Voges v King
[2001] WASCA 201
•16 JULY 2001
VOGES -v- KING [2001] WASCA 201
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 201 | |
| Case No: | SJA:1236/2000 | 27 JUNE 2001 | |
| Coram: | MILLER J | 16/07/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | KENNETH VOGES CHRISTOPHER JAMES KING |
Catchwords: | Criminal law and procedure Appeal against sentence Spent conviction order Principles to be applied |
Legislation: | Criminal Code, s 426(2) Firearms and Guns Act 1931, s 9 Sentencing Act 1995, s 45 |
Case References: | Lowndes v The Queen (1999) 195 CLR 665 Neale v Sloan (1997) 27 MVR 246 R v Tognini (2000) 22 WAR 291 Chan v The Queen (1989) 38 A Crim R 337 Furtak v Timmers [2001] WASCA 65 House v The King (1936) 55 CLR 499 Pillage v Coyne (2000) 113 A Crim R 27 Lawless v The Queen (1979) 142 CLR 659 Ratten v The Queen (1974) 131 CLR 510 R v Tait (1979) 46 FLR 386 Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
CHRISTOPHER JAMES KING
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Spent conviction order - Principles to be applied
Legislation:
Criminal Code, s 426(2)
Firearms and Guns Act 1931, s 9
Sentencing Act 1995, s 45
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Applicant : Mr S J Jones
Respondent : Mr L B Robbins
Solicitors:
Applicant : Rattigan Kearney & Bochat
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
Neale v Sloan (1997) 27 MVR 246
R v Tognini (2000) 22 WAR 291
Case(s) also cited:
Chan v The Queen (1989) 38 A Crim R 337
Furtak v Timmers [2001] WASCA 65
House v The King (1936) 55 CLR 499
Pillage v Coyne (2000) 113 A Crim R 27
Lawless v The Queen (1979) 142 CLR 659
Ratten v The Queen (1974) 131 CLR 510
R v Tait (1979) 46 FLR 386
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
(Page 3)
1 MILLER J: The appellant was charged in the Court of Petty Sessions, Rockingham with two offences against the provisions of the Firearms Act 1973. The first was that on 2 November 2000 at Safety Bay he possessed a Sportco 7.62mm calibre rifle whilst not being the holder of a licence or permit entitling him to do so and not being exempted under s 8 or s 19 of the Firearms Act 1973, such offence being contrary to the provisions of s 19(1)(c) of the Act. The second was a charge that on the same date and at the same place, being responsible for the storage of a Bruno .22 calibre rifle and a Sportco 7.62mm rifle, he failed to safeguard them from loss or improper use contrary to the provisions of s 23(9)(iii) of the Act. The penalties set by the Act were imprisonment for six months or a fine of $2000 in relation to the first of the offences and a fine of $1000 in relation to the second.
2 The appellant pleaded guilty to each of the charges and was dealt with by Ms Bennett-Borlase SM on 28 November 2000. The facts read by the prosecutor established that on 2 November 2000 the appellant's home had been the subject of a burglary in which the Bruno .22 calibre rifle had been stolen. When police examined the appellant's home it was found that there was no approved cabinet as required by law for the storage of his firearms. He had stored the Bruno .22 rifle and the Sportco 7.62mm rifle under a suitcase in a walk-in robe. The Sportco rifle was still there when police examined the house and it was thereupon seized. When questioned by police the appellant stated that he had not used the Sportco rifle for at least 20 years, at which time he had been a member of a rifle club. Police records reveal that the rifle had never been licensed to the appellant.
3 Counsel for the appellant explained to the Court that the Sportco rifle had been purchased by the appellant in 1972. It was a competition rifle and had been used at the Wyalkatchem Rifle Club. Counsel informed the Court that "at that time the Club membership apparently covered the rifle". In fact, the provisions of the Firearms and Guns Act 1931, which was then in force, provided in s 9 that no licence was required by any person using a firearm the property of a member of a registered gun club, with his permission, on a properly constructed clay pigeon range of a registered gun club. Nor was a licence required to use a rifle that was the property of or of a member of a rifle club affiliated with the body known as the West Australian Rifle Association, or the body known and incorporated as the West Australian Small Bore Rifle Association, on a properly constructed range approved by the relevant body, (s 9(f) and s 9(fa)(i)). It therefore appears that the submission made on behalf of the appellant was incorrect. Club membership of the Wyalkatchem Rifle
(Page 4)
- Club could not of itself excuse the appellant from licensing the Sportco rifle which he had purchased through the Club.
4 Counsel for the appellant informed the Court that since the well-known changes in the law relating to the possession of firearms, the appellant had become aware of the need to have the Sportco rifle licensed. He had in fact delivered up a rifle during the amnesty period during which those in possession of certain classes of rifle and/or unlicensed firearms were encouraged to hand them in to the authorities.
5 Counsel then put to the Court that the appellant had put the two rifles in a "well hidden position but unfortunately they weren't locked away in a gun cabinet". This was apparently because the appellant had moved to new premises. In previous premises he seems to have had a locked cabinet. Counsel stated that the appellant wanted to dispose of the rifles and had in fact organised to sell the Sportco rifle to the WA Rifle Association. He was intending to sell the licensed firearm in due course. Counsel then put the personal circumstances of the appellant. It was pointed out that he was 52 years of age and lived in a de facto relationship. He had three children who were living with their mother. He was a school teacher with the Education Department earning $900 per fortnight.
6 Counsel sought a spent conviction order, pointing out that convictions would affect the appellant's promotion prospects as a teacher. It was put to the Court that he had been of previously good character and the offences were "perhaps borderline on the trivial aspect".
