Haddara v The Queen [2015] VSCA 158

1 On 11 December 2013, the appellant pleaded guilty in the County Court to one charge of trafficking in a drug of dependence (charge 1); seven charges of being a prohibited person in possession of a firearm (charges 2 to 8); and two charges of possessing a drug of dependence (charges 9 and 10).

2 The appellant also pleaded guilty to a number of summary charges:[1] three charges of possessing cartridge ammunition without a permit (summary charges 9, 12 and 16); one charge of possessing protected wildlife without authorisation (a crocodile, summary charge 22); three charges of possessing a prohibited weapon (first, an imitation .45 calibre hand gun, summary charge 13; secondly, three samurai swords, an imitation revolver, a crossbow, a flick knife and sword with serrated edge, all part of summary charge 21; and, thirdly, a 'Yukon' crossbow, summary charge 26); two charges of driving whilst disqualified (summary charges 28 and 31); and two charges of unlicensed driving (summary charges 29 and 30).

3 On 16 April 2014, the judge sentenced the appellant to a total effective sentence of seven (7) years imprisonment with a non-parole period of four (4) years and six (6) months, according to the following table:

Trafficking a drug of dependence (methylamphetamine) [2]

Prohibited person in possession of unregistered firearm (.22 calibre pen pistol)[3]

Prohibited person possessing a firearm (AK-47 assault rifle)

Prohibited person in possession of unregistered firearm (SKS-M semi-automatic rifle)

Prohibited person in possession of unregistered firearm (M1 Carbine semi-automatic rifle)

Prohibited person possessing a firearm[6] (Sterling .22 calibre rifle)

Prohibited person possessing a firearm (.22 calibre pen pistol)

Prohibited person possessing a firearm (.22 calibre pen pistol)

Possession of a drug of dependence[7] (anabolic and androgenic steroidal agents)

Possession of a drug of dependence[8] (cannabis)

Possessing cartridge ammunition without licence[9]

Possessing prohibited weapon without exemption[11]

Possessing protected wildlife without licence[12]

8 years and six months' imprisonment with non-parole period of 6 years

Disposal, forfeiture, pecuniary penalty and forensic sample orders

4 Pursuant to leave granted on 28 November 2014,[15] the appeal is brought on two grounds:[16]

1. The sentencing discretion miscarried as the result of the sentencing Judge's failure to apply the correct maximum penalties in relation to charges 3, 6, 7 and 8.
2. The individual sentences, the total effective sentence and the non-parole period are manifestly excessive and offend the principle of totality, particularly in view of the following matters:

1. the fact that the [appellant] had a relatively confined and largely unrelated criminal history; 2. that he had no prior convictions for drug offences;

1. the offer to plead guilty at a very early stage; 2. that the [appellant] had never before been in custody; 3. the general low intellectual functioning of the [appellant]; 4. the diagnosis of a major depressive disorder and the consequent hardship of a custodial term.

5 When granting leave, the judge described the factual background as follows: [17]

The [appellant] and Elli Estampador were co-owners of a motor vehicle repair business, R & E Mechanical Repairs, located in Sunshine West. In October 2011, Victoria Police Santiago Taskforce commenced an investigation into the activities of the two in relation to trafficking in amphetamine, and in relation to the possession and sale of unregistered firearms by the [appellant].

Police used lawful telephone intercepts, physical surveillance and a covert operative in their investigation. From March 2012, intercepted telephone conversations disclosed many relating to the sale of illicit drugs and firearms. Police also became aware of the involvement of additional participants, including Engin Ozkan and Giusseppi Manoria.

In very brief summary, the evidence revealed that, upon request, Estampador would supply methylamphetamine to the [appellant] and to Minoria. Between 1 March and 31 March 2012, over several separate occasions the [appellant] sold 56 grams of methylamphetamine to a police covert operative. During his dealings with the covert operative, the [appellant] also admitted to selling further amounts of methylamphetamine to other individuals. Additionally, telephone intercepts revealed further amounts totalling about 300.3 grams sold to others. The total amount of methylamphetamine the subject of the trafficking charge was 496.03 grams (charge 1, trafficking in a drug of dependence).

In a conversation with the covert operative on 13 April 2012, the [appellant] said that he was able to obtain firearms. He showed the covert operative some photos on a mobile telephone. The [appellant] said that he had two AK-47 firearms that he would sell with ammunition for $8,000 each. He also said that he could supply hand guns for $6,000, and pen pistols for $1000, each. Later that day, the [appellant] sold the covert operative a .22 calibre pen pistol for $1000 (charge 2, prohibited person in possession of an unregistered firearm).

