Firearms Act 1973-1980, s 8, s 11, s 17(3), s 18(2), s 19, s 20, s 23(9)(d), s 23(9a), s 27

Justices Act 1902

Road Traffic Act 1974, s 63

Sentencing (Consequential Provisions) Act 1995, s 46

Sentencing Act 1995, s 104, s 106

Bayens v Taylor, unreported; SCt of WA; Library No 920631; 27 November 1992

1 HASLUCK J: The appellant obtained leave to appeal the decision of a Magistrate given in the Perth Court of Petty Sessions on 16 August 1989 that the appellant be disqualified from holding or obtaining a firearm licence "permanently". Leave to appeal was granted recently on the ground that the learned Magistrate erred in law in that he did not determine a period of disqualification as required by s 27 of the Firearms Act 1973-1980.

2 The appeal is brought pursuant to provisions of the Justices Act 1902 which allow a Judge of the Supreme Court powers to dismiss the appeal, set aside, quash or vary the decision of the Magistrate and to substitute a decision that he ought to have made. There is also power to remit the case for rehearing by the Magistrate with or without any direction to him.

3 The decision appealed against arose out of an incident at the appellant's residence on 20 June 1988. The relevant statement of material facts reads as follows:

"At about 11.30 am on Monday, 20th June, 1988, the accused was at his home address, when he fired a firearm at his father, in an attempt to murder his father. As a result of this matter, Police surrounded the home of the accused, whereupon the accused, upon becoming aware of same, firstly discharged a bullet from the pistol into the woodwork of his bedroom wall, and next discharged 2 bullets in the direction of a Police Officer whom he observed in the rear yard of the dwelling, without striking the officer.

The accused refused to answer the telephone or emerge from the house, and was subsequently removed from the house by Tactical Response Group members. When the arresting officer endeavoured to place the accused in custody, the accused struggled violently, flailing his arms and attempting to escape the hold of the arresting officer and his colleagues.

A subsequent search of the accused's residence revealed a home-made .22 calibre single shot pistol, capable of firing a .22 calibre bullet. The accused was interviewed regarding the firearm, and admitted having manufactured the weapon in his own home for himself. He stated that he had obtained several .22 calibre bullets for use in the fire-arm and that he had test-fired the weapon prior to this series of incidents. The accused does not hold a fire-arm licence of any kind.

The accused readily admitted the within offences and gave a written record of interview to Police."

4 On 20 June 1988 the appellant was charged with the following offences:

(a) manufacturing a firearm contrary to s 19(4)(c) of the Firearms Act 1973 (WA)

(b) possessing an unlicensed firearm contrary to s 19(1) of the Firearms Act;

(c) discharging a firearm contrary to s 23(9)(d) of the Firearms Act;

(d) resisting arrest contrary to s20 of the Police Act 1892 (WA);

(e) two charges of discharging a firearm to prevent arrest contrary to s 294 of the Criminal Code (WA); and

(f) discharging a loaded firearm with intent unlawfully to kill contrary to s 283 of the Criminal Code.

5 The charge under subs (c) above was subsequently amended to discharging a firearm to the danger of the public contrary to s 23(9a) of the Firearms Act.

6 The appellant was convicted in the Perth Court of Petty Sessions on 16 August 1989, upon his own plea of guilty, of without lawful excuse knowingly discharging a firearm to the danger of the public contrary to s 23(9a) of the Firearms Act.

7 The penalty imposed for that charge was imprisonment for 3 months. The learned Magistrate made a note to the effect that the appellant was disqualified "from holding or obtaining a firearm licence permanently". The validity of the disqualification order is the subject of this appeal.

8 At the hearing before me, the appellant relied on his own affidavit sworn 17 June 2002, the affidavit of his mother, Christa Anna Binns, sworn 23 October 2002 and the affidavit of his father sworn 23 October 2002. These affidavits provide further details concerning the 1998 incident. The appellant relied also upon three recently obtained references that spoke well of the appellant as a hard working and responsible person.

9 The respondent relied upon the affidavit of a legal officer employed by the Crown Solicitors Office, Niels Christopher Monahan, sworn 21 October 2002. This affidavit sets out the nature and history of the charges mentioned earlier. In that respect it is material to note that the appellant was tried on indictment in respect of the charges under the Criminal Code.

