Golubovic v Police - [2014] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GOLUBOVIC v POLICE
[2014] SASC 79
Judgment of The Honourable Justice Kelly
25 June 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
Appeal against sentence. The appellant pleaded guilty to possession of an unlicensed Class H firearm, possession of an unregistered firearm, failure to secure that firearm in accordance with the Firearms Regulations 2008 (SA), and possession of a prohibited weapon, namely a dagger. The sentencing Magistrate recorded convictions on all four counts and the appellant was required to enter into a $200 good behaviour bond of two years. His Honour also ordered the forfeiture of the firearm, dagger and nunchakus (charges of which were withdrawn), and disqualified the appellant from holding a firearms licence.
Whether the sentence is manifestly excessive. Whether the Magistrate failed to give sufficient weight to the personal circumstances of the appellant. Whether the Magistrate failed to give sufficient weight to the factual circumstances of the offending. Whether the Magistrate erred in recording a conviction.
Held (dismissing the appeal):
(1) The Magistrate gave sufficient weight to the personal circumstances of the appellant and the circumstances of the offending.
(2) The Magistrate did not err in recording a conviction, having regard to the requirement for general and personal deterrence and the purposes of recording convictions.
(3) Application for extension of time refused.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10(2)(e); Criminal Law Consolidation Act 1935 (SA) s 299A; Firearms Act 1977 (SA) s 11, s 23, s 34A(2)(e); Firearms Regulations 2008 (SA) reg 38(2); Summary Offences Act 1953 (SA) s 15C(1c)(b), referred to.
R v McGaffin (2010) 206 A Crim R 188; R v Briese (1997) 92 A Crim R 75; Rohrlach v Police [2014] SASC 25; Jaworski v Police [2009] SASC 284; Offe v Police (2008) 84 SASR 1, discussed.

GOLUBOVIC v POLICE
[2014] SASC 79
Magistrates Appeal: Criminal
KELLY J.
Introduction

Adam Golubovic appeals against sentence imposed in the Adelaide Magistrates Court on 11 December 2013. The appellant was charged on Information containing nine counts arising from a police search of his premises on 12 July 2012. During that search, police located an imitation firearm atop a cupboard in the appellant’s bedroom. Police also located a dagger and a number of nunchakus.
On 8 November 2013, the date of answer charge, the appellant pleaded guilty to counts 1, 2, 3 and 9. On that date the Crown withdrew counts 4 to 8 inclusive, which involved the nunchakus located by police. The appellant pleaded guilty to three offences involving the Class H imitation firearm, namely possession without a licence contrary to s 11 of the Firearms Act 1977 (SA) (“the Firearms Act”), possession of an unregistered firearm contrary to s 23 of the Firearms Act, and failure to secure a firearm in accordance with reg 38(2) of the Firearms Regulations 2008 (SA) (“the Regulations”). Regulation 38 of the Regulations required that the firearm be stored in a locked cabinet bolted to the wall. The appellant also pleaded guilty to the charge of possession of a prohibited weapon, namely a dagger, contrary to s 15C(1c)(b) of the Summary Offences Act 1953 (SA) (“the Summary Offences Act”).
The sentencing Magistrate imposed a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). The appellant was convicted on all four counts and required to enter into a $200 good behaviour bond of two years pursuant to s 39 of the Sentencing Act. His Honour also ordered the forfeiture of the firearm, dagger and nunchakus pursuant to s 299A of the Criminal Law Consolidation Act 1935 (SA) and disqualified the appellant from holding a firearms licence pursuant to s 34A(2)(e) of the Firearms Act.
The maximum penalty for each possession offence is a fine of up to $10,000 or imprisonment of up to two years. The maximum penalty for failing to secure a firearm in accordance with the Regulations is a fine of $2,500.
The appellant appeals on the grounds that the sentence is manifestly excessive in that the Magistrate failed to give sufficient weight to the personal circumstances of the appellant, failed to give sufficient weight to the factual circumstances of the offending, and erred in recording a conviction.
The appellant seeks an order that he be re-sentenced. Because the notice of appeal was filed 10 days out of time, the appellant also seeks permission to extend the time for lodging the appeal to 10 January 2014.
