Are Gel blasters “guns” – Yes they are… but at the lower end

By Anthony StrikNews

Medium Neutral Citation:R v Smith [2023] NSWDC 88Hearing dates:14 March 2023Decision date:29 March 2023Jurisdiction:CriminalBefore:P Conlon SC ADCJDecision:

In respect of Counts 10, 16, 23 and 29, without proceeding to conviction each matter is dismissed under S 10(1)(a) of the Crimes (Sentencing Procedure) Act

In respect of Counts 1–5 and 6–9 – record convictions under S 10A of the Crimes (Sentencing Procedure) ActCatchwords:

SENTENCE – Section 4(1) Firearms Act – firearms definition Legislation Cited:

Weapons Prohibition Act 1998 (NSW)

Firearms Act 1996 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)Cases Cited:

R v Olbrich [1999] HCA 54Category:Principal judgmentParties:The King
Adam James SmithRepresentation:Counsel:
N Marney – The Crown
J Korn – The accused
Solicitors:
The Director of Public Prosecutions – The Crown
Higgins Lawyers – The accused
File Number(s):2020/00349602

JUDGMENT

  1. On 7 February 2023 following trial by judge alone, the offender was found guilty of the following counts on Indictment.
  2. Counts 6 and 8 – Possess Prohibited Weapon contrary to S 7(1) of the Weapons Prohibition Act – carrying a maximum penalty of 14 years imprisonment with a standard non-parole period of 5 years.
  3. Counts 10, 16, 23 and 29 – each being charges of Possess more than 3 firearms at least one of which being a pistol or prohibited firearm contrary to S 51D(2) of the Firearms Act – carrying a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment.
  4. He now appears for sentence in respect of each of those matters. Additionally, he is to be sentenced in respect of the following matters to which he has pleaded guilty.
  5. Counts 1–5, 7 and 9 – being charges of Possess Prohibited Weapon contrary to S 7(1) of the Weapons Prohibition Act – carrying a maximum penalty of 14 years imprisonment with a standard non-parole period of 5 years.
  6. The offender is now 35 years of age. On 9 December 2020 police attended his home at 132 Hartley Valley Road, Vale of Clwydd. At that time, he was employed as a Corrective Services Officer. Police entered his home following the execution of a search warrant and indicated the search to be undertaken was in respect of “…a glock pistol, ammunition…cannisters of CS gas, nunchuks, handcuffs, steroids and…any other items unlawfully obtained that may be the property of Corrective Services NSW.”
  7. Ultimately there were no items unlawfully obtained from Corrective Services. However, during the search, police located all the items the subject of each charge on the Indictment. The video of that search was played to the Court during the trial. The offender was totally cooperative during that process.