10 It is apparent from the Monahan affidavit that the charge under s 23(9a) of the Firearms Act (being the charge the subject of this appeal) was dealt with after the trial. This may explain why the order for disqualification was an order made by the learned Magistrate. Certainly, the Magistrate was aware that the appellant had been convicted of serious offences in the Supreme Court. The material parts of the Monahan affidavit read as follows:

"16. The Appellant pleaded not guilty to the counts in the Indictment and was tried before the Hon Justice Nicholson and a jury in the Supreme Court on 25, 26 and 29 May 1989. The Appellant was convicted on both counts.

17. The Appellant was then remanded in custody for sentencing which took place before Justice Nicholson on 4 August 1989. Annexed to this Affidavit is the following document from the files of the DPP's Office: a true copy of a transcript of the sentencing remarks of Justice Nicholson marked "L".

18. The Back Sheet which is Annexure "B" to this Affidavit includes an endorsement which appears to indicate that on 2 August 1989 the non-Code charges were before the Perth Court of Petty Sessions, and that at that time they were adjourned to 16 August 1989, the Police Prosecutor noting that the Appellant was to be sentenced in the Supreme Court in the interim.

19. The Face Sheet which is Annexure "A" to this Affidavit includes an endorsement which appears to indicate that on 16 August 1989 the Appellant was sentenced to imprisonment for 3 months on each of the Act charges, imprisonment for 1 month on the Police Act charge, and that the Appellant was permanently disqualified from holding or obtaining a firearms licence."

11 The sentencing remarks of Nicholson J delivered in the presence of the appellant on 4 August 1989 commenced in this way:

"John Christopher Mason Binns, you stand convicted of the offence that on 20 June 1988 at City Beach, with intent unlawfully to kill Ian Mason Binns, you discharged a loaded firearm at him. The offences contrary to section 283(2) of the Criminal Code, the maximum penalty for which is imprisonment with hard labour for life. You also stand convicted that on the same date and at the same place, with intent to resist your lawful arrest, you unlawfully attempted to strike Edward William Trindall with a projectile, namely a bullet. That offence was contrary to section 294 of the Criminal Code, the maximum penalty for which is imprisonment with hard labour for 20 years."

12 His Honour went on to describe the circumstances giving rise to the offences. He noted that the appellant had manufactured an amateurish but potentially lethal weapon and had live ammunition in his possession. He noted that the appellant had no prior criminal record and that the offences appeared to have resulted from the appellant's particular psychiatric condition. He observed that the appellant's parents continued to be supportive. His Honour concluded by saying this:

"In my opinion, the seriousness of your offences outweighs any weight which can arise from these latter three factors. Those offences are grave indeed and I must take it from the verdict of the jury, as I have said, that you intended to kill Ian Mason Binns and that you attempted to strike Constable Trindall, a police officer, in the course of his duty. In my opinion, the seriousness of the offences results in imprisonment being the only proper disposition of the matter.

In relation to the first count, the offence contrary to section 283(2) of the Criminal Code, I consider you should be sentenced to 4 years' imprisonment. I also consider you should be sentenced to a further 4 years' imprisonment in respect of the attempted offence contrary to section 294 of the Criminal Code. Were it not for the factors in your favour to which I have referred, more substantial sentences would have been warranted.

My further view is that the sentences should be served concurrently. However, I consider I should allow credit for the period during which you have been in custody scaled up and that such allowance, to be effective, should be allowed against each sentence in view of the concurrency of terms. I therefore sentence you to imprisonment for 3 years 3 months on each charge, the sentences to be served concurrently. I further order that you be eligible for parole in respect of each term of imprisonment. I express the hope that psychological, psychiatric, or appropriate medical treatment be made available and be received by you to assist you in the future. You may stand down."

13 The appellant says in his affidavit sworn 17 June 2002 that in April 2002 he had occasion to speak to his lawyer about a number of charges brought against him, such charges including possession of a number of firearms without a licence. It was pleaded as a circumstance of aggravation that at the time the appellant was disqualified from holding a firearm licence. In the course of the discussion with his lawyer a query arose as to whether an order for permanent disqualification could be made. This led to the present appeal in which the appellant challenges the validity of the disqualification order.

