Goldsworthy v Police
[2016] SASC 85
•10 June 2016
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. The exercise of the power conferred pursuant to s 16 Criminal Law (Sentencing) Act 1988 (SA) is an exception to the rule that ordinarily a conviction will be recorded. The discretion conferred pursuant to s 16 Criminal Law (Sentencing) Act 1988 (SA) is to be used sparingly, taking into account the importance of deterrence in regulatory offences such as these (at [27]).
4. The magistrate did not err in applying the correct test. The magistrate did not expressly refer to the statutory test in s 16 Criminal Law (Sentencing) Act 1988 (SA) of whether good reason exists for not recording a conviction. Nonetheless, it was plain from her remarks that she was applying the provisions of s 16 Criminal Law (Sentencing) Act 1988 (SA) (at [28]).
5. The magistrate did not err in the exercise of the discretion in recording the convictions (at [29]).
6. Appeal dismissed (at [32]).
Firearms Act 1977 (SA) s 21, s 25. s 20(1)(a); Firearms Regulations 2008 (SA) reg 41(1), reg 61; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 10(2)(e), referred to.
R v Jongewaard [2009] SASC 346; House v The King (1936) 55 CLR 499; Singh v Police [2013] SASC 155; R v Kreutzer (2013) 118 SASR 211; R v Stubberfield (2010) 106 SASR 91; Brookes v Police [2014] SASC 22; R v Lutze (2014) 121 SASR 144; Schmidt v Police [2005] SASC 482; Sims v Police [2000] SASC 102; Piva v Brinkworth (1992) 59 SASR 92; Golubovic v Police [2014] SASC 79; Lloyd-Groocock v Police (2008) 102 SASR 465; Pollitt v Police [2007] SASC 382; Johnson v Registrar of Firearms (2001) 79 SASR 353; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Jaworski v Police [2009] SASC 284; Offe v Police (2002) 84 SASR 1; R v Stubberfield (2010) 106 SASR 91, considered.
GOLDSWORTHY v POLICE
[2016] SASC 85Magistrates Appeal
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant in this matter 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) (the Regulations).
A magistrate recorded convictions for each offence and imposed one fine of $600 for both offences. In addition the appellant was required to pay court costs, prosecution costs and victims of crime levies.
There are six grounds of appeal. They are:
1.The learned magistrate erred in declining to deal with the matter without recording a conviction on either count.
2.The learned magistrate erred in not giving sufficient weight to the fact that the appellant had initiated contact with police in a timely manner and cooperated with the police investigation.
3.The learned magistrate erred in not giving sufficient weight to the appellant’s lack of antecedents.
4.The learned magistrate erred in not giving sufficient weight to the references tendered on behalf of the appellant.
5.The learned magistrate erred in not giving sufficient weight to the impact that a criminal conviction would have on the appellant.
6.That having regard to grounds 2 to 5, the learned magistrate erred in recording convictions.
In short, the appeal is from the magistrate’s decision to record convictions for both offences. This is the only ground of appeal. Given the lenience of the penalty imposed by the magistrate, this is unsurprising.
Circumstances of offending
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 understood that he had a responsibility to remove the firearm and ammunition from the motor vehicle and to secure them in accordance with the provisions of the Firearms Act and the Regulations made thereunder.
In her sentencing remarks the magistrate accepted that the circumstances of the offending arose from a lapse of judgment, oversight and forgetfulness on the part of the appellant at the end of a very busy day.[1] Mr Vadasz, counsel for the appellant, submits that the magistrate was wrong to characterise the reason for the offending as a lapse of judgment. He submits that the appellant merely overlooked the fact that the firearm and ammunition were in the vehicle when he permitted the young man to take it. I do not accept that submission. In my view the material before the court permitted the magistrate to conclude that there was an error of judgment in leaving the firearm and the ammunition in the vehicle. In his affidavit sworn 1 April 2016 the appellant says that when he arrived home he locked the ute with the ammunition locked away in the glove box. It was an error of judgment to leave the ammunition and the firearm in the vehicle even though the vehicle was locked. Further, it was, as the magistrate found, an error of judgment to give the car to somebody who then did the wrong thing resulting in the firearm now circulating in the community.[2] In any event, even if the magistrate was wrong in characterising the appellant’s conduct as involving an error of judgment, as opposed to mere oversight, I do not consider that materially alters the nature of the contravention. The magistrate was not concerned with conduct that involved the deliberate or reckless flouting of the appellant’s statutory obligations. The offending was of a lesser character and the magistrate characterised the offending as being at the lower end of the scale.
