WATERS v Police - [2010] SASC 278

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
WATERS v POLICE
[2010] SASC 278
Judgment of The Honourable Justice White (ex tempore)
8 September 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Appellant pleaded guilty to failure to secure a loaded firearm contrary to reg 38(1) of the Firearms Regulations 2008 - Magistrate imposed substantial fine, ordered forfeiture of firearm and cancelled appellant's firearms licence - whether there was error in the orders of the Magistrate - whether the penalty ordered was manifestly excessive given failure to secure was temporary and a result of oversight.
Held: Magistrate erred in approach to sentencing - appeal allowed - orders of Magistrate set aside in entirety - conviction recorded and fine imposed.
Firearms Act 1977 (SA); Firearms Regulations 2008 (SA) reg 38, reg 61, referred to.

WATERS v POLICE
[2010] SASC 278
Magistates Appeal (ex tempore)

WHITE J: The appellant pleaded guilty to the offence of failing to keep a .22 calibre rifle, a Class B firearm, secured as required by reg 38(1) of the Firearms Regulations 2008 (the Regulations) made under the Firearms Act 1977 (SA). The contravention was an offence against reg 61 of the Regulations for which the maximum penalty was a fine of $2,500. The offence was committed on 9 February 2010.
The Magistrate at Mount Gambier imposed a fine of $1,000, ordered the forfeiture of the rifle and directed the cancellation of the appellant’s firearms licence. The appellant appeals against that sentence, contending that it is manifestly excessive.
Regulation 38(1) is in the following terms:
(1)A person (not being a dealer) who has possession of a class A or B firearm must keep the firearm secured by—
(a)     securely attaching and locking it to part of the building in which it is kept; or
(b)     keeping it in a locked cabinet made of hardwood or steel that is securely attached to the building in which it is kept; or
(c)     keeping it in a locked safe made of steel that is securely attached to the building in which it is kept; or
(d)     keeping it in a locked steel and concrete strong room; or
(e)     such other method as is approved by the Registrar.
…
(3)     A cabinet or safe referred to in subregulation (1) or (2) must—
(a)     be fitted with fittings and locks that prevent it from being easily forced open; and
(b)     be made of material of sufficient thickness to prevent it being easily broken, opened or destroyed.
(4)Despite subregulations (1)(c) and (2)(a), a safe need not be attached to the building if its mass when empty is 150 kilograms or more.
The evident purpose of regulation 38(1) is to ensure that firearms are kept safely secured in a locked enclosure.
At the time of the offence the appellant was 50 years old. He farms at Binnum near Naracoorte. The appellant has held a firearms licence for over 30 years and in February 2010 owned two .22 calibre rifles. Normally both rifles were kept secured in a firearms safe as required by reg 38(1) in a shed on the appellant’s home property some distance away from his house.
In early February 2010 a fox was troubling the chickens in the appellant’s fowl shed. At about 10.30 pm on Monday 8 February 2010, the appellant was alerted to the probable presence of a fox. He took one of the rifles from its secure storage, loaded it and went looking for the fox, but without success. There were four rounds in the chamber of the rifle.
At about 11.00 pm, instead of returning the rifle to the firearms safe, the appellant left it still loaded in the laundry of his home, between the washing machine and a cupboard. He did so because he thought that he may need to use it again later that same night.
On the following morning the appellant overlooked returning the rifle to its proper place of storage. He went into Naracoorte to pick up a tractor and returned to his property at about 10.00 am. The police attended at his home that same day at about 10.30 am. This was part of a routine audit of compliance by registered firearm owners with their firearms obligations. On being told by the police of the purpose of their visit, the appellant immediately showed them the rifle in the laundry. He was then reported for the contravention of reg 38(1). The police noted during the course of their audit that the appellant’s second rifle was securely stored in conformity with reg 38(1).
As I have said, the appellant was aged 50 years. He had no previous convictions at all. There were references provided to the Magistrate which indicated that he is a responsible citizen of undoubted good character. The Magistrate accepted that this was so.
