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Court of Criminal Appeal 7 December 2018

Baxter v R

[2018] NSWCCA 281

DrugsFirearms & weapons
CRIME APPEAL AGAINST SENTENCE AGGREGATE SENTENCE FIREARMS OFFENCES CONCESSIONS BY THE CROWN ORDERS BY CONSENT

Citation: Baxter v R [2018] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 7 December 2018
Judge(s): White JA, Walton J, Wilson J

Background

The applicant was convicted in the Newcastle District Court of four offences: two drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW), and two firearms offences under the Firearms Act 1996 (NSW), being possession of and attempted supply of a prohibited firearm described as a shortened single-barrel 12-gauge shotgun with a total length of 32 cm. The sentencing judge imposed an aggregate sentence of 8 years and 6 months, with a non-parole period of 6 years.

The applicant sought leave to appeal on the ground that the aggregate sentence was manifestly excessive. However, the sentencing merits never fell for consideration because the Crown drew attention to a separate conviction appeal decided by the Court of Criminal Appeal in August 2018 and conceded that the firearm evidence in this case suffered the same legal deficiency identified in that earlier matter.

The Crown accepted that the evidence before the District Court was not capable of establishing that the shotgun was a "prohibited firearm" within the meaning of the Firearms Act. That concession, accepted by both parties, reframed the appeal from one about excessive sentence to one about the legal sustainability of the firearm convictions themselves.

  • Whether the evidence before the District Court was legally capable of establishing that the firearm in question was a "prohibited firearm" under the Firearms Act 1996 (NSW)
  • Whether the relevant regulation prescribed minimum firearm dimensions for the purposes of Schedule 1 (clause 16) of the Firearms Act, or only for the separate purposes of section 62(2)
  • What consequences flowed for the aggregate sentence if the firearms convictions were quashed

Decision

The Court examined how "prohibited firearms" are defined under the Firearms Act. The definition in section 4 refers to Schedule 1 of the Act. Clause 16 of Schedule 1 includes any firearm with a dimension less than the minimum prescribed "by the regulations."

The only regulation addressing minimum firearm dimensions is regulation 152 of the Firearms Regulation 2017 (NSW). Critically, that regulation expressly states its purpose is to prescribe characteristics of shortened firearms "for the purposes of section 62(2) of the Act," a provision dealing with a distinct subject matter. The Court found that the language of regulation 152 does not permit a reading that extends it to prescribing the minimum dimensions referenced in clause 16 of Schedule 1.

Consequently, no applicable definition of "prohibited firearm" under the Act could sustain the firearms convictions. The Court quashed both convictions by consent.

Because an aggregate sentence had been imposed, quashing the firearms convictions meant the aggregate sentence had no lawful foundation with respect to the remaining offences either. The aggregate sentence was also quashed, and the matter was remitted to the District Court for re-sentencing on the drug supply offences, with the remaining firearms-related matters remitted for further order.

Orders Made

  • Leave granted to appeal against the convictions for attempted supply of a prohibited firearm and possession of a prohibited firearm
  • Appeal allowed and both firearms convictions set aside
  • Aggregate sentence imposed in the District Court on 3 November 2017 quashed
  • Matter remitted to the District Court for sentence on the drug supply offence (supply of prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985)
  • Offences contrary to ss 29(1)(a) and 65(3) of the Firearms Act remitted to the District Court for further order

Key Takeaways

  • Under the Firearms Act 1996 (NSW), a firearm qualifies as "prohibited" by reference to Schedule 1; clause 16 of Schedule 1 captures firearms with dimensions below the minimum prescribed by regulations, but regulation 152 of the Firearms Regulation 2017 is confined in its terms to the purposes of s 62(2) of the Act and does not serve as the prescribing instrument for clause 16.
  • A conviction for possessing or supplying a "prohibited firearm" requires evidence capable of establishing that status in law; agreed facts describing a shortened firearm's dimensions are insufficient if no applicable regulation prescribes the relevant minimum dimensions for Schedule 1 purposes.
  • Where an aggregate sentence is imposed across multiple offences, quashing convictions on some of those offences renders the entire aggregate sentence unlawful, requiring it to be quashed and the matter remitted for re-sentencing.
  • The Court of Criminal Appeal exercised its inherent jurisdiction to correct orders that had been incorrectly entered on JusticeLink, relying on DJL v Central Authority (2000) 201 CLR 226, to ensure the record reflected the orders as actually pronounced.
  • Both convictions were quashed by consent following Crown concessions, illustrating that a sentence appeal may resolve on conviction grounds without the court reaching the original sentencing complaint.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 4, 7(1), 36(1), 38(1)(a), 62(2), 65(3); Schedule 1, clause 16
- Firearms Regulation 2017 (NSW), reg 152

Cases
- Egan v R (NSWCCA, matter no 2015/314523, 13 August 2018) (unreported)
- DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17