Lamis v R

Court of Criminal Appeal (NSW)|2016-11-21|Before: Hoeben CJ, Hulme J, Schmidt J

Judgment

HOEBEN CJ at CL: I agree with Schmidt J and the orders which she proposes.
R A HULME J: Schmidt J has concluded that the sole ground of appeal asserting that the sentence imposed upon the applicant is manifestly excessive is not made out. I agree with her Honour and with the orders she proposes.

The sole ground of appeal

The sentence was claimed to be manifestly excessive, having regard to: "i. the period the Applicant had already spent in custody; ii. the Applicant's mental health condition; iii. the desirability for an extended period of supervision and mental health treatment; iv. the standard non-parole period provided for the firearm offence; and v. the submission by the Crown that a head sentence of 40 months might be appropriate for the firearm office, to which a 25% early plea discount and special circumstances should be applied (T 13/05/16 at lines 13, 20-T14 line 20)."

The sentencing proceedings

On sentence, Mr Lamis had been in custody for some 15 months and 2 weeks. Short agreed facts were then tendered and Mr Lamis gave evidence. He also relied on a report of the psychologist Ms Wakely, who had examined him while he was in custody, bail refused, as well as letters from family members and friends, and from a doctor and psychologist as to the treatment he proposed to pursue, once released from custody.
Mr Lamis' case on sentence was that while he conceded that the seriousness his offending warranted a term of imprisonment, given the time that he had by then already served, he either should be released on an intensive corrections order for a further 2 year term, or he should be given a suspended sentence, with stringent supervision and treatment to commence immediately on his release. Those submissions were opposed by the Crown and not accepted by the sentencing judge.
The facts agreed were that Mr Lamis came to police attention in January 2015, during an undercover investigation into the supply of large amounts of prohibited drugs, during which a large commercial quantity was to be supplied at the Casino, to an undercover police officer.
It was Mr Lamis and Aaron Sabbah who were tasked by a person identified as "Mick", with collecting a debt owed to him by two of those involved in the drug operation, Mr Nguyen and Mr Pham. At 9.45pm on 29 January Mick rang Nguyen and arranged for repayment of the debt. At 10.23pm Mr Lamis was observed to enter a Toyota Kluger on Liverpool Street. At 11.30 pm Pham picked up Mr Sabbah from Oxford Street, in a Toyota Rav4. Mr Pham arranged then to meet the undercover officer at the Casino, Mr Sabbah standing by while Mr Pham and the undercover officer discussed the drug supply. They then travelled to meet Mr Nguyen at an apartment on George Street.
Messrs Sabbah, Nguyen and Pham later went by taxi to the Casino, arriving at 1.20am. Mr Lamis arrived there at 1.30am. He then spoke to the undercover officer in the presence of Mr Sabbah and another person involved in the drug supply, Lo. The statement of agreed facts then provided: "The accused stated that he did not want to be involved in the transaction and that his only interest was in obtaining money from Pham and Nguyen once they had received payment from the UCO. The UCO told the accused that a transaction would not take place until Nguyen and his associates were ready to exchange. The intent of the accused and SABBAH was that they would follow PHAM and his associates over the course of that evening to ensure that they did not leave without giving them money that was owed to Mick. Pham and Sabbah left the Casino at 1:44am and travelled to a business premise in the Sydney CBD. Pham then obtained 2.082kg of methylamphetamine contained in a black backpack. The accused remained at the Casino with the UCO, LO, NGUYEN and CHENG. ' At 1:47pm the UCO, CHENG and LO took a lift from the lobby and entered a hotel room in the casino where they were recorded counting money which was in the custody of the UCO. The UCO refused to allow the accused to come with them and the accused waited in the lobby for the return of SABBAH and PHAM. At 2:10am Pham, still accompanied by Sabbah, returned to the Casino. At that point LO, PHAM and the UCO went back up to the room in the Casino where the 2.082kg was supplied to the UCO for $290,000 in cash. At this time SABBAH and the accused were waiting in the foyer as the UCO would not permit them to follow them upstairs. Before anyone left the hotel room police moved in and arrested those present including SABBAH and the accused Lamis. At this time the accused was carrying a loaded 9mm Sig Arms semi-automatic pistol in a 'bum bag'. At no stage did the accused take the firearm out of the bum bag during this incident. Further, at no time did the accused threaten any person nor was any violence used by the accused. The weapon was loaded with five rounds in the magazine and one in the chamber of the weapon. The pistol was later tested and found to be in working order. Police also located a black handled flick knife in the front of the accused's pants. (Form 1 custody of knife in public place - seq 1)"
