Sidebottom v County Court of Victoria [2001] VSC 18

5. It is necessary for me to summarize the essential facts that underlie the proceeding in this Court. These are derived from an affidavit of the plaintiff Kevin Sidebottom, from statements made as to factual matters both by counsel for the plaintiff, Mr Walsh-Buckley, and Mr McArdle, one of Her Majesty's counsel who appeared instructed by the Director of Public Prosecutions for the second defendant (it apparently being accepted on either side that the statements of fact so made were correct and not the subject of dispute) and to some extent from such part of the transcript of the proceeding in the County Court as was capable of being made available and from some of the exhibits forming part of the proceeding here. The plaintiff was a person with a long-term interest in firearms and held a number of licences in relation to them. He had been a firearm safety instructor at one time with the Victorian Police Force and was a member of several sporting gun clubs. The plaintiff lived with Dianne Paternoster at 30 Scotland Avenue, Greensborough. The plaintiff Sidebottom and Ms Paternoster apparently had some serious falling out. She had obtained an intervention order against the plaintiff arising from claimed assaults or threats of them. In about February 1999 the police attended at Greensborough to search for illegally held firearms. Firearms appropriately held were found but no illegal firearms. However photographs had been taken at an earlier time of firearms by a social visitor to the premises (who was a police officer) including firearms allegedly concealed in a kitchen cavity created by the plaintiff. Paternoster alleged that Sidebottom was the owner of the illegal and concealed firearms, a matter which he denied, apparently claiming that Paternoster was the owner of them. It appears to have been found by both the Magistrates' Court and the County Court that Sidebottom was the owner of the illegal firearms and that his claim that the case against him was one trumped up by Paternoster, to aid in her property and other disputes with him, was not accepted. It should be said that it appears that there were a large number of legally owned registered firearms properly stored and licensed and kept at Greensborough. The case against Sidebottom as brought in the Magistrates' Court involved five charges:

1. Failing to notify the Chief Commissioner in writing of a change of address contrary to Firearms Act 1996 s.139.

2. Possessing a hand-gun, unregistered and unlicensed, contrary to s.7 of the Act.

3. Possessing a category A Longarm which was unregistered contrary to s.61 of the Act.

4. Possessing two category C Longarms which were neither registered nor licensed contrary to s.63 of the Act.

5. Possessing firearms under a Longarm licence for category A and failing to store in the manner required by s.121(1) of the Act.

These charges were heard by the Magistrates' Court at Heidelberg. Ms Paternoster was a co-defendant charged with similar offences.

14. It appears that Sidebottom was proposing to contest the charges but on being notified that Paternoster was going to plead guilty and give evidence against him, the prosecution and defence agreed on a different course. Charge 2, the hand-gun charge, was dropped and Sidebottom pleaded guilty to charges 1, 3, 4 and 5. Paternoster pleaded guilty to certain offences also. It appears that Sidebottom expected to get a lenient penalty, but the magistrate did not agree. The court convicted the plaintiff on charge 1 with a fine of $500; he was convicted on charges 3 and 4 and the aggregate fines were $1,000; and convicted on charge 5 and fined $500. He was also ordered to pay $97 costs. No forfeiture order concerning any firearms was made against him.

17. Sidebottom instructed his lawyers to appeal to the County Court of Victoria from the orders of the Magistrates' Court. As was his right, he altered his plea of guilty in respect of counts 1, 3, 4 and 5 from guilty to not guilty, the County Court appeal being a hearing de novo. He appeared before His Honour Judge Lewis in the County Court on 26th June, pleading not guilty to each charge. Charge 2 had been dropped in the Magistrates' Court. Some evidence was called including the informant O'Donnell and Paternoster. In the course of the hearing in the County Court it appeared that the firearms encompassed by charge No. 4 were incorrectly described. They were category D longarms not category C. An application by the prosecution to amend charge No. 4 was refused. It is not necessary for me to consider issues concerning possible re-charging and time factors. It appears, however, that the plaintiff then decided to change his plea in respect of charges 1, 3 and 5 from a plea of not guilty to guilty. The case was already in a second day. Thus it would appear that the plaintiff had the good fortune at the Magistrates' Court to facilitate the withdrawal of the serious hand-gun charge in exchange for a plea of guilty. When he appealed to the County Court he avoided having to have the second most serious of the charges No. 4, heard. This was described by Mr McArdle QC as on a technicality. Be that as it may, the charges in the County Court proceeded on the basis of pleas of guilty. Lengthy submissions were made as to the appropriate penalty which included submissions that no conviction should be recorded and no forfeiture orders should be made. The County Court judge referred to submissions in mitigation that had been made by Mr Walsh-Buckley and identified factual matters which he took into account, not only in respect of the submissions made, but to be weighed against the submissions being advanced that there should be no conviction recorded and no forfeiture. These included (a) that the evidence showed that the air rifle, which was the subject of the charges, had been stored in a cavity underneath the windowsill in the kitchen covered by a movable polished timber bench, so that the cavity was obviously intended to be and was designed to be a secret hiding place, (b) that the possession and storage offences were not committed as a result of oversight or indifference because he actually created the cavity, (c) that he had kept a category A longarm for which he held no licence notwithstanding his long familiarity with the purposes and stringent requirements of the Firearms Act and awareness of its penalty sections and the consequences which might flow from the commission of offences, (d) that the offences were not trivial, that his conduct was reprehensible and a serious example of the flouting of legislation designed to ensure public safety and peace, and (e) that it was necessary to denounce the behaviour of that kind by a man entrusted with the task of instructing in firearm safety.

