Baxter v R

[2018] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Baxter v R [2018] NSWCCA 281

Hearing dates:

8 October 2018

Date of orders:

07 December 2018

Decision date:

07 December 2018

Before:

White JA
Walton J
Wilson J

Decision:

The Court orders:

 

(1) Give leave to the applicant to appeal against the conviction for offences of attempt to supply a prohibited firearm, and possess a prohibited firearm.

 

(2) Allow the appeal to the Court in respect of the convictions of those offences, and set aside the convictions.

 

(3) Quash the aggregate sentence imposed on the appellant in the District Court on 3 November 2017.

(4) Remit the matter to the District Court for sentence for the offence of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act. Offences contrary to ss 29(1)(a) and 65(3) of the Firearms Act are remitted to that Court for further order.

Catchwords:

CRIME – appeal against sentence – aggregate sentence – firearms offences – concessions by the Crown – orders by consent – evidence not capable of establishing the firearms were “prohibited firearms” within the meaning of that expression in the Firearms Act 1996 (NSW) – consequences of quashing those the convictions – no lawful sentences exist for the remaining offences –leave to the applicant to appeal against the conviction – quash the aggregate sentence – remit the matter to the District Court for sentencing

Legislation Cited:

Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)
Firearms Regulation 2017 (NSW)

Cases Cited:

DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17

Category:

Principal judgment

Parties:

Jamie Alan Baxter (Applicant)
Regina (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
C Curtis (Respondent)

  Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/239913

 Decision under appeal 

Court or tribunal:

Newcastle District Court

Jurisdiction:

Criminal

Date of Decision:

3 November 2017

Before:

Berman SC DCJ

File Number(s):

2016/239913

JUDGMENT

1. THE COURT: By a notice of appeal filed on 9 July 2018, Jamie Alan Baxter (“the applicant”) sought leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against a sentence imposed by Judge Berman SC in the Newcastle District Court on 3 November 2017.

2. The applicant was convicted of the following offences:

1. supply 210 grams of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (sequence 12);

2. attempted supply of a prohibited firearm (shortened single barrel 12 gauge shotgun) contrary to s 36(1) of the Firearms Act 1996 (NSW) (sequence 11);

3. supply (deemed) 22 grams of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act (sequence 6); and

4. possess a prohibited firearm (shortened single barrel 12 gauge shotgun) contrary to s 7(1) of the Firearms Act (sequence 2) (taking into account offences on a Form 1 document, including “not keep firearm safely” and “possess ammunition” contrary to ss 38(1)(a) and 65(3) of the Firearms Act, respectively).

(The convictions for contravention of the Firearms Act shall be referred to as “the firearm offences”).

3. His Honour imposed an aggregate sentence of 8 years and 6 months to commence on 9 August 2016 with a non-parole period of 6 years expiring on 8 August 2022.

4. There was a single ground of appeal, namely, that “the sentence applied to [the applicant] was manifestly excessive and another sentence is warranted in law”. However, the consideration of the merits of that ground became unnecessary due to a concession made by the Crown as to the sustainability at law of the firearms offences.

5. In written submissions filed on behalf of the Crown, attention was drawn to a conviction appeal which was upheld by this Court on 13 August 2018 (Egan v R, matter no 2015/314523) which, it was contended, had implications for the conviction of the applicant for the firearm offences in the present case. It was conceded that the evidence as to the firearms the subject of the firearm offences, was not capable of establishing that they were “prohibited firearms” within the meaning of that expression in the Firearms Act.

6. It was acknowledged by the Crown that, if that analysis was correct, the convictions for the firearm offences could not be sustained. The reservation contained in that concession was due to the fact that no reasons have been published in the matter of Egan v R. Nonetheless, it was contended that the orders made by this Court in the disposition of that matter suggested the Court had accepted essentially the same concession made by the Crown in that matter. As the applicant was sentenced to an aggregate sentence, the consequences of quashing the convictions for the firearms offences would be that the aggregate sentence could not stand.

7. In the circumstances, and with the concurrence of the applicant, the Court made orders at the hearing of this matter consistent with those made in the matter of Egan v R. The Court’s orders were subsequently incorrectly entered on JusticeLink, and must be corrected to truly represent the Court’s earlier pronouncement and intention. That correction is made pursuant to the Court’s inherent jurisdiction to correct such errors: DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17, at [34] (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). The orders originally announced, in corrected form, are as follows:

1. Give leave to the applicant to appeal against the conviction for offences of attempt to supply a prohibited firearm, and possess a prohibited firearm.

2. Allow the appeal to the Court in respect of the convictions of those offences, and set aside the convictions.

3. Quash the aggregate sentence imposed on the appellant in the District Court on 3 November 2017.

4. Remit the matter to the District Court for sentence for the offence of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act. Offences contrary to ss 29(1)(a) and 65(3) of the Firearms Act are remitted to that Court for further order.

8. It was indicated at the hearing of the matter that short reasons for the original pronounced orders would be provided in due course. These are our reasons for the making of those orders.

9. The only evidence before the Court below as to the firearm the subject of the firearm offences was contained in statement of agreed facts in which the firearm was described as “shortened 12 gauge single barrel shotgun” which “had been altered by shortening both the barrel and stock resulting in a total length of 32 cm”.

10. Section 4 of the Firearms Act defines “prohibited firearms” by reference to Schedule 1 of that Act. Schedule 1 contains a list of firearms that are prohibited firearms. By clause 16 of Schedule 1, a prohibited firearm includes “[a]ny firearm which… has a dimension less than the minimum dimension prescribed for the firearm… by the regulations”.

11. However, the only relevant regulation, in that respect, namely, one that refers to the minimum dimensions of firearms, is reg 152 of the Firearms Regulation 2017 (NSW). This regulation expressly states that the purpose of the regulation is to prescribe the characteristics of shortened firearms “[f]or the purposes of section 62(2) of the Act”. Section 62(2) of the Firearms Act pertains, inter alia, only to shortened firearms and provides for the making of regulations as to the kinds of firearms that are to be considered as having been shortened “for the purposes of this section”.

12. The language of reg 152 does not permit a construction that the regulation extends to the prescription of the minimum dimensions of cl 16 of Sch 1 of the Firearms Act.

13. There is no definition of a prohibited firearm under the Firearms Act which could sustain the convictions of the applicant for the two firearm offences. The convictions must, therefore, be quashed.

14. As an aggregate sentence was imposed on the applicant, the consequence of quashing the convictions was that no lawful sentence existed for the remaining offences and, hence, the sentence must too be quashed. Orders were made accordingly and the matter remitted to the District Court.

15. In the result, the Court makes the following orders:

1. Give leave to the applicant to appeal against the conviction for offences of attempt to supply a prohibited firearm, and possess a prohibited firearm.

2. Allow the appeal to the Court in respect of the convictions of those offences, and set aside the convictions.

3. Quash the aggregate sentence imposed on the appellant in the District Court on 3 November 2017.

4. Remit the matter to the District Court for sentence for the offence of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act. Offences contrary to ss 29(1)(a) and 65(3) of the Firearms Act are remitted to that Court for further order.

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Decision last updated: 10 December 2018