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Williams v Queensland Police Service[2019] QDC 275

Williams v Queensland Police Service[2019] QDC 275

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Glenn Jon Williams v Queensland Police Service [2019] QDC 275

PARTIES:

GLENN JON WILLIAMS

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

913/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court of Queensland

DELIVERED ON:

28 November 2019, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2019

JUDGE:

Loury QC DCJ

ORDER:

  1. Appeal allowed.
  2. The sentence imposed by the learned magistrate is set aside only to the extent that convictions were recorded. 
  3. No convictions be recorded.
  4. Four weapons and a quantity of ammunition and magazines be forfeited to the State of Queensland (as per order attached).

CATCHWORDS:

WEAPONS ACT – APPEAL AGAINST SENTENCE – FORFEITURE OF FIREARMS – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to four offences against the Weapons Act 1990 – where the firearms, the subjects of the offences, were forfeited for destruction, the appellant was fined $2500 in relation to each offence, and convictions were recorded – where the appellant appeals his sentence on the basis of it being excessive.

JUSTICES ACT – APPEAL – LEGAL, FACTUAL OR DISCRETIONARY ERROR – REHEARING ON THE EVIDENCE – RE-SETENCE – where the appellant appeals pursuant to s 222 of the Justices Act 1886 – where the appellant must demonstrate the sentence was the result of some legal, factual or discretionary error.

Explosives Act 1999 s 106

Justices Act 1886 ss 222, 223

Police Powers and Responsibilities Act 2000 ss 701, 714

Weapons Act 1990 s 155

Allesch v Maunz (2000) 203 CLR 172

Dawson v Tanwan [1999] QDC 289

Fraser v Commissioner of Police [2017] QDC 116

House v The King (1935) 55 CLR 499

COUNSEL:

SG Moon for the Appellant

T Lawrence for the Respondent

SOLICITORS:

Rees R & Sydney Jones Solicitors for the Appellant

Office of the Director of Public Prosecutions for the Respondent

  1. [1]
    The appellant pleaded guilty on the 5th of June 2019 to four offences against the Weapons Act 1990.  He was fined $2500 in relation to all offences.  Convictions were recorded.  The firearms, the subject of the charges, were ordered to be forfeited to the Crown for destruction.  The appellant appeals his sentence on the basis that the recording of a conviction and the order for forfeiture of the weapons makes the sentence excessive. 
  1. [2]
    The appellant appeals pursuant to section 222 of the Justices Act 1886.  Such an appeal is by way of rehearing on the evidence before the Magistrate and any new evidence I allow to be admitted pursuant to section 223.  The power to set aside the sentence and substitute another arises only where the appellant can demonstrate the sentence is the result of some legal, factual or discretionary error.[1] In considering a discretionary decision of which a sentence is one, where I find an error of the kind referred to in House v The King (1936) 55 CLR 499, that being that the magistrate acted on a wrong principle, took into account an irrelevant matter, failed to take into account a relevant matter or mistook the facts, it is open to me to re-sentence the appellant if I have the material before me to enable me to undertake that discretionary process. 
  1. [3]
    In relation to the facts, the police executed a search warrant at the defendant’s property, Granville Station, on the 6th of December 2018.  He was not present at the time, but other persons were in his house.  Police located six firearms stored in a built-in wardrobe with sliding doors.  The wardrobe was not locked.  Two of the firearms, both rifles, were found with magazines containing live ammunition.  Of the six firearms located, the appellant held a weapons licence authorising his possession of only one of them.  That was a Winchester .234 rifle. 
  1. [4]
    Two of the firearms were Category C weapons, for which the appellant was not licensed. They were a semi-automatic rifle and a pump-action shotgun. Another firearm, a .303 bolt-action rifle, was listed by Weapons Licensing as being held by the defendant for safekeeping. A BSA top-loading rifle and a Remington .32 short rifle also located, had never been registered by the Weapons Licensing branch of the Queensland Police Service.
  1. [5]
    The appellant pleaded guilty to: unlawful possession of Category C weapons for the .22 semi-automatic rifle and pump-action shotgun; failing to keep weapons in secure storage for all six firearms; possession of unregistered firearms, the Remington .32 short rifle and BSA centre fire rifle; and acquiring weapons without lawful excuse, the .22 semi-automatic rifle and the .303 bolt-action rifle.
  1. [6]
    On 14 December 2018 the appellant was interviewed by police about the firearms. He conceded he was not licensed to hold the semi-automatic rifle and pump-action shotgun. He claimed to have located those firearms in a caravan owned by him on the property. He made no attempt to surrender those firearms and put them in his wardrobe because he had lost the key to his gun safe. He said that in storing the firearms in his wardrobe he did the best he could in the situation. He could provide no explanation for how two of the guns had loaded magazines fitted. In relation to the unregistered weapons (the BSA top-loading rifle and Remington .32 short rifle), he said that he wanted to keep them for sentimental reasons but had not made arrangements to acquire them lawfully or register them. In relation to the .303 bolt-action rifle and .22 semi-automatic rifle, he said that a visitor to his property had wanted to sell him the rifles, however he did not want to buy them. When the visitor left his property he effectively abandoned the firearms at the appellant’s property. The appellant contacted Weapons Licensing, but never completed a permit to acquire for the weapons. Inquiries revealed that the owner of the firearms had submitted a statutory declaration to Weapons Licensing, indicating that he sold the rifles to the appellant in 2011.
  1. [7]
    The defendant pleaded guilty at his first appearance in the Magistrates Court. He had no criminal history. The prosecutor submitted that the defendant would be adversely affected by the loss of his weapons licence. The appellant made a number of submissions which I will speak to in further detail shortly. Some of them were inconsistent with his statements to police in his interview.
  1. [8]
    In relation to the Magistrate’s reasons, the learned magistrate took into account the appellant’s plea of guilty, which she regarded as an early plea. She acknowledged that the defendant retaining his weapons licence was the matter which most concerned him. She considered that his submissions to her were an attempt to minimise his culpability. I have read the written submissions that the appellant provided to the magistrate and the transcript of the oral submissions he made. I agree with the view expressed by the learned magistrate that the appellant was attempting to minimise his culpability by blaming others for his own failure to secure the weapons. He had blamed the behaviour of his caretakers for the situation he found himself in. He appeared to blame his ex-wife for taking the keys to the house, which explained, he said, why the house was not locked. The learned Magistrate considered that the appellant demonstrated a cavalier attitude to the safety of persons. She did not accept his explanation as to how he found himself in possession of weapons as long ago as 2011. Other submissions he made were described as absurd and she was unwilling to accept them. No issue has been taken in this appeal with those categorisations.
  1. [9]
    The learned Magistrate considered that the appellant was not a person who should be entrusted with weaponry because of his refusal to comply with the obligations placed on him designed to ensure the safety of persons. She said that as a consequence of the convictions the appellant would not be permitted to hold a weapons licence. At the conclusion of her remarks she asked the prosecutor whether the recording of a conviction would have any particularly detrimental effect. Part of what she said is indistinct, but the prosecutor responded “That is correct.”  Without calling on the appellant to make submissions, she recorded convictions and made an order for forfeiture and destruction of the firearms seized. 
  1. [10]
    It is submitted by the appellant and conceded by the respondent that, in fact, the recording of a conviction did have a significant effect, which was not alluded to by the prosecutor. In recording a conviction, the appellant automatically became a disqualified person under the Weapons Act 1990 and his weapons licence would be cancelled for five years.  If a conviction was not recorded it became a matter of discretion for the Weapons Licensing branch as to whether the appellant satisfied them that he remained a fit and proper person to hold a licence.[2] Had the decision of Dawson v Tanwan been brought to the attention of the learned Magistrate, or had the relevant provisions of the Weapons Act 1990 been brought to the attention of the Magistrate, that may have prompted submissions being requested from the appellant. 
  1. [11]
    The appellant has filed new evidence before me for which I give him leave. It asserts that he has been employed at the Oakey North Mine in Tieri as the mine deputy-in-charge or under-manager. The under-manager reports to the mine manager. The appellant states that the recording of convictions could impact upon his employment in the mining industry and could impact upon his ongoing entitlement to hold the statutory tickets as shotfirer and mine deputy. In considering all of the evidence before me I am satisfied that the learned Magistrate failed to take into account a material consideration, that being the impact that the recording of a conviction would have upon the appellant’s weapons licence and upon his continued employment. In those circumstances as I am in a position where I can re-sentence the appellant, I will do so.
  1. [12]
    In re-sentencing I take into account the submissions now directed to the recording of a conviction, in particular, the new evidence that is placed before me. Given the absence of any criminal history, I do not record convictions.
  1. [13]
    In relation to the forfeiture of the weapons, the appellant argues that the forfeiture and the order for the forfeiture and destruction of the weapons also made the sentence manifestly excessive. He argues that an error infected the order in that the Magistrate did not state under which provision she was ordering the forfeiture of the weapons. That is, whether under section 155 of the Weapons Act 1990 or under section 701 of the Police Powers and Responsibilities Act 2000.  In Fraser v Commissioner of Police,[3] his Honour Judge Chowdhury considered the interplay between these two provisions.  Section 155 of the Weapons Act 1990 imposes a discretion in the court to order forfeiture of a weapon not limited to offences committed under the Weapons Act 1990, but to any offence committed against the law of the State.  Section 701 of the Police Powers and Responsibilities Act 2000 relates to the seizure of things by police and includes weapons.  Section 714 gives a power to police to deliver up a weapon to an owner lawfully entitled to possess it, if it has not been forfeited to the State. As his Honour Judge Chowdhury said,[4] “s 714 PPRA was enacted so that people would not be unnecessarily deprived of firearms, including antique firearms, which may not only be lawfully possessed but also may be of considerable value, both economic and sentimental.” 
  1. [14]
    The appellant argues that the two weapons which he says are heirlooms should not be the subject of forfeiture because that would then allow the police to exercise a discretion to deliver the two heirlooms to a person they considered was lawfully entitled to possess them, subject to their being a fit and proper person. I allow the new evidence filed, which is contained in an affidavit of Brett Charles Williams. He is the brother of the appellant and he states in his affidavit that he is familiar with the BSA top-loading rifle and the Remington .32 short rifle. Both weapons, he states, were owned by his great grandfather and had been passed down from generation to generation through his mother’s side of the family. He himself is the holder of a weapons licence and he is desirous of acquiring, from the police, the two rifles which have been described as family heirlooms. He intends to make application to the Queensland Police Service to acquire each of those weapons and for them to be registered to his weapons licence. He has annexed a copy of his weapons licence to his affidavit. I assume from the fact that it is a current weapons licence that he is considered a fit and proper person to hold weapons.
  1. [15]
    The submission before me is that the four weapons, which are not the heirlooms, ought to be forfeited, pursuant to section 155 of the Weapons Act 1990.  That is agreed as between the appellant and the respondent.  It is further agreed that the ammunition should be forfeited pursuant to the Explosives Act 1999.  And it is further agreed that the BSA top-loading rifle and the Remington .32 short rifle and associated components and ammunition should not be the subject of any forfeiture order by this court.  That would allow, pursuant to section 714 of the Weapons Act 1990, for the police to deliver those weapons to Mr Brett Charles Williams, if satisfied that he is lawfully entitled to possess them and that he’s a fit and proper person to hold them. 
  1. [16]
    The legislation also provides that if the weapons have not been delivered up in accordance with that provision, to such a person, within three months after the appointed day, then the weapons are considered forfeited to the State. The appointed day for disposal is defined, as in the circumstances of this case, to be the latter of the day that all proceedings relating to the offence or suspected offence are finally decided, or the day six months after the day the weapon was seized. Today would be the day that all proceedings relating to the offences are finally decided. So the three-month time period would run from today.
  1. [17]
    I have been provided a draft order in terms that forfeits the following four weapons to the State of Queensland:
  1. Bentley 12-gauge pump-action shotgun;
  1. Stirling 20, .22 semi-automatic rifle;
  1. .303 bolt-action rifle; and
  1. Winchester 670, .243 bolt-action rifle. 

