WALTON J: I agree with the reasons for judgment given by Harrison J and the orders proposed by his Honour.
HARRISON J: Mostapha Ali pleaded guilty to possessing a shortened firearm and a loaded firearm in a public place. These offences related to the same weapon. Mr Ali also admitted to a number of other offences that were to be taken into account on sentencing. His Honour Lerve DCJ sentenced Mr Ali on 24 April 2020 for these offences to an aggregate term of 4 years and 6 months with a non-parole period of 3 years. Mr Ali will be eligible for release on parole on 29 April 2022. His Honour indicated sentences of 4 years and 2 months and 2 years and 3 months respectively for the two primary offences. His Honour allowed a 25% discount for the plea so that the starting points for the two offences were 5 years and 9 months and 3 years.
Mr Ali now seeks leave to appeal to this Court against the severity of his sentence upon the single ground that his Honour erred in the assessment of the objective seriousness of the firearms offences.
His Honour rejected Mr Ali's evidence that he "had no intention of using the weapon", referring to evidence from Mr Ali that he had used the shotgun to kill snakes, as well as the evidence that it was loaded when he was apprehended and that there was a spare shell nearby. His Honour found that the objective seriousness of both firearms offences was "within the mid-range of seriousness". That was contrary to the submission of Mr Ali's counsel below, which was that the objective seriousness of both offences sat below the mid-range, although well above the lower end of the range "on account of the type of firearm".
It is acknowledged by Mr Odgers SC who appears for Mr Ali in this Court that the appeal is strictly an appeal against the aggregate sentence of 4 years and 6 months. However, as Mr Odgers correctly observed, error in the determination of a sentence that is indicated as the sentence that would have been imposed for an offence may reveal error in the aggregate sentence reached. Mr Odgers submitted that in the present case, an error in the determination of the objective seriousness of the firearms offences does reveal error in the determination of the aggregate sentence. His argument was framed in the following way.
A material consideration in determining the objective seriousness of a firearm possession offence is whether the offender was engaged in other criminal activity. That may include dealing in firearms, or where it is intended or anticipated that the firearm may be used to facilitate criminal activity. Shortened firearms, as in this case, are readily capable of concealment to facilitate use in crimes. Where the possession under consideration is related to criminal activity, this will tend to elevate the objective seriousness of the offence.
In the course of the sentencing hearing, counsel for Mr Ali submitted that he should be sentenced on the basis that the firearm "was not intended for, nor connected with, criminal enterprise or offending", and noted that Mr Ali was "unchallenged in this respect and there [was] no evidence to the contrary". He submitted further that "there [was] no suggestion of possession for the purpose of supply to another".
His Honour specifically referred to Mr Ali's submissions that there was no evidence that the firearm had ever been used in the commission of a criminal offence. He then said the following:
"I was reminded by counsel on 15 April 2020 that the offender previously gave evidence of using the weapon to shoot a snake. Noting this and that the weapon was loaded and that there was another cartridge in the near vicinity I reject the offender's evidence that he had no intention of using the weapon. He said that it had never been used in criminal activity. Again, there can be no legitimate reason for the possession of such a weapon but I could not be satisfied beyond reasonable doubt that the weapon had been used in criminal activity. If it had been so used this would make the matter more serious.
…
Counsel then took the offender to the other weapons found in the toolbox. He said that they were things that he used to like, that he thought they were 'cool'. He no longer thought they were cool. He said they had never been used in criminal activity. There is no basis for finding to the contrary."
The burden of Mr Odgers' submission in this Court is that his Honour did not address the submission made on behalf of Mr Ali that the firearm "was not intended for, nor connected with, criminal enterprise or offending". Mr Odgers contended that, when the parties and the appeal court are left to speculate about what matters a sentencing judge did, or did not, take into account when determining the sentence, there is a failure sufficiently to expose the reasons for sentence such that the discretion must be taken to have miscarried: Sanchet v R [2006] NSWCCA 291 at [39]; Connell v R [2020] NSWCCA 352 at [41]-[43]. A failure to refer to a material factor will tend to indicate that the sentencing judge did not attach weight to that factor on sentence: R v El Masri [2005] NSWCCA 167 at [36]. Where a sentencing judge does not refer to a significant consideration relied upon by the offender that is presented to the court, it must be assumed that no regard has been given to that aspect: Dunshea v R [2016] NSWCCA 244 at [29].
