Cramp v R

[2008] NSWCCA 40

New South Wales
Court of Criminal Appeal

CITATION:	CRAMP, John Robert v R [2008] NSWCCA 40
HEARING DATE(S):	14 December 2007
JUDGMENT DATE:	4 March 2008
JUDGMENT OF:	Grove J at 1; Hulme J at 3; Simpson J at 9
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal against sentence – unauthorised use of prohibited pistol – possession of an unregistered firearm – applicant convicted and s 9 good behaviour bond imposed – whether conviction carries extra-curial punishment – whether s 10 bond should be substituted for s 9 bond and conviction set aside – conviction disentitles renewal of licence but does not necessarily entail automatic revocation of licence – substitution of s 10 would result in the circumvention of the discretion conferred upon the statutory officer holder – appeal dismissed
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Firearms (General) Amendment (Security Industry) Regulation 2003 Firearms (General) Regulation 1997 Firearms Act 1996
CATEGORY:	Principal judgment
CASES CITED:	Daetz and Wilson (2003) 139 A Crim R 216
PARTIES:	John Robert Cramp (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/5232
COUNSEL:	P Hastings QC (Applicant) P Miller (Respondent)
SOLICITORS:	Woodgate Morgan (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/1144
LOWER COURT JUDICIAL OFFICER:	Williams DCJ
LOWER COURT DATE OF DECISION:	3 November 2006

CCA 2006/5232

GROVE J
HULME J
SIMPSON J

4 March 2008

CRAMP, John Robert v R

Judgment

1 GROVE J: I have had the advantage of reading the judgment of Simpson J in draft and gratefully acknowledge and adopt her Honour's collation and analysis of the complexities of the relevant legislation and regulation.

2 Ultimately, the power of this Court to intervene is dependent upon demonstration that the sentencing discretion of Williams DCJ miscarried to some extent or in some aspect. No such demonstration has been achieved and I agree with the order proposed by Simpson J.

3 HULME J: I also acknowledge and adopt Simpson J’s collation of the relevant legislation. In light of her Honour’s review of it and the facts, I can be brief.

4 The ramifications to the Applicant arising from that legislation and which, is likely if not inevitably to result, in practical terms in extra-curial punishment were matters to be taken into account by Williams DCJ – see Daetz and Wilson (2003) 139 A Crim R 216. In that his Honour’s remarks on sentence contain no mention of such matters it is to be inferred he took no account of them and thus erred.

5 This however is not the end of the matter for this Court is obliged to have regard to s6(3) of the Criminal Appeal Act which provides:-

“On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more of less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

6 Can it be said that some other sentence “should have been passed”? There is nothing to suggest that when the Applicant:-

(i) Omitted to refer, in his application for approval to use 18 firearms in his security business, to the two other firearms being used in it,

(ii) Omitted to surrender those firearms when, in the letter approving the use of 12 firearms, he was informed he was obliged to do so, and

(iii) Continued to use the two firearms in his security business.

his actions were other than deliberate.

7 It is also relevant to bear in mind that the taking of the course suggested by the Applicant in this case is, as Simpson J makes clear, calculated to circumvent or influence the exercise of discretions of other statutory office holders. Unlike her Honour, I do not take the view that this is a course which should necessarily be rejected by a sentencing court. 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. Nevertheless that such discretions are given to persons other than the court is something to be taken into account and weighed in the sentencing process.

8 When regard is had to the matters referred to in the two immediately preceding paragraphs I find it impossible to conclude that some other sentence than that imposed by Williams DCJ should have been passed. Accordingly, I agree in the orders proposed by Simpson J.

9 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 3 November 2006 by Williams DCJ. The applicant pleaded guilty to two counts on an indictment, the first of unauthorised use of prohibited pistol, contrary to s 7(1) of the Firearms Act 1996, and the second of possession of an unregistered firearm, contrary to s 36(1) of the same Act. Pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) the applicant asked that three further offences identified on a Form 1 be taken into account. These were one offence of unauthorised use of a prohibited pistol, and two of possession of unregistered firearms. These were taken into account on the sentence imposed in respect of the first count.

