Thalari v Regina

CATCHWORDS: CRIMINAL LAW - conviction appeal - appellant pleaded guilty to unauthorised possession of pistol under s.7(1) Firearms Act 1996 - whether miscarriage of justice arose from plea of guilty - whether s.7(1) offence requires possession of a "prohibited pistol" - appellant possessed a "pistol" which was not a "prohibited pistol" - legislative history of s.7(1) offence - Law Part Code considered - held that s.7(1) required unauthorised possession of "pistol" - no miscarriage of justice - sentences of imprisonment imposed for s.7(1) offence and offences of possession of a loaded firearm in a public place and supply prohibited drug - Form 1 offences - whether sentences manifestly excessive

Firearms Act 1996 Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Summary Offences Act 1988 LEGISLATION CITED: Firearms Amendment (Trafficking) Act 2001 Firearms Amendment (Public Safety) Act 2002 Firearms Amendment (Prohibited Pistols) Act 2003 Crimes Legislation Further Amendment Act 2003 Interpretation Act 1987 Criminal Appeal Act 1912

R v Boag (1994) 73 A Crim R 35 R v Van (2002) 129 A Crim R 229 Elmir v R [2009] NSWCCA 22 R v Marchando (2000) 110 A Crim R 337 R v Toro-Martinez (2000) 114 A Crim R 533 R v Sewell [2001] NSWCCA 299 Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 R v Liberti (1991) 66 A Crim R 120 R v Parkes [2004] NSWCCA 377 R v SL [2004] NSWCCA 397 Charlesworth v R [2009] NSWCCA 27 Meissner v The Queen (1995) 184 CLR 132 Lodhi v The Queen (2006) 199 FLR 303 R v Tolley [2004] NSWCCA 165 R v Krstic [2005] NSWCCA 391 CASES CITED : R v Najem [2008] NSWCCA 32 Cramp v R [2008] NSWCCA 40 Luu v R [2008] NSWCCA 285 R v Cromarty (2004) 144 A Crim R 515 R v Young (1999) 46 NSWLR 681 R v PLV (2001) 51 NSWLR 736 Beckwith v The Queen (1976) 135 CLR 569 Chanthaboury v R (2007) 176 A Crim R 438 R v Mitchell [2002] NSWCCA 270 R v Amurao [2005] NSWCCA 32 Yang v R [2007] NSWCCA 37 R v AA [2006] NSWCCA 55 Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 R v Mouloudi [2004] NSWCCA 96 R v Hemsley [2004] NSWCCA 228 R v Hamid (2006) 164 A Crim R 179 Markarian v The Queen (2005) 228 CLR 357

PARTIES: Saheen Thalari (Appellant) Regina (Respondent)

COUNSEL: Mr WJ Hunt (Appellant) Ms JR Dwyer (Respondent)

SOLICITORS: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/1138

YOUNG JA JOHNSON J LATHAM J

26 June 2009 SAHEEN THALARI v REGINA Judgment 1 YOUNG JA: I agree with Johnson J. 2 JOHNSON J: Following pleas of guilty, the Appellant, Saheen Thalari, was sentenced to terms of imprisonment at the Penrith District Court on 15 August 2008 with respect to firearms and drug supply offences. 3 Before this Court, he appeals against his conviction and sentence for an offence of unauthorised possession of a pistol contrary to s.7(1) Firearms Act 1996.

The Sentences 4 On 15 August 2008, the Appellant was sentenced as follows:

(a) Count 1 - unauthorised possession of a pistol contrary to s.7(1) Firearms Act 1996 (maximum penalty 14 years' imprisonment with a standard non-parole period of three years) - sentenced to imprisonment comprising a non-parole period of two years commencing on 5 September 2007, with a balance of term of one year and six months;

(b) Count 2 - possession of a loaded firearm in a public place contrary to s.93G(1)(a)(i) Crimes Act 1900 (maximum penalty 10 years' imprisonment) - sentenced to a fixed term of imprisonment of 18 months commencing on 5 September 2007;

(c) Count 3 - supplying a prohibited drug contrary to s.25(1) Drug Misuse and Trafficking Act 1985 (maximum penalty 15 years' imprisonment) - sentenced to a fixed term of 12 months' imprisonment commencing 5 March 2008. 5 The following offences were taken into account on a Form 1, in passing sentence on Count 1:

(a) Offence 1 - possess unregistered firearm (a .22 calibre pistol) contrary to s.36(1) Firearms Act 1996 ;

(b) Offence 2 - possess ammunition without holding a licence contrary to s.65(3) Firearms Act 1996 ;

(c) Offence 3 - supply prohibited drug (16.1 grams of cannabis leaf) contrary to s.25(1) Drug Misuse and Trafficking Act 1985 ;

(d) Offence 4 - possess prohibited drug (1.57 grams of methylamphetamine) contrary to s.10(1) Drug Misuse and Trafficking Act 1985 ;

(e) Offence 5 - goods in custody (cash in the sum of $565.00) contrary to s.527C(1)(c) Crimes Act 1900 ;

(f) Offence 6 - having custody of a knife in a public place contrary to s.11C(1)(a) Summary Offences Act 1988 . 6 The total effective sentence involved imprisonment for three years and six months with a non-parole period of two years, to date from 5 September 2007. The earliest date upon which the Appellant will be eligible for release on parole is 4 September 2009. The sentences for Counts 2 and 3 were entirely subsumed within the non-parole period fixed for Count 1.

