Alrubae v R

Court of Criminal Appeal (NSW)|2016-07-18|Before: Hoeben CJ, Rothman J, Hulme J

Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2014/188922 Decision under appeal Court or tribunal: District Court Date of Decision: 18 May 2015 Before: Sides QC DCJ File Number(s): 2014/188922

Facts

On the evening of 25 June 2014 police were alerted to suspicious activity in an industrial area at Warwick Farm. (This included that a person with an appearance not dissimilar to the applicant was there.) Officers attended the location and found underneath some garbage an imitation .45 calibre self-loading pistol with 10 rounds of .22 calibre ammunition wrapped in 3 separate plastic bags. Next to these was a sawn-off double-barrelled, 12 gauge, pistol grip shotgun with its serial number removed which was wrapped in a tea towel and plastic bag. Police seized the items and commenced surveillance.
About 40 minutes later a car was driven past very slowly. Two men were inside and they were seen to look in the direction of where the firearms had been found. The car returned and was parked immediately next to the area. The applicant was arrested as he commenced to get out of the car. He told police he was just there to have a cigarette. A subsequent fingerprint examination linked the applicant to the firearms and ammunition and he admitted by his pleas of guilty that they were in his possession. He was not the holder of a Firearms Licence or Permit authorising such possession. Neither of the firearms was registered.

Personal circumstances of the offender

The applicant was born in 1995 and so he was aged 18 at the time of the offences. He will shortly turn 21. He has a criminal history that includes offences of Robbery in company and Affray in 2011; Assault in 2013; and Possession of drugs in 2014. These matters were dealt with by way of bonds, probation, a community service order and fines. Good behaviour bonds imposed on 26 March 2013, 9 September 2013 and 23 June 2014 were in force at the time of the applicant's commission of the present offences on 25 June 2014.
Bail was refused from the time of the applicant's arrest which explains the backdating of the sentence to 25 June 2014.
The sentence hearing was relatively brief. Aside from the criminal history, the only other subjective material provided to his Honour was a Pre-Sentence Report. The following is derived from that report. There was no oral evidence.
The applicant had some disciplinary issues in custody. For the most part he had not engaged in any employment. He had participated in basic educational screening and development programs and completed a "Vocational and Community Engagement educational program" in November 2014.
The applicant was born in Iraq. His family relocated to Syria in 1996 and to Australia in 1998. He would have been 2 or 3 years old at that point. His parents separated in 2010. He lived with his father and his father's new wife since then.
He left school after completing Year 8 at the age of 15. His education was characterised by disobedience, truancy and fighting. He had some periods of employment since that time but left because of "boredom". He was receiving government welfare benefits before going into custody.
The applicant began using cannabis and cocaine at the age of 15. This progressed to daily usage of cannabis and the use of cocaine "whenever available". His usage increased in the months preceding his arrest but he did not consider it was problematic. The author of the Pre-Sentence Report opined that the applicant "displayed little insight into the wider effects of his polysubstance abuse and its likely effects upon his ability to develop and maintain a law abiding lifestyle". He maintained that he had remained substance free since being in custody but this could not be confirmed. He expressed a willingness to engage in programs relating to his drug use.
Gambling was also noted in the report as an issue but the relevance of the applicant's need for money in this context could not be determined because of his unwillingness to discuss the offences in detail. The applicant was unwilling to discuss where and why he had obtained the firearms and whether he stood to gain financially. The author of the report also noted a reticence of the applicant to discuss his peer group and their activities.
The applicant was assessed as presenting a medium risk of re-offending. One of the conclusions in the report was that he would benefit from a period of supervision in order to assess and monitor his substance abuse, gambling and his peer associations.

Findings made in the assessment of sentence

The following matters were noted, or found, by the learned sentencing judge: The Form 1 matters taken into account "would normally be dealt with summarily". There would be a reduction of sentence of 25 per cent to reflect the utility of the guilty pleas. Remorse (s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) had not been established. His Honour referred to the content of the Pre-Sentence Report (summarised above). In relation to the applicant's professed willingness to engage in drug rehabilitation programs he noted that there was no evidence that the applicant had ever done so or made any inquiries about doing so. He also noted that there was no evidence about him having done anything to address his gambling problem. No claim could be made to have been of prior good character. Further, it was an aggravating factor that the applicant was on a good behaviour bond (three in fact) at the time of the offences. This was a case of possession, not use, of firearms. The shotgun was in working order but it was not loaded and no ammunition was found with it. The pistol was an imitation but it had a realistic appearance. There was no evidence as to how or why the firearms came to be where they were found, or how long they had been there, but the judge was satisfied beyond reasonable doubt that the applicant was returning to the location to collect them. An explanation provided by counsel, not supported by evidence, was rejected. The shortened shotgun had the potential to cause harm in the community. The imitation self-loading pistol also had the potential to cause harm if presented with criminal intent. The offences were premeditated. There was no evidence that the applicant had the weapons in his possession for a lawful purpose. There was no evidence as to how long he had them in his possession. In relation to the imitation pistol, the offence was "in the middle of the range of seriousness as connoted by the standard non-parole period of three years". In relation to the shotgun, the offence was "above the middle of the range of seriousness as connoted by the standard non-parole period of three years". The applicant's prospects of rehabilitation and not re-offending were "reasonable". In this regard, his Honour noted that there was an escalation in the nature of the applicant's criminal behaviour; he had limited insight into his substance abuse; and there was a lack of insight into the harm offences of this type do to the community. Greater weight was given to rehabilitation and less weight was given to deterrence because of the applicant's young age. This did not mean that no weight was given to deterrence; appellate decisions required that considerable weight be given to punishment and deterrence. Imprisonment was a sentence of last resort. Totality had to be reflected in the aggregate sentence. There was a need to backdate the sentence to reflect pre-sentence custody. Special circumstances were found on the basis that the applicant needed an extended period of supervised parole.

