TURNER v Police
[2016] SASC 91
•23 June 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
TURNER v POLICE
[2016] SASC 91
Judgment of The Honourable Justice Stanley
23 June 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - OFFENCES AND OTHER MATTERS
On 16 January 2014 the appellant was sentenced by a magistrate after he had pleaded guilty to one count of failing to comply with a condition of a firearms licence contrary to section 21 of the Firearms Act 1977 (SA). The appellant was charged with failing to store three firearms securely in accordance with a condition of his firearms licence.
The magistrate convicted the appellant and imposed a fine of $500. In addition the appellant was required to pay a prosecution fee, a victims of crime levy and court fees.
The sole complaint on the appeal is that the magistrate erred in recording a conviction.
The appeal was instituted out of time.
Held:
1. An extension of time should be granted. It was not the fault of the appellant that the appeal was not brought within time. The appeal is not so obviously lacking in merit on its face that the court should shut out the appellant from a hearing on the merits. The principles relevant to the determination of whether to extend time do not oblige the court to consider the merits in detail (at [6]).
2. The time within which to institute the appeal is extended to 15 February 2016 (at [6]).
3. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [18]).
4. The magistrate did not overlook the requirements of s 16(a) Criminal Law (Sentencing) Act 1988 (SA). It is apparent that the magistrate addressed himself to the provisions of s 16 in deciding whether to proceed without recording a conviction (at [26]).
5. There is no error demonstrated in the approach of the magistrate in his consideration of the difficulties of recording of a conviction (at [41]).
6. It is not accepted that the magistrate failed to have regard to the cumulative effect of the factors in favour of the exercise of the s 16 Criminal Law (Sentencing) Act 1988 (SA) discretion. While there was much to be said in favour of the appellant, the magistrate was required to have regard to the fact that the appellant had pleaded guilty to a regulatory offence relating to firearms which gives rise to a particular need for general deterrence (at [42]).
7. Appeal dismissed (at [46]).
Firearms Act 1977 (SA) s 21, s 20(1)(a); Supreme Court (Civil) Rules r 281(1); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 10(2)(e); Magistrates Court Act 1991 (SA) s 42(4), referred to.
Ashton v Police [2005] SASC 460, distinguished.
R v Yousef [2005] SASC 203; Forgione v Police [2008] SASC 54, discussed.
Police v Warren [2000] SASC 285; R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; Singh v Police [2013] SASC 155; R v Kreutzer (2013) 118 SASR 211; R v Stubberfield (2010) 106 SASR 91; Brookes v Police [2014] SASC 22; Police v Kostoff [2014] SASC 130; Sims v Police [2000] SASC 102; Sullivan v Police [2010] SASC 216; Police v Chilton (2014) 120 SASR 32; R v Luzte (2014)121 SASR 144; R v Varma (2013)116 SASR 532; Schmidt v Police [2005] SASC 482; Piva v Brinkworth (1992) 59 SASR 92; Golubovic v Police [2014] SASC 79; Lloyd-Groocock v Police (2008) 102 SASR 465; Pollitt v Police [2007] SASC 382; Johnson v Registrar of Firearms (2001) 79 SASR 353; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Jaworski v Police [2009] SASC 284; Offe v Police (2002) 84 SASR 1, considered.
TURNER v POLICE
[2016] SASC 91Magistrates Appeal
STANLEY J:
Introduction
On 16 January 2014 the appellant was sentenced by a magistrate after he had pleaded guilty to one count of failing to comply with a condition of a firearms licence contrary to section 21 of the Firearms Act 1977 (SA) (the Firearms Act). The appellant was charged with failing to store three firearms securely in accordance with a condition of his firearms licence.
The magistrate convicted the appellant and imposed a fine of $500. In addition the appellant was required to pay a prosecution fee, a victims of crime levy and court fees.
The sole complaint on the appeal is that the magistrate erred in recording a conviction.
The appeal has been instituted out of time.
