Jaworski v Police - [2009] SASC 284

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JAWORSKI v POLICE
[2009] SASC 284
Judgment of The Honourable Justice Sulan
10 September 2009
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - INJUSTICE - PARTICULAR CASES
Appeal against sentence - appellant pleaded guilty to possession of firearms while not holding a licence, contrary to Firearms Act 1977 s 11(1) and failing to keep firearms secured, contrary to Firearms Regulations 2008 reg 389(1) - appellant appeared before Magistrate unrepresented - Magistrate imposed a fine and ordered forfeiture of the firearms - whether the Magistrate erred in not alerting the appellant to possible consequences of a guilty plea - consideration of circumstances which give rise to a forfeiture order and the recording of a conviction - appeal allowed - appellant resentenced - conviction recorded and no order as to forfeiture entered.
Firearms Act 1977 (SA) s 11(1); Firearms Regulations 2008 (SA) reg 289(1); Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Cooling v Steel (1971) 2 SASR 249; Ivanoff v Linnane (1979) 20 SASR 279; Peters v Police (2004) 149 A Crim R 201; Fredrichs v Police [2007] SASC 6; Gould v Police [2005] SASC 297; England v Police [2001] SASC 367; Lloyd-Croocock v Police (2008) 102 SASR 245; Johnson v The Registrar Firearms (2001) 79 SASR 353; Offe v Police (2002) 84 SASR 1; Siviour-Ashman v Police (2003) 85 SASR 23; Newcombe v Police [2004] SASC 26; Robinson v Police [2004] SASC 271; Lumb v Police [2008] SASC 198; R v Briese (1996-1997) 92 A Crim R 75, considered.

JAWORSKI v POLICE
[2009] SASC 284
Magistrates Appeal
SULAN J
Introduction

The appellant pleaded guilty to having in his possession ten bolt-action rifles, a percussion rifle, an air rifle, a single-shot rifle, a side‑by‑side barrel shotgun and two lever-action rifles, whilst not holding a licence authorising possession of the firearms, contrary to s 11(1) of the Firearms Act 1977 (“the Act”). He also pleaded guilty to failing to keep the firearms secured, contrary to reg 389(1) of the Firearms Regulations 2008 (“the Regulations”). The complaint was endorsed with the following:
Other orders sought (forfeiture, compensation, additional penalty, destruction or the like – rule 15.03).
The firearms, which were Class A and Class B firearms, had been owned by the appellant for a period of years. Some of the firearms were used for the purpose of recreational shooting by the appellant and his sons. Others formed part of a collection kept by the appellant. The maximum penalty for the offence of possessing an unlicensed firearm is $20,000 or four years’ imprisonment. The maximum penalty for the regulatory offence is $2500.
The appellant was unrepresented before the Magistrate, who imposed a fine of $500 plus Court fees and costs of $328.25, and ordered forfeiture of the firearms to the Crown.
The appellant complains that he was not given information by the Magistrate which would have alerted him to the possible consequences of his plea of guilty, in particular that a forfeiture order may be made in respect of the firearms. He contends that the Magistrate failed to give him an opportunity to put his case in mitigation, and an adequate hearing prior to making the order for forfeiture of the firearms.
Background
Police attended at the appellant’s home at Glanville on 22 October 2008. They were directed by the appellant to an area under the stairwell inside the house where there were eight Class A and eight Class B firearms stored. The appellant had held a licence for the firearms, but it had expired on 31 July 2008. The appellant told the police that he was aware that his licence needed to be renewed, but that he had been too busy at work to attend to its renewal and then had forgotten to do so.
He told the police that he had stored the firearms in a metal Telstra lock-up box, but was later told by a friend that this was not permitted. He intended to order a large gun safe in which to store the weapons. In the interim, he had hidden them under the stairwell. There was no ammunition held on the premises. All the firearms were registered.
The firearms were seized by the police and the appellant was later charged with breaches of the Act and Regulations.
The appeal
Counsel for the appellant tendered an affidavit of the appellant in which the appellant states that he represented himself before the Magistrate. He had prepared notes of matters that he wished to put to the Magistrate. Those notes were exhibited to the affidavit. The notes refer to his previous good record, that he had held a firearms licence for 18-odd years, and that he had made an honest mistake in failing to renew his licence because, at the time, he was under severe work and financial pressures. The affidavit states that he is in permanent employment.
As to the storage of the weapons, he had stored them in a steel box but, because the hinges of the box were deteriorating, the box was not secure. He intended to buy a gun safe from a Gawler fishing and outdoor shop. In the interim, he had stored the weapons under the stairs where they were hidden away. The weapons were used for hunting and fishing by the appellant and his sons. He proposed to ask that no conviction be recorded. He had been informed by Constable Jongelsand, one of the officers who had attended at his home, that a conviction may impact on overseas travel. In his affidavit, he expresses a concern that a conviction may prevent him from supervising children at school camps, with which he has been involved for some years.