Facts of Offences 7 A Statement of Facts, which was tendered by consent at the sentencing hearing, revealed the following. 8 At about 4.58 pm on 5 September 2007, police were conducting perimeter patrols at the Richmond RAAF Base as part of operations during the APEC Summit. Whilst police were travelling on Pitt Street, Richmond, they observed a green Ford Falcon utility stopped at an intersection with the driver apparently reaching for his seatbelt. Police immediately recognised the Appellant as the driver of the vehicle. Suspecting that the driver was not licensed, police followed the vehicle to a home unit at Bowman Street, Richmond. They knocked on the door of the home unit, a woman answered the door and police saw the Appellant inside. Police searched him and found keys and 15 rounds of .22 calibre ammunition (Form 1, Offence 2). 9 Police searched the vehicle and found a Jonathan Arthur Ciener .22 calibre self-loading pistol (Count 1; Form 1, Offence 1) under the front driver's seat which contained a magazine fitted with 10 .22 calibre long-range bullets. This firearm was loaded and ready to be discharged (Count 2). One of the police officers observed that on the rear right side of the pistol grip, a small identity lug had been removed, that lug ordinarily containing the serial number of the pistol. 10 The police officers also found $565.00 in cash in a wallet in the Appellant's vehicle (Form 1, Offence 5). A further search of the Appellant revealed a black-handled lock knife clipped to the inside of his pants' pocket (Form 1, Offence 6). The Appellant was taken into custody. 11 A further search of the Appellant's vehicle revealed a small plastic resealable bag containing green vegetable matter (later analysed as cannabis). Also located in the vehicle was a black coffee tin containing a medium-sized plastic resealable bag, inside which was another medium-sized resealable bag containing green vegetable matter (later analysed as cannabis), and a further 10 small resealable bags containing cannabis. The total quantity of cannabis was 16.1 grams (Form 1, Offence 3). 12 Police also located within the black coffee tin a further tin containing two small resealable bags in which were found 19 green tablets with the stamped imprint of a butterfly, analysed as 3, 4 methylemedioxymethylamphetamine ("MDMA") weighing 4.82 grams, with 10 of the tablets tested with a purity of 28.5% (Count 3). Police also located within the tin one small resealable bag containing a white-paste substance, analysed as 1.57 grams of methylamphetamine (Form 1, Offence 4). 13 Examination of a mobile phone located within the Appellant's vehicle revealed several messages in the inbox section stating: · "hey bro its Jonezy, can I get some green stuff off you"; · "when you're ready Sarge, Nigel has some interesting info about ace and is going out tonight and wants some pills if possible", and · "Nigel is here, he wants some pills".

The Appellant was known by the nickname of "Sarge" . 14 The Appellant participated in an electronically recorded interview during which he admitted to possessing the knife, stating that he carried it for protection. He also admitted being in possession of the small tin containing ammunition, but denied any knowledge of the ammunition itself. He denied being the driver of the motor vehicle or being in the vehicle at any time during the day. He further denied any knowledge of the firearm or of prohibited drugs located within the vehicle. He admitted ownership of the mobile phone located within the vehicle, but denied any knowledge of the messages on the phone or their content. The Appellant stated that he was unemployed and had no form of income. 15 Further checks by police revealed that the Appellant was on bail for other matters at the time of his arrest. 16 The registered owner of the vehicle was the Appellant's father, who attended Windsor Police Station and informed police that the Appellant was the custodian of the vehicle and that only he and the Appellant had keys to the vehicle. 17 Given the issues raised before this Court, it is appropriate to refer to aspects of the evidence before the District Court concerning the pistol. Senior Constable Thompson observed a black semi-automatic pistol with a brown handgrip lying on the driver's seat of the Appellant's vehicle. The slide of the pistol was closed and in a locked position and a magazine was fitted to it. He removed the magazine and observed that it contained .22 calibre rounds. A certificate of Senior Constable Dusting, of the Forensic Ballistics Investigation Section, described the pistol and ammunition in the following way: "The Jonathan Arthur Ciener manufactured self loading pistol was test fired and is in working order. Three cartridges marked … were discharged in this exhibit for test purposes. It is capable of propelling, by means an explosive, a projectile that could inflict a lethal wound upon a human being. It is reasonably capable of being raised and fired by one hand and does not exceed the prescribed dimension of 65 cm in length. The exhibit … consists of a .22 long rifle calibre model 1911A1 slide and barrel manufactured by Jonathan Arthur Ciener fitted to a Replica Models Inc manufactured frame. The detachable box magazine has the capacity to hold ten .22 long rifle calibre cartridges. In my opinion the exhibit pistol … is a pistol as defined in section 4(1) of the Firearms Act 1996. The 25 cartridges … are of Federal, Philippines, Remington and Winchester manufacture. They are designed for use in weapons chambered for .22 long rifle calibre cartridges and are suitable for use in the exhibit pistol. In my opinion, the exhibit cartridges … are ammunition as defined in section 4(1) of the Firearms Act 1996." 18 Also in evidence were certificates under s.87 Firearms Act 1996 evidencing that the subject pistol had never been registered and that the Appellant was not, on 5 September 2007, the holder of a firearm's licence or permit in New South Wales which authorised the possession or use of firearms.