Pursuant to 6SCR 281(1) the appeal had to be commenced within 21 calendar days after the date of the judgment. The appeal was not instituted until 15 February 2016. Accordingly, the appeal is more than two years out of time. The appellant seeks an extension of time on the basis that the failure to bring the appeal within time was not the result of any default on his part and the interests of justice favour the grant of an extension of time. The respondent opposes an order extending the time within which to bring the appeal on the ground that the appeal lacks merit. It does not oppose the extension of time on any other basis. In Police v Warren[1] Gray J considered the factors relevant to the exercise of the discretion to extend time. He said:[2]
[1] [2000] SASC 285.
[2] [2000] SASC 285 at [16] – [17].
The following rules guide the court in considering an application to extend time:
(1)The discretion exists for the sole purpose of doing justice between the parties.[3]
[3] Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257; Gallo v Dawson (1990) 93 ALR 479.
(2)Some material must be advanced upon which the court can exercise its discretion.[4]
[4] Ratnam v Cumarasamy (1964) 3 All ER 933 at 935.
(3)There is an obligation to explain with frankness and candour the reason for delay.[5]
[5] Hall v The Nominal Defendant (1996) 117 CLR 423 at 435.
(4)The longer the delay the more exceptional or substantial the explanation required.[6]
(5)If no sufficient grounds of appeal are disclosed an extension will not be granted.[7]
(6)The court is not obliged to consider the merits in detail.[8]
(7)The court will consider whether any substantial grounds exists for apprehending a miscarriage of justice.[9]
(8)Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a miscarriage of justice.[10]
The above rules are subservient to the overriding principle that the court should grant of extension of time to avoid a miscarriage of justice. As Kirby J said in Jackamarra v Krakouer[11] at [66]:
"Procedural discretions, such as those in question here, are typically expressed in very wide language. (Boomalli Ltd v Hake [1985] WAR 7 at 9.) In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. (In re Coles and Ravenshear [1907] 1 KB 1 at 4; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412.) This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances (Christie v Harvey and Hayward (1900) 2 WALR 146 at 148; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 947; [1985] 2 All ER 517 at 521; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 167.)
... Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account."
[6] R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; R v Armstrong (1983) 35 SASR 356.
[7] R v Trotter (1979) 22 SASR 64.
[8] Jackamarra v Krakouer (1998) 195 CLR 516.
[9] Gikas v Police (1999) 202 LSJS 301 at 306.
[10] Gikas v Police (1999) 202 LSJS 301 at 306.
[11] (1998) 195 CLR 516 at 539.
While the parties proceeded before me on the basis that the application for an extension of time would turn on the merits of the appeal, I am satisfied in the circumstances it is appropriate that an extension of time should be granted. It was not the fault of the appellant that the appeal was not brought within time. The appeal is not so obviously lacking in merit on its face that the court should shut out the appellant from a hearing on the merits. The principles relevant to the determination of whether to extend time do not oblige the court to consider the merits in detail. In effect, that is what I am being asked to do. I extend the time within which to institute the appeal to 15 February 2016.
Circumstances of the offending
On 4 August 2012 police attended at the farming property owned by the appellant at Warnertown. The police came to undertake a routine firearms audit. They found three unloaded rifles not secured in accordance with the regulations as required by the appellant’s firearms licence. One was found in a bag in the rear room of the residence and two were found on top of the firearms storage cabinet in a bedroom of the house.
The rifle in the bag had been placed in the rear room of the house by the appellant the previous evening after he had used it to destroy a sheep on the property. He had left it there while he cleaned up after burying the carcass but failed to re-secure it in the storage cabinet before the police attended the following day.
The two rifles on top of the firearms storage cabinet in a bedroom had been left there by the appellant when he had removed them from the cabinet for servicing. He did this on the bed. Apparently he was called away at short notice while undertaking this task and placed them on top of the cabinet, with the intention of completing the task as soon as he was able. He had not done so by the time the police arrived. It is unclear from the sentencing remarks how long those two rifles had been left on top of the cabinet. On appeal, Mr Lister, counsel for the appellant, told me that his instructions are that the rifles were left on top of the cabinet for a week. It is also unclear why the appellant was unable to secure them in the cabinet before he was called away.