20. The County Court judge went on to set aside the orders in the Magistrates' Court. On charge 1 he convicted and fined the plaintiff $150 with costs of $97, on charge 3 he convicted the plaintiff and fined him $250, on charge 5 he convicted and fined him $250, that is, a total sum of $650 by way of fine and a conviction on each charge. He made a forfeiture order pursuant to s.151 of the Act in relation to all firearms and cartridge ammunition in the possession of, used or carried by the plaintiff, including those firearms described in Ex. 1. Exhibit 1 in the County Court became Ex. B before me. It sets out in a schedule some 20 firearms. I was informed that many of these were of historical interest and value and that the total value of them was several thousand dollars or a little over that. It is in respect of these matters that this Order 56 proceeding has been commenced.

23. I commence with observing that there is no right of appeal from a decision of a County Court judge hearing an appeal from a magistrates' court save for the limited right of appeal conferred by s.91 of the Magistrates' Court Act 1989, that is in a case where the penalty, being non-custodial, is increased by the County Court to a custodial sentence. Clearly, the plaintiff has resorted to the only method by which he might overturn the County Court orders, namely, a review of the decision on the basis of Order 56. In a judicial review proceeding, the Court exercises its common law jurisdiction of a supervisory nature, in accordance with the principles of prerogative writs. It is not an appeal, and in particular is not an appeal against a sentence of a kind that is ordinarily entertained by the Court of Appeal. I do not doubt that in appropriate cases the Court may make orders similar to orders made under the old prerogative writs of certiorari and mandamus and that it has power to do so, so long as the other necessary requirements are met, in an application under Order 56 from a decision of the County Court made by way of appeal from the Magistrates' Court. See Hansford v. Judge Neesham[1], Flynn v. DPP[2] and Kuek v. Electra Wellens and County Court of Victoria[3].

26. The scope of the jurisdiction was examined in Craig v. South Australia[4] wherein, in a joint judgment, it was stated by the High Court[5]:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, an error of law on the face of the record. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedure and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to `the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

Mr Walsh-Buckley for the plaintiff, who filed written submissions which, to say the least were detailed, (and in my judgment over-elaborate) appeared to argue that this was a case of jurisdictional error, thereby drawing within it all relevant matters including all of the evidence and submissions that were made. It was argued that this drew in for consideration all evidence relevant to submissions made by counsel, all matters stated by the judge in the course of submissions and (without defining any boundaries) any matter that might answer the description of relevant material, on the widest possible interpretation of what amounted to jurisdictional error. I rejected this submission. In my opinion, the only aspect of this case in which it might be argued that there was jurisdictional error (as against error on the face of the record) is in the area of whether there was a lack of authority in the Court, having regard to the terms of s.151, to order the forfeiture of firearms which were not the subject of the informations. I will deal with that matter in due course. Some reliance was sought to be placed upon statements by the High Court in Craig that an inferior court will be regarded as exceeding its authority and would fall into jurisdictional error if it misconstrued a relevant statute or instrument and thereby misconceived the nature of the function it was to perform within the extent of its powers in the relevant case. As the High Court stated (178) the line between jurisdictional error and error in the exercise of jurisdiction may be difficult to discern. In my judgment that is not the situation here. Other than the question as to whether or not the court had power under the Firearms Act to order forfeiture of the firearms not the subject of the charges, no other matters need be considered under this rubric in this case.

