NIXON v Police - [2006] SASC 202

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NIXON v POLICE
[2006] SASC 202
Judgment of The Honourable Justice Layton
7 July 2006
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
STATUTES - BY-LAWS AND REGULATIONS - CONSTRUCTION
Appellant pleaded guilty to failure to secure firearms and ammunition contrary to Firearms Regulations - Magistrate ordered forfeiture of firearms and ammunition - Appeal against forfeiture order in relation to firearms - Whether there was error in the order of the Magistrate - Whether the penalty was manifestly excessive where failure to secure was temporary - Held: Magistrate erred in the application of s 34A of the Firearms Act 1977 (SA) - Order for forfeiture was manifestly excessive - Appeal allowed - Order for forfeiture quashed, in lieu thereof appellant's firearms licence suspended for two months.
Firearms Act 1977 (SA) s 23, s 34A and s 39; Firearms Regulations 1993 (SA) reg 29(1), reg 3291) and reg 53; Acts Interpretation Act 1915 (SA) s 491); Criminal Law Consolidation Act 1935 (SA) s 299A, referred to.
Offe v Police (2002) 84 SASR 1, considered.

NIXON v POLICE
[2006] SASC 202
Magistrates Appeal

LAYTON J: This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991. On 7 April 2006, the appellant pleaded guilty to three firearm offences as follows:
Count 1: Failing to keep six firearms secured contrary to Regulations 29(1) and 53, Firearms Regulations 1993.
Count 2: Failing to keep ammunition in a locked container contrary to Regulations 32(1) and 53, Firearms Regulations 1993.
Count 3: Possessing an unregistered firearm contrary to s 23 Firearms Act 1977.
The Magistrate recorded convictions for each of these offences, and imposed the following penalties:
Count 1:$300 fine plus $190 court fees and costs as well as forfeiture of six firearms which included the .177 calibre air rifle referred to in Count 3.
Count 2: $100 fine, $35 CIC levy and forfeiture of the ammunition.
Count 3:$100 fine, $35 CIC levy and forfeiture of the .177 calibre air rifle.
The appellant now appeals against the orders for forfeiture of five of the firearms in Count 1 (excluding the .177 air rifle) and the ammunition in Count 2.
The major grounds for appeal were, first, that the Magistrate had no power pursuant s 34A of the Firearms Act 1977 (“the Act”) to order the forfeiture of the firearms and ammunition the subject of Counts 1 and 2. Secondly, that the Magistrate erred in the application of s 34A of the Act. Thirdly, that the orders for forfeiture, particularly the forfeiture of the five firearms in Count 1, rendered the totality of the penalty manifestly excessive.
In considering this appeal it was agreed by consent that I have before me an affidavit of the police prosecutor Sammy Mattila sworn herein on 19 May 2006, and also the Police Apprehension Report dated 17 August 2005.
Circumstance of the offences
On Thursday, 4 August 2005 at 5.30pm, as a result of information received, the police attended at the appellant’s residence with a warrant to search premises, apparently for cannabis associated with the appellant’s partner. On arrival at the premises, the police observed the appellant driving away from the property in her car. They then stopped the appellant’s vehicle and she returned with them to the house and unlocked the house for the purposes of facilitating the search.
During a search of the premises police located six unsecured firearms which were the subject of Counts 1 and 3 and also unsecured ammunition which was the subject of Count 2.
In relation to Count 1, four of the firearms were in the master bedroom. One was on the bed and in its firearms’ bag. Three were located in the corner of the bedroom, also in their firearms’ bags. The firearm on the bed was a Winchester 12 gauge under and over shotgun, Serial Number PK354714. Leaning against the wall were an Anschutz .22 rifle, Serial Number 1045665, an Azhur 12 gauge under and over shotgun, Serial Number 84474, and a Ruger 22/250 rifle, Serial Number 78916950.
In an unlocked garage police also located a further two unsecured firearms, in an unlocked steel cabinet. Those firearms were a BSA .301 Martini action rifle, Serial Number 13016, and a .177 calibre air rifle, Serial Number DN0017.
These six firearms are the subjects of Count 1. Being unregistered, the .177 calibre air rifle is also the subject of Count 3. All of the other firearms were registered and the appellant had a licence with regard to those Class ‘A’ firearms.
The ammunition located on the breakfast bar in the kitchen was in a 22/250 ammunition packet, which contained 17 rounds of ammunition. The police immediately seized the six firearms and the ammunition.