10 The offence of unauthorised use of a prohibited pistol carries a maximum term of imprisonment for 14 years; the offence of possession of an unregistered firearm carries a maximum penalty of imprisonment for 10 years.

11 On the second count Williams DCJ made an order under s 10 of the Sentencing Procedure Act, discharging the applicant without proceeding to conviction. The applicant makes no complaint about this order.

12 In relation to the first count, and taking into account the Form 1 offences, Williams DCJ convicted the applicant and, pursuant to s 9 of the Sentencing Procedure Act, imposed a bond requiring the applicant to be of good behaviour for two years from that date.

13 It is this sentence against which the applicant seeks leave to appeal.

The relevant legislation

14 Possession and use of firearms are regulated by, relevantly, the Firearms Act 1996 (“the Act”) and the Firearms (General) Regulation 1997 (“the General Regulation”). The legislation is complex and detailed, for obvious reasons. The General Regulation was significantly amended, particularly with respect to the security industry, with effect from 1 May 2004; Firearms (General) Amendment (Security Industry) Regulation 2003 (“the Security Industry Amendment“). One object, or effect, of the Security Industry Amendment was to limit the number of firearms used by a security business to the minimum necessary, in the opinion of the Commissioner for Police, to permit the functioning of the security business (cl 69A).

15 Section 7 of the Act creates an offence of possession or use of a prohibited firearm or pistol unless authorised by a licence or permit; “prohibited firearm” is defined in s 4 and identified in Sch 1; “prohibited pistol” is defined in s 4C.

16 Part 2 Div 2 of the Act sets out a licensing scheme. In ss 8 and 9 are identified categories of licences, the firearms to which they apply, and the authority conferred by the different categories of licences. For example, a category H licence applies to pistols. The authority conferred by the licence is specified as authority to possess or use a registered pistol, but only for the purpose established by the licensee as being the genuine reason for having the licence. Section 9 contains additional provisions concerning the authority conferred by a licence which it is unnecessary here to set out.

17 By s 10 applications for licences are required to be made in a prescribed manner.

18 In s 11 are set out “general restrictions on issue of licences”. Section 11(1) confers on the Commissioner of Police a discretion, in general terms, to issue or refuse to issue any licence for which an application is made. Relevant for present purposes are the provisions of sub-s (5) which is in the following terms:

“11(5) A licence must not be issued to a person who:
(a) … or
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or
(c) … or
(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or
(e) …”

19 Clause 5 of the General Regulation prescribes offences for the purposes of s 11(5)(b) (but not for the purposes of s 11(5)(d)). Relevantly, the offences prescribed for the purposes of s 11(5)(b) include:

“5(a) An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or
(ii) …”

20 Section 21(1) of the Act provides that, except as provided by the section, a licence continues in force from the time of its issue for a period of five years (or such shorter period as may be prescribed by the regulations), unless it is sooner surrendered or revoked or otherwise ceases to be in force.

21 Clause 15 of the General Regulation provides for renewal of a licence in the following terms:

“15 A licence … may be renewed by making an application, in accordance with the Act and this Regulation, for a new licence … (referred to in this Regulation as a ‘subsequent’ licence …).” (bold added)

22 Section 24 of the Act provides for revocation of licences. Relevantly, it provides, in sub-s (2), that a licence may be revoked:

“(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) … or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) … or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) … or
(d) …”

The “Commissioner” is the Commissioner of Police: s 4(1).

23 In sub-ss (3), (4) and (5) further provisions are made for the mechanics by which revocation can be effected. Again, it is unnecessary to detail these. Division 3 of Pt 2 is concerned with the issue of permits and is not of present relevance.

24 Part 3 is concerned with registration of firearms. By s 33 the Commissioner is required to cause to be compiled and maintained a register of firearms; the section prescribes the information to be contained therein. This includes particulars of the licence (or permit) of the person in respect of whom the firearm is registered. In this way, the legislation ensures a connection between a registered firearm and a person licensed to be in possession of a firearm of that type.

25 Clause 63(2) of the General Regulation prohibits security industry employers from allowing any firearm in their possession to be possessed or used by an employee who was not so authorised by a licence.

