Rohrlach v Police - [2014] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROHRLACH v POLICE
[2014] SASC 25
Judgment of The Honourable Justice Anderson
3 March 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS
Appeal against a decision of a magistrate ordering forfeiture of the appellant's firearms and an order that he be disqualified from holding or obtaining a firearms licence for a period of 18 months. The magistrate also imposed a fine of $2,000, which with court costs totalled $2,707.50. The appellant seeks to have the orders pertaining to firfeiture of the firearms and the disqualification from holding a firearms licence set aside, with only the monetary fine to remain.
The apppellant, who is a farmer, was convicted on two counts of failing to properly secure two firearms and failing to secure live ammunition pursuant to the Firearms Regulations. The firearms and ammunition were found unsecured by police in the appellant's utility, which was parked unattended in the driveway of his farmland property. At the time of appeal the appellant had already had his firearms licence suspended for a period of 12 months.
Whether the total penalty of forfeiture of firearms, disqualification of firearms licence for 18 months and monetary fine was manifestly excessive in the circumstances of the offending.
Held: Appeal allowed. The total penalty was manifestly excessive given the circumstances of the offending.
The appeal is allowed for the purpose of setting aside the order for disqualification of the appellant's firearms licence. That order is not required to achieve a satisfactory penalty, especially given the fact that the appellant has already served a period of suspension.
The appellant's firearms licence is to be re-issued.
The order for forfeiture of the appellant's two firearms and the monetary fine imposed are to remain.
Firearms Act 1977 (SA) s 34A, referred to.
Police v Rohrlach [2014] SAMC 3; Perre v Police [2007] SASC 347; Pollitt v Police [2007] SASC 382; Pitchers v Police [2012] SASC 171; Jaworski v Police [2009] SASC 284, discussed.

ROHRLACH v POLICE
[2014] SASC 25
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

In this matter the appellant is appealing the decision of a magistrate who sentenced him on 18 December 2013.
The appellant was convicted of two counts, in that he, being the holder of a firearms licence, contravened a condition of the licence in relation to two firearms which were not properly secured pursuant to regulations made under the Firearms Act 1977 (SA) (“the Act”). There was also unsecured ammunition.
The magistrate ordered forfeiture of both firearms and ordered that the appellant be disqualified from holding or obtaining a firearms licence for a period of 18 months. In addition he imposed a fine of $2,000 which with court costs came to a total of $2,707.50. The maximum fine was $10,000 or imprisonment for 2 years. The suspension for 18 months was in addition to a period of suspension of 12 months which was imposed on the appellant at the time of offending.
The powers of the court on finding a person guilty of a firearms offence are contained in s 34A of the Act. The court may make one or more of several possible orders and for this matter the relevant provisions are:
(a) the firearm be forfeited;
(e) that the person be disqualified from holding or obtaining a licence.
The appellant in his appeal asks that both orders, namely, the forfeiture of the firearms and the disqualification from holding a firearms licence be set aside and that the only penalty should be the monetary fine.
Background
The facts are set out in detail in the judgment of the magistrate – Police v Rohrlach [2014] SAMC 3. Very briefly the appellant is a farmer who operates a large property in the Riverland near Qualco. He crops the land and also runs sheep and lambs. The circumstances of the offending are that he had parked his utility in the driveway of his property approximately 20 metres from his house but only 5 metres from the main road and left the door of his utility open. Hanging from the side of the utility on the driver’s side was a scabbard containing a firearm. It was subsequently identified as a Ruger 10-22 rifle and in addition there was a pump action Winchester shotgun on the dashboard of the utility. Both firearms were loaded with the safety catches on. There was also live ammunition in the vehicle some of which related to the firearms in question and some of which related to other firearms owned by the appellant.
Submissions
Mr Boucaut SC who appeared for the appellant submitted that the magistrate had erred in the penalties he imposed and that the combination of all penalties meant that the overall effect on the appellant was so harsh that it made the penalty manifestly excessive. He pointed to the many other firearms and ammunition which was properly stored at the appellant’s property. He referred to the need for the appellant to have and be able to use his firearms to operate his farm property.
Mr Boucaut submitted that the appellant had only returned to his property temporarily and was going back out into the paddocks when he was spoken to by police. He carried firearms at the ready when working the property. I was told that was for vermin control.
He further submits the risk of any stranger coming across the firearms was remote. Although the vehicle was parked close to the main road, it was on private property and there were people working nearby to where it was parked. In addition the public road was not a busy road.
The fact is that at the point where the vehicle was parked it was only about 5 metres from that public road. Both firearms were left loaded in the vehicle within that close proximity to the road. Some ammunition was also left unsecured in the utility. These factors all have to be balanced to determine the severity of the offending.
Consideration
As the magistrate pointed out in his remarks on sentence, Parliament has deemed it appropriate to have a fine of up to $10,000 or imprisonment for two years in relation to offending such as this. Parliament clearly regards this type of offending as extremely serious. Mr Boucaut submitted that the offending was at the lowest end of the scale of seriousness of offences of this type but the magistrate disagreed. He said it was certainly not towards the highest end and did not call for a sentence of imprisonment.
Mr Boucaut submitted that the magistrate had thereby placed the offending in a mid range in terms of seriousness and that this was an error. He pointed to the mitigating factors referred to above.
Mr Grant for the respondent referred to several decisions to explain the need for both personal and general deterrence.
He referred to Perre v Police [2007] SASC 347 at [24] per Vanstone J, Pollitt v Police [2007] SASC 382 at [24] per Gray J, Pitchers v Police [2012] SASC 171 at [40] per Gray J and Jaworski v Police [2009] SASC 284 at [25] per Sulan J.
On the basis of the comments made in those decisions Mr Grant submitted that forfeiture in this case was appropriate. It was a discretionary exercise and it had not been demonstrated that the discretion miscarried.
In relation to disqualification from holding a licence Mr Grant properly conceded that it could be argued that, given he had already had his licence suspended for 12 months, the further 18 months imposed by the magistrate was excessive.
On its face the overall penalty including the fine, the forfeiture and the disqualification from holding a licence appears excessive and appears to impede the appellant in his daily work on his farm. However, the fact is that two loaded weapons were left, contrary to the requirements of the regulations under the Act, in a position where anyone for any reason whatsoever could have taken those weapons. They were loaded although the safety catches were on and it was clearly a dangerous situation in which to leave both loaded firearms even though it may only have been for a short time. Deterrence both personal and general are important considerations in determining penalty.
Conclusion
By rejecting the submission that the offending was at the lowest end of the scale of seriousness, and finding it was not at the top, the magistrate has effectively found it to be in a mid range of seriousness.
I do not consider that such a categorisation is an error on the facts of the case.
However, I do consider that the mitigating circumstances referred to by Mr Boucaut result in the conclusion that the total penalty was in all those circumstances manifestly excessive.
The appellant has many guns. The order for forfeiture should remain in respect of the two firearms in question. It is my view that the order for disqualification of the firearms licence is not required to achieve an appropriate penalty especially as there has already been a period of suspension served. That order will be set aside and the firearms licence re-issued.
The appeal is therefore allowed.