The appellant was then living in the premises with her de facto partner and her primary school aged children. The appellant was interviewed by police and in that interview she indicated that she had obtained her firearms licence about four or five years ago, having completed a TAFE course which included training on security of firearms and ammunition, and that she was aware of the requirements to keep firearms secured. The appellant indicated that she had been shooting the day before and had got back late. She also stated that she had left the firearms out for the purposes of cleaning them prior to putting them away. She admitted that the firearms cabinet had been unlocked in the unlocked garage since she took the firearms out to go shooting. In submissions before the Magistrate it was submitted that she was in the process of going down the street for the purpose of collecting solvents to clean the guns when the police stopped her vehicle.
It was submitted on her behalf before the Magistrate that the appellant was a responsible gun owner and a member of a number of local shooting clubs. Counsel then acting on her behalf tendered four character references to the Court by consent. One of these character referees was a secretary of the Bordertown Gun Club. This person had known the appellant’s parents, who for many years have been respected business people within the Bordertown community. He also indicated that the appellant had been a “Club only” member of the Bordertown Gun Club. He indicated that the appellant enjoyed practice shoots, had attended club training and had attended to safety issues of “shooting down the line” without any problem. He indicated that the appellant’s two daughters attended and enjoyed the club atmosphere and enthusiastically picked up the unbroken clays at the conclusion of practices. Reference was also made to the value of her membership in the Club and that she clearly enjoyed the sport and was enthusiastic about the Clay Shooting Group.
The other referees noted her success in employment and the fact that she appears to have been at various points a single mother bringing up two children. A further referee wrote of the appellant going out on shoots for foxes and rabbits where she was observed to be a competent effective and safe handler of firearms.
It was also submitted that the value of the firearms in question were between $1,000 and $2,000 per firearm.
It is in this context that the appeal is to be considered.
Was a forfeiture of firearms within power pursuant to s 34A of the Act?
The essential argument of Ms Chapman who appeared as counsel on behalf of the appellant was that whilst s 34A of the Act gave a court the power to order forfeiture of a firearm or ammunition, this was in circumstances where the Court convicted a person of an offence “against this or any other Act”. In essence the submission of the appellant was that the convictions for Count 1 and 2 were not convictions for offences against an “Act” or any other Act of Parliament, rather they were convictions for offences under the Firearms Regulations 1993 (“the Regulations”).
Section 34A of the Act provides:
34A—Forfeiture of firearms by court
(1)    Where a court convicts a person 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 must make one or more of the following orders:
(a)     Where the firearm, mechanism, fitting or ammunition was owned by the convicted 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 convicted person is subject to specified conditions;
(c)            that a licence held by the convicted person is suspended for a specified period or until further order;
(d)     that a licence held by the convicted person is cancelled;
(e)    that the convicted person is disqualified from holding or obtaining a licence for a specified period or until further order.
(2)    Where, in the course of proceedings before a court, the court forms the view that a party to the proceedings who has possession of a firearm, mechanism, fitting or ammunition is not a fit and proper person to have possession of the firearm, mechanism, fitting or ammunition, the court must make one or more of the following orders:
(a)    that the firearm, mechanism, fitting or ammunition be disposed of in such manner as the court directs;
(b)     that a licence held by the party is subject to specified conditions;
(c)     that a licence held by the party is suspended for a specified period or until further order;
(d)     that a licence held by the party is cancelled;
(e)     that the party is disqualified from holding or obtaining a licence for a specified period or until further order.
The argument of Ms Chapman was that the word “Act” in s 34A has the meaning given by s 4(1) of the Acts Interpretation Act 1915, which states:
(1) In this Act and in every other Act or statutory instrument, unless the contrary intention appears—
Act means—
(a) an Act of the Parliament of South Australia or an Act or ordinance of some earlier legislative authority in South Australia; or
(b) an Act of the Imperial Parliament that has been received into the law of South Australia or applies to South Australia by paramount force;
In Ms Chapman’s submission, the term “Act” in s 3A clearly did not include a regulation. Ms Makiv, counsel for the respondent, submitted that this argument was not correct and that s 4(1) of the Acts Interpretation Act included a definition of the term “this Act”, which was defined as meaning:
This Act when used in an Act, includes statutory instruments made under the Act in which the expression is used.
Section 4(1) also defines statutory instrument as meaning:
(a) a regulation, rule, bi-law or statute made under an Act…
It was therefore argued by Ms Makiv that the words “this or any other Act” was effectively indicating “this Act” or “any other Act”. Using the Acts Interpretation Act, such interpretation would therefore include the Regulations “unless the contrary intention appears”.[1]
[1] Section 4(1) Acts Interpretation Act 1915.
