Horsman v Bishop - [2000] WASCA 316

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: HORSMAN -v- BISHOP [2000] WASCA 316

CORAM: MURRAY J

HEARD: 31 JULY 2000

DELIVERED : 23 OCTOBER 2000

FILE NO/S: SJA 1174 of 1999
SJA 1176 of 1999

BETWEEN: BARRY STANLEY HORSMAN
Appellant
AND
CRAIG LESLIE BISHOP
Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction in Court of Petty Sessions after plea of guilty - Criteria for allowing appeal and change of plea

Firearms - "Restriction, limitation or condition", to which licence subject - Ambit of power to order forfeiture of firearms - Nature of power to disqualify from holding a firearms licence.

Legislation:

Firearms Act 1973 (WA) s 21(2) s 28

Sentencing Act 1995 (WA) s 106

Result:

Appeal SJA 1176 of 1999 allowed in part
Both appeals otherwise dismissed

Representation:

Counsel:

Appellant: Mr R K Williamson
Respondent: Mr D J Matthews

Solicitors:

Appellant: Williamson & Co
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Coumbe v Whittaker [1999] WASCA 151
Gaythwaite v Clarkson, unreported; SCt of WA; (Heenan J); Library No 970109; 21 March 1997
Maxwell v The Queen (1996) 184 CLR 501
Stackhouse v Curulli, unreported; SCt of WA; (Owen J); Library No 920251; 30 April 1992
Stevens v Viskovich, unreported; SCt of WA; (Parker J); Library No 960596; 26 September 1996
Tihanyi v The Queen (1999) 21 WAR 377

Case(s) also cited:

Duffield v The Queen, unreported; SCt of WA; Library No 950065; 14 February 1995
Eyre v The Queen, unreported; SCt of WA; Library No 930149; 18 March 1993
Liberti v R (1991) 55 A Crim R 120
Meissner v R (1994-95) 184 CLR 132
Nobes v The Queen, unreported; SCt of WA; Library No 960486; 26 August 1996
R v Murphy [1965] VR 187
Slater v Marshall [1965] WAR 222

