The Objective Criminality of Mr Cromarty.
61 His Honour accurately characterised the offences as serious. The maximum penalty under Count 1 was 20 years imprisonment. Significant terms of imprisonment have been fixed in respect of the remaining counts. In R v Zamagias [2002] NSWCCA 17, Howie J said this: (para 11)
"... the sentencing court must be reminded that the maximum penalty is a reflection of the seriousness with which the public through the legislature considers the type of criminal conduct with which it is concerned: H (1980) 3 A Crim R 53 at 65. It is through the maximum penalty that the legislature manifests its policy and it is the initial consideration when determining the appropriate sentence: Oliver (1980) 7 A Crim R 174 at 177."
62 Elsewhere his Honour made the following statement in R v Shankley [2003] NSWCCA 253: (para 19)
"... a consideration of the maximum penalty prescribed by an offence is fundamental to a determination of the appropriate sentence to be imposed ... it represents the public's view of the seriousness of the crime."
63 Nonetheless, the maximum penalty is plainly directed at the worst class of case (Ibbs v The Queen (1987) 163 CLR 447 at 451/2). The offences committed by Mr Cromarty cannot be so described. How serious, then, were these offences?
64 First, it is important that Mr Cromarty knew that he was in breach of the law. It was, as his Honour remarked, "a flagrant breach". Mr Duffield, the probation and parole officer, said this: (Exhibit A)
"There is no doubt Cromarty would have been quite aware of the illegal nature of his activities. He is very well versed on the gun laws and has very strong negative views about them. It seems he chose to ignore the illegality of his behaviour but it is strongly felt he had no sinister intent."
65 Secondly, the following statement by his Honour significantly understated, to my mind, the criminality in respect of Count 2 (the possession of 45 rifles and 58 pistols which were unregistered): (R/S 24)
"However, as I said, it must be borne in mind that, particularly in relation to the weapons described in count 2 in the indictment, by virtue of his licence the offender was perfectly entitled to possess them had he simply registered them."
66 The Firearms Act was part of a national initiative. Registration of each firearm, and authorisation to possess that firearm by an appropriate licence or permit, were the chosen means of control. When applying for a licence, an applicant was obliged to provide the following information: (s18(2) Firearms Act)
"18(2) A licence must:
(a) contain a recent photograph of the person to whom it is issued (such photograph being obtained in accordance with arrangements determined by the Commissioner), and
(b) bear the signature of the licensee, and
(c) specify the licence category, and
(d) specify (except in the case of a firearms dealer licence) the registered firearm or firearms to which the licence relates, and
(e) specify the genuine reason for which the person was issued with the licence, and
(f) (Repealed)
(g) specify (in the case of a firearms dealer licence) the premises where the firearm is authorised to be kept, and
(h) contain a reference to the requirements under this Act relating to the storage and safe keeping of the firearm, and
(i) contain such other detail as may be prescribed by the regulations."
67 A licence, when issued, may be subject to conditions (s19(1)), including requirements in respect of the safekeeping and storage of firearms (s19(2)(a)). The refusal of Mr Cromarty to comply with these provisions defeated the attempt by this legislation to impose strict control upon possession and safe keeping of firearms (cf s3(1) of the Firearms Act: supra paras 14 and 15).
68 Thirdly, it cannot be doubted that Mr Cromarty well appreciated the security risk which his arsenal created. In 1996 Mr Cromarty's home was invaded by three masked intruders, one armed with a sawn-off 12 gauge shotgun. Mr Cromarty described what occurred in these words: (T24)
"A. ... all I was told was get down. They want me on the ground and then fortunately the bloke decided that he didn't like what he'd seen and he left, tripping over his mates doing it."
69 Mr Cromarty elaborated: (T24)
"A. ... I had a safe there, full of guns, and the police asked me what were they there for and I said I don't know, all that was said to me was get down and I said to the officer that actually took the statement that you are glad that they didn't get the safe open, that is what they wanted. Because on the following Friday, that was Tuesday night, and the following Friday they robbed the National Australia Bank in Warners Bay, with a sawn-off shotgun and with a knife I think the other bloke was supposed to have had. I would say it was the same people."