The Appellant's Subjective Circumstances 19 The Appellant was born in 1981 and was 26 years old at the time of the offences.

20 A pre-sentence report concerning the Appellant was before the District Court together with a report dated 2 October 2007 of Dr Dong Tran, psychiatrist, and a report dated 17 April 2008 of Dr Olav Nielssen, psychiatrist. 21 The Appellant gave evidence at the sentencing hearing, as did his sister. 22 The learned sentencing Judge recounted evidence concerning the Appellant's history of drug abuse, including use of ecstasy and amphetamines. Reference was made to the reports of Dr Tran and Dr Nielssen in which diagnoses of schizophrenia were made. 23 Her Honour recounted the Appellant's evidence concerning an assault upon him which led to his acquisition of the pistol and ammunition. Her Honour observed (ROS8-9): "The offender in evidence said he paid $2,000 for the items. He told Dr Nielssen he paid $500 for the pistol and the bullets. Either way that is a significant sum of money for someone who is unemployed to have ready access to and in addition to those sums he was found to have on him a further $565 at the time of his arrest. He denies that he was in the business of supplying, however it flies in the face of the evidence of the quantities of cash he was able to access, that he was selling drugs just to support his habit or just selling to friends. I find he was involved to a far greater degree than he is willing to admit." 24 Her Honour found that the Appellant was contrite, despite his initial attempts to minimise his level of culpability and that he had good prospects for rehabilitation. 25 Reference was made to the Appellant's limited criminal antecedents, with offences of driving with the mid-range prescribed concentration of alcohol and driving with an expired licence, for which he was fined and disqualified at Windsor Local Court on 7 June 2006. 26 The learned sentencing Judge allowed a combined discount of 30% for the Appellant's pleas of guilty, contrition and his assistance to authorities.

Appeal Against Conviction 27 Grounds of Appeal 1 and 2 are in the following terms:

(1) a miscarriage of justice was occasioned by the sentencing Judge's acceptance of the Appellant's plea of guilty to the offence against s.7 Firearms Act 1996 ;

(2) the plea of guilty to the offence against s.7 Firearms Act 1996 was entered in circumstances amounting to a miscarriage of justice.

Submissions 28 Mr Hunt, counsel for the Appellant, submitted that a miscarriage of justice has occurred because the Appellant, despite his plea of guilty to the first count, was not capable of being guilty of that crime on the evidence before the Court. He submitted that it was an element of the offence under s.7 Firearms Act 1996 that the Appellant was in possession of a "prohibited pistol" as defined by the Act. He submitted that it was not sufficient that the weapon was a "pistol" within the meaning of the Act and that, accordingly, this Court should set aside the conviction on Count 1. 29 This point was not taken in the District Court and was raised, for the first time, in this Court. 30 In support of this argument, Mr Hunt read an affidavit of the Appellant affirmed 22 May 2009 concerning the circumstances in which he came to plead guilty to this count, which disclosed a lack of understanding on his part of what is said to be the technical requirement for this offence that the relevant firearm be a "prohibited pistol" as defined in the Act. 31 The Crown submitted that the relevant element of a s.7 offence was that the person possessed a "pistol" as defined in the Act, and that the term "prohibited pistol" was unrelated to an offence under s.7. Although acknowledging that the Court Attendance Notice charging the Appellant with an offence under s.7 asserted that he "did possess a prohibited pistol", the Crown submitted that this was not an accurate statement of the relevant element of the offence. The Crown submitted that the word "prohibited" in the Court Attendance Notice ought be disregarded as mere surplusage.

