EL MASRI, Osman v R

Judgment 1BASTEN JA: In this matter the applicant should have leave to appeal but the appeal should be dismissed, for the reasons given by RS Hulme AJ. 2HIDDEN J: I agree with RS Hulme AJ. 3RS HULME AJ: On 19 September 2013 the abovenamed applicant for leave to appeal was sentenced by Judge Mahony to imprisonment for 3 years including a non-parole period of 1 year and 8 months for an offence of possessing an unauthorised prohibited firearm, viz. a .38 calibre revolver, part of the serial number of which was missing. 4The weapon was found in the lounge room of the applicant's home during a search by police on 14 March 2013 from which date the applicant has been in custody. The pistol was loaded, in working order and hidden, though readily accessible to persons, including children, in the house. The cartridges within the weapon were the subject of a charge on a Form 1 of possessing ammunition without a licence, which charge was taken into account. 5The offence charged arose pursuant to s 7(1) of the Firearms Act 1996 and carried a maximum penalty of 14 years imprisonment. It was also the subject of a standard non-parole period of 3 years. The applicant had pleaded guilty at an early stage and the sentence imposed reflected a 25% discount for the plea. 6His Honour accepted that the applicant had been a member of the Rebels Motorcycle Club for a number of years prior to 2012, that since then he had been the subject of threats from persons associated with the Club, his house had been the subject of a drive-by shooting in early 2012, his disabled brother had been attacked by Club members and the applicant had acquired the weapon for the protection of himself and family. His Honour also found that the applicant had been aware of the illegality of possession of the weapon but considered that the threats to him and his family outweighed the illegality. 7The applicant had not reported the drive-by shooting to the police at the time when it occurred because "if you were to call the police there'd be consequences and greater harm to you than what is already going to happen". 8The applicant was aged 39 at the time of sentence. He completed Year 10 at school and has been in regular employment as an employee and subsequently on his own account. His business has suffered considerably on account of his incarceration - a fact that his Honour took into account as extra-curial punishment. He is married and has a good relationship with his wife and has given praiseworthy support to her in connection with her career and other issues. He also has a good relationship with two children of an earlier marriage. 9Two reports from a Ms Nasr, a psychologist, were also before his Honour. In her first report Ms Nasr recorded that the applicant had reported a history of anxiety symptomatology, initially arising from events in 1997, and subsequently. Ms Nasr also said that from the time the applicant "left the Rebels Motorcycle Club he began to endorse psychological problems, triggered by repeated threats to his safety. His post-traumatic stress symptoms, including ongoing hypervigilance, anxiety, sleep disturbance and related health problems of low mood have impacted his decision making and contributed to his offending behaviour". His Honour recorded that: In the second report ... Ms Nasr responded to four matters that the offender's legal representatives had raised, namely: 1.To clarify if the offender met the criteria for a diagnosis of post traumatic stress disorder. He did not, but he did demonstrate some post traumatic symptoms. 2.Whether the offender's PTSD symptoms impacted on his ability to make proper judgments in committing the offence. His symptoms did impact on his decision making and offending in as far as contributing to his heightened sense of distress in the circumstances. 3.Would his time in custody, be more onerous as a result of his psychological problems? It was believed that any period of incarceration would be likely to contribute to the offender feeling increasingly vulnerable as he was away from his support systems. 4.Whether the offender's condition would be exacerbated by spending time in custody. It was stated that coping in the situation of prolonged incarceration is hard to predict and would depend on whether he was held in protective custody away from other inmates who may want to harm him. 10Ms Nasr's opinions were not the subject of challenge. 11The applicant gave evidence and verified the history he had provided to Ms Nasr. With one reservation of no present relevance, his Honour said that he was largely impressed with the evidence given by the applicant. 12His Honour also observed that, for his own protection, the applicant had been in protective custody since his arrest although his Honour was not persuaded that the applicant would serve a custodial sentence more onerously than any other offender. 13In 2006 the applicant was placed on good behaviour bonds for common assault and possessing capsicum spray. Notwithstanding this his Honour concluded that the applicant was of good character, was remorseful, had good prospects of rehabilitation and was unlikely to re-offend. 