[1] Sentencing remarks [9].
[2] Sentencing remarks [16].
Personal circumstances of the appellant
The appellant was 53 years of age at the time of the offending. He is a farmer and businessman who conducts a service station at Lucindale. He had no prior criminal history. He is a well regarded and respected member of his local community. Before the magistrate a dozen testimonials to the appellant’s good character were tendered. The magistrate found the appellant is a person who contributes to the community and helps other family members who are in need of support.
There was evidence before the magistrate that the appellant is a person who is careful in complying with his obligations pursuant to the laws relating to firearms.
The magistrate found that the offending was out of character.
Sentencing remarks
The magistrate commenced her sentencing remarks by observing that by reason of the early guilty plea the appellant was entitled to a 40 per cent reduction in penalty. She observed that the maximum penalties for the Firearms Act offence is a fine of $5,000 and a term of imprisonment of up to one year, and the maximum penalty for the Regulations offence is a small fine. The magistrate referred to the circumstances of the offending and the appellant’s personal circumstances. The magistrate declined to order forfeiture of other firearms owned by the appellant or to order the disqualification of his firearms licence. She noted that the offending only came to light because the appellant reported the matter to the police. She accepted that this occurred promptly. She then turned to the question of whether a conviction should be recorded. She said:[3]
The final issue that I have to deal with is the submission that I should deal with the matter without recording a conviction. These are regulatory offences. Generally speaking convictions are recorded because with regulatory offences, the recording of convictions is part of enforcing a regulatory scheme that relates to public safety.
I do nevertheless have a discretion to deal with the matter without recording a conviction. You qualify for consideration of the exercise of that discretion because I am satisfied that you are unlikely to do this again. I am satisfied that your prior good history qualifies you for that as well. The question then becomes should I exercise my discretion in that way.
Mr Bersee has put a powerful submission to me that I should because you did report the matter to police, you should be encouraged to do that, you have not got any prior history and your lapse or your forgetfulness puts the offending at the lower end of the scale.
Whilst I accept that that is so, leaving a firearm in a vehicle is in my view a particularly serious matter. The possibility that it can fall into the wrong hands when it is left in a vehicle at a property is much higher than when it is, for instance, inside your house. As I have already commented, that lapse in judgment meant that you gave the car to somebody who then did the wrong thing and that firearm is then circulating out in the community. In my mind, deterrence and encouragement to any person that has a firearm to make sure that their habits are such that firearms are not left in cars requires the imposition of a conviction and so I do not accept the submission that a conviction should not be recorded.
[3] Sentencing remarks [13] – [16].
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[4] where Doyle CJ said:[5]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as “manifest inadequacy”.
[4] [2009] SASC 346, (2009) 266 LSJS 283.
[5] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288 – 289.
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[6] does the appeal court have the power to quash the sentence passed below.[7] As was said in R v Kreutzer[8] by Kourakis CJ,[9]if the error identified by the court is manifest excess or inadequacy (an outcome error), the court will fix the sentence it thinks ought to have been imposed. If the error identified by the court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
Section 16 of the Criminal Law (Sentencing) Act 1988 (SA)
[6] [1936] HCA 40, (1936) 55 CLR 499 at 504 - 505.
[7] Singh v Police [2013] SASC 155 at [33].
[8] [2013] SASCFC 130, (2013) 118 SASR 211.
