Pitchers v Police - [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.

This is an appeal against sentence.
The defendant and appellant, Robin Pitchers, was charged on complaint alleging an offence against section 11(1) of the Firearms Act 1977 (SA)[1] – that on 6 August 2011 he was in possession of a firearm, a Remington .22 rifle, while not licensed to possess such a firearm. This was a minor indictable offence which carried a maximum penalty of a fine of $20,000.00 or imprisonment for four years.[2] The complaint alleged a further offence against regulation 38(1) of the Firearms Regulations 2008 (SA) – that, on the same day, he failed to keep a class B firearm secured. This was a summary offence carrying a maximum penalty of a fine of $2,500.00.[3]
[1] Section 11(1) of the Firearms Act 1977 (SA) provides:
A person who has possession of a firearm without holding a firearms licence authorising possession of that firearm is guilty of an offence.
[2] Firearms Act 1977 (SA) section 11(7)(c).
[3] Firearm Regulations 2008 (SA) regulation 61.
On 16 April 2012, the defendant appeared unrepresented before a special justice in the Adelaide Magistrate Court. He entered pleas of guilty on both counts. The special justice proceeded without conviction to impose the one penalty being a fine of $75.00. In addition, the special justice ordered the defendant to pay prosecution costs fixed at $25.00 and court fees of $207.00. The defendant was required to pay a victims of crime levy of $160.00. Forfeiture of the firearm was also ordered.
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.
Amendments to the Firearms Act in 1966 introduced stricter gun legislation throughout Australia. Parliamentary debates illustrate that the legislation was: [8]
... designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.
[8] South Australia, Parliamentary Debates, House of Assembly, 14 April 1977, 3448 (The Honourable G Payne).
In Offe, I observed that:[9]
… Parliamentary debates indicate that the Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included providing community protection through the licensing and regulation of firearms. The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. …
[9] Offe v Police (2002) 84 SASR 1, [22].
In addition, Sulan J made the following remarks in Jaworski: [10]
Breaches of the Act are serious breaches of the law. The Act imposes a regime which requires strict compliance. The regime of the Act is to ensure that there are adequate safeguards for the safety of the public when persons are in possession of and store firearms.
[Footnote omitted.]
[10] Jaworski v Police [2009] SASC 284, [18] (Sulan J).
It is clear that the legislation imposes a strict obligation on those who possess firearms to ensure they are securely kept and to ensure those who are in possession of a firearm hold a valid licence. The following observation in Offe is pertinent:[11]
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. Not only are weapons targets for thieves, they present a real danger to unsuspecting children and persons who may happen across them accidentally. …
[11] Offe v Police (2002) 84 SASR 1, [26].
The Appeal
The appeal raises several important issues.
Jurisdiction of a Special Justice
The office of special justice is unique to South Australia. In Pollard,[12] I conducted a detailed review of the relevant legislation. The summary that follows is drawn from that review.[13]
[12] Pollard v Police (2010) 267 LSJS 451.
[13] See, Pollard v Police (2010) 267 LSJS 451, [48]-[55].
Section 7A of the Magistrates Court Act 1991 (SA)[14] enables a special justice to constitute the Petty Sessions Division of the Magistrates Court of South Australia. As noted above, the first count of the complaint against the defendant was a minor indictable offence carrying a maximum penalty of $20,000.00 or imprisonment for four years. As such, the first count could not be prosecuted in the Petty Sessions Division of the Magistrates Court. Pursuant to section 9(b) of the Magistrates Court Act, the matter was to proceed in the Criminal Division of the Court. Section 7A also provides that a special justice may constitute the Criminal Division of the Magistrates Court only if there is no Magistrate available and provided a sentence of imprisonment is not imposed.
[14] Section 7A of the Magistrates Court Act 1991 (SA) provides:
(1)Subject to this section, the Court, when sitting to adjudicate on any matter, must be constituted of a Magistrate.
(2)The Court may be constituted of a special justice—
(a)     in its Petty Sessions Division; or
(b)     to hear and determine uncontested applications of a class prescribed by the regulations; or
(c)     in any other case—if there is no Magistrate available,
but, when constituted of a special justice, the Court may not impose a sentence of imprisonment.
(2a) If there is no Magistrate or special justice available to constitute the Court as a bail authority, the Court may be constituted of 2 justices for the purposes of an application under the Bail Act 1985.
(3)The Court may, at any one time, be separately constituted in accordance with this section for the hearing and determination of any number of separate matters.
