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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ridge v Bartels

Details

AGLC: Ridge v Bartels [2003] TASSC 3
Case: [2003] TASSC 3
Decision Date: 17 February 2003

CaseChat Overview and Summary

Leonie Grace Ridge, the appellant, sought a review of the Supreme Court of Tasmania against the sentence imposed on Roger Douglas Bartels, the respondent, who had been charged with breaching the Firearms Act 1996 by failing to store his licensed .22 calibre Norinco rifle in a locked receptacle of an approved type when not in use. Bartels was initially found not guilty but later pleaded guilty after the magistrate indicated that the breach, if any, was technical. The magistrate dismissed the charge without recording a conviction, a decision Ridge argued was manifestly inadequate. The court needed to decide whether the penalty was indeed inadequate and if the magistrate had erred in categorising the breach as technical.

The court held that the magistrate had erred by not considering that the rifle was not kept in a locked receptacle when not being used, which was a significant breach of the Act. The purpose of the legislation is to ensure firearms are securely stored away from unauthorised persons, and this oversight vitiated the sentencing process. Despite mitigating factors such as Bartels' good record and his actions to secure the firearm properly in the future, the court found that the potential harm from the breach warranted a penalty that reinforced compliance with firearm storage requirements. The court also considered the principles of double jeopardy and the minimal suffering caused by the appeal process in re-sentencing.

The court allowed the motion to review, quashed the order dismissing the complaint, and imposed a conviction and a fine of $150. This decision aimed to balance the need for deterrence with the respondent's responsible conduct and the minimal impact of the appeal process on him.

Orders