Pitchers v Police

Case [2012] SASC 171

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

PITCHERS v POLICE

[2012] SASC 171

Judgment of The Honourable Justice Gray

27 September 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - CONSTITUTION OF COURT AND GENERALLY - SOUTH AUSTRALIA

CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - DISCRETION TO MAKE ORDER - GENERALLY

Appeal against sentence - the appellant pleaded guilty before a special justice to possession of a firearm without a licence contrary to section 11(1) of the Firearms Act 1977 (SA) and to failure to keep a class B firearm secured contrary to regulation 38(1) of the Firearms Regulations 2008 (SA) - the appellant was unrepresented before the special justice and on appeal - the special justice proceeded without conviction to impose a fine of $75.00 and to order forfeiture of the firearm - the appellant was also ordered to pay prosecution costs of $25.00 and court fees of $207.00 - a victims of crime levy of $160.00 was imposed - the issue raised by the appellant was whether the order of forfeiture should be set aside - additional issues were identified at the hearing of the appeal - whether the special justice had jurisdiction to hear the matter - whether the defendant was accorded procedural fairness - whether convictions should have been recorded - whether the special justice erred in utilising section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one penalty for the two offences - whether the amounts imposed for the court fees and victims of crime levy were correct.

Held: Appeal dismissed - the special justice made a number of errors - however, after reconsideration, the order of forfeiture was not set aside - the amounts imposed for the court fees and victims of crime levy will be the subject of administrative correction.

Firearms Act 1977 (SA) s 11 and s 34A; Magistrates Court Act 1991 (SA) s 7A and s 9; Criminal Law (Sentencing) Act 1988 (SA) s 16 and 18A; Firearms Regulations 2008 (SA) reg 38 and reg 61, referred to.
Johnson v Registrar of Firearms (2001) 79 SASR 353; Offe v Police (2002) 84 SASR 1; Jaworski v Police [2009] SASC 284; Davies v Registrar of Firearms [2005] SASC 149; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Pollard v Police (2010) 267 LSJS 451; Vreeker v Police (2004) 144 A Crim R 544; Cooling v Steel (1971) 2 SASR 249; Siviour-Ashman v Police (2003) 85 SASR 23; Hermel v Police (2000) 76 SASR 336; Police v Berzins (2011) 111 SASR 319; Ward v Williams (1955) 92 CLR 496, considered.

PITCHERS v POLICE
[2012] SASC 171

Magistrates Appeal

GRAY J.

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Pitchers v Police [2012] SASC 171
Case
[2012] SASC 171
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CaseChat Overview and Summary

The case of Pitchers v Police concerned an appeal against a sentence imposed by a special justice in South Australia. The appellant pleaded guilty to possession of a firearm without a licence and failure to keep a class B firearm secured. The special justice imposed a fine of $75.00 and ordered the forfeiture of the firearm, along with other costs and levies. The appellant challenged the forfeiture order and raised several other issues, including the special justice's jurisdiction, procedural fairness, the recording of convictions, the imposition of a single penalty for two offences, and the correctness of the court fees and victims of crime levy. The appeal was dismissed, with the court finding that while the special justice made several errors, the order of forfeiture was not set aside and administrative corrections would be made to the court fees and victims of crime levy.

The key legal issues in the appeal were whether the special justice had jurisdiction to hear the matter, whether the defendant was afforded procedural fairness, whether convictions should have been recorded, whether the special justice correctly imposed a single penalty for two offences, and whether the amounts imposed for court fees and the victims of crime levy were correct. The court held that the special justice's use of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single penalty for both offences was appropriate, and that the errors in the calculation of court fees and the victims of crime levy would be administratively corrected. Despite the errors made by the special justice, the court decided not to alter the sentence imposed regarding the fine or the order for prosecution costs, due to the flawed nature of the proceedings. The court did, however, review the order of forfeiture and considered it appropriate not to set it aside in the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

