R v Moy

[2016] QDC 287

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Moy [2016] QDC 287

PARTIES:

THE QUEEN

v

BENJAMIN MOY
(defendant)

FILE NO/S:

Dalby 6/16

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

21 October 2016

DELIVERED AT:

Dalby

HEARING DATE:

21 October 2016 

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.   THE APPEAL BE DIMISSED.

CATCHWORDS:

CRIMINAL LAW- APPEAL AND NEW TRIAL- APPEAL AGAINST SENTENCE- GROUNDS FOR INTERFERENCE-GENERALLY- where conviction on charge of possessing an unregistered fire arm- where fire arm forfeited to the Crown-  where appeal against forfeiture order- where order sought for firearm to be transported to a registered firearm dealer or broker to be sold- whether error made at first instance- where appeal based on misunderstanding of the nature and effect of forfeiture- where upon forfeiture, firearm becomes state property- where no error identified in order made at first instance- where appeal dismissed.

COUNSEL:

Mr P O’Connor for the Crown

Self-Represented defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Self-Represented defendant

HIS HONOUR: All right. Well, these are my reasons. On 26 July 2016 the appellant, Mr Benjamin Moy, was convicted, on his own guilty plea, of one count of possession of an unregistered firearm. That offence is created by section 50A of the Weapons Act 1990.  The weapon in question was a .22 calibre Mossberg rifle.  Mr Moy was fined $300. No conviction was recorded.  It was ordered that the rifle be forfeited to the Crown.  It is, essentially, against that forfeiture order that Mr Moy appeals.  He seeks an order that, for reasons of his financial hardship, the rifle be transported to a registered firearms dealer or broker to be sold.

On the hearing of the charge, Mr Moy was legally represented.  The police prosecutor, in the course of submissions said:

The defendant stated he knew that the rifle was unregistered.  He got it off a friend several years ago, fully cooperated with police, remorseful for his actions, issued with a notice to appear, property to be forfeited.

The reference to property to be forfeited ought be taken to be an application by the prosecutor for a forfeiture order, rather than a concession having been made by Mr Moy.  In her submissions on behalf of Mr Moy, having referred to his antecedents, work and family history and financial circumstances, Ms Peters said:

He agrees with the facts outlined by the prosecution.  He’s always kept the weapon safe and secured, he cooperated fully with the police and I’d ask your Honour to take that into consideration and consider imposing a fine and not recording a conviction against him.

No opposition was voiced against the prosecution’s application for a forfeiture order. 

The making of the forfeiture order by the learned magistrate was entirely orthodox. Section 155(1)(c) of the Weapons Act provides, relevantly, that where a person is convicted of an offence, the court may order that any weapon owned, or in the possession of that person, is forfeited to the Crown. 

Annexed to Mr Moy’s appeal notice is a guide to Form 28 under the Weapons Act.  Form 28, under the Act, is an application for a Permit to Acquire.  A Permit to Acquire may be issued under the Act.

Mr Moy highlights, as being very important, that part of the guide to the application which refers to weapons held in safe keeping, which states that if the weapon being acquired is currently held in safekeeping, a signed letter from the registered owner confirming details of the weapon, and authorising the sale and disposal of the nominated weapon, must be provided.

Also attached to his appeal notice is a document dated 8 August 2016 in which Mr Moy states that he presently has the Permit to Acquire paperwork, and that he has spoken to a particular nominated dealer and broker who is agreeable to take the

weapon.  Indeed, he also attaches to his application a letter from that dealer indicating that willingness.  Mr Moy goes on to state that he is the property owner and confirms the details of the rifle.  He states that that document is his letter of authorisation.

Unfortunately, Mr Moy’s appeal proceeds upon a misunderstanding of the nature and effect of the forfeiture order made by the learned magistrate and upon a subsequent misunderstanding that he is the owner of the rifle. Upon its forfeiture to the State, pursuant to her Honour’s order, pursuant to section 721(1) of the Police Powers and Responsibilities Act 2000, the rifle became the property of the State and could be dealt with by the Commissioner of Police as he considers appropriate.  It may be sold at public auction; but the proceeds are to be applied to meet the expenses of the sale, then the expenses of seizure and storage, then, ultimately, to the consolidated fund.

Mr Moy’s appeal identifies no error in the order made by the learned magistrate which, as I have said, was an entirely orthodox exercise of her Honour’s discretion. It could not be said that the making of that forfeiture order was excessive, that being the only ground upon which a person who has pleaded guilty may appeal: see section 222(2)(c) the Justices Act 1886. 

For those reasons, and because Mr Moy’s appeal is based upon a false premise, that being the continued ownership of the rifle, the appeal must be dismissed.

There is a further impediment to the appeal.  It is without utility.  The weapon was destroyed by the police armourer on 5 October 2016.  Sergeant Mark Avent has deposed to his having discussions with the appellant on 5 and 10 September 2016 in which the appellant discussed with him having the rifle sold, with a view to receiving the proceeds.  Sergeant Avent explained to him, the appellant, that the firearm had been forfeited to the Crown and was due to be destroyed. 

It was perhaps regrettable that the firearm was destroyed after police became aware of the appeal.  However, its preservation until the resolution of the appeal would have been to no practical effect.  For the reasons I have given, the appeal would always have been unsuccessful and the applicant’s understanding that he was still the owner of the rifle was not correct.  The rifle was the property of the Crown.  There was nothing improper in its destruction. 

I should note that references made in the material to another weapon of Mr Moy’s, a shotgun, which was taken into safe storage by police at the same time as the rifle.  That weapon was registered and was not, therefore, the subject of any proceedings.  Her Honour’s order is not in respect of it.  Mr Moy’s ownership of that weapon has not been forfeited to the State.  However, it is not a matter in respect of which this court has any jurisdiction on the appeal. 

The formal order is the appeal be dismissed.

MR O'CONNOR:   Your Honour, the Crown’s not seeking costs.

HIS HONOUR:   No order as to costs.  Mr Moy, thank you for your time on the telephone.  You will have understood from all of that that, despite any consideration of your circumstances, the appeal just simply is one that had to be dismissed.  You can hang up now, Mr Moy.

APPELLANT:   Thank you, your Honour.

HIS HONOUR:   Thank you.

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