Slocombe v Whittle

[2022] ACTMC 3

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Slocombe v Whittle

Citation:

[2022] ACTMC 3

Hearing Date:

18 February 2022

DecisionDate:

18 February 2022

Before:

Magistrate Theakston

Decision:

The offence of possession of prohibited firearms, while not authorised by licence or permit, contrary to s 42(1)(a)(ii) of the Firearms Act 1996, is an offence that ‘relates to property’, and accordingly the Magistrates Court has jurisdiction to dispose of that charge, subject to the other requirements of s 375 of the Crimes Act 1900.

Catchwords:

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CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Jurisdiction – Unauthorised possession or use of prohibited firearms

Legislation Cited:

Crimes Act 1900 (ACT), s 375, s 477

Criminal Code 2002 (ACT)

Fauna Conservation Act 1974 (QLD)

Firearms Act 1996 (ACT), s 42, s 145

Human Rights Act2004 (ACT), s 22, s 30

Legislation Act 2001 (ACT), s 190

Cases Cited:

Anic, Stylianou & Suleyman v R (1993) 68 A Crim R 313

Fares v Longmore [1998] ACTSC 133; 148 FLR 255

Joye v Beach Petroleum NL [1996] FCA 1552

Momcilovic v R [2011] HCA 34; 245 CLR 1

Police v Le Pavoux (unreported, Magistrates Court of the ACT, Magistrate Taylor, 11 March 2021)

Project Blue Sky v ABA Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

R v Waterhouse (1911) 11 SR (NSW) 217

Shergold v Tanner [2002] HCA 19; 209 CLR 126

Yanner v Eaton [1999] HCA 53; 201 CLR 35

Parties:

Leigh Slocombe (Informant)

Joshua Whittle (Offender)

Representation:

Counsel

K Sheridan (Informant)

P Edmonds (Offender)

Solicitors

ACT Director of Public Prosecutors (Informant)

Canberra Criminal Lawyers (Offender)

File Number:

CC 7372 of 2021

MAGISTRATE THEAKSTON:

Introduction

1. In the Territory, criminal offences can be divided into two main categories – indictable offences and summary offences.  By default, the former are disposed of in the Supreme Court and the latter in the Magistrates Court.  However, some indictable offences may also be disposed of summarily in the Magistrates Court, but only in the circumstances prescribed in the applicable procedural provision that extends the Magistrates Court’s criminal jurisdiction.

1. In this matter, a question has arisen about whether the Magistrates Court has jurisdiction to determine an offence of possess prohibited firearms.  I have ruled that it does, and these are my reasons.

Background

1. The defendant is charged with possession of three prohibited firearms while not authorised by licence or permit, contrary to s 42(1)(a)(ii) of the Firearms Act 1996 (ACT). The maximum penalty for the offence is 14 years imprisonment. Relevantly, the offence provision reads:

42  Offence – unauthorised possession or use of prohibited firearms

(1) A person commits an offence if the person –

(a)  possesses … 

(i) …

(ii)    3 or more prohibited firearms, but less than 10 prohibited firearms; …

(iii) … and

(b)  is not authorised by a licence or permit to possess … each of the prohibited firearms.

1. The charge particularises the prohibited firearms as three gel blaster firearms of various types, and the prosecution case is that these items are replica prohibited firearms, and therefore prohibited firearms.

1. As the maximum penalty for this offence is imprisonment for longer than two years, s 190 of the Legislation Act 2001 (ACT) provides that this is an indictable offence, and not a summary offence routinely punishable on summary conviction.

1. The relevant procedural provision that may provide this Court with jurisdiction is s 375 of the Crimes Act 1900 (ACT). Relevantly, that provision reads:

375  Summary disposal of certain cases

(1)  This section applies if a person is before the Magistrates Court charged with –

(a) …

(b)  an offence punishable by imprisonment for a term not exceeding –

(i)  if the offence relates to money or other property – 14 years; or

(ii)  in any other case – 10 years; or

…

(10)  The court may hear and determine the charge summarily …

(11) The court may sentence or otherwise deal with the defendant …

1. As the above offence has a maximum penalty of 14 years, s 375 only provides the Court with jurisdiction if it relates to money or other property. Here there is no suggestion of a relationship with money. Accordingly, we are left with the question, is the offence one that ‘relates to property’?

1. I note for the purpose of completeness, that s 375 has various other requirements, including that the defendant consents to the charge being disposed of summarily and, in certain circumstances, the value of the property not exceed $30,000.

