Perre v Police - [2007] SASC 347

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PERRE v POLICE
[2007] SASC 347
Judgment of The Honourable Justice Vanstone
27 September 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS
Appellant pleaded guilty to failing to keep a firearm secure and failing to correctly store ammunition - plea entered and submissions made by way of letter from appellant's solicitors to Magistrates Court - no appearance before magistrate by appellant or representative - whether content of conversation between police prosecutor and appellant's solicitors prior to hearing restricted content of submissions that could be made in absence of defendant - whether duty on prosecutor to disclose submissions to be made. Held: no duty on the police prosecutor to strictly adhere in his submissions to matters foreshadowed.
Whether penalty including conviction, fine and forfeiture disproportionate to offending. Held: magistrate entitled to view offending as more serious than the usual breach, penalty within magistrate's discretion.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS
Whether insufficient reasons for penalty provided - whether magistrate obliged to give reasons when imposing penalty of this nature - whether any obligation to give reasons notwithstanding absence of defendant. Held: no error by magistrate in giving only brief reasons.
Firearms Regulations 1993 reg 29(1), reg 32(1), reg 53; Firearms Act 1977 s 34A; Criminal Law (Sentencing) Act 1988 s 9(1), s 16; Summary Procedure Act 1921 s 57A, s 62B, referred to.
Hodgson v Police [2002] SASC 35; Rowland v Police (2001) 79 SASR 569, applied.
Vreeker v Police (2004) 144 A Crim R 544`; Golding v Police [2007] SASC 159, distinguished.
Shrubsole v Rodriguez (1978) 18 SASR 233, considered.

PERRE v POLICE
[2007] SASC 347
Magistrates Appeals
Criminal
VANSTONE J:
Introduction

Rita Perre appeals against the penalty imposed after pleading guilty to two breaches of the Firearms Regulations 1993 in the Berri Magistrates Court. The plea was entered by way of a letter written by the appellant’s solicitors to the registrar of the court. Submissions in mitigation were outlined in the solicitors’ letter. A copy was sent to the police prosecutor and followed up with a telephone conversation with the prosecutor. The appellant’s principal complaint is that having agreed in that conversation that the appellant had “no history”, the prosecutor made submissions to the court outlining two earlier occasions when firearms linked to the appellant or her husband were reported to be lost or stolen. The penalty imposed was, according to the appellant, disproportionate to the offending.
This appeal raises the question of the extent of the duty on a prosecutor…

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 Perre v Police

Details

AGLC: Perre v Police [2007] SASC 347
Case: [2007] SASC 347
Decision Date: 27 September 2007

CaseChat Overview and Summary

In this case, the appellant was convicted by the Magistrates Court of South Australia for failing to keep a firearm secure and failing to correctly store ammunition. The appellant entered a guilty plea, and submissions were made by the appellant's solicitors via a letter to the Magistrates Court. The appellant did not appear before the magistrate, nor was any legal representative present on their behalf. The central issue in the appeal was whether the content of a conversation between the police prosecutor and the appellant's solicitors prior to the hearing restricted the content of the submissions that could be made in the absence of the defendant, and if there was a duty on the prosecutor to disclose their submissions to the court.

The court found that there was no duty on the police prosecutor to strictly adhere to matters foreshadowed in the conversation with the appellant's solicitors. The court held that the prosecutor was not obligated to strictly follow the contents of the conversation with the solicitors, and that the prosecutor was free to make submissions as they saw fit based on the circumstances of the case. The court further held that the prosecutor's decision not to disclose the contents of the conversation with the solicitors to the court did not prejudice the appellant's case, as the appellant had already pleaded guilty and the submissions made by the solicitors were not contested.

The appeal was dismissed, and no new trial or inquiry after conviction was ordered. The court found that none of the grounds of appeal were made out, and that the magistrate's decision was correct. The court did not find any error in the magistrate's decision or in the prosecutor's submissions. The decision in this case clarifies the extent of the duty on a prosecutor to disclose submissions to be made at a future hearing, when it is known that neither the defendant nor a legal representative will be present.

Orders

Orders of the court

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Background

Background to the litigation

This appeal raises the question of the extent of the duty on a prosecutor to disclose submissions to be made at a future hearing, when it is known that neither the defendant nor a legal representative will be present. Background The offences to which the appellant pleaded guilty were failing to keep a firearm secure in accordance with reg 29(1) Firearms Regulations 1993 (“the regulations”) and failing to store ammunition in a locked container separate from firearms contrary to reg 32(1). The weapon involved was a Mauser bolt-action rifle and the ammunition consisted of several boxes of .308 calibre and other rounds. The firearm is a Class B weapon. The maximum penalty for each count is a fine of $2,500: reg 53. Under s34A Firearms Act 1977 a court convicting a person of an offence involving a firearm or ammunition must also make one or more of several punitive orders, including forfeiture, cancellation, suspension or imposition of conditions on the person’s licence, or disqualification from holding a licence. The section has been held to apply where s 16 Criminal Law (Sentencing) Act 1988 is used to impose a penalty without recording a conviction: Vreeker v Police (2004) 144 A Crim R 544; Golding v Police [2007] SASC 159. It is not necessary here to consider those cases. The events leading to the hearing occurred as follows. The complaint and summons containing the charges was served on 25 May 2007. On 4 June 2007 the appellant’s solicitors wrote to the police at Berri requesting a copy of the police apprehension report and “details of any history”. They also sought an indication of the informant’s “attitude in regard to penalty”. The apprehension report was forwarded to the solicitors on 13 June, together with the advice that the appellant had “no history”. The writer indicated that the other requests were being handed on to a prosecutor. Later that day Sergeant Yeomans sent another facsimile letter advising, “… your client does not have any history. A fine and a suspension of the firearms licence for a month is the usual outcome for a file such as this.” By affidavit dated 11 September 2007 the appellant’s solicitor deposes that on 22 June he received a telephone call from the police prosecutor who had conduct of the matter advising that he would oppose the submission that no conviction should be recorded. The prosecutor was attributed with the statement that he had no view either way as regards orders for forfeiture of the firearm and ammunition. In his affidavit dated 8 August 2007 the prosecutor deposes to the fact that his telephone call was prompted by his having received, on 13 June, a copy letter bearing the same date from the solicitors, addressed to the registrar of the Berri Magistrates Court. On the same day, presumably after that telephone call, the appellant’s solicitors sent that letter, dated 13 June, to the registrar of the Berri Magistrates Court. It advised that the appellant had instructed them to plead guilty “on her behalf by way of this correspondence in relation to both counts”. The writer then purported to outline instructions in support of the submission that the offences should “attract a penalty at the lower end of the scale”. The circumstances surrounding the incident were set out. They were said to have arisen from a “lapse in concentration”. The solicitors wrote:The night before the date of the offence our client had been using the firearm in an attempt to keep birds away from the vines on the family farm. This continued until late at night after which time our client sought to store the firearm and ammunition in the bedroom cupboard overnight to be properly secured the following morning. …Furthermore, our client has no history and is a person of good character. She has been a firearms owner for many years and this is the first and only breach of firearms regulations that our client has ever encountered.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

My conclusion is, then, that the magistrate was not in error in giving only the briefest of reasons. Although I was prepared to allow an amendment to the notice of appeal to include this ground, I find that it is without merit. Conclusion None of the grounds of appeal is made out. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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