70 Mr Cromarty recognised that authority to possess the firearms which were prohibited under Schedule 1 would not be given unless the firearms were rendered permanently inoperable. He also recognised that to register the weapons which were not prohibited would draw attention to the extent of his collection. He said this: (T21)
"A. ... I had a good relations with the police, I minded my own business and kept out of their way and they left me alone as such, and you just don't want to draw attention, getting checks and all that all the time. That's the reason I didn't actually apply."
71 With some hyperbole, the respondent's submissions described Mr Cromarty's home as "a fortress". It certainly was not a fortress. It was a suburban home with limited security. The back to base alarm, even were it activated, inevitably involved delay. It may offer little protection if, as occurred in 1996, intruders entered the premises whilst Mr Cromarty was there. The premises, moreover, were unoccupied from time to time, although less often after the home invasion than before. To some degree, after that invasion, Mr Cromarty became a prisoner in his own home, precisely because he recognised the security risk which his stockpile created.
72 The following submission was made on Mr Cromarty's behalf:
"Virtually nobody knew of his collection - it was kept a closely guarded secret. The respondent himself was only rarely away from the premises."
73 It may be accepted that nobody, apart from Mr Cromarty, knew the full extent of his collection. However, it cannot be doubted that many knew that Mr Cromarty had an extensive collection. He had acquired the firearms and weapons in that collection over a number of years. His account of the way in which that occurred was vague. People would come to his home because they knew of his interest in guns. That reputation, and the sheer size of his collection, suggests, to my mind, that the existence of the collection was not "a closely guarded secret". One would also infer from the operation of the police, when they executed the search warrant, that they had information suggesting a significant violation of the provisions of the Act.
74 These are matters which go to the objective seriousness of the criminality in these offences. However, on the credit side, two things should be said. First, although there was unquestionably a risk to public safety through the accumulation and possession of such an arsenal, that risk did not materialise. The weapons did not fall into the hands of criminals. They were seized by the police.
75 Secondly, his Honour, as mentioned, also found that Mr Cromarty was not engaged in the trade in illegal weapons. The Crown challenged that finding, drawing attention to the following statement in the report of Dr Peters: (Exhibit 1: 5)
"Ian has no other financial plan in respect to his superannuation, but rather has invested all his money in developing a collection that would only increase in value as years passed. In taking this away he has lost his 'nest egg' for his later years. Likewise revoking his license has effectively prevented him from making a living. At his age he is quite unlikely to be able to turn his hand to anything else."
76 The "nest egg" was valued at something like $300,000. Quite how it was to have been realised was not explored, either by Dr Peters or during the sentencing hearing. During argument on the appeal there was discussion about possible ways in which the "nest egg" could have been lawfully realised. One way was by surrendering the weapons during any renewed amnesty (and accepting compensation at the then market value), or opening a museum. Prohibited firearms within a collection must be rendered permanently inoperable (as prescribed by regulation) and all other firearms temporarily inoperable by the removal of the bolt or firing mechanism or the use of an approved trigger lock (s20 Firearms Act).
77 Two other possibilities were canvassed, neither attractive. It was said that it may have been possible to sell the firearms or weapons interstate or overseas. That would seem unlikely, since the legislation was passed as part of a national drive to control weapons throughout Australia. The legislation interstate is broadly similar to that in New South Wales. There are penalties in the Firearms Act for conspiring to commit offences outside New South Wales (s51C).
78 The second suggestion was no more attractive. It involved Mr Cromarty selling his firearms and weapons to a compliant dealer who would then have 24 hours (without committing an offence) to register them, at which point they could be sold.
79 It is clear on the evidence that Mr Cromarty had not, in the past, engaged in the trade of unregistered or prohibited weapons. The position in the future is less clear. However, it is reasonable to suppose that Mr Cromarty would not sell into the black market. One infers that he had not quite thought through how he might benefit from the collection which he had amassed.