Firearms and prohibited weapons offences

[60-000] Introduction

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:

  • Firearms Act 1996, ss 7, 7A, 36(1), 50A, 51(1A), (2A), 51D(1), 51D(2), 51F, 51H

  • Crimes Act 1900, ss 33A, 93G, 93GA

  • Weapons Prohibition Act 1998, s 7.

[60-010] Offences under the Firearms Act 1996

The Firearms Act 1996 (the Firearms Act) repealed the Firearms Act 1989 and was introduced as part of a national campaign to implement firearms control following the Port Arthur massacre: R v Cromarty (2004) 144 A Crim R 515 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.)

[60-020] Principles and objects of the Act

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) 144 A Crim R 515 at [67]); Luu v R [2008] NSWCCA 285 at [32]); and “strict adherence” (Cramp v R [2008] NSWCCA 40 at [52]). Section 3 provides:

(1)

The underlying principles of this Act are:

(a) 

to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) 

to improve public safety:

(i) 

by imposing strict controls on the possession and use of firearms, and

(ii) 

by promoting the safe and responsible storage and use of firearms, and

(c) 

to facilitate a national approach to the control of firearms.

(2)

The objects of this Act are as follows:

(a) 

to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) 

to establish an integrated licensing and registration scheme for all firearms,

(c) 

to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) 

to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) 

to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) 

to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

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].

[60-030] Unauthorised possession or use: ss 7(1), 7A(1) and 36(1)

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, which in their current form commenced on 14 February 2004.

Section 7A provides: “A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit”. The maximum penalty is 5 years imprisonment. Parliament has not set a standard non-parole period for s 7A.

Section 7(1) provides: “A person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit”. The maximum penalty is 14 years imprisonment.

Section 36(1) provides: “A person must not supply, acquire, possess or use a firearm that is not registered”. The maximum penalty, if the firearm concerned is a pistol or prohibited firearm, was increased on 24 November 2015 from 10 to 14 years imprisonment.

“Prohibited firearm” means a firearm described in Sch 1: 4(1). “Pistol” and “prohibited pistol” are defined separately in ss 4 and 4C. The calibre size and length of the pistol are the essential difference. It is not immediately clear whether non-prohibited pistols fall within s 7(1): R v Najem [2008] NSWCCA 32 at [35]. A prohibited pistol is not a prohibited firearm: see Note to s 4C.

The offences under ss 7A, 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 that the offence could have been dealt with summarily but only in the circumstances outlined in Zreika v R (2012) 223 A Crim R 460 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].

[60-040] Assessing the objective seriousness of possession/use

Johnson J referred to the policy reasons behind s 7(1) Firearms Act 1989 and matters relevant to the seriousness of the offence in Ayshow v R [2011] NSWCCA 240 at [64]–[73].

The use or purpose of possession of an unlicensed firearm — particularly where it is connected with criminal activities — was regarded as a key factor in assessing the seriousness of the previous forms of the offences found in the Firearms Act: R v Thurgar (1990) 51 A Crim R 109 per Gleeson CJ at [113]. However, this early emphasis on the use of an unlicensed firearm or pistol for a criminal as opposed to non-criminal purpose has to be viewed in light of the introduction of the new Act in 1996 and the principles and objects set out in s 3: R v Tolley [2004] NSWCCA 165. Howie J said at [53]:

The courts must seek to implement the policy of the existing legislation and that is to control the possession and use of firearms in the community by honest citizens, and not simply to disarm the criminally minded.

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) 205 A Crim R 222 at [73].

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

That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others [sic] rights.

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 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]; and serious assaults: R v Najem [2008] NSWCCA 32 at [41]. In Amurao, Hulme J said at [69]:

It behoves the Courts to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law.

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]. In that case the fact the firearm was in the offender’s possession in the context of his involvement in the supply of drugs was relevant to the objective seriousness of the offence: at [76].

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]. 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 (1990) 51 A Crim R 109; R v Harris (2001) 125 A Crim R 27 at [37]–[38]. However, a finding that an offender must have known it was likely that 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 that the possession of two pistols for the criminal enforcement of debts was within the “worst case” category (as that concept was understood prior to 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.

Possession even for non-criminal purposes is generally not regarded as a matter in mitigation. The fact that 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]:

It cannot be emphasised enough that the rule of law and the authority of courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and it is for the courts to enforce the law.

