Dawson v Tanwan [1999] QDC 289

DISTRICT COURT OF QUEENSLAND REGISTRY: CHARLEVILLE APPEAL NUMBER: 1 OF 1999 Appellant: RUSSELL IAN DAWSON AND Respondent: MARTIN JOHN TANWAN JUDGMENT - McGILL D.C.J. Judgment Delivered: 10 December 1999 Catchwords: FIRE, EXPLOSIVES AND FIREARMS - firearms - licences and related matters - regulation of possession - whether “physical possession” of firearm - Weapons Act 1990 s.60. FIRE, EXPLOSIVES AND FIREARMS - firearms - licences and related matters - effect of unrecorded conviction - Weapons Act 1990 ss 10, 18, 29; Penalties and Sentences Act 1992 s.12. R v. Beissel (CA 425/96, unreported) - distinguished R v. Briese ex parte Attorney General [1998] 1 Qd.R. 487 - followed R v. Gallagher ex parte Attorney General [1999] 1 Qd.R. 200 - applied and distinguished Council for the Appellant: P.S. Hardcastle Counsel for the Respondent: R. Swanwick Solicitor for the Appellant: Frank Jongkind & Co Solicitors for the Respondent:Director of Public Prosecutions Hearing Date: 26 October 1999 -- 1 of 16 -- DISTRICT COURT OF QUEENSLAND REGISTRY: CHARLEVILLE APPEAL NUMBER: 1 OF 1999 Appellant: RUSSELL IAN DAWSON AND Respondent: MARTIN JOHN TANWAN REASONS FOR JUDGMENT - McGILL. D.C.J. Delivered the 10th day of December 1999 This is an appeal pursuant to s.222 of the Justices Act from a decision of a Stipendiary Magistrate at Charleville who on 26 November 1998 found the appellant guilty of an offence under s.60 of the Weapons Act 1990 (“the Act”). The appellant had been charged that on 22 January 1998 at Morgan in the State of Queensland he had in his possession a weapon, a shotgun, and he did not securely store such weapon as prescribed in regulation 60 of the Weapons Regulations when such weapon was not in his physical possession. The Magistrate recorded the conviction and fined the appellant $150 together with $57 costs of court in default eight days imprisonment. By s.223 of the Justices Act, the appeal is by way of rehearing on the existing material. Neither party sought to supplement the transcript or exhibits. The Magistrate in his reasons for judgment recorded what he said were undisputed facts as follows: “At about 9.30 a.m. on 22 January 1998, police called at the home of the defendant in relation to other matters, the defendant’s wife had earlier left for work and the defendant had the responsibility of organising his household of young children. After answering detailed questions in relation to his possession of certain firearms, the defendant was asked if he had possession of any other firearms to which he volunteered that there was single barrelled Boito 12 gauge shot gun upstairs in pieces. The defendant then went upstairs to his bedroom with police following and reappeared with the firearm with the statement “It’s just an old shotgun I forgot to tell you about”. The defendant handed the weapon, in three pieces, to Detective Furlong. The defendant’s versions, simply put, is that the night before he had taken the shotgun out to shoot rabbits, upon his return his -- 2 of 16 -- 3 wife was asleep, he stored his firearms downstairs in the laundry but the keys to his gun cabinet were not in the usual place. He searched for the keys and decided, rather than waking his wife up, he would break the gun into three pieces and place the pieces in his bedroom on a high cupboard which could be accessed by standing on another piece of furniture. The dissembled weapon could not be seen by persons standing on the floor.” Section 60 of the Act provides: “A person who possesses a weapon must securely store the weapon in the way prescribed under a regulation when it is not in the person’s physical possession.” A penalty is provided. The term “possession” is defined in s.5 in wide terms, including having a claim to the custody of something which is temporarily committed to the custody of another and not in the control of the first person. There is, however, no definition of “physical possession”. There is no dispute that the appellant possessed the shotgun at the relevant time. Under the Weapons Regulation 1996, s.60 provides for a weapon when not in the person’s physical possession to be stored unloaded in a locked container, the bolt removed and the action broken. The regulation goes on to provide various specifications for the container. Section 60A provides for securing a weapon where a person is away from the person’s secure storage facilities, and s.61 deals with securing a weapon in a vehicle. It was not disputed that these requirements had not been complied with, and the issue was whether at the relevant time the appellant had the weapon in his “physical possession”. The Magistrate at p.5 said that the use of the word “physical” in this context imported touching, and went on to express the view that the words “physical possession” meant “holding the weapon, having the weapon strapped to your body or placed in a position so as to be capable of being immediately grasped by the possessor and that capability must be direct and absolute without impediment by an outside force or agent.” It was submitted on behalf of the appellant that this was not the correct interpretation of the expression in this context, and the term must have a wider meaning than that attributed to it by the Magistrate. The word “possession” is ambiguous: Halsbury, 4 th ed., vol. 35, para. 1111. It can have any of a wide variety of potential meanings, and it is particularly important to construe it in its context: Dayman v. Newsome [1973] Qd.R. 399 at 404. I think that the same approach applies to the -- 3 of 16 -- 4 term “physical possession”. It is clear that the Act contemplates “physical possession” will be something different from and more limited than “possession”, otherwise there would be no room for any operation of s.60. The other proposition that emerges from s.60 is that the legislature seems to contemplate that possession ought to be divided into physical possession and possession of a weapon stored in a way prescribed under a regulation. It is not clear how this fits with some of the elements of the extended definition of “possession” in s.5, and whether a weapon which is temporarily in the custody of another person must be securely stored on a way prescribed under a regulation otherwise the person having the claim of custody to it would commit an offence under s.60. In Sullivan v. Earl of Caithness [1976] QB 966, [1976] 1 All E.R. 844, a case concerning English legislation regulating possession of firearms, May J, with whom the other members of the Divisional Court agreed, drew a distinction between physical possession and constructive possession, the latter applying when the property was actually in the custody of another. This is similar to an analysis of the concept of possession which postulates that possession may be physical possession, legal (or constructive) possession and a right to possession, where physical possession is equated with actual, manual or de facto possession: R v. Martin [1948] O.R. 963 at 966. See also the distinction drawn by D M Campbell J in Forte v. Sweeney [1982] Qd.R. 127 at 130. If this approach were applied, almost any possession not falling within para. (c) and (d) of the definition of “possession” would be “physical possession” . There are some other sections of the Act which include reference to “physical possession” or something like it. Section 51 makes it an offence to “physically possess a knife in a public place” without a reasonable excuse, but subsection (2) provides a list of reasonable excuses which includes “for exhibiting the knife” and “for use for a lawful purpose”, and the section goes on to give examples of these. The examples in subsection (2)(c) is that “A person who collects knives may exhibit them at a fete or another public gathering” and one of the examples for subsection (2)(d) is that “A person may use a knife to prepare or cut food at a restaurant in a public place or when having a picnic in a park”. The use of those examples suggested in the situations described a person would be regarded as being in physical possession of the knives, although I would not expect that in either situation the knives would necessarily be in such a relationship to the person as to satisfy the test of “physical possession” proposed by the -- 4 of 16 -- 5 Magistrate. Section 52 provides that a minor who is at least 11 years may have physical possession and use of a weapon under certain circumstances, and s.53 speaks of a person having physical possession of a weapon at an approved range. Similarly, s.55 refers to physical possession of a weapon at a shooting gallery. Those sections in context probably contemplate a fairly restricted concept of “physical possession”. Section 54(2) provides that an agent, employee or member of the immediate family of a primary producer who holds a licence to possess a weapon may “physically possess or use” the weapon on the primary producers land in connection with carrying out primary production on the land, if the person assists the primary producer with primary production on the land, is eligible to obtain a licence to possess a weapon and only uses the weapon with the express consent of the primary producer. It seems to me that whatever the term “physical possession” may mean in this subsection, it clearly indicates that the legislature contemplated that a primary producer who possesses a weapon may have it in the physical possession of another for use, and it is difficult to reconcile such a provision with the terms of s.60 if the expression “physical possession” in a latter section is to be given as narrow interpretation as it was by the Magistrate in the present case. It is difficult to believe that the legislature intended that the agent, employee or member of the immediate family of the primary producer, when acting s.54(2), would only physically possess such a weapon if the primary producer who held the licence was continuously either touching the weapon or in a position to seize it immediately, otherwise the primary producer could commit an offence. It is plain from the definition of “possession” in s.5 that the primary producer would be still in possession of the weapon notwithstanding that it was physically possessed by an agent, employee or member of the primary producer’s immediate family under s.54(2). Section 55A provides that a person may have physical possession of and use a weapon supplied by a theatrical ordinance supplier under s.118 if the use is personally supervised by the supplier. Section 115 provides for theatrical ordinance suppliers to be licenced for the purpose of supplying weapons or replicas of weapons in the production of a theatrical, motion picture or television production, and permits the holder of such a licence to supply a weapon under the licence to a person only for the purpose of the persons using the weapon in a theatrical, film or television production. The use and supervision by the person to whom it is supplied under