Schamotta v The Queen

[2002] WASCA 262

SCHAMOTTA -v- THE QUEEN [2002] WASCA 262

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 262
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:67/2002	Heard:	5 SEPTEMBER 2002
Coram:	MURRAY J WHEELER J BURCHETT AUJ	Delivered:	20/09/02
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed in part; Disqualification for 10 years set aside, and 5 years substituted
Category:	A
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Parties:	ADAM PHILLIP SCHAMOTTA THE QUEEN
Catchwords:	Criminal law Sentencing Disqualification from holding a licence Firearms licences Grounds of disqualification Principles affecting length of disqualification
Legislation:	Firearms Act 1973, s 27 (repealed) Sentencing Act 1995, s 102 and s 106
Case References:	Coumbe v Whittaker [1999] WASCA 151 Creed v Dudley [1984] WAR 344 Denton v Murdock [1995] WASC 1063 Horsman v Bishop [2000] WASCA 316 Re Cockram (SM); Ex parte Williamson, unreported; SCt of WA; Library No 940673; 23 September 1994 Ryan v The Queen (2001) 206 CLR 267 Stackhouse v Curulli [1992] WASC 1009 Veen v The Queen [No 2] (1988) 164 CLR 465 Lowndes v The Queen (1999) 195 CLR 665

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SCHAMOTTA -v- THE QUEEN [2002] WASCA 262 CORAM : MURRAY J

WHEELER J
BURCHETT AUJ

HEARD : 5 SEPTEMBER 2002 DELIVERED : 20 SEPTEMBER 2002 FILE NO/S : CCA 67 of 2002 BETWEEN : ADAM PHILLIP SCHAMOTTA

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Disqualification from holding a licence - Firearms licences - Grounds of disqualification - Principles affecting length of disqualification

Legislation:

Firearms Act 1973, s 27 (repealed)

Sentencing Act 1995, s 102 and s 106

Result:

Appeal allowed in part; Disqualification for 10 years set aside, and 5 years

substituted

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Category: A

Representation:

Counsel:

Appellant : Mr J M Malcolm
Respondent : Mr K M Tavener

Solicitors:

Appellant : Jeremy Malcolm
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Coumbe v Whittaker [1999] WASCA 151
Creed v Dudley [1984] WAR 344
Denton v Murdock [1995] WASC 1063
Horsman v Bishop [2000] WASCA 316
Re Cockram (SM); Ex parte Williamson, unreported; SCt of WA; Library No 940673; 23 September 1994
Ryan v The Queen (2001) 206 CLR 267
Stackhouse v Curulli [1992] WASC 1009
Veen v The Queen [No 2] (1988) 164 CLR 465

Case(s) also cited:

Lowndes v The Queen (1999) 195 CLR 665

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1 JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence. The applicant is a young man aged 24 who has committed a number of offences involving dishonesty, particularly fraud, over the past five years. On 22 March 2002, he pleaded guilty in the District Court to four charges of obtaining, or attempting to obtain, money from banks by fraud and a charge of stealing as a servant. Pursuant to s 32 of the Sentencing Act 1995, he also pleaded guilty to seven charges of wilful misrepresentation in relation to applications for firearms licences and one charge of possessing ammunition for which he did not have a current licence.

2 The applicant's pleas of guilty were pursuant to the fast-track system, and he was sentenced on the charges of fraud and stealing to a number of concurrent terms of nine months of imprisonment with one cumulative term of two years, so that the effective total term was two years and nine months of imprisonment. In respect of the firearms matters, he was fined $100 on each charge, and his substantial collection of guns was forfeited. One further order was made, and it is this which is the subject of the application for leave to appeal. The Court made an order disqualifying the applicant from holding a firearm licence for a period of 10 years. The only reasons expressed for the making of that order were the following:

"Now, the counts of wilful misrepresentation refer to your attempts to obtain a firearm licence. You obviously have some passion for expensive firearms. It is clear that you ought to be disqualified from holding a licence under the Firearms Act. I propose to do that for a period of 10 years and that order is hereby made."