The principles in Krstic and AA were applied by the court in Thalari v R (2009) 75 NSWLR 307 at [88].

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].

The criminality of the offender 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].

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]. Barr J in Cooper described the offences committed in those circumstances as “serious ones of their kind” (at [20]) notwithstanding the sentencing judge’s findings that the offender stole two pistols and three revolvers because the owner threatened to shoot the offender’s cousin and also in spite of the fact that the offender said he intended to dispose of them safely.

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

In Cramp v R [2008] NSWCCA 40 the offender was a proprietor of a firearms and security business. He held a number of licences under the Act permitting him to have possession and use of 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 (which was then available) 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 and 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, above, 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:

The likely impact of a decision to convict or, in the exercise of a statutory discretion not to convict, and the likely impact of any particular sentence is something to which regard should be had.

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 [2005] NSWCCA 32 at [73]. As to setting an aggregate sentence see [7-505].

The standard non-parole period provision

A standard non-parole period of 3 years applies for offences under s 7(1) committed on or after 1 February 2003 and before 21 August 2015. A standard non-parole period of 4 years applies for offences committed on or after 21 August 2015. Pursuant to s 54D(2), the standard non-parole period does not apply if the offence is dealt with summarily.

Court of Criminal Appeal sentencing decisions for s 7(1) offences dealt with on indictment can be accessed on the SNPP Appeals component of JIRS. Cases decided before Muldrock v The Queen (2011) 244 CLR 120 which applied R v Way (2004) 60 NSWLR 168 and attributed determinative significance to the standard non-parole period should be treated with caution — see discussion at [7-890]ff.

The court queried in R v Najem [2008] NSWCCA 32 at [38] the “two irreconcilable standards” of the 3 year standard non-parole period and the 14 year maximum penalty for s 7 offences. Hulme J stated at [39]:

One would fairly have expected that the standard non-parole period for an offence in such mid-range to be of the order of half of the maximum. Nothing in the Explanatory Memorandum to the Bill that led to the enactment of these sections or the Ministers’ Second Reading speeches when introducing the Bill provides any assistance in answering the quandary.

Possession of prohibited firearms and good character

It cannot be said that offences of possession of prohibited firearms are committed frequently by persons of otherwise good character so as to fall within the category of offence where less weight is afforded to an offender’s prior good character: Athos v R (2013) 233 A Crim R 302 at [44]. A court can consider the question of the weight that should be attributed to an offender’s good character but any reduction in weight cannot be on the basis of the type of offence that has been committed: Athos v R at [45].

Section 21A(2)(i)

The question of how s 21A applies to offences under s 7(1) is not completely resolved. In R v Mouloudi [2004] NSWCCA 96 at [63] the court accepted that the sentencing judge could take into account the fact that the crimes were aggravated by the fact the offender reached for the weapon (amounting to a threatened use of a weapon s 21A(2)(c)) and that both offences were committed without regard for public safety under s 21A(2)(i). However, Mouloudi was decided before Elyard v R [2006] NSWCCA 43 where the court held it is impermissible to have regard to an aggravating factor in s 21A(2) if it is an inherent characteristic of an offence. Basten JA in Elyard v R, above, at [12], observed that the factor “has given rise to significant difficulty”.

See further discussion below under Section 21A(2) at [60-050].

[60-045] Section 50A: unauthorised manufacture of firearms

A person who manufactures a firearm is liable to a maximum term of imprisonment for 10 years: s 50A(1) Firearms Act. The maximum increases to 20 years where a person manufactures a prohibited firearm or pistol: 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 manufacture the 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].

[60-050] Section 51D: possession of more than three firearms

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 prohibited firearm or pistol. A standard non-parole period of 10 years imprisonment was introduced for an offence under s 51D(2) by the Crimes (Sentencing Procedure) Amendment Act 2007, which commenced on 1 January 2008.

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):

In particular, these serious offences of possession, sale and supply of firearms may lead to other crimes of ever escalating gravity, including firearms usage and ultimately crimes of violence including armed robbery and even murder.

