El Ali v R

Background circumstances

1. In outline, the evidence at trial demonstrated that, between 20 June 2011 and 6 February 2012 there had been 22 separate consignments of Glock pistols, either complete or in parts, sufficient to provide 129 complete pistols, and a further 14 incomplete pistols, together with 80 magazines. In most cases, overseas suppliers were asked to provide complete pistols, disassembled into parts, which were then misdescribed on the accompanying shipping documentation.
2. The prosecution case involved a degree of reconstruction after the events, as the consignments up until February 2012 had not been intercepted. Further, although the appellant admitted in entering a plea to the federal offence that he had engaged in email communications with overseas gun suppliers in his own name, the prosecution case alleged that he also used at least three false identities, two of which were "Tony Ibbotson" and "Greg Richardson", who were associated with a fictional Australian company "Secure Training Pty Ltd". The third name was "George Koulakiti" of "Safari Arms Australia". At one stage, a German supplier was instructed to apply funds received from Secure Training to stock ordered by Safari Arms Australia, and vice versa. When export permits had not been issued to George Koulakiti, a request was made that the guns be shipped to Tony Ibbotson.
3. The appellant was charged with two named co-conspirators in Australia, Ahmed Karnib and Andrew Botros.
4. In entering a plea to the first count on the indictment, the appellant admitted that he had engaged in communications with a Swiss gun supplier, placing orders in his own name for firearms, firearm parts and magazines contained in three consignments which were designated S1, S3 and S6. He also admitted to paying for them in his own name and having them delivered to his parents' address. There were also complementary consignments, S2, S4 and S5, which were intercepted by customs authorities on arrival in Australia.
5. The evidence linking the appellant to particular importations was complex. The written submissions for the Director of Public Prosecutions explained part of the process by reference to a particular Glock pistol recovered by police from a hidden compartment in a motor vehicle on 26 November 2014. Although the serial numbers had been obliterated, the police were later able to identify it as having been assembled from three main components (slide, barrel and receiver) with identifiable serial numbers.
6. The slide and barrel were traced to a pistol ordered by the appellant in his own name from a Swiss firearms dealer, being part of an order of 12 complete Glocks made in June-July 2011. The consignment was approved for export by Swiss authorities after receiving from the appellant a falsified New South Wales police firearms form. The slides and barrels were imported in consignment S6 on 11 August 2011; the corresponding receivers and trigger mechanisms and other small parts were contained in consignments S4 and S5 seized after their importation in early August 2011. Consignments S1, S3 and S6 were delivered to the appellant's parents' address and he acknowledged receipt of them.
7. The receiver (or hand grip) for the recovered Glock was not part of those deliveries. Rather, it was part of an order sent to a German dealer by a person using the identities of Tony Ibbotson and Greg Richardson, as part of a consignment of 20 Glock receivers and internal parts. Payment was made through a bank account in the appellant's name and on one occasion from a branch near the appellant's workplace on a day when he was at work. German authorities authorised the exports on receipt of two false Australian Department of Defence import permits for a person identified as Tony Ibbotson or Greg Richardson from Secure Training Pty Ltd. Arrangements for shipping were made by Ahmed Karnib after email correspondence from Tony Ibbotson. They were first shipped with a waybill, invoice and packing slip correctly describing the contents of the consignment as 20 Glock grip frames with identified serial numbers. However, when Karnib received pre-alert documents indicating that the contents were accurately identified, he arranged for false documents purportedly from an Australian customs officer requiring that the accompanying shipping documents describe the goods as "20 black plastic frames". They were cleared for entry to Transitainer NSW, a freight forwarding company in Sylvania Waters where Karnib was employed.
8. The web of communications allowed the prosecution to demonstrate with a degree of certainty that Tony Ibbotson was a name used by the appellant. By way of example, communications by Tony Ibbotson with the German supplier continued correspondence which had been originated by the appellant in his own name. He admitted sending the emails in his own name to the German supplier. Tony Ibbotson used similar vocabulary to that which the appellant had previously used.
9. The appellant had obtained two genuine export permits which were said to be substantially similar to the false permits forwarded to the German supplier for provision to German authorities. The emails sent by the user of the identities in question were despatched in the middle of the night in Australia, at times consistent with the nightshifts worked by the appellant at Singtel Optus. Further, log records from his user account at Singtel Optus were consistent with him having visited numerous websites relating to firearms, including the websites of the Swiss and US suppliers.
10. The user of three false identities said to be associated with the appellant requested the German supplier to disassemble complete pistols and package and misdescribe parts in a similar manner to that which the appellant had requested of the Swiss supplier in email correspondence sent in his own name. On the basis that there was a common element to the orders sent in the false names, the orders were complementary and would, when combined, permit the assembly of complete and fully operable Glock pistols, the various orders were linked to the appellant.
11. The contents of a US consignment ordered under the name Simon Saltan were detected by a freight forwarder in Illinois. Alternative shipping arrangements were made by Tony Ibbotson, a person whose earlier activities had been limited to importations from the German supplier. Mr Karnib then arranged for a consignment to be shipped from Transitainer's US office to himself in Australia. The arrangements were discussed in the course of an intercepted telecommunication on 17 February 2012 between the appellant and Karnib in the course of which Karnib indicated that he had undertaken the activity for the appellant.
12. Payments for certain consignments from Germany were paid using PayPal accounts in the names of Greg Richardson and Michael Holm. The US supplier had been informed that Michael Holm was a friend of Simon Saltan. Michael Holm made orders and arranged shipments within the USA.
13. A MyUS.com account used by Simon Saltan was billed to the appellant's older sister. The telephone service used in connection with that account was one used by the appellant in corresponding with the NSW Police Firearms Registry, Australian Customs and Border Protection and the Department of Defence in his own name. Calls made to the German supplier from two different telephone numbers corresponded with services located at Singtel Optus in the room in which the appellant worked and occurred at times when he was rostered on. The calls were made in the names of Tony Ibbotson and Greg Richardson.
14. Safari Firearms was a genuine Australian company with whom the appellant had had extensive dealings. George and Koulla were the parents of a person working for Safari Firearms, suggesting that the appellant had constructed the false identity George Koulakiti using their names. The telephone numbers provided to the German supplier by George Koulakiti were the same as, or substantially similar to, telephone numbers at the appellant's workplace. (One eight digit number listed on the letterhead of Safari Arms Australia was only one digit different from appellant's allocated work telephone number.)
15. The prosecution sought to demonstrate not merely that the appellant was the moving party behind the importation of parts in complementary consignments which, when put together, could provide complete Glock pistols, but that he was responsible for the assembly of the parts in Australia into particular models.
16. The complementarity of the parts in various consignments allowed an inference that they were to be reconstructed in Australia. Broadly speaking, the inference that the appellant was to undertake the reassembly of the pistols followed from a number of steps, including the following, as summarised in prosecution submissions to the following effect: (i) El Ali's history of prior dealings with the Firearms Registry, various pistol clubs and domestic firearms dealers and the Swiss supplier established that he had an interest in and expertise in relation to pistols, in particular Glock semi-automatic pistols. There was no evidence that any other co-offender had a similar level of experience or expertise. (ii) The appellant made representations to the Firearms Registry that he had sufficient experience in stripping pistols to be capable of teaching others. (iii) On his arrest on 13 March 2012, he had possession of a manual for a relatively similar make of semi-automatic pistol, including exploded parts diagrams. (iii) On the assumption that the appellant used the false identities and prepared the false documents to arrange for shipment to Australia, the same person, in communications with the German supplier, demonstrated possession of the contents of a particular consignment and sought information as to related consignments. (iv) Email correspondence by Ibbotson, Richardson and Koulakiti frequently referred to the need for pistols for use in training as part of the business activities of Secure Training and Safari Arms Australia. (v) The appellant had been personally involved in the transfer of sums in excess of $100,000 to the German supplier. (vi) By the time of the appellant's trial, police had recovered a total of 22 Glock pistols constructed from the imported parts. The fact that the complete pistols could be traced to a single order indicated that they had been assembled promptly following arrival in Australia. In every case, it was possible to identify the consignments from which the pistols had been assembled. Further, one pistol combined a slide and barrel from a Swiss order imported by the appellant in his own name with a hand grip or receiver from the German supplier ordered and imported by Tony Ibbotson of Secure Training.
17. The prosecution case supporting the appellant's knowing involvement in the sale of pistols built upon the combination of circumstances with respect to their importation and reassembly. That included, for example, the price paid by the appellant for the importations. Further, there were escalating orders made progressively, consistent with funds being available from the profits of previously imported consignments. That inference was supported by the recovered firearms being constructed from parts of a single order. Further, the appellant had applied in mid-2011 for a firearms' dealer licence which was a necessary requirement to sell firearms lawfully in the State.
18. George Koulakiti, representing himself as a firearms dealer, indicated to a supplier that he had information from Greg Richardson as to the price paid to the German dealer and sought a similar price for his own company. In doing so, he noted the high demand for Glock products in Australia and the willingness to do further business.
19. Overall, the correspondence to the German supplier inescapably supported the inference that the purchasers in Australia were in the business of dealing in firearms and sought the imported Glock pistols for sale in such businesses.

