Sentencing Bench Book — Particular offences

The section discusses offences relating to the use, possession, manufacture, purchase and supply of firearms and other weapons in New South Wales under the following Acts:

Although the commentary in this chapter is organised by reference to particular offences, it is clear from the caselaw that general sentencing principles, particularly in relation to deterrence and assessing objective seriousness, may apply regardless of the particular offence.

The Firearms Act 1996 (the Firearms Act) repealed the Firearms Act 1989 and was introduced as part of a national campaign to implement firearms control following the Port Arthur massacre: R v Cromarty [2004] NSWCCA 54 at [15]; Luu v R [2008] NSWCCA 285 at [32]. Offences in the Firearms Act regulate the unauthorised possession, use, purchase, manufacture and supply of firearms. In the Second Reading Speech introducing the Firearms Bill, the then Police Minister explained the rationale for the new offences: “This legislation puts the public’s right to safety before the privilege of gun ownership.” (NSW, Legislative Assembly, Debates, 19 June 1996, p 3204.)

The Firearms Act stipulates principles and objects at s 3 “which the courts must seek to implement” (R v Tolley [2004] NSWCCA 165 at [53]); which require “strict control” (R v Cromarty [2004] NSWCCA 54 at [67]); Luu v R [2008] NSWCCA 285 at [32]); and “strict adherence” (Cramp v R [2008] NSWCCA 40 at [52]). Section 3 provides:

Depending on the nature of evidence concerning an offender’s mental state, issues of public safety arising from the possession of a loaded pistol may justify a significant allowance for personal and general deterrence when considering an appropriate sentence: Thalari v R (2009) 75 NSWLR 307 at [93].

Section 4(1) of the Act defines a firearm as “a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive”. The definition includes a blank fire firearm or air gun, but not anything declared by the regulations not to be a firearm (Firearms Regulation 2017, cl 4).

“Prohibited firearm” means a firearm described in Sch 1: s 4(1). “Pistol” and “prohibited pistol” are defined separately in ss 4 and 4C. The primary difference between the two is calibre size and pistol length.

Any collection of component parts that, if assembled, would be a firearm or prohibited firearm (or would be a firearm or prohibited firearm if it did not have something missing, or a defect or obstruction in it, or if it were not for the fact something has been added to it) is taken to be a firearm or prohibited firearm: s 4(2)(c).

Special provisions related to imitation firearms are in s 4D. An “imitation firearm” does not include any object produced and identified as a children’s toy: s 4D(4). See Darestani v R (2019) 100 NSWLR 461 at [60]–[67] which considers the operation of the exception.

Part 2 Div 1 of the Act is headed “Requirement for licence or permit”. The Division contains two sections, ss 7(1) and 7A, each with at least two substantive offences.

“A person must not possess or use a firearm unless authorised to do so by a licence or permit”: s 7A(1). The maximum penalty is 5 years imprisonment. No standard non-parole period is specified.

“A person must not possess or use a pistol or prohibited firearm unless authorised to do so by a licence or permit”: s 7(1). The maximum penalty is 14 years imprisonment. A standard non-parole period of 4 years applies.

Offences related to the registration of firearms are in Pt 3, Div 2 of the Act. “A person must not supply, acquire, possess or use a firearm that is not registered”: s 36(1). The maximum penalty, if the firearm concerned is a pistol or prohibited firearm, is 14 years imprisonment. A maximum penalty of 5 years applies in any other case.

The offences under ss 7A(1), 7(1) and 36(1) are Table 2 indictable offences that are to be dealt with summarily unless the prosecutor elects otherwise: Sch 1 Table 2 Part 4 Criminal Procedure Act 1986. JIRS sentencing statistics reveal that summary disposition is the most frequent mode of dealing with possession offences where it is the principal charge. A court dealing with an offence on indictment may have regard to the fact the offence could have been dealt with summarily but only in the circumstances outlined in Zreika v R [2012] NSWCCA 44 at [107]–[109].

