JENKIN v Police - [2023] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
JENKIN v POLICE
[2023] SASC 46
Judgment of the Honourable Justice McIntyre
4 April 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
The appellant was sentenced for one count of contravening the Code of Practice of the Firearms Regulations 2017 (SA) contrary to s 35(3)(e) of the Firearms Act 2015 (SA). The appellant used one of his firearms for a lawful purpose in his shed but failed to return the firearm to his gun safe after use. The appellant then locked the shed and left the property for several hours. Upon his return, the appellant discovered that he had been the victim of a serious criminal trespass and theft of a substantial amount of power tools and the unsecured firearm. The appellant reported this to the police and was subsequently charged with the above offence.
In sentencing, counsel for the appellant asked the learned Magistrate to utilise his power under s 24 of the Sentencing Act 2017 (SA) to impose a penalty without recording a conviction. The Magistrate declined to exercise his discretion and he recorded a conviction against the appellant.
The appellant contends that the learned Magistrate erred in recording a conviction.
Held:
1.Appeal granted.
2.No conviction is recorded.
3.The Magistrate’s orders in relation to the fine, court and prosecution costs and victims of crime levy are confirmed.

Firearms Regulations 2017 (SA); Firearms Act 2015 (SA) s 35(3)(e); Sentencing Act 2017 (SA) s 24; Criminal Law Consolidation Act 1935 (SA) s 24, referred to.
House v The King (1936) 55 CLR 499; R v Stubberfield (2010) 106 SASR 91; Brookes v Police [2014] SASC 22; R v Skinner [2016] SASCFC 106; Knight v The Queen (2021) 138 SASR 156; Piva v Brinkworth (1992) 59 SASR 92; Forgione v Police [2008] SASC 54, considered.

JENKIN v POLICE
[2023] SASC 46
Magistrates Appeal: Criminal

On 16 November 2022, the appellant was sentenced, following a plea of guilty, for one count of contravening the Code of Practice of the Firearms Regulations 2017 (SA) contrary to s 35(3)(e) of the Firearms Act 2015 (SA). The sole ground of appeal is that the learned Magistrate erred in recording a conviction. For the reasons that follow I uphold the appeal.
Background
The circumstances of the offence were, as the learned Magistrate said, unusual. The appellant is a farmer living on a rural property in Mallala. He had a shed where he kept tools, machinery and a gun safe. He had been a licenced firearm holder since he was 18 and regularly used firearms for vermin and pest control on his farming property. On the day of the offence the appellant had used one of his registered firearms, a .22 calibre rifle, to control animals which were causing damage to machinery in the shed. After using it, he propped the rifle next to his gun safe intending to put it back into the safe with his other guns after he used it. The appellant then left his farm for a couple of hours for business purposes, inadvertently forgetting to secure the rifle in the gun safe. He locked the shed before he left. Upon his return, he discovered that he had been the victim of a serious criminal trespass and theft. Someone had broken into the shed through a side door whilst he was away. A substantial amount of power tools were stolen to the value of approximately $1,000. The rifle was also stolen. The appellant immediately contacted police and reported the break in and theft including the theft of the rifle. The appellant was subsequently charged with the above offence.
The appellant pleaded guilty at the first opportunity available to him on 16 November 2022. He admitted having possession of a firearm and not taking all reasonable precautions to prevent the firearm from being stolen. In sentencing the appellant, the Magistrate started with a fine of $1,000 which he reduced by 40% to reflect the appellant’s guilty plea, resulting in the imposition of a fine of $600. The appellant was also ordered to pay court fees, prosecution costs and the victims of crime levy, together totalling a further $751. The appellant does not complain about that aspect of the sentence.
Counsel for the appellant asked the learned Magistrate to utilise his power under s 24 of the Sentencing Act 2017 (SA) (the Sentencing Act) to impose a penalty without recording a conviction. The Magistrate declined to exercise his discretion and he recorded a conviction against the appellant.