A review of the daily case list of the Adelaide Magistrates Court for 16 April 2012 reveals that there were five Magistrates sitting in the Criminal Division of the Court on that day and at the time that the special justice heard the matter. It would appear unlikely that the matter could not have been dealt with by one of those Magistrates. No information was placed before the Court to explain why the special justice should have heard the within proceedings. Counsel appearing for the police did not suggest that the matter could not have proceeded before a Magistrate.
There is insufficient evidence as to whether to make a finding that a Magistrate was available to hear the case. As the appeal can be disposed on other grounds, I have determined to make no finding as to whether the special justice had jurisdiction to hear the matter.
Procedural Fairness
The special justice was under an obligation to deal with the defendant in a way that would prevent any unfairness arising because of his lack of representation. Procedural fairness is to be accorded to an unrepresented defendant.[15] Inquires should be made as to whether the defendant has sought legal representation. The consequences of conviction should be explained. The question of an adjournment should be raised.[16]
[15] See Vreeker v Police (2004) 144 A Crim R 544, [19]-[20].
[16] This requirement is explained by Wells J in Cooling v Steel (1971) 2 SASR 249, 250-251:
The defendant was questioned by the special justice as to whether he was aware of and understood the charges made against him. However, the special justice did not raise with the defendant his awareness of the penalty provisions attaching to both counts. Although the special justice raised the topic, the question of legal advice was abruptly put aside when the prosecutor indicated that he would only be seeking a fine. The apparent result of this suggestion was that the special justice determined to proceed with the matter forthwith.
The special justice did not discuss with the defendant the limitations in her qualifications and experience and did not raise with the defendant the question of a transfer of the proceedings to a Magistrate or an adjournment so that a Magistrate could deal with the proceedings. The defendant should have been allowed the opportunity to consider whether he wished to obtain or to seek an adjournment. On the hearing of the appeal, counsel for the police acknowledged that procedural unfairness arose.
Forfeiture Discretion
It was accepted on the appeal that the special justice had failed to advise the defendant that he faced an order for forfeiture, failed to hear his submissions on that topic and further, misunderstood the reach of section 34A, introduced by amendment to the Firearms Act in 2008.
When the defendant attempted to make submissions as to why forfeiture should not be ordered, the special justice interrupted that attempt, informing the defendant that she was obliged to make a forfeiture order. As a consequence, the defendant was not fully heard on this topic.
Further, a reading of the transcript of the hearing before the special justice suggests that no findings were recorded as having been made by the special justice prior to the making of the order for forfeiture of the firearm.
The special justice misapprehended her obligations and powers with respect to forfeiture. The transcript reveals that the special justice considered that she was obliged to order forfeiture.[17] This was a misunderstanding. Section 34A(1), which was last amended in 2008,[18] provides:
[17] The transcript from the hearing before the special justice relevantly provides:
Her Honour: Under the section that has been stated, they are seeking for the actual gun to be forfeited.
…
Her Honour: Under the Firearms Act that is what is needing to be carried out as part of this particular charge and allegation.
[18] This amendment removed the mandatory obligation to order forfeiture.
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.
[Emphasis added.]
It is to be noted that the use of the term “may” can be obligatory in some circumstances.[19] However, regard should be had to the following remarks of the High Court in Ward v Williams in respect of permissive expressions:[20]
… it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. …
[19] See generally, D C Pearce and R D Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) [5.11].
[20] Ward v Williams (1955) 92 CLR 496, 505.
When introducing the Bill for an Act to amend the Firearms Act the Minister for Police, Mineral Resources Development and Urban Development and Planning noted:[21]
This clause deletes references which compel the court to make at least 1 of the orders set out in paragraphs (a) to (e) of section 34A(1) following a person's conviction against an offence involving a firearm, mechanism, fitting or ammunition and inserts references which provide the court with a discretion to make 1 or more of the same orders following a finding of guilt against a person of an offence involving a firearm, mechanism, fitting or ammunition.
Paragraph (f) is added to section 34A(1) to enable the court to order that the person be subject to a firearms prohibition order until further order. …
[Emphasis added.]
[21] South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2065 (The Honourable P Holloway).
It is apparent that section 34A was designed to provide the court with a discretion to make at least one of the orders in paragraphs (a) to (f) of section 34A(1) following a firearm-related offence. As noted above, the special justice proceeded on the misconception that a forfeiture order was mandatory.
Recording a Conviction
Section 16 of the Criminal Law (Sentencing) Act 1988 (SA) provides the Court with discretion to proceed without conviction. The discretion is enlivened if the Court is satisfied that the defendant is unlikely to commit such an offence again, and good reason exists for not recording a conviction. The Court is to have regard to one or more of the following factors in section 16(b) in determining whether good reason exists:
(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
…
Doyle CJ in Siviour-Ashman observed:[22]
A point made in many of the cases is that an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something which it has treated as an offence should routinely be regarded as of trifling significance. …
[22] Siviour-Ashman v Police (2003) 85 SASR 23, [25].