Mr Odgers also made the following written submissions:
"16. Given that it was a material consideration in determining the objective seriousness of both firearm possession offences whether the offender was engaged in (other) criminal activity and intended, or anticipated, that the firearm might be used to facilitate that criminal activity, the failure of the sentencing judge to address this submission meant that the sentencing judge erred in determining the objective seriousness of the firearms offences.
17. A rejection of the applicant's claim that he 'had no intention of using the weapon' at all did not, and could not, constitute a rejection of the applicant's claim that he was not involved in any criminal activity and had no intention of using the shotgun in criminal activity. In the circumstances, there was no evidentiary basis on which to reject the applicant's evidence in this regard. Use of the shotgun to kill a snake did not, and could not, provide a basis on which to reject that evidence. The applicant was not in substance challenged in cross-examination on his claim that he was not involved in criminal activity. The applicant should have been sentenced on the basis that he was not engaged in (other) criminal activity and, whatever use of the shotgun he might have contemplated, it was not used to facilitate criminal activity.
18. In any event, there was no finding made that the applicant was engaged in criminal activity and intended, or anticipated, use of the shotgun in that criminal activity. Absent such a finding, it was not open to the sentencing judge to determine that the objective seriousness of both firearms offences was within the mid-range of seriousness. The matters referred to by the sentencing judge at ROS [28] could not reasonably support such a determination in the circumstances of the present case, absent such a finding."
Mr Odgers reformulated this submission slightly in his closing reply as follows:
"This judge at no stage adverted to the absence of that factor as a basis for concluding where it fell in the range of objective seriousness, and he should have. And that was an important error. The conclusion that it was a middle of the range supports the conclusion that he failed to take into account the absence of that factor. And even if I'm wrong about that, that absence of that factor should have led to the conclusion it wasn't reasonably open to find that it was in the middle of the range absent that factor. So that I hope has clarified the submissions that I made…"
It can be accepted that the issue of whether Mr Ali had ever used the shotgun for the purposes of criminal activity was an important matter for his Honour to consider. His Honour concluded that Mr Ali had never done so. Was it however an error, as Mr Ali contends, for his Honour to have failed to take into account that the shotgun "was not intended for, nor connected with, criminal enterprise or offending"?
In my view, that submission is based upon the false assumption that his Honour did not do so. It is clear that his Honour's conclusion, that there was no basis for a finding that any of the weapons had been used in criminal activity, is also a complete and adequate response to the submission that the shotgun was not intended for or connected with a criminal enterprise or offending. The implicit suggestion upon which Mr Ali relies in this Court is that his Honour erred by failing to state positively that he did not rely upon something in arriving at his conclusion. In other words, his Honour fell into error by not referring to a factor that he did not take into account.
As superficially beguiling as that submission may appear, it cannot in my opinion be correct. The onerous task confronting judges exercising a sentencing discretion in the District Court is well known. His Honour's remarks on sentence in the present case are detailed, cogent and thorough. It would in my opinion be wrong and unreasonably burdensome to expect, let alone oblige, sentencing judges to list all matters potentially adverse to the offender that they have not taken into account in arriving at a sentence. I do not understand the authorities to support the proposition that a sentencing judge is required to specify, presumably exhaustively, all matters potentially adverse to an offender that the judge did not take into account, lest it be thought that he or she did so.
In any event, on the particular facts of the present case, it is clear that his Honour has not proceeded upon the basis that the shotgun was intended for use in criminal activity. His Honour's affirmative conclusion, that there is no basis for a finding that any of the weapons had been used in criminal activity, necessarily forecloses anything other than a semantic concern that his Honour might possibly have entertained a different view about Mr Ali's intentions for the future. Unlike the authorities to which Mr Ali has referred, I am not left in any doubt about what matters his Honour did or did not take into account when determining the sentence he imposed. This is not a case in which it can reasonably be contended that his Honour has failed sufficiently to expose the reasons for the sentence at which he arrived. Nor is this a case where it appears his Honour may have considered, because he did not expressly say otherwise, that Mr Ali possibly intended to use the shotgun for criminal activity in the future. There is in my opinion no basis for contending that his Honour failed to make clear whether or not he accepted the submission that the firearm was neither intended for, nor connected with, criminal enterprise or offending. He obviously accepted that submission. His Honour's sentencing discretion did not miscarry.
Leave to appeal should be refused.
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Decision last updated: 06 August 2021