Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jacob v R [2014] NSWCCA 65 Hearing dates: 14 February 2014 Decision date: 23 April 2014 Before: Ward JA at [1]; Johnson J at [21] RS Hulme AJ at [117] Decision: (a) Grant leave to the Appellant to amend his Notice of Appeal by adding the further grounds. (b) Allow the appeal against conviction. (c) Quash the convictions and sentences imposed for Counts 1 to 4 on the indictment dated 17 September 2012. (d) Convict the Appellant of a charge that on 22 December 2010 he did sell a prohibited weapon, viz. a slingshot. (e) Convict the Appellant of a charge that on 31 January 2011 he did sell a prohibited weapon, viz. a "Jaguar" brand crossbow. (f) Grant leave to appeal against sentence. (g) Allow the appeal against sentence. (h) Quash the sentence for possessing a slingshot, the subject of CAN H4399256/002. (i) In respect of the offence of possessing a slingshot, the subject of CAN H4399256/002, sentence the Appellant to imprisonment for a fixed term of nine months commencing on 29 April 2013. (j) In respect of the offence of, on 22 December 2010 selling a prohibited weapon, viz. a slingshot, sentence the Appellant to imprisonment for a fixed term of 14 months commencing on 29 July 2013. (k) In respect of the offence of, on 31 January 2011, selling a prohibited weapon, viz. a crossbow, sentence the Appellant to imprisonment for a non-parole period of 12 months commencing on 29 January 2014, together with a further term of 18 months commencing on 29 January 2015. (l) Record as the date upon which it appears to the Court that the Appellant shall become eligible for parole, 29 January 2015. Catchwords: CRIMINAL LAW - conviction appeal - appellant operated business selling prohibited weapons and firearms which became subject of controlled operation by police - appellant convicted of a number of possession and sale offences including selling prohibited weapons on three separate occasions during 12-month period contrary to Weapons Prohibition Act 1998, s.23B - appellant alleged to have sold two crossbows and one slingshot to undercover police officer - one crossbow unassembled at time of sale - whether unassembled parts capable of constituting crossbow for purposes of definition of crossbow in Weapons Prohibition Act 1998, Schedule 1 - appeal against conviction allowed - in its place appellant convicted of two offences of selling prohibited weapon contrary to Weapons Prohibition Act 1998, s.23A CRIMINAL LAW - conviction appeal - appellant also convicted of three counts of possessing prohibited weapons (three crossbows) - whether metallic items in question consisted of a "bow fitted transversely on a stock" so as to fall within definition of crossbow in Weapons Prohibition Act 1998, Schedule 1 - appeal allowed and convictions quashed CRIMINAL LAW - sentence appeal - appellant sentenced in District Court to concurrent fixed terms of 18 months' imprisonment in relation to offences of possessing and selling a rifle contrary to Firearms Act 1996, s.36 and two and a half years' for possessing slingshot - whether those sentences manifestly excessive - offender re-sentenced to total effective sentence of three-and-a-half years with a two year non-parole period Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Firearms Act 1989 Firearms Act 1996 Firearms and Dangerous Weapons Act 1973 Interpretation Act 1987 Law Enforcement (Controlled Operations) Act 1997 Prohibited Weapons Act 1989 Weapons and Firearms Legislation Amendment Act 2010 Weapons Prohibition Act 1998 Prohibited Weapons Amendment (Dart Slingers and Slingshots) Regulation 1996 Prohibited Weapons Further Amendment Regulation 1997 Cases Cited: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Della-Vedova v R [2009] NSWCCA 107 DPP v Morgan [2013] NSWSC 1474 ID, PF and DV v Director General, Department of Juvenile Justice [2008] NSWSC 966; 73 NSWLR 158 Milne v The Queen [2014] HCA 4; 88 ALJR 395 Newcastle City Council v GIO General Limited [1997] HCA 53; 191 CLR 85 R v Cromarty [2004] NSWCCA 54; 144 A Crim R 515 R v Dunn [2004] NSWCCA 346 R v Kalache [2000] NSWCCA 2; 111 A Crim R 152 R v Mezzadri [2011] NSWCCA 125; 210 A Crim R 442 Russo v Aiello [2003] HCA 53; 215 CLR 643 Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 Zreika v R [2012] NSWCCA 460; 223 A Crim R 460 Texts Cited: "Report on the Review of the Weapons Prohibition Act 1998 and Weapons Prohibition Regulation 1999" (June 2009) Category: Principal judgment Parties: Patrick John Jacob (Applicant) Regina (Respondent) Representation: Counsel: Mr T Game SC; Mr AN Williams (Applicant) Mr R Herps (Respondent) Solicitors: Coode & Corry (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/32351 Publication restriction: --- Decision under appeal Citation: --- Before: English DCJ File Number(s): 2011/32351 Judgment 1WARD JA: I have read in draft the respective judgments of Johnson J and RS Hulme AJ. For the reasons set out below, I agree with the conclusions reached by RS Hulme AJ and the orders his Honour proposes. 2The factual background to the matter has been set out in RS Hulme AJ's reasons. The legislative history concerning regulation of prohibited weapons in New South Wales has been set out in the reasons of Johnson J. There is no need to repeat those matters. 3As is apparent from their Honours' respective reasons, the crux of the matter, insofar as Grounds 1 and 2 are concerned, is the meaning of the definition of crossbow in Schedule 1 of the Weapons Prohibition Act 1998 and the application of s.4(2)(a) of that Act on the facts of this case. The respective submissions of the parties in relation to that issue and the various alternative constructions that may be placed on the definition have been canvassed in the reasons of Johnson J and RS Hulme AJ. 4The objects of the Act, as set out in s.3(1) of the Act, are not in doubt. Nor is there any difficulty with the proposition that one may have regard to the general purpose and policy of the provision and the mischief the provision was seeking to remedy. The Crown emphasises the policy aspect of the matter in its submissions. However, s.3 is predicated on the existence of something that is a prohibited weapon. It does not provide assistance in determining whether a particular object (in this case an unassembled object which, when assembled, can function as a crossbow) falls within the definition of a prohibited weapon. 5Turning to the wording of the definition of crossbow, the parenthetical words "or any similar device" do not provide any assistance in answering the question of construction in this particular case. That is because they precede the words "consisting of a bow fitted transversely on ...". Thus, for a device similar to a crossbow to be treated as a crossbow by reason of the parenthetical words, that similar device must also consist of a "bow fitted transversely on a stock that has a groove or barrel designed to direct an arrow or bolt". 6Linguistically, the words "that has a groove or barrel designed to direct an arrow or bolt" must qualify "a stock" and the words "designed to direct an arrow or bolt" must qualify "a groove or barrel". Reading the plain words of the definition, for an item to fit within the definition, it must consist of "a bow fitted transversely on a stock" that must have a groove or barrel that in turn is "designed to direct an arrow or bolt". 7The difficulty in the present case is the requirement that there be a bow "fitted transversely on" the stock. The language there used focuses on whether there is a bow that is actually fitted (transversely) on a stock, not that there is a bow capable of being fitted transversely on a stock. 8The Crown relies on s.4(2)(a) to overcome this difficulty. 9As was accepted by Senior Counsel for the appellant, it is appropriate to adopt a purposive construction of s.4(2)(a) of the Act (which provides that anything that would be a prohibited weapon if it did not have something missing from it, or a defect or obstruction in it, is taken to be a prohibited weapon). However, he contends that a broad interpretation to the section should not be given because it is a penal provision. 10The appellant contends that s.4(2)(a) does not assist the Crown because possession of a part of a crossbow is not an offence under the Act and s.4(2)(a) should not be construed as turning a single part into the whole by a process of accumulation or accretion. 11RS Hulme AJ has posited two possible limitations on the operation of s.4(2)(a): first, that the "something missing" must be confined, so that what remains is in substance a prohibited weapon; and, secondly, that the component under consideration must have been at one stage part of a complete prohibited weapon from which other part(s) have been detached and therefore can be regarded as missing. 12I have some difficulty with the alternative view because there is nothing in the definition to suggest a temporal aspect to the operation of s.4(2)(a), i.e., that it was once complete or functioning and now no longer is. However, the first of the limitations identified by RS Hulme AJ seems to me, with respect, to have force. I read s.4(2)(a) as contemplating that the "something missing" is a component part of the whole item but not the main or principal part of the item. That seems to me to give content to the expression "would be a prohibited weapon if it did not have something missing from it" and leads to a commonsense result. 13On that construction, a string, which when added to a bow fitted transversely on a stock and tensioned would constitute a completed crossbow, would not be a prohibited weapon on its own, but a bow fitted transversely on a stock missing a string would be a prohibited weapon. 14Similarly, if one considers the example of a slingshot, the Y-shaped frame is surely the principal element of the weapon. Therefore, even if a string is missing one can still readily see that the Y frame would be treated as being a slingshot by reason of s.4(2)(a). However, the string alone would not be. 15It seems to have been accepted that the unassembled Jaguar crossbow parts included both a stock and a part that, when fitted transversely to the stock would constitute a bow for the purposes of the definition. (The position was somewhat different in relation to the three metallic items but for present purposes that does not matter.) On the reading of s.4(2)(a) that I consider follows as a textual matter, the difficulty is that it is not apparent that the stock (with groove or barrel designed for the requisite purpose) was the main element of the weapon, such that the unassembled "bow" is the element that satisfies the "something missing" part of the definition (such that the stock alone would be a prohibited weapon for the purposes of s.4(2)(a)) and vice versa. In other words, it is not clear which of the unassembled parts would be treated as the weapon and what is the missing part. On the Crown's construction, the unassembled crossbow parts in the Jaguar box would arguably have constituted two crossbows - the stock and the bow, each with a part missing. This highlights the difficulty in treating the unassembled parts as being the prohibited weapon. 