3 The misrepresentations in question were made by the completion in a misleading manner of a form of application for a firearm licence on seven occasions over a period of about 18 months. What the applicant did was to fail to disclose all of his previous convictions when required to do so by the form, and, as well, he failed to disclose, as required by the form, a previous name in which he had accumulated a number of convictions. On some occasions, he acknowledged some convictions which were not mentioned on other occasions. It is not suggested that any of the convictions that were not disclosed related to a firearms offence or involved the use of a firearm, but plainly a course of conduct was pursued, over a significant period, which disregarded the applicant's obligations under the Firearms Act 1973 in a way that involved deliberate breaches of

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the law. However, it did not involve the use of firearms in any unsafe manner, or the commission of any further crime by the use of a firearm.

4 It is necessary to consider the ground of a disqualification of this kind, and the principle in accordance with which the Court determines, in an appropriate case, the period of the disqualification to be ordered.

5 At one time, firearms offences involved a liability to disqualification under s 27 of the Firearms Act 1973, but this section was repealed in 1995. The power that is now applicable is that contained in s 106 of the Sentencing Act 1995, subs (1) of which provides:

"A court sentencing an offender for an offence specified in subsection (4a) may order that, for a term set by the court, the offender be disqualified from holding or obtaining a licence or a permit or an approval, or any particular licence, permit or approval, under the Firearms Act 1973."

The offences specified in subs (4a) are the following:

"(a) a firearms offence;

(b) an offence involving assault with a weapon;

(c) an offence involving violence."


What is relevant here, of course, is par (a), a firearms offence. There is also a definition, for the purposes of the section, in subs (5), of "firearms offence", the relevant paragraph of which is "(e) an offence under the Firearms Act 1973". The other offences which are firearms offences may be summarised as offences concerned with stealing or receiving a firearm or ammunition or using a firearm or ammunition during the commission of an offence, or after its commission in order to avoid apprehension.

6 Section 106 is in Pt 15 of the Sentencing Act, in which, by the use of the same form of words as that employed in s 106(1), courts are authorised to disqualify an offender sentenced for a motor vehicle offence from holding or obtaining a driver's licence (s 105(1)), and an offender sentenced for a marine offence from holding or obtaining a certificate of competency under the Western Australian Marine Act 1982 (s 107(1)). Part 15 opens with s 102, s 103 and s 104, which apply generally in respect of orders under the Part. Section 102 is headed "Principles"; subs (1) specifies that an "order under this Part may be made in conjunction with any sentencing option available to a court sentencing an offender who is a natural person", and subs (3) provides: "An order under

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this Part forms part of the sentence." Section 104 makes it clear that a disqualification may be imposed for life.

7 Disqualification orders have perhaps been more frequently made in relation to motor vehicle driving licences than in relation to any other licence. In Thomas, Principles of Sentencing, 2nd ed (1979), at 350, it is stated:

"Disqualification from driving may be used in two distinct ways - as a preventive measure designed to restrain a persistently dangerous driver from driving, or as a punitive measure intended to add a further element to the primary sentence for the offence."

Similarly, Archbold (2002) at 2629 makes clear the importance of safety considerations in relation to such a disqualification. These authoritative works are, of course, speaking of the position in the United Kingdom. In Western Australia, the most frequently cited authority is Creed v Dudley [1984] WAR 344, which concerned a brain-damaged driver with a previously unblemished record during a period of 30 years. Medical evidence suggested the offender should not drive again, and the magistrate imposed a disqualification for a period of 10 years, not as a punishment, but in the interests of safety. Burt CJ said (at 346) that the legislation had "a number of provisions in it dealing with the suspension or cancellation of a driver's licence by way of punishment". He referred to a further provision of the legislation dealing with motor traffic "which is of general application enabling a licence to be cancelled or suspended when an offence is committed against the Traffic Act or any other Act in the commission of which a vehicle is used". His Honour commented:

"Those provisions are punitive in intent: they are part of the punishment, and I would not for a moment dissent from the view that to a degree the length of disqualification, when the disqualification is imposed by way of punishment, will be influenced by the risk the particular person represents as a driver of a motor car. Having said that, it remains the truth that the cancellation, suspension or disqualification is by way of punishment."

