SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
GOLDSWORTHY v POLICE
[2016] SASC 85
Judgment of The Honourable Justice Stanley
10 June 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - OFFENCES AND OTHER MATTERS
This is an appeal against sentence.
The offending occurred on 3 September 2015. The appellant left a class B firearm, namely, a Weatherby bolt action rifle, calibre 223, together with 40 rounds of ammunition, in his ute outside his home at Robe. The firearm was placed behind the rear seat of the ute out of sight. The bolt had been removed from the rifle and left in the centre console of the ute, and the ammunition was located in the glove box. The appellant permitted a young man he was assisting with work to take his ute and drive from Robe to Kingston. He left the appellant’s residence in the vehicle, taking the firearm and the ammunition. He did not return the vehicle. On 5 September 2015 the vehicle was recovered. It was only later that night that the appellant discovered the firearm and ammunition were missing. On the evening of 6 September 2015 the appellant reported the disappearance of the firearm and the ammunition to police. The firearm and ammunition have not been recovered.
The appellant pleaded guilty to one count of failing to comply with a condition of a firearms licence, contrary to s 21 of the Firearms Act 1977 (SA) (the Firearms Act) and one count of failing to store ammunition in a locked container separately from firearms, contrary to Regulations 41(1) and 61 of the Firearms Regulations 2008 (SA).
A magistrate recorded convictions for each offence and imposed one fine of $600 for both offences. The appeal is from the magistrate’s decision to record convictions for both offences.
Held:
1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [16]).
2. A failure to give adequate weight to a relevant consideration does not disclose error. It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways. Accordingly, submissions that the magistrate erred in not giving sufficient weight to the fact the appellant had initiated contact with police and cooperated in the investigation, or to the appellant’s lack of antecedents, or to the references tendered on his behalf, or to the impact a criminal conviction would have, do not disclose a House v King error (at [25]).
3.…
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CaseChat Overview and Summary
The court was required to determine whether the magistrate erred in exercising her discretion by failing to give adequate weight to relevant considerations. Specifically, the court had to assess whether the magistrate failed to consider the appellant's cooperation with the police, his lack of criminal antecedents, and the impact of a conviction on his life. Additionally, the court had to decide if the magistrate should have considered factors that were not raised before her, such as the potential loss of his firearms licence and difficulties with insurance and finance.
The court found that the magistrate did not err in exercising her discretion. The court noted that it is in the nature of a discretion that different judges will evaluate relevant considerations in different ways. Therefore, the fact that the magistrate did not give sufficient weight to the appellant's cooperation, lack of antecedents, and references does not constitute an error. Moreover, the court held that the matters not put to the magistrate were not factors that must result in the conclusion that a failure to proceed without recording a conviction constitutes error. The court was satisfied that the magistrate had considered the impact of a conviction on the appellant, and there was no evidence to support the appellant's claims regarding the loss of his firearms licence or difficulties with insurance and finance.
The court concluded that the exercise of the discretion did not miscarry and dismissed the appeal. The court emphasized that the question was not whether it would have exercised the discretion differently, but whether the exercise of the discretion was infected by House v The King error, which it was not. The court held that the magistrate had properly exercised her discretion, and there was no basis for interfering with her decision.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Mr Withers, counsel for the respondent, submits that there was no error made by the magistrate in the exercise of her discretion in declining to proceed without recording a conviction. Consideration I am not satisfied that the magistrate erred in the exercise of the discretion in recording these convictions. First, it is important to recognise that a failure to give adequate weight to a relevant consideration does not disclose error.[15] It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways. Accordingly, submissions that the magistrate erred in not giving sufficient weight to the fact the appellant had initiated contact with police and cooperated in the investigation, or to the appellant’s lack of antecedents, or to the references tendered on his behalf, or to the impact a criminal conviction would have, do not disclose a House v King error. In any event, I am satisfied that the magistrate did not overlook the fact that the appellant had promptly reported the offending to the police. She said so in her sentencing remarks.[16] In any event, this was no more than the appellant’s lawful obligation pursuant to s 25 of the Firearms Act. Further, the magistrate plainly had regard to the appellant’s lack of antecedents and to the references tendered on his behalf.[17] I also consider the magistrate had regard to the impact a conviction would have on the appellant. The only submission put to the magistrate on this topic was a submission that a conviction may affect his ability to travel overseas. However, as is clear from the appellant’s affidavit of 1 April 2016, in response to this submission the magistrate indicated she did not think a conviction would have any bearing on a passport being issued to the appellant. In any event, there was no evidence before the magistrate on this topic and, as Doyle CJ observed in Schmidt v Police,[18] even if the recording of a conviction might mean the appellant is not able to travel to certain countries, it is not of great significance. In this case there was no evidence before the magistrate the appellant had plans for international travel or any intention to do so. [15] R v Lutze [2014] SASCFC 134 at [47], (2014) 121 SASR 144 at 154. [16] Sentencing Remarks [11]. [17] Sentencing Remarks [10], [14], [15].[18] [2005] SASC 482 at [28]. Second, I do not consider the matters put on appeal but not put to the magistrate are factors that must result in the conclusion that a failure to proceed without recording a conviction constitutes error in the exercise of the sentencing discretion. I do not accept the submission that a conviction could result in the loss of his firearms licence or could influence the attitude of the Registrar of Firearms. The power of the Registrar to cancel a firearms licence is enlivened where the Registrar is satisfied, inter alia, that the licence holder has contravened a provision of the Firearms Act or a condition of a firearms licence.[19] It does not depend upon a conviction being recorded. There was no evidence before the court that a conviction would cause difficulty with applications for insurance and finance, or in obtaining company directorships. While a conviction might damage the appellant’s reputation within his community, it might not. In any event, that is a consequence of the contraventions of his lawful duties. The need for general deterrence will frequently result in some reputational damage. That can be an unfortunate consequence but it was not necessarily a sufficient basis upon which a court must exercise its discretion to proceed without recording a conviction. [19] Firearms Act 1977 (SA) s 20(1)(a).