Issues on appeal

1. The appellant's notice of appeal identified seven grounds relating to the convictions. They were expressed as follows: 1. The trial miscarried due to the application of the decision in Director of Public Prosecutions (NSW) v Morgan. [1] 2. The trial judge erred in refusing a pre-trial application by the defence that count 2 be stayed. 3. The trial judge erred in not requiring the Crown to confine the way in which the charge of conspiracy to possess firearms was left to the jury due to latent duplicity. 4. The trial judge erred in directing the jury in relation to the possession of firearm parts. 5. The trial judge erred in allowing the full extended definition of sale to be considered by the jury in relation to an offence under s 51 and s 51B of the Firearms Act 1996 (NSW). 6. The trial judge erred in the directions to the jury on knowingly take part in sale. A seventh ground relating to the adequacy of reasons given by the trial judge in making certain rulings was not pressed.
2. In substance, the first four grounds related to count 2 in the indictment and grounds 5 and 6 to count 3.
3. Despite referring to the refusal of a stay of count 2, ground 2 will be dealt with in considering the challenges to count 3. That is because the basis of the stay was that count 3 allowed the jury to be satisfied as to selling or knowingly taking part in sale of a pistol, on the basis of having a pistol in possession for sale; count 3 was therefore said to be an aggravated form of possession, so that the jury could convict with respect to count 3 on the basis of their findings with respect to count 2.
4. Grounds 1, 3 and 4 will be addressed together. Ground 1 is curiously formulated, but, as dealt with in submissions, involved a challenge to the directions given by the trial judge with respect to the relationship between a complete firearm and a disassembled firearm. The same issue underlay ground 4, relating to the directions with respect to possession of firearm parts.
5. Ground 3 addressed the same issue in a different way, as explained in the written submissions: [2] "It is submitted that the way the Crown sought to prove count 2 the focus was not on a single agreement but two. … These different agreements had different focuses. The focus of one agreement was for the possession of firearm parts on multiple occasions by their importation into Australia. The focus of the other agreement was to assemble complete firearms from the imported parts so that more than three pistols would be possessed for sale, on multiple occasions."
6. Accordingly it is convenient to deal with grounds 1, 3 and 4 together.

