Ridge v Bartels

[2003] TASSC 3

[2003] TASSC 3

CITATION:              Ridge v Bartels [2003] TASSC 3

PARTIES:  RIDGE, Leonie Grace
  v
  BARTELS, Roger Douglas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 11/2002
DELIVERED ON:  17 February 2003
DELIVERED AT:  Burnie
HEARING DATES:  4 February 2003
JUDGMENT OF:  Underwood J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Purpose of the sentence - Deterrence - Failure to keep firearm in locked receptacle.

Firearms Act 1996 (Tas), s85.

Aust Dig Criminal Law [827]

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law officer - Other matters - Re-sentencing - Double jeopardy on a prosecution appeal from an order made in a court of petty sessions.

R v Tait (1979) 24 ALR 473; R v Wilton (1981) 28 SASR 362 at 367; R v Peterson [1984] WAR 329; Attorney-General v Dowie (1989) 42 A Crim R 234, referred to.
Attorney-General v  McDonald [2002] TASSC 120, applied.
Aust Dig Criminal Law [1025]

REPRESENTATION:

Counsel:
             Appellant:  K E Brown
             Respondent:  S G Wright
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  McGrath & Co

Judgment Number:  [2003] TASSC 3
Number of Paragraphs:  17

Serial No 3/2003
File No LCA 11/2002

LEONIE GRACE RIDGE v ROGER DOUGLAS BARTELS

REASONS FOR JUDGMENT  UNDERWOOD J

17 February 2003

1. The respondent was charged with committing a breach of the Firearms Act 1996 ("the Act"), s85(1). The complaint alleged that the breach occurred in that the respondent failed to store his licensed .22 calibre Norinco rifle "in a locked receptacle of an approved type" when not in use. This offence was alleged to have been committed on 20 December 2001.

1. The proceedings followed a lengthy, and somewhat tortured, course. A plea of not guilty was eventually followed by evidence over two days from two police officers and the respondent and his wife. At the conclusion of that evidence, the police prosecutor applied to re-open the prosecution case. The learned magistrate then took the somewhat unusual, but in the circumstances, understandable course of indicating his tentative views of the evidence given thus far. He then said that at the highest, the respondent had only committed a technical breach of the Act. Thereupon, the respondent sought leave to change his plea from not guilty to guilty. Leave was given and a plea of guilty was duly entered. The learned magistrate exercised the power conferred upon him by the Sentencing Act 1997, s7(h), and dismissed the charge for the offence without recording a conviction. The appellant seeks a review of that order upon the grounds that the penalty was "manifestly inadequate in all the circumstances of the case" and error occurred in that the learned magistrate categorised the breach as "a technical one".

1. The evidence which the learned magistrate indicated that he accepted was, in essence, as follows:

(a)       The respondent was a licensed holder of three firearms.

(b)At the time of the commission of the offence, two were stored in a gun safe at a friend's home in Wynyard.  The other was the subject matter of the prosecution.

(c)In addition, the respondent was purchasing another gun.  At the time of the offence it was on lay-by at a gun dealer's shop.

(d)At the time of the offence the respondent was in the process of building a safe at his home with the intention of using it to store the three guns he owned and the one he was purchasing.

(e)At the time the respondent gave evidence, this safe had been completed and been approved by a senior police officer.

(f)In order to shoot dogs that had been worrying sheep on his property, the respondent kept the .22 rifle at his home.

(g)This rifle was kept in a built-in wardrobe in the bedroom that the respondent shared with his wife.  This wardrobe had four doors that opened on sliding tracks.  Each of the doors was capable of being held shut by a bolt set into the bottom corner of the door.  The tongue of each bolt could be shot down through the track and through the floor below.  Two of these locks were fitted with keys.  In result, the whole wardrobe could be locked securely and the keys removed.  The wardrobe doors were made of some kind of particle board. 

(h)On the day of the commission of the offence, the police called at the respondent's home and the respondent produced a .22 rifle from the open wardrobe.  At the time, the trigger lock was on.  The bolt for this rifle was stored in a locked steel cash tin which was kept in a separate part of the house.  Ammunition was kept in the bedroom.

