NSW judge Paul Conlon on gel blaster ban: ‘Ludicrous’ to go to jail for toys
In every other jurisdiction except Queensland you need a gun licence to wield this recreational weapon. Has the rest of the country got it wrong?
A NSW judge says it is “ludicrous” someone can face a maximum penalty of 20 years’ jail in the state for possessing gel blasters, but just over the border in Queensland they are legal and considered a “children’s toy”.
District Court acting judge Paul Conlon – also the chair of NSW Rugby League and a former chair of the NRL judiciary – said there was an “urgent need” for parliament to review whether gel blasters should remain illegal in the state.
Queensland is the only Australian jurisdiction where the imitation weapons are legal; all other states and territories either ban them or require a firearms licence.
This year, Judge Conlon presided over the case of 35-year-old senior prison officer Adam James Smith, who was charged with several counts of possessing prohibited weapons after police searched his Vale of Clywdd home, west of Sydney, in December 2020.
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Officers found a Taser with six cartridges, a body armour vest, and several gel blasters, including a gel blaster grenade launcher with a replica grenade; Smith didn’t hold a licence orfirea permit for any of the items.
He told police he’d bought the gel blasters for him and two sons to play with, insisting he didn’t know it was illegal.
Judge Conlon found Smith – who had no criminal history – guilty in February, and the following month had to decide on a sentence for the charges, for which the maximum penalty is 20 years’ jail with a standard non-parole period of 10 years.
“It does seem ludicrous that the possession of a gel blaster, in these particular circumstances, is triable on indictment in the District Court,” he said.
He said it was sensible that the NSW parliament in 2018 had excluded paintball guns – which use a similar mechanism to gel blasters – from the definition of a firearm, and “paintball businesses now operate legally as a leisure time activity”.
Judge Conlon said he was convinced Smith “only ever intended” to use the gel blasters as toys, and said there should be an immediate review of the laws.
“In my view there is urgent need for parliament to review the situation in respect of gel blasters and if it is considered they should remain illegal in NSW, they should be placed into a category of their own, with appropriate penalties (including fines),” he said. He had also described it as an “unfortunate situation” where it was not unlawful to have a gel blaster in Queensland, but over the border it would lead to a charge with “significant” maximum penalties.
An expert witness for the defence, engineering academic Dr Milind Siddhpura from the Engineering Institute of Technology Australia, told the court that gel blasters should be identified as a toy, rather than an airgun which has the capacity to be lethal.
Dr Siddhpura analysed the impact force of a gel blaster and found it was only slightly slower than a Nerf gun toy, but a paintball gun’s impact force was 14 times higher than a gel blaster, and an airgun was 665 times higher.
After Smith was arrested, he was refused bail and spent “a harrowing 65 days in jail” where he was kept in solitary confinement because of his job.
Judge Conlon slammed the DPP for “overcharging” Smith and said the minor offences should have been dealt with in the lower court. He did not give Smith any other penalty, and only recorded a conviction on the charges relating to the Taser and bulletproof vest.
“In my time as a judicial officer I cannot recall an occasion when I have been more concerned to restore some justice to an offender rather than to further punish him,” he said.
A spokeswoman for NSW Police Minister Yasmin Catley said the government did not have plans to review the state’s gel blaster ban.
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