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 54KELLY 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…
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- Case
- [2008] SASC 54
- Decision Date
CaseChat Overview and Summary
The key legal issue before the court was whether the magistrate erred in declining to exercise the discretion not to record a conviction under s 16 of the Criminal Law (Sentencing) Act 1988. The court needed to determine if the magistrate had taken into account all relevant extenuating circumstances in making her decision. The court also had to consider the impact of any factual errors made by the magistrate on the exercise of the discretion.
The court found that the magistrate had indeed made factual errors, which were relevant to the exercise of the discretion under s 16 of the Criminal Law (Sentencing) Act 1988. The court noted that the magistrate had made a factual error in stating that there were two firearms at the premises when in fact there was only one, which was registered. The court held that these errors could permit the appeal to be allowed and for the matter to be re-heard either by the magistrate or by the Supreme Court. The court concluded that the extenuating circumstances provided good reason not to record a conviction. The appeal was therefore allowed, and the matter was remitted to the magistrate for re-sentencing.
The final orders of the court were that the appeal be allowed, and the matter be remitted to the magistrate for re-sentencing. The court did not impose a specific sentence but left it to the magistrate to determine an appropriate penalty in light of the extenuating circumstances. The court also noted that the magistrate should take into account the factual errors made in her original sentencing remarks.
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