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District Court 29 March 2023

R v Smith

[2023] NSWDC 88

Firearms & weaponsPublic order & justice offences
SENTENCE SECTION 4(1) FIREARMS ACT FIREARMS DEFINITION

Citation: R v Smith [2023] NSWDC 88
Court: District Court of New South Wales
Date: 29 March 2023
Judge: P Conlon SC ADCJ

Background

The offender, a 35-year-old Corrective Services Officer, came to police attention in December 2020 when officers executed a search warrant at his home in the Vale of Clwydd. The search was directed at items suspected of having been unlawfully obtained from Corrective Services NSW, including a Glock pistol and ammunition. No such items were found.

What police did find were several gel blasters (devices that propel small hydrated gel pellets using compressed air), a range of prohibited weapons including a butterfly knife, batons, handcuffs, gas canisters, knuckle dusters, a taser, smoke grenades, and a body armour vest.

The offender was tried by judge alone and convicted on multiple counts. He was also sentenced on counts to which he had separately pleaded guilty. The gel blasters gave rise to the most legally significant issues at both trial and sentence.

  • Whether gel blasters fall within the definition of an "air gun" under section 4(1) of the Firearms Act 1996 (NSW), thereby constituting "firearms"
  • How to assess the objective seriousness of possessing gel blasters as firearms in circumstances where the offender used them as toys with his children
  • Whether the court should proceed to conviction on the gel blaster counts, or instead dismiss them without conviction under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the offender's account that he found the prohibited weapons bag in his roof cavity was accepted, and how that affected sentencing for those counts
  • What sentence was appropriate across all counts, having regard to the offender's prior good character and the punishment already suffered

Decision

At trial, the court found that gel blasters do fall within the definition of an "air gun" under section 4(1) of the Firearms Act, resulting in guilty verdicts on Counts 10, 16, 23 and 29 under section 51D(2). However, at sentencing, the court assessed the offender's criminal culpability on those counts as sitting at the absolute bottom of the range for offences of their type. Expert evidence from a mechanical engineer established that the impact force of a gel blaster is only marginally greater than a nerf gun, while a paintball gun produces force 14 times higher and a conventional air gun produces force 665 times higher. The court was satisfied the gel blasters were intended and used only as toys.

On the gel blaster counts, the court declined to proceed to conviction and instead dismissed each matter under section 10(1)(a) of the Crimes (Sentencing Procedure) Act. The court weighed the offender's good character and work history, the essentially toy-like nature of the items, and the considerable punishment already suffered, including 65 days in custody and significant legal costs.

On the prohibited weapons counts (Counts 1 to 9), the Crown challenged the offender's account that he had found the prohibited items in a bag in the roof cavity. Applying the principle from R v Olbrich that adverse findings must be proved beyond reasonable doubt, the court rejected the offender's version and was satisfied beyond reasonable doubt that the bag and its contents were not left there by someone else. Nonetheless, noting the offender had stored the items safely and had already suffered substantial punishment, the court recorded convictions under section 10A of the Crimes (Sentencing Procedure) Act without imposing any further penalty.

The court also made pointed observations about prosecutorial discretion, describing it as "ludicrous" that possession of a gel blaster in these circumstances should be triable on indictment in the District Court. It drew a direct comparison to the legislative treatment of paintball guns, which were excluded from the Firearms Act definition by the Paintball Act 2018, and called for Parliament to urgently review the position on gel blasters. The judgment was referred to the Minister of Police and the Attorney General for consideration of legislative amendment.

Orders Made

  • Counts 10, 16, 23 and 29 (gel blaster counts): dismissed without proceeding to conviction under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999
  • Counts 1 to 5 and 6 to 9 (prohibited weapons counts): convictions recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed
  • Judgment referred to the Minister of Police and the Attorney General to consider amending the relevant legislation

Key Takeaways

  • The District Court confirmed at trial that gel blasters constitute "air guns" and therefore "firearms" within the meaning of section 4(1) of the Firearms Act 1996 (NSW), a finding that carries significant consequences given the offence of possessing more than three such firearms (at least one being a pistol or prohibited firearm) carries a maximum of 20 years imprisonment.
  • A section 10(1)(a) dismissal without conviction remains available for firearms offences where the circumstances render the offending at the very lowest end of seriousness, particularly where the items were used only as toys, the offender had good character, and substantial punishment had already been suffered.
  • Under the Olbrich principle, adverse factual findings at sentencing require proof beyond reasonable doubt; the court applied this standard in rejecting the offender's claim that the prohibited weapons bag was left by a third party.
  • The court drew an explicit comparison between gel blasters and paintball guns, noting Parliament had already legislated to remove paintball guns from the Firearms Act definition, and called for urgent legislative review to create a separate, appropriately calibrated regime for gel blasters.
  • Judicial commentary within the sentencing remarks expressly criticised the exercise of prosecutorial discretion in charging multiple serious indictable counts arising from what the court regarded as toy possession, and the judgment was formally referred to the executive for consideration of law reform.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 4(1), 51D(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(a), 10A
- Paintball Act 2018 (NSW)

Cases:
- R v Olbrich [1999] HCA 54