Accordingly, he reduced the period of disqualification in that case from 10 years to one year.

8 The decision in Creed v Dudley was applied to the former s 27 of the Firearms Act, which gave to a court a power, on the conviction of a

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person for an offence involving the unlawful use of a firearm or ammunition, to "declare any licence or permit held by the convicted person under this Act to be cancelled and … declare the convicted person to be disqualified from holding a licence or permit under this Act for such period as the court determines". In Stackhouse v Curulli [1992] WASC 1009, Owen J said (at 10):

"In a case such as this, disqualification is a matter of penalty rather than a matter going to the fitness of the appellant to hold a licence: see Creed v Dudley [1984] WAR 346 at 366.

Ultimately, I must impose a condign penalty both as a matter of personal deterrence to reinforce with the appellant the need to pay utter and complete respect to the regulatory framework and the question of general deterrence to make it clear to those who are involved with firearms, or who would like to become involved with firearms, that the legislative framework is to be respected and that the courts will deal severely with those who do not. Even though the appellant has not been shown to be a danger to the public, a fine coupled with a disqualification is the appropriate disposition."


His Honour imposed a fine and a disqualification for one year from the date of the offender's plea of guilty, setting aside a magistrate's disqualification for 10 years, a period of which Owen J said (at 6):

"On any view of it what was imposed in this case was a very severe penalty."

The offence in question was the knowing possession, without an exemption, of a Ruger Mini 14 self-loading rifle and some ammunition. This possession was, of course, unlicensed.

9 Stackhouse v Curulli and Creed v Dudley were both cited to Parker J in Denton v Murdock [1995] WASC 1063, where a magistrate had imposed a disqualification pursuant to the former s 27 of the Firearms Act. The case was a bad one, in which the offender had been sentenced, amongst other things, for the possession of a silencer and a prohibited weapon, and Parker J referred (at 18) to his "persistent and flagrant disregard of the requirements of the Act". His Honour said (at 21):

"I accept in the context of the proceedings before the Court of Petty Sessions the relevant consideration was punishment. On this view of the comments of the learned Magistrate it would

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follow that he failed properly to weigh the question of cancellation and disqualification in the context of punishment."

Nevertheless, his Honour did not vary the disqualification for a period of five years which had been imposed. He referred to the circumstances, to a prior disqualification for a period of 12 months for earlier offences and to the fact that possession of any firearm is a privilege controlled and limited by the Act, a privilege which his Honour plainly thought the offender had abused by knowingly placing himself above the Act in order to indulge his own interest in certain types of firearm.

10 But in Coumbe v Whittaker [1999] WASCA 151, McKechnie J, having referred (at [19]) to the punitive considerations which may underlie a driving disqualification, said (at [20]):

"Different considerations may apply under the Firearms Act. Here the dominant purpose for disqualification is public safety. This requires an assessment of the characteristics of the offender and a prediction, based on the offender's antecedents and the circumstances of the offence, as to whether the community may require the protection which a period of disqualification will bring."

In the case before him, involving the unlawful use of a firearm but without danger to any person, with no likelihood of repetition, he held it (at [24]) to be "the necessary conclusion … that the circumstances did not call for a disqualification … for any period".

11 Finally, in this survey of relevant decisions, reference should be made to Horsman v Bishop [2000] WASCA 316, where Murray J referred (at 31) to the "clear punitive content" of a disqualification order under Pt 15 of the Sentencing Act, which forms part of the sentence. His Honour was dealing with a case that involved the offender's failure to observe the terms of a pistol licence and his failure to use adequate storage facilities to ensure the safety of firearms for the storage of which he was responsible. The offender had a previous conviction for possessing a prohibited firearm, and was subject to a violence restraining order. His Honour considered a disqualification order was called for, and that it should operate for a period of two years.