Decision 32 This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48]. 34 The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25]. 35 A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46. 36 The question here is whether the Appellant's submission concerning the proper construction of s.7 Firearms Act 1996 ought be accepted. The issue is one of statutory construction. 37 At the outset, I note that the Court Attendance Notice in this case alleged that the Appellant "did possess a prohibited pistol … not being authorised to do by licence or permit". Although the Court Attendance Notice refers to "Law Part Code 53107", it should be observed that that form does not support the text used in the Court Attendance Notice. 38 The term "Law Part Code" has official status, and is defined in Part 75 r 3D(4) Supreme Court Rules as meaning "the Law Part Code allocated to the offence in the Law Codes Database maintained by the Judicial Commission of New South Wales": cf Lodhi v The Queen (2006) 199 FLR 303 at 324 [92] (Spigelman CJ). 39 As published on the Law Codes Database maintained by the Judicial Commission of New South Wales, Law Part Code 53107 (valid from 14 February 2004) provides a short description of an offence under s.7 Firearms Act 1996 of "possess unauthorised prohibited firearm" and a long description "a person must not possess a prohibited firearm unless the person is authorised to do so by a licence or permit". 40 Law Part Code 53108 (also valid from 14 February 2004) contains a short description "possess unauthorised pistol" and a long description "a person must not possess a pistol unless the person is authorised to do so by a licence or permit". 41 It appears that the author of the Court Attendance Notice in this case has used a combination of Law Part Codes 53107 and 53108. Although the content of Law Part Codes 53107 and 53108 assists the Crown construction of s.7, it remains a matter for the Court to undertake the process of statutory construction for itself to resolve the present matter of controversy. 42 Mr Hunt drew the Court's attention to a number of decisions of this Court in which the relevant offence under s.7 was described (in passing) as possession of a "prohibited pistol": R v Tolley [2004] NSWCCA 165 at [49]; R v Krstic [2005] NSWCCA 391 at [3]-[4], [6]; R v Najem [2008] NSWCCA 32 at [2]; Cramp v R [2008] NSWCCA 40 at [9]-[10], [15]; Luu v R [2008] NSWCCA 285 at [4]. In R v Najem, Hulme J at [35] adverted to the present issue: "35 Section 7 of the Firearms Act makes it an offence to possess or use the weapons to which it refers but it does not seem to me to be possible to conclude, at least in the abstract, that one of these concepts is likely to be worse than another. It must be recognised that the range of weapons encompassed by s7 are those answering the description 'a prohibited firearm or pistol'. Given that the Act refers to 'pistol(s)' and 'prohibited pistol(s)' it is not immediately clear whether non-prohibited pistols are within the section although that issue does not arise in this case. The terms 'pistol' and 'prohibited pistol' are defined in s4 and s4C, the difference between the two lying primarily in calibre and length." 43 In none of the cases referred to in the preceding paragraph was this Court called upon to construe s.7 so as to determine the breadth of its application. The present question of construction was not raised for determination. However, it is necessary for this Court to resolve the question. 44 It is helpful to trace the relevant history of the Firearms Act 1996. That Act replaced the Firearms Act 1989 and was part of a national campaign to implement firearms control following the Port Arthur massacre: R v Cromarty (2004) 144 A Crim R 515 at 519 [15]. It has been described as "complex and detailed" legislation: R v Najem at [14]. 45 Section 7 Firearms Act 1996, as enacted, originally provided as follows: "7 Offence of unauthorised possession or use of firearms (cf 1989 Act s 5, APMC 3) (1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or a permit. Maximum penalty on summary conviction; 50 penalty units or imprisonment for 2 years, or both. Maximum penalty on conviction on indictment: imprisonment for 10 years (if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol), or imprisonment for 5 years in any other case. (2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person: (a) uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or (b) contravenes any condition of the licence." 46 It will be observed that s.7(1) created the offence of possession or use of a "firearm", with a higher maximum penalty on conviction on indictment if it was established beyond reasonable doubt that the "firearm" concerned was a "prohibited firearm" or a "pistol". The terms "firearm", "pistol" and "prohibited firearm" were defined in s.4(1) of the 1996 Act in the following way: "… firearm means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm. … pistol means a firearm that:

(a) is reasonably capable of being raised and fired by one hand, and

(b) does not exceed any dimension prescribed by the regulations.

… prohibited firearm means a firearm described in Schedule 1. …" 47 It is apparent that the statutory scheme in 1996 envisaged an aggravated s.7 offence of possession of a "firearm" where it was either a "prohibited firearm" or a "pistol" as defined by the Act. 48 Section 7 was amended by the Firearms Amendment (Trafficking) Act 2001 by increasing the maximum penalty for an aggravated offence under s.7(1) from 10 years to 14 years' imprisonment. 49 Section 7 was amended further by the Firearms Amendment (Public Safety) Act 2002, by omitting the matter relating to penalties at the end of s.7(1), and inserting in its place the following: "Maximum penalty: imprisonment for 14 years if the firearm concerned is a prohibited firearm or pistol, or imprisonment for five years in any other case." 50 This amendment to s.7 lay within Schedule 2 of the 2002 Act which was entitled "Miscellaneous amendments to Firearms Act 1996 to clarify operation of existing penalties". 51 The definitions of "firearm", "prohibited firearm" and "pistol" in s.4(1) of the Act were not altered by the 2001 or 2002 amending Acts. 52 The Firearms Amendment (Prohibited Pistols) Act 2003 commenced on 1 October 2003. The long title of that Act was as follows: "An Act to amend the Firearms Act 1996 and the Firearms (General) Regulation 1997 to make further provision in relation to the regulation and control of pistols used for the purposes of sporting target shooting; to provide compensation for surrendering certain pistols; and for other purposes." 53 The Act introduced a definition of "prohibited pistol" in s.4(1) and s.4C of the Act. Section 4C provides: "4C Meaning of "prohibited pistol " (1) In this Act, prohibited pistol means any of the following kinds of pistol:

(b) a self-loading pistol with a barrel length of less than 120 mm,

(c) a revolver with a barrel length of less than 100 mm, but does not include any such kind of pistol that is a black powder pistol. Note. A prohibited pistol is not a prohibited firearm. Prohibited firearms are listed in Schedule 1 (see definition of prohibited firearm in section 4 (1)). (2) For the purposes of this Act, any pistol that would be a prohibited pistol: (a) if it did not have something missing from it, or a defect or obstruction in it, or

(b) if it were not for the fact that something has been done to it (being something that, in the opinion of the Commissioner, is not in accordance with the recognised specifications for that pistol),

is taken to be a prohibited pistol." 54 The Act made amendments to a range of sections in the Act which referred to a "prohibited pistol": ss.8(1), 16B(1), 20, 58, 63(1A), 78, 78A and clause 21 of Schedule 3 to the Act. It is apparent from these provisions that the term "prohibited pistol" was created as part of a statutory scheme to reduce the range of pistols which were available for the purposes of sporting target shooting. A compensation scheme was established under s.78 of the Act, involving a buy-back period for persons surrendering a "prohibited pistol", and a temporary amnesty was provided for in clause 21 of Schedule 3 of the Act to facilitate the buy-back period. It is clear that the term "prohibited pistol" is a statutory term of art enacted specifically, and defined in s.4C of the Act, to aid this precise statutory purpose concerning sporting target shooting. 55 As s.4C(1) made clear, a "prohibited pistol" was a subclass of "pistol" for the purposes of the Act. Section 4C(1) stated that a "prohibited pistol" meant "any of the following kinds of pistol". The terms "prohibited pistol" and "pistol" were not mutually exclusive. As Hulme J observed in R v Najem at [35] (see [42] above), the difference between the two definitions lay primarily in calibre and length. 56 The amendments effected by this Act did not touch s.7 of the Act or the terms "firearm", "prohibited firearm" or 'pistol" as used in that section and as defined in s.4(1) of the Act. 57 The confined nature of the amendments enacted by the Firearms Amendment (Prohibited Pistols) Act 2003 is confirmed by perusal of the Second Reading Speech of Mr Watkins, the Minister for Police, delivered in the Legislative Assembly on 17 June 2003, which included the following: "I am pleased to introduce the Firearms Amendment (Prohibited Pistols) Bill, which will amend the Firearms Act 1996, the Firearms (General) Regulation 1997 and the prohibited weapons legislation to implement the Prime Minister's handgun controls. This agreement was reached at the Council of Australian Governments [COAG] on 2 December 2002. The Firearms Amendment (Prohibited Pistols) Bill 2003 fully implements the National Agreement, which places a range of restrictions on handgun target shooters. These include restricting handguns that can be used for target shooting to a maximum of .38 calibre, semi-automatic handguns with a barrel length of 120 millimetres or more, and revolvers and single shot handguns with a barrel length of 100 millimetres or more.

Proposed sections 4C and 8 of the Act will create this new class of prohibited pistol, with proposed section 58(2) making it an offence with a maximum penalty of five year's imprisonment to unlawfully possess a prohibited pistol barrel. However, in line with the COAG agreement, there will be two limited classes of person who may access a prohibited pistol. Proposed section 16B provides for persons participating in International Shooting Sport Federation events, which count as Olympic and Commonwealth Games qualifiers, to access highly specialised target pistols which fail to meet the new barrel restrictions. The COAG agreed to this restricted use on the grounds that these highly specialised target pistols are large, visually distinctive and not readily concealable due to their overall size.

The National Agreement also includes provision for a prohibited pistol buyback. Proposed section 78 provides the framework for this buyback.

…" 58 Later in 2003, the Crimes Legislation Further Amendment Act 2003 was enacted. This Act amended s.7, and enacted a new s.7A, which thereafter provided as follows: "7 Offence of unauthorised possession or use of prohibited firearms or pistols

(cf 1989 Act s 5, APMC 3) (1) A person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit.

Maximum penalty: imprisonment for 14 years. (2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person: (a) uses a prohibited firearm or pistol for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the prohibited firearm or pistol, or

(b) contravenes my condition of the licence. (3) If, on the trial for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 7A, it may find the person not guilty of the offence but guilty of an offence under section 7A and the accused is liable to punishment accordingly."