s.118, whose physical possession is made lawful by s.55A, is regulated by s.119. The legislation -- 5 of 16 -- 6 therefore plainly contemplates that a person who possesses a weapon as a licenced theatrical ordinance supplier may allow that weapon to be in the “physical possession” of a person for use in a theatrical, film or television production, so long as that use is “personally supervised”. Again, it is difficult to imagine that the legislature intended that such the licenced theatrical ordinance supplier was actually touching the weapon continuously, or was continuously in a position to be able to seize the weapon. If the weapon were being used in a theatrical production, it would almost make in necessary for the licencee to be on the stage, and it is difficult to see how a script could be accommodated if it called for the weapon to be concealed somewhere for the purposes of the plot. It is also obvious that the legislature did not intend that the weapon be “securely stored” while it is in use pursuant to these provisions. It must follow that s.60, in order to be consistent with this and other provisions to which I refer, must be construed in such a way that would not prevent these provisions of the legislation operating in the way which was plainly contemplated by the legislature. That can only occur if the supplier who is personally supervising the physical possession of another person for use in a theatrical, film or television production under s.55A and provision 7 of Part 4 is treated as being in “physical possession” of that weapon. There are other provisions similar to s.54 which contemplate that a person other than a licencee may properly have physical possession of a weapon. Section 69 provides for armourers to be licenced, and by subsection (3) permits the licenced armourer or the agent or employee of such a person to carry, discharge, possess, repair and store weapons on the premises specified in the licence. Section 70 also contains provisions for an employee of a licenced armourer to possess an employer’s weapon in the course of employment. Plainly, it is contemplated that a licenced armourer may have employees or agents who are expected to be able to do various things with the weapons on the armourer’s premises. Again, it is difficult to imagine that the intention of the legislature was that, notwithstanding these specific provisions, the armourer would still commit an offence under s.60 in respect of any weapons that he had on his premises which were not either securely stored or so close to him that he could personally seize them at any moment. Again, I think the clear indication is that the armourer was to be regarded as being in physical possession of the weapons which were on his premises, whether they are being actually carried or worked on by him or by some agent or employee. The position is similar in relation to dealers. The expression “physical possession” is also used in s.58 and 59, 108(2), 110(1), 127(2) and -- 6 of 16 -- 7 133(b), but these provisions either do not throw any particular light on the meaning of the expression, or would be consistent with a narrow interpretation of the expression. There are a number of different terms used in the Act referring to aspects of possession apart from “physical possession”. The definition of that word includes the terms “custody” and “control”, s. 56(3) refers to a person carrying a weapon on private land, and s.57 refers to carrying a weapon in a public place. There is authority in other States that a person may “carry” a weapon even if it is not actually held by him or on his person. In Coleman v. Zanker (1991) 58 SASR 7, it was held that a person could be said to “carry” a knife if he was in the front of a vehicle and the knife was also in that part of the vehicle, but not if the knife was in the back of the vehicle when “he could, given time, get it and arm himself with it”. In that case as well, His Honour drew a distinction between possession constituted by “physical possession or custody” and where it was constituted by having something in “immediate physical dominion or control ... The crucial ingredient is the right of an practical capacity for control, rather than a mere geographical nexus”. That suggests the same sort of distinction as the one drawn in Sullivan (supra). That decision was referred to by the Full Court of Western Australia in Roddan v. Walker (1996) 17 WAR 277. It was said there that: “A person who is in control of a car with a gun in the glovebox, knowing it to be there, carries the gun. There is a sufficient degree of proximity and control to enable it to be said of the gun that it is being carried by the person, although not actually on his person.” I think that this decision serves to emphasis the importance of considerations of proximity and control rather than whether or not there is, for example, actual touching. The object of the Act is stated in s.3(2) as “to prevent the misuse of weapons”. With a view to achieving this it imposes strict controls on the possession of weapons and requires the safe and secure storage and carriage of them, with a view to ensuring public and individual safety. It seems to me that it would be consistent with this object, and promote it, if s.60 were interpreted so that a person was regarded as in “physical possession” of a weapon possessed by that person while that person was in a position to be able to be personally responsible for prevention of misuse of that weapon. Certainly a person