KENT v Police - [2013] SASC 86

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
KENT v POLICE
[2013] SASC 86
Judgment of The Honourable Justice David (ex tempore)
4 June 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS
Appeal against sentence – appellant pleaded guilty to two counts of failing to comply with a condition of a firearms licence, contrary to regulation 61 of the Firearms Regulations 2008 (SA) – the learned Magistrate recorded a conviction, imposed a fine of $650 and disqualified the appellant from holding or obtaining a firearms licence for a period of 18 months – whether the sentence imposed by the Magistrate was manifestly excessive – whether the Magistrate erred in exercising the power to order the disqualification of the appellant’s firearms licence.
Held: Appeal dismissed – the Magistrate did not err in exercising his sentencing discretion – although the order for the disqualification of the appellant’s firearms licence for a period of 18 months was a severe penalty, it remains within the sentencing discretion of the Magistrate – the omission of any specific reference to particular personal circumstances of the appellant in the Magistrate’s sentencing remarks does not indicate any error on the Magistrate’s part in failing to consider such circumstances.
Firearms Regulations 2008 (SA) reg 21, reg 38(1), reg 41(1), reg 61; Firearms Act 1977 (SA) s 34A(1), referred to.

KENT v POLICE
[2013] SASC 86
Magistrates Appeal: Criminal

DAVID J (ex tempore): On 2 April 2012 the appellant pleaded guilty in the Magistrates Court, sitting at Mount Gambier, to two counts of offending reg 61 of the Firearms Regulations 2008 (SA) (“the Regulations”). The appellant was convicted on each count and fined a total sum of $650 and was disqualified from holding or obtaining a firearms licence for a period of 18 months. The maximum penalty on each count is $2,500, pursuant to reg 61 of the Regulations and the discretion to disqualify him from holding or obtaining a firearms licence is contained in s 34A(1)(e) of the Firearms Act 1977 (SA).
He now appeals against the severity of that penalty. In particular the appellant argues that the decision to disqualify him from holding or obtaining a firearms licence was inappropriate or alternatively that the period of 18 months was manifestly excessive. He argues that the Magistrate erred on two grounds; by failing to take into account the effect that disqualification would have on his employment and by failing to give him credit for the fact that he had pleaded guilty.
Background facts
On 15 August 2012 police attended at the appellant’s home at Millicent and searched his premises under the authority of a general search warrant. They located a double barrel shotgun unsecured on the appellant’s bed and seventeen shotgun rounds unsecured on a shelf in a walk-in wardrobe attached to the appellant’s bedroom. The shotgun was registered to the appellant. As a result of that finding, the appellant was charged with two counts of breaching reg 21 of the Regulations in that he did not comply with reg 38(1) in relation to the firearm, and reg 41(1) in relation to the ammunition. Those regulations read as follows:
38—Security of firearms
(1)A person (not being a dealer) who has possession of a class A or B firearm must keep the firearm secured by—
(a)     securely attaching and locking it to part of the building in which it is kept; or
(b)     keeping it in a locked cabinet made of hardwood or steel that is securely attached to the building in which it is kept; or
(c)     keeping it in a locked safe made of steel that is securely attached to the building in which it is kept; or
(d)     keeping it in a locked steel and concrete strong room; or
(e)     such other method as is approved by the Registrar.
…
41—Ammunition
(1)Ammunition must be stored in a locked container separately from firearms.
Regulation 61 provides that a person who fails to comply with a provision of the Regulations is guilty of an offence punishable by a maximum fine of $2,500 and s 34A(1) of the Firearms Act 1977 (SA) provides:
34A—Powers of court on finding person guilty of firearms offence
(1)Where a court finds a person guilty of an offence against this or any other Act and the court finds that a firearm, mechanism, fitting or ammunition was involved in the commission of the offence the court may make one or more of the following orders:
(a)     where the firearm, mechanism, fitting or ammunition was owned by the person—that the firearm, mechanism, fitting or ammunition be forfeited to the Crown or be disposed of in such other manner as the court directs;
(b)     that a licence held by the person is subject to specified conditions;
(c)     that a licence held by the person is suspended for a specified period or until further order;
(d)     that a licence held by the person is cancelled;
(e)     that the person is disqualified from holding or obtaining a licence for a specified period or until further order;
(f)    that the person is subject to a firearms prohibition order until further order.