Where an offender is convicted of unauthorised possession of a firearm under ss 7–7A Firearms Act and also convicted of discharging that firearm under s 93G Crimes Act, these should be regarded as distinct offences with separate criminal elements and generally not part of one course of conduct: Rickaby v R [2007] NSWCCA 288 at [17]–[19].

Johnson J referred to the policy reasons behind s 7(1) Firearms Act and matters relevant to the seriousness of the offence in Ayshow v R [2011] NSWCCA 240 at [64]–[73].

The importance of assessing the seriousness of an offence by reference to the principles and objects set out in s 3 was addressed in R v Tolley [2004] NSWCCA 165 where Howie J said at [53]:

Latham J said in R v Krstic [2005] NSWCCA 391 at [14] that “the policy of the legislature evinced by the enactment of the offence and a maximum penalty of 14 years imprisonment is to deter and punish possession of firearms per se”. See also R v AZ [2011] NSWCCA 43 at [73].

Part of the rationale behind s 7(1) was explained by Hulme J in R v Najem [2008] NSWCCA 32 at [40]:

The importance of giving full weight to the intent of the legislature, when the offender was a member of a criminal gang and prohibited by a firearms prohibition order from possessing a firearm, was addressed in Chandab v R [2021] NSWCCA 186 at [81] where Wilson J said:

An offender’s criminality is more serious where he or she possesses a firearm as part of their involvement in crimes such as trading in illegal drugs: R v Amurao [2005] NSWCCA 32 at [69]; R v Mehcur [2002] NSWCCA 56 at [25]; Luu v R [2008] NSWCCA 285 at [32]; R v AZ at [76]; SY v R [2020] NSWCCA 320 at [30]; and serious assaults: R v Najem [2008] NSWCCA 32 at [41]. In Amurao, Hulme J said at [69]:

Possession of a concealed weapon, such as a keyring pistol which was not capable of lawful use, is a significant offence: R v AZ at [77]; Cao v R [2013] NSWCCA 321 at [35].

The court in R v Najem held that the judge was correct in implicitly accepting that the respondent’s criminality was exacerbated by the fact that the pistol was loaded, in his possession, and available for use at the scene where a violent crime was carried out (by a co-offender): at [42].

The unauthorised possession of a loaded firearm that has had its serial number removed may be consistent with it being used for criminal purposes: Yang v R [2007] NSWCCA 37 at [18]; see also Chandab v R at [75]. It is impermissible, however, to sentence an offender on the basis that their possession was for an illegal purpose that would have amounted to a more serious unproven offence. This would infringe the De Simoni principle: R v Thurgar (unrep, 17/12/90, NSWCCA); R v Harris [2001] NSWCCA 322 at [37]–[38]. However, a finding that an offender must have known it was likely prohibited weapons and firearms would be used in connection with serious criminal activity did not infringe the De Simoni principle and was “plainly inescapable”: KC v R [2009] NSWCCA 110 at [10].

The court in Atkinson v R [2014] NSWCCA 262 held (by majority) that the sentencing judge had not erred in finding the possession of two pistols for the criminal enforcement of debts was within the “worst case” category (as that concept was understood before The Queen v Kilic (2016) 259 CLR 256): Atkinson v R at [2], [86]. Simpson J, at [4], regarded the applicant’s argument that he acquired weapons for on-sale as superfluous: possession for on-sale (which would clearly have been to the criminal milieu) was no better or worse than possession for criminal activity.

In Z v R [2015] NSWCCA 274, it was not an error for the sentencing judge to have regard to the applicant’s membership of, and participation in, an outlaw motorcycle gang, and his possession and use of firearms as a means to advance the perceived interests of that gang. The context of the applicant’s possession of a loaded and unsecured firearm was a relevant sentencing consideration: at [99]–[100]; see also Raniga v R [2016] NSWCCA 36 at [43].