The Magistrate’s Reasons
At the time of sentencing, the Magistrate considered the factual circumstances of the offending. It is convenient to set out his remarks:
As I say counsel pitched their submissions for there to be no conviction recorded. Much was made of the factual circumstances. I am told he was initially given the firearm in question in pieces and he put it together himself. I have had a look at the photographs and can see that in some respects it was held together by a red plastic band. He was given it approximately ten years ago, seemingly because he had an interest in such items. He became aware of a change in the legislation and I am told – and have no reason not to accept – that what he then did was become concerned about that legislation and made arrangements to pass the firearm over to a friend for safekeeping because that friend was able to store it securely and appropriately as far as the legislation and regulations were concerned. At one point he needed to transfer it to yet another friend because the first friend was no longer able to keep control of the item and again the second friend was able to secure it and store it appropriately. That friend then became no longer able to do that and he re-took possession of the firearm early in 2012, in approximately April or May. At least part of his thinking in that regard, I am told, was he intended to hand it into police during an amnesty that was due to be held between August 2012 and October 2012. So the thrust of the submission was that whilst certainly it was not being stored or secured in accordance with the legislation and regulations, that his ‘illegal’ possession of it was relatively short lived. I was told it would normally be kept in a locked cupboard but of course it was not in that locked cupboard but simply sitting on top of that cupboard at the time police attended. Counsel made much of the fact that it was an imitation firearm only.
Turning to the personal circumstances of the appellant, the Magistrate noted that the appellant did not have any relevant previous offending history particularly nothing related to firearms. The Magistrate further observed:
The defendant’s personal circumstances are such that he is a 32 year old man. He is currently employed – and I accept that he is employed in a responsible and difficult position at the Queen Elizabeth Hospital in a security capacity. He is the holder of a current security licence and at times he is subject to difficult situations at work. There has been no suggestion of any previous difficulties on his part in that regard. I accept that he is hard-working and he finds the work from time to time somewhat stressful.
… much was made of the fact that if he does have a conviction recorded against his name, then his security licence and therefore his current employment is at risk.
Having previously noted in general terms the policies underpinning the Firearms Act and the need for both general and personal deterrence in relation to firearms related offending the Magistrate concluded that a conviction should be recorded:
When I balance the matters that I am required to do so, I am firmly of the view that public interest in relation to matters such as this is such that a conviction is appropriate in the circumstances. I note everything counsel has said regarding the matter and I note the potential impact on the defendant but this remains serious offending and Parliament has recognised that. The defendant was well aware of his obligations and was prepared to take re-possession of the firearm and have it in the position it was when it was discovered by the police. I repeat, when I balance all of the matters I am still firmly of the view that public interest requires that a conviction be recorded.
The Appeal
The appellant submitted that the sentence imposed was manifestly excessive. The appellant did not point to any specific error said to have been made by the Magistrate however he contended that in light of the unusual circumstances of the offending, the personal circumstances of the appellant and the likely impact of a conviction on the appellant’s livelihood, the exercise of the discretion not to record a conviction miscarried.
Section 39 of the Sentencing Act permits a sentencing court, if it thinks there is “good reason” for doing so, to discharge a defendant with or without recording a conviction, upon the defendant entering into a bond. Section 39 provides:
39—Discharge without sentence on defendant entering into bond
(1)     Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)to be of good behaviour; and
(ab)to comply with the other conditions (if any) included in the bond; and
(b)if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)   However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)     Where a defendant is discharged under this section—
(a)no fresh prosecution may be commenced in respect of the offence; and
(b)the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
The question of whether good reasons exist for recording a conviction or not is always one of weighing the beneficial nature of the order to proceed without a conviction against the public interest inherent in convictions being recorded. White J, in R v McGaffin[1] outlined the purposes of recording a conviction in the context of s 39 of the Sentencing Act. He said:[2]
The recording of a conviction serves many purposes. First and foremost, it is the formal record of the adjudication of the offender's guilt, and thus comprises a formal and public declaration that the person engaged in the charged criminal conduct. As such it forms part of the community's denunciation and censure of the conduct and the community is entitled to expect, as the words of s 39 of the CLSA indicate that, unless there is good reason not to do so, convictions will be recorded. Secondly, the prospect that a conviction will be recorded forms part of the deterrent effect of a sentence. This is because the recording of a conviction can have a significant deleterious effect on an offender, and can act as a form of continual punishment.
As was pointed out by Sulan J in R v Lambert, after referring to the Queensland Court of Appeal decision in R v Briese, there are many employers and organisations in the community who refer to criminal records, whether to satisfy themselves of the absence of such a record, or as to the nature and extent of the record in a particular case. A requirement for a so-called “Police Check” is now commonplace, in particular for those who work with children, or who are involved in community activities involving children. As I understand it, a “Police Check” involves a certification by the police of a person's criminal record.
In general, the more serious the offence the less likely it is that a court will be able to find good reason not to record a conviction.
[footnotes omitted]
[1] (2010) 206 A Crim R 188.
[2] R v McGaffin (2010) 206 A Crim R 188 at [81]-[83].
The Queensland Court of Appeal in R v Briese[3] considered the benefits derived from an order not to record a conviction:[4]
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation …
...
