Tasmania v Mansell - [2020] TASSC 7

[2020] TASSC 7

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Mansell [2020] TASSC 7

PARTIES:  STATE OF TASMANIA
  v
  MANSELL, Meraki Sharka James

FILE NO:  77/2020
DELIVERED ON:  31 March 2020
DELIVERED AT:  Hobart
HEARING DATE:  10, 20 March 2020
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Particular offences – Offences against peace and public order – Offensive weapons – Firearms – Generally – Dealing in firearms – What constitutes.

Firearms Act 1996 (Tas), s 11(1).
Aust Dig Criminal Law [2581]

REPRESENTATION:

Counsel:
           State:  L Pennington
           Accused:  F Brinken
Solicitors:
           State:  Director of Public Prosecutions
           Accused:  Tasmanian Aboriginal Community Legal Service

Judgment Number: [2020] TASSC 7
Number of paragraphs: 23

Serial No 7/2020
File No 77/2020

STATE OF TASMANIA v MERAKI SHARKA JAMES MANSELL

REASONS FOR JUDGMENT BLOW CJ

31 March 2020

Mr Mansell has been indicted on a charge of dealing in firearms whilst not the holder of a firearm dealer's licence, contrary to s 11(1) of the Firearms Act 1996 ("the Act"). The particulars on the indictment allege that he "dealt in a firearm, namely a .22 five shot rifle, when he was not the holder of a firearm dealers licence". It is significant that the charge relates to a single firearm, not "firearms". I invited submissions from counsel as to whether s 11(1) is contravened when a person acquires or disposes of a single firearm. For the reasons stated below, I have concluded that that is the case, and that the indictment is therefore not defective.
In November 2019 Mr Mansell was charged on a single complaint with contravening s 11(1), with four summary firearms offences, and with breaching a police family violence order. On 21 January 2020 he appeared before a magistrate and pleaded guilty to all charges. The learned magistrate made an order committing him to this Court for sentence on the s 11(1) charge, and adjourned the other charges sine die. When a defendant pleads guilty to an indictable offence in the Magistrates Court, s 59(4) of the Justices Act 1959 requires the plea of guilty to be endorsed on the complaint by the defendant. That was not done in this case. It was therefore necessary for the Crown to file an indictment in order for the s 11(1) charge to be dealt with.
Mr Mansell appeared before me in Burnie on 28 February 2020. He was represented by counsel. He was ready to plead guilty to the charge on the indictment. His counsel was ready to make an application for the five other charges to be dealt with by me pursuant to s 385A of the Criminal Code. However I informed counsel that I was concerned that s 11(1) might not apply in relation to a single firearm. The case was adjourned for argument in Hobart. On 10 March 2020 the Crown prosecutor made submissions as to the proper interpretation of s 11(1), arguing that it applied to any acquisition or disposal of a single firearm. I adjourned the matter so that defence counsel would have an opportunity to consider the Crown's arguments and respond. On 20 March 2020, counsel for Mr Mansell informed me that the defence "took no issue with" the charge of dealing in firearms.
Section 11(1) reads as follows:
"(1) A person is guilty of an indictable offence punishable under the Criminal Code if the person deals in firearms without holding a firearms dealer licence.
Section 24(d) of the Acts Interpretation Act 1931 provides that in any Act, "words in the singular shall include the plural".
However there are limits to the scope of s 24(d). Section 4(1) of the Acts Interpretation Act provides as follows:
"(1) Except where otherwise expressly provided, the provisions of this Act shall be applied in the interpretation and construction of every Act whenever passed (including this Act) and of all regulations made under any Act, except in so far as —
(a) any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act or regulation to be interpreted; or, in case of a regulation, with the true intent and object of the Act under which such regulation purports to have been made;
(b) the interpretation which any provision of this Act would give to anything contained in such particular Act or regulation is inconsistent with the context thereof or with any definition or interpretation contained in such particular Act or regulation or in the Act under which such regulation is made."
I had to consider whether interpreting "firearms" in s 11(1) as including a single firearm would be repugnant to the true intent or object of s 11, or inconsistent with the context of s 11(1).
The Act creates a number of offences that apply in relation to "a firearm", but only two that relate to "firearms". One such offence is created by s 11(1), and the other by s 110A, under which a person is guilty of an indictable offence if the person "traffics in firearms without lawful excuse".
The offences created by the Act in relation to "a firearm" include the following:
·    Possessing or using a firearm (without the appropriate licence): s 9(1).
·    Possessing or using a prohibited firearm: s 9(1A).
·    Acquiring a firearm when not a licensed firearms dealer or the holder of an appropriate firearms licence or permit: s 10(1).
·    Manually handling a firearm in the course of employment by a firearms dealer (subject to exceptions): s 11(3).
·    Possessing a firearm for show or exhibition without a firearms museums licence: s 12(1).
·    Possessing an heirloom firearm without a firearm heirlooms licence: s 13(1).
·    Possessing an ex-military firearm when not the holder of a militaria firearms licence: s 13(1).