16The definition of crossbow makes clear that the device must consist of a bow "fitted" transversely on a stock. In the absence of a bow that is "fitted" transversely on the stock, the unassembled parts do not in my opinion constitute a crossbow within the definition. 17I accept that there is incongruity in the notion that the sale of unassembled parts which, once assembled, would fall within the definition of crossbow and which appear to have been marketed for sale as a crossbow will not constitute a prohibited weapon for the purposes of the definition. However, that is the effect of the wording that has been adopted by the legislature. It is for the Parliament to amend the legislation if it seeks to include as prohibited weapons unassembled parts that together, when assembled, would fall within the definition. That could be done in a number of ways, say by including a further paragraph to s.4(2) or, perhaps, by moving the words "or similar device" to the end of the definition of crossbow so that it would not be necessary for there to be a bow fitted transversely on a stock but simply a device similar to that. However, this is a penal provision and it is not for the Court to rewrite the legislation. 18For those reasons, I agree with the conclusion RS Hulme AJ has reached in relation to Grounds 1 and 2. 19As to Ground 3, I share their Honours' view as to the doubtfulness of the admissibility of the expert evidence given as to the items in question. The criticism made of Mr Garland's evidence, as I read it, was the impression gained by the trial judge that Mr Garland was actively seeking to advocate his client's case rather than presenting as an objective witness. That was a view that her Honour was best placed to form. In any event, I agree with Johnson J that no miscarriage of justice has been demonstrated arising from the matters complained of in Ground 3. 20As to sentence, I agree with the reasons and orders proposed by RS Hulme AJ. 21JOHNSON J: I have had the advantage of reading, in draft, the judgments of Ward JA and RS Hulme AJ. I have reached a different view with respect to the appeal against conviction. This view has consequences with respect to the sentence appeal. 22The judgment of RS Hulme AJ identifies the background to the appeal. Factual Background 23The following facts concern events giving rise to the four charges upon which the Appellant went to trial. As RS Hulme AJ has stated, there were other offences giving rise to pleas of guilty for which the Appellant was sentenced as well. 24In 2010, the Appellant was the sole operator of a business known as Lock Trading Pty Limited, operating from premises at Penrith. In July 2010, police became aware of a website for a company called "Combat Australia" which listed its business address as the same address as the Appellant's business address. As a result of what police observed on that website and checks run on the business, police applied for and were granted authority to conduct a controlled operation under the Law Enforcement (Controlled Operations) Act 1997. 25On 22 December 2010, an undercover police operative attended the Appellant's business premises and purchased a slingshot from the Appellant for the sum of $100.00. The undercover police operative also purchased a number of steel ball bearings from the Appellant for $50.00. The slingshot transaction was the first sale forming part of Count 1 on the indictment. It was an agreed fact that the slingshot was a prohibited weapon. 26On 30 December 2010, the undercover police operative again attended the Appellant's business premises and purchased a box containing the components for a crossbow from the Appellant for the sum of $800.00. A number of arrows were also supplied by the Appellant. The box identified the contents as a "Jaguar" brand crossbow. This was the second sale for the purpose of Count 1. It is this item which gives rise to Ground 1. More will be said about it shortly. 27On 31 January 2011, the undercover police operative again attended the Appellant's business premises and purchased an assembled "Jaguar" brand crossbow from the Appellant for the sum of $800.00. A number of arrows were also supplied. This was the third sale relied upon in support of Count 1. It was an agreed fact that this item was a prohibited weapon. 28In conversations regarding the purchase of the assembled crossbow on 31 January 2011, the Appellant advised the undercover police operative that he should remove the limb or string and have it posted out to him in case he was stopped by police or, if he wanted to risk buying the item assembled, he should cover it with a blanket. 29The Appellant was arrested on 31 January 2011 and declined to participate in a recorded interview. Later that day, police executed a search warrant at the Appellant's business premises and seized three metallic items which the Crown alleged, in Counts 2-4 on the indictment, were crossbows, and thus prohibited weapons under the Weapons Prohibition Act 1998. I will return to these items when considering Ground 2. Ground 1 - The Unassembled Crossbow Ground 30Count 1 on the indictment alleged an offence under s.23B Weapons Prohibition Act 1998 that, between 21 December 2010 and 1 February 2011 at Penrith in the State of New South Wales, the Appellant did on three separate occasions during a period of 12 months sell a prohibited weapon to another person. The maximum penalty for this offence is 20 years' imprisonment. 31As mentioned, the Appellant conceded that the slingshot and the assembled "Jaguar" brand crossbow were prohibited weapons within the meaning of the Weapons Prohibition Act 1998, but disputed that the box of components capable of being assembled into a "Jaguar" brand crossbow constituted a prohibited weapon within the meaning of that Act. Prohibited Weapons Legislation in New South Wales 32Brief reference should be made to the legislative history concerning regulation of prohibited weapons in this State. 33In 1989, the Firearms and Dangerous Weapons Act 1973 was repealed and replaced by the Firearms Act 1989 and the Prohibited Weapons Act 1989. At the same time, a number of serious firearms offences were transferred from the Firearms and Dangerous Weapons Act 1973 to the Crimes Act 1900. It had been decided that the regulation of firearms and prohibited weapons required separate legislation, in order to clearly identify what was seen as the "difference between the regulation of legitimate firearms use and the need for strict controls and substantial penalties in regard to prohibited weapons" (second reading speech, Hansard, Legislative Assembly, 2 March 1989). 34Included in the ranks of prohibited weapons in Schedule 1 of the Prohibited Weapons Act 1989 was "a crossbow, other than an antique crossbow". 35A "slingshot" was included in Schedule 1 of the Prohibited Weapons Act 1989 by the Prohibited Weapons Amendment (Dart Slingers and Slingshots) Regulation 1996. 36The Prohibited Weapons Further Amendment Regulation 1997 amended the definition of "crossbow" to provide: "An article or device commonly known as a crossbow, or any other article or device consisting of a bow fitted transversely on a stock that has a groove or barrel designed to direct an arrow or bolt." 37Following the Port Arthur massacre in 1996, the Firearms Act 1989 was repealed and replaced by the Firearms Act 1996, as part of a national campaign to implement firearms control: R v Cromarty [2004] NSWCCA 54; 144 A Crim R 515 at 519 [15]; Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 at 314 [44]. 38The Weapons Prohibition Act 1998 was enacted in 1998. In the second reading speech, the Minister observed that a taskforce had found that the Prohibited Weapons Act 1989 was "inadequate and outmoded", and that the 1998 Bill "implements the recommendations of the taskforce for tougher legislation to protect the community against prohibited weapons" (Hansard, Legislative Assembly, 22 October 1998). The Minister continued: "The bill will improve public safety by imposing stricter controls on the possession and use of prohibited weapons. In addition, the bill provides tough penalties for a range of prohibited weapons offences. The underlying principles of the bill are that the possession and use of prohibited weapons should be a privilege, and not a right, that is conditional on an overriding need to ensure public safety. The bill requires each applicant for a prohibited weapons permit to prove a genuine reason for possession or use of a prohibited weapon. It provides strict requirements that must be satisfied in relation to the possession and use of prohibited weapons, and it provides an amnesty period for the surrender of prohibited weapons to encourage their removal from the community." 39The Minister observed that all weapons then currently prohibited under the Prohibited Weapons Act 1989 had been retained in the Bill, with some additions. No reference was made to crossbows or slingshots in the second reading speech. 40The Weapons Prohibition Act 1998 created new offences, including the offence of selling prohibited weapons. 41The Weapons Prohibition Act 1998 was amended by the Weapons and Firearms Legislation Amendment Act 2010. The second reading speech with respect to the 2010 Bill referred to the report of the statutory review undertaken concerning the Weapons Prohibition Act 1998, which had been tabled in the Legislative Assembly in June 2009. Recommendations made in that review had led to amendments to the Weapons Prohibition Act 1998 effected in 2010. 42The statutory review report is available extrinsic material: s.34(2)(b) Interpretation Act 1987. The statutory review report of June 2009 sheds some light upon the prohibition concerning crossbows in the Weapons Prohibition Act 1998. The report stated at paragraph 2.2.3: "During his first term as Minister for Police, the Hon John Watkins MP, successfully lobbied APMC in July 2003 to institute a national ban on all crossbows. Following a serious incident involving a crossbow in a school, all jurisdictions enacted legislative change to include crossbows as a banned or prohibited weapon. This act aligned those jurisdictions with the then NSW laws. At that time, only NSW and the ACT had banned all types of crossbows. Other jurisdictions had banned pistol crossbows but not the larger, non-concealable models. Events, such as the crossbow incident, highlight the importance of cross-jurisdictional co-operation regarding uniform national prohibition legislation. Standardisation of legislation across jurisdictions has decreased the ease of the acquisition of such weapons." 