Grounds 1, 3 and 4: Firearms and firearm parts

1. In order to explain the thrust of the appellant's case, it is necessary to have regard, first, to the legal principles on which the prosecution relied and, secondly, the judge's directions to the jury. It is convenient to start with the legal principles.
2. The relevant legal principles relate to three aspects of the prosecution case, as outlined above, namely (i) there was a conspiracy to unlawfully possess firearms, which involved the appellant and at least two other named persons; (ii) the firearms were to be disassembled before importation, and (iii) the firearm parts were to be reassembled in Australia. The appellant having pleaded to the counts under federal law of conspiracy to import firearm parts and firearm magazines, the fact of importation was not in issue. However, as explained above, the appellant's involvement in the importations, and the manner in which the disassembled firearms were imported was an important aspect of the prosecution case in relation to possession in New South Wales. Such possession was a primary evidential basis for establishing the State conspiracy charge.
3. Count 2 involved a conspiracy to engage in conduct contrary to s 51D(2) of the Firearms Act. That provision read at the time of the offending: 51D Unauthorised possession of firearms in aggravated circumstances (1) A person who is in possession of more than 3 firearms is guilty of an offence under this subsection if: (a) the firearms are not registered, and (b) the person is not authorised by a licence or permit to possess the firearms. Maximum penalty: imprisonment for 10 years. (2) A person who is in possession of more than 3 firearms any one of which is a prohibited firearm or pistol is guilty of an offence under this subsection if: (a) the firearms are not registered, and (b) the person is not authorised by a licence or permit to possess the firearms. Maximum penalty: imprisonment for 20 years.
4. Section 7, which appears in Pt 2 of the Firearms Act, prohibits possession or use of a "prohibited firearm or pistol" without a licence or permit. Because the present case was concerned entirely with pistols, it is not necessary to address "prohibited firearms". Part 2, Div 2 provides for a licensing scheme; s 8 identifies the nature of the licences available under the Division, including relevantly category H licences with respect to pistols.
5. Part 3 of the Act establishes a scheme for the registration of firearms. It is an offence to sell, purchase, possess or use a firearm that it not registered: s 36(1).
6. Part 5 of the Act requires that persons may not carry on activities as a "firearms dealer" or possess a firearm in that capacity, unless authorised to do so by a firearms dealer licence: s 43.
7. Part 6 is headed "Miscellaneous offences". It includes prohibitions on purchasing a firearm unless the purchaser is authorised to possess the firearm (s 50) and prohibits purchase of a "firearm part" unless the purchaser is the holder of a licence for the kind of firearm to which the firearm part relates (s 50AA).
8. There are restrictions on the sale of firearms to a purchaser who does not have a relevant licence or permit (s 51); on purchasing from a seller who is not authorised to possess the firearm (s 51A). Count 3 alleged a contravention of s 51B(1) of the Firearms Act which at the time of the offending provided: 51B Selling firearms on an ongoing basis (1) Offence A person must not contravene section 51 on 3 or more separate occasions over any consecutive period of 12 months. Maximum penalty: imprisonment for 20 years. (2) Jury must be satisfied as to same 3 occasions of sale If, on the trial of a person for an offence under this section, more than 3 occasions of selling a firearm are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same 3 occasions in order to find the person guilty of the offence. (3) Alternative verdict - relevant selling offence If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proven 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.
9. The bases of the charged contravention of s 51B(1), were multiple contraventions of s 51, which at the time of the offending provided: 51 Restrictions on sale of firearms … (1A) A person (the seller) must not sell, or knowingly take part in the sale of, a prohibited firearm or pistol to another person (the purchaser) unless: (a) the purchaser is authorised to possess the prohibited firearm or pistol by a licence or permit, and (b) the following documents have been produced to, and inspected by, the seller: (i) the purchaser's licence or permit, and (ii) if the purchaser is not a licensed firearms dealer - the purchaser's permit to acquire the firearm (or the equivalent of any permit that is issued under the law of another State or Territory in respect of the prohibited firearm or pistol concerned). Maximum penalty: imprisonment for 20 years. … (2A) A person other than a licensed firearms dealer must not sell, or knowingly take part in the sale of, a prohibited firearm or pistol to a person who is not a licensed firearms dealer unless: (a) the sale has, in accordance with the regulations, been arranged through a licensed firearms dealer, or (b) in any case where a licensed firearms dealer is not (as determined by the regulations) reasonably available - the sale is witnessed by a police officer authorised by the Commissioner. Maximum penalty: imprisonment for 20 years. (3) For the purposes of this section, a person takes part in the sale of a firearm if: (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that sale, or (b) the person provides or arranges finance for any step in that process, or (c) the person provides the premises in which any step in that process is taken, or suffers or permits any step in that process to be taken in premises of which the person is the owner, lessee or occupier or of which the person has the care, control or management. … The terms of s 51(3)(a) and (b) were invoked in directing the jury with respect to the offence against s 51B.
10. Part 1 of the Firearms Act contains a number of definitions relevant to the offences the subject of the charges, including the following: 4 Definitions (1) In this Act: … firearms dealer means a person who, in the course of carrying on a business or in carrying out the person's duties as a club armourer: (a) manufactures, purchases, sells, transfers, tests, repairs or converts firearms or firearm parts, and (b) possesses firearms or firearm parts for the purpose of doing anything referred to in paragraph (a), and includes a theatrical armourer. … pistol means a firearm that: (a) is reasonably capable of being raised and fired by one hand, and (b) does not exceed any dimension prescribed by the regulations. possession of a firearm includes any case in which a person knowingly: (a) has custody of the firearm, or (b) has the firearm in the custody of another person, or (c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person. Note. See also section 4A. … sell includes: … (c) sell for profit, and (d) offer for sale, receive for sale, have in possession for sale or expose or exhibit for sale, and … (g) cause or allow anything referred to above.
11. There were two other provisions which bore upon the issues raised on appeal. Thus, s 4 further provided, following the definitions: (2) For the purposes of this Act: (a) anything that would be a firearm if it did not have something missing from it, or a defect or obstruction in it, is taken to be a firearm, and (b) any firearm that would be a prohibited firearm: (i) if it did not have something missing from it, or a defect or obstruction in it, or (ii) if it were not for the fact that something has been added to it, is taken to be a prohibited firearm. (3) For the purposes of this Act: (a) if firearm parts are possessed, or being carried, by 2 or more persons, each of them is taken to be possessing or carrying the firearm, and (b) a person who takes possession of anything under a hire-purchase agreement is taken to have bought it and the person who possessed it immediately before parting with possession is taken to have sold it.