The express mention … of the nature of the offence as a factor to which the court must have regard in the exercise of the discretion whether or not to record a conviction suggests that there are certain types of offences which will call for the recoding of a conviction … A court will be more easily persuaded against the recording of a conviction where there are no prior convictions or a very minor history and where the offence in question is a so called ‘victimless’ crime.
[3] (1997) 92 A Crim R 75.
[4] R v Briese (1997) 92 A Crim R 75 at 79-81
With these principles in mind I turn now to consider the circumstances of the appellant and the offending itself. Section 10 of the Sentencing Act required the Magistrate to consider, inter alia, the personal circumstances of the offending and the circumstances of the offender.
Viewed in isolation the personal circumstances of the appellant were such that the court might have been persuaded against recording a conviction. The appellant has no prior convictions, a minor history involving no related firearms offences, and his offending was victimless. However, as this was a firearms offence, the Magistrate was required to 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.[5]
[5] Criminal Law (Sentencing) Act 1988 (SA) s 10(2)(e).
Counsel for the appellant appropriately conceded at the hearing that any offence in contravention of the Firearms legislation is to be viewed seriously by the courts. On this point, Sulan J’s remarks in Jaworski v Police[6] are pertinent:[7]
Breaches of the Act are serious breaches of the law. The Act imposes a regime which requires strict compliance. The regime of the Act is to ensure that there are adequate safeguards for the safety of the public when persons are in possession of and store firearms.
[footnote omitted]
[6] [2009] SASC 284.
[7] Jaworski v Police [2009] SASC 284 at [18].
However, counsel submitted that the species of offending in this case was at the lowest end of the scale.
The firearm was a full sized metallic imitation of a Colt .45 model 1911 semi-automatic pistol. It was not designed or modified to fire any form of live or blank ammunition. Though it was not equipped with a firing pin, extractor, ejector or breech face, and was held together by a red plastic band, it nevertheless imitated the loading and firing mechanism of a real firearm.
An imitation firearm of this nature is an intrinsically less dangerous weapon than those the subject of offending in cases such as Rohrlach v Police[8] and Jaworski v Police.[9] I accept the submission that this placed the offending in the lower range of seriousness for an offence of this type.
[8] [2014] SASC 25.
[9] [2009] SASC 284
Nonetheless, Parliament has intended that imitation weapons be treated as firearms,[10] and, as such they are subject to the strict regime of the Firearms Act and to the paramountcy of considerations of general and personal deterrence placed in the Sentencing Act.
[10] Firearms Act 1977 (SA) s 5(1); Firearms Regulations 2008 (SA) reg 5(2).
The overriding policy of the Firearms Act is to protect the public from unsafe or criminal use of firearms. As Gray J noted in Offe v Police[11] weapons such as unsecured firearms are frequently targeted by thieves. There were other factors which the Magistrate was required to and did balance as against the factors which militated against recording a conviction. It seems not to have been in dispute that the appellant retook possession of the firearm in circumstances where he knew full well what his legal obligations were with regard to it. His explanation for leaving the firearm on top of a cupboard in a granny flat at the residence of his elderly mother’s home was not convincing, especially in light of his occupation and awareness of his obligations. The fact that the police also located a dagger which was the subject of one of the counts to which the appellant pleaded guilty was also a relevant matter which the Magistrate was entitled to take into account.
[11] (2002) 84 SASR 1.
The impact on the livelihood of the appellant if a conviction was recorded was a matter the Magistrate took into account. It was an issue which concerned his Honour, however he ultimately concluded that the public interest nevertheless required that a conviction be recorded.
All of these matters formed part of the relevant background against which the Magistrate sentenced the appellant. Some of these factors pointed to not recording a conviction, others did not.
In the end the appellant’s argument on appeal really amounted to a submission that the Magistrate did not have any discretion in these particular circumstances, as he should have found good reason to not record a conviction. I do not accept that submission. It is evident that the Magistrate carefully considered all of the factors militating towards and against not recording a conviction and came down firmly in favour of the public interest requiring a conviction. Given all of the factual circumstances here and the scheme of the legislation, I do not consider that the Magistrate did over emphasise the issue of general deterrence and public interest.
The offending was not minor offending. Not only did the appellant fail to licence the firearm, but he exhibited a disregard for his obligation, of which he was fully aware, to store the weapon as required under the Act.
For these reasons I am not satisfied that this is a case in which no conviction should be recorded. The Magistrate reached the same conclusion in the exercise of the discretion which was available to him.
Conclusion
As I have concluded that there is no substance in any of the complaints made by the appellant, I refuse the appellant’s application for an extension of time within which to file the notice of appeal. The appeal is dismissed.