43In the Agreement in Principle speech concerning the 2010 Bill, the Parliamentary Secretary said (Hansard, Legislative Assembly, 18 March 2010): "The items currently classed as prohibited weapons range from certain types of specialist knives to tasers and knuckledusters. The list is a dynamic one and additions are made in response to operational feedback from police. For example, over the past few years items such as road spikes and laser pointers have been included as prohibited weapons. Through this bill, improvised explosive devices and taser-proof clothing are proposed additions to the schedule of prohibited weapons. As well as providing clear guidelines for the New South Wales Police Force, the schedule of prohibited weapons serves as guidelines for the Australian Customs and Border Protection Service. In order to import any item on the schedule, Customs will require proof of police authorisation. This process is undertaken using a prescribed form." 44Sections 23A and 23B Weapons Prohibition Act 1998 were introduced in 2010, thereby creating the offence of selling prohibited weapons on an ongoing basis, the offence charged in Count 1 punishable by imprisonment for 20 years. Introduction of offences now contained in ss.23A and 23B was recommended in the statutory review report of June 2009. The Unassembled Crossbow 45The unassembled crossbow contained in a box labelled "Jaguar Crossbow" is depicted in photographs attached to the affidavit of Benjamin Craig sworn 13 February 2014 for the purpose of the appeal. The evidence was that the contents of the box, when assembled, constituted a complete crossbow. There were no missing parts. 46The only issue with respect to Count 1 was whether an unassembled crossbow in this form fell within the definition of "crossbow", and thus "prohibited weapon", for the purposes of the Weapons Prohibition Act 1998. 47Resolution of Ground 1 will be assisted by photographs of the box containing the "Jaguar" brand crossbow, and the unassembled contents of the box with the lid removed. These photographs were in evidence at trial: Construction of the term "Crossbow" in the Weapons Prohibition Act 1998 48The construction of the word "crossbow" in Schedule 1 of the Weapons Prohibition Act 1998 commences with a consideration of the text itself, with regard to its context, including the general purpose and policy of the provision and the mischief it was seeking to remedy: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at 46-47 [47]. 49"Prohibited weapon" means anything described in Schedule 1 to the Weapons Prohibition Act 1998: s.4(1). 50Schedule 1 is divided under several headings - knives (clause 1), military-style weapons (clause 1A), miscellaneous weapons (clause 2), imitations, concealed blades etc (clause 3) and miscellaneous articles (clause 4). 51Clause 2(5) of Schedule 1 (under "Miscellaneous weapons") provides as follows: "A crossbow (or any similar device) consisting of a bow fitted transversely on a stock that has a groove or barrel designed to direct an arrow or bolt." 52The Weapons Prohibition Act 1998 contains a principles and objects provision. Section 3 provides as follows: "Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons. (2) The specific objects of this Act are as follows: (a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon, (b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons, (c) to provide an amnesty period to enable the surrender of prohibited weapons." 53On the face of it, application of these principles and objects would support an expansive, as opposed to a restrictive, construction of terms in the Weapons Prohibition Act 1998, to give effect to the statutory principles and objects. 54A question, however, is whether these principles and objects operate only with respect to items which are "prohibited weapons" as described in the Weapons Prohibition Act 1998, with the statutory principles and objects not being capable of being brought into play until the item in question falls within the statutory definition construed strictly. As I understand it, that is RS Hulme AJ's position. I respectfully disagree. 55In the interpretation of a provision, a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) should be preferred to a construction that would not promote that purpose or object: s.33 Interpretation Act 1987. 56In my view, the principles and objects provision in s.3 is available to assist in determining the question whether an item is a "prohibited weapon", in accordance with s.33 Interpretation Act 1987. An objects clause such as s.3 should be given practical content in the understanding of terms in the Weapons Prohibition Act 1998: Russo v Aiello [2003] HCA 53; 215 CLR 643 at 645 [5]; ID, PF and DV v Director General, Department of Juvenile Justice [2008] NSWSC 966; 73 NSWLR 158 at 189 [255]. 57Section 4(2) Weapons Prohibition Act 1998 is also relevant: "(2) For the purposes of this Act: (a) anything that would be a prohibited weapon if it did not have something missing from it, or a defect or obstruction in it, is taken to be a prohibited weapon, and (b) a person in or on (or in or on any part of) any premises, vehicle, vessel or aircraft in which there is a prohibited weapon is to be regarded as having possession of the weapon unless the person proves otherwise, and (c) if parts of a prohibited weapon are in the possession of, or are being carried by, 2 or more persons, each of those persons is to be regarded as possessing the weapon." 58Section 4(2) does not address the situation where an individual is in possession of a complete, but unassembled, item such as a crossbow which, once assembled, would clearly fall within the definition of "prohibited weapon". However, s.4(2) operates to provide a measure of flexibility to extend the term "prohibited weapon" to include: (a) an incomplete prohibited weapon, with something missing or a defect or obstruction, but for which it would otherwise be a "prohibited weapon" (s.4(2)(a)); (b) a scenario where parts of a prohibited weapon are in the possession, or being carried by, two or more persons, with each of those persons to be regarded as possessing the weapon in those circumstances (s.4(2)(c)). 59Section 4(2)(a) and (c) make clear that, at least in the circumstances covered by those provisions, an item may constitute a "prohibited weapon" even where it is incomplete (s.4(2)(a)) or broken into parts with the parts being possessed or carried by two or more persons (s.4(2)(c)). The concept of a complete but unassembled crossbow falling within the definition of "crossbow", and thus "prohibited weapon", does not seem distant from these provisions. 60The inclusion of the words "(or any similar device)" in the definition of "crossbow" also suggests a definition with some flexibility, and not a fixed and inflexible verbal formula. 61It is noteworthy that the Schedule 1 definition of "crossbow" is close to the dictionary definition of the term. According to the Macquarie Dictionary, a "crossbow" is "an old weapon for shooting missiles, consisting of a bow fixed transversely on a stock having a groove or barrel to direct the missile". 62The word "consist", according to the Macquarie Dictionary, means "to be made up or comprised (of)" or "to be comprised of or contained (in)". 63The Appellant's submission invites a strict construction of the definition of "crossbow", so as to require a completed object fitting the description in the definition. On this approach, the bow must be "fitted transversely ...", a statutory indicator that the component parts must be actually fitted together. 64The Crown submitted that a purposive construction ought be adopted, leading to the conclusion reached by the trial Judge. 65The construction adopted by the trial Judge permits the statutory definition to be satisfied where the items sold included all the constituent parts so that, upon assembly, a working crossbow results. 66The definition of "crossbow" is silent as to whether an unassembled crossbow is included or excluded. Accordingly, it is necessary to construe the term, viewed in its statutory context, but with regard being had to the purpose or object of the Weapons Prohibition Act 1998 and the prohibition with respect to crossbows. 67It may be observed immediately that the definition of "crossbow" is not expressed in narrow terms. It includes "any similar device". Further, s.4(2)(a) and (c) Weapons Prohibition Act 1998 make clear that an item may be a "prohibited weapon" even though there is "something missing from it, or a defect or obstruction in it" or if the parts of a prohibited weapon are being carried by two or more persons. These provisions indicate a preparedness in the legislation for a definition to be satisfied, even if the item in question is not a complete, assembled and functioning item. 68In my view, the ordinary meaning of the words used in the definition of "crossbow" are more than capable of accommodating the construction adopted by the trial Judge. The best that can be said for the strict construction is that there are two competing constructions which are open. Resort may be had to extrinsic material: Newcastle City Council v GIO General Limited [1997] HCA 53; 191 CLR 85 at 113. 69In my view, it is clear that the construction adopted by the trial Judge would promote the purpose or object of the legislation, whilst that advanced by the Appellant would not: s.33 Interpretation Act 1987. 70Indeed, the construction advanced by the Appellant would, in my view, give rise to an outcome which has particular resonance in this case. As McHugh J observed in Newcastle City Council v GIO General Limited at 113, "if the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than to record that it has been missed". 71In my view, it would require clear words in the definition of "crossbow", excluding an unassembled crossbow from the definition, before the Court should conclude that the item in question here fell outside the statutory definition. At the very least, there would need to be a stronger indicator than the mere use of the word "fitted", a term which, in my view, provides only equivocal support for the Appellant's construction. 72This approach is necessary to give effect to the purpose or object of the Weapons Prohibition Act 1998, having regard to the mischief to which the statute is directed. 73The High Court has stated that a purposive construction does not justify expanding the scope of a criminal offence beyond its textual limits: Milne v The Queen [2014] HCA 4; 88 ALJR 395 at 403 [38]. However, the construction advanced by the Crown, which I accept, does not expand the scope of this criminal offence beyond its textual limits, considered in the context of the Weapons Prohibition Act 1998 itself. 74It may be readily inferred that the "Jaguar" brand crossbow was commercially manufactured and provided to persons such as the Appellant for sale in a marked box. 75The contents of the box (as depicted in the photograph) disclose an orderly set of contents accompanied by instructions for assembly. To confine the definition of "crossbow" in the manner contended for by the Applicant in this case would, in my view, operate strongly against the purpose of the statute. 76It is understandable that the Weapons Prohibition Act 1998 would seek to extend descriptions of prohibited weapons in this way in an effort to suppress the possession, use and sale of items which are prohibited weapons. 77The present case is a good illustration of this. The Appellant sold to the undercover police operative a complete crossbow, boxed and unassembled, with the clear capacity for the item to be put together and function as a crossbow falling directly within the Schedule 1 definition. Indeed, the Appellant appears to have been alive to the definitional issue in that he advised the undercover police operative, on 31 January 2011, in the context of the purchase of an assembled "Jaguar" brand crossbow and arrows, that the customer should remove the limb or string and have them posted to him separately in case he was stopped by police. Of course, this suggested avoidance strategy was itself misconceived as it overlooks s.4(2)(a) Weapons Prohibition Act 1998. 