7 The learned Magistrate declined to make a spent conviction order. Her Worship said:
"Stand up, Mr Voges. These are not trivial offences. These are offences which really strike to the heart of the community as far as firearms are concerned. You have now realised, of course, that people can get into your homes and that's the reason they have to be kept secure.
I note your occupation. I do not believe in the circumstances here --- these are very serious offences in relation to particularly the second offence, and I cannot look at giving you a spent conviction order. I appreciate your situation, but people have been warned for a long time. The Firearms Act has been amended; it has been well publicised everywhere. Indeed, you knew, I'd have thought, with taking in a rifle previously, that you shouldn't have been in possession of these. I can't give you
(Page 5)
- a spent conviction order, much as I feel that I would like to, but I really can't in the circumstances.
On the first charge you are fined $400, $57.70 in costs. There will be forfeiture of the Sportco rifle.
In relation to the second charge, you are fined $500, $57.70 in costs, forfeiture of the .22 Bruno rifle, when located."
8 The appellant was granted leave to appeal the sentences imposed by the learned Magistrate on a number of grounds. Only one of those grounds is now pursued. It is that the learned Magistrate erred in law in failing to consider whether or not to make a spent conviction order.
9 The essence of the appellant's submission is that the learned Magistrate effectively misapprehended the basis upon which she could make a spent conviction order. It was argued that her Worship had mistakenly concluded that the offences were so serious that they struck "to the heart of the community" and this was an overstatement of the seriousness with which Parliament regarded the offences in question. It was pointed out that the maximum penalties applicable (6 months' imprisonment or a fine of $2000 in one case and $1000 in the other) were less than the offences which could be imposed for stealing by way of shoplifting. Under the provisions of s 426(2) of the Criminal Code such an offence would be punishable on summary conviction by imprisonment for 2 years or a fine of $8000. Reliance was placed upon the second reading speech of the Attorney General when introducing the Sentencing Act (Hansard 25 May 1995 page 4258) when reference was made to the availability of a spent conviction order in cases of minor shoplifting where the antecedents of the offender were good and where the conviction might have a detrimental effect on the offender's employment prospects.
10 Counsel for the appellant also relied upon the fact that the learned Magistrate had said that she would have liked to have given the appellant a spent conviction order but could not do so, in the circumstances. It was contended that the learned Magistrate had misdirected herself because pursuant to s 45 of the Sentencing Act 1995 she should have least have considered whether the appellant was likely to commit offences of this nature again and also his good character. Counsel referred to the prior good character of the appellant and the circumstances in which the offences came to light by way of his reporting and burglary. It was contended that on the facts before the learned Magistrate the appellant was extremely unlikely to commit offences again. In these circumstances
(Page 6)
- the submission was made that a spent conviction order ought to have been made in each case.
11 Counsel for the respondent contended that there had been no error of law on the part of the learned Magistrate. It was put that the penalties imposed were well within the range of a sound discretionary judgment given the maximum penalty set in relation to each offence. It was also contended that the facts established clearly that the appellant was aware that he was required to have a licence for firearms, particularly as he had at least one licensed firearm. Further, having already handed in a rifle during the amnesty period, it was put that he must have known that he should not be in possession of the unlicensed firearm. In short, counsel for the respondent submitted that the learned Magistrate carefully applied her mind to the relevant matters and given that the sentencing exercise was one of discretion, this Court should be slow to interfere with the decision made. Reliance was placed upon Lowndes v The Queen (1999) 195 CLR 665 where at [15] the Court said:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass [(1993) 72 A Crim R 561] and R v Clarke [[1996] 2 VR 520]. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellant court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [House v The King (1936) 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
- There is no doubt that this submission was properly made and full respect must be given to the learned Magistrate's discretionary judgment in the matter.
12 It must also be appreciated that the power to make a spent conviction order conferred by s 45 of the Sentencing Act is of an exceptional character. Indeed, the section provides that a court sentencing an offender is not to make a spent conviction order unless the governing criteria within the section are satisfied. That is (relevantly to this case) the Court considers the offender is unlikely to commit such an offence again and, having regard to the previous good character of the offender, it considers
(Page 7)
- the offender should be relieved immediately of the adverse effect that the conviction might have on him.
13 In R v Tognini (2000) 22 WAR 291, which was a guideline judgment of the Court of Criminal Appeal, Murray J (at [297]) summed up the basis upon which a spent conviction order might be made. His Honour said:
""In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary preconditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the convictions should be immediately set aside.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interest of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community."
14 In Neale v Sloan (1997) 27 MVR 246, Wheeler J stressed that in deciding whether or not a spent conviction order should be made,
(Page 8)
- consideration must be given to all the circumstances of the case. Her Honour said (at 247):
"Section 45 of the Sentencing Act provides that a Court sentencing an offender is not to make a spent conviction order unless certain criteria are satisfied. It does not, however, require the making of an order once those criteria are satisfied, and consideration must be given to all of the circumstances of the case and of the offender - and indeed, in my view, the wider interests of the public. Considerations extraneous to those listed in s 45 are not thereby rendered irrelevant."
16 In these circumstances it was, in my view, open to the learned Magistrate to conclude that in all the circumstances of the case and in the wider interests of the public, it was inappropriate to make a spent conviction order. The appellant did meet the preconditions of being unlikely to commit an offence again and being of previous good character, but it cannot be said that the learned Magistrate erred in her discretion in concluding that in the circumstances of the case, particularly the seriousness of having an unlicensed firearm and firearms which were not properly secured, it was inappropriate to make a spent conviction order. This discretion committed to the learned Magistrate was certainly of vital importance in the administration of criminal justice, and it would be wrong for me to substitute my own opinion for that of the sentencing Judge simply because I might have exercised my discretion in a manner different from the way in which she did.
17 In these circumstances the appeal must be dismissed.
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