31. Subject to that aspect, there does not appear to be much doubt that as a consequence of the decision in Craig and other decisions made in this State, and by virtue of s.10 of the Administrative Law Act 1978, the record, for the purpose of orders by way of certiorari, includes any statement by the inferior court of its reasons for decision. Thus in this case the record is constituted by the original charges, the notice of appeal, and the reasons for judgment disclosed in the transcript, and the record of the appeal decision. The transcript of evidence does not form part of that record. There may be, in many cases, a fine line to be drawn as to whether or not submissions made by counsel might form part of the record but in my view, unless they are matters dealt with in the record constituted to that extent by the judge's reasons, they do not. One effect of Craig was to draw a line to the contrary of the extension of the definition of the record, because it had the effect of blurring the distinction between non-jurisdictional error of law and statutory appeals (customary to courts of appeal) founded upon error of law. The learned authors of _Judicial Review of Administrative Action (Aron_son and Dyer)[6] statete:

"Material improperly included in the record as returned by the impugned decision-maker was, according to the court, to be discarded. Henceforth, and in the absence of any legislative indication to the contrary, the record means only (a) the documents (such as the information or as in the instant case a transcript record of the accused's application ...) which initiated the impugned proceeding; (b) any pleading; and (c) the impugned order itself. That narrowly defined record can be expanded to include material which the order itself incorporates into the order, but there is some doubt as to whether the incorporation process can extend to the mere reasons for the order or the transcript of evidence or exhibits upon which the order was based, even if the decision-maker has tried thus to incorporate the reasons or transcript. On one reading of Craig, the extra material has to be an operative part of the order if it is to be successfully incorporated. A proffered undertaking, for example, might be thus incorporated into an order. No previous case has given such a narrow reading of the record, and it flies into the face of 19th century case law, which has allowed inferior court judges to invite judicial review by recording their full reasons at some length. It also contradicts an earlier statement by Gibbs CJ that: 'Reasons do not form part of the record, for the purposes of certiorari, unless the tribunal chooses to incorporate them.'"

See also as to the record Thompson v. His Honour Judge Byrne[7] and Kuek v. Electra Wellens and the County Court[8]

36. Apart from the s.151 point, it is impossible to believe that this procedure was brought other than to run under the guise of an Order 56 application, an appeal against the "sentence" imposed by the County Court judge on the grounds of manifest excess. I reject the suggestion that it was even arguable that the judge erred in law imposing a conviction on each of three separate offences. This argument was the same as the basic argument, tricked up in an attempt to draw the case within Order 56, when it patently was not within it, save the matter to which I have referred.

39. The written submissions on behalf of the plaintiff exhibit the vice to which I refer. Under the heading of "Judge erring in law imposing a conviction on each offence" the following matters were addressed as having been overlooked or insufficient weight given to them: (1) the plaintiff had no prior convictions; (2) the plaintiff was a 47-year-old man; (3) the plaintiff had pleaded guilty (with little reference to the contrived changes of pleading to self-advantage) or that amnesty was a possible bar to prosecution and thereby a possible defence; (4) the defendant had handed in the air rifle when requested and thereby had remorse; (5) a conviction might adversely affect the plaintiff's employment as a technician; (6) the plaintiff had suffered financially and emotionally over the charges; (7) the plaintiff had lost his only sport and hobby and the level of criminality was not high in the context; (8) the co-accused Dianne Paternoster received conviction fines thereby leads to a conclusion of disparity; (9) the judge had ordered several thousand dollars worth of the plaintiff's legally possessed firearms to be forfeited and as a consequence of the act thereby arguably and possibly destroyed; (10) the air rifle was not effective and the offence was at the low end of the scale; (11) the Crown did not articulate an opposition to a "without conviction" disposition; (12) the plaintiff was otherwise of good character and produced references; (13) the judge had placed too much weight on the contrary elements and made too much of the deliberate concealing of the unregistered air rifle in a kitchen cavity. All of these matters were finally gathered under the proposition that the judge had erred in law in imposing a conviction which was manifestly excessive. Pages of submissions concerning this, driven by remote statistics and authorities, in essence a wilderness of single instances, were relied on.

42. I do not intend to say much more about this aspect. It is contrary to the intention of the Parliament in its limitation of appeals from the County Court (in Magistrates' Court appeals) that a back-door review of the adequacy or inadequacy of sentences should be allowed. The arguments lacked nothing on the score of boldness. This proceeding is not meant to be a contrived substitute for the restriction of the appeal process to the Court of Appeal. I firmly reject the proposition that under the rubric of judicial review the Supreme Court of Victoria can be called upon to review whether or not a sentence imposed by the court to whom the final sentence was committed was excessive. The High Court in Craig specifically proscribed this practice[9].

