Possession or Use of a Firearm: What Do Courts Look at During Sentencing?

Many of the offences relating to the possession or use of firearms in New South Wales are contained in the Firearms Act 1996 (NSW) (‘the Act’).

The Act was introduced as part of a national campaign to strengthen gun control, following the Port Arthur massacre. The campaign also saw a national ‘buy back’ of firearms as well as stricter rules for the possession of a range of weapons.

In the Second Reading Speech introducing the Firearms Bill, the police minister explained the rationale for the new rules: “This legislation puts the public’s right to safety before the privilege of gun ownership.”

Applicable legislation

Section 7 of the Act prescribes a maximum penalty of 14 years imprisonment for the unauthorised possession of a firearm. The section states:

• A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.
• 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:
• uses a pistol or prohibited 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 pistol or prohibited firearm, or
• contravenes any condition of the licence.

Section 7A refers to unauthorised use of a firearm, which includes any purpose other than that which was given by the licence holder as a “genuine reason” for its use. The maximum penalty for that offence is 5 years in prison.

Section 36(1) prescribes a maximum penalty of 14 years imprisonment for supplying, acquiring, possessing or using a pistol or prohibited firearm, or 5 years for any other firearm. A person is not guilty of the charge if they can establish on the balance of probabilities that they did not know, and could not reasonably have known, that the firearm was unregistered, or if they were not the owner of the firearm at the time.

Local court disposal

The offences are known as ‘Table 2’ offences under the Criminal Procedure Act 1986 (NSW), which means they are to be dealt with ‘summarily’ (ie in the Local Court) unless the prosecution ‘elects’ (chooses) to have them finalised in the District Court.

Judicial statistics reveal that the proceedings are normally kept in the Local Court, where the maximum penalty for any single offence is 2 years imprisonment.

Sentencing generally

Section 21A of the Crimes (Sentencing Procedure) Act 1999 sets out a list of ‘aggravating’ and ‘mitigating’ factors that a sentencing court is to take into account, where relevant, when imposing a penalty on an offender.

The presence of aggravating factors can result in a more severe sentence, whilst mitigating factors can result in a degree of leniency.

Aggravating factors include actual or threatened violence or use of a weapon, a record of previous convictions, being in the company of others, substantial loss or damage, a lack of regard for public safety, grave risk of death to another person, financial gain, extensive planning etc.

An aggravating factor will not be relevant if it is already an ingredient of the offence.

Mitigating factors include being of good character, not having a criminal record, being unlikely to reoffend, having good prospects of rehabilitation, not being aware of the consequences of the conduct due to age or immaturity, and so on.

Specific sentencing considerations

Apart from these general sentencing considerations, section 3 of the Firearms Act stipulates a range of principles and objects “which the courts must seek to implement” with “strict adherence”; R v Tolley [2004] NSWCCA 165.

The courts have interpreted the section as giving rise to a range of additional considerations when sentencing defendants for offences under the Act. These include:

1. Degree of connecting criminality

An offender’s criminality is more serious where he or she possesses a firearm as part of their involvement in crimes such as trading in illegal drugs and serious assaults.

In R v Amurao [2005] NSWCCA 32, Justice Hulme remarked at [69], “It behoves the Courts to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law.”

2. Possession for non-criminal purpose

Possession of firearms for non-criminal purposes is generally not regarded as a matter in mitigation.

For instance, the fact that the firearm is for personal protection is not of significant, if any, mitigation even if the offender was genuinely fearful of being attacked: R v Krstic at [14].

In the case of R v AA [2006] NSWCCA 55, the offender possessed a prohibited pistol for self-protection following a severe assault. Despite this, Justice Rothman remarked:

“It cannot be emphasised enough that the rule of law and the authority of courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and it is for the courts to enforce the law.”

3. Period of Possession

The criminality of the offender is not always affected by the length of time of possessing the firearm.

However, a very short period of possession may, in the circumstances of a case, reduce the seriousness of the offence, as in R v Goktas [2004] NSWCCA 296 at [26].

4. Good character

The case of Athos v R (2013) 233 A Crim R 302 is authority for the proposition that, due to the strong need for general deterrence (ie deterring others from possessing firearms), good character is less important in firearms offences than it is for many others.

5. No criminal record

Section 10 dismissals and conditional release orders of the Crimes (Sentencing Procedure) Act provides a mechanism where an offender can avoid a criminal record despite pleading guilty, or being found guilty, of a criminal offence.

The case of Cramp v R [2008] NSWCCA 50 at 52 is states that the need for general deterrence means that a section 10 dismissals or conditional release orders will rarely be appropriate for firearms offences, despite the impact of a conviction.

Significantly, however, Justice Hulme of the court dissented on this aspect of the case, finding that:

“The likely impact of a decision to convict or, in the exercise of a statutory discretion not to convict, and the likely impact of any particular sentence is something to which regard should be had.”