MURRAY J: These appeals are brought by leave. They were ordered to be consolidated and heard together.
The first appeal relates to a charge under the Firearms Act 1973 (WA), s 21(2) that on 29 May 1999 at Kalgoorlie, the appellant was in possession of a revolver in respect of which he held a firearms licence endorsed with a condition that he should maintain a current gun club membership and that the revolver be used for approved club activity. It was alleged that he breached that condition in that he was not a current gun club member. It is accepted that the complaint charged an offence against s 21(2) committed by a person:
"…who commits a breach of, or fails to observe, a restriction, limitation or condition to which a licence, permit or approval issued or granted under this Act was made subject, and who is a person who ought reasonably to have known of the existence of that restriction, limitation or condition…."
A person who offends in that way is liable to imprisonment for 12 months or a fine of $4,000. On 2 July 1999 the appellant pleaded guilty to this offence, was convicted, fined $150 and orders were made for the "forfeiture and destruction of the revolver" and that the appellant's firearm licence be "revoked".
The second appeal relates to a further charge under s 23(9)(d)(i) of the Firearms Act that between 1 and 31 May 1999 at York, the appellant "being responsible for the storage of firearms, failed to provide and use adequate storage facilities to ensure their safety." The complaint repeats the words in which the offence is defined in the subsection. The maximum penalty prescribed is a fine of $1,000. Again, on 2 July 1999, the appellant pleaded guilty, was fined $100 and an order was made for the "forfeiture and destruction of the firearms."
There is in each case an appeal against conviction on the ground that the plea of guilty entered was not a reasoned choice of the appellant and there is a triable issue which has not been tried. It is contended that the appellant did not have proper legal advice when he pleaded guilty, which he did in the belief that by finally disposing of these charges, they could not be used "against him" in respect of the grant of bail in relation to another matter, and in the case of the offence concerned with the storage of firearms at York because he did not wish to involve a Mr Knight, a friend, in the matter any further.
Just as in the case of a court at first instance which is asked to permit a change of plea from one of guilty to one of not guilty, an appellate court will only allow an appeal against conviction after the entry of a plea of guilty in exceptional circumstances where it is seen to be necessary to prevent a miscarriage of justice. There is no closed list of circumstances which may be relevant to that question, but it will certainly be necessary to demonstrate that there is a triable issue masked by the plea of guilty and that there is some reason to suppose that the plea was not a true plea.
In Tihanyi v The Queen (1999) 21 WAR 377 in reasons with which Malcolm CJ and Parker J agreed, I adopted the statement of the law contained in the judgment of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501 at 510 ‑ 511 where their Honours said:
"An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial Judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the Judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.
The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial Judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty."
That seems to me, with respect, to provide a very adequate statement of the sort of circumstances which might persuade an appellate court that a miscarriage of justice has occurred sufficient to cause the court to quash the conviction, effectively setting aside the plea of guilty, and direct that the matter be remitted to the court at first instance so that the appellant might enter a plea of not guilty and proceed to have the charge against him or her tried out.
In considering whether a miscarriage of justice may have occurred in this case, it is necessary first to consider the chronology of relevant events concerned with the charges the subject of the appeals and other matters which were then before the Court of Petty Sessions in Kalgoorlie. The first charge is, as I have mentioned, concerned with the appellant's possession of a revolver in Kalgoorlie on 29 May 1999. At that time he was also charged with an offence of failing to give up a number of weapons pursuant to the terms of a violence restraining order which was then operative and with the breach of that order on 28 May 1999.
He first came before the court on 31 May 1999, upon which date the court had also to hear proceedings to confirm or discharge the violence restraining order which was then in interim form. The appellant was told by the Magistrate to take steps to have the weapons handed in to the police. This he did, apparently contacting his friend, Mr Knight, in whose possession the weapons were said to be, in York. The hearing of the proceedings in respect of the violence restraining order then took place and the learned Magistrate reserved his decision until 25 June 1999. The other charges were adjourned and bail was granted.
The second charge under the Firearms Act the subject of these appeals was laid on 24 June 1999, on which date the appellant was also charged with a further breach of the violence restraining order in respect of an alleged incident on 22 June 1999. Those matters came before the court on 25 June 1999 together with the earlier charges. The appellant sought an adjournment to obtain legal advice with respect to the most recent charges and a further adjournment of the other matters. That was granted, but because of the second allegation of breach of the violence restraining order, bail was refused and the appellant was remanded in custody.