"7A Offence of unauthorised possession or use of firearms generally (1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit. Maximum penalty: imprisonment for 5 years. (2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person: (a) uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or

(b) contravenes any condition of the licence." 59 It will be observed that the effect of these amendments was to divide into separate sections (ss.7 and 7A) that which previously had been covered by s.7(1) of the Act. Section 7(1) now provided for the offence of unauthorised possession or use of a prohibited firearm or pistol, with a maximum penalty of imprisonment for 14 years. Section 7A provided for the lesser offence of unauthorised possession or use of a firearm (not being a prohibited firearm or pistol), with a maximum penalty of imprisonment for five years. 60 Section 7(1) used the phrase "prohibited firearm or pistol". Despite the creation earlier in 2003 of the concept of a "prohibited pistol", ss.7 and 7A did not use that term. The reason for this is clear enough. As explained above, the term "prohibited pistol" was a statutory term of art introduced for a confined purpose by the Firearms Amendment (Prohibited Pistols) Act 2003. Examination of the terms of the legislation, and the statutory purpose identified in the Second Reading Speech, reinforces the view that the term "prohibited pistol" had no role to play with respect to the offence contained in s.7 of the Act. 61 This view is confirmed by reference to the Second Reading Speech of Mr Watkins, the Minister for Police, in the Legislative Assembly on 2 December 2003 with respect to the Crimes Legislation Further Amendment Bill 2003, where he said: "… Schedule 5 makes a minor change to section 7 of the Firearms Act 1996 to create two separate offences for possession or use of an unauthorised firearm. Currently section 7 conflates what are effectively two different offences into one, despite the considerable difference in the degree of criminality associated with those two offences. Namely, a maximum penalty of 14 years in relation to a prohibited firearm or pistol, which remains as section 7 of the Act, and a maximum penalty of 5 years in relation to other firearms, which is now section 7A of the Act.

This amendment clarifies and better defines those two offences and will enable the Judicial Commission and the Bureau of Crime Statistics and Research to better collect and publish sentencing statistics which more accurately reflect the circumstances of the particular case.

The amendments in schedule 5 are minor changes to be viewed in the context of the Government's commitment to significantly overhauling gun laws to improve safety In New South Wales. …" 62 Mr Hunt submitted that the words "prohibited firearm or pistol" in s.7(1) of the Act should be construed to mean "prohibited firearm or prohibited pistol". He submits that the proper construction would see the word "prohibited" qualify each of the words "firearm" and "pistol". Mr Hunt submitted that the amendment to s.7 effected by the Crimes Legislation Further Amendment Act 2003 did not take the opportunity to alter the section to state, for example, "pistol or prohibited firearm". He submits that a consequence of this is that the legislature has adopted language (wittingly or otherwise) which extends the term "prohibited" to both a "firearm" and a "pistol". 63 The Crown submitted that such a construction is entirely inconsistent with the legislative history of s.7(1), and the term "prohibited pistol" created for a confined purpose in 2003. 64 In my view, the short answer to the Appellant's submission is that s.7(1) means what it says. The terms "prohibited firearm" and "pistol" are defined in s.4(1) of the Act. They have different meanings. Since the enactment of the Firearms Act 1996, these definitions have remained constant, and possession or use of such items has constituted an aggravated offence, attracting a higher maximum penalty, under s.7 of the Act. 65 The Appellant's argument requires a construction of the Act which is entirely inconsistent with the statutory purpose and history of s.7, and the term "prohibited pistol" as introduced elsewhere in the Act in 2003 for an entirely different purpose. There is no logical explanation as to why possession of a "prohibited pistol", as defined in s.4C of the Act, would constitute the aggravated offence attracting the higher maximum penalty under s.7 as opposed to possession of a "pistol" as defined in s.4(1) of the Act (which includes the subclass of "prohibited pistol"). In truth, the Appellant's submission injects an element of absurdity into the construction of s.7 of the Act. 66 To the extent that the construction advanced by the Appellant is an arguable one, I am satisfied that such a construction would not promote the purpose or object of the legislation, and that the construction advanced by the Crown is clearly preferable: s.33 Interpretation Act 1987. Use of extrinsic material, in the form of the Second Reading Speeches, to which reference has been made, assists this conclusion: s.34 Interpretation Act 1987. 67 To the extent that the Appellant's argument involves reading in the word "prohibited" so that it qualifies the term "pistol" in s.7(1), no warrant exists for such a construction, which is both strained and entirely inconsistent with the statutory scheme: cf R v Young (1999) 46 NSWLR 681 at 685-691; R v PLV (2001) 51 NSWLR 736 at 742-744 [80]-[91]. The task of the Court is construction of the words actually used by the Parliament and that process militates firmly against the construction advanced by the Appellant. The same conclusion is reached by application of the principle concerning interpretation of penal statutes which, in any event, is one of last resort: Beckwith v The Queen (1976) 135 CLR 569 at 576. 68 I am satisfied that the offence under s.7(1) of the Act involves the unauthorised possession or use of a "prohibited firearm" or a "pistol" as defined in s.4(1) of the Act. The term "pistol" in s.7(1) is not confined to the narrower class of pistol falling within the definition of "prohibited pistol" in s.4C, although s.7 catches unauthorised possession of a "pistol" which is a "prohibited pistol" as well. As long as a pistol is less than 65 cm in overall length, it is a "pistol" for the purposes of s.4(1) of the Act: clause 120 Firearms Regulation 2006. 69 It follows that the content of Law Part Code 53108 (see [40] above) is correct in its description of the relevant offence under s.7(1) of the Act. 70 Likewise, it follows that the Court Attendance Notice in this case was incorrect in alleging that the Appellant possessed a "prohibited pistol". It was accepted in this Court that, should the Appellant's argument be rejected, the word "prohibited" in the Court Attendance Notice could be disregarded as mere surplusage. The Appellant pleaded guilty to an offence of unauthorised possession of a pistol under s.7(1) of the Act. Apart from the admission of the elements of the offence implicit in his plea (see [34] above), there was ample evidence before the District Court in the certificate of Senior Constable Dusting that the item in question constituted a "pistol" as defined in s.4(1) of the Act. 71 It is not necessary to resort to the proviso in s.6(1) Criminal Appeal Act 1912 to resolve the present appeal against conviction. This is not a case where the Court Attendance Notice omitted to allege an essential element of the offence, a circumstance which led to an appeal against conviction being dismissed by application of the proviso in Chanthaboury v R (2007) 176 A Crim R 438. The word "prohibited" in the Court Attendance Notice may be simply disregarded as surplusage, with the Notice otherwise alleging an offence known to law under s.7(1) of the Act. 72 Although the resolution of this issue is, in my view, a straightforward one, it was appropriate to refer to the relevant statutory history of the Firearms Act 1996 given the earlier decisions of this Court referred to at [42] above. The descriptions of s.7 offences in those decisions suggest that, from time to time, police and prosecutors have been misdescribing the offence under s.7(1) as possession of a prohibited pistol. The Court Attendance Notice in this case repeats the same error. 73 The present appeal indicates the wisdom of close compliance by police and prosecutors with the form contained in Law Part Code 53108 with respect to the offence of unauthorised possession of a pistol under s.7(1) of the Act. 74 In my view, Grounds 1 and 2 ought be rejected and the appeal against conviction ought be dismissed.