1. The prosecution contends that the Magistrates Court does not have jurisdiction, as the maximum penalty is 14 years, the firearms are not property and in any event the offence is not one that ‘relates to property’.  Conversely, the defendant contends the offence ‘relates to property’, and therefore the Court does have jurisdiction, subject to the consent of the defendant.

Are prohibited firearms property?

1. It was common ground that the term ‘property’ was defined by the Legislation Act 2001 (ACT) to mean:

any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description …

1. Consistent with that definition, the prosecution referred to the decision of Yanner v Eaton [1999] HCA 53 where the majority at [17] made the following observed about how the term ‘property’ was used in the Fauna Conservation Act 1974 (QLD):

"property" does not refer to a thing; it is a description of a legal relationship with a thing

1. At [19] the majority went on to adopt the following:

"Property" is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not "a monolithic notion of standard content and invariable intensity". That is why, in the context of a testator's will, "property" has been said to be "the most comprehensive of all the terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have." (Citations omitted)

1. Notwithstanding the above, the prosecution submitted that possession of prohibited firearms could not amount to property because it would be illegal to do so without a licence or permit, or without a ‘good reason’ as required by s 145 of the Firearms Act 1996 (ACT). However, the defendant pointed to R vWaterhouse (1911) 11 SR (NSW) 217, which dealt with the offence of robbery where opium was taken, and in circumstances where it was an offence to possess opium without a certificate. The provision relating to opium provided that a constable could seize the opium if a certificate was not produced on demand and take the possessor before a magistrate by whom the opium would be forfeited. The Court held that notwithstanding that provision, the right of property in opium was not destroyed and opium may still be the subject of larceny. That same position was adopted in Anic, Stylianou & Suleyman v R (1993) 68 A Crim R 313 at [9] - [15].

1. Returning to this matter, the Firearms Act does not provide for the immediate forfeiture of all prohibited firearms or do anything else that purports to spontaneously destroyed property in such items. Possession of the prohibited firearms would continue to involve some form of proprietary right. Additionally, if a person in possession of the firearms was not the owner, the rights of that owner would continue to exist notwithstanding that person possessed the item without licence or permit. For example, what if the owner of a prohibited firearm was licenced and the firearm was stolen? There is no suggestion that because the firearm is in the possession of an offender, who may not be holder of a licence or permit, the proprietary rights enjoyed by the owner would be extinguished. Accordingly, I am of the view that the term ‘property’, as used in s 375 of the Crimes Act, includes any legal relationship between a person and a prohibited firearm, and that may include any property a defendant has in the firearm, when in possession of the same.

Is the offence one that ‘relates to property’?

1. The interpretation of Territory legislation is guided by the key factors of language, context and purpose, human rights and the principle of legality: see Legislation Act 2001, Chapter 14; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] – [71]; Human Rights Act 2004 (ACT), s 30; and Momcilovic v R [2011] HCA 34; 245 CLR 1 at [43].

1. The purpose and context of s 375 is to provide the Magistrates Court with an extended jurisdiction to dispose of certain indictable matters summarily in certain circumstances. It includes the safeguard of requiring the consent of the defendant. This provides the defendant with the choice of having a trial by jury in the Supreme Court if he or she chooses to do so. (That right is subject to another provision which allows the prosecution to elect summary disposal in limited circumstances with a markedly reduced jurisdictional maximum penalty.) Beyond that description, it is difficult to discern a purpose or context that may assist in determining the scope of ‘relates to property’. For example, a distinction is not made between offences involving violence, in the recognition that offences of violence should be viewed as particularly serious. Possibly the structure of s 375(1)(b) reflects the existence of high maximum penalties for offences involving property. Those maximums appear to have been set to accommodate the broad range of property values involved in property offences. In that way the breadth of the penalties available, reflect the breadth of the potential seriousness of those offences. Unsurprisingly, the Magistrates Court’s jurisdiction for indictable offences that involve property is limited, in most circumstances, by the value of the property. The current ceiling is $30,000.

1. It was agreed by the parties that the expression ‘relating to property’ was an expression of wide and general import and should not be read down in the absence of some compelling reason for doing so.  That characterisation has been made at various times, including by Higgins J (as he was then) in Fares v Longmore [1998] ACTSC 133; 148 FLR 255 at 262. In that matter, the offence under consideration was trespass within a building with intent to assault a person. The provision going to jurisdiction was the then s 477(1)(b) of the Crimes Act, which was similar in terms to the current s 375. His Honour opined that an offence may relate to a number of things, including property, and that may be the case irrespective of whether it also related to violence. He ultimately concluded that as the offence in question involved trespass within a building and property was relevantly defined to include real property, the offence was accordingly one ‘relating to property’ and therefore the Magistrates Court had jurisdiction to dispose of the charge.

