Golding v Police - [2007] SASC 159

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
GOLDING v POLICE
[2007] SASC 159
Judgment of The Honourable Justice Kelly (ex tempore)
7 May 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Appeal against sentence – appellant pleaded guilty to one count under s11(1) of the Firearms Act of having a gun in his possession while not holding a firearms licence and one count under Firearms Regulation 29(1) of failing to properly secure a class A firearm – magistrate recorded convictions in respect of both counts and made an order under the terms of s34A Firearms Act for the forfeiture of the firearm – whether the magistrate erred in recording convictions – whether recording of convictions was manifestly excessive – HELD: magistrate erred in interpreting the provisions of the s34A Firearms Act as requiring the formal recording of a conviction before forfeiture could be ordered under s34A(1)(a) – penalty imposed by magistrate set aside and order made that no conviction be recorded upon the weapon being forfeited to the Crown pursuant to s34A Firearms Act.
Firearms Regulations 1993 R29(1); Firearms Act 1977 s11(1), s19, s34A; Criminal Law (Sentencing) Act 1935 s16, referred to.
Vreeker v Police (2004) SASC 90, applied.
Castiglione v Police (2003) SASC 209, discussed.
Simms v Police [2002] SASC 102; Offe v Police [2002] SASC 259, considered.

GOLDING v POLICE
[2007] SASC 159
MAGISTRATES APPEAL
KELLY J (Ex Tempore)