14 Counsel for the appellant's short point was that a "permanent" disqualification is not one for a "period" and as such that the order is defective and ought to be set aside.

15 In order to understand this submission one must turn to s 27 of the Firearms Act, as it stood in 1989 at the time of the appellant's conviction. It reads as follows:

"On the conviction of a person for any offence whatever under this Act or for any offence against the person in which it appears from the facts that the convicted person unlawfully used or had in his possession any firearm or ammunition, any court before which the offender is convicted may declare any licence or permit held by the convicted person under this Act to be cancelled, and may declare the convicted person to be disqualified from holding a licence or permit under this Act for such period as the court determines."

16 The crucial words according to counsel for the appellant were "for such period as the court determines." The presence of these words, he argued, obliged the learned Magistrate to determine and stipulate a specific period of disqualification. He failed to do this with the result that the order for disqualification "permanently" should be set aside.

17 Counsel for the appellant relied on the Shorter Oxford Dictionary's definition of "period" which is "a course or extent of time". He submitted that by definition, and as a matter of logic, a permanent order was without a course or extent of time.

18 Counsel for the appellant supported this line of argument by reference to Stevens v Viskovich, unreported; SCt of WA; Library No 960596; 26 September 1996. In that case the Magistrate declared that the applicant should be disqualified from holding a Western Australian firearms licence but did not stipulate any period for the disqualification. Parker J held that the disqualification order should be set aside for the following reason:

"It is clear that the only power to order or declare disqualification is contained in s 27 of the Act and it is one which is conditioned by the need for the Magistrate to determine and stipulate a period of disqualification. The learned Magistrate failed to observe that."

19 Counsel for the appellant submitted that Stevens (supra) was on point and that the disqualification order in the present case was equally defective and ought to be set aside. He said further that the only difference between the Stevens case and the present case was that in the present case the Magistrate had used the word "permanently". However, as that did not amount to the stipulation of a specific period of time, there was not a difference of any substance between the two cases.

20 Counsel for the appellant recognised that some years after the conviction in the present case the Sentencing Act 1995 was enacted which had an effect on the law concerning disqualification. By s 46 of the Sentencing (Consequential Provisions) Act 1995, s 27 of the Firearms Act was repealed. Section 104 of the Sentencing Act makes it clear that a disqualification may be imposed for life. He emphasised, however, that the appeal in the present case must be decided by reference to the law as it stood when the sentence was imposed on 16 August 1989.

21 In the course of his submissions, counsel for the appellant referred to a recent decision of the Full Court in this State, Schamotta v The Queen [2002] WASCA 262. The judgment in that case contains a useful summary at pars 5 to 7 of the way in which the law was changed:

"5 At one time, firearms offences involved a liability to disqualification under s 27 of the Firearms Act 1973, but this section was repealed in 1995. The power that is now applicable is that contained in s 106 of the Sentencing Act 1995, subs (1) of which provides:

'A court sentencing an offender for an offence specified in subsection (4a) may order that, for a term set by the court, the offender be disqualified from holding or obtaining a licence or a permit or an approval, or any particular licence, permit or approval, under the Firearms Act 1973.'

The offences specified in subs (4a) are the following:

'(a) a firearms offence;

(b) an offence involving assault with a weapon;

(c) an offence involving violence.'

What is relevant here, of course, is par (a), a firearms offence. There is also a definition, for the purposes of the section, in subs (5), of 'firearms offence', the relevant paragraph of which is '(e) an offence under the Firearms Act 1973'. The other offences which are firearms offences may be summarised as offences concerned with stealing or receiving a firearm or ammunition or using a firearm or ammunition during the commission of an offence, or after its commission in order to avoid apprehension.

6 Section 106 is in Pt 15 of the Sentencing Act, in which, by the use of the same form of words as that employed in s 106(1), courts are authorised to disqualify an offender sentenced for a motor vehicle offence from holding or obtaining a driver's licence (s 105(1)), and an offender sentenced for a marine offence from holding or obtaining a certificate of competency under the Western Australian Marine Act 1982 (s 107(1)). Part 15 opens with s 102, s 103 and s 104, which apply generally in respect of orders under the Part. Section 102 is headed 'Principles'; subs (1) specifies that an 'order under this Part may be made in conjunction with any sentencing option available to a court sentencing an offender who is a natural person', and subs (3) provides: 'An order under this Part forms part of the sentence.' Section 104 makes it clear that a disqualification may be imposed for life.