78The strict construction, which I do not favour, would clearly assist avoidance of the scheme for statutory prohibition, by permitting an item which a reasonable citizen would regard as a crossbow, to be sold in a manner which defeated the legislation, merely because it had not been assembled. 79Having regard to the mischief at which the legislation is directed, such a strict construction would not promote the purpose or object of the legislation and should not be preferred. 80I would reject the ground of appeal which contends that the commercially produced, boxed, but unassembled, "Jaguar" brand crossbow was not a "prohibited weapon" for the purpose of Count 1. 81The construction favoured by the trial Judge is correct. Ground 1 should be rejected. Ground 2 - The Metallic Items Ground 82The Appellant, in Ground 2, challenges the finding of the trial Judge that the three metallic items, the subject of Counts 2, 3 and 4 fell within the definition of "crossbow" under the Weapons Prohibition Act 1998. 83In rejecting a submission at the close of the Crown case, the trial Judge said with respect to these items (Judgment, 18 September 2012, page 3): "Dealing with the items in exhibit F from an examination of one of those items it can be seen that there are two wings or appendages which are affixed to the stock with hinges or pivots. When the locking mechanism is released those wings or appendages extend forward and lock in such a manner as to form a single curve or arch attached to which is the string or cable. It is clear from examination of the item that it is clearly designed to direct an arrow or bolt. Something which lies transversely to an item lies across it, not necessarily on top of it but nonetheless crossing it. The bow of the metallic item clearly lies transversely to the stock, not on top of it as I have said but at the commencement of the stock. What is clear is that the device consists of a bow fitted transversely to the stock, that is at the nose of the stock which has a groove or a barrel designed to direct an arrow or bolt and therefore clearly falls within the definition of a prohibited weapon." 84In her judgment finding the Appellant guilty of Counts 2, 3 and 4, the trial Judge described the metallic items as "crudely made items" and observed that the "string or cable was poorly tensioned" (Judgment, 19 September 2012, page 10). 85The critical findings of the trial Judge concerning the metallic items, the subject of Counts 2, 3 and 4 in the judgment on conviction were as follows (pages 12-13): "The evidence in this case of course includes the physical items tendered in the Crown case. To simply look at the items contained in exhibit F it defies logic to suggest that they are items other than crossbows. They are clearly items which have a bow, albeit a bow comprised of two parts which forms a bow which transverses a stock, albeit at the end rather than on top of or across the stock; they have a groove or a barrel designed to direct an arrow or bolt, albeit a modified arrow or bolt; and taking into account the evidence in the Crown case and a physical examination by me of the items tendered, I find myself satisfied beyond reasonable doubt that the items are crossbows and therefore as such are prohibited weapons. The definition of a crossbow does not require that the bow must be a single bow as such. That is one continuous bow not comprised of parts. These items when the metallic object is expanded by use of the spring opening mechanism forms a single bow, and that is plain to see. And it just so happens that it consists of two parts to form that single bow. The definition requires that the bow is fitted transverse to the stock. The definition does not stipulate how. Upon inspection of the metallic items it is also plain to see. Even Mr Garland reluctantly conceded that the middle section of the metallic item could comprise a stock and I find that that is so. There is no real dispute about the items having a groove or a barrel designed to direct an arrow or bolt. That was the relevance of the testing, not the functionality of the items, but to satisfy me whether or not they were designed to direct an arrow or bolt and I find myself so satisfied." 86In approaching this ground of appeal, I have regard to the conclusions reached under Ground 1 concerning the proper construction of the word "crossbow" in Schedule 1 of the Weapons Prohibition Act 1998. 87The three metallic items are somewhat different from the commercially manufactured unassembled crossbow considered in Ground 1. 88However, I am not persuaded that these items fall outside the definition of "crossbow" in the Weapons Prohibition Act 1998. The description of the trial Judge is accurate and brings the items within the statutory formula. 89I would reject Ground 2. Ground 3 - Claim of Procedural Unfairness 90Ground 3 challenges the approach adopted by the trial Judge to the expert evidence given at trial and, in particular, that of Mr Garland called on behalf of the Appellant. 91Like RS Hulme AJ, I am doubtful that much (if any) of the opinion evidence given by expert witnesses was admissible in the trial. 92The sole issue with respect to Count 1 was whether the commercially manufactured and boxed unassembled crossbow fell within the definition of "crossbow" in Schedule 1 of the Weapons Prohibition Act 1998. There was no issue that the item, when assembled, functioned as a crossbow. I do not detect any area where opinion evidence could bear upon what was essentially a legal question to be determined by the trial Judge. 93With respect to the metallic items, the subject of Counts 2, 3 and 4, there was scope for some factual evidence concerning the operation of these items and their capacity to fire arrows or bolts, issues bearing upon the factual and legal question as to whether they fell within the definition of "crossbow" in Schedule 1 of the Weapons Prohibition Act 1998. 94It is the case that the trial Judge made some criticisms of Mr Garland and his evidence in the course of the judgment on conviction. However, I am not persuaded that the matters complained of bear upon any issue of substance to be determined at the trial. Opinion evidence could not meaningfully assist the trial Judge in the determination of the real issues in the trial. 95To the extent that Ground 3 (as it must) asserts that there was a miscarriage of justice for the purpose of s.6(1) Criminal Appeal Act 1912, arising from the matters complained of under that ground, I am not satisfied that a miscarriage of justice has been demonstrated in the circumstances of this case. I reject Ground 3. Conclusion on Conviction Appeal 96Having rejected each ground of appeal against conviction, I would dismiss the appeal against conviction. Application for Leave to Appeal Against Sentence 97As I have reached a different conclusion to the other members of the Court with respect to the conviction appeal, Grounds 5 and 6 remain alive, together with Grounds 4 and 7, all of which bear upon the question of sentence. However, as I am in a minority, my conclusions may be expressed briefly. 98The maximum penalty for an offence under s.23B Weapons Prohibition Act 1998 is imprisonment for 20 years. Somewhat curiously, there is no standard non-parole period for this offence, unlike the equivalent ongoing sale offence contained in s.51B Firearms Act 1996 (where there is a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years applies). 99The only standard non-parole period in the Weapons Prohibition Act 1998 applies to offences of unauthorised possession or use of a prohibited weapon under s.7, as to which, as RS Hulme AJ observes at [124], a standard non-parole period of three years applies. Counts 2, 3 and 4 were offences of this type. 100With respect to Ground 5, which complains that inadequate regard was given by her Honour to the limited and clearly identified basis upon which the trial was conducted, I am not persuaded that error has been demonstrated. 101The practical parameters of the trial were confined realistically by the nature of the Crown case. Even if the Crown had been put to strict proof on all aspects, it is doubtful that the trial would have occupied much longer (as a Judge-alone trial) than it did here. Mr Game SC did not contend that any numerical discount ought to have been allowed for this aspect, but that it should have been taken into account in light of s.22(3)(l) and s.23A Crimes (Sentencing Procedure) Act 1999. I am not persuaded that any error is demonstrated in this respect. 102Ground 6 complains of an inappropriately higher level of objective seriousness being accorded to Counts 2, 3 and 4 given what is said to have been the wholly ineffectual nature of the items in question. 103The evidence adduced at first instance included a DVD showing the weapons being tested. These items were designed to direct an arrow or bolt. Even if they were not outstanding examples of weapons of this type, they had the capacity to perform in the manner described by the trial Judge in her judgment on conviction (see [85] above). 104In any event, the sentences imposed upon each of Counts 2, 3 and 4 were entirely concurrent as between themselves and were subsumed within the sentence imposed upon Count 1. I am not persuaded that error has been demonstrated in accordance with Ground 6. 105Ground 7 complains with respect to the sentences imposed for the offences under s.36(1) Firearms Act 1996 (two concurrent fixed terms of 18 months' imprisonment), that her Honour erred in failing to set a non-parole period as required by s.44(1) Crimes (Sentencing Procedure) Act 1999, and by failing to state any reasons for deciding to set a fixed term as required by s.45(2) of that Act. 106This ground involves a technical challenge to the sentences in question. No standard non-parole period attaches to offences under s.36(1) Firearms Act 1996. The failure of a court to comply with the requirement to give reasons under s.45(2) does not invalidate the sentence: s.45(4) Crimes (Sentencing Procedure) Act 1999. 107When sentencing an offender for multiple offences, and where some accumulation is appropriate, it is acceptable to impose fixed terms of imprisonment for some of the sentences. This is because, if a sentence containing a non-parole period and a parole period was set for each offence, the parole terms of many of these sentences would be subsumed in a non-parole period or fixed term of some longer sentences: R v Dunn [2004] NSWCCA 346 at [161]. 108In the context of this case, I agree with the Crown submission that a technical error of this type is of little or no practical importance. The sentencing Judge was required to sentence the Appellant for a number of offences, keeping in mind issues of concurrency, accumulation and totality. In this context, the use of fixed terms of imprisonment is understandable. Although her Honour did not state expressly this was the reason for taking this course, it may be inferred readily that this is what occurred. 