6.49On our methodology, many of the offences in the Arms Act were given a ranking at odds with the current maximum penalty.
6.50Some have a maximum penalty that seems to be directed towards much more serious conduct than that covered by the scope of the offence as drafted, primarily because they overlap with a more serious offence. For example, the offence of unlawful possession of a pistol or restricted weapon under s 50(1) carries a maximum penalty of three years’ imprisonment. It is difficult to understand how a maximum penalty at that level can be justified, given that there are a range of other offences covering unlawful carriage or use. It is also difficult to reconcile the maximum penalty with that provided for the offence under s 36 of carrying a pistol or restricted weapon in any place beyond the curtilage of a dwelling except in accordance with the conditions of a firearms licence, which is punishable by only three months’ imprisonment. Given that the former offence entails only unlawful possession while the latter entails unlawful carriage, the difference between the two does not make sense.
6.51The maximum penalty of two years’ imprisonment for the offence of unlawful carriage of an imitation firearm under s 46(1) is equally anomalous. If the imitation firearm is used to commit some other offence, it will be an aggravating feature of that offence and taken into account in the sentence imposed. The maximum penalty for this offence should therefore be based on a worst class of case that involves unlawful carriage alone. Since an imitation firearm is capable only of frightening, the harm inflicted by the offence is relatively small. We accordingly placed the offence in the lowest penalty category.
6.52In contrast, other offences have a maximum penalty much lower than the seriousness of the conduct covered by the worst class of case. For example, the offence under s 48 of discharging a firearm in or near a public place or dwelling house without reasonable cause, so as to endanger property or to endanger, annoy or frighten any person, carries a maximum penalty of only three months’ imprisonment. Yet the very similar offence under s 53(3) of discharging a firearm without reasonable cause, in a manner likely to injure or endanger the safety of any person or with reckless disregard for the safety of others, carries a maximum penalty of three years’ imprisonment. In the worst class of case, the only substantive difference between the two offences is that the s 48 offence must occur in or near a public place or dwelling house, while the s 53(3) offence may occur, for example, on privately owned farmland. That would suggest that, if anything, the s 48 offence is the more serious of the two. Given that the endangerment to public safety will, in the worst class of case, involve recklessness (ie knowledge of the risk), a maximum penalty of only three months’ imprisonment seems, relatively speaking, much too low. We gave both offences the same harm score and placed them in Category J, alongside offences carrying maximum penalties predominantly in the three to seven year bracket.
6.53These examples demonstrate a more fundamental problem with the Arms Act: there is no coherent offence structure with systematically graduated levels of seriousness, but instead overlapping offences with seemingly arbitrary maximum penalties attaching to them. This conclusion was also reached by the Sentencing Establishment Unit within the Law Commission when it was attempting to draft sentencing guidelines for offences under the Arms Act. It found the task extremely difficult simply because the nature of the conduct that each offence was directed towards, by comparison with other offences in the Act and indeed with parallel offences in the Crimes Act, was difficult to discern.
6.54We therefore think the anomalies in the maximum penalties we have identified in the Arms Act cannot be addressed simply by a review of penalty levels. A fundamental overhaul of the Arms Act is long overdue.