Shumack v Lyddiard [2006] ACTSC 25 (24 March 2006)

Last Updated: 6 April 2006

PETER JAMES SHUMACK v MATTHEW LYDDIARD [2006] ACTSC 25 (24 March 2006)

APPEAL - Magistrates Court - firearms offences - sentencing discretion

Firearms Act 1996, s 63, s 76

Magistrates Court Act 1930

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 47 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 24 March 2006

IN THE SUPREME COURT OF THE )

) No. SCA 47 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PETER JAMES SHUMACK

Appellant

AND: MATTHEW LYDDIARD

Respondent

ORDER

Judge: Connolly J

Date: 24 March 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal against conviction be dismissed.

2. The appeal against sentence is upheld.

3. The appellant to pay a fine of $500 in relation to each count, and court costs within 60 days.

1. I'll deal with this matter immediately. My reasons will be transcribed and will be available for you in due course. This is an appeal from a decision of Magistrate Madden on 8 June 2005 in which he convicted Mr Peter Shumack of two offences contrary to s 63 of the Firearms Act relating to inappropriate storage of a firearm and a small quantity of ammunition. The appellant appeals globally against the decision of the magistrate, and I take that to be an appeal against both conviction and sentence.

2. The appellant has been engaged in a long process of litigation in the civil courts against the Commonwealth relating to what he regards as his inappropriate employment termination in 1997. And it is clear that he has a strong sense of grievance against a range of Commonwealth agencies and the circumstances of that long dispute are set out in some detail in a range of affidavits that he has tendered before the court today.

3. As I indicated, Mr Shumack, at the opening of this appeal, my role is purely to determine whether the magistrate made an error in exercising his function under the Magistrates Court Act. An appeal from a decision of the magistrate to this court is governed by s 214 of the Magistrates Court Act and that provides that in an appeal to which the section applies, which is the criminal appeal, the Supreme Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has the power to draw inferences of fact. That is to say I need to look at the evidence given below and determine whether the magistrate correctly recorded a conviction, and whether the magistrate erred in relation to the exercise of the sentencing discretion.

4. The circumstances of the alleged offence were as follows, and the full details of this do not appear in the transcript or in any evidence, but it has been referred to elliptically by Mr Shumack on a number of occasions. There seems to have been some matter heard in the High Court of Australia which he was dissatisfied with the judgment or the remarks of the judge of that court. He sent an email communication to an officer of the High Court and the recipient of that communication took that to be some form of a threat and drew it to the attention of the Australian Federal Police. And it seems to be as a consequence of that the Australian Federal Police on the day of 9 October of 2004, which happened to be the ACT election day, attended upon his premises to execute, as they intended to execute a warrant under the Firearms Act.

5. The police apparently have checked and Mr Shumack at the time was indeed a registered firearms owner, and he had a number of firearms lawfully registered under the ACT Firearms Registry. It seems that the police on the evidence given before the magistrate had obtained a warrant to enable them to enter the premises without consent if that was required.

6. The real issue on the appeal, it seems to me, is whether the police acted properly in relation to the entry and search of the premises. It seems to have been common ground at the proceedings before the magistrate, and Mr Shumack acknowledged in his submissions today that it is the case that there was one firearm which was not secured in the firearms cabinet, although he made the point that it was secured in an otherwise secured house, locked house, and significantly that the firing mechanism of that firearm had been removed and was secured in the cabinet. And he argues acknowledging that that firearm was not in the cabinet, but the firearm itself was a historic weapon and it simply did not fit in the dimensions of the secure firearms cabinet that's required to be held under the Act and that he did in fact hold and did use for the remainder of this firearms to be stored.

7. I also took Mr Shumack to acknowledge that although the bulk of his ammunition was properly secured in the secure cabinet as required by s 63 of the Act, there was a small quantity of ammunition that was not secured.

8. So there is no real challenge to the findings of fact by the magistrate that the offence of failing to keep the weapons secured had been made out. I should say that I entirely agree with the magistrate's reading of the legislation, which is to say that the entire firearm must be locked in the cabinet. It is not sufficient to merely disable the firearm and place the firing mechanism in the cabinet with the firearm outside the cabinet.