In the present case the offending was not trifling. The defendant’s conduct showed a disregard for his obligations under the legislation. The special justice appeared to simply adopt the prosecutor’s submission that she should proceed without recording convictions. This was inappropriate. The special justice was bound to consider the circumstances to determine whether her discretion not to record a conviction was enlivened and then to exercise that discretion. Her reasons for doing so should have then been recorded.
Absence of Sentencing Remarks
The special justice did not provide any sentencing remarks. This was an important omission. The special justice was obliged to give reasons sufficient to explain to the defendant the reasons for the penalties imposed.
Section 18A of the Sentencing Act
As earlier mentioned, the special justice only imposed one penalty in respect of both offences. It is assumed that the special justice did so pursuant to section 18A of the Sentencing Act, even though section 18A was not expressly mentioned by the special justice at the hearing. The question to be considered is whether section 18A is available in circumstances where the maximum penalty for one offence is a fine or imprisonment, while the maximum penalty for the other offence is only a fine.
In Berzins, I, with David and Stanley JJ agreeing, made the following observation:[23]
As noted above, the Magistrate proceeded pursuant to section 18A to impose the one sentence in respect of both offences. Authorities from this Court suggest that there is a difficulty in the use of section 18A in this way when the two sections attract different sentencing regimes. As the breach of section 74(2) only attracts a fine for a first offence, it was not appropriate to utilise section 18A to deal with that offence at the same time as the offence against section 45(2) as this latter offence involved imprisonment as part of the relevant sentencing regime.[24] In these circumstances, I consider it appropriate to deal with each offence separately.
However, that observation was obiter dictum.
[23] Police v Berzins (2011) 111 SASR 319, [53].
[24] See Police v Golding [1999] SASC 534; Hermel v Police (2000) 76 SASR 336; Sideridis v Police [2001] SASC 90; Coombs v Police [2001] SASC 87; Fitzgerald v Police [2000] SASC 37.
In the present proceedings, counsel for the police submitted that it is permissible pursuant to section 18A to group offences which provide for a fine only with offences which provide for imprisonment, provided that the sentence imposed is one of a fine only. This submission appears to be contrary to the above remarks in Berzins.
Counsel for the police submitted that the observation in Berzins was obiter dictum and that the authorities cited in the above extracted passage were not adverse to the submission of the police. It was said that the authorities cited in Berzins support the proposition that section 18A cannot be utilised to impose a sentence of imprisonment where one or more of the offences dealt with pursuant to section 18A are not punishable by imprisonment. It was further said that they are not authority for a situation where the court imposes a global fine and no imprisonment, where one or more of the offences has imprisonment or a fine as options. Counsel for the police supported this submission by referring to the following remarks of Duggan J in Hermel:[25]
It is my view that, in those cases where a global term of imprisonment is imposed, the individual offences must be punishable by a term of imprisonment. An offence punishable by way of a fine only cannot be one of the offences in respect of which a term of imprisonment is imposed. It would be quite wrong for such an offence to contribute to a composite penalty of imprisonment. The effect would be to impose a term of imprisonment for an offence punishable by a fine, albeit that the sentence of imprisonment, being a global penalty, was passed in respect of a number of offences. A sentence of imprisonment is imposed in respect of each of the offences notwithstanding that the offences are grouped together for the purpose of the composite sentence and it is impossible to identify the contribution which each of them has made to the total.
[25] Hermel v Police (2000) 76 SASR 336, [7].
I have been persuaded by the submissions made by counsel for the police and have concluded that section 18A can be utilised to group offences which provide for a fine only with offences which provide for imprisonment or a fine, provided that the sentence imposed is one of a fine only.
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.
The conduct in respect of which the defendant was charged is that which the legislation was designed to prevent. The defendant’s conduct shows a disregard for the importance of his obligations arising under the legislative scheme. Having regard to the foregoing, I would not interfere with the forfeiture.
A Further Matter
As earlier mentioned, the special justice ordered the defendant to pay court fees of $207.00. I agree with the submission made by counsel for the police that as there were two offences, the court fees should have been fixed at $248.75 instead of $207.00.
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.

When [an unrepresented] defendant answers to his name and the charge is read, before a plea is entered, the court should make sure that the defendant understands the nature of the charge. …
Next, the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. …
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed — especially where the court has the power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. …