The appellant’s residence is approximately 600 metres from the nearest road. That road is an unsurfaced no-through road. The residence is approximately four kilometres from the nearest main road. The magistrate was told the house was always locked and secured when the appellant was not in attendance.
Personal circumstances
The appellant was 46 years of age at the time of the offence and had held a firearms licence since he was 18. He lives alone on the farm at Warnertown but has been employed as a diesel mechanic and now a plant operator at the Port Pirie Smelters for the past 25 years.
He has no previous convictions.
The magistrate received a testimonial from his employer as to his good character.
The appellant has a young adult daughter who lived and studied in the United Kingdom. He has travelled to the UK to visit her.
The appellant needs a firearms licence to manage his farming property. He needs a firearm to destroy ill or injured livestock and to deal with feral animals and other pests such as wild dogs.
Sentencing remarks
The magistrate commenced his sentencing remarks by traversing the nature of the offence to which the appellant had pleaded guilty, the circumstances of the offence and the personal circumstances of the appellant that I have set out above. The magistrate noted that the appellant had a history of diligent compliance with firearms regulations and had a reputation for being very organised and regimented. He said:[12]
Your counsel acknowledges that regulatory offences of this type ordinarily call for the recording of a conviction, even where the offender is otherwise of good character and has no prior appearances in court. Notwithstanding that, he has urged me to exercise the court’s discretion to refrain from recording a conviction against you for this offence.
In support of that application, he makes the following submissions.
He reminds me that you have no prior appearances in court whatsoever and in particular, no appearances for offences against the Firearms Act 1977. He tells me you have a long history of good compliance with the requirements of the Firearms Act 1977. Your counsel further submits that a conviction may potentially affect your ability to travel to visit your daughter when she next studies or works overseas. I am told that you travelled to the United Kingdom to visit her while she studied in that country. It is also submitted that you have a genuine need for a firearms licence in order to destroy ill or injured livestock and to deal with feral animals and other pests. Your counsel also points out that no ammunition was found in proximity to the firearms and that the ammunition was separately locked in a container. He says your failure to comply with the statutory requirements was not deliberate but an oversight. He described your offending as not a blatant disregard for the legislation but an oversight and he suggested that there was a reduced or minimal risk of the firearms falling into the hands of unknown persons.
In support of his submissions, your counsel has provided a character reference from a senior employee of the Nyrstar smelters and documents which evidence the fact that your daughter studied in the United Kingdom.
The Firearms Act 1977 and the Regulations under the Act establish a regime of strict gun controls to provide adequate safeguards for the safety of the public. The licensing and regulation of firearms is intended to ensure that only responsible persons with appropriate licences are able to access firearms and the proper controls exist in relation to the storage of firearms and ammunition. The laws were introduced in response to the use of firearms in serious offences and the proliferation of such weapons in the community. The law is intended to help prevent firearms falling into the hands of those who might be minded to use them in the commission of offences. The law provides it is for appropriate penalties and severe penalties for those who fail to comply with the legislative and regulatory regime. The obligations upon legitimate licence firearms owners and penalties for failure to meet those obligations reflect the importance of gun control for public safety. The severity of the penalties is intended to deter people from deliberate avoidance and from complacency. Regulatory offences generally and firearms offences in particular are committed by persons of otherwise good character and the proper enforcement of the regulations is intended to act as a deterrent to such people. Similarly the recording of convictions for offences also serves to provide appropriate deterrence against breaches of the regulatory regime. The recording of a conviction for a regulatory breach does not carry the same stigma or potential damage to the character and reputation of the individual concerned as does, for example, a conviction for an offence of dishonesty or violence.
You have made an error of judgment. That does not erode your otherwise good character and reputation. I would be surprised if the recording of a conviction in this case were to result in the adverse consequences that have been forecast in your counsel’s submissions.
