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…

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.

Continue reading JENKIN v Police

Details

AGLC: JENKIN v Police [2023] SASC 46
Case: [2023] SASC 46
Decision Date

CaseChat Overview and Summary

In the matter of Jenkin v Police, the appellant, a farmer from Mallala, appealed against a conviction recorded by the Magistrate for contravening the Code of Practice of the Firearms Regulations 2017 (SA). The appellant had used a registered.22 calibre rifle to control animals in a shed on his property. After use, he forgot to secure the rifle in a gun safe, leading to its theft along with other tools during a break-in. The appellant immediately reported the theft to the police and pleaded guilty to the offence. The Magistrate imposed a fine and ordered the appellant to pay various costs, but declined to exercise the discretion to impose a penalty without recording a conviction under s 24 of the Sentencing Act 2017 (SA).

The primary legal issue in this appeal was whether the Magistrate erred in not exercising the discretion to impose a penalty without recording a conviction. The appellant argued that the Magistrate's process and outcome in declining to exercise this discretion were flawed. The appeal was heard as a rehearing, meaning the Court could exercise its own sentencing discretion. The appeal hinged on whether the Magistrate correctly considered the factors under s 24(b) of the Sentencing Act when deciding whether to record a conviction.

The Court found that the Magistrate had correctly considered the appellant's background and circumstances, including his history as a responsible gun owner and his likelihood of reoffending. However, the Court noted that the Magistrate did not fully consider the factors under s 24(b) when deciding whether to record a conviction. The Magistrate focused primarily on the seriousness of the breach and the need to protect the community, without adequately weighing the appellant's good character and the extenuating circumstances of the case. The Court concluded that the Magistrate's error in process and outcome warranted a rehearing of the sentencing discretion. The Court ultimately decided to exercise its own discretion to impose a penalty without recording a conviction, taking into account the appellant's good character and the extenuating circumstances of the case.

The Court quashed the conviction and substituted a penalty without conviction, reflecting the appellant's guilty plea and the need to consider the broader circumstances of the case. The appellant was ordered to pay a fine of $600, reduced from $1,000 for his early guilty plea, along with court fees, prosecution costs, and the victims of crime levy, totaling $751.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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