FRAZER v Police - [2004] SASC 418

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRAZER v POLICE
Judgment of The Honourable Justice Nyland
16 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence - appellant convicted of three firearms offences - incorrect maximum penalty applied to first count - whether sentence manifestly excessive - despite error, sentence imposed by magistrate appropriate to offending - appeal dismissed.
Summary Offences Act 1953, ss 15(1a)(a), 41(1); Firearms Act 1977, ss 11(1), 21BB(2), 24A(7); Criminal Law (Sentencing) Act 1988, s 18A; Firearms (COAG) Agreement Amendment Act 2003, referred to.
Offe v Police (2002) 84 SASR 1, applied.

FRAZER v POLICE
[2004] SASC 418
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against sentence. The appellant was charged on an information that:
1.On 26 March 2003 at Adelaide in the said State, in a public place, namely the Royal Adelaide Hospital, and without lawful excuse, he carried a loaded firearm, contrary to the provisions of s 15(1a)(a) of the Summary Offences Act (1953).
2.On 26 March 2003 at Adelaide in the said State, he had in his possession a prescribed firearm, namely a shortened .22 calibre rim fire rifle whilst not holding a firearms licence authorising possession of that firearm, contrary to s 11(1) of the Firearms Act 1977.
3.On 26 March 2003, at Adelaide in the said State, he possessed a quantity of ammunition that exceeded his reasonable needs for the immediate following period of 12 months, contrary to s 21BB(2) of the Firearms Act 1977.
4.On 26 March 2003, at Adelaide in the said State, he defaced the identifying characters of a firearm, namely a .22 calibre rim fire rifle, contrary to s 24A(7) of the Firearms Act 1977.
5.On 26 March 2003, at Adelaide in the said State, he had in his possession personal property, namely a shortened .22 calibre rim fire rifle which either at the time of such possession, or at a subsequent time before the making of the complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41(1) of the Summary Offences Act 1953.
The appellant pleaded not guilty to the charges against him and the trial proceeded before a stipendiary magistrate in the criminal jurisdiction of the Adelaide Magistrates Court.
On 21 January 2004, the learned magistrate delivered an ex tempore judgment. He found Counts 1, 2 and 3 proved beyond reasonable doubt but Counts 4 and 5 were dismissed.
The learned magistrate convicted the appellant without penalty as to Count 3. Although the magistrate did not specifically refer to s 18A of the Criminal Law (Sentencing) Act 1988, he clearly applied the provisions thereof to impose one sentence for the other two counts. He ordered that the appellant be imprisoned for one year and 23 days, having made an adjustment for time served, commencing at the expiration of an unexpired period of parole which was one year, four months and three days. This left the appellant with a head sentence of two years, four months and 26 days. The magistrate fixed a non-parole period of 21 months, 23 days to commence forthwith.
The appellant initially appealed against that sentence on the ground that it was manifestly excessive in all of the circumstances. An application was subsequently made to add a further ground, namely, that the learned magistrate had imposed sentence on the erroneous basis that the maximum penalty pursuant to s 11(1) of the Firearms Act 1977 was a fine of up to $50,000 or imprisonment of 10 years, whereas the maximum penalty at the time of the commission of the offence was $20,000 or imprisonment of up to four years. The penalties referred to by the magistrate did not come into effect until 1 October 2003, when the Firearms (COAG) Agreement Amendment Act No.37 of 2003 commenced operation.
The offence of carrying a loaded firearm in a public place, which is the offence charged in Count 1, was correctly expressed by the learned magistrate to carry a maximum penalty of a fine of $10,000 or imprisonment for two years.
On the hearing of the appeal, the respondent conceded that the magistrate had misconceived the maximum penalty applicable to the offence charged in Count 2 and that he had therefore committed an error of law, which left it open to this court to exercise the sentencing discretion afresh. In making that concession, however, the respondent did not concede that the penalty was manifestly excessive. In order to consider this aspect of the matter, it is necessary to have regard to the circumstances of the offending.
