AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 20 June 2019

Carlin v R

[2019] NSWCCA 130

Firearms & weapons
GAUGE BOITO SINGLE SENTENCING

Citation: Carlin v R [2019] NSWCCA 130
Court: Court of Criminal Appeal, NSW
Date: 20 June 2019
Judges: Hoeben CJ at CL, White JA, Hamill J

Background

The appellant pleaded guilty in the District Court to five offences, including three counts of possessing a prohibited firearm without authorisation, contrary to s 7(1) of the Firearms Act 1996 (NSW). One of those counts concerned a shortened 20-gauge BOITO single-barrel shotgun with its serial number removed. The District Court imposed an aggregate sentence across all five offences on 18 June 2018.

On appeal, both parties accepted that the statement of agreed facts tendered in the District Court did not actually disclose an offence under s 7(1). The agreed facts established that the shotgun was a "shortened firearm" as defined under s 4(2)(a) and Clause 16 of Schedule 1 to the Firearms Act, but the regulations cited did not prescribe when such a shortened firearm became a "prohibited firearm" for s 7(1) purposes. Possession of a shortened firearm is separately addressed by s 62 of the Act.

The real dispute on appeal was not whether the conviction should be quashed (both parties agreed it should) but whether the Court of Criminal Appeal could itself re-sentence the appellant, or whether the matter had to be returned to the District Court.

  • Whether the agreed facts disclosed an offence under s 7(1) of the Firearms Act 1996 (NSW) in relation to the shortened BOITO shotgun
  • Whether the Court of Criminal Appeal had power under s 7(2) of the Criminal Appeal Act 1912 (NSW) to substitute a verdict of guilty of the s 62 shortened-firearm offence and re-sentence the appellant itself
  • Whether, absent that power, the matter should be remitted to the District Court for re-sentencing

Decision

Both parties conceded on appeal that the agreed facts did not support the s 7(1) charge. The relevant regulation (cl 129 of the Firearms Regulation 2006) prescribed when a firearm was "shortened" for the purposes of s 62(2), but contained no prescription making such a firearm a "prohibited firearm" under Schedule 1. The conviction on that count therefore could not stand and the aggregate sentence fell with it.

Initially, both parties proposed that the Court substitute a conviction under s 62 and re-sentence. Section 7(2) of the Criminal Appeal Act 1912 (NSW) permits the Court of Criminal Appeal to substitute a verdict of guilty of a different offence, but only where a jury could have found the appellant guilty of that other offence on the same indictment. Because the appellant pleaded guilty rather than faced a jury trial, and because there was no other count on the indictment in relation to the BOITO shotgun on which a jury could notionally have found her guilty, s 7(2) was unavailable. The parties ultimately accepted this, consistent with Calabria v The Queen (1983) 151 CLR 670 and Spies v The Queen (2000) 201 CLR 603.

The Court therefore quashed both the conviction and the aggregate sentence, and remitted the matter to the District Court for re-sentencing. The Court noted that the non-parole period of the quashed sentence would have expired on 20 November 2019 and recommended the matter be listed for re-sentencing with priority.

Orders Made

  • Time for filing notice of intention to appeal extended to 15 February 2019
  • Leave granted to appeal against conviction on Count 2 (possession of the shortened BOITO shotgun under s 7(1))
  • Appeal on Count 2 allowed; conviction set aside
  • Aggregate sentence imposed on 18 June 2018 quashed
  • Matter remitted to the District Court for sentencing on Counts 1 and 3, the offences of possessing an unauthorised firearm and discharging a firearm in a public place, and any s 62(1)(b) shortened-firearm charge if the appellant pleads guilty to it
  • Court recommended re-sentencing be listed with priority given the impending expiry of the non-parole period

Key Takeaways

  • A conviction under s 7(1) of the Firearms Act 1996 (NSW) for possessing a "prohibited firearm" requires the agreed or proven facts to actually disclose that the firearm falls within the prohibited firearms definitions; agreed facts describing only a "shortened firearm" within s 62 are insufficient to support a s 7(1) charge.
  • Under s 7(2) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may substitute a different verdict only where a jury could have returned that verdict on the existing indictment. Where there is no other relevant count on the indictment, that power does not arise.
  • The Court of Criminal Appeal confirmed, following Calabria v The Queen and Spies v The Queen, that the absence of a suitable alternative count on the indictment is a jurisdictional obstacle to substituting a verdict, not merely a procedural inconvenience.
  • Quashing a conviction that formed part of an aggregate sentence necessarily brings the entire aggregate sentence down with it, requiring a full re-sentencing exercise.
  • Where re-sentencing is required but the Court of Criminal Appeal lacks power to conduct it, remittal to the original sentencing court is the appropriate remedy.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 7(1), 7A, 62
- Firearms Regulation 2006 (NSW), cl 129
- Criminal Appeal Act 1912 (NSW), s 7(2)
- Crimes Act 1900 (NSW), s 93G(1)(b)

Cases
- Baxter v R [2018] NSWCCA 281
- Calabria v The Queen (1983) 151 CLR 670; [1983] HCA 33
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43