26 Clause 67 of the General Regulation requires employers in the security industry to maintain a register containing particulars, relevantly, of the names of each employee authorised by licence to possess a firearm, and of the periods during which each such employee had possession of the firearm.

The facts

27 The applicant was the proprietor of a firearms and security business in the Blue Mountains district. He held a number of licences under the Act, of various categories, permitting him to have possession of, and use, various forms of firearms. In order to comply with the Security Industry Amendment, on 14 April 2004 he applied for approval to use 18 firearms in his security business. In compliance with the statutory requirements he listed the make and serial numbers of each of the 18 firearms the subject of the application.

28 Approval was given to the applicant to use 12 of the identified firearms in his security business. He was required to surrender the remaining six.

29 Also in compliance with statutory requirements, the applicant provided the 12 firearms for which approval had been granted to the NSW Police ballistics section for test firing.

30 The applicant in fact was in possession of a further two pistols which were used in the security part of his business; neither was identified in his application; neither was the subject of approval; and neither was the subject of test firing. One, a Smith and Wesson, was unregistered.

31 It was the use of these two pistols that constituted the offences the subject of the first count in the indictment, and the first offence on the Form 1. The applicant had, in fact, 12 months earlier, applied to have the unregistered Smith and Wesson registered to his licence but his application had not been processed in the Firearms Registry. The other, a Smith and Wesson revolver, was registered to the applicant’s personal licence, but was not authorised for use in security work. The Register maintained by the applicant in compliance with cl 67 of the General Regulation revealed that the unregistered Smith and Wesson had been used in the security business on eight separate occasions between June and September 2004; the revolver had been used “on a regular basis” between April and August.

32 The three weapons the subject of the offence in count 2 in the indictment and the remaining offences on the Form 1 were antique weapons, although in working order.

33 The offences were disclosed in November 2004 when police conducted a firearms and security industry audit upon the applicant’s premises in Faulconbridge. This was his family residence and business premises.

The sentencing proceedings

34 The applicant did not give evidence in the sentencing proceedings. He called evidence from a Barry John Smith who himself is engaged in the firearms industry. Mr Smith gave evidence about the difficulties encountered in dealing with officers administering the statutory scheme, and delays associated with applications for licence or registration. He also said that the applicant’s licences had been suspended, presumably on his being charged with the offences the subject of the present application.

35 Some documentary material was put before the court on the applicant’s behalf. This included correspondence with the Firearms Registry of the NSW Police. It also included medical evidence. The applicant suffers from diabetes Type 2, which had been stable but the symptoms of which had been exacerbated during a period in which he was travelling in the USA, Canada and Alaska. The general practitioner who wrote the report considered that the exacerbation was attributable to:

“… the pressure of attention the staff of his Faulconbridge security company received in his absence from a local Police Officer …”

36 The doctor noted some improvement in the applicant’s condition on his return to Australia, but with a further deterioration that coincided in time with the investigation, the charges, and “the cancellation of most of his licences”. His condition thereafter was described as “extremely hazardous to his ongoing health”. Rapid deterioration, the doctor said, could prove “life threatening”.

37 The applicant is now 59 years of age. He has no criminal record. No other material of a subjective nature was put before Williams DCJ.

38 On behalf of the applicant it was submitted that all offences ought to be dealt with by way of s 10 bonds, the consequence being no conviction. His Honour expressly alluded to and rejected that submission. In doing so his Honour noted that a significant responsibility lies upon licensed individuals to maintain proper records, to ensure registration of necessary firearms and to comply with the regulatory regime imposed by the legislation. He also noted “the alarming figures” in relation to unauthorised use of firearms in the commission of criminal offences and the consequent high onus upon those involved in the industry to comply with the law. He then said:

“Whilst I am prepared to give Mr Cramp the benefit of his prior good character in regard to some of these offences, for the above reasons I do not think it is appropriate for the more serious matters. Apart from anything else, the number of separate offences and weapons involved would mitigate against dealing with them all by way of a s 10 discharge.”


He then proceeded to make the orders I have outlined above.