The appellant said that this was the first time he had been in a prison, as opposed to a lockup, and he found the experience traumatic and degrading. Three days later, on 28 June, he made contact with his solicitor and asked her to get him out of prison as soon as possible. He deposes in an affidavit that the solicitor said, "We can bring it forward and the best way to handle it is to plead guilty to the charges". The appellant says he replied, "I just want to get out of here. Bring it on early and I will plead guilty."
The appellant deposes that his then solicitor told him that she could not advise him about the firearms charges. By that he means, I take it, that his solicitor expressly declined to advise him whether upon the facts as he understood them to be, it was appropriate to plead guilty, the appellant evidently understanding that if he did so, convictions and punishment would follow.
When the appellant appeared in court on 2 July 1999, he pleaded guilty to all the charges, including a number in respect of which there is no appeal, except one charge of breaching the violence restraining order, a charge which he says he thought would be simple to defend. So far as the matters the subject of these appeals are concerned, the appellant says that he thought that if they remained live and were not disposed of, they could be used against him on the question of bail in relation to the matter that he proposed to defend. As to the charge of the offence in relation to the storage of the firearms at York, the appellant adds that the firearms had been taken by him from Kalgoorlie to the property of his friend, Mr Knight, in York for the weapons to be kept there "for safe keeping". He adds in respect of his plea of guilty to that offence the additional reason that:
"I did not want to involve Mr Knight in the matter any further. He is a friend of mine and I thought that he might be charged with unlicensed possession of those firearms if I defended the charge."
The transcript of the proceedings on 2 July 1999 shows that when she announced her appearance, the solicitor then acting for the appellant advised that pleas of guilty would be entered to all matters that were before the court. However, as I have mentioned, when the complaint of one of the breaches of the violence restraining order was read, the appellant pleaded not guilty. The learned Magistrate questioned the plea and the appellant reiterated it. The appellant's solicitor is shown to have addressed him directly. She asked, "Sorry, which one did you plead not guilty to?" The Magistrate mentioned which charge it was. The solicitor appears again to have addressed the appellant directly saying, "And you are pleading not guilty?" The appellant said that was his intention but, "I'll plead guilty then." His solicitor responded, "No, no, that's up to you." and the appellant then confirmed a plea of not guilty.
In my opinion there is nothing in the material before this Court to suggest that the pleas should not be accepted as an admission of the elements of each offence. The complaints made are clearly of the two offences to which they refer and they set out with sufficient particularity the elements of those offences. They are not complex and there is nothing to show that the appellant did not understand the offences with which he was charged. The fact that his solicitor said she was unable to advise him about the firearms charges is not suggested to have resulted in any material misunderstanding of the nature of those charges.
The pleas were unequivocally made in circumstances where it was perfectly apparent that the appellant understood the effect of making the pleas. He exercised his free choice to make them, as he exercised his free choice to plead not guilty to one of the charges. It appears to have been made clear to the appellant in open court that the decision was his alone and there is every indication that he made it. There is no suggestion of duress or mistake and in my opinion, the fact that the appellant thought he would have better prospects of obtaining bail if there was only one matter which he proposed to defend does not detract from the validity of his choice to plead guilty to the offences the subject of these appeals. Nor, it seems to me, does the appellant's wish that his friend, Mr Knight, should be involved no further detract from the conclusion that the appellant's decision to plead guilty to that offence reflected a reasoned choice freely made. In my opinion, therefore, unless it appears cogently that on the accepted facts the appellant could not be guilty of these offences, so that a miscarriage of justice may be demonstrated in that way, I consider that the appellant should be bound by the pleas of guilty made.
The police prosecutor, in relation to the charge of breaching the conditions of the licence in respect of the revolver, told the court that the licence conditions included a requirement for current membership of a gun club and the use of the revolver within the club for approved club activity. However, the appellant, when the weapon was seized on 29 May 1999, was not a member of any gun club. He had originally been a member of the Geraldton Gun Club in 1997 for some time. He had not renewed his membership. These facts were not disputed. Counsel confirmed that when the licence was obtained the appellant was a member of the Geraldton Gun Club, but he did not receive a renewal notice and "simply just did nothing about it". Counsel told the court that the appellant had intended to join the Kalgoorlie Gun Club "but he just never got around to it".