GEL BLASTER COUNTS

  1. Counts 10, 16, 23 and 29 all involved his possession of items referred to during the course of the trial as “gel blasters”.
  2. It is appropriate that I attach to these sentencing remarks the transcript of my trial judgment. The primary issue at trial was whether “gel blasters” fall within the definition of an “air gun” in S 4(1) of the Firearms Act. Following the affirmative finding, guilty verdicts were recorded.
  3. Expert evidence indicated that gel blasters propel small hydrated gel pellets as a result of a mechanism involving compressed air. In the context of these sentence proceedings, it is appropriate to make the observation that in the State of Queensland, these gel blasters are regarded as children’s toys and they can be legally possessed.
  4. During the course of the search, the offender acknowledged that he had purchased each of the gel blasters in question and he and his children would use them to play. At the time he was asked if he knew it was illegal to possess gel blasters in New South Wales and he replied, “No”.
  5. In every sentencing task, the Court is to have regard to the maximum penalty that applies (in respect of offences under S 51D(2) as earlier mentioned, 20 years imprisonment with a standard non-parole period of 10 years) and then to make an assessment of the objective gravity of the offending conduct. Of course, Courts do have a wide sentencing discretion. However, in the present circumstances, it does seem ludicrous that the possession of a gel blaster, in these particular circumstances, is triable on Indictment in the District Court.
  6. In 2018 Parliament dealt with the issue of “paintball guns”. It introduced the Paintball Act 2018 which in effect, excluded a paintball gun from the definition of a “firearm” in S 4(1) of the Firearms Act. That of course was sensible legislation and paintball businesses now operate legally as a leisure time activity.
  7. The mechanism of a paintball gun is very similar to the mechanism of a gel blaster. Both propel projectiles via compressed air or gas.
  8. At trial, the defence tendered a report of Dr Milund Siddpura (Exhibit 3). He holds the following degrees: Bachelor of Mechanical Engineering from Sardar Patel University, India; Master of Mechanical Engineering (Machine Design) from Sardar Patel University; PhD in Mechanical Engineering from the University of Western Australia. He is presently an Engineering Academic at Engineering Institute of Technology, Australia. His report was tendered without objection.
  9. Dr Siddpura carried out a comparison of a nerf gun, a gel blaster, a paintball gun and an air gun. That also involved a comparison of the magnitude of the impact force of each item. At paragraph 8 of his report, he noted that the impact force of the nerf gun is only “one” lower than the gel blaster; the paintball gun’s impact force is 14 times higher than the gel blaster and an air gun was 665 times higher.
  10. Every parent would understand the harmless nature of a nerf gun. Dr. Siddpura acknowledged a recent research study on the possible type and level of injury caused by the use of gel blasters as including an eye injury. Accordingly, goggles were recommended with their use. Dr. Siddpura also noted that identical protection is recommended for nerf gun users.
  11. Whilst deciding that gel blasters did fall within the S 4(1) definition of the Firearms Act, I was also clearly of the view that the gel blasters in the possession of the offender were only ever intended for use as toys.
  12. Accordingly, in respect of the S 51D(2) charges, I have assessed the offender’s criminal culpability as falling at the absolute bottom of the range for offences of their type. In my view there is urgent need for Parliament to review the situation in respect of gel blasters and if it is considered they should remain illegal in NSW, they should be placed into a category of their own with appropriate penalties (including fines).
  13. In the course of the trial judgment, I made the comment that rather sadly, appropriate prosecutorial discretion is something that would appear to be seldom exercised these days. In particular, that comment was aimed at the inclusion of multiple counts on the Indictment under S 51D(2) and at the inclusion of Count 33 alleging possession of an imitation “firearm”.
  14. That last mentioned item was a gel blaster without the internal working mechanisms to be able to use it as such. That item was also part of Count 29 (s 51D(2) – Possess more than three unregistered firearms). This imitation firearm was said to be the “4th” unregistered firearm that enabled the prosecution to charge a further aggravated form of the offence.
  15. In the trial judgment I also indicated my concern in respect of the present state of the law regarding an item that can fall within the definition of an “imitation” firearm. Clearly such items are capable of being used in the commission of criminal activity and should be subject to a charge under the Firearms legislation. However, if one was to look at a scenario where an “imitation” firearm was found in a child’s bedroom in the course of a search, it is difficult to imagine that Parliament had ever intended such an item be subject to a charge under the Firearms Act, absent any evidence in respect of illegal use. In my view the use of an “imitation” firearm whether the use be actual or intended, should be a critical factor in deciding whether a charge should flow.