Possession even for non-criminal purposes is generally not regarded as a matter in mitigation. The fact possession of a prohibited firearm is for personal protection is not a matter of significant, if any, mitigation: R v Krstic at [14]. Similarly, in R v AA [2006] NSWCCA 55, the respondent had possession of a prohibited pistol for self-protection following a severe assault. Rothman J stated at [46]:

The principles in Krstic and AA were applied by the court in Thalari v R (2009) 75 NSWLR 307 at [88]. See also Chandab v R at [58]–[60] ] where Wilson J concluded that the principles in AA and Thalari should be given particular weight when the offender was precluded by a firearms prohibition order (see s 73) from having firearms and was also a member of a criminal gang.

In Thurgar, the offender offered no innocent explanation for possession of a pistol and failure to obtain a licence. In these circumstances Gleeson CJ said, “The judge was entitled to infer that such failure was deliberate”: at [117]. Some weapons, by their nature, preclude an offender from offering an innocent explanation. For example, there is no legitimate purpose for possessing a sawn-off shotgun: R v Harris, above, at [38]; Alrubae v R [2016] NSWCCA 142 at [37].

In Do v R [2010] NSWCCA 182, the offender was in possession of a loaded and unsecured pistol in an urban area. The possession of the pistol created a high risk to the safety of the public and arresting officers even though it was not used. The court concluded, at [23], that the objective seriousness of this offence was very high: see also the related matter of Tran v R [2010] NSWCCA 183.

An offender’s criminality is not necessarily affected by the length of time of their possession of the firearm. However, a very short period of possession may, in the circumstances of a case, reduce the seriousness of the offence: R v Goktas [2004] NSWCCA 296 at [26].

A firearm loaded with live rounds of ammunition may aggravate the seriousness of the possession: R v Mitchell [2002] NSWCCA 270 at [14]. In Gall v R [2015] NSWCCA 69, the offender’s possession of a readily available, unsecured and loaded firearm in a domestic dwelling was a serious example of a s 7(1) offence, particularly given his son had killed a person with a firearm seven months earlier: at [222], [244]. By way of contrast, in Barnes v R [2022] NSWCCA 40, it was unfair for the sentencing judge to regard the fact ammunition of a similar calibre was found with the firearm (a sawn-off .22 rifle) as an aggravating factor when there was no evidence the ammunition could be used with the firearm and no evidence the firearm was in working order: at [59]–[60]. The offence in that case was one of possessing a shortened firearm contrary to s 62(1)(b).

It is a matter in aggravation where the unauthorised possession enables others in the community to make use of the firearms even though such a result is unintended: Cooper v R [2005] NSWCCA 428 at [20]. In Cooper, although the sentencing judge found the offender stole two pistols and three revolvers because the owner threatened to shoot the offender’s cousin, and the offender said he intended to dispose of them safely, Barr J nonetheless described the offences as “serious ones of their kind”: at [20].

Pointing a loaded pistol is a very serious offence — more so when the holder is intoxicated, suffering from a lack of judgement and is aggressive: R v Do [2005] NSWCCA 183 at [25]–[27]. Considerations of general deterrence and retribution require a substantial sentence for such conduct, especially where the pistol is actually used and serious injury is caused: at [27].

In Cramp v R [2008] NSWCCA 40 the offender, a proprietor of a firearms and security business, held a number of licences under the Act permitting him to possess and use various forms of firearms. Police conducted a firearms and security industry audit and found he was in possession of two pistols which were used in the security part of his business. Neither had been the subject of test firing and one was unregistered. The conviction and imposition of a s 9 bond for the s 7(1) offence had the effect that the applicant’s licence for other firearms may not (as opposed to will not as erroneously submitted, see [45]–[47]) be renewed by the Commissioner of Police. The court held that the judge did not err in deciding not to impose a s 10 dismissal without conviction: at [48], [52]. The offences could not be characterised as trivial within the terms of s 10; nor were they “technical and clerical” in nature: at [44].