The licence itself records in summary form a condition for the possession of the weapon which reads, "Approved club activity". The reason for the grant of the licence is given as "Club use". The licence was originally granted in 1994 and at that time the Superintendent of the Firearms Branch wrote the appellant a letter dated 27 October 1994 referring to the revolver and the notation on the licence that it authorised the possession of the weapon for approved club activities only. The letter advised that pursuant to the Act and regulations, the conditions of approval were as follows:
"(a)Possession of the firearm is conditional upon you remaining an active financial member of the Sporting Shooters' Association of Australia (WA), or the Midland Subterranean Firearms Association (Inc).
(b)The firearm may only be used on approved Pistol Club ranges.
(c)When not in use the firearm is to be kept under strict security both at your place of residence and on the range.
(d)Regular matches are to be attended as required by the Club and the said Association by‑laws.
(e)The firearm enumerated hereon is not to be carried or used for any other purpose, other than to convey it to and from an approved range or the premises of a licensed Firearm Repairer or Dealer.
(f)Termination of your active membership will require you to re‑qualify under Section 11 of the Firearms Act or dispose of the firearm forthwith."
The appellant argues that these are not restrictions, limitations or conditions under the Act, but are restrictions upon the conduct of the licensee which would not fall within the notion of a condition, restriction or limitation to which the licence was subject. The argument is put succinctly and clearly in the ground of appeal in the following terms:
"To require a firearms licence holder to 'remain an active financial member' of a club is not to 'restrict, limit or condition' the things that he or she may otherwise do as a result of holding the licence: such a stipulation does not relate to the possession, carriage or lawful use of the firearm concerned."
I cannot accept this argument. The terms of s 21(2) which I have quoted above are clear and by s 21(1) there is power for a licence to be subject to restrictions, limitations or conditions which are either to be specified in the licence or "specified in a supplementary document". That is the course which was taken in this case. This was a licence under the Act, s 16(1)(a). It was a Firearm Licence, "which entitles the holder to possess, carry, and lawfully use the firearm named and identified in that licence, and ammunition for that firearm". In my opinion each of the conditions restricted, limited or conditioned the circumstances in which possession of the revolver was lawfully permitted, the circumstances in which it might be carried by the appellant, and the circumstances in which it might be lawfully used by him. They were validly imposed and clearly breached. There is nothing to suggest that the agreed circumstances could not properly constitute the commission of the offence charged.
As to the other offence in relation to the weapons which were stored in York, that the appellant failed to provide and use adequate storage facilities to ensure the safety of the weapons, the prosecuting officer recounted the way in which it came to light that the vehicles were on Mr Knight's property in York, although originally, when interviewed, the appellant had said that they were with a man in Queensland somewhere.
It was said that during May 1999 the appellant went to Mr Knight's farm with the three firearms the subject of this charge. It was said that he put the firearms into the rear of a disused ambulance on the farm. He did not tell Mr Knight where the weapons were, but left the property. On 31 May the police in Kalgoorlie telephoned Mr Knight and told him that they had information that the firearms were at his property. Mr Knight searched the farm. After some time he found the firearms in the ambulance wrapped in cloth. He telephoned the police in Kalgoorlie and then took the firearms to the York Police Station.
In the plea in mitigation counsel informed the court that the appellant had placed the weapons in the possession of his friend because, being concerned that his wife might obtain the weapons, he thought he could not keep them safe in Kalgoorlie. It was his wife who had obtained the interim violence restraining order and the relationship was in a parlous state. Initially, he concealed the location from the police because he did not wish to implicate Mr Knight in the matter. It is clear that this person committed an offence against the Firearms Act, s 19(1)(c) if he was knowingly in possession of the weapons without being the holder of a licence or permit under the Act entitling him to do so.
Counsel told the court that the appellant had wished to obtain possession of the firearms and deliver them to the police himself, presumably to conceal the involvement of his friend. Since the weapons were recovered, Mr Knight was said to have told the appellant that the ambulance was locked and it was necessary for him to break a window to retrieve them. No more detail as to the relevant circumstances was provided to the court.
Although there is some variation between those accounts, there is none of a material kind affecting the question whether the accepted facts revealed that the appellant could not be guilty of the offence charged. Upon either version the account given to the court is quite different from that to which the appellant deposed in his affidavit seeking leave to appeal. He there said he took the firearms from Kalgoorlie to his friend's place in York "and put them in his secure gun safe." But even that account would provide him with no defence to the charge, although if true, it might affect the penalty which might properly be imposed.