Grounds 1, 3 and 4: directions to jury on conspiracy count

1. The jury was provided with a document entitled "Elements directions", formulated by the judge, with input from counsel. Counsel were asked to review the document on 30 August 2016; the prosecutor made minor suggestions on 1 September; defence counsel took no objection, nor did he draft alternative directions. The document was provided to the jury on 2 September. It adverted to the relevant definitions in the Firearms Act, to which reference has been made above. The judge took the jury through the elements in his summing up, without repeating all of the contents of the document. With respect to the definitions of firearm and pistol he stated: [3] "I have set out there for you on the document the legal definitions of firearm and pistol. Perhaps with one exception you do not need me to highlight them. … But it is worth pointing out to you, as you see in the second sentence there under the heading 'Firearm' that, as a matter of law, the definition of firearm includes 'anything that would be a firearm if it did not have some thing or some things missing from it, such as one or more of the component parts.' Even with bits missing like that, it is still taken to be a firearm as a matter of law."
2. The judge spent a little more time on the definition of "possession", ending with the following passage: [4] "The law provides that possession of a firearm includes not only knowingly having a firearm in a person's own custody or control but also knowingly having a firearm in another person's custody and knowingly having a firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person. The final additional aspect of the definition of possession for present purposes is that the law provides that possession of a firearm is taken to have occurred where the constituent bits of a firearm are knowingly possessed by two or more different people at the same time."
3. The reference in appeal ground 1 to the judgment in Director of Public Prosecutions (NSW) v Morgan was misconceived. Mr Morgan had been charged with possession of a prohibited firearm, namely an AR-15 self-loading assault rifle. He advertised it for sale. Police recovered the rifle from Mr Morgan's house, where it was dismantled and in parts. The lower receiver housing was missing. Without the housing the firearm could not operate. A magistrate dismissed the charge; the Director appealed to the Supreme Court. Applying s 4(2), Barr AJ concluded that the absence of a part required to make the weapon operable, did not prevent it being a "firearm" for the purposes of the Act.
4. Although there was discussion of Morgan between the judge and counsel, the issue for present purposes is not whether Morgan bound the judge to adopt a certain construction of the definitions in the Firearms Act, nor whether Morgan was distinguishable from the present case, but whether the jury were correctly directed as to the meaning of the relevant provisions.
5. On the appeal, counsel for the appellant relied upon the decision of this Court in Jacob v R. [5] Jacob was concerned with possession of a crossbow in breach of s 23B of the Weapons Prohibition Act 1998 (NSW). The defendant had a disassembled crossbow in a box. The conviction of the defendant was overturned by this Court. Of present relevance was the reasoning based on s 4(2)(a) of the Weapons Prohibition Act which, replacing "firearm" with "prohibited weapon", reflected s 4(2)(a) of the Firearms Act. The principal judgment for the majority was given by R S Hulme AJ, with whom Ward JA agreed. Ward JA accepted a submission that "possession of 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." [6] However, the issue in that case was whether possession of all of the parts of a disassembled crossbow constituted possession of the crossbow. Ward JA continued: "[11] RS 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."
6. Ward JA rejected the second basis for upholding the appeal, on the basis that the definition contained no temporal element, but agreed with the first alternative, concluding that "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." A disassembled weapon was assumed to have a part (or perhaps all parts) "missing".
7. Johnson J dissented, noting: [7] "The evidence was that the contents of the box, when assembled, constituted a complete crossbow. There were no missing parts." He continued: "[59] Section 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."
8. Johnson J then stated: "[65] The 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. [66] The 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." After considering how one should construe the legislation with regard to the question of disassembly, Johnson J concluded: "[78] The 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."
9. It is not easy to identify a ratio from the reasoning of the majority. This was not a case where any part was "missing"; rather, the whole of the weapon was present. As Johnson J noted, s 4(2)(c) of the Weapons Prohibition Act, which reflected s 4(3)(a) of the Firearms Act, contemplated that a weapon could be in parts and in the possession of two or more persons, in which case each person was to be regarded as possessing the weapon. In that statutory scheme, it is difficult to comprehend how, if all the parts were possessed by one person, that person would not possess the weapon. If it were necessary to do so, I would not apply the reasoning of the majority in Jacob to the equivalent provisions in the Firearms Act. However, it is sufficient for present purposes to note that the directions given by the trial judge to the jury faithfully replicated the language of the Firearms Act.
10. The gravamen of the appellant's complaints with respect to these directions is that the prosecution could have relied upon a case which it undoubtedly ran, namely possession of complete firearms constituted from the imported parts, and did not need to rely on provisions which supported an alternative possibility, against the event that the jury were not satisfied that the parts had been reassembled into firearms by the co-conspirators before they divested themselves of possession of those parts. That was the gravamen of ground 3. That issue was the source of an application for a direction that the judge should require the prosecutor to confine his case by reference to one or other of two propositions. In submissions on that motion, defence counsel identified the alleged duplicity in the following manner: [8] "The first conspiracy on which the Crown seeks to rely on to prove count 2 is a conspiracy or an agreement to possess firearm parts. … It is understood that the Crown contends that the possession of firearm parts is in effect equivalent to the possession of a firearm. The second conspiracy is a conspiracy to manufacture firearms from the imported firearm parts, whereby more than three pistols were or would be possessed from the manufacturing process."
11. In response, the prosecutor submitted: [9] "11. The Crown does not allege two separate agreements simply because there are multiple pathways by which the offence can be established. 12. It is open for the jury to find the offence proven because the Accused entered into an agreement with others to combine parts into and thereby possess three complete or substantially complete firearms, each firearm being a type of pistol. 13. As a minimum it is also open for the jury to find the offence proven because the Accused entered into an agreement with others to possess more than three parts of formerly complete firearms, each firearm being a type of pistol …."
12. As explained by Spigelman CJ in R v B, [10] duplicity refers to the possibility of conviction on one of a number of distinct offences. With respect to conspiracy, it requires that the charge cover more than one conspiracy. In this case, as the Director submitted, there was but one conspiracy, namely an agreement to possess a number of firearms. The firearms were to be obtained in a disassembled state. The agreement relied upon may have involved the reassembly of the weapons before they were sold, but an illegal conspiracy was established without that further step being taken.
13. In R v B, the conspiracy was to commit acts preparatory to the commission of a terrorist act. As Spigelman CJ observed: "[47] The focus of the section is on the preparatory act or acts, to the plurality of which no complaint is made. An agreement to perform multiple preparatory acts does not, in my view, differ in substance or form if the preparatory acts are to be directed to one or more ultimate terrorist acts."
14. On the present charge, there was no issue about the ultimate acts, namely the sale of the pistols, because that was not an element of a conspiracy to possess. On the other hand, the fact that possession could take different forms did not mean that there was more than one agreement as to possession. In R v B, the Court approved the reasoning of Jordan CJ in R v Ongley: [11] "An agreement to cheat and defraud is an indictable conspiracy notwithstanding that the parties have not yet agreed upon the precise form of cheating to be used … nor upon who are to be victims …. If, however, the conspiracy charged is an agreement to cheat certain persons then and there decided upon, the indictment should sufficiently identify those persons."
15. There were broadly speaking, two steps in the conduct charged: the first step was to obtain the disassembled parts; the second was to reassemble complete weapons. The fact that the conspiracy might be effected by the first step did not mean that there were two separate conspiracies. The submission to the contrary appears to confuse the offence of conspiracy with the substantive offence of possession.
16. In the course of argument on the appeal, counsel for the appellant stated: [12] "Given that the Crown case was an overwhelming case on the Crown position of the supply and assembly of complete firearms, there was really no need to direct the jury in terms of incomplete firearms because the Crown case was all the parts were coming in, and for 129 of those, there were complete firearms that would have been assembled and supplied. … The difficulty is, when you start looking at the issue in terms of joint possession of firearm parts, there's an issue in terms of how that interacts with the common law definition of 'possession' where there's constructive possession and also the extended definition of 'possession' in terms of there's an extended definition in the Firearms Act as well. And it became very confusing for the jury in the way the directions were given."
17. It is apparent that the focus of the submission was upon the nature of the possession which in fact occurred, rather than the charge of conspiracy which depended upon evidence of possession.
18. Grounds 1, 3 and 4 must be rejected.

