Vreeker v Police

VREEKER V POLICE
[2004] SASC 90
Magistrates Appeal

GRAY J: This is an appeal against sentence.
On 10 June 2003 the appellant was charged with four counts of breaching the Firearms Act 1977 (SA). He was found by police to have in his possession a Mossberg pump action shotgun for which he did not have a licence. This constituted an offence under section 11(1) of the Act. The appellant was also found to have in his possession two shotguns for which he held a licence. However these shotguns and accompanying ammunition were not properly secured or stored. This resulted in the appellant being charged with two counts of failing to comply with a condition of his firearms licence pursuant to section 21 of the Act.[1]
[1] The appellant was also found to have acquired two of the firearms without holding a permit granted by the Registrar under Division 1 of the Act. This constituted an offence under section 14(1) of the Act, however this charge was later withdrawn.
On 19 November 2003 the appellant pleaded guilty to the charges before a magistrate. The appellant was unrepresented at the hearing. No convictions were recorded and a good behaviour bond for 12 months was imposed. The terms of the bond included a condition that the appellant be disqualified from holding or obtaining a firearms licence for three years to commence from November 2003. Orders were made for the forfeiture of the firearms.
Crown Allegations
It was the Crown case that the appellant’s conduct constituted serious breaches of the Firearms Act. One of the firearms, the Mossberg shotgun, was a C class pump action 12 gauge shotgun. The appellant said it was owned by a friend. It was discovered in a gun safe in the appellant’s bedroom. The appellant told police that he had possession of the Mossberg for about three years. He did not hold a C class licence.
Two other firearms were also discovered in the appellant’s main bedroom. They were a Mauser shotgun and a Bresia Arms shotgun. These firearms were not stored in the safe. An ammunition belt containing live ammunition was discovered lying over a chair in the same area of the bedroom. A small amount of .22 ammunition was found on a dressing table in the bedroom. The firearms were seized by police.
When interviewed by police, the appellant stated that he believed he had done nothing wrong and that he had possession of his friend’s firearm as the friend did not have a gun cabinet.
The appellant has a conviction for a prior firearms offence. On 13 May 1997 he was convicted of one count of possessing firearms without a licence. He was convicted and fined $200.
The Crown alleged that the appellant’s conduct displayed a high level of irresponsibility towards safe firearm handling. Counsel for the Crown submitted that this was a serious case which in the ordinary course should have led to a conviction, licence disqualification and an order for forfeiture.
Legislative Scheme
The Firearms Act provides a comprehensive scheme which deals with gun control. It addresses the personal and professional use of guns. It sets out the criteria for determining a grant of licence. Parliamentary debates indicate that the Act was:
[D]esigned to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.[2]
In 1996 amendments were made to the Act introducing stricter gun laws throughout Australia. In Offe v Police[3] the court made the following observations on the nature of firearms legislation:
The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Act was designed to strictly control the possession and use of firearms in response to their increasing usage by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included providing community protection through the licensing and regulation of firearms. The legislation aimed to ensure that only responsible persons with the appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.
[2] SA Parliamentary Debates, House of Assembly, 14 April 1977, 3448
[3] (2002) 84 SASR 1 at 9
As discussed in Johnson v Registrar of Firearms,[4] a primary aim of the legislation is to ensure public safety. In keeping with this aim, the Registrar has the power to impose specific obligations as a pre-condition to the grant of a licence, or as a continuing restriction on the licence. A number of conditions are outlined in the Firearms Regulations 1993 and include the requirement that the firearms are kept securely and that ammunition is also kept secure, but separate from the firearms.[5]
[4] (2001) 79 SASR 353
[5] Firearm Regulations 1993 (SA) Part 6
The observations in Johnson were reaffirmed by Mullighan J in Registrar of Firearms v Gitsham:[6]
In Johnson v Registrar of Firearms (2001) 79 SASR 353, Gray J had occasion to consider what he described as the scheme of the Act which, he said, was a comprehensive scheme which deals with gun control and the aim of the Act is to ensure public safety: at 357. I agree with those observations. The provisions of the Act and the Regulations provide close regulation of the acquisition, possession, use, registration and transfer of firearms in the interests of public safety.