The appellant, Peter Robert Golding, pleaded guilty to two counts contrary to the Firearms Act (1997) (“the Act”) and the regulations thereunder.
The offence of having in his possession while not holding a firearms licence contrary to s11(1) of the Act attracts a maximum penalty of four years imprisonment and/or a fine of $20,000. The breach of regulation 29(1) of the Firearms Regulations (1993) of failing to properly secure a class A firearm attracts a fine not exceeding $2500.
The Magistrate recorded convictions in respect of both counts and made an order under the terms of s34A of the Act for forfeiture of the firearm. The appellant was ordered to pay court fees and costs but no other penalty was imposed.
The appellant appeals on the ground that the Magistrate erred in recording a conviction and that in all of the circumstances the recording of a conviction was manifestly excessive and unfair.
The appellant is a 59-year-old man, who came into possession of the firearm by way of a gift on his 18th birthday from his father, not long before his father’s death. The firearm had last been used in 1987 and prior to that only occasionally, apparently to shoot rabbits in the South-East.
In the past the appellant had a firearms licence for the firearm but that had expired on 29 February 2004, some two years before the police attended at his residence in the course of a firearms audit and the offence was then discovered. The firearms licence held by Mr Golding had been held by him for a number of years, the exact term of which we do not know. Section 19 of the Act now provides that a class A firearm requires a licence which would appear to be issued at five year intervals. In any event, the firearm was not loaded and there was no ammunition found in the appellant’s house.
The appellant entered a plea of guilty at an early stage. He is a man without any prior convictions and he has held, and continues to hold, responsible positions within the private and public sector of this State. The appellant had offered to surrender the firearm to the police and again during the proceedings had offered to forfeit the firearm to the Crown.
In these circumstances counsel for the appellant submitted that it was open to the Magistrate to proceed under the provisions in s16 of the Criminal Law (Sentencing) Act (1988) without recording a conviction.
The Magistrate did not accede to that request. It is evident from his sentencing remarks that the Magistrate formed the view that unless he dealt with the appellant by formally recording a conviction an order for forfeiture of the firearm could not be made. The Magistrate formed the view that the firearm should be forfeited to the Crown and it is evident that he considered that the only way he could make that order was by the recording of a formal conviction.
To the extent that he refrained from imposing any further penalty, other than by order of payment for court costs and the order for forfeiture, it can be inferred that he regarded the appellant’s offending as at the lower end of the range for this type of offence.
In my respectful view the Magistrate was wrong to interpret the provisions of s34A of the Firearms Act as requiring the formal recording of a conviction before forfeiture could be ordered under s34A(1)(2).
Section 34A states:
(1)Where a court convicts a person of an offence against this or any other Act and the court finds that a firearm, mechanism, fitting or ammunition was involved in the commission of the offence the court must make one or more of the following orders:
(a)where the firearm, mechanism, fitting or ammunition was owned by the convicted person – that the firearm, mechanism, fitting or ammunition forfeited to the Crown or be disposed of in such other manner as the court directs;
(b)that a licence held by the convicted person is subject to specified conditions;
(c)that a licence held by the convicted person is suspended for a specified period or until further order;
(d)that a licence held by the convicted person is cancelled;
(e)that the convicted person is disqualified from holding or obtaining a licence for a specified period or until further order.
(2)Where, in the course of proceedings before a court, the court forms the view that a party to the proceedings who has possession of a firearm, mechanism, fitting or ammunition is not a fit and proper person to have possession of the firearm, mechanism, fitting or ammunition, the court must make one or more of the following orders:
(a)     that the firearm, mechanism, fitting or ammunition be disposed of in such manner as the court directs;
(b)     that a licence held by the party is subject to specified conditions;
(c)     that a licence held by the party is suspended for a specified period or until further order;
(d)     that a licence held by the party is cancelled;
(e)     that the party is disqualified from holding or obtaining a licence for a specified period or until further order.
It is unfortunate that the Magistrate was not referred to the judgment of Gray J in Vreeker v Police (2004) SASC 90, which was a case that was decided some six or 12 months after Castiglione (2003) SASC 209. In that case, the court considered the meaning of the word ‘conviction’ in the context of s34A of the Firearms Act.
I respectfully agree with the conclusions of Gray J in that case that “conviction” in the context of s34A extends to those persons found guilty of an offence, even where no conviction has been formally recorded. I agree with the respondent’s submission that it would be illogical and inconsistent with the purpose of the legislative scheme of the Firearms Act to restrict forfeiture orders to those cases where a conviction is recorded.
It follows that the Magistrate did err when he concluded that unless he formally recorded a conviction, he could not make an order for forfeiture. The respondent argued that irrespective of whether the Magistrate had made this error he ultimately determined to record a conviction without any further penalty, quite independently of the view he had formed about s34A of the Act. True it is that in para 5 of his remarks, as the respondent’s counsel submitted, the Magistrate did say as much. However, I am not convinced in the light of his sentencing remarks as a whole that he might not have made a different order absent the view he formed that the only way to ensure that the weapon was forfeited was to record a conviction. I am strengthened in reaching this conclusion by the fact that the Magistrate saw fit, having recorded the conviction and forfeited the weapon, not to impose any other penalty by way of monetary fine. Imprisonment was not even considered and rightly so in my view, given the fact that on any view of the matter, the appellant’s offending would be at the lower end of the scale for this type of offending.
In my view the error did taint the sentencing process and it is therefore necessary for me to consider the matter afresh and determine what penalty should be imposed for the offending.
I acknowledge, as Bleby J said in Sims v Police [2003] SASC 102, that the assumption behind s16 of the Criminal Law (Sentencing) Act is that in most cases a conviction will be recorded. Section16 is by way of exception to the general rule.
Moreover, I acknowledge that the offences committed by the appellant are serious. As Gray J pointed out in Offe v Police [2002] SASC 259, the purpose of the amendments to the Firearms Act are to strictly control the 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.
I accept the respondent’s argument that therefore any breach of the legislation is serious and it is important that courts, when imposing a penalty, bear in mind that the penalty should operate as a significant personal and general deterrent. Nevertheless, in an appropriate case the provisions of s16 and indeed other provisions of the Criminal Law (Sentencing) Act, which are not currently relevant, do provide an ameliorating scheme which enables the court to extend leniency to a defendant in circumstances where the exercise of the discretion given by s16 (not to record a conviction), is enlivened Bearing in mind all of those principles I turn now to the facts before the sentencing Magistrate.
As I mentioned earlier, the appellant is a 59-year-old man without any prior convictions. I have referred to his employment situation. This was not a deliberate breach of his legal obligations. He had after all possessed that weapon, on my estimate, for nearly 40 years, perhaps over 40 years, since it was gifted to him by his father on his 18th birthday. The weapon was hardly ever used.
The licence lapsed in 2004 and the breach of the legislation was discovered in 2006. After the breach was brought to his attention, he voluntarily attempted to surrender the weapon but given the pending proceedings, the police were not able to accept the weapon. I am satisfied that the appellant is unlikely ever to commit such an offence or indeed, any offence ever again. Furthermore, I am satisfied that he is a man of good character and that the recording of a conviction in this matter may well impact negatively upon his employment prospects if he is ever required to place himself on the open labour market again. In this sense, the conviction does have the potential to seriously affect his capacity to find employment if he should ever need to.
Given all of these matters and taking into account, as I do, the fact that the exercise of the discretion available to the court must of necessity have limited application to these types of regulatory offences, nevertheless I am satisfied that this is an appropriate case in which the court can exercise that discretion. For all of these reasons, I would set aside the penalty imposed by the Magistrate.
I make the following orders:
·No conviction be recorded against the appellant.
·The weapon is to be forfeited to the Crown under the provisions of s34A of the Firearms Act.
·The appellant to pay (if he has not already done so) those court fees of $144, with levies of $70 and a prosecution fee of $16, in the court below.