On the morning of 26 March 2003 the appellant attended at the Royal Adelaide Hospital apparently for treatment for a rash on his hands. Cleaners subsequently located a bullet in a toilet and security guards discovered that the appellant had in his possession a plastic bag which contained a loaded sawn off rifle, two cartridges and pieces of ammunition. The appellant had brought the firearm with him when he entered the hospital and had it in his possession in the waiting area. The firearm was shortened and evidence established that the appellant did not have a license authorising the possession of it. Evidence was given by a ballistics expert that the firearm was in an unsafe condition in that the trigger guard, which was a safety device to prevent the trigger from being accidentally deployed, had been removed. The firearm was also prone to ejecting materials sideways so there was a risk that if the firearm was discharged, a person not in target could be injured by it. In the circumstances, it is understandable that the learned magistrate took a very serious view of this offending.
In the course of sentencing submissions, the magistrate was provided with a copy of a pre-sentence report and a report of Dr Begg, a psychiatrist. On the hearing of the appeal, counsel for the appellant complained of the failure of the learned magistrate to refer to any of the appellant’s personal circumstances, which included the appellant’s psychiatric condition and state of health, both of which were material to the circumstances of the commission of the offence. Both of those reports were before me on the hearing of the appeal as was a further pre-sentence report dated 13 September 2004. That report refers to a diagnosis of personality disorder, antisocial behaviour, anxiety and panic attacks. Dr Begg in his earlier psychiatric report expressed the opinion that the appellant’s primary psychiatric problem was his unstable personality disorder. He said this would meet the criteria for both borderline personality disorder and antisocial personality disorder. The appellant’s polysubstance abuse, repeated suicide thoughts and irritable moods were said to be a manifestation of his underlying personality disorder. Although Dr Begg discussed the circumstances of the commission of the offence with the appellant, that aspect of the matter remains unclear from the report.
A report from the Parole Board on about 7 September 2004 confirmed that the magistrate had correctly taken into account the unexpired period of the appellant’s parole, and that report mentioned the appellant’s combination of problems which included mental health and substance abuse issues. Of concern in that report is the statement by the Presiding Member that until those issues can be satisfactorily resolved the appellant is likely to re-offend, and that regrettably there are insufficient resources to deal with either issue both in the mental health area and community corrections.
In Offe v Police[1] Gray J considered the legislative scheme with respect to the Firearms Act 1977. He said (at 9):
“The Firearms Act was considered in Johnson v Registrar of Firearms (2001) 79 SASR 353. The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included providing community protection through the licensing and regulation of firearms. The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.”
[1] (2002) 84 SASR 1
Gray J went on to say that general deterrence was of great importance in cases of this kind. Consistent with those comments, I agree with the submission put by the respondent on the hearing of the appeal that the sentence imposed in this case was required to appropriately reflect general deterrence in accordance with the principle of protection of the community, in keeping with the objectives of the Firearms Act 1977.
The appellant’s record of prior offending and his poor record of response to supervisory orders in the past causes me considerable concern with respect to his prospects for rehabilitation, and that was also clearly of concern to the learned magistrate. In considering what might be an appropriate sentence, I take into account the reports which show that the appellant does have significant psychiatric and substance abuse difficulties for which he is apparently not receiving treatment whilst in a correctional institution. As against that, however, I consider that it is an aggravating feature of the offences committed by the appellant, that he had such a dangerous weapon in a public place where the potential for harm to an innocent bystander is manifest.
Although the learned magistrate did not specifically refer to all matters personal to the appellant in the course of his remarks as to penalty, I do not think that it could be said that he failed to have regard to them. Although the learned magistrate made an error as to the maximum penalty applicable to Count 2, having considered all of the circumstances of this matter, and having regard to the maximum penalties which were applicable to each of these counts at the relevant time, I consider that the sentence imposed by the learned magistrate was appropriate to the offending of the appellant.
Accordingly, having considered the sentencing discretion afresh, I would not interfere with the sentence imposed by the learned magistrate. In my opinion, therefore, the appeal should be dismissed.