109I am not persuaded that the technical error involved in Ground 7 is one which would require reconsideration to be given to the sentences affected by this ground. I observe, in any event, that the concurrent fixed terms for the s.36(1) offences were subsumed within the sentence imposed upon Count 1. 110Ground 4 contends that the sentences imposed for each matter individually, and collectively, were manifestly excessive. RS Hulme AJ has addressed a number of issues which bear upon the resolution of this ground. 111It is to be kept in mind that, to make good this ground, it is for the Appellant to demonstrate that the sentences imposed were unreasonable or plainly unjust. 112I approach this ground, of course, upon the basis that the Appellant remains convicted of all offences for which he stood to be sentenced in the District Court. The total effective sentence imposed by her Honour for all the Appellant's offences comprised a head sentence of four years and six months' imprisonment, with a non-parole period of two years and six months expiring on 28 July 2015. 113I note that the orders proposed by the other members of the Court, allowing for sentences remaining after the quashing of convictions, will see a total effective sentence of three years and six months' imprisonment with a non-parole period of two years expiring on 29 January 2015. 114For the purpose of this judgment, the Appellant remains convicted of all offences for which he was sentenced in the District Court. Those offences include the offence under s.23B Weapons Prohibition Act 1998, for which the maximum penalty is 20 years' imprisonment, and the three offences of possession of a prohibited weapon, being Counts 2, 3 and 4 on the indictment relating to the metallic items, for which a maximum penalty of 14 years' imprisonment applies with a standard non-parole period of three years. 115I am not persuaded that the sentences imposed upon the Appellant for all the offences of which he was convicted or pleaded guilty is unreasonable or plainly unjust, by reference to the total effective sentence and non-parole period. There was a very great degree of concurrency as between the various sentences. Given that my judgment expresses a minority view, I will not proceed further to expand upon my reasons for this conclusion. 116The orders which I propose are as follows: (a) appeal against conviction dismissed; (b) leave to appeal against sentence granted, but appeal dismissed. 117RS HULME AJ. These reasons relate to an appeal against conviction and an application to appeal against sentence imposed by English DCJ on 1 February 2013. The circumstances giving rise to the appellant's conviction and sentence were as follows: - (a) On 22 December 2010 an undercover operative purchased a slingshot from the appellant for $100.00 and a large number of steel ball bearings for $50.00. (b) On 30 December 2010 the undercover operative purchased a number of unassembled items and arrows in a box for $800.00. The box was labelled "Jaguar Crossbow". The Crown contended and English DCJ found that the unassembled items constituted a crossbow. (c) On 31 January 2011 the undercover operative purchased an assembled Jaguar brand crossbow and arrows for $800.00. At the time of the purchase the Applicant advised the operative that he should remove the limb or string and have them posted to him separately in case he was stopped by police or that if he wanted to take the risk of buying the crossbow assembled he should "chuck a blanket over it" as he took it away from the premises. (d) Also on 31 January 2011 the Appellant agreed to sell to the undercover operative a 30.30 lever action Winchester rifle for $1,000.00. (e) Later on 31 January the appellant was arrested. During the execution of a search warrant at the appellant's business premises, police found a 30.30 lever action Winchester rifle unsecured in a cardboard box together with 10 slingshots, three metallic items found by Her Honour to be cross bows, a large number of crossbow bolts or arrows and a large number of steel ball bearings capable of being used in conjunction with the slingshots. It was agreed between counsel that the rifle was that which the Appellant had earlier that day agreed to sell to the undercover operative. (f) During the execution of the search warrant at the appellant's residential premises, police found a number of other slingshots. (g) At the time, the appellant held a NSW shooters license. Nine other firearms, all of which were registered in the appellant's name and found appropriately stored, were also seized. 118There was no dispute that the slingshot in paragraph (a) and the crossbow referred to in paragraph (c) were prohibited weapons and that the Appellant sold them as described. His counsel indicated that, considered as individual offences, the Appellant was prepared to plead guilty to them. The Appellant also did not dispute evidence that her Honour accepted to the effect that the unassembled items were all that were necessary to make a functioning crossbow and that when assembled later by an officer of the Police Forensic Services Group, they did so. He did however dispute that the unassembled items referred to in paragraph (b) did, in that state, constitute a crossbow. 119There was also an issue whether the three metallic items found on 31 January constituted crossbows. As found by the police each included what could fairly be described as a stock. There was no bow attached but there were two arms attached, one on each side, near the front of the stock and lying more or less parallel to the stock. These arms did not touch each other but could pivot at or near the point of attachment which seems to have been a bolt. When pivoted sufficiently, most of the end of each arm closest to the stock would lie at approximately 90 degrees to the stock. Each arm was curved and when pivoted sufficiently, in combination with the width of the stock at about the point of attachment to it they formed a shape of or similar to that of a bow. The arms did not touch each other. Mr Garland, a weapons dealer, called on the Appellant's behalf described the extended arms as a "bow", albeit one that did not "transverse" the stock. 120The events referred to led to a number of charges, four on an indictment and four the subject of Court Attendance Notices. The events in sub-paragraphs (a) to (c) led to Count 1 on the indictment, a charge of, on three separate occasions during a 12-month period, selling a prohibited weapon. To this charge, the Appellant pleaded not guilty. He admitted that the items referred to in sub-paragraphs (a) and (c) were prohibited weapons and the sole issue was that referred to above, viz. whether in the form they were in when the Appellant had possession of them, the unassembled items purchased on 30 December 2010 constituted a crossbow. On this issue English DCJ found in favour of the Crown and in respect of the charge imposed a sentence of four years including a non-parole period of two years both such terms commencing on 29 July 2013. The charge arose pursuant to s.23B of the Weapons Prohibition Act 1998 and carried a maximum penalty of 20 years' imprisonment. 121CAN 6 - the full number can at this stage be omitted - contained a charge of agreeing to sell an unregistered firearm being the rifle referred to in sub-paragraph (d). The Appellant pleaded guilty to this charge and was sentenced to imprisonment for a fixed term of 18 months commencing on 29 January 2013. The offence was one arising under s.36(1) of the Firearms Act 1996 and carried a maximum penalty of imprisonment for five years. 122CAN 3 contained a charge of possessing an unregistered firearm, being the rifle found as referred to in sub-paragraph (e). To this charge also the Appellant pleaded guilty and was sentenced to a similar term of 18 months concurrent with that referred to in the immediately preceding paragraph. This offence also arose under s.36(1) of the Firearms Act 1996 and carried a maximum penalty of imprisonment for five years. 123CAN 4 contained a charge of not taking all reasonable precautions to keep that same firearm safely. To this the Appellant pleaded guilty and was sentenced to imprisonment for a fixed term of six months commencing on 29 January 2013. The offence was one arising under s.39(1)(a) of the Firearms Act 1996 and carried a maximum penalty of a $2,200.00 fine and imprisonment for 12 months. 124CAN 2 contained a charge of possessing a prohibited weapon, viz. a slingshot, and also arose out of the events referred to in sub-paragraph (e). To this also the Appellant pleaded guilty and was sentenced to imprisonment for two-and-a-half years including a non-parole period of 12 months both such periods commencing on 29 April 2014. The offence was one arising under s.7(1) of the Weapons Prohibition Act 1998 and carried a maximum penalty of imprisonment for 14 years. A standard non-parole period of three years has been ordained for such an offence. 125Counts 2 to 4 on the indictment were three charges of possessing prohibited weapon, viz. crossbows, arising out of the finding of the three metallic items referred to in sub-paragraph (e). To these the Appellant pleaded not guilty. He was found guilty and was sentenced to imprisonment for concurrent terms of two-and-a-half years including non-parole periods of 12 months all such periods commencing on 29 April 2013. The charges arose pursuant to s.7(1) of the Weapons Prohibition Act 1998 and each carried a maximum penalty of imprisonment for 14 years. The standard non-parole period of three years mentioned in the immediately preceding paragraph applied. 126The effective sentence this imposed was one of four years and six months including non-parole periods totalling two years and six months. Her Honour also made orders that the Appellant pay the sum of $900.00 by way of pecuniary penalty and for the forfeiture and destruction of the weapons. 127The grounds of appeal were: (a) With respect to the first count on the indictment the trial judge erred in finding that a set of parts capable of being made into a crossbow was a crossbow within the meaning of the Weapons Prohibition Act 1998. (b) With respect to the second, third and fourth counts on the indictment the trial judge erred in finding that the devices in question were crossbows within the meaning of the Weapons Prohibition Act 1998. (These devices were the three metallic devices found on 31 January 2011). (c) With respect to each of the counts on the indictment the trial judge erred in her treatment of the expert evidence in that: (i) her Honour denied natural justice to the appellant by not giving Mr Garland an opportunity to respond to matters she later relied upon in dealing with his evidence; (ii) her Honour failed to analyse adequately or at all the competing positions of the Crown and defence weapons experts; (iii) her Honour failed to have proper regard to the evidence of Mr Garland on the issues to be determined. (d) With respect to each of the matters for which the appellant was sentenced the sentences individually and overall were manifestly excessive. 