While extra-curial punishment can be taken into account in an appropriate case, it would be wrong for a court to impose a s 10 dismissal without conviction calculated to circumvent or influence the exercise of discretions of other statutory office holders responsible for the licensing provisions under the Act: Cramp at [51]. Rather, it is of fundamental importance that strict adherence to the firearms legislation be enforced. It is appropriate, if not inevitable, that a conviction be imposed: Cramp at [52]. Hulme J dissented (at [7]) on this aspect of the case:

Cumulative sentences may be warranted where there are separate offences of possession under s 7(1) and the removal of a serial number: R v Amurao at [73]. As to setting an aggregate sentence see [7-505].

A person who manufactures a firearm, without being authorised by a licence or permit, is liable to a maximum of 10 years imprisonment: s 50A(1) Firearms Act. The maximum increases to 20 years where a person manufactures a pistol or prohibited firearm: s 50A(2). A standard non-parole period has not been been assigned to either offence. Given the definition of “manufacture” in s 50A(5) of “assemble a firearm from firearm parts”, the criminality encompassed can extend from a very sophisticated operation at the one end of the spectrum to a relatively minor adjustment to a pre-existing firearm at the other: Truong v R [2013] NSWCCA 36 at [111]. A relevant factor in determining the objective seriousness of a particular offence is whether the firearm is in working order: Truong v R at [111]. Manufacturing offences which were committed as part of a small scale business to make and sell seven firearms, including two sub-machine guns with “devastating firing capabilities”, were regarded as very serious in Smart v R [2013] NSWCCA 37 at [36]. This was particularly so where the manufactured sub-machine guns were destined for sale and, if they had been sold, two extremely dangerous weapons would have been delivered into the community, probably the criminal fraternity: Smart v R at [36].

Section 51D prohibits the possession of more than three firearms if the firearms are not registered and the person is not licensed to possess them. The basic offence under s 51D(1) attracts a maximum penalty of 10 years imprisonment.

Section 51D(2) provides a higher maximum penalty of 20 years if a person is in possession of more than three firearms any one of which is a pistol or prohibited firearm. A standard non-parole period of 10 years imprisonment applies.

In the Second Reading Speech to the Bill which introduced the standard non-parole period for s 51D(2) and several other firearm offences, the Attorney General stated (NSW, Legislative Council, Debates, 17 October 2007, p 2667 at 2668):

Spigelman CJ explained the rationale behind s 51D in R v Brown [2006] NSWCCA 249 at [21]–[22]:

Sentences imposed for such offences must reflect the legislative intention expressed in the Act, which is to eliminate firearms from the community unless their possession is expressly authorised, and “operate as real disincentives to those otherwise attracted to the illegal possession of firearms”: R v Mahmud [2010] NSWCCA 219 at [71]. There is no discernible range of sentences for offences against s 51D(2) given the small number of decided cases: Yammine v R [2010] NSWCCA 123 at [52]; Dionys v R [2011] NSWCCA 272 at [45], [46]; Taylor v R [2018] NSWCCA 50 at [65].

Matters relevant to assessing the objective seriousness of an offence include: the number of firearms and the number which are prohibited or pistols, the nature and type of the firearms, the purpose for their possession, whether there is evidence showing any relationship between the possession of the firearms with the drug industry, the location of the property and the security under which the firearms are kept: Mack v R [2009] NSWCCA 216 at [40]; see also R v Mahmud at [62]–[66].

The offence in Brown “was a serious example of the offence under s 51D” (at [24]) since the offender “… intended to sell the firearms to criminals for profit. He had in his possession, for that purpose, an automatic self-loading rifle, which he called a ‘machine gun’ and which was clearly capable of inflicting serious injury and also some compact ‘keyring’ firearms, which were particularly dangerous by reason of their capacity for concealment.” at [23]. Similarly in R v Lachlan [2015] NSWCCA 178, the respondent possessed the firearms to buy and sell for profit and was contributing to their potential use for purposes which may lead to serious injury or death: at [74]. By comparison, the offending in Aird v R [2021] NSWCCA 35, where the offender was in possession of two pen guns and seven low-calibre hunting rifles for more than 10 years (some of which were inherited), while serious, was less so than the cases involving holding firearms for the purpose of sale or storage because in those cases the risk they “might end up in the hands of criminals, and be used to perpetrate crimes of violence, is foreseeable and a likely outcome of the possession”: at [45], [50]–[51].

