Solicitors:
J Caligiore - Applicant
Solicitor for Public Prosecutions - Respondent
File Number(s): 2014/363746
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 29 July 2016
Before: Norton SC DCJ
File Number(s): 2014/363746
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Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant pleaded guilty in the District to the following count on indictment:
"On the 10th day of December 2014 at Hoxton Park he did possess more than three firearms, namely four firearms, that were not registered, of which two were prohibited firearms and one of which was a prohibited pistol, in circumstances where he was not a person authorised by a license or permit to possess those firearms."
This was an offence in contravention of s 51D(2) of the Firearms Act 1996 (NSW) for which the maximum penalty is imprisonment for 20 years with a standard non parole period of imprisonment for 10 years.
When imposing sentence for the above offence, her Honour also took into account five offences on a Form 1 document. Those offences were:
Item 1 - Possess ammunition without holding a license or permit (s 65(3) Firearms Act 1996 (NSW)).
Item 2 - Possess a prohibited weapon, namely a flick knife (s 7(l) Weapons Prohibition Act 1998 (NSW)).
Item 3 - Possess a prohibited weapon, namely a taser (s 7(l) Weapons Prohibition Act).
Item 4 - Possess a prohibited weapon, namely an extendable baton (s 7(l) Weapons Prohibition Act).
Item 5 - Possess a prohibited weapon, namely a firearm silencer (s 7(l) Weapons Prohibition Act).
El Jamal v R [2017] NSWCCA 243 | Case summary | Zoe
On 29 July 2016 Judge Norton SC imposed a sentence of imprisonment of 6 years and 9 months with a non-parole period of 4 years and 5 months to commence on 10 March 2015. The non-parole period will expire on 9 August 2019 and the total term will expire on 9 December 2021. Her Honour allowed a discount of 15 per cent for the plea of guilty.
The applicant seeks leave to appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).
Factual background
On Tuesday 9 December, 2014 police applied for and obtained a search warrant relating to the applicant's home. That warrant was executed the following day. In the course of the search, a set of padlock keys was located together with documentation relating to a storage unit at Hoxton Park. A further search warrant was obtained for that storage unit and the applicant voluntarily accompanied police to the unit later on 10 December 2014. The lease on the storage unit had commenced on 3 December 2014.
During the execution of the warrant, a black and red canvas carry bag was located. Its contents included:
1. A shortened (stock) .22 calibre Winchester Model 69 bolt action repeating rifle. There was no serial number and no magazine. This weapon was test fired and found to be in working order. Portions of the barrel and buttstock were removed with the resultant overall length being 34.3cms. This is a prohibited firearm.
2. A homemade .22 calibre single shot pen gun. This was test fired and was in working order. It was capable of propelling a projectile by means of an explosive. This is a prohibited firearm.
3. A 6mm airsoft calibre Galaxy model G6 repeating pistol. This was tested and deemed to not be working due to an unknown internal fault. This is a firearm.
4. A small silver 6.35mm calibre Webley and Scott model hammerless self-loading pocket pistol - serial number 67785. This was not working due to having a worn hammer spring. A substitute spring was inserted and it was then capable of firing. The barrel length was approximately 6cms. This is a prohibited pistol.
The bag also contained the items which were set out on the Form 1.
Forensic analysis revealed the applicant's fingerprints inside a toolbox, which contained the ammunition, and his DNA was recovered from some of the weapons. On 10 December 2014 the applicant was arrested and participated in an electronically recorded interview (ERISP) where he stated that he was holding the bag for someone else and was given the bag in circumstances where he was intimidated. He was told that if he opened the bag "you are dead". The applicant claimed that he had not looked inside the bag. He was re-interviewed on 1 April 2015 and shown CCTV stills and made aware of the DNA results. He declined to comment at that time.
It was agreed that the applicant's role was that of a storeman of the firearms, weapons and ammunition and that there was no evidence that he had possession or ownership of them before 2.50am on 9 December 2014. He was therefore in possession of the firearms for a short time.
Sentence proceedings
Her Honour reviewed the applicant's criminal and custodial history. He was born in September 1985 in New South Wales. His first offence was assaulting a police officer which occurred in 2008. He received a fine. In August 2014 he was charged with using an offensive weapon to intimidate and destroy property. He appealed to the District Court, as a result of which the sentence originally imposed was varied to imprisonment for 18 months commencing 27 August 2015 with a non-parole period of 6 months expiring 26 February 2016. He was on bail for the intimidation and destroy property offences, when he committed these offences. His only other offence occurred in October 2013 and consisted of driving in a vehicle with illicit drugs.
The applicant has been in prison since 10 December 2014 and at the time of sentencing, had served the non-parole period of 6 months referable to the intimidation offence. It was agreed between the parties that the applicant had been in custody, referable to this matter only, for 1 year, 1 month and 19 days. Her Honour also took into account two disciplinary matters which had occurred while he was in custody and which comprised intimidation (15.4.16) and possess drug (15.4.2016).
