CRAMP, John Robert v R [2008] NSWCCA 40 | Case summary

The trial judge failed to give sufficient weight to the fact that the offences were of a technical character and that there was no evidence of ulterior purposes for the failure of the applicant to comply with the requirements of the legislation." 40 On the application it was submitted that the penalties which involved a conviction had a "manifestly unfair consequence". This was that the effect of the convictions is likely to put the applicant out of the business which he has conducted for the past 26 years. It was an important aspect of the case advanced on behalf of the applicant in this Court that a s 9 bond carried more dire consequences for the applicant than a s 10 bond - ie that a conviction would automatically or inevitably result in revocation of his licences, whereas a s 10 bond, without conviction, did not have that automatic or inevitable result. 41 No evidence was tendered to Williams DCJ to establish that this was the likely consequence of conviction (as distinct from the imposition of a bond in a way that did not carry a conviction) and his Honour was not referred to any legislation on which he could draw that inference. Indeed, the contrary was put in submissions by then counsel for the applicant. The transcript records the following submission: "There is one other thing that my instructing solicitor reminded me of, presently the policy of the Registry has been - for their purposes at least - to treat a s 10 in the same fashion as they treat a conviction. From my experience they tend to jump people through the hoops who are seeking to regain their licences after s 10s have been granted. So if he to (sic) actually get a licence back in regard to any of the ones that he held, there's a process that has got to be observed. If that process isn't successful then there's a minimum of ten years before he will be considered for the grant of a licence again. That is just another matter that I ask to be taken into account in considering the penalty." 42 It was also submitted that "… the offence (sic) was of a technical and clerical nature". Consideration of the validity of that proposition requires some further examination of the material put before the court. 43 Included in the documentary material provided to Williams DCJ on behalf of the applicant was a letter on the letterhead of "NSW Police Firearms Registry" dated 4 June 2004. That letter contained the following: "In accordance with the provisions of clause 69A of the Regulation, an assessment of the number of firearms required by your security firm has been undertaken based on the information, or lack thereof, provided by you to the Security Industry Registry.

(bold, upper case and underlining all in original) 44 I am unable to accept that the retention by the applicant of 3 firearms additional to the 12 of which he was authorised to have possession constituted offences "of a technical and clerical nature". Nor would I accept that the use of two pistols in his security business for unauthorised purposes constituted offences "of a technical and clerical nature". I would reject this submission. 45 As I have indicated above, the central plank of the application lay in the contention that conviction necessarily carried with it a more severe extra curial sanction than a bond under s 10 of the Crimes Act unaccompanied by conviction. That more severe sanction is revocation of licence. 46 The factual contention is not correct. Section 24 of the Act, set out above, provides for revocation. During the course of argument it was acknowledged that sub-s (2) gives the Commissioner of Police a discretion to revoke a licence for various reasons, including for any reason for which the licensee would be required to be refused a licence of the same kind - including conviction, within the previous 10 years, of any prescribed offence. In those circumstances a conviction does not necessarily entail an automatic or inevitable revocation. It is true that, by reason of s 11(5), were the applicant applying for a licence after conviction, the Commissioner would be required to refuse the application on the ground of the conviction, with no discretion not to do so. But that was not the applicant's situation. The issue would be revocation after conviction - which was discretionary - not the issue of a new licence. 47 I do accept, having regard to the terms of cl 15 of the General Regulation (concerning renewal), that conviction will disentitle the applicant to the renewal of his licences on the expiration of those currently held. That is because the clause explicitly provides for renewal by application for a "new licence". That, I acknowledge, appears to have this rather odd result: following conviction of a licence-holder, the Commissioner of Police may exercise his discretion not to revoke a licence or licences currently held; but, on the expiration thereof, he has no discretion to issue a new licence or licences. I say that is odd, because (theoretically, at least) a convicted licence-holder may continue to hold a licence at a time closer to the offence of which he (or she) has been convicted, but may be deprived of the opportunity to do so after some time - up to 5 years - has passed. This appears to be so even if the licence-holder's conduct has, during that time, been exemplary. But that appears to be the correct construction of the legislation. It is to avoid that consequence that the applicant seeks to have a s 10 bond substituted for the s 9 bond, and the conviction set aside. 48 While I accept that in an appropriate case, and in an appropriate manner, a sentencing court may take account of extra-curial punishment in relation to an offence, the focus of the court must remain on conventional sentencing principles: the selection of a sentence that adequately reflects the objective gravity, and the circumstances, of the offence, together with the relevant subjective circumstances. That is precisely what Williams DCJ did. He was conscious of, but rejected, the approach urged on behalf of the applicant. In my opinion, not only was it open to him to do so, but it was correct to do so. The objective and subjective circumstances did not warrant a result that carried no conviction, and, in effect, no punishment other than the obligation to be of good behaviour for two years. 49 If this Court were to make an order of the kind sought, revocation would still be open to the Commissioner in the exercise of his discretion, under either s 24(2)(b) or (c); the Commissioner would, under s 11(1), retain a discretion to issue a new licence, on application under cl 15 of the General Regulation, for a new licence; and s 11(5)(b) would not operate to deprive him of that discretion. If the s 10 bond, with the conviction were to stand, then the last proposition would not be correct, and, on application for renewal, the Commissioner would be obliged, by s 11(5)(b) to refuse the application. 50 This analysis demonstrates, in my opinion, the essential flaw in the reasoning underlying the submissions made on behalf of the applicant. He seeks an order that would circumvent the statutory provisions I have outlined. 51 This Court ought not, in my opinion, be seen to take steps, or to determine this application, that would interfere or have the appearance of interfering, in the processes provided by legislation, and discretions conferred upon other statutory office holders or of circumventing the exercise of those discretions, or to appear to attempt to influence the exercise of those discretions. Nor ought it provide an avenue by which the proper and intended operation of the legislation might be circumvented. Yet that would, in reality, be the effect of acceding to the submission made on behalf of the applicant. The task for this Court is to determine whether Williams DCJ was right or not when he held that the offences were too serious to be dealt with by way of s 10 bonds. It is not to determine whether the subsequent result of a decision on that question adverse to the applicant would, by reason of the statutory provisions, be too harsh. This Court is not in possession of adequate information concerning the general administration of firearms legislation, or the policy that underlies it. The observation made by counsel for the applicant at the hearing concerning the attitude taken to s 10 bonds does not, in any event, suggest that any such order made by this Court would be effective to achieve the purpose for which it is sought. 52 I have come to the view that Williams DCJ was correct in rejecting the submission that he impose s 10 bonds in respect of all offences. While the applicant has (so it is said - there was no evidence to this effect) been engaged in the industry for 26 years, without, apparently, transgression, these breaches were not trivial or "technical or clerical" as was submitted on his behalf. It is of fundamental importance that strict adherence to firearms legislation be enforced. In my opinion conviction was an appropriate, if not inevitable, consequence of the offences. 53 I would grant leave to appeal but dismiss the appeal. **********

CRAMP, John Robert v R

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