[9] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215.
It is apparent from the sentencing remarks that the magistrate considered the application of s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) in determining whether to record a conviction. Section 16 provides:
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 opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(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.
In R v Stubberfield[10] the Court of Criminal Appeal, in a joint judgment of Gray, Sulan and David JJ, said:[11]
The exercise of the s 16 discretion is enlivened if the court is satisfied of a number of preconditions. First, the court must propose to impose a fine, a sentence of community service, or both. Secondly, it must be satisfied that the defendant is unlikely to commit such an offence again. Thirdly, the court must be satisfied that there is good reason not to record a conviction, having regard to one or more of the factors set out in s 16(b). These factors are the character, antecedents, age or physical or mental condition of the defendant, the fact that the offence was trifling or any other extenuating circumstances.
If those preconditions are satisfied, the discretion is enlivened; however, that discretion is not necessarily required to be exercised. The court must consider whether, notwithstanding the satisfaction of those preconditions, it is, in all the circumstances, appropriate to exercise the discretion.
[10] [2010] SASC 9, (2010) 106 SASR 91.
[11] [2010] SASC 9 at [40] – [41], (2010) 106 SASR 91 at 101 – 102.
The operation of s 16 was considered in Brookes v Police[12] where Nicholson J said:[13]
The considerations falling within s16(a) and (b) are in the nature of factual findings (apart from the matter in (b)(ii) which is a question of mixed fact and law). Discretionary considerations do not arise at this stage. Importantly, when considering a challenge to any such findings, an appellate court is not constrained by the usual approach to be taken when reviewing a discretionary determination, as explained in House v R.[14] A discretionary determination (and, on appeal, House v R considerations) arises when the decision maker is deciding whether “good reason” exists for not recording a conviction, after first having made such findings that are available and fall within s16(a) and (b).
[12] [2014] SASC 22.
[13] [2014] SASC 22 at [9].
[14] (1936) 55 CLR 499 at 504 - 505.
In this case the magistrate found as a matter of fact that the appellant was unlikely to commit such an offence again and his antecedents were such that the discretion was enlivened. Once the prescribed preconditions were satisfied, whether a conviction was to be recorded or not involved a discretionary judgment. The Court will only interfere with that judgment if an error of the House v The King kind has occurred.
Submissions on appeal
Mr Vadasz submits that the magistrate erred in the exercise of her discretion when deciding whether or not to proceed without conviction. He submits that the magistrate erred in not applying the correct test and her failure to find that good reason existed not to convict demonstrates that the exercise of her discretion miscarried. He submits that good reason existed not to convict because of a risk that a conviction may cause the appellant difficulties in obtaining a visa to enter other countries, restrict his capacity for overseas travel, result in the loss of his firearms licence, and cause difficulty with applications for insurance and finance, difficulties in obtaining company directorships, and damage to his reputation and character within small rural communities.
He submits that the magistrate placed too great an emphasis on the seriousness of the matter and on the need to deter the owners of firearms from leaving them in cars. Finally, he submits that the exercise of the discretion miscarried because the magistrate failed to ask herself the ultimate question which is whether or not good reason existed for not recording a conviction.
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).
Third, the exercise of the power conferred pursuant to s 16 is an exception to the rule that ordinarily a conviction will be recorded.[20] The discretion conferred pursuant to s 16 is to be used sparingly, taking into account the importance of deterrence in regulatory offences such as these.[21] Whether good reasons exist for recording a conviction or not involves a balancing exercise which requires weighing the beneficial nature to the individual of the order to proceed without conviction against the public interest in convictions being recorded.[22] The imposition of a penalty for regulatory offences without imposing a conviction will be uncommon, even where factors personal to a defendant are favourable.[23] This is particularly so for regulatory offences of this kind. The overriding policy of the Firearms Act is to protect the public from the unsafe or criminal use of firearms.[24] The Firearms Act and the regulations made thereunder impose a responsibility on those who possess firearms to ensure they are kept secure. This ensures that firearms are not easily accessible so as to avoid tragic consequences which may result from the misuse of them.[25] This Court has previously held that the community must not be complacent about the dangers of firearms and the damage that can be caused when they are not kept in accordance with legislative requirements.[26] Section 10(2)(e) of the Sentencing Act provides that in determining a sentence for an offence involving a firearm, a court must give proper effect to the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence. The recording of a conviction is an important factor in effecting general deterrence.
