Carlin v R [2019] NSWCCA 130

Carlin v R [2019] NSWCCA 130 · Read the judgment on AustLII

Catchwords: Definition of Firearms and shortened firearms – Correct offences

When is unauthorised possession of a firearm which is prohibited not unauthorised possession of a prohibited firearm? In this case, the Court of Criminal Appeal (‘CCA’) looked at the fine distinction between two similar offences in the Firearms Act 1996 (‘the Act’) and pointed to an issue with shortened firearms which means that the applicable offence is not necessarily obvious.

The applicant pleaded guilty to firearms offences, including three of possessing a prohibited firearm without a licence or permit, contrary to s7(1) of the Act. One of the firearms was a shortened shotgun. The applicant received an aggregate sentence at first sentence, but neither that sentence, nor her grounds of appeal were disclosed in the appeal judgment (which is a unanimous decision of Hoeben CJ at CL, White JA, and Hamill J). But it is clear that, in part, she was appealing against one of the convictions, for the reasons that follow.

For present purposes, the important question is whether a shortened firearm is a ‘prohibited firearm’ (spoiler alert: it is not). ‘Prohibited firearm’ is defined in Schedule 1 of the Act, and none of clauses 1 to 15 of that Schedule are relevant. Clause 16 looks superficially relevant, in that it embraces any firearm which has less than the dimensions prescribed by the regulations (at [5]). And, when you go to the Firearms Regulation 2006, cl. 129 provides for the circumstances in which a firearm is said to have been shortened. Except, that definition doesn’t apply to the offence we’re considering (the one in s7(1) of the Act). That clause applies to a different offence: the one in s62 of the Act, which deals with possessing (or shortening, or supplying) a shortened firearm (at [6]). The s62 offence has the same maximum penalty as the one that the applicant pleaded guilty to, but it was nevertheless the wrong offence; an identical mistake was made in the matter of Baxter v R [2018] NSWCCA 281 (which was a decision similarly-limited in the details provided). The aggregate sentence was quashed and the matter remitted to the District Court for resentencing (for technical reasons the CCA was unable to just substitute a conviction and do the resentencing itself; at [13]).

The practical consequence (or, the shortened version, if you like) is that if a shortened firearm appears amongst the allegations made against your client, the correct offence is probably that under s62 of the Act, not the offence under s7.