The facts relating to the intimidation and damage to property offences were that the applicant met with his accountant and accused him of having an affair with his wife. The applicant removed a flick knife from his pocket and made a threat "to chop your balls off" directed at the accountant. He then lunged towards the accountant with the knife making contact with his clothing, but not causing any damage. The damage to property was caused by the applicant deliberately ramming another vehicle as he was leaving the accountant's premises.
The applicant gave evidence in the sentence proceedings and a report from a psychologist, Mr Jones, was tendered on his behalf. Mr Jones diagnosed the applicant as having an "amphetamine-type substance use disorder" of a severe kind which was in remission in a controlled environment.
The applicant was raised in a loving and caring home environment but at the time of the offending, had become distressed due to the breakdown of his parents' marriage and a period of substance abuse. The applicant commenced using marijuana at the age of 13 and started using ice socially in 2012. He ceased using ice in 2013 before recommencing use in March 2014. This was said to help him deal with distress arising from the breakup of his parents' marriage.
The applicant left school in Year 11. While at school he worked in his father's business and on leaving school, obtained employment as a cabinet maker. After five years, he commenced his own business which was successful. At the time of sentence, he was employed as a sweeper in prison. He had been married twice. There was a child from the first marriage whom he does not see. His wife was present in court during the sentence proceedings to support him. There were two children aged two and four from the second marriage.
Mr Jones administered a number of tests which revealed a minimal level of anxiety and depression but identified a problem with interpersonal relationships. The applicant was assessed to be at low risk of committing further offences. Mr Jones had developed a risk management and treatment plan to meet the applicant's needs and to reduce the risk of recidivism. In his evidence, the applicant indicated that he was anxious to undertake that treatment plan when released from custody.
The applicant placed before the court a letter which he had written. In it he said that he felt scared for himself and his family and that was why he stored the weapons. He said that he now was aware of the seriousness of keeping such weapons and of the harm that they could cause. He said that he was happy that the weapons were found and removed from the community and that he had promised himself that he would not return to gaol, describing his arrest as a blessing in disguise.
There were four character references which spoke highly of the applicant and described him as a hardworking person whom the authors would continue to support. His wife was anxious for him to return home and his brother-in-law was willing to provide him with employment and supervise that employment until the applicant was settled and "on his feet".
The applicant gave evidence in which he confirmed the matters in his letter to the court and spoke with some passion about the assistance which he had received from speaking to Mr Jones. He emphasised that he now realised that his true support came from his family, who have stood by him, and not his past associates who have shown themselves not to be friends at all. He confirmed that while in custody he had been punished for possession of a drug and intimidation. He said that the drug was a sleeping tablet which he took because he was upset and anxious about an injury to his son.
When considering the issue of the objective seriousness of the offending, her Honour generally accepted the submissions of the Crown. The Crown submitted that the role of a storeman was a very important one and it was significant that the firearms had been carefully secreted into a storage facility, which was not a secure environment as required by the Act. The Crown submitted that the Form 1 matters, which included 800 rounds of ammunition and the possession of a silencer, could not have had any lawful purpose. The Crown submitted that there could be no legitimate purpose for a shortened rifle. The Crown submitted that general deterrence in a firearms offence was an important consideration.
The Crown accepted that the applicant's remorse was genuine, but noted that the applicant was very much focused on the damage to his family and himself, rather than the potential damage to the community arising from the possession of firearms. The Crown also noted that the offence was committed while the applicant was on bail and that this was an aggravating feature, as was the fact that the possession of the weapons was apparently part of some organised criminal activity.
Having reviewed and accepted the Crown's submissions, her Honour noted that two of the four firearms were functioning and a third could be rendered usable with little effort. Three of the firearms were prohibited. Although none of the weapons were loaded, there was a significant amount of ammunition stored on the same premises.
Her Honour rejected a submission, on behalf of the applicant, that he had been acting under non-exculpatory duress. Her Honour accepted that general deterrence was an important consideration because these were prohibited firearms which could be concealed on a person's body so as to pose a significant threat to the community. Her Honour noted that there was a clear intention in the Firearms Act to eliminate firearms from the community unless their possession was expressly authorised. In view of those matters, her Honour concluded that there needed to be a real disincentive for those who were attracted to the illegal possession of firearms.
Taking into account the offence and the matters on the Form 1, her Honour assessed the offence as "fractionally below mid-range, having regard to the fact that the offender was a storeman for the weapons for a short period of time and two of the weapons were not operational" (Sentence judgment p 9.7).
Her Honour accepted that the applicant was genuinely remorseful and that he had commenced drug use at an early age and was addicted to ice at the time of the offending. She accepted as genuine, the applicant's desire to participate in the treatment program devised by Mr Jones. Her Honour also accepted the applicant's evidence that the "possess drug" offence while he was in custody involved a sleeping pill and not a prohibited substance. Her Honour had regard to the significant family support which the applicant had.