Application for Leave to Appeal Against Sentence 75 Ground 3 contends that the sentence imposed for the offence under s.7(1) Firearms Act 1996 was manifestly excessive.

Submissions 76 In support of this ground, Mr Hunt submitted that a non-parole period of two years with a balance of term of one year and six months was manifestly excessive, in circumstances where positive findings were made by the sentencing Judge with respect to the Appellant's subjective circumstances and prospects of rehabilitation, and a combined 30% discount was allowed for his early pleas of guilty, contrition and assistance to the authorities. Mr Hunt submitted, in passing, that it was erroneous to factor the Appellant's contrition into that discount. 77 Mr Hunt accepted that her Honour was entitled to have regard to the standard non-parole period as a guidepost, notwithstanding the Appellant's plea of guilty to the s.7(1) offence. He submitted that the unusual circumstances of the s.7(1) offence, whereby the Appellant possessed the pistol as a consequence of an attack upon him at an earlier time, was a matter which reduced the objective seriousness of the offence. He submitted that an effective head sentence of three years and six months, with a non-parole period of two years, after application of a 30% discount, placed too great an emphasis on the circumstances of the offences and on specific and general deterrence, as opposed to rehabilitation of a relatively young offender with subjective mitigating factors in terms of his mental health and drug usage. 78 Whilst acknowledging that it was necessary for the sentencing Judge to have regard to the six matters on the Form 1, Mr Hunt contended that the sentence imposed was manifestly excessive. 79 Although accepting that sentencing statistics are a blunt tool in the absence of factual particulars of other cases, Mr Hunt sought to rely upon statistics compiled by the Judicial Commission of New South Wales in support of his submission of manifest excess in the imposition of sentence on the s.7(1) offence. 80 The Crown submitted that the s.7(1) offence in this case was a serious one, and that it was necessary for the sentencing Judge to have regard as well to the six offences to be taken into account on the Form 1. The offences were committed whilst the Appellant was on bail with respect to other matters. 81 The Crown submitted that, despite some unusual features, the s.7(1) offence was objectively serious and the sentencing Judge had found, correctly, that it fell towards the mid-range of objective seriousness. The Crown pointed to the fact that the pistol was loaded, that additional ammunition was found and that the firearm offences were committed in the broader context of the Appellant supplying drugs. The Crown submitted that the sentence was not manifestly excessive.