When the matter was called on, the appellant told the Magistrate that his failure to renew the licence was an oversight. In his affidavit, he says that he then froze and was too nervous to speak. He had been unable to make the submissions to the Magistrate which he had written out for himself, nor did he hand up the document to the Magistrate. He deposes that he heard something said between the Magistrate and the police prosecutor. He thought he heard the word “forfeiture” being mentioned. The Magistrate did not inform him that the weapons might be forfeited. The Magistrate proceeded to sentence the appellant.
The appellant deposes that he had no idea that there might be a forfeiture order.
The appellant was cross-examined by counsel for the Crown. He was asked:[1]
[1] T 8-9.
Q.Now you knew, didn’t you, that it could be that a conviction would be recorded against your name if you – if you pleaded guilty.
A.I knew that there was – when the police came around to our house, and when I asked them what the procedure was, the procedures, they said that ‘You’ll go to court’ and everything else, and I said ‘What, do I just end up in the court?’ and they said ‘Well, just go’ and I said to them, I said ‘What’s the fines?’ And the fines, they said ‘They vary from case to case’.
Q.My question was you knew, didn’t you, that you could be convicted if you pleaded guilty to the offence with which you were charged.
A.Convicted? To a fine, yes, I thought, yes. I had no idea there would be a forfeiture, or I had no idea that there was going to be a criminal record as such.
…
Q.But you were aware that a conviction could be recorded and you could ask the magistrate to not record it. You agree with that, don’t you.
A.I presume I was, as in – I just couldn’t convey that, I honestly couldn’t convey that in court.
Q.Whether you conveyed it or not, you were aware that a conviction could be recorded and you could ask the magistrate to not record a conviction. You were at least aware of that, weren’t you.
A.Yes, I was.
Mr Retalic, who appeared for the appellant, submits that the Magistrate failed to make adequate inquiries of the appellant about his personal circumstances. He submits that the Magistrate failed to explain sufficiently to the appellant the nature of the charges or the penalties which may be imposed. He complains that the Magistrate did not explain to the appellant that there was a possibility that a forfeiture order may be made, nor that a conviction might be recorded.
The value of the firearms forfeited is alleged to be in the vicinity of $20,000. The appellant exhibited to his affidavit a current firearms licence which had been renewed by the Firearms Branch after these matters came to light. The current licence is due to expire on 31 July 2010.
The requirement to explain matters to an unrepresented defendant
Mr Retalic submits that the Magistrate had failed to observe the basic principles enunciated in Cooling v Steel,[2] in which Wells J referred to the obligations of a magistrate when dealing with an unrepresented defendant. Wells J said that a court should give careful attention to the following matters of practice and procedure when dealing with unrepresented defendants. He said:[3]
When the defendant answers to his name and the charge is read, before a plea is entered, the court should make sure that the defendant understands the nature of the charge. It is, of course, unnecessary, indeed undesirable, that the bench should deliver a lecture on the law; the charge should be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise. For example, if the charge is receiving stolen property it should be explained (inter alia) that a plea of guilty implies that the defendant was aware that the property was stolen at the time it was received into the defendant’s possession; where the charge is stealing, emphasis could well be placed on the allegation that the property was taken fraudulently or dishonestly with the intention of permanently depriving the owner of the property; where the charge is driving in a manner dangerous to the public, the defendant should be made to understand that the charge alleges that his manner of driving in the circumstances was such that an unwarranted, an unreasonable, risk was created to the life and property of members of the public. When the explanation of the charge has been made, the court should satisfy itself that that explanation has been understood.
Next, the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has the power to impose disqualification from holding or obtaining a driver’s licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court. Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v. Deed and R. v. Maitland, and, in any event, be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded. (Citations omitted).
[2] (1971) 2 SASR 249.
[3] Ibid, 250-1.
In Ivanoff v Linnane,[4] Sangster J summarised the matters which a court should address when dealing with an unrepresented, as follows:[5]
[4] (1979) 20 SASR 279.
[5] Ibid, 282-3. See also Peters v Police (2004) 149 A Crim R 201; Friedrichs v Police [2007] SASC 6; Gould v Police [2005] SASC 297; England v Police [2001] SASC 367.
(i)Ensuring before a plea is taken that the defendant is told, briefly and simply, what he is charged with. (I am sure that in many cases this is quite plainly stated in the charge as read out and that no separate explanation is called for.)