POSSESSION OF PROHIBITED WEAPONS

  1. I now turn to the possession of prohibited weapons charges. Counts 1 to 9 are contrary to S 7(1) of the Weapons Prohibition Act. The prohibited items included a butterfly knife, 5 batons, 6 handcuffs, 3 gas cannisters, knuckle dusters, a taser, 3 smoke grenades and a body armour vest.
  2. Before the police started their search, the offender admitted to recently finding a number of items (the prohibited weapons) in a bag in the roof cavity. He then directed officers to a cupboard where he had placed the bag of items. He said, “I put it in my cupboard cause I have kids and I was like, this shit shouldn’t be in the house. But it is not a glock or ammunition or anything…”. He claimed he intended to hand the items in but had not done so.
  3. The Crown has made a number of submissions suggesting that the Court would not accept the offender’s version that he found these items in the roof. The Crown submitted that the Court would have regard to the similarities between some of the items in the bag compared to other items found in the offender’s bedroom and in respect of which the offender acknowledged ownership.
  4. The Court cannot take into account any matters adverse to an offender unless they have been proved beyond reasonable doubt (R v Olbrich [1999] HCA 54). Upon my consideration of the evidence presented at trial and during the sentence proceedings, I am satisfied beyond reasonable doubt that the bag and contents were not coincidentally left in the roof cavity by a person other than the offender. Whilst the police did find certain receipts referable to the offender’s purchase of the gel blasters, no such receipts were found in respect of the prohibited weapons. I am simply unable to conclude how it was that the prohibited weapons came into the offender’s possession. However, I do not regard this finding of great significance as the Crown has submitted and I agree, that the offence is made out by mere possession and does not require any intention to use the weapon for a particular purpose. Further, that the objective seriousness of the offence comes primarily from the nature of the weapon and its characteristics.
  5. Accordingly, in respect of the butterfly knife (Count 1), extendable batons (Count 2), 5 sets of handcuffs (Count 3), and gas cannisters (Count 4), my assessment is that each offence falls just below mid-range for offences of its type.
  6. In respect of the knuckle dusters (Count 5) and the taser and cartridges (Count 6), his possession sits at about the mid-range.
  7. It was clear that the body armour vest (as per search warrant video) would not have fitted the offender. He claimed as much. I assess his possession of this item as falling below mid-range.
  8. The smoke grenades in Counts 7 and 9 fall towards the lower end of the scale. The offender was in possession of a number of similar items that were for use in the course of photography and apparently, as they were determined not to fall within the definition of a prohibited firearm, they were not seized by the police.

SUBJECTIVE CIRCUMSTANCES

  1. The offender is now 35 years of age. He has no criminal history. Following his arrest on 10 December 2020 he was remanded in custody and spent 65 days in gaol before being granted bail on 12 February 2021.
  2. Exhibit 2 is the defence bundle of documents, including a psychiatrist’s report as well as reference/testimonial material.
  3. The report of Dr Olav Nielssen, Psychiatrist is dated 2 February 2021. Consultation for this report occurred whilst the offender was in the Parklea Correctional Centre. The following background information is contained within that report.
  4. The offender was born in Grafton and has a younger sister. His father was in the Australian Army and consequently the family moved several times to accommodate his postings. His parents separated for a while when he was younger but then got back together. After leaving the Army his father joined Corrective Services and then the Police where he remained until his medical retirement. His mother had been a registered nurse and had been doing casual work until her retirement.
  5. The offender attended schools near Grafton, at Merriwa and Lithgow. He did not complete high school leaving in Year 11. After leaving school, he has worked in a bakery, as a cable technician in a coal mine and for the last 10-12 years up to the time of his arrest as a Correctional Officer.
  6. He was married at 22. That marriage lasted about 10 years and 2 sons were born, now 11 and 8 years. Following the breakdown of that marriage, they had shared custody but now the 2 boys are living with his ex-partner full time. He informed the psychiatrist that in recent years, their relationship had been amicable and he had been able to speak to his former partner and children every day whilst in prison.
  7. As at the time of his arrest he had entered a new relationship but they had not yet moved in together. While working as a prison officer he had completed a Certificate 3 of Correctional Practice through TAFE.
  8. He informed the psychiatrist that he had been battling depression, anxiety and post-traumatic stress for a number of years. He also said,

“I have been under a lot of stress at work and they have moved me from Lithgow to Kirkconnell after telling me there was an investigation but they would not tell me what it was…it turned out to be a complaint from a co-worker.”