The application for leave to appeal

39 The grounds of the application were pleaded as follows:

“1. The sentence of the offence in Count 1 was manifestly excessive.

2. The trial judge failed to give sufficient weight to the consequences of convicting the applicant for the offence in Count 1 on the capacity of the applicant to continue to hold licences under the Firearms Act 1996.

3. The trial judge failed to give sufficient weight to the efforts of the applicant to comply with the requirements of the legislation.

4. The trial judge failed to give sufficient weight to the fact that the offences were of a technical character and that there was no evidence of ulterior purposes for the failure of the applicant to comply with the requirements of the legislation.”

40 On the application it was submitted that the penalties which involved a conviction had a “manifestly unfair consequence”. This was that the effect of the convictions is likely to put the applicant out of the business which he has conducted for the past 26 years. It was an important aspect of the case advanced on behalf of the applicant in this Court that a s 9 bond carried more dire consequences for the applicant than a s 10 bond – ie that a conviction would automatically or inevitably result in revocation of his licences, whereas a s 10 bond, without conviction, did not have that automatic or inevitable result.

41 No evidence was tendered to Williams DCJ to establish that this was the likely consequence of conviction (as distinct from the imposition of a bond in a way that did not carry a conviction) and his Honour was not referred to any legislation on which he could draw that inference. Indeed, the contrary was put in submissions by then counsel for the applicant. The transcript records the following submission:

“There is one other thing that my instructing solicitor reminded me of, presently the policy of the Registry has been – for their purposes at least – to treat a s 10 in the same fashion as they treat a conviction. From my experience they tend to jump people through the hoops who are seeking to regain their licences after s 10s have been granted. So if he to (sic) actually get a licence back in regard to any of the ones that he held, there’s a process that has got to be observed. If that process isn’t successful then there’s a minimum of ten years before he will be considered for the grant of a licence again. That is just another matter that I ask to be taken into account in considering the penalty.”

42 It was also submitted that “… the offence (sic) was of a technical and clerical nature”. Consideration of the validity of that proposition requires some further examination of the material put before the court.

43 Included in the documentary material provided to Williams DCJ on behalf of the applicant was a letter on the letterhead of “NSW Police Firearms Registry” dated 4 June 2004. That letter contained the following:

“In accordance with the provisions of clause 69A of the Regulation, an assessment of the number of firearms required by your security firm has been undertaken based on the information, or lack thereof, provided by you to the Security Industry Registry.

…

… As a result of the assessment conducted by the Security Industry Registry, based on the information provided by your firm, I have formed the opinion that you require the use of no more than 12 firearms to carry out your security activities.

Accordingly, the following special conditions will be attached to your licence:

‘In accordance with clause 69A(1) of the Firearms Regulation 1997, as amended, the authority conferred by this licence authorises the licensee to possess and use no more than 12 firearms ’.

IF YOU ARE IN POSSESSION OF ANY FIREARMS IN EXCESS OF THE NUMBER OUTLINED ABOVE, ALL EXCESS FIREARMS ARE REQUIRED TO BE IMMEDIATELY SURRENDERED TO THE POLICE OFFICER SERVING THIS NOTICE .

FAILURE TO SURRENDER THE FIREARMS UPON SERVICE OF THIS NOTICE CONSTITUTES A CRIMINAL OFFENCE . ”

(bold, upper case and underlining all in original)

44 I am unable to accept that the retention by the applicant of 3 firearms additional to the 12 of which he was authorised to have possession constituted offences “of a technical and clerical nature”. Nor would I accept that the use of two pistols in his security business for unauthorised purposes constituted offences “of a technical and clerical nature”. I would reject this submission.

45 As I have indicated above, the central plank of the application lay in the contention that conviction necessarily carried with it a more severe extra curial sanction than a bond under s 10 of the Crimes Act unaccompanied by conviction. That more severe sanction is revocation of licence.