7 Disqualification orders have perhaps been more frequently made in relation to motor vehicle driving licences than in relation to any other licence. In Thomas, Principles of Sentencing, 2nd ed (1979), at 350, it is stated:

'Disqualification from driving may be used in two distinct ways - as a preventive measure designed to restrain a persistently dangerous driver from driving, or as a punitive measure intended to add a further element to the primary sentence for the offence.' "

22 Counsel for the respondent sought to distinguish Stevens (supra) from the present case. According to him, Stevens (supra) is authority for the proposition that the power under s 27 is not exercised where nothing which can be identified as a period has been determined or stipulated. On that view, Counsel for the respondent contended, the principle identified in Stevens (supra) was limited in its application to cases where the failure to specify a period demonstrated that the Court had not made a determination upon which the power depends. It had failed to address a crucial factor.

23 Stevens (supra) should not be regarded as authority for a broader proposition, namely, that any purported period of disqualification which does not have an end point which can be precisely stated involves a failure by the court to observe a condition on which the power depends. The broader proposition would involve a construction which limited the scope of the word "period" to a length of time between two specific dates.

24 Counsel for the respondent went on to say that a disqualification expressed to be "permanently" did not disclose any failure on the part of the Magistrate to address the time factor. The Magistrate had made a determination in that regard and a "period" had been selected, notwithstanding that the precise end date of the portion of time in question could not be identified. A "permanent" disqualification was analogous to disqualification "for the life of the offender", which is commonly thought of as a specific period of time, even though the precise date on which the period ends cannot be determined with certainty.

25 Counsel for the respondent reinforced this line of argument by referring to s 104 of the Sentencing Act. This provides that the "term" which a court may set for a disqualification order (including orders under s 106) "may be for the life of the offender." Counsel submitted that "term" and "period" were synonymous for present purposes and that s 104 could be viewed as putting beyond doubt that a permanent order, or one for the life of the offender, was in respect of a "period", albeit the maximum period possible.

26 I accept that the operative point of reference in the present case is s 27 of the Firearms Act as it stood at the time of the offence.

27 In Pearce: Statutory Interpretation (5th ed) the learned author makes these observations at par 10.1:

"The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation. The leading case on this question in Australia is Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 where Dixon CJ at 267 summarised the approach of the courts thus:

'The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.'

Perhaps the other most frequently cited statement of the principle is from Fullagar J in Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 194:

'There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.' "

28 Nonetheless, in seeking to understand and to give a meaning to the language employed in s 27 as it stood at the relevant time, it will be useful to take account of other statutory provisions as a way of testing one's reasoning. Further, the words in question must be read, not as if they were entirely divorced from their context, but as part of the whole statute: Pearce (supra) at par 4.2

29 I note that at the material time the Firearms Act was described as an Act to make provision for the control and regulation of firearms and for the licensing of persons possessing, using, dealing with or manufacturing the same. Section 8 exempts certain persons, such as members of the police force acting in the course of duty, from licensing requirements. Section 11 provides that the Commissioner of Police shall not grant a licence if it is not desirable in the public interest, or that person is unfit to hold a licence, or that person does not have a good reason for acquiring or possessing the firearm.

30 Section 17(3) of the Firearms Act allows for the grant of a temporary permit for the period specified therein unless sooner determined by the Commissioner by notice in writing, but shall not be granted for any period in excess of three months. By s 18(2) a licence is valid for a period of 12 months from the date of its issue or renewal and may be renewed from time to time for further periods. By s 20, in certain circumstances, the Commissioner may revoke any licence.

