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 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.
The writer then suggested that his client had an “otherwise perfect record” and sought that no conviction be recorded. The writer also requested that rather than ordering “that the firearms be forfeited to the police for the period of disqualification”, that they might be held by a nominated family member with a firearms licence for that period. The name and address of such a person was provided.
The police prosecutor earlier referred to further deposes that when the matter was called for hearing on 25 June there was no appearance by the appellant or any representative. The magistrate stated that he had a copy of the letter from the appellant’s solicitors addressed to the registrar. He formally recorded the plea of guilty to each offence and then the matter proceeded by way of submissions. The prosecutor deposes that he read the police version of the offences to the court. It was based upon the police apprehension report. It included assertions to the effect that police on plain clothes duties attended at the appellant’s house at Renmark on the morning of 16 August 2007 in relation to unrelated matters and a search took place by authority of a general search warrant. The firearm in question was located within a free-standing unlocked cabinet in the main bedroom, along with several boxes of ammunition. When spoken to about the firearm and ammunition the appellant declined to answer any questions.
The prosecutor’s account of the submissions he made includes an acknowledgment that the appellant had no prior convictions. He put to the magistrate, however, that the appellant “[did] not have a perfect record with regard to firearms”. He then told the magistrate that “in 1996 police attended at the appellant’s home address at Falcon Street, Renmark, with regard to a self-loading firearm which was required to be surrendered. The appellant subsequently reported to police that this high powered, self-loading rifle [a Valmet] was lost, and a police incident report was completed.” He went on to say words to the effect “the appellant has previously reported two other firearms, registered to be stored at the appellant’s premises, as lost or stolen”. He advised the magistrate that the appellant has eleven firearms registered in her name, including shotguns and high powered rifles. He submitted that she should be convicted and her firearms licence cancelled.
It is accepted by both counsel that the magistrate did not deliver remarks on penalty beyond saying that he found there was no reason not to record convictions. (I am prepared to assume that is correct for the purpose of this appeal, but any further brief remark might not have been recorded by the prosecutor or clerk in the circumstances.) His Honour imposed a total fine of $400 and cancelled the appellant’s firearms licence. He further disqualified the appellant from holding or obtaining a licence for twelve months. He forfeited the firearm and ammunition to the Crown.
It is now accepted by counsel for the respondent, Mr S Davey, that in at least two respects the information put to the magistrate by the prosecutor was incorrect. Affidavit evidence before me shows that in relation to the two earlier incidents it was not the appellant who reported the loss of the firearms, but rather her husband. It appears that while the October 1996 report related to the Valmet rifle, registered in March 1996 to the appellant, the other two firearms reported on a separate occasion as being lost or stolen were registered in the name of her husband. And those two firearms were not required to be stored at the appellant’s home, although it appears they were. Counsel for the respondent submitted that these errors were not material; that is, they could not have had any impact on the disposition of the matter.
It is noteworthy that the allegations as to the two earlier incidents when firearms registered to the appellant or her husband had apparently been lost or stolen were not mentioned in the apprehension report, a copy of which was sent to the appellant’s solicitor. Nor did the police prosecutor mention them to the appellant’s solicitor when he spoke with him by telephone. At that stage he might not have adverted to them.
Counsel for the appellant submits that raising the previous reports in submissions before the magistrate amounted to a contradiction of the earlier expressed police position that the appellant had “no history”. It was submitted that if any mention of such events were to be made by the prosecutor in court, then in light of the earlier communications the prosecutor should first have advised the appellant’s solicitor of his intention. Counsel suggested that the police prosecutor had a duty to advise the appellant of any departure from the representations which he, or any of the officers concerned, had earlier made to the appellant’s solicitor. The upshot of the prosecutor’s conduct was that material was placed before the magistrate in relation to which the appellant had had no opportunity to instruct upon. It was suggested that had the appellant known that earlier conduct was to be raised, she might have determined to be present at the hearing or, at least, to have provided instructions which could have been placed before the magistrate in an effort to neutralise any prejudice arising from them.
I should mention that the procedure undertaken by the appellant involving provision of a letter to the magistrate appears to have been loosely based on s 57A and s 62B of the Summary Procedure Act 1921. Parliament has, in those sections, set out with some detail the requirements associated with the process of entering a written plea of guilty and its consequences. One of those is that a defendant taking advantage of the procedure need not attend in answer to the summons: s 57A(6).
Section 57A did not apply because the complainant did not employ “a form of complaint and summons bearing the endorsements prescribed by the rules”. It is not clear to me whether that was a deliberate choice. But it meant that the applicant should have appeared in answer to the summons. Whilst the police could be asked whether any point would be taken about the defendant’s non-attendance (as was done) it was, strictly, for the court to excuse her absence, if it chose to.
Although I make no criticism of those involved I think it would have been better if the correct procedure had been followed, if available. Among other things, that would have directed the minds of all concerned to the provisions of s 62B Summary Procedures Act. I note that in s 62B(5) a procedure is provided for circumstances in which the submissions put in the written plea “differ substantially in relevant particulars from the matters recited to the court by the prosecutor”. Nonetheless, I do not suggest that there was any such substantial difference in this case. In the event I consider that the appellant cannot now seek to gain any advantage on the basis of the departure from the correct procedures, which she instigated.