Three days later, an arrangement was made to sell the covert operative an AK-47. The covert operative handed over $5,000 as part-payment, but this money was returned when the arrangement for the exchange went awry. Later, during a telephone call, the [appellant] told the covert operative that he had the firearm there in his hands (charge 3, prohibited person possessing a firearm). That night, the covert operative purchased a .762 calibre SKS-M semi-automatic rifle and ammunition (charge 4, prohibited person in possession of an unregistered firearm; and summary charge 9, possessing cartridge ammunition without a licence).

On 8 May 2012, the [appellant] sold the covert operative an M-1 carbine semi-automatic rifle with ammunition for $6,000 (charge 5, prohibited person in possession of an unregistered firearm; and summary charge 12, possessing cartridge ammunition without a licence).

Less than a week later, on 14 May 2012, the [appellant] sold the covert operative a quantity of methylamphetamine, and what was purported to be a .45 calibre handgun - but which was in fact an imitation - for $6,500 (summary charge 13, possessing prohibited weapon without exemption).

That same month, on 30 May 2012, the [appellant] exchanged messages with an associate arranging to sell a .22 calibre gun with ammunition. The next day, a search warrant was executed at the [appellant's] address and a Sterling .22 calibre rifle was found (charge 6, prohibited person possessing a firearm). Police also found cartridge ammunition in two locations in the house (summary charge 16, possessing cartridge ammunition without a licence). Two .22 calibre pen pistols were found in the [appellant's] car (charges 7 and 8, prohibited person possessing a firearm). A one year old freshwater crocodile was found in a tank in the living room (summary charge 22, possessing protected wildlife without licence). Also found were a metal sword, three samurai swords in cases, and a flick knife (summary charge 21, possessing a prohibited weapon without exemption ).

A search warrant was also executed at the garage where the car repair business was operating. A cross bow was found, as well as 4.6 grams of cannabis (summary charge 26, possessing a prohibited weapon without exemption; and charge 10, possessing a drug of dependence). Also found were amounts of steroids: 34.98g testosterone, 2.8g nandrolone, 6.7g trenbolone and 8.8g methandienone (charge 9, possessing a drug of dependence).

Further, between November 2011 and 31 May 2012, the [appellant] was observed driving while under surveillance. Two occasions were charged as unlicensed driving, and two occasions charged as driving while disqualified (the [appellant's] disqualification operating from 15 May 2012 to 14 June 2012 as the result of a traffic notice for speeding) (summary charges 28, 29, 30 and 31, unlicensed driving and driving whilst disqualified).

Ground 1 - Claimed error as to maximum penalty on charges 3, 6, 7 and 8

6 There were seven charges on the indictment - charges 2, 3, 4, 5, 6, 7 and 8 - which charged the appellant with possession of firearms as a prohibited person.

7 Of those seven charges, four - charges 2, 3, 4 and 5 - related to offences committed on 13 April (charges 2 and 3), 16 April (charge 4) and 8 May 2012 (charge 5). Three charges - charges 6, 7 and 8 - related to offences committed on 31 May 2012.

8 It is to be noted that charges 2, 4 and 5 were laid under s 5(1A) of the Firearms Act 1996 ('the Act'), and charges 3, 6, 7 and 8 under s 5(1) of the Act.[18] Of some significance, s 5(1A) of the Act was repealed on 16 May 2012, and was replaced by a new (but somewhat similar) offence in s 5(1), with a maximum penalty of 10 years' imprisonment.[19] The legislative change has, it might be observed, been a fertile source of appellate challenge to sentences for firearms offences.

9 Section 5(1) now provides that a prohibited person 'must not possess, carry or use a firearm'. This is to be contrasted with the legislation in force at the time of the offending, which distinguished between a prohibited person carrying a registered firearm (attracting a maximum sentence of 10 years' imprisonment under s 5(1) as it then stood) and a prohibited person carrying an unregistered firearm (which attracted a maximum penalty of 15 years' imprisonment under s 5(1A)).[20] Significantly, as immediately in force before 16 May 2012, s 5(1) and s 5(1A) of the Act provided:[21]

1. Offence for prohibited person to possess, carry or use a firearm

(1) A prohibited person must not possess, carry or use a registered firearm.

Penalty: 1200 penalty units or 10 years imprisonment.

(1A) A prohibited person must not possess, carry or use a firearm that is not registered.

Penalty: 1800 penalty units or 15 years imprisonment.

10 Although the offence in charge 3 was committed on 13 April 2012 - before the repeal of s 5(1A) (as from 16 May 2012) - it purported to have been laid under s 5(1) of the Act, which has as an element of the offence that the firearm possessed, carried or used by the prohibited person be registered. No reference is made in charge 3, however, to the relevant firearm being registered. Charge 3 is in the following terms:

CHARGE 3**:** The Director of Public Prosecutions charges that RABIEH HADDARA at Sunshine West in Victoria on the 13th day of April 2012 had in his possession a firearm namely an AK-47 assault rifle.