Grounds 2, 5 and 6 - count 3

1. Submissions with respect to ground 2 on the appeal were brief. The complaint was that "prosecution of the offence in count 2 was oppressive because the accused could be convicted three times on the same conduct which was in effect obtaining possession of firearm parts." The submissions continued: "… [T]he way count 3 the ongoing sale of firearms charge was left to the jury meant that the jury could have found the appellant guilty of count 3 simply on the basis that he possessed a firearm, or firearm parts on three or more separate occasions for the purposes of sale. In the trial the extended definition of sell that was allowed to go to the jury included 'have in possession for sale'. Further, given the extended definition in s 4(1) this possession would have extended to having firearm or firearm parts in the possession of another person. A finding of guilt by the jury on count 3 on this basis would simply be [an] aggravated form of possession, in that the possession was for the purposes of sale."
2. The submission further noted that a lack of discrimination between the two counts was reflected in a jury note in the following terms: [13] "If we find the defendant guilty of count 2 'possession' it seems we have to find him also guilty of count 3 'sale'. According to the elements directions given to us, 'taking part in sale' seems to indicate that even allowing someone else to take possession of that firearm, he is guilty of sale."
3. After reading out the note to counsel, the judge immediately observed: "There's a number of things that can be said about those questions. One is that it doesn't seem to appreciate that count 2 is about agreement; not about possession in fact, and it possibly ignores the requirement for count 3 that it be in respect of at least three separate occasions in the twelve-month period." The prosecutor agreed, continuing: "Yes, the Crown, with respect, would adopt both of those, in addition to which perhaps it could be added that count 3 has the further aspect that the accused either needs to take part in the sale or, by possessing, he needs to possess with the intention that somebody else was going to sell. So merely possession and mere finding of guilty in relation to count 2 wouldn't be enough in relation to either of those."
4. The direction given by the judge, after an extended discussion with counsel, was, pertinently, in the following terms: [14] "The first is to reiterate that count 2, the nub of the offence is the agreement. A conspiracy is about agreement; it does not actually matter whether or not there was, in fact, possession. If you were satisfied beyond reasonable doubt that there was an agreement within the relevant period between Mr El Ali and any others to possess firearms and that, at the time of entering into that agreement or being part of that agreement, there was also an intention on Mr El Ali's part that somebody would, in that period, possess firearms, it does not matter whether, in fact, anyone did eventually possess them because the count is one of conspiracy, that is, participating in an agreement to possess, intending that there would be some possession at some point in time. … Obviously, if you were satisfied about actual possession, then that is a fact that you might take into account in finding that there was an agreement to possess and an intention to possess. Count 3, on the other hand, is divided essentially into two alternative parts. The Crown must either satisfy you beyond reasonable doubt that Mr El Ali participated in a sale … and it involves, amongst numerous other things, possession for sale. It also requires that there be sales on at least three occasions and there must be at least three occasions about which you are all in agreement. You may find that there are more than three sales, but there must be at least three and you must agree on all three. So one of the ways someone might be said to have been involved in selling the firearm is to have possessed it for sale. … The second aspect of count 3, separate from being directly involved within the definition of 'sell' or 'sale', is taking part in a sale, knowingly being involved in a sale …. If I could again give you an entirely hypothetical example, but trying to exemplify the definition. Assume you were satisfied that somebody had possession of a firearm, but they did not intend themselves to sell it, but then they provided it to somebody they knew was intending to sell it, then you might be satisfied that that person, although they were not possessing it for sale themselves, they might have just been possessing it for safekeeping, their provision of it to somebody who they knew was going to sell it is taking part in the process of a sale within the meaning of 'taking part in a sale' in the relevant definition. An entirely different hypothetical example might be that, for example, you might be satisfied that some other co-conspirator, not Mr El Ali, for example, possessed the pistols and then provided them to somebody else for sale and that Mr El Ali wasn't involved in either possessing them for warehousing or for whatever other reason, and didn't provide them to the other person for the purpose of sale and was not that other person. You might find that he had absolutely nothing to do then with the relevant sales, but again, just as with the definition of 'sell' or 'sale', which has that catchall, it is defined by reference to a number of things that might be done and then in each case there is this additional or final definition, 'Causes or allows any of the above to occur.'"
5. At the end of the directions, the judge again turned to counsel asking if there were anything he had overlooked; neither counsel required anything further to be said, nor that anything said be corrected.
6. The written submissions with respect to ground 6 asserted three errors: [15] "Firstly, it is submitted that the trial Judge erred in directing the jury in relation to taking part in the sale of firearms by providing or arranging finance in the context of this case. Secondly, it is submitted that the trial Judge erred in one of the examples that was given as to what could constitute taking part in the process of sale. Thirdly, it is submitted that the trial Judge erred by not providing the jury with any, or sufficient guidance in relation to the limits of conduct that could be taken into account in relation to causing or allowing a sale."
7. There were, as counsel for the Director pointed out, a number of difficulties with these submissions. First, although counsel raised issues at trial as to the meaning of "takes part in" a sale he did not raise the particular objections now sought to be relied upon. Written submissions relating to the definition of when a person "takes part in" the sale of a firearm were made by reference to s 51(3)(a) and (b). Subsection (c) was deliberately omitted and was omitted from the directions given by the trial judge. There was no submission that reference to providing or arranging finance for any step in the process should be omitted on the same basis, namely that it did not arise. The submissions did, however, make the point that steps which were taken prior to the reassembly of the firearms could not be treated as steps in the process of sale. By implication, that might have been understood as an indication that financing of purchases of the pistols for importation did not involve financing for sale.
8. The submissions referred to similar reasoning in relation to the manufacture of drugs in Regina v BD. [16] In that case, Bell J (Stein JA and Greg James J agreeing) concluded that the obtaining and transporting of ingredients to be used in the manufacture of methylamphetamine could not constitute taking a step in the process of manufacture of that drug. On this reasoning, purchasing an item for resale would not be seen as a step in the process of resale; further, by parity of reasoning, financing the purchase of an item for resale would not be a step in the process of resale.
9. In the course of further argument immediately prior to the prosecutor commencing to address the jury, counsel for the accused made lengthy submissions as to count 3, focusing on two points, first that a "sale" needed to be a completed transaction and, secondly, that there needed to be a disposal for "financial or material reward". Although there was no express reference to the language of s 51(3)(b), it was no doubt consistent with counsel's view that there needed to be a completed financial transaction that he was content to include in the jury directions reference to a person providing or arranging finance for any step in the process.
10. His complaint now is that without further direction, the jury may have concluded that the appellant knowingly took part in the requisite number of sales on the basis that he provided finance for the importations.
11. There was no discussion of this potential for misuse of the evidence before the jury; in the absence of an express request for a specific direction, this is a paradigm case for the operation of r 4 of the Criminal Appeal Rules. That is, the appellant should not be entitled to rely upon this aspect of ground 6 given the absence of request for a further or different direction.
12. There are three underlying reasons for that conclusion. First, in the absence of any direction to that effect, it is quite unlikely that the jury reasoned in an impermissible way. It is far more likely that they took into account the financial involvement of the appellant in acquiring pistols as an indication that his possession of those pistols was for the purposes of sale. That reasoning, based on the commercial nature of the enterprise, would have been legitimate.
13. Secondly, because the jury could have legitimately used the expenditure of moneys to acquire the pistols as evidence of the purpose of his intended possession, very careful attention would need to have been given to the formulation of any additional direction. Forensically, a further direction would not necessarily have been in the interests of the accused.
14. Thirdly, in these circumstances, this was not a case in which the absence of a direction caused any readily identifiable unfairness to the accused, of a kind which would warrant disregarding the purpose of r 4.
15. The second objection taken under ground 6 was to the second example given by the trial judge in his final directions to the jury on this issue. The appellant said that both examples relied upon the concept of "possession for sale" and were therefore unhelpful as examples of "taking part in the sale of a firearm." [17] However, the first example was a person who "although they were not possessing it for sale themselves, they might have just been possessing for safekeeping, their provision of it to somebody who they knew was going to sell it is taking part in the process of a sale". The same was true of the second example. The criticism is misguided.
16. It appears from the written submissions that the real basis of the challenge was a rerunning of a dispute in submissions made to the trial judge. Thus the appellant stated that the examples came from a written submission made by the prosecutor to the trial judge (dated 29 August 2016) which described the situation as "analogous to the provision of precursors in a charge of taking part in the manufacture of a prohibited drug (see Regina v Marchione [2002] NSWCCA 131])."
17. The appellant said the analogy was false. That may be so, but the trial judge did not use that analogy in addressing the jury. Nor was it implicit in the direction that he did give. The challenge must be dismissed.
18. The third basis of challenge under ground 6 was that the trial judge failed to give sufficient guidance as to the limits of conduct which might fall within the language of "causing or allowing a sale." [18] The submissions quoted the last passage in the direction, which has been set out at [63] above. However, as appears from the last sentence, the judge was repeating something he had said earlier, in relation to "possession for sale", namely that the definition included "causing or allowing any of those other means of being involved in a sale to occur." As explained by counsel for the Director, the effect of the directions was as follows: [19] "In summary, the trial judge said that someone might be said to have taken part in the sale of a firearm if they provided a firearm that was in their possession to somebody who they knew was going to sell it. However, if a co-conspirator possessed a pistol and then provided it to someone else for sale and the applicant neither possessed nor provided it to the other person for sale nor took possession of it for sale, then the jury might think that he did not take part in the sale. Therefore, he advised the jury to think carefully about what facts they find, because there is no direct evidence of any of the transactions. He then provided further guidance on drawing inferences from facts."
19. If some further guidance or instruction were required as to what might be involved in "causing or allowing" others to take the identified steps, then, in the absence of any evidence directed to such matters, careful consideration would need to be given to the formulation of further examples, beyond those already provided. In the abstract, it is not apparent that a further example would have been helpful; none was sought. There should not be a grant of leave pursuant to r 4 to challenge the absence of directions on this basis.