46 The factual contention is not correct. Section 24 of the Act, set out above, provides for revocation. During the course of argument it was acknowledged that sub-s (2) gives the Commissioner of Police a discretion to revoke a licence for various reasons, including for any reason for which the licensee would be required to be refused a licence of the same kind – including conviction, within the previous 10 years, of any prescribed offence. In those circumstances a conviction does not necessarily entail an automatic or inevitable revocation. It is true that, by reason of s 11(5), were the applicant applying for a licence after conviction, the Commissioner would be required to refuse the application on the ground of the conviction, with no discretion not to do so. But that was not the applicant’s situation. The issue would be revocation after conviction – which was discretionary – not the issue of a new licence.

47 I do accept, having regard to the terms of cl 15 of the General Regulation (concerning renewal), that conviction will disentitle the applicant to the renewal of his licences on the expiration of those currently held. That is because the clause explicitly provides for renewal by application for a “new licence”. That, I acknowledge, appears to have this rather odd result: following conviction of a licence-holder, the Commissioner of Police may exercise his discretion not to revoke a licence or licences currently held; but, on the expiration thereof, he has no discretion to issue a new licence or licences. I say that is odd, because (theoretically, at least) a convicted licence-holder may continue to hold a licence at a time closer to the offence of which he (or she) has been convicted, but may be deprived of the opportunity to do so after some time – up to 5 years – has passed. This appears to be so even if the licence-holder’s conduct has, during that time, been exemplary. But that appears to be the correct construction of the legislation. It is to avoid that consequence that the applicant seeks to have a s 10 bond substituted for the s 9 bond, and the conviction set aside.

48 While I accept that in an appropriate case, and in an appropriate manner, a sentencing court may take account of extra-curial punishment in relation to an offence, the focus of the court must remain on conventional sentencing principles: the selection of a sentence that adequately reflects the objective gravity, and the circumstances, of the offence, together with the relevant subjective circumstances. That is precisely what Williams DCJ did. He was conscious of, but rejected, the approach urged on behalf of the applicant. In my opinion, not only was it open to him to do so, but it was correct to do so. The objective and subjective circumstances did not warrant a result that carried no conviction, and, in effect, no punishment other than the obligation to be of good behaviour for two years.

49 If this Court were to make an order of the kind sought, revocation would still be open to the Commissioner in the exercise of his discretion, under either s 24(2)(b) or (c); the Commissioner would, under s 11(1), retain a discretion to issue a new licence, on application under cl 15 of the General Regulation, for a new licence; and s 11(5)(b) would not operate to deprive him of that discretion. If the s 10 bond, with the conviction were to stand, then the last proposition would not be correct, and, on application for renewal, the Commissioner would be obliged, by s 11(5)(b) to refuse the application.

50 This analysis demonstrates, in my opinion, the essential flaw in the reasoning underlying the submissions made on behalf of the applicant. He seeks an order that would circumvent the statutory provisions I have outlined.

51 This Court ought not, in my opinion, be seen to take steps, or to determine this application, that would interfere or have the appearance of interfering, in the processes provided by legislation, and discretions conferred upon other statutory office holders or of circumventing the exercise of those discretions, or to appear to attempt to influence the exercise of those discretions. Nor ought it provide an avenue by which the proper and intended operation of the legislation might be circumvented. Yet that would, in reality, be the effect of acceding to the submission made on behalf of the applicant. The task for this Court is to determine whether Williams DCJ was right or not when he held that the offences were too serious to be dealt with by way of s 10 bonds. It is not to determine whether the subsequent result of a decision on that question adverse to the applicant would, by reason of the statutory provisions, be too harsh. This Court is not in possession of adequate information concerning the general administration of firearms legislation, or the policy that underlies it. The observation made by counsel for the applicant at the hearing concerning the attitude taken to s 10 bonds does not, in any event, suggest that any such order made by this Court would be effective to achieve the purpose for which it is sought.

52 I have come to the view that Williams DCJ was correct in rejecting the submission that he impose s 10 bonds in respect of all offences. While the applicant has (so it is said – there was no evidence to this effect) been engaged in the industry for 26 years, without, apparently, transgression, these breaches were not trivial or “technical or clerical” as was submitted on his behalf. It is of fundamental importance that strict adherence to firearms legislation be enforced. In my opinion conviction was an appropriate, if not inevitable, consequence of the offences.

53 I would grant leave to appeal but dismiss the appeal.

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