45. I permitted counsel for the plaintiff to address these matters substantially in oral submissions, as well as paying regard to the written submissions to which I have referred. Even if there were any substance in the submission that establishment of error in the exercise of the sentencing discretion might be drawn within this proceeding and that there was thereby either jurisdictional error or an error of law (the distinction between which were never attempted to be drawn for the plaintiff) I would not be prepared to take the view that there was any error that would attract the quashing of the orders made under the modern procedure. I have already set out the substance of some of the factual matters to which the court paid attention, to be balanced against other matters. It must not be overlooked that the submission really is that this was a case in which no conviction should have been recorded and no forfeiture ordered. It might be said that if the court had taken a different view of the facts, such orders might not have been made. Clearly, however, the court did consider all of the relevant matters. The County Court judge was an experienced judge. He had had this matter in front of him into the third day. He had heard lengthy submissions about a relatively uncomplicated set of facts. In his reasons, the learned County Court judge set out (as I have described) the matters to the disadvantage of the plaintiff within the sentencing sphere. He also referred to the submissions made in mitigation which he specifically detailed. To the contrary of counsel's claim made to me, they did include his consideration of the plea of guilty even at a late stage, the absence of prior convictions, previous good character, the practical consequence that his plea of guilty might make it difficult to retain his shooter's licence, disgrace, possible risk to his job and the loss of his weapons by forfeiture. He concluded that a conviction on each count was the appropriate sentence and that forfeiture of the described weapons was also appropriate. In my view this was absolutely open to him. I would not myself, based upon the written page, have disagreed with it and I am quite satisfied that, even if the matter were legitimately to form part of the debate here, no error of law has been disclosed in his Honour's discharge of his duty in respect of fair and just sentencing.

48. This leaves for consideration the submission that there was no power in the court to order forfeiture of firearms that were not the subject of specific charges. I refer to the provisions of s.151, 152 and 153 of the Act. The first thing to be noted is that s.151(b) specifically provides that if a person is found guilty against this Act or another firearms Act, the Court making the findings and orders "may order the forfeiture to the Crown of any firearm or cartridge ammunition in the possession of or used or carried by the person." (My emphasis.) It was put as a submission to me that this could not have been the intention of the Parliament. Other than that assertion and the claim that it was non-consonant with the consideration of the Parliamentary debate, no additional argument was advanced. I have read with some care the Second Reading Speech in relation to the Firearms Bill of 31 October 1996. The speech of Mr McGrath, the Minister of Police and Emergency Services, focusses upon the necessity for an expanded approach, he describing the Bill as "the toughest firearms controls ever enacted in Victoria." These amendments were post-Port Arthur. There were specific references to the effects upon prohibited persons which included persons subject to a domestic intervention order (as the plaintiff was). The Minister referred to the registration system in Victoria in respect to firearms, which had a specific section devoted to the necessary requirements for information from shooters about firearms in their possession. Everything there stated lent credence to the serious view taken by the County Court judge as to the concealment of an unregistered weapon the presence of which was unknown because of the failure to comply with the legal requirements. I fail to perceive any statement in the Parliamentary record which would suggest any limitation upon the breadth of the power conferred upon the Court to order forfeiture of any firearm and cartridge. It may be that in many cases the Court would decline to order forfeiture of all firearms and ammunition. Whether it should do so depends upon the Court's view of the facts and the just exercise of its sentencing discretion, having regard to all of the circumstances.

51. Mr Walsh-Buckley's references to ss.152 and 153, if anything, diluted his argument which was driven by some imagined loss of a firearm of great value lent to somebody so that, if some offence there occurred, the true owner would lose the right to reclaim, although not in breach of the Act. However, s.152 makes it clear that disposition back to the person entitled to possession or to, with the approval of the Minister, the transmission to any person of a firearm forfeited to the Crown, and renders this argument impotent. Moreover, by s.153, even in the case of a surrender or seized article, there is provision for the Magistrates' Court to consider destruction or disposal.

54. Another argument was advanced that the language of the Act was ambiguous. Unhappily for the plaintiff, I find that argument unpersuasive and, indeed, the merit of it escapes me. This provision (s.151) had appeared in another form in earlier legislation[10]. Section 3 of the Act defines possession. A broad interpretation of that was given by Kaye, J. in Yates v. Hoare[11]. There is no doubt that the terms of the Act are wide enough to include firearms not the subject of charges.

57. In the matter before me it appeared to be common ground that the plaintiff was and remained the registered owner of the firearms in question. It appeared to be asserted that they were at the time of sentencing being held as a matter of convenience by a firearms dealer. Even if that were so, in my view that did not deprive the owner of possession.

60. The case for mandamus did not appear to be pursued in argument. Mandamus does not lie in the case of the exercise of a discretion.

63. Accordingly the application is dismissed. Subject to hearing counsel, the plaintiff will pay the second defendant's costs.

[1] [1995] 2 V.A.R. 233.

[2] [1998] 1 V.R. 322.

[3] [2000] VSC 326.

[4] [1995] HCA 58; (1994) 184 C.L.R. 163.

[8] [2000] VSC 326.

[10] See s.37 of the Firearms Act 1958.

[11] [1981] VicRp 91; [1981] V.R. 1034.