar of justifying a decision to decline to order forfeiture of the rifle on discretionary grounds.
Thus, weighing all matters, I am satisfied that I should order forfeiture of Mr Pain’s rifle.
As I have indicated, Mr Pain does not object to forfeiture of the shotgun on any basis. That said, as would be apparent from the foregoing reasons, even if there were an objection on a discretionary basis similar to that which is relied on in relation to the rifle, I would not uphold it, particularly in circumstances where the shotgun was used to kill Mr Paris.
Conclusion and orders
In those circumstances, I am satisfied that I should make an order for forfeiture of both the shotgun and the rifle pursuant to s 151(1)(a) of the Firearms Act, substantially in the terms proposed by the Crown.
As I also indicated, I am satisfied that I should make the disposal order sought as well.
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