128Originally, the sole ground of appeal against sentence was that last quoted. During the course of the appeal leave was sought to rely on three additional Grounds of Appeal, viz. "5. With respect to each of the matters for which the appellant was sentenced after trial her Honour erred in that she gave inadequate regard to the limited and clearly identified basis on which the trial was conducted as required under s22 (3)(I) and s22A of the Crimes (Sentencing Procedure) Act 1999; 6. With respect to the sentences imposed for the second, third and fourth counts on the indictment her Honour erred in regarding the offences as being of inappropriately high objective seriousness given the wholly ineffectual nature of the items in question. 7. With respect to the sentences imposed for the offences against s36 (1) of the Firearms Act 1996 (two concurrent fixed terms of 18 months) her Honour erred in failing to set a non-parole period as required by s44(1) of the Crimes (Sentencing Procedure) Act 1999 and in failing to state any reasons for decided to set a fixed term as required by s45(2) of the Crimes (Sentencing Procedure) Act 1999." 129The Crown took no objection to the further grounds and accordingly leave should be given to the Appellant to amend. Ground 1 130A number of provisions of the Weapons Prohibition Act 1998 were relied on. Section 3 sets out in a number of paragraphs the underlying principles and specific objects of the Act. By way of example, paragraph 2(b) states as one of the objects, "to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons". All of the paragraphs are similarly couched by reference to "prohibited weapons". 131Section 7 of the Act provides that a person must not possess or use a prohibited weapon unless authorised to do so by permit. "Prohibited Weapon" is defined in Section 4 as meaning anything described in Schedule 1. Schedule 1 makes reference to, inter alia: "A Slingshot (being a device consisting of an elasticised band secured to the forks of a 'Y' shaped frame), other than a home made slingshot for use by a child in the course of play. A crossbow (or any similar device) consisting of a bow fitted transversely on a stock that has a groove or barrel designed to direct an arrow or bolt. A Flail or any other similar article that consists of a staff or handle that has fitted to one end, by any means, a freely swinging striking part that is armed with spikes or studded with any protruding matter. Kung fu sticks or 'nunchaku', or any other similar article consisting of 2 or more sticks or bars made of any material that are joined together by any means that allows the sticks or bars to swing independently of each other, but not including any such article that is produced and identified as a children's toy." 132Section 4(2) provides that: "For the purposes of this Act: (a) anything that would be a prohibited weapon if it did not have something missing from it or a defect or obstruction in it, is taken to be a prohibited weapon, and (b) a person in or on (or in or on any part of) and premises, vehicle, vessel or aircraft in which there is a prohibited weapon is to be regarded as having possession of the weapon unless the person proves otherwise, and (c) if parts of a prohibited weapon are in the possession of, or are being carried by, 2 or more persons, each of those persons is to be regarded as possessing the weapon." 133Except as indicated, there is nothing in the Weapons Prohibition Act 1998 dealing with the component parts of prohibited weapons. 134It may also be noted that although some detachable firearm magazines are included in Schedule 1, the Weapons Prohibition Act 1998 does not include firearms as "Prohibited Weapons". 135The Firearms Act 1996 deals with the possession, use, supply and other dealings with firearms including items falling within the description "Prohibited Firearms". Section 4 contains a definition of "Firearm" and also of "Firearm Part" the latter meaning: "A barrel, breach, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as, or reasonably capable of forming, part of a firearm." 136Additional to those sections directed to the dealing in firearms, ss.50AA, 50B, 51BA and 51BB of the Firearms Act 1996 prohibit the purchase and supply in various circumstances of "firearm parts". Section 50A prohibits the manufacture of a firearm except under license. The various provisions dealing with "firearm parts" were introduced, variously, in 2001, 2002, 2003 and 2013. 137In essence the argument for the Appellant before English DCJ and in this Court was that even if the items in the box sold on 30 December could, when assembled, amount to a crossbow, in the state they were when the Appellant had possession or was dealing with them they did not fall within the definition of "crossbow". 138In that connection, emphasis was placed on the words "fitted" and "transversely" in the description of "crossbow". It was further contended that in a penal statute, if it was intended that the possession of parts merely capable of being turned into a prohibited weapon should be an offence, Parliament should have said so, as it has in the case of firearms. 139In response, the Crown drew attention to the terms of s.4(2) set out above and submitted that it would be absurd if an offence occurred when parts of a prohibited weapon were in the possession of two people but not if they were all in the possession of one. 140The Appellant's answer was to return to the definition of "Crossbow", to submit that some limitation had to be imposed on the bare terms on s.4(2)(a) and that, as Parliament had chosen in s.4(2)(c) to include the words "two of more persons", the various provisions could not be construed so as to apply when only one had possession of or carried the relevant parts. 141In my view the Appellant's submissions are to be preferred. Able to phrase the Act in any terms it chose, Parliament has defined a crossbow in the terms it has. At the time the Appellant had possession of and sold the items on 30 December, relied on as constituting the second of the transactions the subject of the first charge, the Appellant did not have a "bow fitted transversely on a stock" which is part of the definition of crossbow. 142The fact that the parts could have been fitted together and then could have formed a crossbow is nothing to the point. The parts were not a crossbow when the Appellant had possession of them. To quote an example given during the course of argument, a box of parts bought from Ikea and which, when assembled, form a bookcase is not a bookcase until the assembly occurs. 143Nor do the words "or any similar device" assist the Crown. Positioned where they are in the description, they also are governed by the words "consisting of a bow fitted transversely ...". 144Section 4(2)(c) also must be given an operation in accordance with its terms. One cannot construe the reference to "two or more persons" as including only one person. 145The exact operation of s.4(2)(a) is not as simple to determine. Thus, to take the definition of a slingshot by way of example, one could not fairly regard every elasticised band as a slingshot, treating the absence of an attached "Y" shaped frame as overcome by the terms of s.4(2)(a). Similarly, one could not regard every staff or handle in the community as a flail, or every stick or bar as Kung Fu sticks upon the basis that the absence of the other parts included in the description of those items was covered by that sub-paragraph. 146Furthermore if everything that was part of a prohibited weapon was, by virtue of s.4(2)(a) to be taken to be prohibited weapon, then s.4(2)(c) would be unnecessary. Each of the two or more persons who was carrying or in possession of a part of the weapon would, by virtue of s.4(2)(a) be taken to be carrying or have possession of the weapon. 147Thus there must be some limitations in the operation of s.4(2)(a). The difficulty is to determine what they are. Normal statutory construction principles and s.8 of the Interpretation Act 1987 require that "something" include more than one component but given the sorts of problems that would arise if paragraph 4(2)(a) were applied without limitation, it seems to me that the "something missing" must be confined so that what remains is in substance a "prohibited weapon". To illustrate, albeit by an article that is dealt with in the Firearms Act 1996 rather than the Weapons Prohibition Act 1998 (and ignoring the specific provisions of the Firearms Act 1996 dealing with parts), a rifle would still be a firearm even if the bolt or firing pin or both were missing but those items would not themselves be firearms in circumstances where all the remaining parts, barrel, stock, magazine, trigger mechanism etc were missing. In the case of a crossbow, the fact of, say, a missing string, would not prevent the balance of the item being a crossbow, but the absence of a bow or stock would do so. 148An alternate view is to require that the component under consideration have been at one stage part of a (complete) prohibited weapon, from which other part(s) have been detached and therefore can be regarded as missing. Such an approach would solve the difficulties attendant upon the examples of elasticised bands, staffs, handles sticks and bars referred to above. 149However, there was no evidence that the unassembled items purchased on 30 December 2010 had ever been put together so as to constitute a cross-bow so, whichever of the interpretations just expressed be adopted those unassembled items, either in totality or individually, did not constitute a crossbow and the Appellant's conviction on the first count was wrong and must be set aside. 150In so concluding, I am not unconscious of the decisions of Barr AJ in DPP v Morgan [2013] NSWSC 1474 and of the Court of Criminal Appeal in R v Mezzadri [2011] NSWCCA 125; (2011) 210 A Crim R 442. The former case was one involving the Firearms Act 1996, s.4(2) parts of which are for all practical purposes identical with s.4(2)(a) and (c) of the Weapons Prohibition Act 1998. Barr AJ held that the fact that there was missing from an unassembled collection of the component parts of a rifle, an integral part without which the rifle could not operate, did not prevent the balance constituting a firearm. 151In R v Mezzadri, by way of obiter, Adams J with the concurrence of the other members of the Court remarked at [18] that "a gun stock or trigger guard alone would arguably nevertheless be a firearm for the purposes of the [Firearms] Act, as much as would a completely operable machine gun". 