In relation to the potential impact upon your capacity to retain your firearms licence and your firearms, again I would be very surprised if the Registrar of Firearms would deny you a licence. In this respect, I note that the prosecution have not sought forfeiture of the firearms in question. I do not intend to make an order disqualifying you from holding a firearms licence or to impose a prohibition order. I therefore do not expect the recording of a conviction, in itself, could lead to a loss of your firearms licence and thereby limit your capacity to carry out your work as a rural producer.
In considering this application, I have also taken into account your guilty plea and your co-operation with the authorities. In all the circumstances, therefore, I decline to exercise the discretion to refrain from recording a conviction against you and you will be convicted of the offence.
[12] Sentencing Remarks [7] – [14].
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[13] where Doyle CJ said:[14]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as “manifest inadequacy”.
[13] [2009] SASC 346, (2009) 266 LSJS 283.
[14] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288 – 289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[15] does the appeal court have the power to quash the sentence passed below.[16] As was said in R v Kreutzer[17] by Kourakis CJ,[18]if the error identified by the court is manifest excess or inadequacy (an outcome error), the court will fix the sentence it thinks ought to have been imposed. If the error identified by the court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
Section 16 of the Criminal Law (Sentencing) Act 1988 (SA)
[15] [1936] HCA 40, (1936) 55 CLR 499 at 504 - 505.
[16] Singh v Police [2013] SASC 155 at [33].
[17] [2013] SASCFC 130, (2013) 118 SASR 211.
[18] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215.
It is apparent from the sentencing remarks that the magistrate considered the application of s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) in determining whether to record a conviction. Section 16 provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
In R v Stubberfield[19] the Court of Criminal Appeal, in a joint judgment of Gray, Sulan and David JJ, said:[20]
The exercise of the s 16 discretion is enlivened if the court is satisfied of a number of preconditions. First, the court must propose to impose a fine, a sentence of community service, or both. Secondly, it must be satisfied that the defendant is unlikely to commit such an offence again. Thirdly, the court must be satisfied that there is good reason not to record a conviction, having regard to one or more of the factors set out in s 16(b). These factors are the character, antecedents, age or physical or mental condition of the defendant, the fact that the offence was trifling or any other extenuating circumstances.
If those preconditions are satisfied, the discretion is enlivened; however, that discretion is not necessarily required to be exercised. The court must consider whether, notwithstanding the satisfaction of those preconditions, it is, in all the circumstances, appropriate to exercise the discretion.
[19] [2010] SASC 9, (2010) 106 SASR 91.
[20] [2010] SASC 9 at [40] – [41], (2010) 106 SASR 91 at 101 – 102.
The operation of s 16 was considered in Brookes v Police[21] where Nicholson J said:[22]
The considerations falling within s16(a) and (b) are in the nature of factual findings (apart from the matter in (b)(ii) which is a question of mixed fact and law). Discretionary considerations do not arise at this stage. Importantly, when considering a challenge to any such findings, an appellate court is not constrained by the usual approach to be taken when reviewing a discretionary determination, as explained in House v R.[23] A discretionary determination (and, on appeal, House v R considerations) arises when the decision maker is deciding whether “good reason” exists for not recording a conviction, after first having made such findings that are available and fall within s16(a) and (b).
[21] [2014] SASC 22.
[22] [2014] SASC 22 at [9].
[23] (1936) 55 CLR 499 at 504-505.
The appellant’s submissions
The appellant submits that the exercise of the magistrate’s sentencing discretion miscarried on three grounds. First, the magistrate failed to consider whether the appellant was likely to reoffend as required by s 16(a) of the Sentencing Act. Second, the magistrate resorted to a speculative consideration of the likely effect upon the appellant of a conviction being recorded. Third, the magistrate failed to consider the cumulative effect of the appellant’s complete lack of any prior offences, his good character, cooperation with police, guilty plea and the circumstances of the offending, including geographical elements of that offence, against the regime of the Firearms Act.
Consideration
The appellant contends that the magistrate failed to determine whether the appellant satisfied the test in s 16(a) of the Sentencing Act and that this failure constitutes error. The appellant relies upon previous decisions of this court in Ashton v Police[24] and Police v Kostoff.[25]
[24] [2005] SASC 460.
[25] [2014] SASC 130.
