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Court of Criminal Appeal 21 October 2019

Darestani v R

[2019] NSWCCA 248

Firearms & weaponsDomestic & family violence
CRIME APPEALS POSSESSION CONSIDERATION OF CROWN CASE AT TRIAL RESENTENCE THE CEILING PRINCIPLE

Citation: Darestani v R [2019] NSWCCA 248
Court: NSW Court of Criminal Appeal
Date: 21 October 2019
Judges: Hoeben CJ at CL; Price J; Lonergan J

Background

The appellant was convicted by a jury in the District Court of two counts of possessing an imitation self-loading pistol without authorisation (contrary to s 7(1) of the Firearms Act 1996 (NSW)), along with two counts of intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The charges arose from an incident at a car rental yard in Granville on 27 July 2017, where the appellant produced what appeared to be a pistol and pointed it at two employees after his car hire application was refused.

Police arrested the appellant shortly afterwards and found two black plastic pistols in his possession. A forensic ballistics expert gave evidence that each item was approximately 197mm long, weighed around 45 grams, was constructed of black plastic, produced a clicking noise when the trigger was pulled, and bore visual similarities to a real NORINCO Model 1911A1 self-loading pistol.

The appellant did not challenge his intimidation convictions. His appeal focused solely on the two firearms possession counts, arguing that the plastic pistols fell within the statutory exclusion for objects "produced and identified as a children's toy" under s 4D(4) of the Firearms Act, and therefore could not constitute "imitation firearms."

  • Whether the two plastic pistols were "imitation firearms" within the meaning of s 4D(3) of the Firearms Act 1996 (NSW)
  • The proper construction of the exclusion in s 4D(4), specifically the meaning of the phrase "produced and identified as a children's toy"
  • Whether "identification" as a children's toy is confined to matters intrinsic to the object itself (such as labelling or packaging), or whether extrinsic matters such as the possessor's present use and intention may also be taken into account
  • Whether the jury's verdicts on counts 1 and 2 were unreasonable given the evidence
  • Whether the aggregate sentence was manifestly excessive

Decision

The "children's toy" exclusion and its construction

The central interpretive question concerned s 4D(4) of the Firearms Act, which excludes from the definition of "imitation firearm" any object "produced and identified as a children's toy." The appellant argued that the trial judge misdirected the jury by inviting it to consider extrinsic matters, including the appellant's conduct and intention, when determining whether the items were identified as children's toys. The Court accepted that "identification" as a children's toy is a matter to be assessed by reference to the object's intrinsic characteristics, such as its markings, packaging, labelling, or physical appearance, rather than by reference to the possessor's present use or subjective intent. In this respect, the trial judge's directions were found to have been misdirected.

Whether the verdicts were unreasonable

Despite accepting that the jury directions were flawed, the Court also considered whether the verdicts were themselves unreasonable on the evidence. The physical and expert evidence showed that the plastic pistols closely resembled a real self-loading pistol, bore orange triggers as their only distinguishing feature, and were not accompanied by packaging or labelling identifying them as toys. One officer initially exclaimed "here it is" on finding the item, suggesting its resemblance to a real firearm. On the totality of the evidence, the Court concluded that the jury's verdicts on counts 1 and 2 were unreasonable, as no jury acting on the whole of the evidence and properly directed could reasonably be satisfied beyond reasonable doubt that the Crown had disproved the children's toy exclusion.

Sentence

The Court found that the original aggregate sentence of 2 years 6 months was manifestly excessive once the two firearms convictions were quashed. Applying the "ceiling principle" (the principle that an aggregate sentence must not exceed what is appropriate for the totality of the offending), the Court resentenced the appellant on counts 3 and 4 alone. The revised aggregate sentence was reduced to a total of 22 months, comprising a non-parole period of 11 months and a balance of term of 11 months. Because the appellant had already served the non-parole period and been released to parole, the Court noted there was no utility in considering a non-custodial alternative.

Orders Made

  • Leave to appeal against convictions on counts 1 and 2 granted
  • Appeal on counts 1 and 2 allowed
  • Convictions on counts 1 and 2 quashed
  • Aggregate sentence imposed in the District Court on 8 June 2018 quashed
  • For counts 3 and 4: aggregate sentence of imprisonment imposed, with a non-parole period of 11 months commencing 27 July 2017 and expiring 26 June 2018, and a balance of term of 11 months commencing 27 June 2018 and expiring 26 May 2019

Key Takeaways

  • Under s 4D(4) of the Firearms Act 1996 (NSW), whether an object is "produced and identified as a children's toy" is assessed by reference to the object's intrinsic characteristics (such as appearance, markings, and packaging), not by reference to how the possessor is using it or what their intentions are at the time.

  • The Court of Criminal Appeal confirmed that directing a jury to consider the possessor's present use and intention when applying the children's toy exclusion constitutes a misdirection.

  • A verdict may be unreasonable where, even setting aside any misdirection, the evidence as a whole could not rationally support a conclusion that the Crown had disproved the statutory exclusion beyond reasonable doubt.

  • Quashing convictions on some counts requires a fresh assessment of the total sentence for the remaining counts; the ceiling principle requires that an aggregate sentence not exceed what is proportionate to the totality of the offending that remains.

  • Physical resemblance to a real firearm, absence of labelling or packaging identifying an item as a toy, and expert evidence of visual similarities to a genuine weapon are all relevant to whether an object meets the definition of "imitation firearm" under the Act.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 3, 4D, 7
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules, r 4

Cases
- Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R H McL v The Queen (2000) 203 CLR 452
- Sio v R [2015] NSWCCA 42
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35