Firearms Lawyer Simon Munslow answers your legal questions.

The Loose Cannon: misdirected laws

Firearms lawyer Simon Munslow will answer your legal questions.Email himwith your query or concern and we’ll publish his response here.

The Shooters and Fishers Party (SFP’) have proposed an amendment to the Crimes Act that would make it an offence to be in possession of a firearm, or imitation firearm, while committing or attempting to commit certain offences, or while aiding or getting someone else to commit the specified offence.

The specified offences include assault, sexual assault, breaking and entering.

The section will provide for a second sentence to be served consecutively, that is of no less duration, than the sentence for the primarily offence and further consecutive sentence if the firearm is discharged at the time that the other offence is committed.

In a similar vein, Queensland has introduced mandatory sentences for certain prescribed criminal offences and NSW Premier O’Farrell has made recent statements indicating that his government is also going to go down the path of mandatory sentences.

I think this type of law is misdirected, and it is not just because I do not like legislation that reduces a Court’s discretion to personalise punishment, as it often leads to prejudice and injustice.

On the topic of injustice, this type of law also has the possibility to sweep up otherwise law abiding citizens, who for example use excessive force when defending themselves, unless very great care is taken in drafting the legislation. Sadly, while many drafters are good, they work under considerable pressure, and are not able to anticipate every possible scenario.

Here I am reminded of a US case, where a prostitute who was effectively enslaved by a pimp succeeded in getting access to his firearm and killing him with it, is serving 25 years with no possibility of any Court doing anything to save her.

Mandatory sentencing, or the SFP form of it, is based upon the false assumption that creation of a separate additional crime associated with the carriage or use of a firearm, will send a message to law breakers that will lead to them not offending.

Politicians have for thousands of years sought to deter crime, by ‘sending a message to criminals’. Unfortunately it never works. There is a whole sub class of people out there who do not consider the law before offending, read papers, or who are otherwise pretty slow on the uptake, as are it seems politicians.

You would think that if anything gets to give a criminal an ‘Aha!’ moment, the sight of a colleague being publically executed would. Not so, the Ancient Romans were perhaps the most creative with their messages. They would feed people to lions, crucify them right way up, or if someone really did something that upset the judge, upside down, and if they wanted to be particularly imaginative with their messages, for example, they would do such things as tying someone naked, in a sack with cats, and throw the whole bundle into the Tiber River, the idea being that the cats would, in a frantic bid at escaping their fate, scratch and gouge the person to be executed.

In Britain they would hang, behead, and even hang, draw, and quarter, that is to say, hang someone until they had almost strangled to death, cut them down, disembowel them, and then tie them up between two teams of horses and literally tear them apart. It would have been quite a colourful spectacle.

Later, they relied on biblical punishment of hell, plus hanging and transportation. With the victims of hangings then being dissected for medical research. At about the time of the American War of Independence, there were some two hundred offences punishable by hanging on the books in Britain and her colonies. Yet the criminal classes still did not get the message.

Currently, if one shops around countries of the world offering death penalties, one can be hung, gassed, electrocuted, beheaded or shot. Have any of these options worked. NO! So why should a lesser penalty such as mandatory sentencing work in an establishment that many released offenders actually reoffend to get back into?

After recognising this, the Scandinavians redesigned their penal system so that it is about rehabilitation and not retribution. Thus, Anders Behring Breivik was, after the political murder of 77 people, sentenced to a 21 years, the maximum available under Norwegian law (although in his case it shall probably be extended indefinitely by additional five year sentences). I do not think that even the Norwegians would be prepared to let Breivik out of gaol.

The issue of the motivation of crime has long interested me, and I have interviewed many people in gaol, Of those who will admit to having offended, they either believed that they would not get caught, as only a small percentage of crimes are solved.

Personally, I do not think punishments are tough enough, however, this has more to do with a sound boyhood grounding in religion, and a marked preference for the old testament over the new, and what the Chardy set would view as a red neck/closet fascist preference for retributive justice.

This is not to say that I believe in the death penalty, though I used to. The number of people acquitted as a result of DNA evidence has convinced me that the system is too prone to error for that. A Premier saying ‘sorry’ by an unmarked grave site does little to rectify a terminally stretched neck.

However, I believe life should be life. That is to say, the punishment should to that extent that it can, should fit the crime.

