R v Hogan

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hogan
Citation:	[2014] ACTSC 254
Hearing Date(s):	8 – 12, 15 – 17 September 2014
DecisionDate:	17 September 2014
Before:	Burns J
Decision:	Burns J makes a non-conviction order directing that the charge (CC13/1925) be dismissed pursuant to s 17 Crimes (Sentencing) Act 2005 (ACT).
Category:	Sentence
Catchwords:	CRIMINAL LAW AND PROCEDURE – Sentence – firearms – failure to store firearm in a locked steel safe of a type approved by the Registrar – non-conviction order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 17 Firearms Act 1996 (ACT) s 182 Magistrates Court Act 1930 (ACT) s 90B
Parties:	R (Crown) Andrew Jay Hogan (Offender)
Representation:	Counsel Ms S Gul (Crown) Mr J Moffett (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Snedden Hall & Gallop Lawyers (Offender)
File Number(s):	SCC 160 of 2014

Burns J:

Andrew Hogan appears before me for sentence with respect to one offence contrary to s 182 (1) (a) of the Firearms Act 1996 (ACT), alleging that on 13 January 2013, being the holder of a category C licence in respect of a Mauser bolt action rifle and a Norica air rifle, he failed to store the said firearms in a locked steel safe of a type approved by the registrar (CC13/1925).

The maximum penalty with respect to this offence is two years' imprisonment. The charge comes before this Court pursuant to the provisions of s 90B of the Magistrates Court Act 1930 (ACT). This particular charge was commenced in the Magistrates Court on 31 July 2013 on which date the accused entered a plea of guilty. It was not until 22 July 2014 that the matter was transferred to this Court, I presume on the basis that it was connected to other related charges which were committed for trial to this Court.

I have before me a Statement of Facts which has not been disputed. Police attended the Mr Hogan’s house in Bonython on 13 January 2013. At about 3.30 am that day, police spoke to the accused and he led them to the garage underneath the house where his rifles were stored. Police observed that the container that the rifles were located in was a clothes locker type, of a thin metal construction which weighed about 25 kilograms. It was not of a type approved by the registrar.

Police noted that the door of the locker was not locked and it was left ajar. Police pushed the upper part of the locker which caused it to rock backwards and forwards. This demonstrated that it was not secured to the floor in any way. Police also took photographs of the locker and firearms in situ.

It has been put to me by counsel for Mr Hogan without objection by the Crown that the locker in which the firearm was regularly kept was capable of being locked by means of a padlock and was usually so locked. It was also put to me that the locker was contained in a garage underneath the house of Mr Hogan and that that garage was also routinely locked. That, of course, does not provide Mr Hogan with any defence to the charge, but it does assist in determining where the present offence lies within the range of offences that may come under this provision. In my opinion, it is at the very bottom of the range of offences of this nature.

I take into account Mr Hogan’s early plea of guilty. I take into account the fact that he has no prior convictions. I note that he is 49 years of age and I also take into account the fact that he has been in the Army Reserve since 1984, having achieved the rank of Warrant Officer class two.

Mr Moffett, who appears on behalf of Mr Hogan, submits that I should deal with the matter by a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT). That course is opposed by the Crown on the basis of the public interest in ensuring that firearms are properly stored. I accept that that is a legitimate issue which the Court needs to weigh. However, I have determined that I will deal with the matter in the way submitted by Mr Moffett based upon the offender’s character, antecedents and age as revealed to me in the course of these proceedings. I also take into account the seriousness of the offence, which as I have said is one which is towards the bottom of the range, if not indeed at the very bottom of the range, of such offences.

Accordingly, without convicting Mr Hogan, I make a non-conviction order directing that the charge be dismissed, having been satisfied that it is not appropriate to impose any punishment on the offender.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.

Associate:

Date: 1 October 2014

The respondent, Mr Hogan, was charged with an offence under s 249A of the Crimes Act 1900 (ACT) for failing to store a firearm in a locked steel safe of a type approved by the Registrar of Firearms. The charge was brought against him following a police investigation into a domestic violence incident involving a firearm. The court heard that the police had attended the respondent’s residence and found a firearm, which was unregistered and loaded, in a locked container that did not meet the criteria for an approved steel safe. The matter was heard in the Magistrates Court of the ACT, where his Honour Judge Burns considered the appropriate sentence for the offence.

The central issue before the court was whether a non-conviction order was an appropriate outcome for the offence. The court had to consider the seriousness of the offence, the culpability of the respondent, and the potential impact of a conviction on the respondent. The court also had to consider the interests of the community, the need to deter similar offences, and the need to ensure the safety of the community. The court heard evidence from the respondent, who admitted to the offence and expressed remorse. The respondent also provided evidence of his good character and the circumstances that led to the offence.

The court found that a non-conviction order was an appropriate outcome for the offence. The court considered that the offence was of moderate seriousness, but that the respondent’s culpability was not high. The court also considered that the respondent had shown genuine remorse and had taken steps to address the issues that led to the offence. The court found that the interests of the community would be best served by a non-conviction order, as it would provide an opportunity for the respondent to address the underlying issues that led to the offence, without the stigma of a criminal conviction. The court also considered that the order would provide an opportunity for the respondent to demonstrate his rehabilitation and reintegration into the community.

Burns J made a non-conviction order directing that the charge be dismissed pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT). The court ordered that the charge be dismissed, but that the respondent be subject to a supervision order for a period of two years. The court also ordered that the respondent be subject to a number of conditions, including that he attend a firearms safety course and that he not possess any firearms or ammunition without a licence. The court ordered that the respondent pay a fine of $500 and costs of $500.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established