The Appeal
The sole ground of appeal is that the learned Magistrate erred in recording a conviction. The appellant submits that the Magistrate erred in declining to exercise his discretion, complaining both as to the process by which the Magistrate considered the issue and the outcome.
The appeal is by way of a rehearing. A decision to impose a particular sentence, including whether or not to record a conviction, involves a discretionary decision. The usual principles governing appeals against discretionary decisions apply.[1] Once a process or outcome error has been demonstrated, the Court may exercise the sentencing discretion afresh.
[1] House v The King (1936) 55 CLR 499 at 505.
Section 24 of the Sentencing Act provides:
24—Imposition of penalty without conviction
If 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.
Section 24 is in identical terms to the former s 16 of the Criminal Law (Sentencing) Act 1988 (SA). That section was explained by a unanimous Full Court of the Supreme Court of South Australia in R v Stubberfield[2] as follows:
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.
[2] (2010) 106 SASR 91 at [40]-[41].
In Brookes v Police,[3] Nicholson J considered the operation of s 16 as follows:
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. 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).
(citation omitted)
[3] [2014] SASC 22 at [9].
The Magistrate’s decision
It appears from the learned Magistrate’s reasons that he accepted that the appellant is a farmer living on rural property; that he was 55 years of age; that he had been a licenced firearm owner since he was 18; and that he had regularly used firearms for vermin and pest control on his property. Over a period of 37 years before this offence was committed, the appellant had not committed any firearm related offence. Indeed, he had no criminal history at all. The Magistrate found that the appellant was unlikely to commit such an offence again. This finding was plainly correct in light of the circumstances of the subject offence, and the appellant’s personal circumstances as accepted by the Magistrate. Having made that finding, it then fell to the Magistrate to consider whether any of the factors set out in s 24(b) were present. It was not contended that the offence was trifling. It plainly was not.
I accept that it was submitted to the learned Magistrate that the appellant was a person of good character, who had been involved in voluntary community activities including being a former chairman of the Mallala Community Hospital, and a life member of the Agricultural Bureau of South Australia.[4]
[4] Affidavit of Thomas Lewis Abbott sworn 6 March 2023 at [10] and [11].
In his reasons, the Magistrate noted that the appellant was a farmer who had been working on the farm from a young age; that he used firearms to control vermin; and that he had been a responsible gun user until this offence, having held a firearms licence since he was 18. There is no reference to other personal circumstances relevant to s 24(b)(i). Indeed, it appears that the learned Magistrate proceeded on the basis that the application was made under s 24(b)(iii) and confined his consideration to the circumstances that he identified in his remarks as follows:
… namely that you were the victim and that you suffered some significant financial loss as a result of the serious criminal trespass and now you find yourself in this Court.
The learned Magistrate then went on to say:
Clearly I have some sympathy for your predicament, but I also must look at the purpose of the legislation that is before me. The purpose of this legislation is to protect the community. Breaches such as this are the very reason that this legislation seeks to prevent. You may be a responsible firearms owner, but others in the community are not. The fact that your property was broken into and the item stolen, the fact that the gun was not properly stored, you facilitated through your breach of the legislation. This weapon is now in the custody of somebody in the community who could use it to harm others, or use it to commit offences. That is the whole purpose behind this legislation. There is a responsibility that goes with having firearms and you are responsible for complying with that and you did not.
I have considered the submissions and I do not consider that there are exceptional or extenuating circumstances, although you are probably unlikely to commit this offence again.
It is my view that these paragraphs demonstrate two process errors. First, it is apparent that the learned Magistrate considered whether the circumstances identified were “exceptional or extenuating”. The term “exceptional” is not part of the test set out in s 24. This, in my view, is an error of law. The term “exceptional circumstances” is used throughout the Sentencing Act. It has a particular meaning. Exceptional circumstances are “out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”[5] They can include “a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors”.[6] Extenuating circumstances impose a somewhat lower threshold. An extenuating circumstance is a circumstance that serves to make the offence seem less serious. Determination of that issue is a question of fact. The circumstances pointed to in this matter were extenuating. Whether they warranted the exercise of the discretion is another issue but, plainly, the discretion was enlivened.