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

When s 51D was introduced by the Firearms Amendment (Public Safety) Act 2002, the Minister said: “Firearm related crime is a major concern for both police and the community.” The offence, in a series of offences relating to firearms in the Firearms Act 1996, is directed to persons who are engaged in the warehousing of firearms for sale. A person so engaged plays a critical role in the perpetration by other criminals of the worst crimes of violence in this community. The maximum sentence reflects the important role that such conduct plays in the injuries inflicted upon members of the community by deadly weapons.

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].

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: R v Lachlan at [74].

The purpose of s 51D is not limited to the punishment of criminals who warehouse and harbour illegal firearms. The purpose of the prohibition is broader. It extends to the stockpiling of weapons by persons without any further criminal intent: R v Cromarty (2004) 144 A Crim R 515. This is because of the risk that the stockpile, if vulnerable, may inadvertently feed the market in illegal supply of firearms: Cromarty, above, at [86]. Nor is an offender less culpable for such an offence if he or she collects a substantial number of firearms for defensive purposes: Yammine v R at [42].

In R v Lachlan, the offender committed an offence under s 51D(2). One factor which rendered the offence as 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]. Section 51D(2) requires that at least one firearm is “prohibited”. In R v Lachlan, all four firearms were “prohibited firearms”.

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. The fact that an offender does not intend to use the firearms for criminal activity does not mean the offence is not a significant one.

Purchase and sale of firearms

Part 6 Firearms Act contains a range of offences relating to the unauthorised purchase and sale of firearms. There are also various other offences including shortening or converting firearms and licence-related offences.

Deterrence

The number and quality of firearms purchased or sold is relevant to the gravity of the offence: R v Dunn [2003] NSWCCA 169 at [21]. Spigelman CJ said in R v Howard [2004] NSWCCA 348 at [66]:

Where it appears that there are elements within the community who refuse to accept that firearms offences must be regarded as serious, the objectives of general and personal deterrence are entitled to substantial weight in sentencing for such offences. The availability of such weapons poses a major threat to the community particularly where, as here, an accused is completely indifferent to the persons who were to acquire them. The community has determined that trade in such weapons on any other than a strictly regulated basis is to be regarded as a serious offence. That must be reflected in the sentence imposed.

Assessing seriousness of an offence

The matters relevant to an assessment of the seriousness include: the number of firearms, the number of firearms which are prohibited or are pistols, the nature and type of the firearms, the purpose for possessing the firearms, 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].

Where an offender acts as an agent for others engaged in the business of illegally supplying weapons this will have a bearing on the determination of the objective seriousness of an offence: R v Parkinson [2010] NSWCCA 89 at [45], although note this discussion occurred in the context of a finding by the sentencing judge that the offence was “below the mid-range” and before the High Court decision in Muldrock.

It is an aggravating feature if a person sells a weapon with a silencer and does not have any concern about the identity of the purchaser since “[a silencer] is quintessentially a feature of weapons used in violent crimes”: Howard, above, per Spigelman CJ at [65].

An intermediary who arranges the unauthorised purchase or sale of firearms may not be substantially less culpable than the principal: R v Mohamad [2005] NSWCCA 204, Hidden J stated at [17]:

Even if the applicant were acting as an intermediary, given the number of weapons involved and the surrounding circumstances, he could have been in no doubt that they were being purchased for an unlawful end. As his Honour pointed out, the provisions of the Firearms Act restricting the sale and purchase of weapons were born of the recognition of the association of “the unlawful disposal of firearms with the subsequent illegal use of those firearms by the criminal element”. Involvement in that distribution as an intermediary may be, as his Honour recognised, “somewhat less culpable” than that of the purchaser, but not markedly so.

In Dionys v R, the offender was charged with the possession and sale of five weapons, one of which was a light machine gun, and 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 that the offender’s motivation was monetary gain. In such circumstances, general deterrence and denunciation required condign punishment: at [48].

When an offender possesses a number of firearms knowing that it is illegal to do so, then that knowledge increases the objective seriousness of the offence: Basedow v R [2010] NSWCCA 76 at [20]. 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 [2010] NSWCCA 219 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. If, however, an offender wishes to argue that 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) 210 A Crim R 442 at [19].

