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Supreme Court 26 October 2023

R v Lucas

[2023] NSWSC 1357

Firearms & weapons
CRIMINAL LAW SENTENCE GUILTY PLEA FIREARMS OFFENCE INVOLVING GEL BLASTER TRIVIAL OFFENCE CHARGE DISMISSED

Citation: R v Lucas [2023] NSWSC 1357
Court: Supreme Court of New South Wales
Date: 26 October 2023
Judge: Lonergan J

Background

Shortly after a jury acquitted the defendant of a serious Commonwealth offence, the Supreme Court was required to deal with a separate, lesser charge that had been referred to it by way of a section 166 certificate. That charge arose from the defendant's possession of a gel blaster pump action shotgun at Tomerong on 10 November 2019, in contravention of section 7A(1) of the Firearms Act 1996 (NSW). The defendant had indicated an intention to plead guilty to this charge, and the offence was not in dispute.

The gel blaster in question was a lightweight plastic device capable of firing water-infused coloured balls. It had been purchased from a Queensland company, where such items are legal to possess without a permit. The defendant and his companions used it for a photo opportunity at a power station at around 5:00 am, in the presence of only a small group of friends.

The defendant was 21 years old at the time of the offence. Evidence from his brother and a mutual friend described a difficult upbringing, emotional immaturity, and a troubled online presence that the court accepted reflected a misguided attempt to assert control rather than genuine menace.

  • Whether the charge should be dismissed under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) rather than attracting a formal conviction or other penalty
  • Whether the offence met the threshold of "trivial" under section 10(3)(b) of that Act
  • What weight to give to the defendant's personal circumstances, the nature of the item, and the context of its possession

Decision

Lonergan J noted that the Firearms Act definition of "firearm" captures gel blasters in the same category as weapons capable of firing bullets, without any differentiation based on the item's actual capacity for harm. Her Honour observed that this definitional breadth creates an apparent inconsistency across Australian jurisdictions, a point acknowledged by an AFP officer who gave evidence at trial.

The court accepted evidence from the defendant's brother and a friend that the gel blasters had been purchased as toys for outdoor games, and that their use at the power station was an immature and ironic social media exercise. Lonergan J found the offence trivial within the meaning of section 10(3)(b), describing it as "immature and silly, but trivial."

Turning to the defendant's personal circumstances under sections 10(3)(a) and (d), the court accepted that he was an emotionally immature young man who had lacked prosocial role models throughout his upbringing. His inflammatory online conduct was characterised as a misplaced coping mechanism rather than evidence of genuine dangerous intent. Her Honour also noted that the defendant had spent a substantial period in custody, including over 592 days since the expiry of an unrelated sentence imposed by Button J under the Criminal Code Act 1995 (Cth).

Taking all of these factors together, Lonergan J was satisfied that a section 10 dismissal was appropriate. The charge was proven but dismissed without conviction.

Orders Made

  • The offence was found proven.
  • The charge was dismissed pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), with no conviction recorded.

Key Takeaways

  • Under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may find an offence proven but dismiss the charge without recording a conviction where the offence is trivial, the defendant's personal circumstances warrant it, or other proper matters support that outcome.
  • Possession of a gel blaster constitutes a firearms offence under section 7A(1) of the Firearms Act 1996 (NSW) regardless of the item's limited capacity for harm, because the statutory definition does not distinguish between lethal weapons and low-harm devices.
  • The Supreme Court treated the interstate legal inconsistency regarding gel blasters as a relevant contextual factor in assessing the seriousness of the offence, particularly where the item was purchased lawfully from a jurisdiction where no permit is required.
  • A defendant's immaturity, difficult upbringing, and lack of prosocial guidance can constitute relevant personal matters under section 10(3)(a) of the Act, capable of supporting a dismissal rather than a recorded conviction.
  • Extended time spent in custody, including time served beyond the expiry of a related sentence, may constitute an "other matter" the court considers proper under section 10(3)(d) when determining whether to dismiss a charge.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(a), 10(3)
- Firearms Act 1996 (NSW), s 7A(1)
- Criminal Code Act 1995 (Cth)

Cases: No cases were cited in the judgment.