[6] (2002) 84 SASR 72 at 76
The conduct that the legislation is designed to prevent is precisely the conduct for which the appellant has come before the court. The appellant’s approach to firearm ownership shows little regard to public safety, the importance of the legislation, the responsibilities accompanying firearm ownership and the need to comply with the legislative provisions. The appellant possessed a firearm without an appropriate licence and failed to safely store two weapons and ammunition.
As observed in Offe:[7]
General deterrence is of great importance in cases of this kind. 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 the legislative requirements. Not only are weapons targets for thieves, they present a real danger to unsuspecting children and persons who may happen across them accidentally.
These remarks are of direct relevance to the appellant’s offending.
Issues on Appeal
[7] (2002) 84 SASR 1 at 9
Decision of the Magistrate
As earlier observed, when sentencing the appellant the magistrate proceeded without recording convictions. A 12 month bond with a three year licence disqualification was imposed. The magistrate provided no reasons for his decision. Section 9 of the Criminal Law (Sentencing) Act1988 (SA) provides:
(1)     A court must, upon sentencing a defendant who is present in court--
(a)     state its reasons for imposing the sentence; and
(b)cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(2)   The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
In the Sentencing Act second reading speech it was explained that the purpose of what is now section 9 was to oblige courts to give reasons for imposing a particular sentence and to explain the effect of the sentence to the defendant.[8] The legislature was also keen to ensure that the validity of the sentence would not be affected by a failure of the court to give reasons. [9] An appeal against sentence on the grounds of a failure to give reasons alone was considered undesirable, however the legislature was equally concerned to ensure reasons for sentence were provided where possible.
[8] SA Parliamentary Debates, Legislative Council, 2 December 1987, 2367. See also SA Parliamentary Debates, Legislative Council, 10 February 1988, 2625
[9] SA Parliamentary Debates, Legislative Council, 2 December 1987, 2367. See also SA Parliamentary Debates, Legislative Council, 10 February 1988, 2625
Although there is no obligation to provide sentencing remarks, the lack of reasons has caused difficulty in this court exercising its appellate jurisdiction. As Lander J observed in Szewczuk v Police:[10]
The absence of reasons, of course, creates the further problem that this Court does not know why it was that the Magistrate imposed the sentence … . The Court does not know what matters the Magistrate took into account in the exercise of his sentencing discretion. The Court does not know, in the absence of reasons, what matters the Magistrate thought to be irrelevant, if any. The Court does not know the principles upon which the Magistrate acted.
[10] Szewczuk v Police [2001] SASC 223 at [48]
In Cross v Police[11] Olsson J commented on the importance of magistrates providing reasons for their decisions, particularly where serious penalties are imposed. It was observed:
… if a substantial custodial sentence is in contemplation, even if it is to be suspended, then it is imperative that a sentencing magistrate express, at least in note form, sufficiently adequate reasons to disclose how the sentence is arrived at and what factors have been taken into account so that, if an appeal is prosecuted, this court can properly review what has occurred.
…
Bearing in mind the heavy - if not somewhat unrealistic workloads apparently experienced by magistrates on general list days - it is not to be expected that fully developed and comprehensive sentencing remarks will be given in what might fairly be described as routine cases attracting fairly routine penalties.
However, even in such cases, defendants are entitled to have their matters adequately considered. It would be most unfortunate if, due simply to work overload, an impression was gained that matters were being disposed of at high speed and without in-depth consideration, simply to enable a long list to be disposed of.
[11] Cross v Police [ 2002] SASC 249 at [24] – [29]
It is generally accepted that magistrates have heavy workloads, however as Olsson J observed, it is important that succinct sentencing remarks be made. The remarks provide an explanation to a defendant about the basis for sentencing as well as assisting the appellate court in the process of review.