152While conscious of the attraction of simply following these cases, it does not seem to me appropriate to do so in the context of the Weapons Prohibition Act 1998 as that Act encompasses a far more disparate collection of items than the Firearms Act 1996. I have indicated the sort of difficulties that would arise if one were to do so. 153I should add that the Crown's argument is not advanced by reference to the principles and objects of the Weapons Prohibition Act 1998. Referring as those principles and objects do to "prohibited weapons", s.3 gives no assistance in the determination of what are "prohibited weapons" or why "crossbow" should be given a meaning different from that which Parliament has specified. Ground 2 154This ground also must be upheld. Although I accept that a number of pieces of material, commonly wood, can be joined together and could form a bow, I doubt if that is a proper description of the two arms in this case, joined as they were to the stock which was in between them. In any event any bow consisting of the arms and part of the stock was not "fitted transversely on a stock". Ground 3 155In light of the conclusions at which I have arrived, it is unnecessary to explore this ground or to detail the evidence given by the experts called by the parties or the matters relied on. It may be appropriate to say however that I doubt the admissibility of much of the evidence given by the weapons experts. Appeal against Sentence 156Given the conclusions expressed above, Grounds 5 and 6 are no longer relevant. However the conclusion arrived at in respect of Count 1 make relevant ss.23A and a number of parts of 23B(3) of the Weapons Prohibition Act 1998. These provide: "(1) Prohibited weapons generally A person (the seller) must not sell a prohibited weapon to anther person (the buyer) unless: (a) the buyer is authorised to possess the weapon by a permit, and (b) the seller: (i) has seen the buyer's permit, or (ii) knows that the buyer is an authorised weapons dealer or authorised theatrical weapons armourer The maximum penalty: imprisonment for 14 years. (2) Military-style weapons A person (the seller) must not sell a military-style weapon to another person (the buyer) unless: (a) the buyer is authorised to possess the weapon by a permit, and (b) the seller: (i) has seen the buyer's permit, or (ii) knows that the buyer is an authorised weapons dealer or authorised theatrical weapons armourer The maximum penalty: imprisonment for 20 years. .... 23B (3) If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proved but is satisfied that the person has, in respect of any of the occasions relied on as evidence of commission of the offence under this section, committed a relevant selling offence, the jury may acquit the person of the offence charged and find the person guilty of the relevant selling offence, and the person is liable to punishment accordingly." 157It follows that the Appellant falls to be sentenced for selling the slingshot and Jaguar crossbow referred to in sub-paragraphs (a) and (b) above. As has been said he admitted the ingredients of these offences and was, and remains, willing to plead guilty to them. 158Relevant to any decision as to what sentences should be imposed for those offences and to the contention that (all of) the sentences individually and overall were manifestly excessive, it is appropriate to refer to some further matters and findings of her Honour. 159The Appellant had established a website called "Combat Australia" which attracted the police interest in him. In conversations associated with the purchase of the items on 30 December and 31 January the Appellant had advised the purchaser that he should remove the string and have it posted out to him in case he was stopped by police or that if he wanted to take the risk of buying the whole thing assembled, then he should "chuck a blanket" over it. The number of items dealt with or found by the police, and the circumstances detailed above indicate that the offences were committed in the course of a commercial operation. 160The Appellant was a registered shooter and based on this and his advice to the purchaser of the crossbow her Honour found that that Appellant well knew he was acting against the law. Given the use of unregistered firearms by criminals and that the Appellant had no way of knowing who the ultimate purchaser of his weapons might be, her Honour said that the Appellant's conduct in respect of the firearm was an act of immense social irresponsibility and had the potential to cause significant risk to the community. She observed that the sale of the crossbow displayed a reckless disregard for public safety, having earlier observed that: "A cross bow is capable of being loaded quickly and fired with precision. It is capable of causing significant injury or harm. It is not unheard of that a cross bow has been used in the commission of a serious criminal offence. Some years ago a young girl was shot by a school boyfriend in the playground at a Raymond Terrace high school with a cross bow." 161Later her Honour remarked: "Submissions were made regarding the imposition of an intensive corrections order. The difficulty that the offender faces in that regard is that for such an option to become available the sentences to be imposed must be for two years or less. I find his offending behaviour is such that first a custodial penalty is the only appropriate punishment available but, secondly, that the totality of the sentences to be imposed will all [sic] above a two year term thereby rendering the offender ineligible to serve his sentence by way of other than full time custody." 162Her Honour also recorded that the Appellant: " ... now has a significant criminal record, which, of course, will impact upon his prospects for employment, overseas travel and perhaps even involvement with his children in their educational and sporting activities once he is released from custody. He will not longer be able to pursue recreational shooting and his criminal behaviour may even cost him his marriage". 163Turning to other matters, the appellant was 37-years old at the time of sentence, married with two children and no prior criminal antecedents. He was educated to Year 12, employed by the Defence Department for a number of years and at the time of his arrest, carrying on his own importing business. He provided however, no explanation for his offending. 164Her Honour accepted that the Applicant had contributed significantly to the community through volunteering and charitable organisations, that he was remorseful, of good character, his prospects for rehabilitation are good and he is highly unlikely to re-offend. Indeed there were unchallenged references put before her Honour as evidence that the Appellant had donated thousands of dollars in money and kind to charities and schools. 165Her Honour referred also to evidence that the Appellant had suffered from anxiety and depression since childhood and had been diagnosed with dysthymia. Her Honour found however that there was no basis for concluding that this contributed to the offending but that the Appellant's time in custody might be more onerous in consequence. On this account, a need for the Appellant to attend for assessment, treatment and psychotherapy, and because this would be the Appellant's first time in custody and the accumulation of sentences, her Honour found special circumstances. 166One matter to which her Honour seems not to have adverted was that, with the exception of the charge under s.23B of the Weapons Prohibition Act 1998, all of the offences with which she was dealing could have been dealt with in the Local Court. Listed in Table 2 to Schedule 1 of the Criminal Procedure Act 1986, all but the offence of not taking reasonable precautions to keep a firearm safely were, by s.260(2) required to be so dealt with unless the Prosecutor elected to have them dealt with on indictment. The maximum penalty for the precautions offence was two years and thus in the normal course it also would have been dealt with summarily. No doubt it was before English DCJ as an offence "related" to others her Honour was dealing with - see s.165 Criminal Procedure Act 1986, et seq. 167Section 23A(1) is also one of the provisions listed in Table 2. 168In light of this, the Court's conclusion that the convictions for the most serious offence charged and the other offences on the indictment should be quashed, her Honour's decision that a custodial sentence was called for must be reconsidered. That said, the decision was clearly correct. There can be no doubt that the principles and objects of the Weapons Prohibition Act 1998, the maximum penalties provided for his offences together with the obvious problem that weapons cause in the community and the deliberate and significant criminality in which the Appellant engaged argue convincingly for a custodial sentence. 169On the other hand half of his offences related to slingshots and a crossbow, weapons that are not commonly - indeed one may say rarely - associated with crime other than the weapons' own use. I of course accept that, as demonstrated by the example to which her Honour referred, they may be so used but the general proposition just stated remains true. Furthermore, I am by no means convinced that her Honour was correct in the statement she made that "... a crossbow is capable of being loaded quickly ...". There was no evidence before her Honour to that effect and a demonstration by police of the use of one of the metallic items recorded on a DVD in evidence suggested that loading one of those weapons was by no means a speedy task. Certainly, any pistol or rifle would be far more convenient to use. 170The Judicial Commission statistics show that in the period October 2009 to September 2013, 405 offenders were dealt with in the Local Court and only eight in the superior courts for the offence under s.36(1) of possessing an unregistered firearm. Only 25 of the former group went to prison, 17 of these receiving sentences of 12 months or less, while six of the eight did. In that latter group sentences were fairly evenly spread between one and three-and-a-half years. 171The statistics show that in the same period seven offenders were dealt with in the Local Court and none in the superior courts for selling an unregistered firearm. There was one offender dealt with in the superior courts for conspiracy to sell or purchase such a firearm. Of the seven, only two were sent to prison, one for three months and one for eight months. The offender guilty of the conspiracy was sentenced to imprisonment for 14 years. 172In the period October 2009 to September 2013, 1,003 offenders were dealt with in the Local Court for possessing or using a prohibited weapon and, since the introduction of the standard non-parole period, 22 in the superior courts. Only 55 of the 1,003 and 10 of the 22 were sent to prison. Of the 55, three received sentences of two years, two received sentences of 18 months, one received a sentence of 15 months and 11 received a sentence of 12 months. The sentences on the balance were shorter. 173Of the 10 sentenced in the superior courts to imprisonment, one received a sentence of eight years, four received sentences of three years and two received sentences of two-and-a-half years. The sentences on the other offenders were shorter. 174The sentence of eight years, which included a non-parole period of five years, was imposed on a former member of the army who, following his appropriation of the weapons, had possession of 10 rocket launchers containing rockets, capable of travelling 1,100 metres and containing explosives capable of penetrating 28 cm of steel plate. The offender had disposed of the weapons which, this Court inferred, remained in the possession of criminals and which were dangerous and life threatening and the only reasonable use of which was for criminal or terrorist activities. There had been a plea of guilty. This Court held that the sentence was not manifestly excessive - see Della-Vedova v R [2009] NSWCCA 107. 