Conclusions as to convictions appeal

1. None of the grounds of challenge to the convictions on counts 2 and 3 having been made good, the appeal against conviction must be dismissed.

Sentence appeal

1. With respect to the federal offence of conspiracy to import firearm parts, to which the appellant pleaded guilty, the judge imposed a sentence of imprisonment for 8 years with a non-parole period of 5 years 6 months. The sentence was fixed to commence on 13 March 2012, being the date of the appellant's arrest.
2. The judge then imposed an aggregate sentence with respect to the State offences, other than the breach of bond, for which he imposed no sentence. The aggregate sentence was 16 years 9 months, with a non-parole period of 12 years 6 months. The State sentence was fixed to commence on 13 September 2012, thus accumulating it on 6 months of the federal sentence. The overall sentence period was therefore 17 years 3 months with an effective non-parole period of 13 years.
3. With respect to the State offences, the judge indicated individual sentences which would have been imposed, if not imposing an aggregate sentence. First, in dealing with the 15 separate offences of providing false information with respect to applications under the Firearms Act, the judge broke the offences into four groups: two offences took place in April 2009, five in April-May 2009, three in May 2010 and five in March 2011. The judge indicated an increasing level of sentencing, commencing with 1 year 4 months with respect to the first two offences and concluding with 2 years with respect to the last five. The total of the indicative sentences for these offences, after taking account of the pleas, was 25 years 5 months. Clearly, had they been imposed individually, there would have been a high degree of accumulation.
4. Secondly, with respect to the charge of conspiring to possess three or more firearms, the judge indicated an individual sentence of 15 years imprisonment would have been imposed.
5. Thirdly, with respect to the offence of selling or knowingly taking part in the sale of a pistol on three or more separate occasions in a 12 month period, the judge indicated a sentence of 9 years imprisonment would have been imposed. As the offence carried a standard non-parole period of 10 years, he indicated a non-parole period, namely 6 years 9 months, for that offence.
6. Before turning the proposed grounds of appeal with respect to the sentencing, it is important to note the reason for the high level of accumulation on the federal sentence, which meant that less than 10% of the non-parole period was served solely with respect to that offending. A similar effect may be seen with the two major State offences. The aggregate sentence of 16 years 9 months demonstrated a very high degree of concurrence between the two major offences; similarly, the non-parole period of 12 years 6 months revealed a similar effect, the hypothetical non-parole period for the conspiracy to possess offence being in the order of 11 years 3 months and the identified non-parole period for the offence of taking part in sales being 6 years 9 months.
7. This effect was anticipated and explained at the outset by the sentencing judge: [20] "[5] Notwithstanding the Offender's plea of guilty to [the federal conspiracy] offence, the relevant events were the subject of a lengthy trial on account of their inextricable relationship to the two State offences charged on the same indictment, which were contested by the Offender's pleas of not guilty. The three charges, two State, one Commonwealth, address discrete aspects of conduct engaged in the pursuit of a single illicit enterprise, the broad object of which was to profit from the introduction into Australia and subsequent sale into the black market of firearms. There is inherently discrete criminality attaching to different steps in the prosecution of that enterprise. However, those steps are all inevitably linked to pursuit of the ultimate profit which was plainly the intended object of the broad criminal enterprise. Accordingly, for the purposes of sentencing, there will likely need to be a high degree of concurrence for the sentences imposed for the counts on the Second Indictment, in order to give appropriate effect to the principle of totality. As will become clear from the findings I will shortly state in respect of this first count on the Second Indictment, the inevitable inter-relationship of the various steps in the enterprise that are reflected in the individual charges also dictates some commonality between this first and the subsequent counts in assessing the nature and scope of the Offender's role and, accordingly, the objective gravity of each offence."
8. When dealing with the offence of knowingly taking part in the sale of firearms, the judge further noted: "[50] There is a high degree of correspondence between this offence and the offence of conspiracy to possess in terms of the matters that realistically bear upon an assessment of the objective gravity of the offending."
9. Finally, in dealing with totality, concurrence and accumulation, the judge stated: "[90] It will be clear from my preceding remarks that I am satisfied that there is substantial overlap between the three offences on the Second Indictment, given that they are three integral steps in the prosecution of the broader criminal enterprise I have already outlined."
10. While it was entirely appropriate for the Director to formulate charges which covered the totality of the known offending, there might have been greater transparency achieved by formulation of charges which avoided the high degree of overlap correctly identified by the sentencing judge. However, while the sentencing task (and the management of the trial) were rendered unnecessarily difficult, the judge was alert to the difficulties at all stages; they gave rise to no error in the sentencing exercise.
11. The reasons given by the sentencing judge in imposing sentence were detailed, comprehensive and persuasive. They are available online. There is no purpose in repeating what the judge said, except to the extent necessary to address the grounds of the proposed appeal. Although it is concluded below that the appeal must be dismissed, both the complexity of the exercise and the length of the sentence itself warrant a grant of leave to appeal.