The Firearms Act and the Regulations comprise a comprehensive code regulating the possession, use, acquisition, disposal and storage of firearms. Their evident purpose is the promotion of public safety by controlling the possession and use of firearms with a view, amongst other things, to preventing a proliferation of gun ownership. Firearms are dangerous weapons. They are sought after by persons involved in serious criminal activities and, when available to those involved in physical altercations, frequently result in fatalities or serious wounds.
The Firearms Act seeks to afford protection to the community by requiring first, that those persons who wish to possess firearms should be licensed and, by ensuring that licenses are issued, amongst other things, only to persons who demonstrate that they are fit and proper to be so licensed, and who intend using a firearm for a proper purpose.
Secondly, the Firearms Act imposes limitations on the circumstances in which a person may supply or acquire a firearm, or part with possession of a firearm, or acquire or dispose of the ammunition used in a firearm, and it requires all firearms to be registered.
Thirdly, the Regulations require those who possess firearms to keep them stored securely in a place which is separate from the ammunition which is used in them. This assists in preventing unauthorised use of firearms, assists in preventing them coming into the possession of criminal hands, and minimises the risks of death or injury as a result of accidents or carelessness. The present appellant’s offending had to be assessed, amongst other things, by reference to these overall aims and purposes of the Firearms Act and the Regulations made under it.
The Magistrate characterised the appellant’s offending as serious. He said:
Your offending was not inadvertent nor an oversight. It was deliberate offending and you used the firearm the evening before. You used it in the sense of you prepared it for use to deal with a fox apparently that was worrying a chicken shed. I might add there are other ways of dealing with foxes in chicken sheds rather than shooting them, maybe making the chicken sheds secure but nonetheless I understand that it is a legitimate use of a firearm to go out and shoot a fox that might be troubling chickens or other domestic fowl. There is nothing uncommon about that I suppose in a rural environment, but what happened next is that you made a decision, having loaded the firearm, put a round into the chamber, that you left it completely insecure in a laundry so that it could be readily used by you if you wished. This was deliberate.
Later the Magistrate said:
I am not confident that given your attitude and use of the firearm on this occasion that you do now have a proper awareness of the obligations, very serious obligations that were imposed upon you. It was no inconvenience to you to put that firearm away secure, none whatsoever. You deliberately did not. You chose to leave quite deliberately a loaded firearm in a domestic setting, in a laundry, so that you can use if the occasion arose. I do consider this a serious offence. It does seem to me, and the prosecution have alluded to this as necessary, entirely necessary that you should now go about having your memory refreshed in terms of participating in a firearms safety program. Your use of a firearm it seems is limited to dispatching pests in your farm environment. There are other ways of dealing with those pests and no doubt there are others that could assist you in dispatching pests if they became a problem.
It can be seen that, in these passages, the Magistrate emphasised the deliberateness, as he perceived it, of the appellant’s conduct, its seriousness and the absence of any necessity for the appellant to be dealing with foxes by shooting them.
In my opinion, it is possible to discern some errors in the Magistrate’s approach to sentencing which may have led him to impose the penalty which he did.
First, the Magistrate’s repeated reference to the deliberate nature of the offence is, in my respectful opinion, an overstatement of the position. True it was that the rifle was left unsecured in an inappropriate place on the evening of 8 February, and true it was that the appellant made a deliberate decision to do so at the time. However, that was in a context of the appellant considering that he may, at short notice, need to use it again on the same night. His intention, when leaving the rifle in the laundry, was to leave it unsecured for a relatively short time only and for the purpose of facilitating his use of it. This was not a case of a person deliberately leaving a loaded rifle in an insecure place for a prolonged period or as a means of storage and without any immediate intention to use it. The appellant’s leaving of the rifle in the laundry on the following morning was not deliberate but the result of oversight.