(i)In his evidence, the respondent said that, generally, when he was not using the wardrobe to either get out or put in clothes, he kept it locked and the keys were kept in a bedside drawer.  He also said that at the time the police called, he was in the process of putting his clothes away.  The learned magistrate did not indicate whether he accepted this piece of evidence or not, but having regard to his other findings concerning the respondent's evidence, it is highly likely that it was accepted.

1. The respondent had no relevant prior convictions.

1. The Act, s85(1), provides:

"85 ¾ (1)  The holder of a Category A firearms licence or Category B firearms licence must comply with the following requirements in respect of the storage of any firearm to which the licence applies:

(a)if the firearm is not being used, it must be stored in a locked receptacle of an approved type that is ¾  

(i)   constructed of hard wood, metal, concrete or any other approved material; and

(ii)  not easily penetrable;

(b)a receptacle that weighs less than 150 kg when empty must be fixed to a wall or floor in a manner that prevents easy removal;

(c)the locks of a receptacle must be ¾  

(i)   of solid metal; and

(ii)  of an approved type;

(d)any ammunition for the firearm must be stored in a locked container of an approved type that is kept separate from the receptacle containing the firearm;

(e)any other prescribed requirement relating to security and safe storage.

Penalty:

Fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both."

1. At the end of all the evidence, the learned magistrate raised with the prosecutor and defence counsel the meaning of the expression "locked receptacle of an approved type" enacted in par(a). The Act, s3, defines "approved" to mean approved by the Commissioner of Police. Section 156 gives the Commissioner a power to delegate (inter alia) that approval.

1. There was no evidence of what was a "locked receptacle of an approved type".  It was at this stage that the prosecutor sought leave to re-open the case to prove that the wardrobe was not a "locked receptacle of an approved type".  I interpolate here to observe that the inquiry could well have extended to the meaning of the expression "any other approved material" in par(a)(i) and "an approved type" in par(c)(ii).

1. Upon the application to re-open the prosecution case, the learned magistrate intervened to state that the wardrobe could not have been a "locked receptacle of an approved type" because it was constructed of particle board or similar material. He said that it seemed to him that as the wardrobe was made of particle board and not hardwood, there had been a breach of the Act, but it was one that he would regard as technical. In the light of the learned magistrate's observations, the respondent sought and obtained leave to change his plea to guilty, thus admitting the essential elements of the offence. See Maxwell v R (1996) 135 ALR 1 at 7.

1. The learned magistrate clearly proceeded to sentence upon the basis that the only particular proved was that the receptacle was not constructed of hardwood or metal.  He described the breach as "technical", noted that an approved steel gun safe had now been constructed and therefore a repetition of the offence was unlikely and noted the respondent's good record.  The learned magistrate referred to the matters of fact I have enumerated above when he noted "the circumstances here" immediately prior to making the impugned order.

1. In support of the motion to review, counsel for the appellant, Miss K Brown, submitted that the penalty was manifestly inadequate and that specific error had vitiated the exercise of the sentencing discretion by the learned magistrate imposing penalty upon the basis that the breach was a technical one. In this context, the word "technical" has no precise meaning. It carries the innuendo that although there had been a breach of the law, it was not a serious breach; one concerned more with form rather than substance. It is clear that the learned magistrate categorised the breach as technical because he concluded that in the circumstances of this case, the only breach of s85(1) was the failure to construct the receptacle out of hardwood. The inference is that the learned magistrate held that in all other respects there had been compliance with the section. He so fell into error, for the Act, s85(1), also required the firearm to be kept in a locked receptacle when "not being used". Clearly this firearm was not so kept on 20 December 2001. The door was open when the police arrived. The principal object of the legislation, and s85 in particular, is to ensure that firearms are always kept securely out of reach of those who are not licensed to use them. Consequently, a failure to keep this firearm in a locked receptacle when not being used was a significant fact in the proper exercise of the sentencing discretion and the failure to take it into account vitiates the exercise of that discretion. This is so notwithstanding the evidence, which I infer the learned magistrate accepted, that when clothes were not being put in or taken out of the wardrobe, it was kept locked. The classic statement of the law with respect to this is to be found in House v R (1936) 55 CLR 499 at 505:

"If the judge acts on wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

1. I should add that the whole of the evidence in the case concentrated on other issues such as whether there were locks on the wardrobe doors, whether the police had authority to enter the house and so on, so it is not surprising that after a great deal of evidence about matters that would not have exculpated the respondent in any event, that the sentencing process overlooked the point that not only was the construction of the receptacle in breach of the section, but so also was the failure to keep the receptacle locked when the gun was not being used.