Ms Wakely's report contained a history given by Mr Lamis. He described his father to have suffered mental health problems, as long as he could recall, having been raised in Lebanon where he had been exposed to significant mistreatment and violence and having suffered manic depression. He also described many extended family members on his father's side suffering mental illness, numerous family members committing suicide and his father also making such attempts. He had also had gambling problems and had been in and out of mental health hospitals.
Mr Lamis and his siblings remained in his mother's care, after his parents separated when he was aged 13. He had been exposed to domestic violence, before their separation. He maintains contact with his parents and siblings.
Mr Lamis formed relationships with antisocial peers from age 14, engaging in drinking and rebellious behaviour, which his mother could not control. He was expelled from school in year 9, after repeated suspensions from year 7 for fighting. He was incarcerated in a juvenile facility by age 16, before returning to his mother's care at around 18-19. He completed year 10 in custody and later completed other qualifications.
Mr Lamis returned to custody for intermittent periods, reflective of a criminal record which includes offences of assault police and other related charges; various sexual offences; robbery in company; possession and drug supply offences; a possess a prohibited weapon offence (which he said in his evidence was a police baton); various driving offences; custody of a knife in a public place offence; as well as the 2014 offence of refusing to provide a blood sample, for which he received a 2 year bond.
Mr Lamis worked as a removalist and in demolition, before entering a partnership in import/sales of construction machinery. That business succeeded, permitting him and his wife to purchase two homes before 2013. They were in the process of purchasing a third in 2013, when he sold his share of that business.
Mr Lamis and his wife have four children. Their relationship was stable until 2013, when his wife, who suffers epilepsy, fell down some stairs after a seizure, when she was seriously injured. The character material attests to the serious nature of these injuries and the difficulties that her illness has caused his wife, particularly since Mr Lamis' incarceration.
Mr Lamis told Ms Wakely that he had dealt poorly with his wife's illness and injuries and that he had turned to alcohol and substance abuse, after a change in his financial circumstances, following the sale of the business, which added to his pressures. Since he had entered custody his family had to move from their home and family members had to assist with mortgage payments on their properties. Mr Lamis was concerned about the effect of his wife's ongoing ill health and his incarceration on his children.
Mr Lamis said that it was in January 2014 that his life fell apart, physically, mentally and financially. He was involved in an altercation with security guards at a national park, during which he claims he was choked to unconsciousness. In February his house was raided by police, but no charges were laid. In April a friend was shot six times in front of his home. He then began carrying a gun given to him by a friend. He also began abusing alcohol, increased his daily use of marijuana and began abusing prescription pills, heroin and ice, as well as gambling large amounts of money.
Mr Lamis self-referred to a mental health unit, becoming increasingly paranoid about his safety. His drug taking contributed to his paranoia and psychotic symptoms, including hallucinations. He also had anger management problems, but denied any mental health diagnosis. In custody, he described experiencing panic attacks and depression, but had received no treatment.
Mr Lamis said that most of his friends were "drug mates" and that for five days before his arrest he had been awake, using various substances and gambling.
Ms Wakely's opinion was that Mr Lamis had poor personal resources for managing stressors and difficulties, with the result that in 2013 - 2014 his mental health, general stability and well-being deteriorated considerably, following his wife's ill health and the personal stressors he encountered. Then he turned to pathological self-soothing strategies, including gambling, alcohol and other substances. This exacerbated his mental health difficulties. He began carrying a firearm in response to his increased feelings of paranoia and fear for his safety. He, however, acknowledged his mistakes and was aware that his substance use, managing anger, anti-social peers and lifestyle choices placed him at risk.
Ms Wakely identified that Mr Lamis needed to pursue treatment to reduce his risk of recidivism, including for pathological gambling, symptoms of depression and anxiety and underlying trauma symptoms and to more appropriately manage his anger and stress. It was relevant that he had the support of his family, as well as post release employment opportunities, which she considered to be protective factors, which would assist him.