Grounds of appeal

1. The notice of appeal contained the following four grounds relating to the sentencing: "8. The aggregate sentence imposed on the appellant was manifestly excessive. 9. The learned Judge erred in finding that the charged agreement in count 2 inevitably extended to firearms to be re-constructed from unfulfilled orders. 10. The sentencing Judge erred in giving insufficient weight to the appellant's subjective case and circumstances in the sentence that was imposed. 11. The sentencing Judge erred in not having regard to relevant matters that warranted a finding of special circumstances."

Grounds 8 and 9 - manifest excess

1. The appellant's submissions in support of ground 8 (manifest excess) focused on the indicative sentence on count 2 of 15 years, which counsel described as (i) 90% of the aggregate sentence for the State offences, and (ii) almost twice the length of the sentence fixed for the federal offence. One reason why it was so high, the submission continued, was that the conspiracy to sell took into account both the pistols which had been imported pursuant to the conspiracy to import, and the further steps to import pistols and magazines which had not in fact arrived in the country. Thus the judge had noted at [18]: "In assessing the objective gravity of this offending, it is important to recognise that the conspiracy extended further than merely being confined to those weapons that were successfully imported without interception, that is firearm parts for 129 complete and 14 partial Glock pistols and 80 magazines. The conspiracy was ongoing and, in addition to any future imports that were in contemplation but not yet ordered, there was a substantial number of outstanding orders, indeed partially paid, for a further 610 magazines and 120 pistols." Each of these elements was said to reveal error. However, the challenge to the indicative sentence for count 2 formed the basis if the complaint of manifest excess; hence it is convenient to address these grounds together.
2. There were three elements to the submission which may be addressed seriatim. First, while the proportions of the sentences identified above are arithmetically correct, they are of little relevance. Thus, with respect to the component parts of the aggregate sentence, it is unsurprising that the aggregate sentence was greater than the longest of the indicative sentences; the question for the sentencing judge was by how much, having regard to the length of all of the component parts of the sentences for the State offences, together with issues of appropriate concurrence and totality.
3. Secondly, to identify, in the abstract, the relationship between a sentence for one offence and a sentence for another is apt to be misleading. It was arithmetically correct to say that the sentence for the State offence of conspiracy to unlawfully possess was almost twice the sentence imposed for the federal offence; but, significantly, the maximum penalty for the State offence, were it not a conspiracy, would have been twice the maximum penalty for the federal offence.
4. The appellant also compared the sentences for the two State offences. Although the penalty for the conspiracy charge was theoretically at large, it is true that the respective penalties for the conspiracy to possess and knowingly taking part in sale were the same, namely 20 years. The significantly greater sentence imposed for the conspiracy charge, according to the appellant, demonstrated "disproportion".
5. The discrepancy was, however, readily explained. Following the comments as to the correspondence between the two offences in the passage at [50], set out above, the sentencing judge continued: "[51] However, there are distinctions too that need to be borne in mind and which I think must necessarily have the consequence that the objective gravity of the offending against s 51B(2) must be assessed as lower than in the case of the conspiracy to possess count."
6. The judge then explained that the scope of the conspiracy to possess was more extensive, both in the number of weapons and the steps taken. The charge involving knowingly taking part in sales, was to be assessed by reference to a lower number of pistols and to a more limited operation, over a specific period.
7. As the judge explained in some detail, the appellant was "the architect and person primarily responsible for the prosecution of the objects not only of the conspiracy to import, but indeed of the entire broader illicit enterprise of which the conspiracy to import was merely the initiating step". [21] As a result, heavy sentences were imposed, in the case of the federal offence, being 80% of the maximum penalty, and in the case of the State offence, being 75% of the maximum penalty for an individual offence of that kind.
8. It is not necessarily relevant to identify disproportion between the various actual and indicative sentences for different offences; but if it were relevant, no such disproportion was demonstrated in the present matter. Where offences involve common elements of criminality, as well as disparate elements, that fact must be taken into account; precisely how it is taken into account will be a matter for the sentencing judge. There is no basis for concluding that the judge did not make proper allowance for the common elements of the separate offences in the sentencing exercise.
9. Thirdly, while the statement at [18] of the sentencing judgment (set out at [92] above), referring to future importations, appeared to be at the heart of the appellant's submissions, it occurred in a passage of the reasons dealing with the conspiracy to import. Relevantly, the judge further stated, with respect to the State offence (conspiracy to possess): "[31] I am satisfied beyond reasonable doubt that there existed among the co-offenders an agreement to possess the firearms that corresponded entirely with the totality of firearms re-constructed from the imported firearms parts and to be re-constructed from the parts the importation of which was frustrated by the intervention of the authorities. There is no reasonable basis for any alternative conclusion. The only thing which distinguishes the present conspiracy from the conspiracy to import is the time frame over which the combination is charged to have existed and the nature of the acts contemplated by the agreement."
10. The extent of the future importations may be gleaned from the summary of the matters, including [7(3)], which the judge identified as being established beyond reasonable doubt on the evidence: "[7] … (1) Between 20 June 2011 and 6 February 2012, 22 separate consignments of firearm parts (which corresponded with 129 complete and 14 partial readily concealable semi-automatic pistols, variously of Glock models 17, 19, 26 or 27) were unlawfully imported into Australia, without interdiction by Australian Customs, from legitimate suppliers in Switzerland, Germany or the USA. In addition, 80 magazines for use with Glock 26 pistols were also imported without interdiction by Australian Customs. (2) A further 140 magazines for use with Glock 19 or 26 pistols were detected by Australian Customs upon arrival and seized. (3) Additionally, steps had been actively taken, including part-payment, towards the importation of over 120 further Glock 19 or 26 pistols and not less than 470 magazines (including 250 large capacity magazines) for use with Glock 19 and 26 pistols. (4) In excess of AUD$100,000 was expended towards the acquisition of these firearms, parts and magazines. (5) The majority of the firearm parts and magazines were ordered as complete pistols by the user of various false identities, and employing various email accounts and false documents. The pistols were disassembled by their suppliers, at the request of the user of the false identities, and, also at the request of that individual, misdescribed on documentation accompanying shipping documents in order to evade detection of the true contents of consignments by Australian and foreign border control authorities."
11. There was no error in identifying an extant conspiracy which extended to the commission of overt acts which had not yet occurred. That fact was material and was taken into account with respect to both the federal and State charges of conspiracy.