In Ashton v Police[26] Debelle J held that a magistrate erred in declining to proceed without recording a conviction because he failed to address the question whether the defendant was unlikely to commit such an offence again. He held that the magistrate’s failure to address the issue at all justified the sentencing discretion to be exercised afresh.
[26] [2005] SASC 460.
In Police v Kostoff[27] Peek J held that in considering whether to exercise the discretion to proceed without recording a conviction a defendant was entitled to a clear finding by the court that he was unlikely to commit such an offence again. He said:[28]
So it is that if a magistrate follows the correct statutory process, he or she may frequently determine that he or she does not hold the requisite opinion. But if in a particular case he or she finds that he or she does in fact hold the requisite opinion in relation to the defendant, he or she will then be in a position to approach the following exercise of the s 16(b) discretion against the background to which such a defendant is entitled – namely, a finding that the defendant is favourably differentiated from the many defendants in relation to whom the magistrate would not hold the requisite opinion. Further, it may be added that if the magistrate holds not just a bare requisite opinion that a defendant is “unlikely” to commit such an offence again but rather holds the opinion that such unlikelihood is of a high order, that too may further differentiate that defendant’s position from that of many others.
[27] [2014] SASC 130.
[28] [2014] SASC 130 at [18].
I accept that in his sentencing remarks the learned magistrate did not refer expressly to the provision of s 16(a). It does not follow, however, that the magistrate overlooked the requirements of s 16(a). As was said in Sims v Police,[29] the fact he did not refer to the express terms of s 16(a) does not necessarily mean he did not direct his mind to the subsection. It is apparent that the magistrate addressed himself to the provisions of s 16 in deciding whether to proceed without recording a conviction in this case. So much is clear from his sentencing remarks where, in the context of considering the submission that was urged upon him by counsel for the appellant that he should exercise the court’s discretion to refrain from recording a conviction, he referred extensively to the appellant’s character and antecedents as well as other extenuating circumstances which would enliven the exercise of the court’s discretion. There was no need for the magistrate to consider these matters unless he was satisfied, as a matter of fact, that the appellant was unlikely to commit such an offence again. If he had not been satisfied of that matter there was no need for him to consider the s 16(b) factors. So much is made clear by the Court of Criminal Appeal in Stubberfield.
[29] [2000] SASC 102 at [6].
In my view, this distinguishes this case from that considered in Ashton v Police[30] where Debelle J found there was a failure by the magistrate in that case to address the s 16(a) issue. By way of contrast, I am satisfied that notwithstanding the failure expressly to refer to the subsection, the magistrate not only considered the question, but must have been satisfied that the appellant was unlikely to commit such an offence again.
[30] [2005] SASC 460.
Further, I do not consider that the strength of the opinion as to the unlikelihood of a defendant committing such an offence again is relevant to the exercise of the discretion. The finding that the defendant is unlikely to commit such an offence again merely is one of the preconditions to the exercise of the discretion. The discretion is to be exercised by an evaluation of the factors in s 16(b).
In any event, I note that in Police v Kostoff[31] Peek J found it unnecessary to decide whether a failure to consider the s 16(a) question necessarily results in the sentence being set aside. As I am satisfied that the magistrate did consider the s 16(a) question, I need not address that issue.
[31] [2014] SASC 130 at [20].
The appellant submits that the magistrate erred in having regard to two erroneous facts or extraneous matters in deciding whether to exercise the discretion to proceed without recording a conviction. Those two matters were first, the magistrate’s observation that the recording of a conviction for a regulatory breach does not carry the same sigma or potential damage to the character and reputation of the individual concerned as does, for example, a conviction for an offence of dishonesty or violence and, second, that the recording of a conviction in itself would not be expected to lead to the loss of the appellant’s firearms licence.
The appellant complains that the magistrate failed to fully or adequately consider the difficulties for the appellant of a recorded conviction, namely, the potential that he may be denied a visa for entry to the United Kingdom or the United States to visit his daughter, and the risk that it could result in him being denied insurance cover.