In Dionys v R, the offender was in possession of a large arsenal of unregistered and prohibited firearms, firearm parts and ammunition and had been involved in the sale of firearms. He was charged with an offence against each of ss 51B(1) and 51D(2) of the Act. In considering a submission concerning the degree of commonality between the offences the court concluded that the offences were quite different. Hoeben J, with whom McClellan CJ at CL agreed, said, at [61]:

Count 1 deals with the sale of weapons on at least three occasions. Count 2 is directed to the warehousing of firearms for sale. While an element of possession and control is essential for a sale to take place, the offences themselves are qualitatively and in fact, different.

Standard non-parole period

The unauthorised sale of a prohibited firearm or pistol under s 51(1A) or (2A), and selling firearms on an ongoing basis (on three or more occasions within 12 months) under s 51B, each carries a maximum penalty of 20 years. A standard non-parole period of 10 years was also introduced for each of these offences on 1 January 2008. As to the application of the standard non-parole period see the discussion at [7-890]ff.

Section 21A(2) “without regard for public safety” and planning

Section 21A(2)(i) Crimes (Sentencing Procedure) Act 1999 provides a court can take into account as matter in aggravation that “the offence was committed without regard for public safety”.

In MP v R [2009] NSWCCA 226 the offender was charged with the common law offence of conspiracy to sell unregistered firearms. Over a lengthy period of time, the offender funded and made various arrangements related to the purchase of firearms interstate for sale in NSW. The court held that where an “inherent characteristic” of a particular offence exceeds the norm it may be taken into account as an aggravating factor within s 21A(2). The court concluded that it was appropriate to take the disregard of public safety into account as an aggravating factor because “the longevity of the risk, the fact that in excess of 740 weapons were placed into circulation as a result of the applicant’s participation in the conspiracy … overwhelmingly establish that the risk to the public brought about by this offence ‘exceeds the norm’”: at [37].

Similarly, the court concluded that the scale and extent of the conspiracy exceeded what could be regarded as the normal level of planning associated with a criminal activity: s 21A(2)(n). Justice Hoeben said, at [40]:

The offence involved the acquisition of specific weapons, their modification, the preparation of false documents, the storage and transportation of weapons interstate, the identification of appropriate purchasers and the ultimate sale of specified weapons to these purchasers. Apart from the sophistication of these procedures, the sheer scale of the enterprise took it beyond the norm.

[60-055] Other miscellaneous offences

Stolen firearms

It is an offence to use, supply, acquire or possess a stolen firearm or firearm part, or to give possession of a stolen firearm or firearm part to another person: s 51H(1). The maximum penalty is 14 years imprisonment.

The offence was inserted by the Firearms and Weapons Prohibition Legislation Amendment Act 2015 and commenced on 24 November 2015. The provision applies in relation to a stolen firearm or firearm part whether it was stolen before or after the commencement of s 51H: s 51H(3). It is a defence if the defendant proves that they did not know, and could not be reasonably expected to have known, that the firearm or firearm part was stolen: s 51H(2).

Possession of digital blueprints for manufacture of firearms

A person must not possess a digital blueprint for the manufacture of a firearm on a 3D printer or on an electronic milling machine: s 51F(1). A maximum penalty of 14 years imprisonment applies.

The offence was inserted by the Firearms and Weapons Prohibition Legislation Amendment Act 2015 and commenced on 24 November 2015. Innocent production, dissemination or possession, public benefit and approved research are available defences under s 51G.

[60-060] Prohibited weapons offences under Weapons Prohibition Act 1998

The Weapons Prohibition Act 1998 commenced on 8 February 1999 (GG No 15 of 5.2.1999, p 392). The Act 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.”

Types of weapons

The term “prohibited weapon” is defined by s 4(1) as “anything described in Schedule 1.” The weapons listed in Sch 1 include knives (cl 1), explosives and missiles (cl 2(1)), spear guns (cl 2(4)), crossbows (cl 2(5)), batons (cll 2(17) and (17A)), Tasers (cl 2(18)), sprays (cl 2(22)) and handcuffs (cl 4(2)).

A hierarchy of prohibited weapons was recognised in R v Williams (2005) 156 A Crim R 225; [2005] NSWCCA 355; Simpson J said at [37]:

Recourse to Schedule 1 of the Weapons Prohibition Act, which defines prohibited weapons, shows that a wide variety of items much more dangerous than a replica pistol are encompassed in the prohibition contained in s 7(1). These include flick-knives, ballistic knives, and a variety of other kinds of obviously dangerous knives, bombs, grenades, rockets, missiles and mines in the nature of explosives or incendiaries, flame throwers, darts, dart projectors, devices capable of administering electric shocks. The starting point for this offence was ten years out of a possible maximum of fourteen years. I would think that the replica pistol would be among the least dangerous of the weapons prohibited by s 7, which would put the applicant’s offence at a lower point on the scale than his Honour appears to have treated it.