(ii)Making the defendant appreciate that the plea is a matter for his own independent decision, and he is entitled to legal advice and representation, and to a reasonable adjournment to seek legal advice or representation. (I will come back to that aspect.)
(iii)If the question of bail arises, making the defendant clearly aware of what bail is, that he can apply for bail, what matters a court takes into account, and that he can make representations. (I will come back to that aspect also.)
(iv)If the case is to be proceeded with the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has power to disqualify from holding or obtaining a driving licence, or order compensation, or direct forfeiture of property, or order imprisonment.
(v)On a plea of guilty the defendant should have it made clear that he may put matters in mitigation by statement or on oath (especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material.
(vi)On a plea of guilty, before the prosecutor places the facts before the court the defendant should be informed that he is entitled to dispute or comment on the facts about to be alleged (including previous convictions).
(vii)If facts are disputed, the defendant should be given the opportunity to support his version by sworn evidence and/or calling witnesses or (if appropriate) consideration should be given to treating the defendant’s contention as to the facts as a plea of “not guilty”.
(viii)Special considerations apply to Australian aborigines, and to persons with an inadequate grasp of the English language.
(ix)Even this list is not regarded as exhaustive.
In particular, in a case in which penalties, including forfeiture of property, may be ordered, the defendant should be informed of the serious consequences that may follow upon a plea of guilty, and should be given the opportunity to consider whether to obtain legal representation in the circumstances.
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.[6]
[6] See Lloyd-Croocock v Police (2008) 102 SASR 245, 276.
The appellant should have been informed by the Magistrate that, upon his plea of guilty, a conviction might be recorded. Further, he should have been informed that breaches of the Act are serious breaches of the law, and that the maximum penalty for an offence against s 11(1) of the Act is a fine of $20,000 or imprisonment for four years. He should have been given the opportunity to consider whether he wished to seek an adjournment to obtain legal advice or representation. He should have been informed that a forfeiture order had been sought. He should have been told that the making of such an order is a matter for the Court’s discretion, and that he may wish to put information before the Court which was relevant to the exercise of that discretion. Furthermore, he should have been informed that if the Court considered that the firearms should be forfeited, then the appellant could make an application that the firearms be sold and the proceeds of sale be paid to him. The Magistrate should have ascertained the value of the firearms, given the fact that the Magistrate had in mind making an order for forfeiture.
Counsel for the Crown accepts that there had been a failure by the Magistrate to inform the appellant of the serious consequences which could result from a plea of guilty to the offence. Counsel concedes that the sentencing process miscarried and that, in the circumstances, I should re-sentence the appellant.
Re-sentencing
As to the fine, Mr Retalic does not contest the amount of the fine or that it was appropriate for the Magistrate to impose a fine.
Forfeiture
The primary aim of the Act and Regulations is to ensure the protection of the public. The legislation and Regulations impose a responsibility on those who possess firearms to ensure they are kept secure. This ensures that firearms are not easily accessible, to avoid tragic consequences which may result from the misuse of them.
In Johnson v The Registrar Firearms,[7] Gray J discussed the scheme of the Act. He observed that the legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing with firearms.[8]
[7] (2001) 79 SASR 353.
[8] Ibid, 357; See also Offe v Police (2002) 84 SASR 1, 9.
When the Act was first introduced, the debates in Parliament made it clear that there was a concern about the rapid increase in the number of serious offences involving the use of firearms. The types of firearms used were becoming more sophisticated and dangerous.
Although forfeiture may be regarded as a harsh result, the protection of the public is the primary aim of the legislation. The circumstances of each case will differ but, where it is demonstrated that a defendant has deliberately disregarded his obligations under the Act, then forfeiture is a likely consequence. Forfeiture might be ordered in the case of a repetitive offender, or in circumstances in which the defendant’s conduct is grossly negligent. An order of forfeiture is not to be made for the purpose of punishing the offender but, rather, it is an appropriate order when the Court considers that the conduct was such that an unacceptable risk to public safety has been created, or is likely to occur in the future.
The conduct of the appellant was negligent. I accept his submission that his failure to renew his firearms licence was due to his long work hours, and then overlooking his obligation to renew his licence. The appellant accepts that he had no excuse for breaching the Act.
The appellant has no prior convictions. It is not disputed that he has held a licence to possess firearms for approximately 18 years, and that he has been a collector and recreational user of those firearms during that time. He agrees that there had been one prior occasion when he failed to renew his licence for three weeks whilst he was overseas. He was not prosecuted or convicted for that breach.
The appellant appears substantially to have complied with his obligations under the Act for over 18 years. I am satisfied that his failure to renew his licence was an oversight, and that, in possessing firearms, he poses no risk to the public. I am reinforced in my view by the fact that the licensing authority has seen fit to renew his licence after these breaches came to light.

