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Supreme Court 30 April 2004

R v Lott

[2004] NSWSC 373

Firearms & weapons
CRIMINAL LAW NO QUESTION OF PRINCIPLE.

Citation: R v Lott [2004] NSWSC 373
Court: Supreme Court of New South Wales
Date: 30 April 2004
Judge(s): Howie J

Background

The offender was arraigned on a five-count indictment, with the most serious charge alleging his knowing participation in the supply of methylamphetamine at or above the large commercial quantity. He pleaded not guilty to that charge and was ultimately acquitted by a jury.

On the same arraignment, however, the offender pleaded guilty to the remaining four counts. Those counts arose from a police search of his Wallsend premises on 24 September 2001, which uncovered an unlicensed single-barrel shotgun, shotgun cartridges and 9mm pistol rounds, a set of handcuffs, and a silencer. No large quantity of drugs was found at the premises.

The offender came to court for sentencing on the four weapons and ammunition charges. His background included a degree of familiarity with firearms through his father, and he offered explanations for each item: the shotgun had been taken from a workmate as a favour, the silencer belonged to his father's rifle, and the handcuffs had been in his possession for approximately ten years.

  • What sentences were appropriate for each of the four guilty pleas, having regard to the objective seriousness of the offending and the offender's personal circumstances?
  • What discount, if any, should apply to reflect the guilty pleas, given they were entered at arraignment before the trial rather than at the first reasonable opportunity?
  • Whether a suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 was appropriate for the firearm possession charge.
  • Whether any of the charges should be dismissed under section 10 of the same Act without a conviction being recorded.

Decision

Howie J characterised the offender as a person of limited involvement in any criminal enterprise, describing him as a "very small fish in a very large pond." His Honour accepted that the offender had no intention to use the firearm, but noted that the shotgun was stored unsecured and in close proximity to compatible ammunition, which aggravated the offending. The court referred to R v Cromarty for the proposition that firearms legislation aims to disarm all persons lacking authorisation, not just those with criminal intentions.

On the silencer, a ballistics report confirmed it was non-compatible with the weapon found. The handcuffs charge, carrying a maximum of 14 years, was treated as the least serious in the circumstances of this offender, and the charge was dismissed without conviction under section 10.

The court applied a 20 percent discount for the guilty pleas. Although the pleas were not entered at the first reasonable opportunity, Howie J found that no practical burden had been placed on either the Local Court or the Supreme Court as a result of the timing, and that the offender would have pleaded earlier had he been advised to do so.

Howie J concluded that a suspended sentence was appropriate for the firearm charge, drawing on R v Zamagias for the principle that a suspended sentence can be suitable even where no specific rehabilitative regime is required. The court was satisfied that general deterrence had been given appropriate weight and that the custodial term, though suspended, reflected the seriousness of unlicensed firearm possession.

Orders Made

  • Count 2 (possession of firearm): 15 months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, on condition that the offender enter into a good behaviour bond for the period of the suspended sentence.
  • Count 3 (possession of ammunition): Fine of $1,500, to be paid within 28 days.
  • Count 4 (possession of handcuffs): Charge dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.
  • Count 5 (possession of silencer), including the form 1 offence: Good behaviour bond for 12 months.
  • All firearms, weapons, and ammunition forfeited to the Crown for destruction.

Key Takeaways

  • Under the firearms legislation as interpreted in R v Cromarty, the legislative intent to disarm unlicensed persons extends to otherwise law-abiding citizens, not only those with criminal purposes. An unsecured, unlicensed firearm in close proximity to ammunition constitutes an aggravating feature even absent any intent to use it.
  • A suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 can be an appropriate sentencing outcome for unlicensed firearm possession, including where the offender has no particular rehabilitative need requiring supervision or a structured regime.
  • A 20 percent guilty plea discount was applied even though the pleas were not entered at the first reasonable opportunity, where the court was satisfied that no practical burden on the courts resulted from the timing and that earlier advice to plead would likely have been followed.
  • Section 10 dismissals remain available in the Supreme Court for technically serious charges, here applied to the handcuffs possession count where the circumstances rendered it the least serious matter before the court.
  • Where a defendant is a peripheral figure drawn into an investigation primarily through association with others, that context may inform the objective assessment of the offender's criminality without displacing the need to reflect general deterrence in the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 12
- Criminal Procedure Act 1986 (NSW), Table 2 of the Schedule

Cases:
- R v Cromarty [2004] NSWCA 54
- R v Shankley [2003] NSWCCA 253
- R v Zamagias [2002] NSWCCA 17