Possess or use a prohibited weapon: s 7(1)

Section 7(1) Weapons Prohibition Act 1998 makes it an offence to “possess or use a prohibited weapon unless the person is authorised to do so by a permit.” A holder of a permit commits an offence under s 7(2) if he or she possesses or uses the weapon for any purpose other than the “genuine reason” for possessing or using the weapon, or if he or she contravenes any condition of the permit. Section 11 provides a list of eight “genuine reasons”. Possession or use of a prohibited weapon for personal protection is generally not permitted as a genuine reason: s 11(3).

The maximum penalty for conviction on indictment is imprisonment for 14 years. Where prosecuted on indictment, the offence carries a standard non-parole period of 3 years for offences committed before 21 August 2015, and 5 years for offences committed on or after 21 August 2015.

The offences under s 7 of the Act 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. JIRS sentencing statistics reveal that summary disposition is the predominant method of dealing with a possession offence where it is the principal charge.

Other offences under the Weapons Prohibition Act include restrictions on the sale or purchase of prohibited weapons (ss 23, 23A, 23B), possession of digital blueprints for manufacture of prohibited weapons (s 25B), breach of safe-keeping requirements (s 26), offences relating to permits (ss 20, 29–32), and offences against weapons prohibition orders (s 34).

Offences pursuant to ss 20, 23, 23A, 25B, 31 and 34 are also Table 2 offences under the Criminal Procedure Act 1986.

Notwithstanding that s 7 Weapons Prohibition Act and s 7 Firearms Act 1996 have the same maximum penalty, in an appropriate case where both are charged it is necessary to consider whether proportionality requires a different penalty: Marracos v R [2008] NSWCCA 267 at [24]. The offender in Della-Vedova v R [2009] NSWCCA 107 was sentenced for his possession of ten rocket launchers containing ten rockets acquired in his position as an army officer responsible for their destruction. Simpson J observed that although the sentencing judge made no express finding that the offences were in the worst case category, such a finding was open because of the serious breach of trust resulting in the availability of the weapons on the black market; the offence was committed to enrich the offender; the weapons were dangerous and life threatening and the only reasonable use of them was for criminal or terrorist activities: at [77], [84], [85]. The expression “worst case category” should now be avoided, see The Queen v Kilic (2016) 259 CLR 256 at [18] and the discussion at [10-005] Cases that attract the maximum.

[60-070] Firearms offences under the Crimes Act 1900

Section 33A: discharge firearm with intent

Part 3 Div 6 Crimes Act contains firearms offences relating to acts causing danger to life or bodily harm. Section 33A(1) makes it an offence to discharge or attempt to discharge a firearm with intent to cause grievous bodily harm. Section 33A(2) creates an offence of discharging or attempting to discharge a firearm with intent to resist arrest. Both offences carry a maximum penalty of 25 years imprisonment, and for offences committed on or after 21 August 2015, a standard non-parole period of 9 years also applies.

The offences in their present form were inserted by the Crimes Amendment Act 2007, the relevant provisions of which commenced on 15 February 2008. The amended offences were given significantly higher maximum penalties.

Previously, the offence under s 33A(1) was framed as maliciously discharging or attempting to discharge a loaded arm with intent to do grievous bodily harm, or with intent to resist or prevent lawful apprehension, punishable by imprisonment for 14 years. Section 33A(2) provided for an aggravated form of the same offence, committed in company, with a maximum penalty of 20 years.

The seriousness of an offence under s 33A(1) will be aggravated if substantial injury is sustained: Melbom v R [2011] NSWCCA 22 at [97]; R v Tuala [2015] NSWCCA 8 at [45].

Section 33B: use or possess weapon to resist arrest

See Assault, Wounding and Related Offences at [50-090].

Section 93G: causing danger with firearm

Offences relating to public disorder are found in Pt 3A Crimes Act. Division 2 deals with firearms offences relating to public order.