  1. He was an occasional drinker during his adult life but commented that in the last year his use of alcohol had increased.
  2. The psychiatrist spoke with his present partner who confirmed that while he had been in custody, he was experiencing panic attacks and often thought of suicide. She said that the medication had helped but he still felt anxious. She also said: “I am quite concerned that if he does not get bail soon he might hang himself”.
  3. The diagnosis was of a depressive illness based on the offender’s account of symptoms amounting to the syndrome of depression, the history of treatment for depression by his general practitioner and a doctor he saw in prison, the corroborative information provided by his partner and the offender’s presentation at the time of interview.
  4. There was also a separate diagnosis of anxiety disorder. Dr Nielssen commented that the effect of being a senior prison officer remanded in custody, has had the understandable effect of exacerbating his underlying mood disorder.
  5. The reference/testimonial material within Exhibit 2 is confirmation of the offender’s prior good character. I will only refer to some of those documents, not all.
  6. His parents in their letter dated 2 February 2023, stated:

“As parents we were so proud of Adam graduating from the NSW Corrective Services Academy. Adam has worked at Wellington, Oberon, Bathurst, Lithgow and Kirkconnell Correctional Centres in his 12 years of service. In this time we have witnessed Adam being promoted through the ranks to Senior Correctional Officer.”

  1. They described him as a hard worker and good provider for his family. They commented that this was demonstrated by his recent employment in the mining industry whilst being suspended from his usual employment.
  2. His present partner and fiancée (letter dated 3 February 2023) said she met the offender in 2017 when she transferred to the Parole Unit at the Lithgow Correctional Centre within her role as Senior Community Corrections Officer. Prior to their relationship, she described him as polite, courteous, helpful and adherent to Corrective Services Policy and Procedure. She said, “I always observed him to be professional and law abiding”. She said: “He was an exemplary employee of Corrective Services NSW and was an asset to have on duty, especially when a situation escalated within the Correctional Centre.”
  3. She said that prior to his arrest, in December 2020, she shared the rental property with him, but did not live there full-time. She said his 2 sons:

“resided there on a part time basis as he shared custody with his former wife. I always observed Adam to be a present and committed father, who adored his children and did whatever he could to provide for them and spend time with them.”

  1. She said:

“Adam’s mental health during his incarceration was unstable and he was suicidal. He would call me multiple times per day in tears begging me to get him out of custody. Due to his employment as a Senior Correctional Officer, Adam was housed in solitary confinement, as well as a safe cell which was recording him via a camera 24/7 throughout his time on remand.”

  1. She also said that :

“due to Covid restrictions at the time, and his solitary housing, we were unable to have contact visits with Adam and were also unable to have video visits with him for the first 4-5 weeks of his incarceration.”

  1. He was also suspended without pay during his custody and until some months after his release.
  2. Peter McNamara (Senior Advocate RSL Australia) in his letter dated 30 January 2023 stated:

“Adam has reacted about the current issues before the Court by demonstrating that he will not allow these matters to destroy his life but had gone out and actively pursued other options for employment if needed… he has entered into financial arrangements with his mother to cover his Court and legal costs.”

Clearly a very significant financial debt has been incurred.

  1. Allison Hart (letter undated) wrote:

“Adam is a loving son, brother, uncle, partner, father and nephew. He is a decent, hardworking and trustworthy person. He works hard to support his family and is a devoted father, as proven during the recent hospitalisation of his youngest son. He involves himself with school and sport of his older sons and they share many leisure activities together.”

  1. Kellie-Ann Sommerlad (letter dated 1 January 2023) stated:

“The emotional and mental affects a short term incarceration had on Adam were obvious to me immediately when he came home – you could see how anxious he was. He had lost a lot of his jovial sense of self and even talking to him could be difficult as he would shut off in a conversation”.

  1. She also commented:

“I know Adam is very remorseful for his actions in relation the weapons possession and I honestly believe this situation will not occur again.”

