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[2019] NSWCCA 130

Carlin v R

1. Extend the time for the applicant to file notice of intention to appeal or to apply for leave to appeal to 15 February 2019. 2. To the extent necessary give leave to the applicant to appeal against her conviction on Count 2 of the indictment dated 20 September 2017 namely, that the applicant, between 19 December 2015 and 21 January 2016 at Penrith in State of New South Wales possessed a prohibited firearm, namely, a shortened 20 Gauge Boito single barrel shotgun with serial number removed, not being authorised to do so by a licence or permit. 3. Allow the appeal in respect of the applicant’s conviction on that count and set aside the conviction. 4. Quash the aggregate sentence imposed on the appellant in the District Court on 18 June 2018. 5. Remit the matter to the District Court for sentence for the offences on Counts 1 and 3 of the indictment dated 20 September 2017 and the offences of possession of an unauthorised firearm and discharging a firearm in a public place and any offence with which the appellant might be charged for possession of a shortened firearm, contrary to s 62(1)(b) of the Firearms Act 1996, if the appellant pleads guilty to that offence. 6. It is noted that the non-parole period of the sentence that is now quashed would expire on 20 November 2019, and it is recommended that if possible the matter should be relisted before the Penrith District Court with priority.

Catchwords

CRIME — Appeals — Application for leave to appeal against sentence and conviction — Primary judge imposed aggregate sentence in respect of offences including offences of unauthorised possession of prohibited firearms contrary to s 7(1) of the Firearms Act 1996 (NSW) to which applicant pleaded guilty — Where one such offence charged under s 7(1) related to possession of a shortened 20-gauge BOITO single-barrel shotgun — Common ground on appeal that agreed description of shotgun did not disclose offence against s 7(1) and that consequentially the relevant count on the indictment and aggregate sentence imposed thereon ought to be quashed — Whether applicant could be resentenced on appeal pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) — No power for Court of Criminal Appeal to re-sentence where there was no other possible count on indictment on which a jury could have found applicant guilty — Proceedings remitted to District Court for re-sentencing

Cases cited

  • Baxter v R[2018] NSWCCA 281
  • Calabria v The Queen (1983) 151 CLR 670;[1983] HCA 33
  • Spies v The Queen (2000) 201 CLR 603;[2000] HCA 43

Legislation cited

  • Crimes Act 1900 (NSW), § 96G
  • Criminal Appeal Act 1912 (NSW), § 7
  • Firearms Act 1996 (NSW), § 7, 7A

Judgment

  1. [1]

    THE COURT: On 7 June 2019, on the applicant’s application for leave to appeal against conviction and sentence, the Court made the following orders:

    1. (1)

      Extend the time for the applicant to file notice of intention to appeal or to apply for leave to appeal to 15 February 2019.

    2. (2)

      To the extent necessary give leave to the applicant to appeal against her conviction on Count 2 of the indictment dated 20 September 2017 namely, that the applicant, between 19 December 2015 and 21 January 2016 at Penrith in State of New South Wales possessed a prohibited firearm, namely, a shortened 20 Gauge Boito single barrel shotgun with serial number removed, not being authorised to do so by a licence or permit.

    3. (3)

      Allow the appeal in respect of the applicant’s conviction on that count and set aside the conviction.

    4. (4)

      Quash the aggregate sentence imposed on the appellant in the District Court on 18 June 2018.

    5. (5)

      Remit the matter to the District Court for sentence for the offences on Counts 1 and 3 of the indictment dated 20 September 2017 and the offences of possession of an unauthorised firearm and discharging a firearm in a public place and any offence with which the appellant might be charged for possession of a shortened firearm, contrary to s 62(1)(b) of the Firearms Act 1996, if the appellant pleads guilty to that offence.

    6. (6)

      It is noted that the non-parole period of the sentence that is now quashed would expire on 20 November 2019, and it is recommended that if possible the matter should be relisted before the Penrith District Court with priority.

  2. [2]

    Reasons were reserved. These are our reasons for the orders made on that day.

  3. [3]

    On various dates between 28 July and 9 February 2018 the applicant pleaded guilty to five offences, including three offences of possessing a prohibited firearm when not authorised to do so by licence or permit contrary to s 7(1) of the Firearms Act 1996 (NSW). She also pleaded guilty to an offence of discharging a firearm in a public place contrary to s 93G(1)(b) of the Crimes Act 1900 (NSW) and of possessing an unauthorised firearm contrary to s 7A(1) of the Firearms Act. One of the three offences for possessing a prohibited firearm to which the applicant pleaded guilty was that she was possessed of a shortened 20 Gauge Boito single-barrel shotgun with serial number removed, not being authorised to do so by a licence or permit. This was charged as an offence under s 7(1) of the Firearms Act. That section provides:

  4. [4]

    The only evidence before the District Court as to the details of that firearm was contained in a statement of agreed facts as follows:

  5. [5]

    The Firearms Act defines a “prohibited firearm” as meaning a firearm described in Schedule 1 to the Act. None of clauses 1-15 of Schedule 1 is applicable to the firearm in question. Clause 16 of Schedule 1 includes within the definition of prohibited firearms the following:

  6. [6]

    It was agreed that the relevant regulation was the Firearms Regulation 2006. Clause 129 of the Firearms Regulation 2006 provided the circumstances in which, for the purposes of s 62(2) of the Firearms Act, a firearm was considered to have been shortened. There was no prescription of the circumstances in which a shortened firearm was a prohibited firearm.

  7. [7]

    Section 62(2) makes it an offence for a person, unless authorised to do so by a permit, to shorten any firearm (other than a pistol) or to possess any such firearm that has been shortened, or to supply or give possession of any such firearm that has been shortened to another person.

  8. [8]

    The maximum penalty for an offence under s 62 is the same as the maximum penalty for an offence under s 7(1).

  9. [9]

    On appeal, the parties agreed that the statement of agreed facts did not disclose an offence against s 7(1) of the Firearms Act. The circumstances are the same as those considered in Baxter v R [2018] NSWCCA 281 at [9]-[13]. The parties were agreed that this count of the indictment should be quashed. They agreed that the consequence of quashing the conviction was that the aggregate sentence imposed on 18 June 2018 should be quashed.

  10. [10]

    Initially, both the applicant and the Crown proposed that rather than remitting the matter to the District Court, this Court should substitute for the conviction entered in the District Court for the offence of possessing the prohibited firearm, being the BOITO shortened shotgun, a conviction for the offence of possessing a shortened firearm contrary to s 62 of the Act. As it was accepted that the aggregate sentence had to be set aside, it was proposed that this Court should re-sentence.

  11. [11]

    The parties initially submitted that s 7(2) of the Criminal Appeal Act 1912 (NSW) conferred power on this Court to take this course.

  12. [12]

    Section 7(2) provides:

  13. [13]

    However, the parties later accepted that that course was not available. There was no count on the indictment on which a jury (if there had been a trial and a jury) could have found the applicant guilty of an offence in relation to the shortened BOITO shotgun (Calabria v The Queen (1983) 151 CLR 670 at 676; [1983] HCA 33; Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [25]).

  14. [14]

    Regrettably, it was necessary to remit the proceeding to the District Court for re-sentencing.

  15. [15]

    The non-parole period for the aggregate sentence imposed on 18 June 2018, being a sentence that has now been quashed, would have expired on 20 November 2019. The listing of the matter for sentence in the District Court is a matter for that court, but it was desirable to note that matter, and recommend that re-sentence be given priority if possible.

  16. [16]

    It was for these reasons that we made the orders set out above.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.