who was actually carrying a weapon, or being sufficiently close to the weapon to be able immediately to grasp it would be in such a position, but I think that it is not necessary for a person to be that close to a weapon to be in a position -- 7 of 16 -- 8 where one is effectively able to prevent misuse. There are of course limits to the ability to prevent misuse; another person who is physically stronger, or a group of other people, may well be able to secure control of a weapon from the licensee in such circumstances, but the same would apply even if the licencee were holding the weapon in his hand, so that in itself is not a reason for disregarding this approach. I think it is difficult to adopt a particular meaning of “physical possession” which necessarily applies wherever that term is used throughout the legislation. In some sections the approach adopted by the Magistrate may well be appropriate, but I think the analysis that I have given is sufficient to show that it is in the light of other provisions of the legislation, too restrictive when applied to s.60. The rule that a particular expression is to be construed consistently throughout a statute is not a particularly strong rule of interpretation: Pearce and Geddes “Statutory Interpretation” 3rd ed., p.66. I think that it is weakened further by the circumstance that the term is not defined in this Act, which perhaps may be a recognition that it does not always have a consistent meaning, and by the circumstance that this Act is not particularly well drafted anyway. I have in other judgments already commented on various deficiencies of drafting of this legislation, but perhaps the best example of bad drafting is in s.34A which as it stands is meaningless. Meaning can only be given to it by interpreting the word “section” to mean “part”, not an interpretation which would normally be applied to that word. In such circumstances, I do not think that rules of interpretation which presume that statutes have been drafted with care and precision are likely to be of much use interpreting this Act. One other drafting deficiency to which I have already referred is that s.60 does not seem to accommodate the example of possession falling under para.(d) of that definition in s.5. If a licencee takes his firearm which he lawfully possesses under his licence to a licenced armourer for the purpose of having it repaired, the licencee will still be treated as being in possession of the firearm while it is in the custody of the armourer, but apparently will commit an offence under s.60 whenever the weapon, while in the custody of the armourer, is not either securely stored or in the licencee’s (i.e. not the armourer’s) physical possession. Does this mean that a person who wants to have his weapon repaired by an expert is expected to stand beside the expert the whole time the expert is doing the job? It does not seem to me that the express object of the legislation requires such a thing to be done. It is not immediately obvious however how this -- 8 of 16 -- 9 difficulty can be overcome other than by reading into s.60 a significant implied exclusion not indicated by or supported by any of its express terms. That, in my view, would not be a process of construction, but rather a process of amendment, which is not the function of a court. Fortunately this issue does not arise in this case. It was submitted on behalf of the appellant that the expression “physical possession” was akin to “actual possession”. Reliance was placed on McKay v. Gangell [1952] Tas.S.R. 31 where it was said that: “A man may be in actual possession of a thing which is out of his hands, out of his reach and out of his sight and in a different room in a house from that in which he himself is. An occupier of premises is found in possession of goods recovered in an outbuilding of premises by a police officer making a search with the occupier.” One can see the force of that submission, although the expression “actual possession” has been given a somewhat wider context in other cases. It has been said that a person has actual possession of empty premises or of chattels which are locked up within a building or in a package of some sort by retaining the key to those premises: Thomas v. Metropolitan Housing Corporation Ltd [1936] 1 All E.R. 210 at 216. It has also been said if a man buys an empty house though he never goes inside it he is in actual possession of it: Mouser v. Major [1941] 1 KB 477 at 485. I do not think that the intention of the legislature was that a person would be regarded as being in physical possession of a weapon if it was inside a house which he had otherwise not gone inside of, even if the house was locked and he was in possession of a key. It may be that the term “actual possession” is wider than the concept of possession which His Honour had in mind in McKay v. Gangell (supra). That approach may have the support of two more recent cases. In Keys v. Kitto (1996) 90 A.Crim.R. 288, it was held that a person who had a gun stored in a shed on his property, it having been left there with his consent by another person for safekeeping, had “custody or control” of it, even though he only was in occupation of the premises at the weekends. That case did not involve consideration of whether that person had “physical possession”. In Yates v. Hoare [1981] VR 1034, a woman who was licenced to possess a firearm left it under the bed when she separated from her husband, it having been left there for the