The purpose of the prohibition under s 51D is broader than the punishment of criminals who warehouse and harbour illegal firearms. It extends to the stockpiling of weapons by persons without any further criminal intent: R v Cromarty [2004] NSWCCA 54; applied in Taylor v R at [59]. This is because of the risk that the stockpile, if vulnerable, may inadvertently feed the market in illegal supply of firearms: Cromarty at [86]. There is a particular risk of firearm theft from remote rural properties by persons engaged in criminal activities, which may be relevant in assessing the objective seriousness of an offence: Taylor v R at [50], [52]; see also Cornish v R [2015] NSWCCA 256 at [74]. An offender is not less culpable for such an offence if they collect a substantial number of firearms for defensive purposes: Yammine v R at [42].

In Dionys v R, the s 51D(2) offence related to five firearms, one of which was a light machine gun. Another 89 weapons, some of which were semi-automatic, were included on a Form 1. In that case, the sheer number of weapons increased the objective seriousness of the offence as did the fact the offender’s motivation was monetary gain. In such circumstances, general deterrence and denunciation required condign punishment: at [48].

In R v Lachlan, one factor which rendered the offence under s 51D(2) serious was that all of the firearms were in working order and none were stored securely, with two loaded and the remaining two in close proximity to ammunition: R v Lachlan at [73]. Further, s 51D(2) requires that at least one firearm is “prohibited”, and in R v Lachlan, all four firearms were “prohibited firearms”: at [71].

Shortened firearms have no legitimate purpose and are particularly dangerous due to their capacity for concealment, which makes them suited for serious criminal activity: R v Lachlan at [71], [72]; R v Brown [2006] NSWCCA 249; El Jamal v R [2017] NSWCCA 243 at [34]–[35]. The fact an offender themselves shortens a firearm, although not an element of the offence, may be taken into account as part of the context of the offending: Weaver v R [2021] NSWCCA 215 at [117].

Possessing a number of firearms knowing it is illegal to do so increases the objective seriousness of the offence: Basedow v R [2010] NSWCCA 76 at [20]; Taylor v R at [63]. The objective criminality of an offender who possesses a number of weapons because of a “fetish” is less serious than possession for a more sinister motive: R v Mahmud at [64].

The period of time an offender was in possession of the relevant firearms may be relevant to an assessment of the objective seriousness of the offence but if an offender wishes to argue the period of possession was so short as to make the offence less objectively serious then the burden of proof is on the offender: Yammine v R at [46]–[47].

Possessing unserviceable weapons is less objectively serious than the possession of serviceable weapons although the degree to which the weapon is unserviceable will be relevant: R v Mezzadri [2011] NSWCCA 125 at [19].

Part 6 Firearms Act contains a range of offences relating to the unauthorised supply and acquisition of firearms. These include supply to an unauthorised person (s 51(1), or s 51(1A) in the case of a pistol or prohibited firearm), acquisition of an unauthorised firearm (s 51A), and the supply of firearms on an ongoing basis (s 51B(1)).

Supply is defined under s 4(1) to mean “transfer ownership of, whether by sale, gift, barter, exchange or otherwise”. “Acquire” means accept or receive supply of: s 4(1).

Each of the following offences are Table 2 indictable offences that are to be dealt with summarily unless the prosecutor elects otherwise: Sch 1, Table 2, Pt 4 Criminal Procedure Act 1986.

The Weapons Prohibition Act 1998 commenced on 8 February 1999 (GG No 15 of 5.2.1999, p 392) and was introduced to replace the “inadequate and outmoded” Prohibited Weapons Act 1989 (Second Reading Speech, Weapons Prohibition Bill, NSW, Legislative Assembly, Debates, 22 October 1998, p 8912).

The principles and objects of the Act are outlined at s 3. The underlying principles confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety. The specific objectives include to require each person under the authority of a permit to have “a genuine reason for possessing or using the weapon” and “to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons.”