31 These provisions do not provide any clear guidance as to how a court should construe the power in s 27 to disqualify for "such period as the court determines." Having regard to the reasoning of Parker J in Stevens (supra), I accept that the power to disqualify cannot be exercised unless some consideration is given to the time factor and a period of disqualification is stipulated. However, for the reasons given by counsel for the respondent, I do not accept that Stevens (supra) is decisive of the present case, for in this case, unlike the situation in Stevens (supra), the learned Magistrate purported to prescribe a period of disqualification. I note in passing that in a number of cases the words "a period" have been held to denote a continuous duration of time, and not a combination of separate intervals strung together: Hutchison v Architects Registration Board [1925] VicLawRp 25; [1925] VLR 195; In re Marryat; Westminster Bank v Hobcroft (1948) 1 Ch 298.

32 The crucial question is whether the learned Magistrate can be said to have determined a period of disqualification in using the word "permanently".

33 The Concise Oxford Dictionary defines "permanent" as "lasting, or intended to last or function, indefinitely."

34 Thus, at a first glance, the concept of permanence can only be understood in relation to the passage of time. Further, in common parlance, the term must be viewed in context and in relation to other benchmarks. Thus, a permanent job would generally be thought of as a job lasting or intended to last longer than a casual or a temporary job, but that is not to say that it will last forever. By way of further example, in the course of determining whether a worker's incapacity is "permanent", it may only be necessary for a Court to determine whether the claimant's condition is stable and whether it will be proper for a payment to be made at the prescribed level for the rest of the claimant's life: Calico Printers' Association v Higham [1912] 1 KB 93 at 101.

35 When the matter is viewed in this light it can be argued that the learned Magistrate in the present case, unlike the Magistrate in Stevens (supra), addressed the time factor. He sought to impose a term of disqualification that had the characteristics of a period in that it was referable to the passage of time and could operate continuously for the rest of the offender's life. Ultimately, the matter in issue turns on the question of whether a length of time that is bound to end but has an uncertain end point can be described as a period in the context of licensing provisions of the kind reflected in the Firearms Act.

36 In Horton v Burton, unreported; SCt of WA; Library No 990127; 17 March 1999. McKechnie J had occasion to consider an issue of this kind. In that case, the appellant became liable under s 63(2)(c) of the Road Traffic Act 1974 to be "permanently disqualified from holding or obtaining a driver's licence".

37 His Honour adopted a construction of the Road Traffic Act which would promote the purposes of the legislation, particularly public safety and punishment. He held that a period of permanent disqualification is a disqualification which may at some point be ended because it was possible under the Act to apply for removal of the disqualification. He therefore held that there was room for the operation of a cumulative period of disqualification to take effect upon the end of the permanent period of disqualification, even though at the time of its imposition the end point of a period of permanent disqualification will be unknown.

38 In the course of his judgment his Honour said this at page 5:

"The appellant submitted that permanent means everlasting and in the context of the Road Traffic Act 'permanent' means forever.

I do not consider that permanent is to be equated with the whole of a human life or that it necessarily embraces the concepts of everlasting or forever.

Something which is permanent may exist for a lengthy indefinite period but may nevertheless have an end. The Macquarie Dictionary defines 'permanent': 'Adjective 1. Lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding.'

The extent to which a condition, thing or period attracts the adjective 'permanent' must depend on the surrounding circumstances. In Henriksen v The Grafton Hotel Ltd [1942] 2 KB 184 du Parcq LJ at 196 said:

'Permanent is indeed a relative term, and is not synonymous with 'everlasting'.'

I agree with du Parcq LJ that the term is relative and that the focus of the inquiry must be on the circumstances in which the word appears.

In McLelland v Northern Ireland & General Health Services Board [1957] 2 All ER 129 the question under consideration was a contract of employment to an appointment which would be permanent and pensionable.

As Lord Oaksey acknowledged in the course of his judgment: 'No doubt the word 'permanent' must be construed in the light of its context ...'. In Chen v The Minister for Immigration Local Government & Ethnic Affairs [1992] FCA 430; (1992) 110 ALR 192 the question under consideration was whether certain disabilities amounted to permanent incapacity. In the course of his judgment Jenkinson J in construing regulation 127 of the Migrant Regulations held that 'permanent' means likely to continue indefinitely, that is for a substantial but undetermined period (at 194).

In my opinion, when used as an adjective to describe a period of time 'permanent' means a substantial interval between two points. The length of the interval is indefinite but not infinite. It is capable of crystallisation at some time in the future. It is not a period which is everlasting.