  1. Karyn Ellis (mother of the offender’s fiancée) in her letter dated 5 February 2023, said:

“seeing first hand the shell of a man Adam became after release from his bail refused custody, his withdrawal from society, confusion and shame of his arrest, still haunts me. His depression and anxiety is a daily battle, some days extremely worse than others.”

  1. Elisabeth Petersen (letter dated 1 February 2023) has known the offender for over 7 years. She first met him at Bathurst Correctional Centre where he was part of the Immediate Action Team (IAT). Later transferring to Lithgow Correction Centre, the offender became her immediate Senior in a Volatile Inmate Unit.
  2. She said:

“Adam always acted with integrity and bravery in his job as Senior. I have seen Adam protect a vulnerable inmate with his own body whilst I worked to stop another inmate from stabbing the former… Adam has always been extremely respectful of the law, particularly regarding his employment with NSW Corrective Services…”

  1. Kayley Cunyghame (letter date 16 February 2023) stated:

“I have known Adam since 2015 in a professional and personal capacity. Adam was a mentor for me when I joined Corrective Services NSW and not only was he a colleague that I admired, due to his hard work and dedication to his role as a Correctional Officer, but he quickly became a wonderful friend…. Adam has discussed the charges in detail and he has expressed his genuine regret and significant embarrassment over the matters…”

  1. Leandra Fraser (email dated 5 February 2023) worked with the offender at numerous correctional centres and noted that he had been “promoted to a Senior Correctional Officer achieving the rank earlier that most of his peers.” She also said:

“During my time working with Adam, I always found him to be a dedicated officer, following the Department’s Policy and Procedures with integrity and honesty. Adam was always professional, assisted in training of junior officers and was often called upon to act up to Functional Manager”.

  1. Exhibit 1 is the offender’s own letter to the Court. He outlined the numerous stressors in his personal life leading up to his arrest in December 2020. He stated:

“I have currently been employed by Corrective Services for 12 years, with the last few years being of a suspended status. I have always been an officer who has proudly shown integrity, honesty and courage when faced with situations. When this situation led to me being placed in a gaol cell, it honestly destroyed me. Everything that I had devoted my life to was gone. I contemplated taking my life on more than one occasion.”

  1. He referred to the occasion in about May 2021, several weeks prior to his son being born, when officers from Task Force Raptor attended his home via a Firearms Prohibition Order. After locating a camping knife, he was arrested and taken up the street in his pyjamas before being denied bail. He was then granted bail be a Magistrate in Lithgow Court. Firearm Protection Orders are an important tool for law enforcement authorities particularly concerning the proliferation of firearms within criminal organisations/gangs. Generally, applications are made to the Commissioner of Police for an FPO in respect of persons with significant criminal histories, those with links to organised crime and those with involvement in firearm-related crime. This offender comes nowhere near such a category. An FPO has no expiry date. One wonders if he and his family will continue to be subject to such intrusions
  2. On the final page of his letter, he detailed what can only be described as an exemplary career in Corrective Services.
  3. Finally, he stated:

“I understand the seriousness of these charges and I now understand the urgency in reporting something like this straight away. Valuable life lessons have been learnt through this experience and I will never make this mistake again.”