It was submitted by Ms Makiv that there was no contrary indication in the legislation and therefore s 34A is applicable to a conviction under the Regulations.
In considering these arguments I note the following aspects of the Regulations and the Act.
Section 39 of the Act contains the power to make regulations. Section 39(2)(2)(ad) indicates that the regulations may:
prescribe or empower the Registrar to determine requirements for the safe custody of firearms generally, or any specified class of firearms, or ammunition generally, or any specified class of ammunition.
Section 39(2)(g) provides for regulations to “prescribe penalties not exceeding a fine $2,500 for breach of, or non compliance with, any regulation”.
Regulation 29 of the Regulations provides in (1)(b) that a person who has possession of a Class ‘A’ firearm must keep the firearm secured by:
keeping it in a locked cabinet made of hardwood or steel that is securely attached to the building in which it is kept.
Regulation 53 provides that –
A person who contravenes, or fails to comply with the provisions of these Regulations is guilty of an offence.
Maximum penalty: $2,500
As has been said in a number of cases, the Firearms Act and Firearms Regulations contain a comprehensive code for securing and protecting the possession, use and dealing of firearms, as well as safekeeping. If the argument of Ms Chapman is correct, then she points to s 299A of the Criminal Law Consolidation Act 1935 as being the only section under which forfeiture may be ordered following a conviction for an offence under the Regulations.
Having considered these arguments, I am of the view that the submission of Ms Makiv is correct; namely, that s 34A expressly refers to “this… Act”, and in doing so the definition of “this Act” in the Acts Interpretation Act applies. This is consistent with the overall approach to the Firearms Act and Regulations being a comprehensive code. The existence of s 299A of the Criminal Law Consolidation Act, which has a different scope from that in s 34A, does not suggest to the contrary. I therefore consider that the power to order forfeiture under s 34A is applicable to a breach of the Regulations which amounts to an offence, and in respect of which there has been a conviction.
Was the learned Magistrate in error in the order which he made pursuant to s 34A?
The learned Magistrate in his reasons for decision states as follows:
It is for those reasons that I must make the order for forfeiture. I have looked at the legislation and formed the view that I don’t have any discretion as I need to make the order with respect to all the firearms. Having made that order and obviously implicit in making that order, is that I am satisfied that that is the only order that I need to make as distinct from making any other order with respect to the suspension of your client’s firearms licence.
However having said that I am prepared to stay the operation to permit such representations that may be made for the sale or exchange of the firearms to a registered firearms persons.
I am prepared to stay the operation of the order for one month, to 8/5/2006.
It is also to be noted that the endorsement on the file in relation to forfeiture reads as follows:
As to Count 1 …
H/H orders forfeiture of the seized firearms but stays the operation of the forfeiture for a period of one month to 8/5/06 for rept [representation] to the Police for return of one or other F/A [firearm] to defdt [defendant] for sale or disposal otherwise.
As to Count 2 …
H/H orders the forfeiture of the seized ammunition, to the Crown.
As to Count 3 …
H/H orders forfeiture of the seized firearm to the Crown.
There appear to be a number of difficulties with these orders. Section 34A(1)(a) provides that the firearm “be forfeited to the Crown or be disposed of in such other manner as the Court directs”. As can be seen there are two alternatives. The first alternative is that the firearm be forfeited to the Crown. The second alternative is that it be disposed of in such other manner as the Court directs.
With respect to Count 1 it appears that the Magistrate has somehow made a hybrid of the two. On the one hand he has ordered forfeiture, but at the same time ordered that there be a stay. The stay seems to be expressed differently in the reasons for decision than in the endorsement on the file.
In my view this somewhat creative order is not one for which the Court has power under s 34A. It seems to me that the firearm must be either forfeited to the Crown or disposed of as the Court directs. It cannot be both. In my view for that reason alone there is an error. However there is a second error, in that there has been two separate dealings with the same firearm; namely the .177 calibre air rifle which is the subject of the order in Count 1 as well as the order in Count 3.
For these reasons therefore I consider that the Magistrate has erred in the application of s 34A.
Is the penalty manifestly excessive?
The appellant submits that the forfeiture of five of the firearms in Count 1 is manifestly excessive. It is proffered that the forfeiture of the firearms was manifestly excessive having regard to the following circumstances:
·The appellant had no relevant prior convictions.
·She pleaded guilty.
·She had previous good character as indicated by the references tendered on her behalf.