As I have noted, under s 16(1)(a) a firearm licence is issued to entitle the holder to possess, carry and lawfully use the firearm named and identified in the licence and ammunition for it. By s 11(a) the Commissioner of Police must be provided with a genuine reason for acquiring or possessing the firearm before a licence will be issued. Once a person is licensed to possess a weapon, he becomes responsible for its storage, but as has been seen, he may not relinquish possession to another who is not the holder of a licence under the Act entitling that person to possess the weapon or ammunition. So possession must be maintained by the licence holder and "possession" is a term defined in s 4 to mean, in addition to actual physical possession of the firearm, "the custody or control of it, or having and exercising access to it in any place either alone or in common with others." The licence holder must therefore maintain possession, at least in the sense that he has the weapon in his custody or under his control, or where he may and does immediately have access to it.
Patently, if, for whatever reason and in whatever circumstances, the appellant relinquished possession even in that wider sense by placing a friend in unlawful possession of the weapon, he would breach the Act, s 23(9)(d)(i), if not by failing to provide adequate storage facilities to ensure the safety of the weapon, then by failing to use such facilities while keeping the weapon in his possession.
For those reasons the appeals against the convictions are both dismissed.
I have set out the penalties imposed. The fines were relatively low, but in each case there was an order for the forfeiture and destruction of the weapon or weapons concerned. The appeal against that order in each case complains that the learned Magistrate gave insufficient reasons for his decision to impose this order, or alternatively, had regard to an irrelevant consideration. It is not suggested that the order was not open to the court in each case. The operative order is for the forfeiture to the Crown of any firearm relating to the offence of which the person has been convicted: Firearms Act, s 28.
The learned Magistrate did give his reason for making the forfeiture orders, saying that in view of the circumstances of the case and in view of the fact that in 1994 the appellant had been convicted of possessing a prohibited firearm, his Worship thought that the appellant was not a suitable person to hold a firearm licence. Clearly by that his Worship meant to express the view that he thought the circumstances demonstrated that the appellant was not a fit person to be authorised to possess firearms. That is clearly a relevant consideration when contemplating the making of an order for forfeiture and in my opinion the reason given, although succinctly expressed, adequately explained the view of the court as to why such an order should be made.
It is accepted that such an order has a clear punitive content. Indeed, a disqualification order within the meaning of Part 15 of the Sentencing Act 1995 (WA) is said to form part of the sentence imposed by the court: s 102(3). There are a number of unreported decisions of single Judges of this Court to that effect: Stackhouse v Curulli, unreported; SCt of WA; (Owen J); Library No 920251; 30 April 1992; Stevens v Viskovich, unreported; SCt of WA; (Parker J); Library No 960596; 26 September 1996; Gaythwaite v Clarkson, unreported; SCt of WA; (Heenan J); Library No 970109; 21 March 1997; and Coumbe v Whittaker [1999] WASCA 151, 13 August 1999.
The Judge who decided the last mentioned case, McKechnie J, was not, I think, dissenting from that view when he said that an order for the forfeiture of firearms was one made in the public interest. At par [13] his Honour said, "Forfeiture may be seen as a statutory reflection of an overarching principle, general deterrence, visiting upon offenders loss of the instrument of the offence as a matter of course." I do not know that I would go quite that far because the making of an order under s 28 is a matter for the discretionary judgment of the sentencing court, but I do agree, with respect, that the court should be alert to consider the public interest as well as the interests of the offender when considering whether the convicted person should be deprived of the weapons the subject of the offence, or whether he or she might be allowed to keep them. In this case, as I have said, his Worship seems to me to have had regard to those appropriate considerations and I can see no reason to interfere with the orders he made.
Finally, it will be recalled that upon the appellant's conviction of the offence concerning the revolver, the learned Magistrate made an order that the appellant's firearm licence was "revoked". His Worship had no such power. The licensing authority, the Commissioner of Police, may revoke a licence issued under the Act under s 20(1) upon the various grounds there set out, but the court's power is one of disqualification.
There is such a power in the Firearms Act, s 27A where a court makes a violence restraining order against a person, which order of disqualification from holding a licence under the Act may be "for a term set by the court or until a court orders to the contrary". Further, under the Sentencing Act, s 106, a court which sentences an offender for any one of a number of offences, including an offence under the Firearms Act, "may order that, for a term set by the court, the offender be disqualified from holding or obtaining a licence or a permit or an approval, or any particular licence, permit or approval, under the Firearms Act 1973." Such an order may be directed to run cumulatively upon the term of any other such order, but otherwise it will run concurrently.
Under s 106(3), when such an order is made the relevant licence is suspended and has no effect for so long as the disqualification order is in force or, if the order so specifies, the licence is cancelled. In the latter case, of course, the licence having been cancelled, the offender would be disqualified from obtaining another for the period in question.
It is not possible to construe the order of revocation made in this case as falling within s 106. I would therefore allow that particular appeal, SJA 1176 of 1999, to the extent necessary to quash the order of revocation, but in my opinion, in all the circumstances as they were known and to which I have referred above and in the light of the previous conviction noted by the Magistrate, a disqualification order was appropriate. I will exercise the power conferred by the Justices Act 1902 (WA), s 199(1)(c) to make such an order.
On the evidence before me the licence for the revolver originally issued in September 1994 had the expiry date of 31 December 1999. If it has been renewed, I order its cancellation and disqualify the appellant from holding or obtaining a firearm licence for a period of 2 years from the date of the conviction and sentence, 2 July 1999. I note that the form of licence, which is a computer printout, tendered in evidence before me is endorsed with the words "revoked: unfit to hold". There is no information before me to indicate that that endorsement reflects a decision made by the Commissioner of Police under s 20 of the Act. I take it therefore, to refer to the order made by the learned Magistrate which I have quashed. If the appellant for any reason does not hold a current firearm licence, then there will be nothing upon which the order for cancellation of that licence may operate, but the order for disqualification will remain in force.
Beyond allowing the appeal SJA 1176 of 1999 to the extent referred to above, the appeals are dismissed.