The second reason why I believe it is misdirected is that punishing offenders who use firearms in Crime could be accommodated in a far simpler way if all that is sought is an increase in penalties.

At the moment, penalties under the Firearms Act are largely meaningless when a serious offence is committed, because a sentence under the Crimes Act, for a major offence, is usually longer than any penalty handed down in respect to a Firearms Act offence, and as the offences will be served concurrently, the only relevance of the presence of a firearm is as an aggravating factor.

Let’s look at Crimes Act offences regarding Armed Robbery. An armed robber may be charged with Armed Robbery in company under s93I, in which he would face a maximum of 14 years gaol.

If he discharges the firearm with intent to cause grievous bodily harm, or to resist arrest s33A, 25 years

Based on Judicial Commission of NSW, the likely penalty given for an armed robbery, in the middle range of seriousness in NSW is likely to be four years, with a first offender likely to get three years.

If one turns to the Firearms Act, one can see, that our hypothetical robber has in all likelihood committed a range of other offences, for example, possession of unregistered firearm in a public place s93 I, which has a maximum penalty of 10 years, or 14, if the firearm is a pistol or a prohibited firearm, or he has more than one of them.

Then, there is liability for possession of prohibited firearm or pistol s7 14 years, or five years if it is a shotgun or rifle (s7A). He would face an additional charge under s62 with a tariff of 10 years if the firearm was shortened and five if he possessed a firearm that had a defaced serial number (s66).

If he caused danger with a firearm (ie if it is loaded) s93G a maximum of 10 years would apply.

Thus, our would be hypothetical robber could get four years for armed robbery, a further non-consecutive three for having caused danger with a firearm and a possible non-consecutive penalty of another three for shortening the firearm.

It would therefore be easier to amend the Firearms Act, to provide that any penalties under it, could not be served concurrently with a Crimes Act penalty, and that the Firearms Act penalties cannot be taken into account when assessing a penalty under the Crimes Act and vice versa.

This proposal would avoid the problems of mandatory sentencing, however, I do not believe that even this would deter criminals.

One of the only things that deters crime, is the significant increase of Police on the beat. Police presence has to be seen and felt, so that offenders feel that there is an immediate risk of apprehension. A hypothetical risk of even a longer period of imprisonment does not have the same effect.

It is hard for Police to be seen, and felt, when conditions for Police Officers are poor, with the result that the profession has a high attrition rate, and where significant Police time is spent over regulating one highly law abiding group in the community – shooters.

This situation would worsen with mandatory sentencing. Longer sentences and lack of discount for pleading guilty, would encourage more people to plead not guilty, increasing the cost of justice and removing more Police off the beat while they attend Court.

It would be hard to believe that the government would be able to fund more Police if the state was spending increased sums on accommodating prisoners in gaol. Politics is as much as anything about financial reality,

My final point is that we have been applying bandaids to legislation for hundreds of years, without any meaningful effect on crime. Witness the Howard gun laws.

Most of these changes have been political knee jerks arising from situations where Politicians have wanted to be seen to be doing something, and they have not been well researched.

I think it is time that society took a look at the laws that we have, and the outcomes that are sought, and rewrite legislation such as the Crimes Act & Firearms Act, to suit measured, achievable, desired outcomes.

A final point about mandatory sentences is that many juries can be reluctant to see someone sentenced for the stated tariff. Leaving a degree of uncertainty there in respect to final outcome leaves jurors more willing to do their job, in a situation where, a refusal to convict, with a finding of not guilty, means that the accused walks.

The political twitches need to stop, and politicians of all persuasions need to start doing some personal research in the area of criminology, and earn their keep.

NSW Registry Audit

I have sent in a submission regarding the NSW Registry audit. I was disappointed to read the terms of reference, which are extremely limiting.

For example, they will only deal with what the Registry does with your licence data, not with potential problems arising from the way Police handle the information.

The audit deals only with the way the Registry works, it will not address underlying issues with the legislation.

Thus, my view is the best that the registry can hope for is to be extremely efficient at being ineffective, which is sad for us, and sad for those staff at the Registry who really do try to offer a good service.

On a lighter note. For a biblical endorsement of hunting (or bow hunting anyway) have look at Genesis 27:3.

Please feel free to comment below.

If you have any firearms issues that concern you please email me- wherever you are in Australia. Your enquiry will be treated as confidential.




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Simon Munslow