Secondly, in my opinion, the Magistrate’s characterisation of the offence as a serious offence also tends to overstate the position. There were, of course, serious aspects to the appellant’s offence: a loaded rifle was left unsecured and unguarded in a domestic laundry. On the other hand, the offence involved only one firearm, the appellant did have a firearm safe and the police found his second rifle properly stored inside it. That suggests that the appellant was not oblivious to his obligations. The present case was not like many which have come before the courts in which several firearms have been left unsecured or in which the firearm owner does not have any place of secure storage at all which satisfies the requirements of the legislation.
Further, the period during which the firearm was left unsecured was relatively short and there was nothing about the circumstances of this case to suggest that the appellant’s conduct in relation to his possession of firearms was marked by irresponsibility or recklessness. It could also be said that the circumstances in which the rifle was left unsecured in this case made it unlikely that it would be taken by, or be accessible to, those involved in criminal activities.
My impression is, that although there were serious aspects to the appellant’s offending, on the scale of seriousness for this kind of offence, it was more towards the lower end of the range than the upper.
The third error which I discern in the Magistrate’s reasons is that he appears to have ordered the cancellation of the appellant’s firearms licence with a view to requiring the appellant to participate in a Firearm Safety Program. Although it was necessary for the appellant to be reminded of his obligations, it is not clear that participation in such a program was necessary, especially having regard to the references provided to the Magistrate which indicated the appellant’s responsible attitude to the possession of firearms. Even if it was desirable for the appellant to participate in such a program, it did not require the severe sentence imposed upon the appellant. As the appellant’s counsel has pointed out, other means could have been adopted to achieve the same end.
On an appeal against sentence this Court will only intervene if it is satisfied that the Magistrate has made some error of principle or allowed extraneous or irrelevant matters to guide or effect the decision, or mistook the facts, or failed to take some material consideration into account. If an appellant is not able to demonstrate an error of these kinds, the Court will only interfere if it can be said that the sentence imposed by the Magistrate was manifestly excessive.
In my opinion, the matters to which I referred earlier do constitute errors of the kind warranting this Court’s intervention. Quite apart from those identified errors, I consider that the sentence imposed by the Magistrate was manifestly excessive. The imposition of a fine of $1,000, being 40 per cent of the maximum, on a 50-year-old man with no prior record at all who has held a firearms licence without incident for approximately 34 years, for the kind of offending which occurred in this case is, in my opinion, excessive.
This was not a case which required cancellation of the offender’s licence. The circumstances of the offending did not suggest that the appellant was not a fit and proper person to hold a licence. As I have already said, the evidence before the Magistrate did not suggest that the appellant was oblivious to his obligations. His offending seems more attributable to a carelessness of a short‑lived kind. In that respect and having regard to his previous record and good character, his very involvement in the prosecution is likely to have brought home to him the need for rigorous compliance with his obligations under the Firearms Act and the Regulations. In addition, there was material before the Magistrate indicating that the use of a firearm was a necessary part of the appellant’s farming activities, particularly in the control of vermin on his properties.
I accept that sometimes the element of general deterrence may require the cancellation of a firearms licence but the circumstances of this case did not require such a step.
My firm overall impression is that the sentence imposed by the Magistrate in this case is manifestly excessive. It exceeded what was necessary to achieve the purposes of the Firearms Act to which I referred earlier.
For these reasons the appeal should be allowed. The sentence imposed by the Magistrate should be set aside in its entirety. This includes setting aside the orders for cancellation of the firearms licence and for forfeiture of the rifle. In coming to that decision I have taken into account that the Magistrate’s order and the orders I will now make mean that there has, in effect, been a suspension of the appellant’s firearms licence for a period of two months. In addition, because both of the appellant’s two rifles were seized by the police on 9 February, he has not been able to use them now for some seven months and that too has interfered in a material way in his farming activities.
In place of the sentence imposed by the Magistrate, I record a conviction, impose a fine of $500 and direct that the appellant should pay the Court fees of $177, the Criminal Injuries Compensation levy of $80 and the prosecution costs of $25, which were fixed by the Magistrate. The firearm which was the subject of the Magistrate’s forfeiture order should be returned to him.