Support for this interpretation can be found within the provision of Road Traffic Act s 78 itself which expressly contemplates that even a permanent disqualification may at some point of time be removed. When the court orders the removal of the disqualification its period has crystallised."

39 I am immediately conscious that his Honour's observations in that case on the meaning of "permanent" were influenced to some extent by a provision in the Road Traffic Act allowing for removal of a permanent disqualification. There was no such provision in the Firearms Act as at 1989. Nonetheless, Horton v Burton (supra) is some authority for the proposition that "permanent" can be used as an adjective to describe a period of time. The length of the interval is indefinite but not infinite.

40 I apply this reasoning to the circumstances of the present case. Section 18 of the Interpretation Act provides that a construction which would promote the purpose or object underlying the Act shall be preferred to a construction which would not promote that purpose or object. For reasons I will come to in a moment I consider that the purposes of disqualification of a firearms licence are both punitive and for public safety. In determining the period of disqualification, it was open to the Magistrate to fix a specific period of months or years (defined by reference to nominated numbers or dates) or to fix a more substantial period of disqualification which was indefinite but not infinite. The end of the period would crystallise or become known in due course. The term of the disqualification order was essentially for the life of the offender. Thus, in a sense, s 104 of the Sentencing Act makes explicit what was previously implicit in s 27 of the Firearms Act.

41 It follows from this ruling that I am not prepared to set aside the order previously made and will disallow the appeal.

42 The appeal was limited to the narrow point I have described in earlier discussion. The appellant did not seek to argue, as a different ground of appeal, that the penalty previously imposed was excessive. However, as the question of a re-exercise of the discretion in the event of the appeal being allowed was fully argued, and as the argument concerning the purpose of the legislation, as I have indicated, bears upon my principal conclusion, I will address the question of what would be the appropriate disposition if the order for permanent disqualification were set aside upon the basis contended for by the appellant.

43 The question of what is an appropriate order for disqualification has to be considered in light of the circumstances and the total penalty. The decided cases indicate that a disqualification order is a normal penalty for offences of this kind under the Firearms Act, even for a first offence.

44 Counsel for the appellant argued strongly that it would be artificial for the court to attempt to sentence afresh on the basis of what happened 13 years ago. He submitted that a disqualification for what was in effect 13 years should be regarded as a sufficient penalty if the order below were set aside.

45 Counsel for the respondent submitted that it would not necessarily follow from a conclusion that the Magistrate had no power to impose a "permanent" disqualification, that the Applicant should be treated as if no period of disqualification had ever, or should ever, have been imposed. Further, he submitted that it did not necessarily follow that no period of disqualification should be substituted merely because this Court might conclude that any period, which should have been imposed, would have now expired.

46 Let me return to the circumstances of the case. If one looks at the affidavits of Christa Anna Binns and Ian Mason Binns both dated 23 October 2002 together with the Sentencing remarks of Nicholson J dated 4 August 1989 one sees the incident of the 20 June 1988 portrayed in a very serious light.

47 It seems that on 17 June 1988, the appellant had withdrawn into his bedroom and all attempts made by his parents to communicate with him were ignored. The appellant was apparently in a depressed condition and suicidal. There was evidence that steps had been taken by the appellant to prepare equipment necessary to asphyxiate himself from the exhaust of his car. After the offence it was discovered that the appellant had manufactured an amateurish but potentially lethal weapon and that he had live rounds of ammunition in his bedroom and that he also had a bottle of LP gas and masking tape.

48 Mid-morning, the appellant's father went to the appellant's bedroom door and attempted to bring matters to a head. The appellant then fired at the door shooting his father in the arm. The appellant did not open the door to see what happened but stayed in his room in a state of aggression. The appellant fired a shot into the wall. The police were called. A police officer scaled the back fence and put himself behind a wall in the back garden where he could observe the window of the appellant's bedroom. The police officer in question put his head out from behind the wall and nearly got it shot off when the appellant fired two shots at him.