9. The real issue is whether the police were properly on the premises. Although the evidence is the police had a warrant, the police case was not that they executed the warrant in order to gain entry to the premises, rather the police case is that they obtained Mr Shumack's consent to enter the premises. Evidence was given before Magistrate Madden from a number of the persons who were present. Constable Brennan gave evidence that the officer in charge of the operation, Constable Lyddiard, requested that Mr Shumack give consent to enter the house and that Mr Shumack did in fact give that consent.

10. Constable Coppen gave evidence that Constable Lyddiard had a conversation with Mr Shumack and that he asked Mr Shumack whether consent would be granted, and that Mr Shumack said he would grant permission. Constable Coppen gave evidence he observed Constable Lyddiard make some notes in his notebook and that he observed Mr Shumack look at those notes and then sign the notebook.

11. Federal Agent Lyddiard, the officer in charge of the operation, says that he asked Mr Shumack whether he would consent to a search in relation to an allegation or a report that there were some insecure firearms and that

Mr Shumack agreed. He gave evidence that he advised Mr Shumack that he could withdraw his consent at any time and he wrote in his field book a note to the effect:

"I, Peter James Shumack, born 18 June 1954, hereby authorise and consent to members of the Australian Federal Police to search the storage of my firearms."

And invited Mr Shumack to sign that. And there is an exhibit before the magistrate in the field note book to that effect.

12. Mr Shumack denied that that occurred and says that he was not informed that he could withdraw his consent. He says that he was intimidated and apprehensive. There was evidence or some submissions made today that I originally took to indicate a threat, that police were threatening with firearms when this occurred, but that was withdrawn and I understand that relates to later events of the day. The magistrate accepted that he was satisfied beyond reasonable doubt that the police evidence was truthful and he did not accept Mr Shumack's evidence that he was asked to sign a blank notebook. It seems to me that he was perfectly entitled to do so.

13. To the extent that Mr Shumack says that the police were aggressive and he was intimidated, I make the observation that there was a transcript, a recorded transcript of the subsequent search process which occurred minutes after, if minutes, the police were granted entry to Mr Shumack's premises, and that was before the magistrate and appears in the Appeal Book, pages 97 and following.

14. And the entire tenor of that taped record of conversation is of a polite and co-operative exercise of the police search and there is nothing in there to indicate any intimidation or reluctance, and indeed it is consistent with the police evidence that Mr Shumack was polite and co-operative throughout the process.

15. I am entirely satisfied that the magistrate was correct to be satisfied beyond reasonable doubt that this was a consensual search. That is significant because it seems to me that a breach of desired police procedures occurred on this day and it is something that I would hope police would correct. S 76 of the Firearms Act provides that police may request the consent of a person to enter premises to make searches for the purposes of the Firearms Act. It requires that police before seeking consent need to advise the occupier that they can refuse to give the consent.

16. And then in s 76(2) it provides that if the police officer obtains the consent the officer shall ask the occupier to sign a written acknowledgment, (a) that the occupier has given the officer consent for that paragraph to enter the premises and to exercise the powers of the police officer under section 74(3), (b) that the occupier has been informed that he or she may refuse to give that consent, and (c) specifying the day and time when that consent was given.

17. The handwritten note written, I am satisfied, by Mr Lyddiard and signed, I am satisfied, by Mr Shumack in Mr Lyddiard's AFP field book, clearly falls short of the requirement of s 76(2). And Mr Todd, on behalf of the Director of Public Prosecutions, acknowledged that that was the case. I make the observation it would seem to be a simple process when police know that they are going to attend premises for the purposes of a Firearms Act search, it would seem to be a simple process to have a printed document which clearly complies with s 76(2) and which ideally expresses in plain English the thrust of that requirement.

18. That is to say, advising a person that they may consent to police entry, but that they may withdraw that consent at any time. And that could be given to a person and the person could be invited to sign it and it would remove this difficulty.