12 Although in Creed v Dudley a disqualification based purely on medical unfitness to pursue the licensed activity of driving, with no punitive element, was held inappropriate, it is important to remember that Burt CJ did say he "would not for a moment dissent from the view that to

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a degree the length of disqualification, when the disqualification is imposed by way of punishment, will be influenced by the risk a particular person represents as a driver of a motor car". (Cf Veen v The Queen [No 2] (1988) 164 CLR 465 at 473 - 474; Ryan v The Queen (2001) 206 CLR 267 at 280 - 281; 310 - 311.) Under Pt 15, which refers to licences of more than one kind, the disqualification order "forms part of the sentence", but it "may be made in conjunction with any sentencing option available to a court sentencing an offender who is a natural person". The circumstances of different cases vary greatly, and the power conferred by Parliament should not be narrowed by interpretation so as to exclude unusual cases which may be appropriate for its use. However, it seems to us that, generally, the decisive consideration will be whether the conviction has, or its circumstances have, when viewed in the light of the prior record of the offender, revealed that this offender is not a fit person to hold the relevant licence. Whether the licence is a driving licence or a firearm licence, the paramount consideration in assessing the question of fitness to hold it may well be public safety; but there are other considerations, such as whether the offender has been shown to be unable or unwilling to comply with the requirements of regulations affecting the licence. The potential effect upon others is an important reason for licensing provisions, and, undoubtedly, Pt 15 has a protective object, notwithstanding that as part of the sentencing process, it is brought into operation by an offence for which sentence is to be imposed. Applied "in conjunction with any sentencing option", it is not necessarily subject to precisely the same limitations as those that affected earlier, more limited, provisions for disqualification from holding a licence of a particular kind.

13 It is, of course, generally an offence that is related to the use or possession of a firearm that triggers the application of s 106. The Firearms Act is certainly very much concerned with public safety: see the remarks of Rowland J (with whom Franklyn and Seaman JJ agreed) in Re Cockram (SM); Ex parte Williamson, unreported; SCt of WA; Library No 940673; 23 September 1994. It regulates the use and possession of firearms so as to prevent their misuse. Because of the direct connection between s 106 of the Sentencing Act and the provisions of the Firearms Act, it seems to us that, in general, the statement of McKechnie J in Coumbe v Whittaker that "the dominant purpose for disqualification is public safety" is right. But the purpose of securing public safety must be understood in a broad sense, as extending to justify a disqualification for unfitness demonstrated by disregard of legal obligations relevant to the use or possession of firearms, and of course,

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any propensity which might make such use or possession potentially dangerous.

14 The circumstances of the present case do exhibit an inclination to disregard the obligation of candour and the requirements of the criminal law in relation to an application for a firearm licence, repeated several times over a period of 18 months. However, it should be pointed out that, insofar as the Firearms Act aims to secure public safety and the facilitation of the tracing of weapons to which the licensing system contributes, the effect of the applicant's lack of candour was somewhat limited. From his own point of view, it was also quite foolish, since he did disclose enough to provoke enquiries which were likely to reveal what he had not disclosed. As we made clear earlier, there is no suggestion that he used any firearm in the commission of a further crime, or in an unsafe manner.

15 It is apparent from the decisions to which we have referred that a disqualification for a period of 10 years is at a high point in the range of periods of suspension that have been imposed, a number of them in cases exhibiting features significantly worse than those of the present case. In our opinion, it is not only higher than the appropriate period; it is so high as to indicate an error of principle. Accordingly, we set aside that period of disqualification. In all the circumstances, we consider the disregard of important obligations which the law required Mr Schamotta to comply with as a condition of the grant of a licence which is a privilege, not a right, does warrant a disqualification from holding a licence under the Firearms Act for a period of five years from the date of sentence, namely, 28 March 2002. Leave to appeal is granted; to the extent indicated, the appeal is allowed; and the disqualification imposed is set aside, and a disqualification from holding a licence under the Firearms Act is substituted in the terms we have stated.