[5] R v Skinner [2016] SASCFC 106 at [92], quoting R v Kelly [2000] QB 198 at 208.
[6] Knight v The Queen (2021) 138 SASR 156 at [60], quoting Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66].
The second error is that the Magistrate appears to have considered the issue of extenuating circumstances in the context of general deterrence which, whilst clearly relevant to the exercise of the discretion, was not relevant to the determination of the existence of the factors set out in s 24(b).
Accordingly, it is my view that the appeal ought to be allowed.
How should the s 24 discretion be exercised?
The Magistrate’s finding that the appellant is unlikely to commit such an offence again was not challenged and ought not to be disturbed. The character, antecedents and age of the appellant and the extenuating circumstances established on the evidence indicate that the discretion is enlivened. The question is whether, the appellant’s age; his unblemished criminal record; his otherwise good character; and the circumstances of the offending provide good reason for not recording a conviction.
The discretion not to impose a conviction will be infrequently exercised in regulatory offences such as this.[7] As the learned Magistrate indicated in his sentencing remarks, the purpose of the firearms legislation is to protect the community and situations such as this case are the very reason that the legislation requires firearms to be properly secured. The theft of the firearm, facilitated through the appellant’s breach of the Code of Practice, means that it is no longer in the hands of a responsible gun owner such as the appellant, but rather is in the hands of unknown people who may use it to harm others or commit offences.
[7] Piva v Brinkworth (1992) 59 SASR 92 at 96.
I was referred in argument to the decision of Forgione v Police.[8] The learned Magistrate also relied upon that decision in his sentencing remarks. The relevant paragraphs of Kelly J’s decision are as follows:[9]
It is well established that the purpose of the firearms legislation is to strictly control possession and use of firearms and to protect the community against the use of dangerous weapons. The scheme of the legislation is designed to ensure that those persons who do use and possess firearms are appropriately licensed and are aware of and carry out their obligations to use and store the weapons in a safe manner. Any breach of the legislation is regarded seriously and courts are required when imposing penalty to bear in mind that penalties for breaches of this legislation should operate as a significant general and personal deterrent.
The exercise of the discretion under s 16 of the Criminal Law (Sentencing) Act 1988 does, of necessity, have limited application to regulatory offences. However that is not to say that s 16 can never apply to breaches of the Firearms Regulations 1993. As Duggan J acknowledged in Piva, there will be cases where the circumstances will invite the application of the power to proceed without conviction or to refrain from imposing a penalty in dealing with regulatory or social legislation.
(citations omitted)
[8] [2008] SASC 54.
[9] At [14]-[15].
General deterrence is, as the learned Magistrate identified, a significant consideration. It must however be balanced against the fact that the appellant has been a licenced firearm owner since he was 18 and, until this offence, had not committed any other firearms related offence. Further, the appellant has no criminal history at all and is a person of good character who has been involved in voluntary community activities. He pleaded guilty to the offence at the first opportunity which demonstrates remorse and contrition. Moreover, the circumstances of the offending ought to be taken in account. The appellant had used his firearm for legitimate purposes, and he had intended to secure it in his gun safe with his other firearms. He inadvertently failed to do this before leaving his farm for a couple of hours for business purposes. He locked the shed before he left. There was no ammunition left with the firearm. During the time he was away an unknown person or persons committed the offence of serious criminal trespass and theft, stealing both the firearm and other items belonging to the appellant. The offender has not been identified nor have the stolen items been recovered.
Accordingly, whilst the exercise of the discretion has limited application in relation to regulatory offences, and there is a significant need for general deterrence in firearms matters, it is my view that a combination of all the factors that I have identified provides good reason for not recording a conviction in this case.
Whilst the appeal is to be allowed, there is no reason to interfere with any elements of the Magistrate’s sentence apart from the question of whether to record convictions. I therefore confirm the Magistrate’s orders in relation to the fine, court and prosecution costs and victims of crime levy.