Analysis
In my view when a defendant takes advantage of the procedure enabling entry of a written plea of guilty and thereby gives up the opportunity to be present and to hear submissions and respond to them, the circumstances in which he or she can afterwards be heard to complain of the procedure are limited. Here, the solicitor for the appellant did what he could to ascertain what would be put to the court and what position the prosecutor would take as to the disposition of the matter. No doubt that informed the appellant’s approach to the hearing. However, I refute the suggestion that the police prosecutor owed a duty to the appellant to strictly adhere in his submissions to those matters he, or other officers, had foreshadowed to her solicitor. It would be quite unrealistic to expect that a prosecutor would be fully briefed as to the file at the time when such a conversation took place, in advance of the hearing. Moreover, at the hearing, interchange with the bench might cause him to revise any predetermined attitude.
There is no suggestion in this matter that the prosecutor either deliberately withheld relevant information from the appellant’s solicitor at the time of their conversation or that anything he said to the solicitor was incorrect or misleading. Instances such as those could raise different considerations. I agree with the submission of Mr Davey that the errors later made by the prosecutor in his submissions about the two earlier incidents were insignificant having regard to the potential use of the information.
I consider that the relevance of the two prior incidents concerning loss or theft of weapons was that the appellant’s mind must have been forced previously to focus on one of the several reasons for the legal requirement that firearms be properly secured and the need to employ care in storing them. It is difficult to see how any other use could have been made of them by the magistrate. It was not suggested to the magistrate that the previous incidents involved any breach of law, however technical, or that they had an adverse impact on the appellant’s good character. In my view the 1996 incident was a relevant matter to be put to the magistrate and could well have affected his assessment of the seriousness of the offences before him. The second incident, which turned out to involve firearms registered to her husband, could only have underscored the other. It added nothing of a different dimension. I do not think the incidents could have prejudiced the appellant’s interests in any impermissible way. I conclude that the errors made by the prosecutor could not have caused the sentencing discretion to miscarry.
I turn to the penalty involved. There can be no legitimate complaint about the extent of the fine imposed, which was in the amount of $400 for both offences, as against the combined maximum for the two offences of $5,000. The gravamen of the appeal relates to the recording of a conviction and forfeiture of the firearm and ammunition.
It is well established that in sentencing for regulatory offences, general and personal deterrence is a paramount consideration. The recording of a conviction is one way in which deterrence can be reflected. Generally speaking the imposition of a penalty for such offences without recording a conviction will be uncommon. It is true that the appellant was shown to be a person of good character living in the country on a vineyard, who might be expected to have need of one or more firearms. However, the circumstances in which the weapon had been used on the previous evening by the appellant were colourable and, because of the loss of a weapon registered in her name previously, the appellant should have been especially vigilant to ensure that weapons and ammunition were stored strictly in compliance with the law.
In my view the magistrate was entitled to view these offences as something more serious than the usual breach. In any event imposition of penalty and selection of the additional measures under s 34A Firearms Act was very much a matter for the magistrate’s discretion. I do not think it is instructive to compare this penalty with any other handed down by the magistrate on the same day, as counsel sought to do. In my view there is no reason to apprehend that the penalty was outside the range available on the facts of the case.
I turn to the further complaint – added a few days or so before the hearing – that no reasons, or no sufficient reasons, were provided by the magistrate for the penalty determined upon. There are two issues. The first is whether a magistrate is, generally speaking, obliged to give reasons when imposing a penalty and making orders of the nature imposed here. The second is, assuming there is such an obligation, whether it applies notwithstanding the absence of the defendant.
In Hodgson v Police [2002] SASC 35 the Chief Justice dealt with an appeal against the penalty imposed after a plea of guilty to a charge of assault. The magistrate had recorded a conviction and fined the appellant $500. The focus of the appeal was upon the recording of a conviction. No reasons were given by the magistrate. In his judgment the Chief Justice observed that it had not been authoritatively determined that a failure to give reasons for sentence on a plea of guilty by a court of summary jurisdiction amounted to an error of law. Whilst there were cases in which it had been suggested that the resolution of a factual dispute or the imposition of a custodial sentence would generally require the giving of some reasons, where there was no factual dispute and a relatively modest penalty was imposed there would not necessarily be any error. See also Rowland v Police (2001) 79 SASR 569, 573 per Perry J.

As earlier set out, the evidence before me is that in imposing penalty the magistrate indicated that he found there was no reason not to record convictions for the offences. Bearing in mind the nature of the charges and the disposition determined upon, I would not be prepared to find that the magistrate was in error in choosing not to amplify his reasons for the orders made.
Furthermore, it seems to me that in circumstances where the defendant was purposefully absent and unrepresented, any duty otherwise imposed on the magistrate might not apply. There is support for that view in the terms of s 9(1) Criminal Law (Sentencing) Act. That provides as follows:
(1) A court must, upon sentencing a defendant who is present in court –
(a) state its reasons for imposing the sentence; and
(b)cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(emphasis added)
The implication of the way in which the subsection is framed is that whilst reasons for sentence must be given when a defendant is present, there is no corresponding duty to give reasons when he is not. That position could be a reflection of the principle underlining the observation of Wells J in Shrubsole v Rodriguez (1978) 18 SASR 233 at 235 that remarks on sentence are “primarily spoken to and for the benefit of the prisoner, and only secondarily to and for the benefit of the world at large”. That is not to say that there may not be occasions where a magistrate would think it appropriate to explain the reasons for a decision, even where a defendant were absent. That might be so, for example, where a matter was finely balanced or where the written submissions provided by the defendant sought an outcome quite different from that suggested by the police.
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.