NSW Police v MacLauchlan

[2019] NSWLC 13

Local Court

New South Wales

Medium Neutral Citation:

NSW Police v MacLauchlan [2019] NSWLC 13

Date of orders:

6 May 2019

Decision date:

06 May 2019

Jurisdiction:

Criminal

Before:

Brender LCM

Decision:

The accused is convicted and fined $550 on each sequence.

Catchwords:

CRIME — Conviction and fines

Legislation Cited:

Crimes (Sentencing Procedure) Act1999

Summary Offences Act 1988

Firearms Act 1996

Firearms Regulations 2017

Drug Misuse and Trafficking Act 1985

Category:

Sentence

Parties:

Defendant: Michael Terrence MacLauchlan
Prosecution: NSW Police

Representation:

Solicitor for Mr MacLauchlan: Chen
Prosecutor: Sergeant Mulligan

File Number(s):

2019/00076468

Judgment

1. Mr MacLauchlan pleaded guilty at the first opportunity to possession of a drug and custody of a knife. The drug was 4.7 g of cannabis inclusive of packaging. The knife was not described in the facts but he had it in his pocket and by his plea of guilty therefore concedes he did so without reasonable excuse in a public place.

2. Mr MacLauchlan was born in 1969 and has a reasonably lengthy criminal record between the period 1987 to 2009, including for drug possession and has had s 9 bonds in 2009 for common assault and behaving in an offensive manner. In Victoria in 2007 he received a prison term for possessing a prohibited weapon and a controlled weapon and other charges. He has been offence free for the past 10 years

3. Sections 9 and 10 of the Crimes (Sentencing Procedure) Act1999 confer a discretion not to convict. Those sections refer to:

(a)  the person’s character, antecedents, age, health and mental condition,

(b)  whether the offence is of a trivial nature,

(c)  the extenuating circumstances in which the offence was committed,

(d)  any other matter that the court thinks proper to consider.

4. Bearing in mind those matters, particularly the reference to antecedents, the accused’s record in my view would disentitled him to the leniency involved in the exercise of the discretion not to convict, despite the fact that the two charges to which he has pleaded guilty at first opportunity are at the lower end of objective seriousness in terms of the particular facts. Another indicia of their lower level of seriousness is the fact that the knife charge in some circumstances can be dealt with by way of an out of court fine (s29A of the Summary Offences Act 1988), and the drug charge similarly by a cannabis caution.

5. However it was put to me that Mr MacLauchlan has a firearms license and that the consequences of anything other than a dismissal would be the loss of his firearms licence which would or might affect his livelihood. As I understood the submission and unsworn statement by a possible employer, he was hoping to get some rural work for which a firearms licence might be important.

6. Section 11 of the Firearms Act 1996 sets out the circumstances in which a licence must not be issued. Section 24 of that act provides that a licence may be revoked if for any reason a licence would be required to be refused. Thus the first point to make is that any revocation of the license is discretionary, and the Commissioner will no doubt take into account all relevant facts including his record and the gravity of this offending.

7. It is useful to explain the operation of s 11 of the Firearms Act with reference to this offending.

8. Section 11 relevantly provides as follows:

(5)    A licence must not be issued to a person who:

(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

(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… (emphasis added).

9. The Firearms Regulations 2017 relevantly provides as follows

5(1) For the purposes of sections 11 (5) (b) …, the following offences are prescribed:

(a)  Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under:

1. )  the law of any Australian jurisdiction.…

(b)  Offences relating to prohibited drugs etc

An offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 … being an offence in respect of which the penalty imposed included any term of imprisonment (whether or not suspended), a community service order, a good behaviour bond or a penalty of $2,200 or more, and committed under —

(i)  the law of any Australian jurisdiction…

And:

Section 5(2) Persons subject to good behaviour bonds For the purposes of sections 11 (5) (d) … of the Act, the following offences are prescribed in respect of a person subject to a good behaviour bond —

(a)  an offence referred to in subclause (1) (a), (c), (e) or (g)–(k),

(b)  an offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985... committed under —

(i)  the law of any Australian jurisdiction…

10. This means that with respect to possession of the drug, a licence must be refused under s11(b) if he receives a conviction and a term of imprisonment, a community service order, a good behaviour bond or a penalty of $2200 or more.

11. Under s11(d) it also must be refused if he receives a good behaviour bond. It would appear that that would not require a conviction. Section 77 of the Crimes (Sentencing Procedure) Act 1992, a reference to a good behaviour bond is taken in any Act to include a reference to a community correction order or a conditional release order. Thus the licence must be refused if he receives a community correction order or a conditional release order, with or without conviction.

12. With respect to the custody of a knife charge, assuming a knife is a weapon, a licence must be refused under s 11(b) if he is convicted and under s 11(d) if he receives a community correction order or a conditional release order, with or without conviction.

13. That last conclusion assumes that a knife, or this knife in particular, is a weapon. Weapon is not defined.

14. It would be wrong to fashion a sentence outcome to avoid the possible consequences of a conviction, if that sentence was not otherwise appropriate. In my view the inadvertent custody of knife with no particular aggravating features, and the possession of a small quantity of cannabis are at the lower end of objective seriousness and in all the circumstances warrant a relatively modest fine. I do not think that that this matter fits within the categories in ss 9 or 10 such as to warrant a dismissal either under s 10 (1)(a) or by way of a conditional release order without conviction. I also find that cause is not shown why there shouldn’t be conviction within the meaning of s 193 of the Criminal Procedure Act (“If the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly”).

15. For all those reasons I propose to convict and fine the accused $550 on each sequence.

16. The effect of the convictions and fines I intend to impose will be I expect that the drug possession charge will not enliven the discretionary provisions of s 24 of the Firearms Act, however custody of a knife exposes the defendant to that possibility, that is that due to the conviction that his firearms licence may be revoked by the Commissioner (assuming the custody of the knife is a weapons charge). That action might be considered unlikely but that is a matter for others. I note that pursuant to s 75, the defendant may apply to the Civil and Administrative Tribunal for an administrative review if he exercises a discretion adversely to him.

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Decision last updated: 26 November 2021