It also provides for a quantity of ammunition and magazines to be forfeited to the State of Queensland pursuant to section 106 of the Explosives Act 1999.  I further order that no order for forfeiture be made with respect to the BSA top-loading rifle, the Remington .32 short rifle and associated components and ammunition for those two listed firearms.  I make that order in accordance with the draft. 

  1. [18]
    It is otherwise not argued that the fine that was imposed of two and a-half thousand dollars is other than appropriate in the circumstances.
  1. [19]
    Accordingly, my orders are:
  1. The sentence imposed by the learned magistrate is set aside only to the extent that convictions were recorded. 
  1. No convictions be recorded.
  1. The forfeiture orders made by the magistrate be set aside and I make the orders as I have indicated, as per the attached copy. 

Footnotes

[1]  See Allesch v Maunz (2000) 203 CLR 172 at paragraphs 22 to 23.

[2]  See Dawson v Tanwan [1999] QDC 289 per Judge McGill at pages 11 to 13. 

[3]  [2017] QDC 116.

[4]  At paragraph 40.

Close

Editorial Notes

  • Published Case Name:

    Glenn Jon Williams v Queensland Police Service

  • Shortened Case Name:

    Williams v Queensland Police Service

  • MNC:

    [2019] QDC 275

  • Court:

    QDC

  • Judge(s):

    Loury QC DCJ

  • Date:

    28 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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