Unrepresented Litigants
The appellant was an unrepresented litigant. He was not warned about the range of penalties that could be imposed. As a result, relevant submissions were not made. In such circumstances, the magistrate was under an obligation to deal with the appellant in a way that would prevent any unfairness arising because of his lack of representation. As observed by Wells J in Cooling v Steel:[12]
When [an unrepresented] defendant answers to his name and the charge is read, before a plea is entered, the court should make sure that the defendant understands the nature of the charge. It is, of course, unnecessary, indeed undesirable, that the bench should deliver a lecture on the law; the charge should be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise. … Next, the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation … If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has the power to impose disqualification from holding or obtaining a driver’s licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment …
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
[12] Cooling v Steel (1971) 2 SASR 249 at 250-1
These remarks are apposite. Given the serious nature of the Crown allegations, the appellant should have been warned of possible penalties to be imposed. As a result, unfairness arose. The Crown accepted this ground of appeal had been made out. The penalty should be set aside and reconsidered.
Sentence Imposed Beyond Power
As earlier observed, the magistrate did not record a conviction for the offences charged, but imposed a good behaviour bond of 12 months. The terms of the bond included a condition that the appellant be disqualified from holding or obtaining a firearms licence for three years. It was agreed that the sentencing magistrate exceed his powers under the Sentencing Act by imposing such a penalty.[13]
[13] Criminal Law (Sentencing) Act 1988 (SA) s39
Pursuant to section 39(1) of the Sentencing Act a magistrate has the power to proceed without recording a conviction and to impose a bond. A term preventing the appellant from holding or obtaining a firearms licence could have been imposed as a condition of the good behaviour bond for the term of the bond. In the present case the magistrate purported to disqualify the appellant from holding or obtaining a firearms licence for three years. As the length of the bond imposed was only 12 months, the magistrate was not able to impose the condition concerning the firearm licence for a period in excess of the term of the bond.
Forfeiture Order
Forfeiture orders were made by the magistrate in respect of the firearms pursuant to the Firearms Act. Section 34A provides:
(1) Where a court convicts a person of an offence against this or any other Act and the court finds that a firearm, receiver, mechanism, fitting or ammunition was involved in the commission of the offence the court must make one or more of the following orders:
(a) where the firearm, receiver, mechanism, fitting or ammunition was owned by the convicted person--that the firearm, receiver, mechanism, fitting or ammunition be forfeited to the Crown or be disposed of in such other manner as the court directs;
…
(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:
(a)that the firearm, receiver, mechanism, fitting or ammunition be disposed of in such manner as the court directs;
…
It was submitted by counsel for the appellant that as the appellant was not convicted of the offences charged, it was beyond the power of the magistrate to make forfeiture orders.
Counsel for the Crown contended that the meaning of ‘convicted persons’ can vary depending on the context of the offending and may include persons for whom no conviction has been recorded. In Maxwell v R[14] Dawson and McHugh JJ discussed the meaning of the term ‘conviction’. Their Honours commented:
The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.
In Attorney-General v Smith Crawford J observed:[15]
The meaning of "conviction" is ambiguous and in each case depends on the context in which it is used. "It is sometimes used in the narrow sense as indicating merely that an accused has been made the subject of a finding of guilt. Sometimes it is used in the wider sense of the finding of guilt combined with the sentence of the court." R v Hannan; Ex parte Abbott (1986) 41 NTR 37 at 40. See also Re Stubbs (1947) 47 SR (NSW) 329 at 339; Griffiths v R (1976 - 1977) 137 CLR 293 at 334 - 336; Maxwell v R (1996) 135 ALR 1 at 4 - 7, 14 - 16; Cobiac v Liddy (1969) 119 CLR 257 at 266, 267; Dreezer v Duvnjak (1996) 6 Tas R 294 at 304. It was pointed out by the Full Court in R v Tonks and Goss [1963] VR 121 at 127 that without a determination of guilt, there cannot be a conviction, but a determination of guilt will not in all cases amount to a conviction.