Section 93G(1)(a) prohibits the possession of a loaded firearm in a public place, or in any other place so as to endanger the life of another person. The community regards the crime of carrying a concealed weapon such as a pistol (under s 93G(1)(a)) as a very serious offence: Saad v R [2007] NSWCCA 98 at [38].

Section 93G(1)(b) prohibits the discharge of a firearm in or near a public place. Section 93G(1)(c) prohibits carrying or firing a firearm in a manner likely to injure any person or property, or with disregard for the safety of the offender or others. All three offences under s 93G have a maximum penalty of imprisonment for 10 years.

Parliament has treated the s 93G offences as more serious, because of their 10-year maximum penalty, than malicious wounding (now reckless wounding under s 35(4), with a maximum penalty of 7 years): R v Cicekdag (2004) 150 A Crim R 299. In that case, Hoeben J stated at [35] in relation to s 93G(1)(b):

The problem with a projectile weapon, such as a firearm, is that once the projectile has been released it will travel a considerable distance and the firer has no control over its ultimate destination. Death or injury can result. This is particularly so where the discharge is indiscriminate in a public place and as happened here, a number of shots are fired.

In a case involving an offence under s 93G(1)(b), especially where more than one shot has been fired, the principle of deterrence and in particular general deterrence is of considerable importance: Cicekdag, above, at [38].

Lacking knowledge or experience in the use of a firearm is not a mitigating factor for an offence under s 93G(1)(b). In R v Abdallah (2005) 157 A Crim R 219 at [81], Simpson J stated:

In a crowded venue, with a large number of people moving rapidly, the appellant, inexperienced in the use of firearms, picked up and fired a gun in the direction of the crowds of people. While, in one sense, his inexperience in the use of firearms might weigh in his favour, in another, it points the other way: the appellant did not know how to use the gun safely.

Discharging a firearm in the direction of another person will aggravate the seriousness of the offence: R v Adams [2004] NSWCCA 279 at [33], [36], where an offence called “fire firearm with disregard for safety” in the judgment is identified by court records as s 93G(1)(c). While an offence under s 93G(1)(c) is regarded as serious, it is an error to compare the circumstances to a murder or manslaughter: R v Cahill [2004] NSWCCA 451. In a 93G offence while no one may be injured, there is the potential for injury: at [17].

Where a charge under s 93G does not refer to a disregard for public safety as an element of the offence, such a circumstance may be an aggravating factor under s 21A(2)(i): R v Haidar [2007] NSWCCA 95 at [26]. (The specific wording of the charge in Haidar at [9] was to “endanger the safety” of another person, which is one form of the offence under s 93G(1)(c).)

The type of weapon fired in an offence under s 93G is relevant to the gravity of the conduct. In Crago v R [2006] NSWCCA 68, the firearm used was an air rifle and not the much more dangerous firearms that fall within the operation of the Firearms Act.

In Stanford v R [2007] NSWCCA 73 at [65], the court found the sentencing judge erred in characterising the offence under s 93G(1)(c) as towards the upper end of the range of seriousness.

Section 93GA: firing at dwelling-houses or buildings

Section 93GA(1) makes it an offence to fire a “firearm at a dwelling-house or other building with reckless disregard for the safety of any person”. The offence attracts a maximum penalty of 14 years imprisonment.

An offence under s 93GA(1A) was inserted by the Crimes Legislation Amendment (Gangs) Act 2006 on 15 December 2006: a person must not fire a firearm, during a public disorder, at a dwelling-house or other building with reckless disregard for the safety of any person. A maximum penalty of 16 years applies.

On 9 April 2012, s 93GA(1B) was inserted by the Crimes Amendment (Consorting and Organised Crime) Act 2012. The provision makes it an offence for a person to fire a “firearm at a dwelling-house or other building with reckless disregard for the safety of any person in the course of an organised criminal activity”: s 93GA(1B). The maximum penalty is 16 years imprisonment.

It is not necessary, in the prosecution of any offence under s 93GA, to prove that a person was actually placed in danger by the firing of the firearm: s 93GA(2).

Standard non-parole periods were introduced for each offence under s 93GA on 21 August 2015. For offences committed on or after that date, a standard non-parole period of 5 years (s 93GA(1)) or 6 years (s 93GA(1A) or (1B)) applies.