1. More generally, the expression ‘relates to’ has also been held to broad in nature.  In Joye v Beach PetroleumNL [1996] FCA 1552 the majority observed at [39]:

ordinarily, "relates to" is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connexion will suffice.

1. In my view, there is nothing in the context described above to suggest that the term ‘relates to’ in s 375 was not intended to have its ordinary and wide operation, so that a less than substantial, but relevant, connection would be sufficient to establish the relationship.

1. The prosecution’s submissions alluded to the title of Part 6 of the Crimes Act, which reads ‘Offences relating to property’, and the suggestion that it, in some way, effects the construction of the expression ‘relates to property’ used in s 375. However, the application of s 375 is not restricted to any named offences, or offences located in a particular part of a particular Act. I am not persuaded that the existence of Part 6 of the Crimes Act, with the above heading restricts the application of s 375 to offences either contained within that Part or to offences of a comparable nature, analogous to the principle of ejusdem generis. Further, many of the offences involving property and dishonesty have been relocated from the Crimes Act to the Criminal Code 2002 (ACT). The offences left in Part 6 are a heterogeneous mix, some of which have little or no relationship to property. It would be difficult to distil a meaningful class of offences by reference to those enduring in Part 6.

1. Considering the principle described in Fares, I am also not persuaded that the question can be resolved by having regard solely to the purpose, essence or gravamen of the offence and not the other components of an offence.  Such an approach would be distracting from the real question.  As summarised above, Higgins J in Fares opined at 262:

It is important to note that an offence may ‘relate to’ a number things other than money or property.  That is not the question to be addressed under s 477(1)(b).  The question is whether the offence alleged can be characterised as ‘relating to’ money or other property, irrespective of whether, as with robbery it may also ‘relate to’, say, violence against the person or something else.

1. Section 22 of the Human Rights Act provides that anyone charged with a criminal offence is entitled to being tried without unreasonable delay. Section 30 of that Act requires the Court to interpret s 375 in a way that is compatible with that right, so far as is possible to do so consistently with the above purpose of the provision. Proceedings would ordinarily be dealt with sooner by hearing in the Magistrates Court, that a committal and then trial in the Supreme Court. It would be more compatible with that human right for the Magistrates Court to have jurisdiction, than not.

1. It was submitted by the defendant that the principle of legality included a presumption in favour of jurisdiction, and I was referred to Shergold v Tanner [2002] HCA 19; 209 CLR 126. However, that decision was not on point and appeared at best to describe the presumption that the established jurisdiction of a Court, and possibly in particular a jurisdiction conferred by federal law, is not reduced unless the intention of the legislature is clear and unmistakable.

1. Ultimately, I am left with the position that a prohibited firearm would involve a proprietary right, including one held by a defendant if in possession of the firearm, and another by the owner, whoever that may be.  Additionally, the expression ‘relates to property’ should be given its ordinary broad meaning.  While reasonable minds may differ about the degree of nexus required, I have reached the conclusion that the offence of possess prohibited firearm, while not authorised by licence or permit, involves proprietary rights and therefore is an offence that ‘relates to property’.  I have reached that conclusion cognisant that the gravamen of the offence may be directed more towards the nature of the item, than who owns the item or any other proprietary rights associated with the item.

1. Finally, I note the prosecution referred to the unreported decision of this Court in Police v Le Pavoux (Magistrates Court of the ACT, Magistrate Taylor, 11 March 2021). In that matter Her Honour was considering a similar issue as here, but where the offences were drug trafficking with a maximum penalty of 10 years imprisonment.  The value of the drugs were said to be over $30,000 and the jurisdiction of the Court depended on the offence not being one that ‘relates to property’.  Unlike the present matter, the prosecution argued that the offence was one that ‘relates to property’.  Ultimately, Her Honour concluded the charge could not properly be characterised as an offence which ‘relates to property’.

1. I note that there are a number of differences between that matter and the present one.  It was a different offence, from a different Act, involving a very different type of item.  Further, in that matter the Court would only have had jurisdiction if the offence was found not to ‘relate to property’.  It was also not clear whether the same arguments were put before me as were put before Her Honour. 

Orders

1. The orders of the Court are:

The offence of possession of prohibited firearms, while not authorised by licence or permit, contrary to s 42(1)(a)(ii) of the Firearms Act 1996, is an offence that ‘relates to property’, and accordingly the Magistrates Court has jurisdiction to dispose of that charge, subject to the other requirements of s 375 of the Crimes Act 1900.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston

Associate: Linda Cao

Date: 21 February 2022