Tsakonakos v Police No. Scgrg-00-612

[2000] SASC 283

TSAKAKONOS v POLICE
[2000] SASC 283

Magistrates Appeal

Civil  ex tempore

1................ Gray J ............. On 20 June 2000 in the Berri Magistrates Court the appellant pleaded guilty to the following offences of failing to secure firearms in accordance with regulation 29(1) of the Firearms Regulations, 1993 ("the Regulations"), contrary to regulation 53 of the said Regulations,  and failing to store ammunition in a locked container separately from firearms, in accordance with regulation 32(1) of the Regulations, contrary to regulation 53 of the said Regulations.

1. Upon his plea of guilty the appellant was convicted of both counts and fined $300.  In addition, the Learned Sentencing Magistrate made the following orders:

   (i)     that the appellant be disqualified from holding or obtaining a

   firearms licence;

   (ii)    that the four firearms seized by police be forfeited to the Crown;

(iii)   that the appellant be allowed a period of twenty-eight (28) days

in which to make arrangements for the balance of any firearms

owned by the appellant to be transferred into the name of a person

holding either a firearms licence or a dealers licence.

1. The principal ground of appeal was that the learned magistrate had not properly advised Mr Tsakonakos of his rights or of the likely penalties that might be imposed.  An affidavit was filed by the prosecuting officer in which it was asserted without particularity that Mr Tsakonakos had been advised of his rights and of the range of penalties that might be imposed.  Mr Tsakonakos who appeared in person did not deny the accuracy of the matters deposed in the affidavit but said that he had no recollection of being so advised.

2. Section 34A(2) of the Firearms Act 1977 (SA) relevantly provides:

34A(2)    Where, in the course of proceedings before a court, the court forms

the view that a party to the proceedings who has possession of a firearm, receiver, mechanism, fitting or ammunition is not a fit and proper person to have possession of the firearm, receiver, mechanism, fitting or ammunition, the court must make one or more of the following orders:

(e)    that the party is disqualified from holding or obtaining a

licence for a specified period or until further order."

1. The learned magistrate did not specify a period in respect of the disqualification of Mr Tsakonakos from holding or obtaining a licence.  During the course of the appeal it became apparent that Mr Tsakonakos was content for the appeal to be resolved on the basis that the order was clarified to make it explicit that it was until further order so that Mr Tsakonakos would be at liberty to apply to the court to review the order.  The Crown did not oppose this course and accepted that it was implicit that the order was until further order. The appeal will be allowed for the purpose of qualifying that aspect of the order. 

2. In these circumstances Mr Tsakonakos informed me that he did not wish to otherwise pursue the appeal.

3. The order of the court is that the appeal be allowed for the purposes of making explicit that the defendant's disqualification from holding or obtaining a firearms licence is to be until further order.  Otherwise the appeal is dismissed.