Carlin v The Queen

Case •

[2019] NSWCCA 130

•

20 June 2019

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Carlin v R [2019] NSWCCA 130
Hearing dates: 7 June 2019
Date of orders: 07 June 2019
Decision date: 20 June 2019
Before: Hoeben CJ at CL at [1];
White JA at [1];
Hamill J at [1]
Decision:

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
Legislation Cited: Crimes Act 1900 (NSW), s 96G
Criminal Appeal Act 1912 (NSW), s 7
Firearms Act 1996 (NSW), ss 7, 7A
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
Category:Principal judgment
Parties: Sherrie Carlin (Applicant)
Crown (Respondent)
Representation:

Counsel:
S F Beckett (Applicant)
G Newton (Crown)

  Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2016/73866;2016/144054;2016/333395
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Citation:
n/a
Date of Decision:
18 June 2018
Before:
Hanley DCJ
File Number(s):
2016/73866;
2016/144054;
2016/333395

Judgment

  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. 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.

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

  2. 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:

“7 Offence of unauthorised possession or use of pistols or prohibited firearms (cf 1989 Act s 5, APMC 3)

(1)    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.

Maximum penalty: imprisonment for 14 years.

Note. Reference to a pistol includes a prohibited pistol.”

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

“b.   The shortened 20 gauge BOITO single barrel shot gun was not in working order due to a seized trigger and defective hammer. However, it was at one time capable of propelling a charge of shot by means of an explosive. Three primed cases were discharged in the exhibit. [A] chemical etching process was used to restore the serial numbers on the receiver and the forestock. Portions of the barrel and buttstock had been removed with approximately 22cm of barrel and 13cm of buttstock remaining. The weapon had an overall length of approximately 40.5cm. It is a shortened firearm as defined by virtue of s 4(2)(a) of the Firearms Act (NSW) 1996, as it has dimensions less than the minimum dimensions prescribed by the regulations, it is also a prohibited firearm within the definition of Clause 16 of Schedule 1 to the Firearms Act (NSW) 1996.” (AB 63)

  1. 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:

“16    Any firearm which, or part of which, has a dimension less than the minimum dimension prescribed for the firearm or part by the regulations.”

  1. 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.

  2. 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.

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

  4. 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.

  5. 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.

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

  7. Section 7(2) provides:

“7   Powers of court in special cases

...

(2)   Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.”

  1. 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]).

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

  3. 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.

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

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Decision last updated: 20 June 2019

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Baxter v R [2018] NSWCCA 281
Calabria v The Queen [1983] HCA 33
Spies v The Queen [2000] HCA 43