The firearms in question were all registered, and his identity and whereabouts were known to the Firearms Branch of the Police Department. His counsel tendered three character references, with the consent of the Crown. It is clear that he is an honest, reliable citizen and this blemish was out of character.
The more concerning aspect of the appellant’s conduct was his failure to adequately secure the firearms. To some degree, that conduct is mitigated by the fact that there was no ammunition stored in the house and, therefore, there was no immediate danger to others. Nevertheless, the method of storage was a breach of the Regulations. The weapons were more easily accessible than if they had been contained in a locked cabinet, as required by the Regulations.
I accept that the appellant intended to obtain a gun safe in which to eventually store the weapons. However, he had been casual in his approach in not attending to that task as he was required to do.
The appellant has been a responsible owner of guns in the past. The weapons are the type of weapons that are used for recreational activity, and these offences were due to oversight and negligence rather than a deliberate attempt to avoid his obligations under the Act. The appellant is unlikely to re-offend in the future. The guns will only be returned to him once the Firearms Branch is satisfied that there are adequate storage facilities for them. In the circumstances, I do not consider an order for forfeiture of the firearms should result. I direct that they be returned to the appellant once the Firearms Section of the Police Department is satisfied that adequate storage facilities have been put in place.
Recording a conviction
Mr Retalic submits that this is an instance where no conviction should be recorded. Section 16 of the Criminal Law (Sentencing) Act 1988 provides:
16 – Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which is 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.
The discretion not to record a conviction is enlivened if the court is satisfied that the defendant is unlikely to commit such an offence again, and good reason exists for not recording a conviction. In determining whether good reason exists, the court is required to have regard to the factors referred to in s 16(b). Once the discretion is enlivened, then the court will consider whether it is appropriate to exercise the discretion.
I am satisfied that the appellant is of good character. He has been a responsible owner of firearms. I am satisfied that his having to attend Court and the possible loss of his firearms has been a salutary experience for him, and he is unlikely to offend in the future.
An offence which is a normal or typical example of its type will not be regarded as trifling. In Siviour-Ashman v Police,[9] Doyle CJ said:[10]
A point made in many of the cases is that an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something it has treated as an offence should routinely be regarded as of trifling significance.
[9] (2003) 85 SASR 23.
[10] Ibid, 27 [25].
The appellant had not renewed his licence for some months. It was not a momentary oversight. It was not until the police attended at his home that he admitted his failure. Further, his failure to store the firearms as required demonstrates more than just an oversight. It cannot be said that this was a trifling offence.
As to whether there are other extenuating circumstances which exist, factors such as a defendant’s chances of future employment, youth, contrition and the consequences of recording a conviction are relevant matters.[11]
[11] See Newcombe v Police [2004] SASC 26; Robinson v Police [2004] SASC 271; Lumb v Police [2008] SASC 198.
The appellant contends that, if a conviction is recorded against him, this may prejudice his ability to travel overseas in the future. That is a factor that is relevant and may provide a basis for the exercise of the Court’s discretion not to record a conviction. In support of his claim, the appellant has provided copies of the entry requirements for persons entering the United States of America, Canada and Fiji. In each case, the requirements indicate that, if a person has a conviction, it will not necessarily exclude them from travelling to the countries mentioned. However, a person is required to disclose the convictions and the nature of the offending. It appears that the authorities will consider each application for a visa on its merits. No other evidence has been adduced by the appellant in support of his contention that he may not be able to freely travel overseas.
The appellant does not suggest that he is required to travel to any of the countries concerned or that he has any immediate plans to do so, either for business or for pleasure. In the circumstances, I am not satisfied that the appellant’s concern about his ability to travel overseas provides a sufficient reason in this case for the Court to exercise its discretion not to record a conviction.
The question of whether to record a conviction is always one of weighing the personal interests of a defendant against the public interest. In the case of an offence which is a so-called victimless crime, a court may be more easily persuaded against recording a conviction.[12]
[12] See R v Briese (1996-1997) 92 A Crim R 75, 79-81.
The offending was not minor offending. Not only did the appellant fail to renew the licence, but he exhibited a disregard to his obligations to store the weapons as required under the Act. I am not satisfied that this is a case in which no conviction should be recorded.
I allow the appeal insofar as the Magistrate ordered forfeiture of the firearms.
In relation to the offence of failing to possess a licence, a conviction is recorded and the appellant is fined $500, plus Court fees and costs of $328.25, as ordered by the Magistrate. As to the breach of the Regulations, there will be a conviction without further penalty, as ordered by the Magistrate. The order as to forfeiture is set aside.