Fazio v Zanetti
[2012] WASC 426
•19 OCTOBER 2012
FAZIO -v- ZANETTI [2012] WASC 426
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 426 | |
| Case No: | SJA:1068/2012 | 19 OCTOBER 2012 | |
| Coram: | HALL J | 19/10/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal granted Appeal allowed Conviction set aside and acquittal substituted | ||
| B | |||
| PDF Version |
| Parties: | PHILLIP DANIEL FAZIO JASON DAVID ZANETTI |
Catchwords: | Criminal law Appeal against conviction Firearms offence Whether appellant was in law guilty of offence Whether the appellant exercised control over firearm and ammunition 'otherwise than by way of storage' On admitted facts control was by way of storage Not open to substitute an improper storage conviction on appeal |
Legislation: | Criminal Appeals Act 2004 (WA), s 4 Firearms Act 1973 (WA), s 23 |
Case References: | Anderson v Pankhurst (No 2) [2012] WASC 326 Borsa v The Queen [2003] WASCA 254 Hogue v The State of Western Australia [2005] WASCA 102 Liberti v The Queen (1991) 55 A Crim R 120 McGee v Chitty [2011] WASCA 125 Smith v Vos [2012] WASC 211 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JASON DAVID ZANETTI
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE L H JONES
File No : FR 2153 of 2012
Catchwords:
Criminal law - Appeal against conviction - Firearms offence - Whether appellant was in law guilty of offence - Whether the appellant exercised control over firearm and ammunition 'otherwise than by way of storage' - On admitted facts control was by way of storage - Not open to substitute an improper storage conviction on appeal
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 4
Firearms Act 1973 (WA), s 23
Result:
Extension of time granted
Leave to appeal granted
Appeal allowed
Conviction set aside and acquittal substituted
Category: B
Representation:
Counsel:
Appellant : Ms B J Lonsdale
Respondent : Ms H L Stapp
Solicitors:
Appellant : Timpano Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Anderson v Pankhurst (No 2) [2012] WASC 326
Borsa v The Queen [2003] WASCA 254
Hogue v The State of Western Australia [2005] WASCA 102
Liberti v The Queen (1991) 55 A Crim R 120
McGee v Chitty [2011] WASCA 125
Smith v Vos [2012] WASC 211
(Page 3)
- HALL J:
(These reasons were given orally and have been edited from the transcript).
Introduction
1 On 27 March 2012 the appellant was convicted of failing to take reasonable precautions to ensure the safekeeping of a firearm and ammunition that were in his control, contrary to s 23(9)(a) of the FirearmsAct 1973. He was fined $1600 and an order was made revoking his firearms licence for an unspecified period.
2 On 4 July 2012 the appellant filed an appeal notice seeking leave to appeal against the sentence on the ground that it was manifestly excessive. The appeal notice was two months out of time, accordingly an extension is required. In this case an extension should be granted because a miscarriage of justice has been established.
3 Written submissions were filed on behalf of the respondent on 16 October 2012. In those submissions, the respondent noted that although the appellant had not sought leave to appeal against conviction, it appeared that the appellant could not properly at law have been convicted of the charge. I will explain the reason for that shortly. The appellant has, unsurprisingly, taken up the implicit suggestion and has filed a new appeal notice seeking leave to appeal against the conviction.
Background
4 On 15 February 2012 police executed a search warrant on the home of the appellant's father. A firearms cabinet was located that was not bolted down as required. The cabinet was seized and later found to contain a 12 gauge shotgun, a .22 calibre rifle and a quantity of ammunition. The ammunition was not in a separate locked box, as is required.
5 The appellant was spoken to by police and admitted that the cabinet and its contents belonged to him and that he left it at his father's house when he relocated to Sydney for work purposes. He also admitted that he had failed to bolt the cabinet down.
6 The appellant was charged with an offence under s 23(9)(a) of the Firearms Act. The prosecution notice dated 28 February 2012 stated the charge in the following terms:
(Page 4)
- Being the person having control of a firearm and ammunition namely a 12 gauge shotgun lever repeater, a .22 gauge rifle lever repeater and .22 and 12 gauge ammunition failed to take all reasonable precautions to ensure its safekeeping.
7 The appellant entered an endorsed plea of guilty to the charge. He clearly did so on the basis of his understanding that what he had admitted to constituted the offence alleged.