Her Honour concluded that the applicant would be assisted by a long period of supervision upon his release and that he would require the targeted psychological treatment recommended by Mr Jones. For those reasons, her Honour made a finding of special circumstances so that the ratio of the non-parole period to the parole period should be 65 per cent.
In fixing the sentence, her Honour had regard to the guideposts provided by the maximum penalty, the standard non-parole period and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour was satisfied that there was no alternative other than imprisonment which would be appropriate for the offending and that the period of imprisonment should be served by way of fulltime custody.
Her Honour backdated the commencement of the sentence to 10 March 2015. She did so on the basis that the offences of intimidation and property damage occurred in the same period and had their genesis, just like the present offending, in the applicant's use of ice. Her Honour concluded that the instant offence substantially encompassed the criminality of those earlier offences. Her Honour then proceeded to impose the sentence which has already been set out.
THE APPEAL
The applicant relies upon a single ground of appeal:
The sentence imposed was manifestly excessive.
The applicant submitted that the sentence imposed was manifestly excessive for the following reasons:
1. The offence, taking into account the Form 1 matters, was still found to be below the mid-range of objective seriousness.
2. The applicant was only a storeman of the firearms.
3. The applicant was in possession of the items for a short period only.
4. Two of the four firearms did not operate.
5. The applicant was given a discount of 15 per cent for his plea of guilty.
6. The applicant was remorseful.
7. The available statistics placed the subject sentence (both the non-parole period and the total period) in the highest of 15 - 20 per cent of sentences imposed on all those who have pleaded guilty to a s 51D(2) offence.
Consideration
The relevant principles applicable when a claim of manifest excess is made were recently set out by this Court in Vaiusu v R [2017] NSWCCA 71 (R A Hulme J, with whom Bathurst CJ and Beech-Jones J agreed) at 28:
"28 …
(a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
(b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
(c) It is not to the point that this Court might have exercised the sentencing discretion differently.
(d) 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.
(e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
There is no challenge by the applicant to any aspect of the findings of the sentencing judge. No specific error has been identified. The submissions by the applicant really go no further than an assertion that it was open to her Honour to impose a lesser sentence. No proper reason has been identified for why there was error in not doing so.
This case provides a good example of why reliance upon statistics as a basis for challenging a sentence can be quite misleading. Here, the backdating of the commencement date of the sentence was a rather generous finding which favoured the applicant. It meant that in reality he only served a sentence of 3 months for the intimidation and damage to property offences. A simple comparison of the sentence in this case with a statistical range of sentences for the same offence, fails to reveal that consideration.
In any event, as her Honour clearly set out, there were a number of factors which fully justified the length of sentence imposed.
1. The applicant was on conditional liberty at the time of the offending.
2. The nature of the firearms was significant. Shortened firearms have no legitimate purpose and are particularly dangerous because of their capacity for concealment. A similar observation can be made in relation to the .22 calibre single shot pen gun and the prohibited pistol which could easily be rendered operational.
3. The location of the firearms in immediate proximity to a substantial quantity of ammunition.
4. The weapons were given to the applicant by members of an outlaw motorcycle club.
5. It was accepted that the role of a storeman was an important one in that storing firearms is an essential prerequisite for their availability for criminal activity.
6. The applicant's use of drugs at the time of the offending was a cause for concern, rather than a mitigating circumstance.
7. The applicant's criminal history did not entitle him to leniency.
8. When regard was had to the Form 1 matters, the criminality involved was substantial, albeit found to be slightly below mid-range.
As her Honour recognised, it was necessary to take into account the need to mark the community's disapproval of the serious offence to which the applicant had pleaded guilty. General deterrence was a particularly important aspect of this offending and of firearm offences generally. As was said by R A Hulme J (with whom Rothman J and I agreed) in Alrubae v R [2016] NSWCCA 142:
"36 … 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 follows that the ground of appeal has not been made out. The orders which I propose are:
1. Leave to appeal granted.
2. The appeal is dismissed.
LATHAM J: I agree with Hoeben CJ at CL.
N ADAMS J: I have had the advantage of reading the judgment of Hoeben CJ at CL in draft. I agree that leave to appeal should be granted but the appeal be dismissed for the reasons provided by his Honour. As Norton SC DCJ observed when sentencing the applicant, the clear intention of the Firearms Act 1996 (NSW) is to remove firearms from the community unless their possession is expressly authorised. A maximum penalty of 20 years' imprisonment applies to any person convicted of having in their possession more than three firearms, any one of which is a pistol or prohibited firearm, if the firearms are not registered and the person is not authorised to possess them. Having regard to the criminality involved and the applicant's subjective circumstances, I am not satisfied that the sentence imposed was unreasonable or plainly unjust.
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Decision last updated: 11 October 2017