practical reason that, as His Honour said, it was not convenient for her to take it with her while -- 9 of 16 -- 10 she was travelling with her child on a tram. Her husband who was left in occupation of the flat, knew that the gun was there but simply left it alone. It was held that he had the firearm in his “physical custody and under his control” essentially on the basis that he was living in the flat and it was physically present in the flat to his knowledge, with the consequence that he was deemed to be in possession of it by a particular provision of the relevant legislation. In the course of considering some authorities, it was said that the expression “actual physical possession” which appeared in the Victorian statute had the same meaning as the concept “actual possession” as it was explained in Moors v. Burke (1919) 26 CLR 265 at 274: “Having actual possession means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it and so have manual custody when he wishes.” At first glance that sounds rather like a test applied by the Magistrate. However, that case involved a quantity of wool which was found in a locker in a shed on the Melbourne wharves which was under the control of Customs, and was used by the defendant, a customs officer and at least one other customs officer. When applying this test, Isaacs J said: “The wool, placed in the locker by Moors, had ceased to be in his actual possession, because, though it was in the locker, the locker itself was not ... a receptacle belonging to him or under his control, nor had he the exclusive means or right of opening it and obtaining the contents. Another customs clerk had equal right and power with Moors, and independently of him, to open the locker and take out its contents. The wool was, therefore, at the crucial moment, not in fact in the actual possession of Moors and the prosecution necessarily fails.” It seems to follow that if the locker had been for the exclusive use of Moors he would have been regarded as having its contents in his “actual possession” even when he was not actually at the locker. The reference to “taking any further step” was obviously not a reference to a physical step. In His Honour’s judgment there is some discussion of the difficulty in defining and establishing possession in various situations. I think His Honour’s approach may provide some support for my conclusions in the present case. In my opinion, the interpretation of “physical possession” adopted by the Magistrate was unduly restrictive, and does not reflect the proper construction of that term in this section of the statute. -- 10 of 16 -- 11 In my opinion, for the purposes of s.60, a person will have physical possession of a weapon not only if it is worn or carried or able to be immediately grasped, but whenever that person has possession of that weapon and is in sufficient physical proximity to that weapon to be able to exercise effective personal control over it, so as to be in a position to be responsible for the prevention of misuse of it. How that will operate in a particular case will depend on all the circumstances of the case, and no doubt will commonly involve matters of degree as well as questions of fact: Coleman v. Zanker (1991) 58 SASR 7 at 14. I would think, for example, that a licenced dealer or armourer who had licenced premises and who was personally at those premises would be in physical possession of the weapons in those premises, and a primary producer whose weapon was being used by an agent, employee or member of his immediate family in accordance with s.54 of the Act would be in physical possession of the weapon, at least when he is personally present on the land referred to in the section. The present case is concerned with a weapon which was in the appellant’s house when the appellant was physically present in or at the house. He was therefore in a position immediately and directly to go to where the weapon was and take it into his hands, and was in a position personally to be responsible for it. I do not think that that situation changed merely because he went downstairs in order to speak to the police officers when they arrived. I was told that the house was a high set house, and I think that someone who was under or immediately adjacent to the house, in the context applying here, should be regarded as being still in physical possession of the weapon in the house. It follows in my opinion that the appeal should be allowed, the conviction quashed and the complaint dismissed. Recording A Conviction That makes it unnecessary for me to consider another issue which arose in the course of argument, as to the question of the sentence that was imposed, but having heard argument on it, and particularly in the light of one of the submissions which was made by counsel for the respondent, I think it is appropriate that I say something about the Magistrate’s decision to record a conviction. Under s.10(6) of the Act, a licence may not be issued to an individual if that individual has, within the five year period immediately before the day he applies for the issue of a licence is being convicted of inter alia, “an offence involving the use, carriage, discharge or possession of a weapon. Assuming that offence in s.60 of the Act falls within that category, the -- 11 of 16 -- 12 effect of recording a conviction therefore would be that the person would not be entitled to apply for a licence under the Act for the next five years. Since the amendment to s.18 to insert subsection (8), the same would apply to an application to renew an existing licence. Furthermore, there is by s.28 a discretion in an authorised officer to suspend a licence if a person is charged with an office involving the use, carriage, discharge or possession of a weapon, and in s.29 a discretion to revoke if a licencee is convicted of an offence involving the use, carriage, discharge or possession of a weapon. Section 28 and 29 confer a discretion, so that it would be wrong for an authorised officer to apply them on the basis that the discretion will necessarily and automatically be exercised against the licencee in every case where it arises, but given the provisions of s.12 and s.18, I think it would be reasonable to expect that it would not be unusual for a conviction for such an offence to result in revocation of any licence held. It was submitted that such a course was open even if the conviction were not recorded. In my opinion, this is contrary to s.12 of the Penalties and Sentences Act, which provides that except as otherwise expressly provided by this or another Act, a conviction without recording a conviction is taken not to be a conviction for any purpose: subsection (3)(a). There is no express provision in the Weapons Act 1990 to the contrary, and the first example given for s.29(3) plainly contemplates that that result will apply to the operation of s.29. The result is, in my opinion, is that if a conviction is not recorded, it is not to be taken into account at all for the purposes of s.10, s.18 or s.29. Under s.12(2) of the Penalties and Sentences Act 1992, the court is to exercise the discretion whether or not to record a conviction having regard to all the circumstances of the case including the nature of the offence, the offenders character and age, and the impact that recording a conviction will have on the offender’s economic or social well-being or chances of finding employment. Where the effect of a statute is that recording a conviction will necessarily prevent the offender obtaining or renewing a firearms licence, and is likely to result in the prompt revocation of the firearms licence he already holds, that, in my opinion, is likely to be a relevant factor when considering the exercise of discretion, although its significance will obviously vary considerably depending on the circumstances of the offender. For example, a person whose sole source of income necessarily involves the use of a fire arm, such as a professional kangaroo shooter, would as a result of recording a conviction necessarily lose that employment, either -- 12 of 16 -- 13 immediately or when the licence next fell due for renewal, and would be prevented from carrying it on for five years or the balance of that period. For someone who had no training or experience for any other line of work, that could be a very substantial punishment, and could cause substantial hardship to other people, such as that person’s dependents. Such circumstances would obviously impact on that person’s economic well-being and chances of finding employment, and it would also mean that recording a conviction would be a much more severe punishment to such a person than would be the case for a person who did not hold a licence under the Weapons Act 1990, or for whom any licence held was of no economic significance. A person who held a licence because of an occupational requirement for rural purposes under s.11(c) of the Act would, I think, be likely to be in a similar position. These, in my opinion, are plainly relevant factors which should be given due and careful consideration when exercising the discretion provided for by s.12. In addition, the fact that certain consequences follow automatically under the Weapons Act is, I think, a relevant consideration, because it distinguishes such a situation from one where the ultimate fitness to hold a particular licence is a matter of discretion and the implications of the conviction become matters for assessment by the licencing authorities. If a licence will not necessarily be lost as a result of recording a conviction, this is a matter which is relevant to the exercise of the discretion under s.12, but where the person will necessarily be unable to hold a licence, as a result of the prohibition on renewing or obtaining a licence, and is likely therefore also to lose the licence under s.29, it is, I think, appropriate for the court to approach the matter on a somewhat different basis, because it is the exercise of the discretion under s.12 which will directly determine whether or not those consequences follow for the person being sentenced. Reference was made on behalf of the respondent to the decision of the Court of Appeal in R v. Beissel (CA 425/96, unreported, delivered 12.11.96). In that case the applicants were convicted of three counts of participation in the provision of prostitution and a conviction was recorded and a fine of $10,000 imposed. The applicants were the licencee and manager of a hotel at which activities which amounted to sexual acts took place. One of the issues considered was whether it was appropriate to record a conviction. The court there said that it was not appropriate on the appeal to take into account evidence that recording the convictions would be likely to prejudice the applicants in making or continuing to make a career either in the hotel industry or an industry -- 13 of 16 -- 14 regulated under the Auctioneers and Agents Act. In that case, the court said that it was not