49 The pre-sentence report showed that while the appellant's family were residing in Sydney, prior to moving to Western Australia in March 1986, the appellant had exhibited signs of withdrawal from his family and wider society. In 1980 while living at his parent's house the appellant's behaviour required compulsory admission to a mental hospital. At that time the appellant had isolated himself in his bedroom to the point where he had no social contact with his family. The appellant was taken to a mental hospital where he cut his wrists and required medical attention.

50 Following discharge from the mental hospital, the appellant obtained accommodation away from his family and for the next 2 years had very limited contact with his parents. In June 1982 the appellant phoned his father and requested to be picked up. His father found the appellant with badly cut wrists and the appellant was taken to hospital for treatment. The appellant returned to live with his parents in Sydney and the family then moved to Perth in 1986.

51 A similar pattern of withdrawal and depression occurred just prior to the incident of 20 June 1988. The psychiatric report before Nicholson J mentioned that the appellant had felt chronically depressed with acute exacerbation throughout much of his life. The report also highlighted the appellant's social isolation but stated that the appellant formed relationships better in the work-place and that he had earned respect in the course of his employment.

52 It is clear from the penalty the Magistrate sought to impose that he viewed the circumstances of the offence seriously. He would not have attempted to impose a permanent disqualification order for the life of the offender unless he saw the matter in that light.

53 This brings me to the question of what considerations could properly be taken into account as at 1989 prior to making a disqualification order.

54 Counsel for the appellant submitted that before the passing of the Sentencing Act, the power to disqualify under s 27 of the Firearms Act could only be exercised for punitive purposes. Counsel for the respondent submitted that the discretion to impose a disqualification order under s 27 of the Firearms Act could be exercised having regard to both punitive and public safety issues. Both counsel referred to a number of previously decided cases bearing upon this issue.

55 In Stackhouse v Curulli, unreported; SCt of WA; Library No 920251; 30 April 1992 Owen J said this on the Firearms Act at 9:

"The Act has a number of features to it. It is essentially a regulatory enactment and its purpose is to ensure that firearms are controlled. This seems to have two aspects. The first is the ability to register and trace weapons. The second is the protection of the public. Offences against the Act must be treated with some seriousness"

56 In Denton v Murdock, SCt of WA; Library No 950572; 26 October 1995 one of the grounds of appeal was that the magistrate erred when he exercised his power to cancel the appellant's firearm licence and disqualify the appellant from holding a licence because he had "come to the conclusion that you [the appellant] are an inappropriate person to have possession of firearms in any event." Counsel for the appellant in that case submitted that this was an error in principle because it confused the role of the learned Magistrate which properly was referable only to punishment, with the role of the Commissioner of Police in administering the licence provisions of the Act under which fitness was a relevant consideration. In support of this submission reference was made to Stackhouse v Curulli (supra) at 10 and Creed v Dudley [1984] WAR 344 at 346.

57 In response to that submission, Parker J said this in Denton v Murdock (supra) at 21:

"While the comments of the learned Magistrate may possibly be understood in more than one way, I am not able to displace the construction submitted by the appellant. I accept in the context of the proceedings before the Court of Petty Sessions the relevant consideration was punishment. On this view of the comments of the learned Magistrate it would follow that he failed properly to weigh the question of cancellation and disqualification in the context of punishment. If the learned Magistrate did fall into error in that respect, it remains the case that the nature and circumstances of these offences are ones which self-evidently called out for cancellation of the licence and for a significant period of disqualification."

58 Creed v Dudley (supra) dealt with disqualification of a driver's licence for 10 years. The driver was subject to manic relapses and one of the questions before the court was whether disqualification was punitive or preventive. The Magistrate imposed a 10-year suspension for the following reasons:

"You may think that is a hefty period of time and it is, but I have to make sure that you do not get into a car and in the car have a little bit of difficulty and you hurt somebody and maybe hurt yourself badly. Then you would not live with yourself afterwards. You would have great problems and difficulty with that and I do not want that to happen. So for that reason I am saying it is 10 years off the road. Maybe, with the passage of time, you will be able to apply for an extraordinary licence or you will be able to get your licence back. I do not want you to be driving for a considerable period of time."

