Forgione v Police - [2008] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FORGIONE v POLICE
[2008] SASC 54
Judgment of The Honourable Justice Kelly
29 February 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence - appellant pleaded guilty to four counts of failing to properly store firearms and ammunition contrary to the Firearms Act 1977 and Regulations - magistrate declined to exercise the discretion not to record a conviction under s 16 Criminal Law (Sentencing) Act 1988 - appellant convicted and fined $350 - whether magistrate erred in declining to exercise the discretion not to record a conviction - whether all extenuating circumstances taken into account by magistrate - appellant unrepresented in Magistrates Court. Held: appeal allowed - factual errors made by magistrate were relevant to the exercise of the discretion - appellant re-sentenced - extenuating circumstances provide good reason not to record a conviction.
Criminal Law (Sentencing) Act 1988 s 16; Firearms Act 1977 ss 21 and 34A; Firearms Regulations 1993 r 29(1) and r 53 and r 32(1), referred to.
Sims v Police [2000] SASC 102; Police v Zefi [2003] SASC 213; R v Briese (1997) 92 AcrimR 75; Johnson v Registrar of Firearms (2001) 79 SASR 353; Offe v Police (2002) 84 SASR 1; Piva v Brinkworth (1992) 59 SASR 92; Vitlov v Lewis [2004] SASC 83, applied.

FORGIONE v POLICE
[2008] SASC 54
KELLY J:
Introduction

The appellant who was unrepresented pleaded guilty to four counts charged on complaint under the Firearms Act 1977 The learned magistrate imposed convictions in relation to all four counts and imposed a fine of $350.00 in addition to court fees and other costs. The total pecuniary penalty imposed was $807.00.
He has appealed against the whole of the penalty on the grounds that the sentence was manifestly excessive.
At the hearing of this appeal the appellant’s only complaint was that the magistrate failed to give sufficient consideration to the exercise of the discretion available to her under s 16 Criminal Law (Sentencing) Act 1988 not to record a conviction and that the applicant was not given sufficient opportunity to be heard in relation to the extenuating circumstances he wished to put forward relevant to the exercise of the discretion under s 16.
This appeal therefore raises the application of s 16 in relation to offences committed under the Firearms Act 1977.
Background
On 11 December 2007 the appellant pleaded guilty to four counts charged on complaint, failure to keep a Class A firearm secured in accordance with Regulations 29(1) and 53 of the Firearms Regulations 1993, failure to store ammunition in a locked container separately from firearms contrary to Regulations 32(1) and 53 of the Firearms Regulations 1993 and two counts of failing to comply with a condition of a firearm licence contrary to s 21 of the Firearms Act 1977.
The charges were laid following police attendance at the appellant’s residence at Tranmere on 28 March 2007. Police acted on an anonymous complaint that there were two unregistered firearms at the premises. In fact that information was incorrect. There was only one firearm duly registered at the premises. I was informed at the hearing of this appeal that the anonymous complaint was from the appellant’s own son with whom he has had an unfortunate falling out over family matters.
During their search of the premises police noted the presence of the firearm which was stored in a locked cupboard. In addition the ammunition relevant to that firearm was located in plastic bags stored in the same cupboard. The failure to properly store the firearm and the ammunition gave rise to the four counts to which the appellant pleaded guilty. The appellant did not dispute those facts.
Following his pleas of guilty, the magistrate made brief extempore remarks. Her Honour noted that as the holder of a firearms licence for approximately 40 years the appellant ought to have known the importance of correct storage of guns and ammunition. The appellant received credit for pleading guilty and the fact that he had no prior convictions of any nature whatsoever. Her Honour refused the appellant’s application that no conviction be recorded on the grounds that this was a standard example of a regulatory offence of this nature.
It was conceded at the hearing of this appeal that her Honour made a factual error. In the course of her remarks her Honour noted that there were two firearms at the premises and neither of them were registered. In fact there was only one and it was registered.
It was fairly conceded by counsel for the respondent that these errors could permit this court to allow the appeal and order a re-hearing of the matter either by the magistrate or by this court. The respondent nevertheless submitted that notwithstanding the errors the penalty imposed by the magistrate was in fact an appropriate penalty on the facts before her Honour and therefore the conviction and the fine should stand.
Section 16 Criminal Law (Sentencing) Act, 1988
S 16 Criminal Law (Sentencing) Act 1988 provides the court with a discretion to make an exception to the usual rule that in most cases a conviction will be recorded:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion¾
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to¾
(i)    the character, antecedents, age or physical or mental condition of the defendant; or
(ii)     the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
Before the discretion in s 16 is enlivened the court must first be satisfied that the defendant is unlikely to commit such an offence again and that having regard to the character, antecedents, age or physical or mental condition of the defendant, or the fact that the offence was trifling or any other extenuating circumstances that good reason exists for not recording a conviction Sims v Police [2000] SASC 102 at 7.