appropriate to refuse to record a conviction in order to “minimise the seriousness of these offences with a view to influencing a government instrumentality like [the liquor licencing authority] to disregard or overlook the offences”. The court went on to point out that it would be relevant to such a body to consider whether what was in fact done by the applicant in committing the offences rendered him unsuitable to be admitted to or remain in the particular occupation in question. I think that it is important to bear in mind two things in relation to this judgment. The first is that the court was plainly of the view that the particular circumstances of the offences for which the applicants were convicted justified recording of convictions and were matters which ought properly to have been taken into account by the relevant authorities when deciding licencing issues. The court also expressed a view that the conduct the subject of the offences, as distinct from the fact of conviction, would be relevant factors for those licencing authorities to take into account. It was, I think, in that context that McPherson JA said: “A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded ... ”. I do not think that His Honour was intending by that statement, which is with respect plainly correct, to say anything which detracted from the plain meaning of s.12(3) of the Penalties and Sentences Act. The effect of that section was discussed in some detail by the Court of Appeal in R v. Briese Exhibit parte Attorney General [1998] 1 Qd.R. 487, and in R v. Gallagher ex parte Attorney General [1999] 1 Qd.R. 200, particularly from p.203, where reference was made to provision in s.29 of the Auctioneers and Agents Act 1971 which provided that in certain circumstances a licence under that Act was “deemed to be ipso facto cancelled” if a person was convicted of a particular type of offence, whether or not a conviction was recorded. In such a circumstance adverse consequences to the defendant flowing from the cancellation of a licence were not relevant to the decision whether or not to record a conviction, since they would occur in any event. Such a provision, in my opinion, stands in contrast to the provisions in the Weapons Act 1990. In s.10(6), s.18(8) and s.29(1)(b), it is conviction of the offence rather than the conduct in committing the offence which activates the statutory provision, and there is no provision which -- 14 of 16 -- 15 says that this occurs whether or not the conviction is recorded, so nothing to exclude the consequence provided by s.12(3) of the Penalties and Sentences Act that a conviction without recording a conviction is taken not to be a conviction for the purposes of these provisions. I think that distinguishes the present situation from the case considered by the Court of Appeal in Gallagher (supra). The Magistrate in the present case said that having regard to the facts of the case he was imposing a “nominal penalty” and imposed a fine of $150. He said that this was done mainly as a deterrent to others. This suggests that he did not regard the offence as a particularly serious example of conduct which would amount to an offence under s.60, which I think in the circumstances was appropriate given the precautions that the Magistrate accepted had been taken and the appellant’s frankness with the police. The Magistrate’s approach seems to have been that the appellant had taken precautions which were objectively reasonable, but were not in conformity with the requirements of the regulation. Nevertheless, he said that in view of the previous convictions weighed against the circumstance of the case he felt he must record a conviction. The previous convictions were one in 1986 for possession of an unbroken firearm, and one in 1994 for discharging a weapon on private property without consent. The 1986 offence was committed before there was a discretion under s.12 of the Penalties and Sentences Act 1992, and the 1994 offence cannot have been very serious because a fine of $200 was all that was imposed. That offence was committed prior to the amendments to the Weapons Act effected by the Weapons Amendment Act 1996, by which the absolute bar provision following from conviction of certain offences was introduced into the Act. With all due respect to the Magistrate, I find it very difficult to see why what seems to be a very modest criminal record outweighed the factors tending against recording a conviction, particularly in the circumstances where the appellant was a professional kangaroo shooter who would, as a result of recording the conviction, be thrown out of that work for most if not all of the next five years. It seems to me that to record a conviction in these circumstances is outside the range of the proper exercise of discretion conferred by s.12. Even if I had been satisfied that the appeal against conviction should be dismissed, I would have allowed an appeal against sentence for the purpose of varying the sentence so as not to record a conviction. -- 15 of 16 -- 16 The consequence is that the appeal is allowed, the conviction is quashed and the complaint is dismissed. It was agreed at the hearing that there would be, in these circumstances, no order as to the costs of the appeal. Counsel for the appellant: P.S. Hardcastle Counsel for the respondent: R. Swanwick Solicitor for the appellant: Frank Jongkind & Co. Solicitor for the respondent: Director of Public Prosecutions Date of Hearing: 26 October 1999. -- 16 of 16 --