·The appellant had the requisite locked steel cabinet for storage of firearms and her error was in failing to have these firearms secured for a temporary period after she returned from her shooting to the time when she went out for the purposes of getting solvent for their cleaning.
·The appellant had a legitimate reason for the possession and licensing of these firearms, that being her competitive interest in shooting (as distinct from other cases in which persons had possession of firearms for protection against intruders or similar).
·The appellant was an active sporting shooter and these firearms were not only valuable in a monetary sense but were also her own personal sporting equipment.
It was also submitted that the Magistrate erred when he characterised the offending in these terms:
as much as I am moved by Mr Vigar’s submissions and the reports that I have received, this must be in the category of the worst offending as a number of valuable firearms that have left unsecure and unattended. Albeit I accept Mr Vigar’s submission that it would have been for a relatively short period of time but the clear need is for the firearms to be secured so they don’t fall in wrong hands.
It was submitted that in all of the circumstances the Magistrate fell into error in characterising this as “the worst offending” of its type.
Having regard to the overall circumstances of the offences outlined above, together with the personal circumstances of the appellant, the reasons why she has the firearms, and the relative short period of time in which they were unsecured, I am of the view that the Magistrate was in error in characterising the offences as the “worst offending”. On the contrary, I consider that it was a lesser form of offending than many others. There were certainly a number of firearms but the reason for the number of firearms was perfectly understandable given her sporting interest. The fact that all of the firearms were unsecured was understandable because they had been in recent use and they were still out for the purposes of cleaning. They were also unsecured for a relatively short period of time.
There is no doubt that the offending of the appellant was very serious indeed and that a person with her knowledge of firearms should not have been so careless with such firearms. However, having said that, it is not in my view the worst form of offending.
I note that s 34A is discretionary in the sense that although an order is required to be made under s 34A where there has been a conviction in relation to a firearm, it does not necessarily mean that the order should be for forfeiture of the firearm.
Having regard to all of the circumstances and the use and value of these particular firearms, I do not consider it appropriate to have ordered forfeiture of all the firearms.
Another issue is whether s 34A enables a court to order severance; namely whether the forfeiture may be limited to one or more rather than all of the firearms the subject of Count 1 (excluding the firearm in Count 3).

Section 34A appears to suggest that forfeiture may not have to apply to all of the firearms which are the subject of a particular count and that orders other than forfeiture may be made in regard to some firearms and not others.
In this particular case four of the firearms the subject of Count 1 were found in the bedroom and a fifth weapon was found in the unlocked cabinet in the garage. As to the four firearms I see no reason to differentiate between the orders that are made with regard to those. There is an argument that a different order may be made with regard to the one found in the unlocked cabinet.
Whilst it may be possible to segregate out the firearms to be the subject of varying orders, in my view the circumstances whereby the firearms were unsecured seem to have been part of the same process; namely that the cabinet was opened for the purposes of removing certain of the firearms for use and the cabinet was not locked but instead the firearms remained unsecured whilst they were being used and also prior to them being cleaned. I think it appropriate in all of the circumstances to treat all the firearms in Count 1 in a similar way (excluding the firearm which is also the subject of Count 3).
I now come to whether or not in all of the circumstances forfeiture of all firearms was manifestly excessive. In my view it was. There were particular circumstances which led to this careless and serious infringement of the firearms legislation. I take into account there is a need for general deterrence and special deterrence. I have in mind particularly the comments made by Gray J in Offe v Police,[2] with regard to general deterrence:
General deterrence is of great importance in cases of this kind. The community must not be complacent about the dangers of firearms and the damage that can be caused when they are not kept in accordance with the legislative requirements.
[2] (2002) 84 (SASR) 1, 9-10.
I note that the appellant’s firearms have already been confiscated and are still being held by police, and have been so held since August 2005. I consider the fact that the appellant has not had access to her firearms for some time, coupled with the fines, means that a more appropriate sentence is to order that her firearms licence be suspended for a period of two months from the date hereof. This will mean that not only will she not have her own firearms, but she will be restrained from her favoured sport for a period of two months. This would serve as both a personal deterrent as well as a general deterrent. Undoubtedly the whole process of this matter has been a salutary lesson to the appellant and I think so far as special deterrence is concerned, it would be highly unlikely that the appellant would ever repeat this particular offence.
Conclusion
I therefore order that the appeal be allowed and that the order for forfeiture imposed by the Magistrate on 7 April 2006 in respect of Count 1, be set aside and in lieu thereof I suspend South Australian Firearms Licence No 294169P held by the appellant, for a period of two months from the date hereof. In all other respects, the orders of the Magistrate to stand.