Ground 1 - error in assessment of the relative seriousness of the offence of possessing an imitation pistol

The matters the judge mentioned that bore upon the relative seriousness of this offence were that it was an imitation pistol and it had a magazine and both had a very realistic appearance. There was potential to do harm if presented with some criminal intent. The offence was pre-meditated and there was no evidence that the applicant had the items for any lawful purposes. The offence was not isolated given the finding of the two firearms together.
Counsel for the applicant (who did not appear in the court below) submitted that the learned judge's finding that this offence fell within the middle of the range of seriousness was not open to be made, primarily because the pistol was incapable of being fired. It was accepted that the potential for harm was "potentially significant" but it was "immeasurably less than the potential harm arising from a functional pistol".
Counsel sought to contrast the offence with one involving possession of a functional pistol, irrespective of whether it was loaded or not, which would necessarily fall above the middle of the range of seriousness if the sentencing judge's assessment in relation to an imitation pistol was correct. It was also submitted that the circumstances of the applicant's possession could be contrasted with possession of such an item by a drug dealer or someone committing or preparing to commit an offence.
Counsel for the applicant made reference to Mulato v R [2006] NSWCCA 282. Senior counsel for the Crown referred to the judgment of Simpson J (as her Honour then was) in that case where she said (at [46]) that "It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge". Reference was also made to the recent judgment of Wilson J (Hoeben CJ at CL and Hall J agreeing) in Salafia v R [2015] NSWCCA 141 in which her Honour said: [90] A ground of appeal asserting error in the assessment of objective seriousness should be advanced only where specific error of the sort referred to in House v The King can be identified rather than, as seems to be commonly the case, a complaint routinely made. Assessment of gravity by a first instance judge is a process involving the application of principle to facts established by the evidence. It is a discretionary process that relies upon a judicial officer considering all relevant features, and making what in many regards is a value judgment. The conclusion reached is a discretionary one in a process where there is no definitively "correct" answer. Opinions can reasonably differ, but the availability of other differing assessments is not a basis upon which to discern error. There will be appealable error only where there has been a failure in the proper application of principle in making the assessment.
In my view, the assessment of the objective seriousness of this offence was one about which minds may legitimately differ but I am unable to conclude that the finding was not one that was reasonably open to be made. The discretionary evaluation of the primary judge should be respected. I would reject this ground.

Ground 2 - manifest excess

The following matters were identified by counsel for the applicant in support of the contention that the aggregate sentence was manifestly excessive: The applicant was aged 18 at the time of the offences and sentencing principles favouring rehabilitation over punishment had application as a consequence. The applicant's criminal history was relatively limited. He had only once appeared in court as an adult charged with anything other than a traffic offence. This was his first time in custody. His life had involved significant disadvantage. The judge's assessment of the relative seriousness of the offences was focussed solely upon the nature of the firearms. An important additional factor was that evidence of the extent of the applicant's possession of the firearms and related items was very limited. His fingerprints were found on the outside of the plastic bag containing the sawn-off shotgun but not on the shotgun itself. There was no evidence he had actually touched the bag containing the pistol or the ammunition contained in three further bags. There was no evidence about what was to occur with the items. Such circumstances moderated any assessment of the seriousness of the offending. Without any discount for the early pleas of guilty, the individual sentences would have been 4 years and 5 years 4 months respectively. The period of notional accumulation of the indicative sentences was 12 months on the total term and 6 months in the non-parole component. The undiscounted "starting point" for the aggregate sentence of 5 years was imprisonment for 6 years 8 months.
It was submitted that the indicative sentences were excessive and the nominal accumulation of them was excessive.
Annexed to the written submissions for the applicant was a schedule of "comparable cases involving offenders sentenced for offences against section 7(1) of the Firearms Act".

