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…

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.

Keep reading for free

Create a free CaseChat account to read Forgione v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] SASC 54
Decision Date: 29 February 2008

CaseChat Overview and Summary

The appellant in this case appealed against his sentence, having pleaded guilty to four counts of failing to properly store firearms and ammunition in contravention of the Firearms Act 1977 and Regulations. The magistrate declined to exercise the discretion not to record a conviction under s 16 of the Criminal Law (Sentencing) Act 1988, convicting the appellant and fining him $350. The appellant contended that the magistrate erred in declining to exercise the discretion not to record a conviction and that all extenuating circumstances were not taken into account by the magistrate. The appellant was unrepresented in the Magistrates Court.

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.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

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.