Statement of Offence - prohibited person possess, carry or use a firearm - contrary to s. 5(1) of the Firearms Act 1996.

11 Although the sentencing judge referred to the differing maximums under s 5(1A) and s 5(1),[22] so far as we can discern, she did not appreciate that charge 3 referred neither to a registered nor an unregistered firearm.

12 Further complicating the matter, the judge said in her sentencing reasons that charge 3 was a charge of 'being a prohibited person possessing an unregistered firearm, being an AK-47 handgun'.[23] As we have mentioned, the charge did not allege that the firearm was unregistered. Furthermore, the charge alleged that the relevant firearm was 'an AK-47 assault rifle', rather than a 'handgun'.

13 Adding further to the confusion surrounding this charge, the Record of Orders signed by the judge sets out that charge 3 was a charge of possessing an 'unregistered general category handgun'. Plainly, the charge did not fit that description. And we note that a first offence of possessing, carrying or using a general category handgun, attracted a maximum penalty of 7 years' imprisonment.[24]

14 We should add that, although the difference between the sentences on charges 2 and 3 might be explicable on the basis that they refer to different kinds of firearms - respectively a pen pistol and an assault rifle - nonetheless charge 3 attracted a sentence twice that on charge 2, in circumstances where, arguably, a lower maximum penalty applied.

15 Given the foregoing, it seems likely that the judge did not apply the correct statutory maximum with respect to charge 3. Acknowledging that not every error as to the statutory maximum penalty will vitiate the exercise of the sentencing discretion,[25] we are of the view that the error may materially have affected the sentence passed on charge 3, and may generally have infected her Honour's treatment of the firearms offences. In these circumstances, we must thus exercise the sentencing discretion afresh.

16 We will later set out the sentences we intend to substitute.

17 Manifest excess is a conclusion. It is a conclusion that does not admit of sustained argument. When all relevant factors are intuitively synthesised, either it is obvious that a sentence is clearly outside the acceptable range or it is not.

18 In our view, taking all relevant features into account, the individual sentence of three years' imprisonment on charge 1, trafficking methylamphetamine, is well within the range of sentences open in the proper exercise of discretion. Further, we fail to see anything in the individual sentences imposed on the summary charges which might lead to a conclusion that they are manifestly excessive.

19 As we have said, we must exercise the sentencing discretion afresh on the firearms charges. In so doing, we take into account the various matters pressed in mitigation, including the appellant's early offer to plead guilty; his low level of intellectual functioning and major depressive disorder (and the effect it will have on him in custody); his relatively limited criminal history; and the fact that he has not previously been imprisoned.

20 We would sentence the appellant on charge 2 to 9 months' imprisonment; on charge 3 to 12 months' imprisonment; on charge 4 to 18 months' imprisonment; on charge 5 to 18 months' imprisonment; on charge 6 to 12 months' imprisonment; on charge 7 to 9 months' imprisonment; and on charge 8 to 9 months' imprisonment. All other sentences imposed in the County Court are confirmed. We would order that 2 months of the sentence on charge 2; 6 months of the sentence on charge 3; 6 months of the sentence on charge 4; 6 months of the sentence on charge 5; 6 months of the sentence on charge 6; 2 months of the sentence on charge 7; and 2 months of the sentence on charge 8; be served cumulatively on each other and on the sentence on charge 1. All other orders for cumulation are confirmed. The total effective sentence is thus 6 years' imprisonment, upon which we would fix a non-parole period of 3 years and 9 months. We would confirm all other ancillary orders made by the County Court. Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the plea of guilty, we would have sentenced the appellant to be imprisoned for 8 years, and would have fixed a non-parole period of 5 years and 6 months.

21 Our overall intention is reflected in the following table:

Trafficking a drug of dependence (methylamphetamine)

Prohibited person in possession of unregistered firearm (.22 calibre pen pistol)

Prohibited person possessing a firearm (AK-47 assault rifle)

Prohibited person in possession of unregistered firearm (SKS-M semi-automatic rifle)

Prohibited person in possession of unregistered firearm (M1 Carbine semi-automatic rifle)

Prohibited person possessing a firearm[26] (Sterling .22 calibre rifle)

Prohibited person possessing a firearm (.22 calibre pen pistol)

Prohibited person possessing a firearm (.22 calibre pen pistol)

Possession of a drug of dependence[27] (anabolic and androgenic steroidal agents)

Possession of a drug of dependence[28] (cannabis)

[1] Criminal Procedure Act 2009, s 145, s 242.