19. The section does not provide that if its strict form is not complied with the search is a nullity. On the contrary. S 76(3) provides that if it is material in any proceedings, for a court to be satisfied that there was consent and that there has not been a proper s 76(2) certification, and that is the case here, it shall be presumed that the occupier did not consent unless the contrary is established. That is to say, there would be a presumption that Mr Shumack did not consent.

20. I am satisfied on the evidence that is given below by Federal Agent Lyddiard and by Constables Brennan and Coppen, and by the handwritten note signed, I am satisfied, by Mr Shumack, that consent was in fact given. I am therefore satisfied that the search was appropriate. That I make the observation that the proceedings would have been significantly simplified if police had a simple form of certification under s 76.

21. It is the case that the police had in fact obtained in an apparently proper and regular manner a search warrant which would have authorised them to go ahead and conduct the search even if Mr Shumack had failed to consent. It seems to me that it is entirely proper when police attend premises armed with a search warrant for them to first seek a consensual search, and that is what, I am satisfied, happened here. And consent, I am satisfied, was properly given and in the consequence it was entirely appropriate for the police to not go through the process of formally executing the search warrant.

22. Mr Shumack is concerned and believes that there may be some conspiracy in the fact that the police records indicate that the search warrant was in fact executed. I am entirely satisfied that that was simply done to ensure that the warrant was no longer valid, the warrant effectively dies. The police, it seems to me, acted properly by first seeking consent, not relying on the search warrant, and then administratively indicating that the search warrant was no longer valid.

23. Once I am satisfied, as I am, the search was consensual, it seems to me that it follows on the evidence below that the offences were made out, because there was no real contest in relation to the factual finding. Although Mr Shumack made the point, and continues to make the point, that be believes that because his house was secured, and that the gun had been effectively disabled, there was no threat or damage. It seems to me that is not the way the legislation is structured, that it is an offence to have a firearm unsecured and not properly secured in the statutory form of secure container, even if the firing mechanism has been disabled.

24. The reason why the parliament constructed a law that way, it seems to me, would be that there is great mischief if even disabled firearms get out into the general community, because the reality is that young persons - and it is all too sad a reality, and we see it in these criminal courts sadly all too often, young persons will commit offences with replica firearms or disabled firearms. And the real potential tragedy is that a police officer on or off duty will see a person waving a replica or a disabled firearm around and not know and something could occur.

25. However, Mr Shumack also makes the point that he believes that the ACT legislation is invalid, but I am satisfied that it is, on its face, a valid enactment of the parliament. So I am satisfied that the appeal should fail in relation to the challenges to conviction. I take the notice of appeal however to also go to the exercise of the sentencing discretion. And it does seem to me that there are some problems in the way the sentencing discretion was exercised.

26. There was not a great deal of submissions in relation to sentencing it would appear to me. Save that his Honour was reminded that they were summary proceedings and the maximum penalty at the time was 50 penalty units, being $5,000.

27. His Honour was aware that Mr Shumack has been a sporting shooter for some 30 years. He has no prior criminal records for breaches in the firearms laws. On the contrary, he has always held a valid license and at the time of the search he had proper permits and properly registered firearms. And there were a number of such firearms. And I think there was some confusion as to whether he had 14 or whether he had 16. But in any event he was a proper lawful collector of firearms. Every firearm that he held at the time was properly registered. And the police evidence was that save for this one historic rifle, every registered fire arm that he owned was properly secured.

28. Mr Shumack gave evidence below and it seems that it was supported by the evidence of the police officer, that this historic long arm was in fact too big to fit and that is why it was not secured in the cabinet. And that he had, instead, disabled it.

29. It does seem to me that in dealing with the sentencing exercise for Mr Shumack, he really should have been dealt with as, not only a first offender, but a person who had really sought to do everything according to the law. He had been a long time lawful user of firearms. He had a permit for every weapon he possessed. Save for this historic weapon, which simply would not fit, every weapon was properly and securely secured. And the reason this one was not was that it was a long arm and it simply didn't fit in the secure cabinet that he had.