Even if one or more of those conditions are found to exist the court retains the discretion not to exercise the discretion to impose penalty without conviction after taking into account all of the relevant circumstances. It is for the court to weigh the potential benefit to the defendant of not recording a conviction against the public interest of convictions being recorded so that the community may know on proper enquiry of the defendant’s prior offending Police v Zefi [2003] SASC 218, R v Briese (1997) 92 ACrim R 75.
It is well established that the purpose of the firearms legislation is to strictly control possession and use of firearms and to protect the community against the use of dangerous weapons. The scheme of the legislation is designed to ensure that those persons who do use and possess firearms are appropriately licensed and are aware of and carry out their obligations to use and store the weapons in a safe manner. Any breach of the legislation is regarded seriously and courts are required when imposing penalty to bear in mind that penalties for breaches of this legislation should operate as a significant general and personal deterrent Johnson v Registrar of Firearms (2001) 79 SASR 353, Offe v Police [2002] 84 SASR 1.
The exercise of the discretion under s 16 of the Criminal Law (Sentencing) Act 1988 does, of necessity, have limited application to regulatory offences, Piva v Brinkworth (1992) 59 SASR 92, Vitlov v Lewis [2004] SASC 83. However that is not to say that s 16 can never apply to breaches of the Firearms Regulations 1993. As Duggan J acknowledged in Piva, there will be cases where the circumstances will invite the application of the power to proceed without conviction or to refrain from imposing a penalty in dealing with regulatory or social legislation.
On appeal counsel for the appellant conceded that the offences committed here were not trifling, but it was submitted that the magistrate failed to give sufficient consideration to all of the extenuating circumstances surrounding the commission of these offences.
The appellant did not dispute any of the facts in relation to which he was sentenced however it was submitted that the offending was inadvertent in that the appellant held a genuine belief that the storage method he had adopted for the firearm was an appropriate one.
It was submitted that the appellant is a 61 year old man who has lived in Australia for a period of well over 40 years. He has held a firearm licence for 40 years and has no prior convictions of any nature.
It was further submitted that at the hearing before the magistrate the appellant was unable to adequately put before the court all of the extenuating circumstances. The appellant took legal advice from a community legal service prior to attending the Magistrates Court and claimed to have received advice from that service that he did not need legal representation as it was almost inevitable that he would obtain the benefit of having no conviction recorded against him. I cannot accept that any practitioner would give advice of that nature to any person charged with an offence under the firearms legislation. However, having heard from counsel for the appellant I am prepared to accept that the appellant did obtain legal advice. His English is not particularly good and it is likely that the appellant simply failed to grasp the full import of the advice that was given to him.
I do accept that had he realised earlier the seriousness of the charges and the consequences of any conviction the appellant would have availed himself of legal representation at the hearing before the magistrate.
One of the likely consequences of a conviction against the appellant is that he will be denied entry to the United States and possibly Italy to visit relatives of his. Apparently the appellant, who is a pensioner, has been saving for a long time in order to travel overseas to visit his elderly relatives.
Having regard to all of these matters I am persuaded in the circumstances of this case that the factual error made by the magistrate does permit this court to set aside the sentence of the magistrate and consider afresh the sentence that should be imposed. It is possible that had the magistrate realised that there was only one firearm involved, and that it was registered, she may have reached a different conclusion.
In addition it is unfortunate that the appellant was unrepresented at the hearing. It is obvious his English is not particularly good and for whatever reason, all of the extenuating circumstances were not placed before the magistrate.
While I bear in mind that the exercise of the discretion under s 16 does have limited application in relation to regulatory offences, I am influenced in this particular case by the fact that the breaches here were not committed in blatant or careless disregard of the Firearms Regulations 1993, but out of mistaken belief on the part of the appellant that the storage method that he had adopted was in fact the correct one.
I am satisfied that if the appellant is given the opportunity to undertake an approved firearm safety training course conducted by the South Australian Police Firearms Branch, that he will be unlikely ever to commit such an offence again.
Having considered all of the circumstances myself I have formed the opinion that good reason does exist for not recording a conviction in this case. The order of the court will therefore be that the sentence of the magistrate is set aside. In respect of each plea of guilty there will be no conviction recorded. The fine imposed by the magistrate of $350 and the order for costs will stand. I will hear the parties as to whether and what orders should be made under s 34A of the Firearms Act1977.