175Hence the Appellant's offences now to be dealt with could well have been prosecuted in the Local Court. However, when regard is had to the totality of his offending and that it occurred as an incident of a business he was running in dealing in either unregistered firearms or prohibited weapons, it is impossible to say that the Local Court was the most appropriate venue. Accordingly I do not regard the fact that the remaining charges could have been dealt with in the Local Court as an argument in mitigation - see Zreika v R [2012] NSWCCA 460; (2012) 223 A Crim R 460 at [109]. 176The statistics do suggest that the sentences imposed on the Applicant were relatively severe. However, inevitably the statistics do not provide any information as to the details of the offences or offenders reflected in them. Importantly, they do not indicate whether the offences were incurred in the course of a significant commercial operation. They provide at best but limited guidance. 177Against the statutory penalty of five years' imprisonment the commercial nature of the Appellant's offending makes it impossible to regard the sentence of a fixed term of 18 months' imprisonment for selling an unregistered rifle as outside the legitimate exercise of English DCJ's discretion, and this even taking into account the favourable matters that could be put on the Appellants' behalf. Given it was made concurrent, the same may be said for the 18-month sentence for possession of that weapon. 178In that connection it is appropriate to observe that rifles and pistols are by far the most common form of firearm that is not a prohibited firearm and while pistols might be thought to be more of a menace to the community, the penalty for possessing or selling an unregistered pistol is double that prescribed for possessing or selling a rifle. The Appellant's offence was well up the scale of those created by s.36(1). 179I take a somewhat similar view in respect of the sentence of six months' imprisonment imposed for the offence of not keeping this rifle safely. Given that the sentence for this offence was entirely concurrent with part of the terms imposed for possessing and selling that unregistered rifle, it is unnecessary that I remark further on this six months sentence. 180More must be said however in relation to the sentence of two-and-a-half years, including a non-parole period of 12 months for possessing a slingshot. "Prohibited weapons" for the possession of which a maximum penalty of 14 years' imprisonment is prescribed (and was when the Act was introduced in 1998) include military style weapons such as bombs, IEDs, grenades, rockets, missiles, mines and flame throwers - weapons vastly more dangerous, or at least with a much greater capacity to kill or injure, than the non-military prohibited weapons such as flick knives, star knives, crossbows, cat-o-nine-tails, Taser guns, extendable batons, knuckle dusters and slingshots. 181I doubt if it is possible to find a feature common to all of the weapons in the non-military category other than their capacity to assist in the infliction of serious injury although a feature of many is the ease with which they can be concealed. Thus a flick knife would not seem inherently more dangerous than many other knives and an extendable baton not more dangerous than a non-extendable baton, baseball bat or medium sized jemmy. Flick knives and extendable batons are however much more easily concealed. 182Ease of concealment is probably a feature of a slingshot but not of a crossbow. On the other hand, the latter weapon has a substantially greater prospect of resulting in a fatal wound than does the former, both because of its accuracy and the nature of its projectile. 183So far as I am aware there are no statistics as to the use or abuse of weapons in the prohibited weapons category or the extent to which they are used in the furtherance of other criminal activities. Certainly my experience on the bench has included a number of cases where flick knives and knuckle-dusters have been employed but with the exception of that referred to by her Honour, I have not heard of anywhere crossbows or slingshots have been. It is also of significance that the nature of slingshots (and cross-bows) is such that it is impossible to predicate that their possession or use is for the purposes of injuring people. 184In the result any conclusion as to where in the scale of prohibited weapons, slingshots and cross-bows fall, other than that they fall a long way below military weapons, must to a degree be a matter of impression. The wide variety of weapons also makes difficult any determination of what is an offence answering the description of that charged that is in the middle range of objective seriousness 185I do not deny the possibility that slingshots, particularly when used to fire a ball bearing could be fatal. However, it seems to me that they are very unlikely to be so, at least to anything larger than a bird. When one adds back the 25% discount her Honour applied, the sentence of two-and-a-half years imposed for the offence of possession of the slingshot represents a starting point of three years and four months - about one quarter of that provided for the possession of military style weapons to which reference has been made. I of course accept that the severity of sentences of imprisonment are not simply proportional to their length - see R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 - but three years and four months does not seem to me to adequately reflect the difference in the character of the weapons. The sentence of two-and-a-half years for possession of the slingshot was manifestly excessive. 186In my view an appropriate sentence, if it were to include periods of non-parole and when the Applicant will be eligible for parole, would be one of 12 months. Divided in the usual proportions this would result in a non-parole period of nine months but given the other sentences imposed and to be imposed for this offence, I would simply make that nine months period a fixed term. 187Falling as they do within the terms of s.23A(1) of the Weapons Prohibition Act 1998, the sale of the slingshot and crossbow on 22 December and 31 January raise different issues. That section itself provides maximum penalties which differ for military and non-military weapons. The sale of non-military weapons attracts a maximum penalty of 14 years' imprisonment and it is against that standard, shorn of the impact of military weapons, that the Appellant's offences involving the sale of these weapons must be judged. 188No doubt reflected in the penalty prescribed is the fact that after a sale the Appellant would have no control over the use to which the slingshot and crossbow would be put. However, as I have indicated, the nature of both is such that it is impossible to predicate that their possession or use is for the purposes of injuring people. Indeed, the fact that there are many other more convenient weapons available to those who, with a view to causing injury or death, are disposed to breach the Weapons Prohibition Act 1998 or the Firearms Act 1996, argues against the likelihood of such use. 189In the result, for that offence of selling the crossbow, I would impose a sentence of imprisonment for a total of two-and-a-half years. For the sale of the slingshot, an appropriate sentence, if it were to include periods of non-parole and when the Applicant will be eligible for parole, would be one of one-and-a-half years. 190As her Honour recognised, the number of offences meant that some degree of accumulation of sentences was required although the principle of totality led to the conclusion that there should also be a degree of concurrency. There was no challenge to her Honour's finding of special circumstances and certainly the accumulation of sentences inspires such a finding. 191As has been indicated, there is no occasion for this Court to interfere with the sentences of: "A fixed term of 6 months imprisonment commencing on 29 January 2013, for the offence of not taking all reasonable precautions to keep a firearm safely, the subject of CAN H4399256/004 and A fixed term of 18 months imprisonment commencing on 29 January 2013. for the offences of possessing and selling an unregistered firearm, the subject of CANs H4399256/003 and H4399256/006." 192As has been said, the convictions and sentences imposed for Counts 1 to 4 on the indictment should be quashed. So must the sentence for possessing a slingshot, the subject of CAN H4399256/002. For that offence a sentence of a fixed term of nine months commencing on 29 April 2013 should be substituted. 193The Appellant should also be convicted and sentenced as follows: "For the offence of, on 22 December 2010, selling a prohibited weapon, viz a slingshot, imprisonment for a fixed term of 14 months commencing on 29 July 2013, and For the offence of, on 31 January 2011, selling a prohibited weapon, viz. a crossbow, imprisonment for a non-parole period of 12 months commencing on 29 January 2014, together with a further term of 18 months commencing on 29 January 2015." 194The departure in that last paragraph from the common 75:25 relativity is due to the accumulation of sentences and English DCJ's finding of special circumstances. 195The effective term of imprisonment will thus be one of imprisonment for fixed or non-parole terms totalling two years commencing on 29 January 2013, together with a further term of 18 months commencing on 29 January 2015. 196I propose the following orders: (a) Grant leave to the Appellant to amend his Notice of Appeal by adding the further grounds set forth in [128] above. (b) Allow the appeal against conviction. (c) Quash the convictions and sentences imposed for Counts 1 to 4 on the indictment dated 17 September 2012. (d) Convict the Appellant of a charge that on 22 December 2010 he did sell a prohibited weapon, viz. a slingshot. (e) Convict the Appellant of a charge that on 31 January 2011 he did sell a prohibited weapon, viz. a "Jaguar" brand crossbow. (f) Grant leave to appeal against sentence. (g) Allow the appeal against sentence. (h) Quash the sentence for possessing a slingshot, the subject of CAN H4399256/002. (i) In respect of the offence of possessing a slingshot, the subject of CAN H4399256/002, sentence the Appellant to imprisonment for a fixed term of nine months commencing on 29 April 2013. (j) In respect of the offence of, on 22 December 2010 selling a prohibited weapon, viz. a slingshot, sentence the Appellant to imprisonment for a fixed term of 14 months commencing on 29 July 2013. (k) In respect of the offence of, on 31 January 2011, selling a prohibited weapon, viz. a crossbow, sentence the Appellant to imprisonment for a non-parole period of 12 months commencing on 29 January 2014, together with a further term of 18 months commencing on 29 January 2015. (l) Record as the date upon which it appears to the Court that the Appellant shall become eligible for parole, 29 January 2015. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2014