30. Mr Shumack was at the time unemployed and I have had some evidence about the circumstances of the termination of his employment and the long process of civil litigation that he has engaged in relation to that. While it is not relevant to the finding of guilt in relation to the offence, it does seem to me that it is relevant in relation to the sentencing discretion. And it is relevant in relation to the fact that he was not a person who had funds, perhaps, to buy the new secure cabinet to fit the weapon.

31. It seems to me that the penalty imposed, what the magistrate did was he noted that both offences carried a maximum penalty of $5,000. He fined Mr Shumack $1,100 in relation to the weapon and he forfeited the weapon to the Territory to be disposed of according to law. In relation to the ammunition he imposed a fine of $1,800, and the ammunition was forfeited to the Territory to be disposed of according to law. It does seem to me that in relation to two separate, but related offences, a total imposition of penalty of $3,000, which is 30% of the accumulation of the two offences, or if one looked at them globally as one episode of offending the principle of totality would suggest that the maximum penalty ought be lowered.

32. On one view almost about 60% of what one might impose on a totality basis is manifestly excessive for a man who otherwise is strictly complying, and has for a long time, strictly complied with the requirements of the Firearms Act. And true it is that there needs to be an element of general deterrence in relation to firearms offences. And certainly if one is dealing with unlicensed or unregistered firearms, that's particularly important.

33. But I am satisfied that Mr Shumack has always complied with his obligations in relation to registration and otherwise. The police evidence was that otherwise everything was properly secured. And the magistrate noted that in relation to Mr Shumack's argument that even if it was not in the cabinet, it was stored in a safe and secure position in a locked house. The magistrate noted that that was consistent with the police evidence, that it was, apart from not being in the cabinet, in a safe and secure position in a locked house in which he was the sole resident.

34. It seems to me that on those basis it is appropriate for me to interfere with the excise of the sentencing discretion. Mr Todd on behalf of the Crown did not demur from the proposition that it would be open to this court to intervene in relation to the sentencing exercise.

35. Given Mr Shumack's prior good record in relation to firearms offences. Given the unusual nature of these offences, that is to say that he has a large number of properly, or had at the time a large number of properly registered weapons, all of which had appropriate permits, and that the only reason this was not in the locked cabinet was that it wouldn't fit, and that he had taken appropriate steps to disarm the weapon by securing the firing mechanism in the locked cabinet, it seems to me that the penalty was manifestly excessive.

36. In relation to the ammunition, it seems to me that it is very much an oversight. Where he has secured the bulk of his ammunition properly, but had a number of rounds not secured. I would have taken a totality view of the two offences, and with a maximum penalty of $5,000 I would have regarded Mr Shumack very much as a first offender at a low end offence. I would impose a penalty of $500 in relation to each count also together with the court costs. It seems to me that the forfeiture of the weapon and the ammunition is entirely appropriate and a normal consequence of a breach of this Act and I will not interfere with that. But I will reduce the penalty from $1,100 in relation to the weapon count and $1,800 in relation to the ammunition count to $500 in relation to each count. There were 60 days to pay imposed by the magistrate, which of course is stayed pending this appeal, and I have retained that.

37. The effect of that, Mr Shumack, is that I've dismissed your appeal on conviction. I am satisfied that the police properly obtained consent and that there was a consensual entry to your premises. I am satisfied of that beyond reasonable doubt. I am satisfied beyond reasonable doubt that the weapon and the ammunition were not secured in accordance with the Act and therefore conviction must follow. I am, however, satisfied that given your history and your circumstances, the penalty was excessive and I would replace the total $3,000 penalty with a penalty of $1,000, $500 in relation to each count. So it would be $500 in relation to each count.

38. In relation to additional evidence I indicated at the outset one does not hear fresh evidence in a Magistrates Court appeal. And I heard you in relation to some of that material, none of it is relevant. So the notice of motion effectively I have not accepted. I have dealt with the appeal, as I must under the Act, on the evidence before the magistrate.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 24 March 2006

Counsel for the Appellant: Appellant in person

Solicitor for the Appellant: -

Counsel for the Respondent: Mr C Todd

Solicitor for the Respondent: Director of Public Prosecutions

Date of hearing: 24 March 2006

Date of judgment: 24 March 2006