Ground 10 - subjective case of offender

1. There was little that was open to objection in the judge's consideration of the offender's personal circumstances. They were dealt with in some detail over 21 paragraphs of the judgment on sentence. The appellant's complaint was that the judge had given insufficient weight to certain facts, namely (i) that he had been on remand for 5 years prior to trial, (ii) his good custodial record, and (iii) his prior punishment for importation offences arising from the same conspiracy.
2. With respect to the first matter, as the appellant acknowledged, the judge expressly dealt with the delay between the time of charging and the date of sentence. [22] The judge said that he would "give the attendant delay some weight in the offender's favour, but in all the circumstances and for the reasons outlined in the Crown's written submissions, it will be limited."
3. The written submissions on sentence provided by counsel for the Director included a detailed account of the steps taken in the proceedings. [23] In part, the delay was attributable to interlocutory proceedings which extended the contested committal hearing from 9 December 2013 to 20 August 2015. There was no suggestion of unwarranted delay on the part of the prosecution. Nor did the submissions in this Court identify any reason why the judge's assessment of the "limited weight" to be given on account of the period between charging and determination of the proceedings was erroneous.
4. As to the second matter, it was in the appellant's favour that his custodial record was good. The written submissions for the offender on sentence merely referred to the lack of access to work and education opportunities as a prisoner on remand, but placed no weight on his custodial record. [24]
5. Little was made of this ground in the hearing of the appeal and any submission would have needed to explain how that record could assist in relation to a conspiracy which was, the judge said, "prolonged, sophisticated and involved significant and repeated dishonest conduct", and was motivated by a desire for personal financial gain. [25] Further, the judge noted, "[t]here was patently disregard for public safety attending every aspect of the pursuit of this broader criminal enterprise." [26] Finally, the judge found: "[35] Further, the offending was committed at a time when the Offender was subject to conditional liberty, having been released by Fairfield Local Court without conviction on 21 September 2011 conditional upon his compliance with a bond requiring him to be of good behaviour for 2 years. It may ultimately be a marginal thing in the context of the whole of this exercise, but it, along with so much of the conduct revealed by the evidence, reflects a contemptuous disregard for the law."
6. The judge's conclusions with respect to the prospects of rehabilitation were assessed in the following passage: "[85] Whether those matters translate into realistic prospects of rehabilitation is virtually impossible to judge. All those factors existed at and prior to the time of the present offending. That notwithstanding, the evidence discloses a degree of contempt for authority and a disregard for public safety and for compliance with laws and regulations intended to ensure public safety that without having heard from the Offender himself, or without some significant, objective demonstration by him in the meantime of a desire for reform, it is difficult to be any more than guarded about his future prospects."
7. In some cases, a good custodial record may provide a basis for assessing prospects of rehabilitation. That was not this case. No reason has been shown to cast any doubt on the judge's findings in this regard.
8. The third matter relied upon was the failure of the judge to give weight to previous penalties imposed for offending which formed part of the conspiracy. How those offences were to be taken into account was not explained on the appeal. The judge noted the offences and the fact that the appellant had been convicted and fined $30,000. [27] It was a matter which he addressed in the context of considering prior good character and the absence of a recorded criminal history. There was no submission that this material was relied upon in some other way on sentence, which was disregarded. Nor was it explained how this material might have been deployed as a basis for leniency.
9. Ground 10 should be rejected in each part, as without substance.

Ground 11 - special circumstances

1. Ground 11 asserted that there were "relevant matters" which the sentencing judge disregarded in declining to make a finding of special circumstances so as to interfere with the statutory regime regarding the component parts of a sentence of imprisonment. [28] It is true that the judge did not make a finding of special circumstances: he stated: [29] "In my view, there is nothing in the circumstances of the present case that warrants a finding of special circumstances."
2. In written submissions, counsel for the appellant contended: "Apart from the fact that this was the appellant's first time in custody, and the other factors mentioned above in relation to this lengthy remand, it is submitted that a basis to find special circumstances was due to the partial accumulation of the aggregate sentence for the State offences on the sentence with the federal offence …."
3. Counsel for the offender at sentence submitted that such a direction should be made, for the reasons identified above. However, none of them was persuasive. In particular, the accumulation of the State offence on 6 months of the federal offence raised the overall proportion of the total non-parole period to the total sentence by less than 1%. No adjustment was needed on that account. The ground is without substance.

Conclusion

1. There should be a grant of leave to appeal from the aggregate sentence imposed for the State offences, but the appeal must be dismissed.

Orders

1. The Court should make the following orders: 1. To the extent necessary, the appellant should have leave to appeal from his convictions following verdicts of guilty on counts 2 and 3 in the second indictment. 2. Dismiss the appeal against the convictions. 3. Grant the appellant leave to appeal against the aggregate sentence imposed for the State offences in the District Court on 17 March 2017. 4. Dismiss the appeal against the sentence.
2. SIMPSON AJA: I agree with Basten JA.
3. N ADAMS J: I have had the advantage of reading the judgment of Basten JA in draft. I agree with the orders his Honour proposes for the reasons provided by his Honour.

Endnotes

1. [2013] NSWSC 1474; 235 A Crim R 491.
2. Appellant's submissions filed 7 December 2018, par 3.10.
3. Summing up, 05/09/16, p 26.
4. Summing up, p 27.
5. [2014] NSWCCA 65; 240 A Crim R 239.
6. Jacob at [10].
7. Jacob at [45].
8. Written submissions, 27 August 2016, p 2.
9. Written submissions on motion, 29 August 2016.
10. (2008) 76 NSWLR 533; [2008] NSWCCA 85 at [53]-[57] (James and Howie JJ agreeing).
11. (1940) 57 WN(NSW) 116 at 117; R v B at [48].
12. Tcpt, 15/05/19, p 5(30)-(47).
13. See tcpt, 07/09/16, p 63(35).
14. Tcpt, 07/09/16, pp 70(25)-73(5).
15. Written submissions, p 6.2.
16. [2001] NSWCCA 184; 122 A Crim R 28.
17. Written submissions, par 6.9.
18. Appellant's written submissions, par 6.13.
19. Director's written submissions, par 194.
20. R v Khoder El Ali [2017] NSWDC 46.
21. Sentencing judgment at [15].
22. Sentencing judgment at [88].
23. Crown's outline of submissions on sentence, 4 November 2016, pars 74-84.
24. Outline of submissions for the offender on sentence, 22 December 2016, p 15.
25. Sentencing judgment at [8].
26. Sentencing judgment at [36].
27. Sentencing judgment at [79].
28. Crimes (Sentencing Procedure) Act 1999 (NSW), s 44.
29. Sentencing judgment at [110]. 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: 21 April 2020