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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SASC 284
Decision Date: 10 September 2009

CaseChat Overview and Summary

In Jaworski v Police, the appellant appealed against his sentence for possessing firearms without a valid licence and failing to keep firearms secured. The appeal centred on the contention that the Magistrate did not adequately inform the appellant of the possible consequences of his guilty plea, specifically the potential forfeiture of the firearms. The case was heard in the Magistrates Court, where the appellant, appearing unrepresented, was fined and ordered to forfeit the firearms. The appeal was allowed, and the case was remitted for resentencing.

The legal issues before the court were whether the Magistrate erred in not alerting the appellant to the potential consequences of his guilty plea, particularly the possibility of a forfeiture order, and whether the appellant was given an adequate opportunity to present mitigating factors before the sentence was imposed. The court was required to determine whether the failure to inform the appellant of the possible consequences constituted a miscarriage of justice warranting interference with the Magistrate's discretion.

The court found that the Magistrate did not sufficiently inform the appellant of the potential consequences of his plea, including the possibility of a forfeiture order. The appellant had prepared notes outlining mitigating factors but was unable to present them due to nervousness. The court emphasised the importance of ensuring that a defendant is aware of the potential outcomes of pleading guilty, particularly in serious matters such as firearms offences. The appeal was allowed on the basis that the appellant was not given a fair opportunity to present his case in mitigation. Consequently, the conviction was recorded, but no order for the forfeiture of the firearms was entered.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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