The appellant submitted to the Special Magistrate that the appellant was aged 49 years and that he had pleaded guilty at the earliest opportunity. He owned a property at Millicent on which he was setting up a yabby farm. The offence came about following his use of the firearm and ammunition on the morning of 15 August 2012 to keep birds away from the area of his yabby farm. The appellant was subsequently called to urgently attend to a large tree that had fallen onto a boundary fence of his property, adjacent to a main road. As a result, the appellant did not secure the firearm and ammunition as was his usual practice in accordance with legislative requirements. The appellant was caused to leave his residence at short notice and he did not believe that he would be away for an extended period of time. The appellant was, however, preoccupied with his attendance to the fallen tree for much longer than expected.
The Magistrate was told that the appellant had held a firearms licence from the age of 16 years and that, at the time of the present offending, he owned a total of 22 guns. No issue was taken with the storage of any of these other firearms or ammunition. Living in the house with the appellant were his partner and two older children, aged 24 and 18, all of whom were licensed firearm users. Also residing in the house was the daughter of the appellant’s partner who is of secondary school age. It was put to the Magistrate that the appellant’s act of leaving the shotgun and the ammunition unsecured on the occasion of this offending was a “once off” occurrence. It was further submitted that the loss of the appellant’s firearms licence would severely impair his ability to earn as he required his firearms licence to carry out his general farm maintenance duties in the course of his employment (in respect to his own property on a self-employed basis) and, more specifically, to protect his yabby farm. The appellant’s income supports his partner and her daughter. The Magistrate was further informed that the appellant was a recreational hunter and has done so in Australia, New Zealand and Africa.
It was put to the Magistrate that, because the nature of the appellant’s employment necessitated the use of a firearm, and therefore that the appellant’s employment would be adversely affected by an order of disqualification of his firearms licence, it would not be appropriate to make an order disqualifying the appellant’s firearms licence.
It was also conceded in submissions before the Magistrate that the appellant had prior offending relating to firearms offences which were dealt with in 2004 and for which he was given a fine of $300.
The Magistrate, in his short sentencing remarks, commented that the appellant had been a responsible gun owner for many years, which meant he should have known better and deeming his offending conduct particularly irresponsible. The Magistrate said:
As a gun owner of some experience, you would be as aware as I am of the very strict obligations parliament has imposed on gun owners and the requirement that those obligations are to be strictly observed. That means effectively no exemptions. The reasons are only too obvious. Guns could fall into the wrong hands or accidents could occur if weapons are not secured as was the case here. You failed to secure a shotgun. That was very irresponsible. The law expects you to comply completely with the requirements and imposes significant penalties when there is a breach.
Appeal
The appellant now argues that the Magistrate had erred in imposing a disqualification. Alternatively he argues that the disqualification period was too great. He does not press any argument about the amount of the fine. Basically, the appellant argues that the Magistrate has not taken into account his plea of guilty and contrition when considering disqualification. He argues that on the basis that there is no mention of that in the Magistrate’s short reasons. He also argues that the Magistrate has not given any regard to the effect of disqualification on the appellant’s employment. Once again, that argument is presented on the basis that there was no specific mention of this fact in the short reasons of the Magistrate.
The appellant also argues that the Magistrate has not taken into account the alternative penalties to disqualification which are set in s 34A(1) of the Firearms Act 1977 (SA), especially s 34A(1)(b) which allows for a licence to be held but subject to specified conditions.
I have considered carefully those arguments and I am of the view that the period of disqualification was in fact a severe one. However, I do not find that the Magistrate has erred or that his sentencing discretion has miscarried. The paucity of detail in the learned Magistrate’s sentencing remarks in a case such as this does not indicate any error. The Magistrate clearly bore in mind the detailed submissions of counsel (as set out in the affidavit of Donna Elyse Edwards, dated 28 May 2013). Indeed, in the Magistrates remarks at [2], the Magistrate clearly states that he took into account the submissions of counsel who appeared before him.
Conclusion
I dismiss the appeal.