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Golding v Police

Golding v Police

Case [2007] SASC 159 7 May 2007

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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…

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.

Continue reading Golding v Police

Details

AGLC: Golding v Police [2007] SASC 159
Case: [2007] SASC 159
Decision Date: 7 May 2007

CaseChat Overview and Summary

In the case of Golding v Police, the appellant challenged the sentence imposed by the magistrate following his guilty pleas to charges under the Firearms Act. The appellant admitted to possessing a firearm without a licence and failing to properly secure a class A firearm. The magistrate recorded convictions for both counts and ordered the forfeiture of the firearm under section 34A of the Firearms Act. The appeal centred on whether the magistrate correctly interpreted the legal provisions when imposing the sentence and whether the recording of convictions was excessive.

The legal issues before the court were whether the magistrate erred in their interpretation of the provisions of section 34A of the Firearms Act and whether the recording of convictions was manifestly excessive. The appellant argued that the magistrate should not have recorded convictions before ordering the forfeiture of the firearm and that the penalty imposed was excessive. The court had to determine the correct application of the statutory provisions and whether the sentence was proportionate and appropriate.

The court found that the magistrate had erred in their interpretation of section 34A of the Firearms Act. The court held that the formal recording of a conviction was not a prerequisite to ordering the forfeiture of a firearm under section 34A(1)(a). This misinterpretation led to the conclusion that the penalty imposed by the magistrate was set aside. The court further ruled that no conviction should be recorded upon the weapon being forfeited to the Crown under section 34A of the Firearms Act. Consequently, the court made an order that no conviction be recorded in relation to the forfeiture of the firearm.

The final orders of the court were to set aside the penalty imposed by the magistrate and to make an order that no conviction be recorded upon the weapon being forfeited to the Crown pursuant to section 34A of the Firearms Act. This ruling clarified the legal requirements for forfeiture orders and ensured that the sentencing process complied with the relevant statutory provisions.

Orders