R v Lucas [2023] NSWSC 1357

Supreme Court New South Wales

Medium Neutral Citation: R v Lucas [2023] NSWSC 1357 Hearing dates: 26 October 2023 Date of orders: 26 October 2023 Decision date: 26 October 2023 Jurisdiction: Common Law Before: Lonergan J Decision: I find the offence of possession of a firearm (a gel blaster) contrary to s 7A(1) of the Firearms Act proven and dismiss the charge under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Catchwords: CRIMINAL LAW – sentence – guilty plea – firearms offence involving gel blaster – trivial offence – s 10 of the Crimes (Sentencing Procedure) Act applied – charge dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code Act 1995 (Cth) Firearms Act 1996 (NSW) Category: Sentence Parties: Rex (Crown) Joshua Lucas (Accused) Representation: Counsel: R Ranken / A Payten (Crown) J Brock / P Ye (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Legal Aid New South Wales (Accused) File Number(s): 2020/00082674 Publication restriction: Nil

revised ex tempore remarks on sentence 1. Today, shortly after midday, a jury of 12 acquitted Joshua Lucas of a serious offence against the Criminal Code Act (Cth). As he was also charged with an offence contained on a s 166 certificate, I am required to consider and impose an appropriate sentence for that offence. That offence is that in contravention of s 7A(1) of the Firearms Act 1996 (NSW), Joshua Lucas did, on 10 November 2019 at Tomerong, possess a firearm, namely a gel blaster pump action shotgun, which is an air gun, not being authorised to do so by a permit or licence. 2. The offence attracts a potential maximum penalty of 5 years imprisonment. The offence effectively does not differentiate between a firearm capable of firing bullets and an item such as the gel blaster the subject of this charge. 3. The circumstances of the obtaining of that item, the item itself, and its deployment for a rather childish and immature photo opportunity at about 5:00am on 10 November 2019 were all the subject of specific evidence in the trial. 4. The evidence establishes that the item itself is a light, evidently plastic toy that has the capacity to fire water infused coloured balls that will splatter on impact. The item was purchased from a company in Queensland, a State of Australia where, amongst other States and Territories of Australia, such an item is not considered to be a firearm, and it is legal to possess such a toy without any permit. 5. I accept the evidence of Joshua's brother, Benjamin Lucas, a witness I found to be credible and reliable, that this and other gel blasters were purchased with a view to playing games of "paintball" with his brothers, including Joshua Lucas. Joshua Lucas was the person who purchased this particular gel blaster. The Crown emphasised that the fact that in the online order form he asked for "discrete packaging" (sic) meant that he knew that he should not have the item in New South Wales. That may be right, but I am not able to find beyond reasonable doubt that is the case. 6. The circumstances in which the item was deployed was also the subject of evidence. A group of young men, including Benjamin and their friend Matthew Dillon, stopped off at the Tomerong Power Station at about 5:00am on 10 November 2019 and took various photos and "selfies", with Joshua holding the gel blaster, and Caleb Blake and Benjamin also holding gel blasters and wearing, as pants or top, cargo or combat appearance clothing, skull face masks, and sunglasses, Caleb and Benjamin holding a Eureka flag. 7. I accept Benjamin Lucas' evidence that this was a kind of ironic meme, and that at the time the possession of the gel blaster the subject of the charge took place, the only people in the vicinity were Joshua Lucas, his brother, Benjamin, Caleb Blake, and Matthew Dillon. 8. Mr Brock, on behalf of Mr Lucas, submitted that this is a matter that should be dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act"). The Crown did not take issue with this approach. I understand an indication was given earlier of an intention to plead guilty to this charge. It is self evident the charge is established given the definition of firearm contained in the Firearms Act. 9. Mr Brock submitted that the Court should order that the charge be dismissed, having regard to the factors set out in s 10(3) of the Act; that is (a) considering Mr Lucas' character, antecedents, age, health, and mental condition, (b) the trivial nature of the offence, and (d) any other matters the Court thinks proper to consider. 10. Mr Brock submitted that Mr Lucas presented a complex picture given the content of material he had posted online and his age and immaturity and the family circumstances outlined in the evidence of Benjamin and Matthew Dillon. The Court must consider the context of the offending, namely purchase from interstate where it was legal to own such an item, in circumstances where as Federal Agent Boulay from the AFP acknowledged in his evidence, there has been no steps taken to even out the inconsistency regarding the legality or otherwise of owning such items or possessing such items between those different States and Territories. 11. The context for use of this item was given in the evidence of Benjamin, and that was that they were purchased for outdoor fun and games, and that the purchase was as a toy. That is an important factor and I accept Benjamin's evidence about that. 12. Mr Brock also referred to the evidence of Matthew Dillon about the circumstances of its deployment at a time when the public would not be about. I note that is so, and I accept Mr Dillon's evidence about that. I overall found Mr Dillon's evidence to be credible and reliable. 13. In all the circumstances, Mr Brock submitted that subs (b) of s 10(3) is also met, and that is that the nature of the offence was trivial. I agree. It was immature and silly, but trivial. 14. In terms of personal matters, I accept Mr Brock's submission that Mr Lucas is an immature man, having some difficulty adapting to adulthood where his brother and friends have grown up and away from him. The evidence from Benjamin and Matthew Dillon struck me as truthful, and insightful, and careful, and both young men painted a picture of their observation and/or involvement in a very emotionally tough upbringing, where the usual examples of how to be an adult and adapt to a prosocial way of life were just entirely absent. 15. I accept that outrageous statements and memes masquerading as humour were used by Joshua Lucas as a kind of defence mechanism, and the online posting and posturing, which contained multiple messages of hate when taken at face value, was a misplaced and dangerous way of trying to show a measure of control in the virtual world, by someone who felt he did not have much control or agency in the real world. 16. He was 21 when the offence was committed, but he was immature with no job and little useful to do. I believe he has now seen the danger of that kind of online posturing and posting of that kind of content. 17. Taking into account the circumstances of the offending, I accept the submission carefully made by Mr Brock that the offence correctly corresponds to the evaluation of trivial, consistently with subs (3)(b) of s 10 of the Act. 18. I consider other matters I can and should take into account as submitted by Mr Brock under s 10(3)(d) include the fact that Mr Lucas has spend a long period in custody since his arrest on 14 March 2020. Only a portion of that time was in respect of offending found against him under the Criminal Code Act. 19. He was sentenced last year by Button J in respect of a charge against that Code, and that sentence expired on 13 March 2022, over 19 months (or 592 days) ago. I have no doubt the period in custody, and this whole experience of the criminal justice system has been a very salutary experience for Mr Lucas. 20. Accordingly, I will make an order under s 10(1)(a) of the Crimes (Sentencing and Procedure) Act. I find the offence proven and dismiss the charge under s 10(1)(a) of the Crimes (Sentencing and Procedure) Act.