[20] Sims v Police [2000] SASC 102 at [7].
[21] Piva v Brinkworth (1992) 59 SASR 92 at 96.
[22] Golubovic v Police [2014] SASC 79 at [12].
[23] Lloyd-Groocock v Police [2008] SASC 313 at [59] – [60], (2008) 102 SASR 465 at 476.
[24] Pollitt v Police [2007] SASC 382 at [20]; Johnson v Registrar of Firearms [2001] SASC 51 at [16], (2001) 79 SASR 353 at 357; Registrar of Firearms v Gitsham [2002] SASC 301 at [23], (2002) 84 SASR 72 at 76.
[25] Jaworski v Police [2009] SASC 284 at [22].
[26] Offe v Police [2002] SASC 259 at [26], (2002) 84 SASR 1 at 9.
Fourth, I do not accept that the magistrate erred in not applying the correct test. The magistrate did not expressly refer to the statutory test in s 16 of whether good reason exists for not recording a conviction. Nonetheless, it was plain from her remarks that she was applying the provisions of s 16. The fact that she did not refer specifically to the text of s 16 does not mean that she did not direct her mind to it. Her approach to deciding the question of whether to record a conviction or not satisfies me that she was alert to the question of whether good reason existed not to record a conviction. Further, I am satisfied that the magistrate undertook the balancing exercise required. It is plain from her remarks that she considered the matters beneficial to the appellant, namely, his self reporting to police, the lack of any prior history and that the offending was the result of a lapse in judgment and forgetfulness, against the public interest in convictions being recorded for the purposes of general deterrence for contraventions of regulatory offences. In doing so she concluded that the offending was at the lower end of the scale. It is important to recognise that the appellant’s good character, his lack of antecedents and the finding that he is unlikely to commit such an offence again, are no more than conditions precedent to the exercise of the discretion. They do not give the appellant a right to have the discretion exercised in his favour.
Fifth, I reject the submission that the exercise of the magistrate’s discretion miscarried because she took the view that the offending was too serious to justify proceeding without recording a conviction. While this Court has made clear that it is open to exercise the discretion to proceed without a conviction even in cases of quite serious offending,[27] the magistrate did not reason in that way. As her remarks demonstrate, she considered that leaving a firearm in a vehicle is a particularly serious matter, but she did not reason that that meant a favourable exercise of the discretion was precluded. Rather, she considered that the necessity for general deterrence for a firearms offence did not justify departing from the usual practice that the commission of a regulatory offence will be dealt with by the recording of a conviction. I do not consider that there has been any error demonstrated in the manner of the magistrate’s exercise of her discretion.
[27] R v Stubberfield [2010] SASC 9 at [47], (2010) 106 SASR 91 at 103.
In that context, I do not consider there is any contradiction or inconsistency in the magistrate’s view that, on the one hand, the appellant’s offending was at the lower end of the scale, and her observation that leaving a firearm in a vehicle is a particularly serious matter. These are not irreconcilable propositions. On the one hand, objectively speaking, leaving a firearm in a vehicle in the way that occurred here is a particularly serious matter. On the other hand, the subjective circumstances in which this occurred put the offending at the lower end of the scale. The offending was not deliberate or reckless.
The exercise of the discretion did not miscarry. While it was open to the magistrate to have exercised the discretion in favour of the appellant, she was not bound to do so. The question is not whether I would have exercised the discretion differently but whether the exercise of the discretion was infected by House v The King error. For the above reasons, it was not.
Conclusion
I would dismiss the appeal.
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