Citation: NSW Police v MacLauchlan [2019] NSWLC 13
Court: NSW Local Court
Date: 6 May 2019
Judge: Brender LCM
Background
The defendant pleaded guilty at the first opportunity to two charges: possession of a small quantity of cannabis (4.7 grams inclusive of packaging) and custody of a knife in a public place without reasonable excuse. Both offences sat at the lower end of objective seriousness on the particular facts presented.
The defendant was born in 1969 and carried a reasonably lengthy criminal record spanning 1987 to 2009. Prior offences included drug possession, common assault, offensive behaviour, and a 2007 Victorian prison term for possessing prohibited and controlled weapons. He had, however, been offence-free for the preceding ten years.
The sentencing hearing raised a collateral issue of some practical significance. The defendant held a firearms licence, and submissions were made on his behalf that any outcome other than a dismissal would expose that licence to revocation, potentially affecting his ability to obtain rural employment for which the licence was relevant.
Legal Issues
- Whether the defendant's criminal antecedents disentitled him to a non-conviction order under sections 9 or 10 of the Crimes (Sentencing Procedure) Act 1999
- What sentence was appropriate for two low-level offences given the defendant's record and ten years of offence-free conduct
- Whether the court should fashion a sentence outcome to avoid the collateral consequence of possible firearms licence revocation
- How the Firearms Act 1996 and Firearms Regulations 2017 interact with a drug possession conviction and a knife custody conviction to trigger licence refusal or revocation obligations
Decision
The magistrate declined to exercise the discretion to dismiss or conditionally release without conviction under sections 9 or 10. Although the offences were objectively minor, the defendant's criminal antecedents, particularly the prior weapons and drug possession history, weighed against the leniency those provisions contemplate. The magistrate also found no sufficient cause shown under section 193 of the Criminal Procedure Act to avoid conviction.
The magistrate rejected the proposition that a sentence should be moulded to sidestep the possible firearms licence consequences if that sentence was not otherwise appropriate. On the facts, a modest fine of $550 on each charge was regarded as the fitting outcome, reflecting the low objective seriousness of both offences.
The magistrate then analysed the firearms licence consequences in some detail. Under section 11(5)(b) of the Firearms Act 1996, read with the Firearms Regulations 2017, a licence must be refused where a person has been convicted of certain prescribed offences within the preceding ten years. The drug possession conviction, attracting a fine below the $2,200 threshold prescribed by the Regulations, was not expected to enliven the discretionary revocation provisions in section 24. The knife custody conviction, however, potentially exposed the defendant to discretionary revocation by the Commissioner, on the assumption that the knife constituted a "weapon" within the meaning of the Act, a term left undefined.
The magistrate noted that revocation under section 24 remains discretionary, that the Commissioner would consider all relevant circumstances including the gravity of the offending, and that if an adverse discretion were exercised, the defendant retained the right to seek administrative review before the NSW Civil and Administrative Tribunal under section 75 of the Firearms Act.
Orders Made
- Conviction entered on both charges
- Fine of $550 imposed on the cannabis possession charge
- Fine of $550 imposed on the knife custody charge
Key Takeaways
- A defendant's criminal antecedents, even where offences are relatively old and followed by a lengthy crime-free period, can weigh against a non-conviction order under sections 9 and 10 of the Crimes (Sentencing Procedure) Act 1999.
- It is not a proper sentencing purpose to fashion an outcome specifically designed to avoid collateral consequences such as firearms licence revocation, if that outcome would not otherwise be appropriate.
- Under the Firearms Act 1996 and Firearms Regulations 2017, a drug possession conviction only triggers mandatory licence refusal under section 11(5)(b) where the penalty imposed meets or exceeds a specified threshold (imprisonment, a community correction order, a conditional release order, or a fine of $2,200 or more).
- A conviction for custody of a knife in a public place may expose a firearms licence holder to discretionary revocation under section 24 of the Firearms Act, contingent on whether the knife is treated as a "weapon", a term the Act does not define.
- Where the Commissioner exercises an adverse discretion to revoke a firearms licence, the holder retains the right to apply to NCAT for administrative review under section 75 of the Firearms Act 1996.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 77
- Criminal Procedure Act 1986 (NSW), s 193
- Summary Offences Act 1988 (NSW), s 29A
- Firearms Act 1996 (NSW), ss 11, 24, 75
- Firearms Regulations 2017 (NSW), reg 5
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases cited: None cited in the judgment.