[14] Maxwell v R (1996) 135 ALR 1 at 4-5
[15] Attorney-General v Smith [2002] TASSC 10 at [23]
Counsel for the Crown contended that in the context of the Firearms Act, the term ‘conviction’ should properly extend to those persons found guilty of an offence, even where no conviction has been recorded. It was said that it would be illogical and inconsistent with the purpose of the legislative scheme to restrict forfeiture orders to those cases where a conviction is recorded. In the circumstances of this case, and in the context of the legislative scheme, this is a correct approach to the construction of the term ‘convicted person’. There is a public interest in the court having the relevant powers to control firearm use by those found to be in breach of the legislation.
Alternatively, it was argued that the magistrate had the power to impose the forfeiture orders pursuant to section 34A(2) on the grounds that the appellant was not a fit and proper person to have possession of firearms. Section 5(11) of the Firearms Act provides:
For the purposes of this Act a person may be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence if the person--
(a)has not complied with the requirements of this Act in relation to the safe handling, carriage or use of firearms;
In the present case, the magistrate was entitled to make forfeiture orders pursuant to either section 34A(1) or (2) of the Firearms Act. It was within power for the magistrate to conclude that the appellant was either a ‘convicted person’ for the purposes of section 34A(1) or not a ‘fit and proper person’ for the purposes of section 34A(2). The forfeiture orders made were appropriate having regard to the allegations made by the Crown.
Conclusion
As the appellant was unrepresented, the magistrate erred in not advising him of the seriousness of his conduct and the range of penalties that may be imposed. For this reason, the issue of sentence must be reconsidered.
On the information before him, the magistrate correctly treated the appellant’s conduct as serious offending. In the circumstances alleged and on the information before the magistrate the conviction, licence disqualification and forfeiture orders sought by the Crown were entirely appropriate. However, the appellant was not properly put on notice of the seriousness of the charges and has not been heard as to all relevant matters.
In recognising the seriousness of the Crown’s allegation, the magistrate sought to impose a condition of the bond that was beyond its term. This was beyond power and inappropriate. The parties agreed that this approach was not permissible.
Absent an explanation by the defendant, the Crown allegations give rise to serious concern. They are matters on which the defendant has not had the opportunity to be heard. In the circumstances it is appropriate to remit the matter to the Magistrates court for further hearing. In the meantime, the Crown has provided an undertaking to detain the weapons in anticipation of a forfeiture order.
The appeal is allowed. The sentence imposed is set aside and the matter remitted for hearing by a magistrate.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1The appellant was also found to have acquired two of the firearms without holding a permit granted by the Registrar under Division 1 of the Act. This constituted an offence under section 14(1) of the Act, however this charge was later withdrawn.
2     SA Parliamentary Debates, House of Assembly, 14 April 1977, 3448
3 (2002) 84 SASR 1 at 9
4 (2001) 79 SASR 353
5     Firearm Regulations 1993 (SA) Part 6
6 (2002) 84 SASR 72 at 76
7 (2002) 84 SASR 1 at 9
8SA Parliamentary Debates, Legislative Council, 2 December 1987, 2367. See also SA Parliamentary Debates, Legislative Council, 10 February 1988, 2625
9SA Parliamentary Debates, Legislative Council, 2 December 1987, 2367. See also SA Parliamentary Debates, Legislative Council, 10 February 1988, 2625
10     Szewczuk v Police [2001] SASC 223 at [48]
11     Cross v Police [ 2002] SASC 249 at [24] – [29]
12     Cooling v Steel (1971) 2 SASR 249 at 250-1
13     Criminal Law (Sentencing) Act 1988 (SA) s39
14     Maxwell v R (1996) 135 ALR 1 at 4-5
15     Attorney-General v Smith [2002] TASSC 10 at [23]

[2004] SASC 90

26 March 2004