On appeal the appellant sought to put further evidentiary material before the court by way of a copy of correspondence from a Mr Andrew Middleton, a travel agent and district representative for RAA Insurance dated 22 January 2016. That course was opposed by the respondent. In addition he sought to tender a form issued by the United Kingdom government for visa applicants. That was not opposed by the respondent.
The court may admit fresh evidence on appeal if it is in the interests of justice to do so.[32] The statutory power to do so is not to be read narrowly. In Sullivan v Police[33] Kourakis J (as he then was) observed that s 42 of the Magistrates Court Act 1991 (SA) confers a wide discretion which requires a Judge of this court hearing a magistrates appeal to balance the interests of justice in finality against the public interest in ensuring an appropriate sentence has been passed.[34] In the absence of any objection I admitted the United Kingdom visa application form. The form requires an applicant for a visa to provide a range of information including a disclosure of any conviction for any criminal offence (including driving offences) in the United Kingdom or any other country, at any time.
[32] Magistrates Court Act 1991 (SA) s 42(4).
[33] [2010] SASC 216.
[34] [2010] SASC 216 at [30].
The letter from Mr Middleton indicates his understanding that a criminal record has to be declared on visa applications to China and India and “until recently the United States”. In each case the application requires the applicant to travel to Canberra or Melbourne to appear before immigration authorities. Further, he states that RAA Insurance seeks disclosure by an applicant for cover for motor vehicle, caravan, house and contents and boat insurances to disclose whether they have any criminal conviction and the nature of that conviction. It appears that the question which is asked is whether an intended insured had any criminal charges, charges pending or convictions in the previous five years. That information may be relevant to whether cover is extended.
The respondent objected to the receipt of this letter on the basis that it is inadmissible hearsay and its reliability is both untested and not accepted.
On the hearing of the appeal I rejected the application to tender this material as fresh evidence. Notwithstanding the broad nature of the power conferred on the court by s 42 to protect the public interest in the administration of justice by permitting the admission of fresh evidence where it is in the interests of justice to do so, in this case I did not consider the material to be relevant. The material did not indicate that there was any requirement to disclose a conviction if the appellant was applying for a visa for entry into the United Kingdom or the United States. Further, the material indicated that insofar as an application for insurance cover to RAA Insurance was concerned, an applicant was required to disclose not just a conviction but any criminal charges.
Before the magistrate there was no submission made on the basis of any difficulty posed by the recording of a conviction in obtaining insurance cover. The magistrate did consider the issue of the potential impact a conviction would have on the appellant’s ability to travel to the United Kingdom to visit his daughter.
It is important that a failure to give adequate weight to a relevant consideration does not disclose error.[35] It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways. Accordingly, a submission that the magistrate erred in not giving adequate weight to the difficulties for the appellant caused by a conviction being recorded does not disclose a House v King error. In any event, the possibility that this conviction could affect a visa application by the appellant does not mean that there was an error by the magistrate in the exercise of his discretion in declining to proceed without recording a conviction.
[35] Police v Chilton [2014] SASCFC 76 at [17], (2014) 120 SASR 32 at 38; R v Luzte [2014] SASCFC 134 at [47], (2014) 121 SASR 144 at 154.
The magistrate considered that the recording of a conviction for a regulatory breach does not carry the same stigma or potential damage to the character and reputation of an offender as does a conviction for an offence of dishonesty or violence. Broadly speaking, I do not consider that this observation discloses any error. Moreover, it was the foundation for the magistrate’s conclusion that he was sceptical about the recording of a conviction in this case having the adverse consequences for the appellant’s overseas travel and the maintenance of his firearms licence. These potential consequences were relevant factors for the magistrate to consider in the exercise of his discretion. While there are instances of courts in the past considering that the potential difficulties a conviction may pose for future international travel justified proceeding without recording a conviction,[36] there are cases where the court has come to a different conclusion.[37] As was observed in Schmidt v Police[38] by Doyle CJ, even if the recording of a conviction might mean the defendant is not able to travel to certain countries, it is not of great significance.[39]
[36] R v Yousef [2005] SASC 203; Forgione v Police [2008] SASC 54.