·    The purchasing of a firearm by a person who is not a licensed firearms dealer from a person who is not a licensed firearms dealer: s 24.
·    The purchasing, acquisition or taking possession of a firearm by a licensed firearms dealer from another person who is not a licensed firearms dealer (subject to exceptions): s 25(1).
·    The selling of a firearm by a licensed firearms dealer to a person who does not have a permit to acquire it and a licence to possess it: s 25(2).
·    When s 36F(1) or (2) applies, disposing of a firearm otherwise than to a police officer or a licensed firearms dealer: s 36F(3).
The words "deals in firearms", in their ordinary meaning, refer to a course of conduct, as distinct from a one-off transaction, or even a one-off acquisition followed by a one-off sale or disposal.
However there are two provisions in the Act that speak of dealing in "a firearm", and thus support the interpretation contended for by the Crown. The first is the definition of "deal" in s 3, which refers to "a firearm", using the singular, not the plural, but then goes on, inconsistently, to refer to "firearms" in the plural. That definition reads as follows:
"deal, in relation to a firearm, means to —
(a)manufacture, buy or sell firearms and firearm parts; or
(b)possess firearms and firearm parts for the purpose of sale, transfer, storage or testing; or
(c)possess firearm parts for the purpose of manufacturing firearms; or
(d)possess firearms and firearm parts for the purpose of repair in the ordinary course of business; or
(e)sell ammunition".
The second is s 19, which says what is authorised by a firearms dealer licence. That section reads as follows:
"A firearms dealer licence authorises the holder to deal only in a firearm of a category specified in the licence at premises specified in the licence."
If the Crown's contention as to the proper interpretation of s 11(1) is correct, and if the words in the definition of "deal" were given their ordinary literal meaning, the result would be absurd. A member of the public wishing to buy or sell a firearm would need to obtain a firearms dealer licence, even if he or she held a firearms licence of the appropriate category. Sections 14 to 18 of the Act authorise the holders of firearms licences to possess and use firearms in different categories – Categories A, B, C, D, and H. However the word "deal", which applies "in relation to a firearm" includes, in par (a) thereof, "buy or sell firearms". If the plural includes the singular in par (a), the holder of a firearms licence for the appropriate category would be required to hold a firearms dealer licence in order to buy or sell a single firearm of that category. But even if the word "firearms" did not include the singular, that licensee would need to obtain a firearms dealer licence if he or she wanted to buy or sell two or more firearms of the appropriate category.
In its original form, s 11(1) read as follows:
"(1) A person must not deal in firearms unless the person is the holder of a firearms dealer licence.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both."
Prior to the commencement of the Firearms Amendment Act 2007, there was nothing in the Act apart from s 11(1) that could be construed as prohibiting the sale of a firearm by someone who was not the holder of a firearms dealer licence.
It is clear that the purpose of the Act was to promote public safety by restricting the availability of firearms. Its long title is, "An Act to provide for the regulation, registration and control of firearms". It commences with a preamble that refers to "the tragic events which occurred at Port Arthur on 28 April 1996".
Section 25(3), which was enacted in 1996 and has never been amended, provides as follows:
"(3) The holder of a licence may sell a firearm to, or purchase a firearm from, another holder of a licence through the agency of a licensed firearms dealer."
If the sale of a single firearm by a person who did not hold a firearms dealer licence were not prohibited by s 11(1), there would have been no need for s 25(3).
The Firearms Amendment Act made the offence created by s 11(1) an indictable offence, but did not change the nature of that offence. That Act also introduced a new indictable offence of trafficking in firearms without lawful excuse, contrary to s 110A(1). The introduction of that indictable offence has no bearing on the interpretation of s 11(1).
The amendment of s 11(1) in 2007 to create an indictable offence did not change the scope of the conduct prohibited by that subsection.
It is true that, when the Act was passed in 1996, s 11(1) was unique in creating an offence expressed to relate to "firearms" as distinct from "a firearm". And it is true that the expression "deals in firearms" would ordinarily refer to a course of dealing rather than a single transaction. However, having regard to the purpose of the 1996 legislation, the absence of any other provision prohibiting the sale of firearms by persons other than licensed firearms dealers, and the exemption created by s 25(3), it is clear that s 11(1) in its original form should be interpreted as applying to a transaction relating to a single firearm.
It must follow that there are implied exceptions to s 11(1). That is an unsatisfactory state of affairs in relation to a statutory provision that creates an indictable offence punishable by imprisonment for up to 21 years. However the subsection must be interpreted as impliedly not applying to dealings authorised by licences and permits issued under the Act.
For these reasons I have concluded that the indictment is not defective.