Sidebottom v County Court of Victoria [2001] VSC 18

Sidebottom v County Court of Victoria [2001] VSC 18 - VSC 2001 case summary — Zoe

[4]

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:

[12]

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.

[24]

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.

[25]

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.

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Parties