[37] R v Varma [2013] SASCFC 72 at [44], (2013) 116 SASR 532 at 545, Schmidt v Police [2005] SASC 482.
[38] [2005] SASC 482.
[39] [2005] SASC 482 at [28].
Further, I do not accept the submission that a conviction could result in the loss of the appellant’s firearms licence. The power of the Registrar to cancel a firearms licence is enlivened where the Registrar is satisfied, inter alia, that the licence holder has contravened a provision of the Firearms Act or a condition of a firearms licence.[40] It does not depend upon a conviction being recorded.
[40] Firearms Act 1977 (SA) s 20(1)(a).
Accordingly, I am not persuaded that the appellant has demonstrated any relevant error in the approach of the magistrate in his consideration of the difficulties the recording of a conviction posed for the appellant.
The final ground of appeal is that the magistrate failed to have regard to the cumulative effect of the factors in favour of the exercise of the s 16 discretion. I do not accept this submission. While there was much to be said in favour of the appellant including, his lack of antecedents, his good character and reputation, his early guilty plea and cooperation with the authorities and the minimal risk of the firearms falling into the hands of others, these are all discretionary considerations which were weighed by the magistrate. On the other hand, the magistrate was required to have regard to the fact that the appellant had pleaded guilty to a regulatory offence relating to firearms which gives rise to a particular need for general deterrence.
It is to be remembered that the exercise of the power conferred pursuant to s 16 is an exception to the rule; ordinarily a conviction will be recorded.[41] The discretion conferred pursuant to s 16 is to be used sparingly, taking into account the importance of deterrence in regulatory offences such as these.[42] Whether good reasons exist for recording a conviction or not involves a balancing exercise which requires weighing the beneficial nature to the individual of the order to proceed without conviction against the public interest in convictions being recorded.[43] The imposition of a penalty for regulatory offences without imposing a conviction will be uncommon, even where factors personal to a defendant are favourable.[44] This is particularly so for regulatory offences of this kind. The overriding policy of the Firearms Act is to protect the public from the unsafe or criminal use of firearms.[45] The Firearms Act and the regulations made thereunder impose a responsibility on those who possess firearms to ensure they are kept secure. This ensures that firearms are not easily accessible so as to avoid tragic consequences which may result from the misuse of them.[46] This court has previously held that the community must not be complacent about the dangers of firearms and the damage that can be caused when they are not kept in accordance with legislative requirements.[47] Section 10(2)(e) of the Sentencing Act provides that in determining a sentence for an offence involving a firearm, a court must give proper effect to the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence. The recording of a conviction is an important factor in effecting general deterrence.
[41] Sims v Police [2000] SASC 102 at [7].
[42] Piva v Brinkworth (1992) 59 SASR 92 at 96.
[43] Golubovic v Police [2014] SASC 79 at [12].
[44] Lloyd-Groocock v Police [2008] SASC 313 at [59] – [60], (2008) 102 SASR 465 at 476.
[45] Pollitt v Police [2007] SASC 382 at [20]; Johnson v Registrar of Firearms [2001] SASC 51 at [16], (2001) 79 SASR 353 at 357; Registrar of Firearms v Gitsham [2002] SASC 301 at [23], (2002) 84 SASR 72 at 76.
[46] Jaworski v Police [2009] SASC 284 at [22].
[47] Offe v Police [2002] SASC 259 at [26], (2002) 84 SASR 1 at 9.
In my view, it cannot be said that the magistrate erred in failing to exercise the power conferred by s 16 of the Sentencing Act. The magistrate was entitled to have regard to the importance of general deterrence and to the importance of strict compliance with the legislative regime controlling dealing with firearms. It is not a question of whether I would have exercised the discretion in the same manner as the magistrate. Having said that, the courts must be alert to deter owners of firearms from carelessness and complacency. I am not satisfied that there was any error by the magistrate in the manner in which he exercised the discretion.
In those circumstances there is no justification for this court to intervene in the exercise of the magistrate’s sentencing discretion.
Conclusion
I would dismiss the appeal.
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