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Court of Criminal Appeal 4 March 2008

CRAMP, John Robert v R

[2008] NSWCCA 40

Firearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE UNAUTHORISED USE OF PROHIBITED PISTOL POSSESSION OF AN UNREGISTERED FIREARM WHETHER CONVICTION CARRIES EXTRA CURIAL PUNISHMENT

Citation: CRAMP, John Robert v R [2008] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 4 March 2008
Judge(s): Grove J, Hulme J, Simpson J

Background

The applicant operated a security business and held firearms licences. He pleaded guilty in the District Court to two counts under the Firearms Act 1996: unauthorised use of a prohibited pistol and possession of an unregistered firearm. Three further offences (one additional unauthorised use and two further possession offences) were taken into account on a Form 1.

The offences arose because the applicant, when applying for approval to use 18 firearms in his security business, failed to disclose two other firearms also being used. He was then directed to surrender those undisclosed firearms but did not do so, and continued using them in the business.

Williams DCJ in the District Court dealt with the second count by way of a section 10 order (discharge without conviction). On the first count, taking into account the Form 1 offences, his Honour recorded a conviction and imposed a two-year good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999. The applicant sought leave to appeal, arguing that a section 10 order should have been made for the first count as well, thereby setting aside the conviction.

  • Whether Williams DCJ erred by failing to take into account the extra-curial consequences of a conviction, particularly the effect on the applicant's firearms licence
  • Whether a section 10 bond (discharge without conviction) should have been substituted for the section 9 bond (conviction with bond) on the first count
  • Whether the recorded conviction, and its licensing consequences under the Firearms Act 1996, rendered the sentence manifestly excessive or otherwise warranted appellate intervention

Decision

All three judges agreed the appeal should be dismissed, though Hulme J identified a specific error by Williams DCJ. His Honour concluded that the sentencing judge should have considered the likely extra-curial consequences of conviction for the applicant's licensing position, following the principle in Daetz and Wilson (2003) 139 A Crim R 216. Because the sentencing remarks made no mention of those consequences, Hulme J inferred they were not taken into account. However, Hulme J ultimately concluded this error did not warrant a different outcome, given the deliberate nature of the applicant's conduct.

Simpson J, whose analysis was adopted by Grove J, examined the complex licensing framework under the Firearms Act 1996 and the Firearms (General) Regulation 1997 in detail. Her Honour found that a conviction for a prescribed offence disentitles an applicant from renewing a licence under section 11(5)(b), but does not automatically revoke an existing licence. The Commissioner of Police retains a discretion on renewal. Substituting a section 10 order would effectively circumvent that discretionary regime.

Simpson J held that granting a section 10 order would not merely avoid the conviction but would interfere with the statutory processes and discretions conferred upon other office holders, particularly the Commissioner of Police in administering the firearms licensing scheme. The court was not in a position to assess the broader policy and administration considerations underlying the legislation.

On the question of whether the offences warranted a conviction, Simpson J was unpersuaded by the submission that the breaches were trivial or clerical in nature. The applicant's conduct was deliberate across multiple steps, and strict compliance with firearms legislation is of fundamental importance. Conviction was described as an appropriate, if not inevitable, outcome.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge dealing with firearms offences is required to take into account the likely extra-curial consequences of a conviction on the offender's licensing position, consistent with the principle in Daetz and Wilson.
  • In dismissing the appeal, the Court confirmed that an identified failure to consider extra-curial consequences does not automatically warrant substitution of a different sentence; the nature and deliberateness of the conduct remains highly relevant.
  • Substituting a section 10 order (no conviction) to pre-empt or influence the licensing decisions of a statutory office holder such as the Commissioner of Police is not an appropriate use of the sentencing discretion.
  • A conviction for a prescribed firearms offence under section 11(5)(b) of the Firearms Act 1996 disentitles a person from obtaining a licence renewal, but does not necessarily result in automatic revocation of an existing licence; the Commissioner retains a separate discretion.
  • Strict and deliberate non-compliance with firearms licensing obligations, including failure to disclose firearms and refusal to surrender them when directed, was treated as conduct sufficiently serious to warrant conviction rather than a discharge under section 10.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
- Firearms Act 1996 (NSW), ss 4, 4C, 7(1), 8, 9, 10, 11, 36(1), Sch 1
- Firearms (General) Regulation 1997 (NSW), cll 5, 15, 69A
- Firearms (General) Amendment (Security Industry) Regulation 2003 (NSW)
- Criminal Appeal Act (NSW), s 6(3)

Cases:
- Daetz and Wilson (2003) 139 A Crim R 216