1. It falls to me to re-impose penalty.  There are many powerful mitigating factors.  They have already been set out.  Nonetheless, even if the wardrobe was generally kept locked when not being used for the purpose of putting clothes in it or for taking clothes out of it, there remained the potential for harm because of the high risk of inadvertently leaving open or unlocked a receptacle in such common daily use as a wardrobe.  Penalties for a breach of this legislation must contain a substantial message to other licensed gun users that there must be strict compliance with the requirements for keeping guns when they are not being used.

1. This is a prosecution appeal against sentence.  Mr Wright, who appeared as counsel for the respondent, submitted that the principles enunciated in cases such as R v Tait (1979) 24 ALR 473; R v Wilton (1981) 28 SASR 362 at 367; R v Peterson [1984] WAR 329; Attorney-General v Dowie (1989) 42 A Crim R 234 at 238 - 239 and 330, require me to have regard to the so called "double jeopardy" principle and to exercise restraint when imposing penalty. Recently, the Court of Criminal Appeal in Attorney-General v McDonald [2002] TASSC 120 considered the issue of whether the Court was required to exercise restraint when called upon to re-sentence following a successful Crown appeal. Slicer J said at par30:

"In my opinion, a successful Crown appeal giving rise to a re-sentencing need not of itself warrant a reduction in the appropriate sentence, but an appellate court is permitted to take the nature of the appeal into account during the re-sentencing process."

1. Evans J said at par42:

"When a Crown appeal against a sentence is successful, the defendant is re-sentenced in the light of the facts and circumstances at the time of the re-sentencing; R v Allpass (1994) 72 A Crim R 561 and R v Meers and Moles (supra).  It would be illogical to ignore evidence that a defendant has suffered as a consequence of being subjected to the strain of a successful Crown appeal against sentence but take into account evidence of other matters which had occurred since the defendant was initially sentenced.  A consideration that a re-sentencing court should have in mind is the extent, if at all, to which the defendant has suffered as a consequence of being put through the sentencing process twice.  Ordinarily, I would expect the extent of the defendant's suffering to be modest and the weight to be given to this consideration on re-sentencing to be similarly modest."

1. Blow J said at par56:

"It seems logical to regard the fact that the respondent has had to stand twice for sentence as one of the facts and circumstances existing as at the time of re-sentencing that the Court is required to take into account in accordance with the third principle that I have quoted from Allpass."

1. As a matter of principle, I see no reason why the foregoing should not apply to re-sentencing following a successful prosecution appeal from an order made in a court of petty sessions.  However, the fact that re-sentencing is the result of a successful prosecution appeal will be of little relevance to the proper exercise of the discretion unless the liberty of the subject has been an issue.  Generally, where such liberty is not an issue, the suffering of the respondent and the strain on him or her by reason of the appeal is minimal.  This is such a case.

1. The Act, s85, prescribes $2,000 or 12 months' imprisonment or both as the maximum penalty for a breach of that section. Keeping a firearm in a bedroom wardrobe, albeit one that is generally kept locked when not being used for the purpose for which it is designed, is a clear breach of the Act. The potential for access to the firearm by children and others is relatively high. Penalties for such breaches are required to act as a general deterrent. However, apart from this breach, the respondent has clearly demonstrated that he is a responsible licensed gun owner by storing the bolt to the .22 rifle in a locked tin kept in another part of the house, and by the fact that he was, at the time of the offence, building a cabinet that complied with s85 in which to keep this firearm and his other firearms. As the learned magistrate said, there is not likely to be a repetition of the offence. Balancing the competing factors calls for the imposition of a conviction and a modest fine. The orders of the Court are:

·   motion to review allowed;

·   the order that the complaint be dismissed is quashed;

·   in lieu thereof, a conviction and a fine of $150.