14In arriving at the sentence he imposed his Honour concluded that the objective seriousness of the offence was below mid-range but that general deterrence was a matter to be taken into account "given the apparent increasing prevalence of illegal firearms in the community". His Honour also found special circumstances in the fact that this was the applicant's first time in custody, in a need for early counselling and treatment to assist his productive return to the community and because he might require special protection during the time that he is in custody". 15The first ground of appeal was that "the sentencing judge erred in taking into account the standard non-parole period". His Honour of course was obliged to do so and the gravamen of the complaint seems to be that for an offence that his Honour found was below the mid-point in objective seriousness, his Honour in fact imposed a sentence which, when allowance was made for the applicant's plea, substantially accorded with the standard non-parole period. Thus it was said that the sentence of 3 years after a 25% allowance for the applicant's plea indicates a commencing point of 4 years and, absent a finding of special circumstances, a non-parole period of 3 years, i.e. the standard non-parole period. The error was made worse, so the submission ran, because the sentence had to reflect, in addition to the objective seriousness of the offence, his Honour's findings, favourable to the applicant, as to the latter's subjective circumstances. 16Were the standard non-parole period the only criterion by which the sentence imposed was to be measured, the submission would have some force. However, it was not the only criterion. His Honour had also to take into account the maximum penalty of imprisonment for 14 years. This Court has previously remarked that the two standards are irreconcilable - Duncombe v R [2013] NSWCCA 271 at [50] and R v Najem [2008] NSWCCA 32 at [38] - but that regard must be had to both - Duncombe v R at [53]; Dulihanty v R [2013] NSWCCA 275 at [79]. When this is done, it is not possible to conclude that his Honour erred in the respect the subject of this ground. 17The second ground of appeal was that "the sentencing judge erred in failing to regard the offender's mental state as a mitigating factor". 18I have referred above to Ms Nasr's reports. Otherwise, all his Honour said on this topic was to record the applicant's submissions that the applicant's mental state at the time was a mitigating factor and that special circumstances existed because, inter alia, the applicant had a need for early counselling and treatment to assist his productive return to the community. This latter conclusion, so it was submitted, demonstrated acceptance of Ms Nasr's opinion that the applicant "requires assistance in resolving traumatic stress symptoms". 19That last-mentioned submission may be accepted. It does not follow however that more leniency was required by the evidence just referred to than was afforded by the reduction in the non-parole period that his Honour awarded. 20On the other hand, the evidence referred to at an earlier stage of these reasons went further and, given the significance attributed to the applicant's mental state, his Honour did err in not expressing his conclusions as to it and what he saw as its significance. 21That said, the evidence had its limits. Ms Nasr said that the applicant's symptoms "contributed" to his offending but neither in her evidence or elsewhere is there to be found any indication as to the degree to which they did so. There is nothing to indicate that the applicant's symptoms were of major, or even of more than minor significance, as contributors to his actions. 22Furthermore, the drive-by shooting of the applicant's home and the other threats to which he was subjected provided reason for him to be fearful and his Honour accepted as a mitigating factor that it was this fear that motivated the applicant to commit the offence. In these circumstances the fact that the applicant's symptoms which were obviously products of that fear were contributing factors could not have been given more than marginal weight. 23There remains for consideration s 6(3) of the Criminal Appeal Act 1912 which requires the Court to dismiss an appeal against sentence unless it concludes that, in the circumstances here, some sentence less severe is warranted in law and should have been passed. 24I am not so persuaded. I have referred to his Honour's remarks concerning general deterrence and the apparent prevalence of illegal firearms in the community. One cannot be unconscious of the prevalence of drive-by shootings calculated and most probably designed to instil fear, of the reluctance of many victims to talk to police, and the disposition of many to rely on their own methods of retribution. The applicant's sentence should reflect what he did but it is important that the courts do nothing to encourage self help in the form of criminal conduct - see R v Krstic [2005] NSWCCA 391 at [13], [14] and R v AA [2006] NSWCCA 55 at [45], [46]. 25I would grant leave to appeal but dismiss the appeal.