  1. My consideration of this material allows me to conclude the offender comes before the Court as a person of truly good character.
  2. I have no doubt the offender is genuine in his remorse and am satisfied he will not offend again.
  3. Concerning the offender’s guilty plea to Counts 1 – 5, 7 and 9, I regard those pleas as some evidence of his contrition and acceptance of responsibility. The Crown acknowledged those pleas would usually attract a discount of 25% in respect of Counts 1–5 and 5% in respect of Counts 7 and 9.
  4. I have taken into account the purposes of sentencing set out in S 3A of the Crimes (Sentencing Procedure) Act.
  5. In my time as a Judicial Officer I cannot recall an occasion when I have been more concerned to restore some justice to an offender rather than to further punish him.
  6. I say that because at the time the police executed the search warrant on 9 December 2020, the offender was a person of prior good character, with an exemplary record in Corrective Service and had a young family. Following his arrest, he was refused bail. It is difficult to understand how that could possibly have occurred. He then spent what must have been a harrowing 65 days in gaol.
  7. Following his release from gaol, he and his partner moved from Lithgow to another location and residence. Whilst awaiting Court proceedings Police again attended under the authority of a Firearms Prohibition Order, enabling another search of his home. His partner was 37 weeks pregnant at the time. He was again arrested, this time in respect of possessing an alleged prohibited weapon. He was bail refused once again. Ultimately the charge was withdrawn as the item was a “camping knife” and not a prohibited weapon at all.
  8. The next major issue for the offender came when the DPP offices elected to deal with these matters on Indictment rather than in the Local Court. In my view the sentencing limits of the Local Court could have adequately addressed all the circumstances of the offending conduct. Not only did the DPP elect to have the matters dealt with on Indictment, the number of counts in the Indictment was clearly an example of overcharging. I make that comment in respect of the gel blaster counts. Section 51D(2) of the Firearms Act is a charge of possessing more than 3 unregistered firearms. Clearly the 15 gel blasters could have been the subject of one charge under this section. However, 4 charges under S 51D(2) being the aggravated form of the offence were preferred, with each carrying a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.
  9. A brief examination of the facts concerning his possession of 15 gel blasters would clearly signal to a competent lawyer that the S 5 threshold  had not been crossed. In other words, a custodial penalty was simply not called for. I can do nothing other than shake my head. Perhaps those responsible for finding the Bill of Indictment simply had no appreciation or understanding that there is a world of difference between gel blasters, which are in fact toys, and what is commonly understood as firearms capable of inflicting serious injuries, some of which can prove to be fatal. In no way do I intend this criticism to extend to the Crown Prosecutor who had carriage of the trial before me. At all times he conducted himself in a most professional manner. In Rugby League terms, he was simply given a “hospital pass“. In other words, the Indictment had been settled before he received it.
  10. Having found each of the gel blaster offences proved I have decided not to proceed to conviction. Section 10(3) of the Crimes (Sentencing Procedure) Act sets out those factors a Court may take into account when considering the appropriateness of dismissing a matter under S 10(1)(a). Those factors include: a person’s character; antecedents; age; health and mental condition; the trivial nature of the offence and any other matter the Court thinks proper to consider.
  11. I have detailed the offender’s prior good character and work history. While falling within the definition of a firearm these gel blasters were in fact toys and no other use was ascribed to them. The offender has already suffered a considerable punishment.
  12. Accordingly in respect of Counts 10, 16, 23 and 29, without proceeding to conviction each matter is dismissed under S 10(1)(a) of the Crimes (Sentencing Procedure) Act.
  13. In respect of Counts 1–5 and 6–9 – all charges of Possess Prohibited Weapons – the offender was clearly aware of the nature of these items and that they should not be in his possession. Whilst the concern is that those items could potentially fall into the hands of the wrong people, the offender did have them stored in a bag in a cupboard. Whilst he said he intended to hand them in, he did not do so.
  14. It would appear that the possession of these items was the reason for his suspension from his employment in Corrective Services and ultimately may form the basis for the loss of that employment. That would be unfortunate in the extreme.
  15. I have already noted the significant punishment already suffered, that being his 65 days in custody and also the large financial debt incurred as a result of these criminal proceedings.
  16. Accordingly, I see absolutely no reason to inflict any further punishment. However, convictions will be recorded under S 10A of the Crimes (Sentencing Procedure) Act.

ORDERS

  1. Counts 10, 16, 23 and 29, without proceeding to conviction each matter is dismissed under S 10(1)(a) of the Crimes (Sentencing Procedure) Act.
  2. Counts 1–5 and 6–9, record convictions under S 10A Crimes (Sentencing Procedure) Act.

NOTE

  1. Judgments to be referred to Minister of Police and Attorney General to consider amending legislation.

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Amendments

12 April 2023 – Removed date of orders and amended spelling.