The defendant was unrepresented at the hearing of the appeal. The defendant sought that the order of forfeiture be set aside. The police complained on the hearing of the appeal that if this Court were to resentence in respect of the forfeiture that the whole sentence should be revisited and, in particular, that a more substantial fine should be imposed. It was also pointed out that as there were two offences, court fees should have been fixed at $248.75 instead of $207.00 and that the victims of crime levy should have been imposed at $160.00 for the summary offence and at $260.00 for the minor indictable offence, making a total of $420.00 instead of $160.00. Background On 6 August 2011, the police attended at the residence of the defendant at Waterfall Gully. They were aware that the defendant’s firearm licence had expired in May 2011 and consequently, had reasonable cause to suspect that the defendant was in possession of a firearm at the premises that was liable for seizure. The defendant took them to a small unlocked room under a stairwell where the firearm was stored. There was no mechanism for locking the door or otherwise restricting access to the area. The rifle was not secured in the manner required by regulation 38. The defendant explained to the Court that he had not received notice of the need to renew his firearm licence. Apparently he encountered difficulties with mail going astray and had requested that the renewal notice be forwarded to his work address. He claimed that this may not have occurred. The defendant explained that he usually kept the rifle in a locked cupboard, but that the lock had malfunctioned and as a consequence, he had concealed the rifle under the stairwell as he considered this was a secure location. He planned to make arrangements to have the cupboard taken to a locksmith for the fitting of a new locking mechanism. Subsequently to 6 August 2011, the defendant obtained a firearms licence. Apparently the defendant used the rifle for the purpose of shooting foxes. It should be noted that although Waterfall Gully forms part of suburban Adelaide, it abuts part of the Adelaide foothills and has a semi-rural aspect.The Legislative Scheme The Firearms Act provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing.[4] As discussed in Johnson v Registrar of Firearms,[5] a primary aim of the Firearms Act is to ensure public safety when persons are in possession of and store firearms.[6] Similar observations were made by Mullighan J in Registrar of Firearms v Gitsham:[7]… The provisions of the Act and the Regulations provide close regulation of the acquisition, possession, use, registration and transfer of firearms in the interests of public safety.[4] See Johnson v Registrar of Firearms (2001) 79 SASR 353, [7]; Offe v Police (2002) 84 SASR 1, [22].[5] Johnson v Registrar of Firearms (2001) 79 SASR 353, [16].[6] Jaworski v Police [2009] SASC 284, [22] (Sulan J); Davies v Registrar of Firearms [2005] SASC 149, [13]. [7] Registrar of Firearms v Gitsham (2002) 84 SASR 72, 76.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
The defendant was also required to pay a victims of crime levy of $160.00. An error was made in the calculation of this fee. A victims of crime levy should have been imposed at $160.00 for the summary offence and at $260.00 for the minor indictable offence, making a total of $420.00 instead of $160.00. It would appear that these are administrative errors and can be corrected as part of an administrative process.Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

In the present proceedings, it is evident that the special justice decided to impose a fine in respect of the first offence, namely the offence which was punishable by imprisonment or a fine. Having done so, the special justice was entitled to use section 18A to impose the one penalty of a fine in respect of both offences. I am therefore of the opinion that the special justice was acting within jurisdiction in imposing a single penalty of a fine in respect of both offences. A Reconsideration It is evident that the special justice made a number of errors when sentencing the defendant. A contributing cause of these errors may have been that the special justice was a judicial officer without any apparent legal qualifications and was addressed by an unrepresented defendant and by a police prosecutor, also without any apparent legal qualifications. A review of the transcript suggests that the special justice did little more than adopt the submissions and suggestions advanced by the police prosecutor. To simply follow suggestions and submissions of a police prosecutor has a tendency to undermine the integrity and independence of the process and to impair public confidence in the Court. In the ordinary course, the errors made by the special justice would result in the defendant being resentenced. However, as is explained in the reasons that follow, in the present proceedings, I consider it is appropriate not to alter the sentence imposed by the special justice. Changes to the amounts imposed for court fees and the victims of crime levy are to be the subject of administrative correction. In my view, there is much force in the submission of the police that the defendant’s offending should have led to convictions being recorded and substantial fines being imposed. However, having regard to the flawed approach to the proceedings, both as to the judicial officer presiding and as to the conduct of the proceedings, I consider that it would be unfair to interfere with the special justice’s orders in respect of the fine imposed or the order in respect of prosecution costs. It remains to consider the question of forfeiture. The Court has a discretion to order forfeiture of a firearm. This is a discretion to be exercised judicially having regard to the circumstances of the offence and the antecedents of the defendant. In the present proceedings, as noted above, the special justice failed to address her discretion. In these circumstances her order of forfeiture should be reviewed. If possible, this Court should determine the question rather than remit the matter for consideration. The defendant acknowledged that he had no excuse for his offending. His conduct was plainly negligent. The failure to adequately secure the firearm is of concern. The firearm was more easily accessible under the stairwell than had it been in a locked cupboard. Preferable methods of dealing with the lock malfunction were available to the defendant. However, the defendant has no prior convictions and since his conviction, his licence has been renewed and he has seen to the repair of the locking device on his gun cupboard.