Consideration

The principles concerned with the determination of a ground of appeal asserting that a sentence is manifestly excessive are not in issue. They were helpfully referred to in the submissions of both parties.
Key aspects of the principles are that appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust. See, for example, Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55].
As to the contention that the evidence concerning the extent of the applicant's possession of the firearms was "extremely limited", it needs to be borne in mind that if he was contending that his possession was limited he bore the onus of establishing that fact on the balance of probabilities: Yammine v R [2010] NSWCCA 123 per Barr AJ at [47] and, generally, see The Queen v Olbrich [1999] HCA 54; 199 CLR 270. The applicant chose not to say anything to the Senior Community Corrections Officer who prepared the Pre-Sentence Report about where he had obtained them, his intended purpose in doing so, and whether he stood to gain financially. He was also reticent in discussing his peer group but did say that it involved some with "criminal lifestyles". No evidence was placed before the sentencing judge concerning these matters.
It was asserted that the applicant's life had "involved significant disadvantage" but there is no evidence of such, nor even of what could be just called "disadvantage" in my view. Counsel clarified that it might be inferred that as a product of a refugee family he experienced difficulties arising from adjustment, but I am not persuaded that there is evidence to support that inference.
The factors identified by the applicant's counsel in support of the contention of manifest excess are not the only matters that were relevant to the assessment of sentence. A significant matter for the judge to take into account was the fact that the applicant was on three good behaviour bonds at the time of the offences. One of them had only been imposed two days earlier.
The judge took into account the applicant's youth. It prompted him to give greater weight to rehabilitation and less to deterrence. That did not mean that deterrence and denunciation could be ignored completely; they were still significant matters to factor into the assessment of sentence for offences of this type. One of the underlying principles of the Firearms Act is the "overriding need to ensure public safety": see s 3(1)(a). Latham J said in R v Krstic [2005] NSWCCA 391 at [14] that "the policy of the legislature evinced by the enactment of the offence [in s 7(1)] and a maximum penalty of 14 years imprisonment is to deter and punish possession of firearms per se".
It did not assist the applicant that he proffered no acceptable innocent explanation for his possession of the firearms. There can be no legitimate purpose for possessing a sawn-off shotgun: R v Harris [2001] NSWCCA 322; 125 A Crim R 27 per Simpson J at [38]. A speculative prospect advanced from the bar table that he might have sold them was rejected but if it had been accepted, the judge would have been entitled to conclude that such sale would have been to persons involved in the criminal milieu with there being no control of future use in criminal activities: Atkinson v R [2014] NSWCCA 262 per Simpson J at [4].
Despite noting that these offences constituted an escalation of the seriousness of the applicant's offending (and his breach of three bonds) his Honour still found that the applicant's prospects of rehabilitation and not reoffending were "reasonable".
A substantial reduction was made to the proportion of the sentence represented by the non-parole period. Without the finding of special circumstances, it would have been 1 year and 3 months longer.
Some increase in the sentence for the shotgun offence was necessary in order to take into account (at the applicant's request) the four further offences. The applicant's guilt in respect of these offences meant that there was a greater need for personal deterrence and retribution: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at 159 [42].
The schedule of so-called comparable cases does not assist the applicant. Some of the cases involved greater objective seriousness but subjective features of the offender that called for amelioration of the sentence: for example, El Masri v R [2014] NSWCCA 13 (psychiatric problems; prior good character; remorse; and good prospects of rehabilitation) and Henderson v R [2012] NSWCCA 65 (impressive Army career; borderline personality disorder; ill mother; no prior record; good prospects of rehabilitation). Some of the cases involved greater objective seriousness and a similar or worse subjective case, but the total sentences were similar or higher and the non-parole periods were all higher: for example, Tran v R [2010] NSWCCA 183 (non-parole period 3 years 5 months); Chompeay v R [2011] NSWCCA 96 (non-parole period 3 years 9 months); Do v R [2010] NSWCCA 182 (non-parole period 3 years 11 months); Ballard v R [2011] NSWCCA 193 (where a drug supply offence was included; non-parole period 3 years 6 months).
Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 involved possession of a loaded pistol in the context of drug supply. The criminal history was limited to driving offences and the offender was possibly suffering from schizophrenia. A sentence of 3 years 6 months with a non-parole component of 2 years was regarded as being at the lower end of the range.
Finally, Marracos v R [2008] NSWCCA 267 was a more serious case with a context of a sophisticated drug manufacturing enterprise. The offender was resentenced to a total term of 4 years 3 months with a non-parole period of 2 years 9 months.
A comparison of these cases with the 5 year aggregate term and 2 year 6 month non-parole period imposed upon the applicant does not lead to a conclusion that there has been an unreasonable or unjust assessment of sentence. It should not be forgotten that the individual sentences of 3 years with a non-parole period of 18 months and 4 years with a non-parole period of 2 years were assessed in the context of the statutory guideposts of a maximum penalty of imprisonment for 14 years and a standard non-parole period of 3 years.
The aggregate sentence was not excessive as a result of excessive assessments of the individual sentences. Nor was it so because of excessive notional accumulation of such sentences. The aggregate sentence is 12 months longer than the indicative sentence for the shotgun offence and only 6 months longer in the non-parole component. Some degree of partial accumulation was necessary to reflect the additional criminality in possession of the pistol.

Conclusion

The sentence imposed upon the applicant was a significant one for a person of his age who had not previously been imprisoned. It may even be viewed as a stern sentence. However I am not persuaded that error has been established in the manner in which the primary judge exercised his sentencing discretion.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed.

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: 05 August 2016

Firearms Act 1996(NSW)ss 3, 7(1)

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