Merits of the appeal
8 The Firearms Act provides for a number of offences in respect of registered firearms. The ultimate issue in this case is whether the charge preferred was one that could be sustained on the admitted facts. In order to understand that issue, it is necessary to set out the text of s 23(9):
A person who
(a) whilst carrying, or in actual physical possession of, or having the custody or control otherwise than by way of storage of, any firearm or ammunition, fails or omits to take all reasonable precautions to ensure its safe keeping;
(b) having failed or omitted to take all reasonable precautions to prevent the same, permits a young person under the age of 18 years to have unlawful possession of a firearm;
(c) without lawful excuse, discharges any firearm or any shot, bullet or other missile from a firearm, onto, from or across any road;
(d) being responsible for the storage of any firearm or ammunition, fails
(i) to provide and use adequate storage facilities to ensure its safety;
(ii) where prescribed requirements as to security are specified in relation to a firearm or ammunition of a prescribed kind, to ensure that those requirements are observed; or
(iii) otherwise, to safeguard it from loss or improper use;
or
(e) being responsible for the storage of any firearm or ammunition, refuses to permit a member of the Police Force to inspect the storage facilities provided, at a reasonable time after such an inspection is requested in writing by the member of the Police Force,
(Page 5)
- commits an offence.
Penalty:
(a) for a first offence, a fine of $2000;
(b) or a subsequent offence, imprisonment for 12 months or a fine of $4 000.
9 The appellant was charged under s 23(9)(a). It was alleged that he had contravened that provision because he was in control of the firearms and ammunition. However, that subsection does not apply to all circumstances in which a person is in control, only where that control exists otherwise than by way of storage. See McGee v Chitty [2011] WASCA 125.
10 If a person has control of a firearm or ammunition by way of storage, then any failure by them to take reasonable precautions to ensure safekeeping is not addressed by s 23(9)(a). There are other offences that deal with what might be called storage failures, in particular s 23(9)(d).
11 Whether or not the control in a particular case is exercised by way of storage is a question of fact to be determined in a particular case. It does not necessarily follow that simply because a firearm has been improperly stored, the only available charge will be under s 23(9)(d). What is necessary to consider is whether in a case where a charge under s 23(9)(a) is preferred, the control that the accused person had over the firearm was otherwise than by way of storage. In this case the charge did not incorporate the words 'otherwise than by way of storage' but that does not necessarily make the charge defective.
12 What is more significant is the nature of the facts advanced by the prosecution as being the foundation for the charge. They indicate that the control here was exercised by the appellant by keeping guns in a locked cabinet, giving the cabinet to his father and giving the keys to that cabinet to his brother. The respondent concedes that in this case the appellant exercised control by way of storage on these facts and in those circumstances he could not be convicted of a s 23(9)(a) offence. That concession is properly made.
13 The appellant might have been guilty of a s 23(9)(d) offence, but that was not charged and I have no power to substitute an alternative conviction. There is a power under s 14(1)(i) of the Criminal Appeals Act 2004 (WA) to make any order that the appellant court thinks fit. However, the meaning of that provision must be seen in the context of the
(Page 6)
- Criminal Appeals Act as a whole. It is to be contrasted with the power of the Court of Appeal under s 30(5) which contains a specific power for that court to substitute a conviction for another offence on an appeal against conviction. There is no similar provision in s 14 and there is no provision in the Firearms Act which would enable an alternative conviction to be entered on a charge under s 23(9)(a). That is to be contrasted with the position in Anderson v Pankhurst (No 2) [2012] WASC 326 where such a provision did exist under the Road Traffic Act 1974 (WA).
14 In those circumstances, it is not open to me to impose a conviction for a different offence in this case. I refer in that regard to the decision of McKechnie J in Smith v Vos [2012] WASC 211. Whether it may be open to the authorities to now prefer an alternative charge is a matter for them.
15 Section 8(2) the Criminal Appeals Act permits an appeal against conviction where a plea of guilty has been made. However, an appellate court will approach an attempt to set aside a conviction based on a plea of guilty with 'caution bordering on circumspection': Liberti v The Queen (1991) 55 A Crim R 120, 122 (Kirby P, Grove and Newman JJ agreeing); Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA); Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray and Hasluck JJ agreeing).
16 Before an appellate court will set aside a conviction based upon a plea of guilty the appellant must demonstrate that there has been a miscarriage of justice Hogue [22], Borsa [20]. In Borsa Steytler J referred to three well recognised circumstances in which a conviction based on a plea of guilty will be set aside:
(1) when the appellant did not understand the nature of the charge or did not intend to admit guilt;
(2) if upon the admitted facts the appellant could not in law have been guilty of the offence; and
(3) where the guilty plea was obtained by improper inducement, fraud or intimidation and the like.
17 In this case on the admitted facts the appellant could not have been convicted of an offence under s 23(9)(a) because the control that he exercised was by way of storage. In these circumstances a miscarriage of justice has been established.
(Page 7)
18 An extension of time is granted, leave to appeal is granted and the appeal allowed. The conviction and sentence are set aside and an acquittal is substituted.
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