"The magistrate's reasons, I think, are expressed there without any degree of ambiguity. He was not thinking primarily in terms of punishment. He was thinking primarily in terms of preventing the appellant from injuring himself or injuring other people by his driving a motor car ... I would not for a moment dissent from the view that to a degree the length of disqualification, when the disqualification is imposed by way of punishment, will be influenced by the risk the particular person represents as a driver of a motor car. Having said that, it remains the truth that cancellation, suspension or disqualification is by way of punishment."

60 These cases were said to support the appellant's submission in the present case that the purpose behind disqualification is strictly punitive. This meant that if the present appeal succeeded, and it became necessary to revisit the question of penalty, it was not necessary to consider issues concerning public safety. Issues of this kind would be addressed by the Commissioner if the appellant applied for a licence after the period of disqualification had expired.

61 I am not persuaded that the decided cases should be viewed in this light. The decided cases clearly establish that an important feature of the licensing regime reflected in the Firearms Act at that time was to protect the public. The two cases principally relied upon by the appellant, namely, Creed v Dudley (supra) and Denton v Murdock (supra) are consistent with such a view. These two cases recognise that risk and protection are relevant in determining the appropriate period of disqualification. They indicate that an error in sentencing may occur if the protection issue operates to the exclusion of the punishment factor. To my mind, it was open to the learned Magistrate in the present case to impose a substantial term of disqualification with a view to punishing the offender and protecting the public.

62 In earlier discussion concerning the decision of the Full Court in Schamotta's case (supra) I noted that since the enactment of the Sentencing Act the power to disqualify is to be found in s 106 of the Act.

63 There seems to be little doubt that the power to disqualify under s 106 of the Sentencing Act may be exercised for a protective purpose: Horsman v Bishop [2000] WASCA 316 and Coumbe v Whittaker [1999] WASCA 151. This view of the matter was affirmed in Schamotta's case (supra). In the course of a joint judgment the Full Court said this at par 13:

"It is, of course, generally an offence that is related to the use or possession of a firearm that triggers the application of s 106. The Firearms Act is certainly very much concerned with public safety: see the remarks of Rowland J (with whom Franklyn and Seaman JJ agreed) in Re Cockram (SM); Ex parte Williamson, unreported; SCt of WA; Library No 940673; 23 September 1994. It regulates the use and possession of firearms so as to prevent their misuse. Because of the direct connection between s 106 of the Sentencing Act and the provisions of the Firearms Act, it seems to us that, in general, the statement of McKechnie J in Coumbe v Whittaker that 'the dominant purpose for disqualification is public safety' is right. But the purpose of securing public safety must be understood in a broad sense, as extending to justify a disqualification for unfitness demonstrated by disregard of legal obligations relevant to the use or possession of firearms, and of course, any propensity which might make such use or possession potentially dangerous."

64 I must now draw together these observations having regard to the circumstances of the present case.

65 I consider that as at 1989, in the course of exercising the discretion allowed for by s 27 of the Firearms Act, a judicial officer was obliged to characterise disqualification of the offender's licence as a form of punishment, and to proceed accordingly. However, in the course of determining the appropriate period of disqualification the judicial officer was entitled to take account of public safety issues. This meant that the learned Magistrate in the present case was entitled to give weight to any propensity in the offender which might make the use or possession of a firearm potentially dangerous.

66 Reasoning of this kind bears upon the construction of s 27 of the Firearms Act, for s 18 of the Interpretation Act provides that a construction which would promote the purpose underlying the relevant provision is to be preferred to a construction which would not promote that purpose. This underpinned my earlier conclusion that the learned Magistrate was not in error in disqualifying the appellant from holding a licence permanently. It follows from this ruling that the appeal will be dismissed.

67 Such a finding makes it unnecessary to consider any further question as to whether the period of disqualification was excessive. This was not an issue raised by the grounds of appeal and the ruling against the appellant removes the need to substitute an alternative period of disqualification or to remit the matter to the Court below. I note in passing that the learned Magistrate did not provide reasons for the period of disqualification he imposed and this would have complicated the matter had such a ground of appeal been raised.

68 However, the materials before me suggest that if the appeal had succeeded, the period of disqualification to be imposed upon re-sentencing the appellant would be substantial, and certainly in excess of the period of 13 years contended for by counsel for the appellant.

69 The appeal will be dismissed. I will hear from the parties as to whether any further orders are required.