Decision 82 The Appellant's narrow focus on the sentence imposed on Count 1 introduces an element of artificiality to the case. The Appellant was sentenced for three offences, with the Form 1 offences to be taken into account, as well, on Count 1. Counts 2 and 3 were separate offences involving serious criminality. Count 3 was a deemed supply offence involving the Appellant's possession of 4.82 grams of MDMA - more than six times the traffickable quantity (0.75 grams). Yet the Appellant's sentences for Counts 2 and 3 fell entirely within the non-parole period for Count 1. 83 I turn to the argument directed to the sentence on Count 1. 84 In R v Najem, Hulme J at [38] pointed to what were described as "two irreconcilable standards" against which a s.7(1) offence was to be measured - a maximum penalty of 14 years' imprisonment, but a standard non-parole period of three years. 85 In approaching the challenge to the sentence imposed in this case, it is necessary to keep in mind the available maximum penalty for the s.7(1) offence, as well as the relatively low standard non-parole period which is available, as a guidepost, following a plea of guilty. 86 Although the Appellant's reason for acquiring the pistol was somewhat unusual, it remained the fact that at the time of detection by police, he possessed a loaded pistol in the vehicle, in conjunction with a range of drugs which he possessed for supply. He possessed the paraphernalia of a drug supplier including plastic bags which, it may readily be inferred, were to be used for the purpose of supplying drugs, together with a not insignificant sum of money. He had spent a substantial sum of money to purchase the pistol from a criminal source. 87 Despite the Appellant's unwillingness in his evidence at the sentencing hearing to acknowledge the extent of his drug supply, the messages on his mobile phone (see [13] above), and his possession of funds, point clearly to the business of drug supply. 88 The fact that the pistol was loaded, and that the Appellant possessed other ammunition, bore upon the seriousness of his crimes: R v Mitchell [2002] NSWCCA 270 at [14]; R v Amurao [2005] NSWCCA 32 at [69]; Yang v R [2007] NSWCCA 37 at [18]. The Appellant's claim that he possessed the loaded pistol for his own protection was not a matter of significant, if any, mitigation, since the policy of the legislature evinced by the enactment of the offence under 7(1), with a maximum penalty of 14 years' imprisonment, was to act as a deterrent, and to punish possession of a pistol per se: R v Krstic at [14]. The rule of law, and the authority of courts, depends upon the proposition that persons do not, by illegal means, take their protection into their own hands: R v AA [2006] NSWCCA 55 at [46]. 89 The fact that the serial number of the pistol had been obliterated, although explicable by the criminal origin of the weapon, does not assist the Appellant, who possessed the firearm for criminal purposes: Yang v R at [18]. The fact that the Appellant possessed the pistol in a context where he was involved in the supply of drugs also bears on the objective seriousness of the pistol offence: Luu v R at [32]. 90 It was necessary for the sentencing Judge to have regard, as well, in imposing sentence on Count 1 to the six offences contained in the Form 1. These matters were to be taken into account in sentencing the Appellant, with a view to increasing the penalty that would otherwise be appropriate for the s.7(1) offence. The sentence imposed for this offence had to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the Form 1 offences: Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 at 159 [42]-[43]; R v Mouloudi [2004] NSWCCA 96 at [66]. 91 The sentencing Judge had regard to the objective seriousness of the offences and the Appellant's subjective circumstances. In the circumstances of the case, a combined discount of 30% was allowed. A generous finding was made that the Appellant was contrite, although he denied that he was in the business of supplying drugs, a position rejected by the sentencing Judge (see [23] above), and he had been otherwise caught red-handed with respect to the other offences. I do not accept Mr Hunt's submission that error is revealed in the use of a rolled-up discount in this case. 92 It was appropriate for the sentencing Judge to have regard to issues of general and specific deterrence in the imposition of sentence. Although there was some evidence concerning the Appellant's mental state in psychiatric reports prepared for the purpose of sentencing proceedings, that evidence, in my view, did not render the Appellant an inappropriate vehicle for general deterrence. Mr Hunt referred to this issue only in passing, noting that he did not "mount a full Hemsley style of argument" in this Court. No such argument had been advanced in the District Court. 93 Whether the principle emerging from cases such as R v Hemsley [2004] NSWCCA 228 ought be applied, so as to render an offender a less appropriate vehicle for general deterrence, depends upon the circumstances of the case. See, generally, R v Hamid (2006) 164 A Crim R 179 at 198-200 [109]-[115] and the cases referred to therein. In this case, the Appellant was involved in the supply of drugs for gain, as well as being a personal user of drugs, and he possessed a loaded and lethal pistol in the context of these activities. I do not consider that the evidence before the District Court concerning the Appellant's mental state rendered him a less appropriate vehicle for general deterrence. Indeed, the issue of public safety arising from his possession of a loaded pistol tends to heighten concern, in a manner which might fairly be reflected in a significant allowance for personal and general deterrence in this case. 94 I do not consider that sentencing statistics for s.7(1) offences provide any real assistance in this case, where there were significant offences to be taken into account on a Form 1 in passing sentence for the s.7(1) offence. 95 To make good Ground 3 asserting manifest excess, it is necessary for the Appellant to demonstrate that the sentence imposed on Count 1 was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25]. The Appellant has not made good this ground. 96 Indeed, the total effective sentence imposed for the combination of firearms and drug supply offences committed by the Appellant lay towards the lenient end of the range of sentence for such criminality.

Proposed Orders 98 I propose the following orders:

(b) grant leave to appeal against sentence, but appeal dismissed. 99 LATHAM J: I agree with Johnson J. **********

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