The sentence was not manifestly excessive

In order to establish manifest excess, Mr Lamis must establish that the sentencing judge made an error in the exercise of his discretion of the kind discussed in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. As observed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]: "25 As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King , itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy"." (footnote omitted)
It is necessary to consider the cases advanced on sentence, to resolve the question of whether his Honour fell into the errors alleged.

The parties' cases on sentence

It was submitted for Mr Lamis on sentence that he was "a paranoid drug addict in possession of a gun", which was accepted to be an aggravating circumstance, as were his previous convictions, although his record was submitted to be limited and not significantly aggravating his offending. That he was on conditional liberty was accepted. That his possession of the gun was relevant was also accepted, although it was argued to be relevant that it had been in his possession for but a limited period. It was also submitted that while the offence was committed in a public place, it was relevant that he had not revealed the gun there.
It was also accepted that a custodial sentence would be imposed upon Mr Lamis, but reliance was placed on MP v Regina [2009] NSWCCA 226 to submit that his possession of the gun between 9pm on 29 January and arrest at 2.10am the next day, placed his offence at the lower end of the range of seriousness. There, it should be noted however, what had arisen for consideration was a common law offence of conspiracy to sell firearms without authorisation, the maximum penalty for which is at large. There, account was taken on sentence of the longevity of the risk and the number of weapons which had been placed into circulation, which it was found overwhelmingly established that the risk to the public brought about by the offence "exceeds the norm" (at [37]).
It was also argued that Mr Lamis' offending would result in a conclusion that no further period than the time he had already served since his arrest, would be imposed upon him. That submission was supported by what was submitted to be a limited record, difficult subjective circumstances, as well as his good character, the unlikelihood that he would re-offend, that he had good prospects of rehabilitation, had shown remorse and had entered an early plea.
Particular emphasis was placed on the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which emphasises the promotion of rehabilitation. On the question of public safety, it was argued to be relevant that the gun he carried had been concealed and not wielded and that his offence would have been much more serious, if it had been used. It was accepted, nevertheless, that it being loaded, was also a relevant consideration.
In the result, it was submitted that Mr Lamis should receive an intensive correction order, suspended sentence, or an extended period of parole.
The Crown's case was that such a sentence would be unduly lenient, involving as that would imposing a head sentence of some 40 months upon him for his offences, which in the case of the firearms offence attracted a standard non-parole period of 3 years and a maximum penalty of 14 years. The firearm offence was submitted to have been a serious offence involving Mr Lamis carrying in his bum bag a gun loaded with a round in the chamber, while in the lobby of the Casino, where there were bystanders all around, while he was involved in the recovery of debts from persons reasonably suspected to be involved in other criminal activity.
It was also argued that while the plea was a mitigating factor, it did not automatically follow that Mr Lamis was remorseful. This was a Crown case where he had been arrested, red-handed, in possession of a gun, which on his own evidence he had had since earlier the preceding day. All of those circumstances required specific and general deterrence to feature in his sentence.

The relevant facts were not mistaken

On appeal Mr Lamis' case was that his Honour mistook the facts, with the result that he was sentenced for a more serious offence than that which he committed.
In his recitation of the short agreed facts, his Honour said that the persons involved in the drug operation had entered the vehicle which Mr Lamis entered on Liverpool Street and that there was then a discussion between all of them, relating to the supply of the drugs. That was incorrect. It was Mr Sabbah who had entered that car. On sentence, however, there was no issue that Mr Lamis was aware of the drug supply which was to fund repayment of the debt he had been engaged to collect.
Contrary to the case advanced on appeal, that Mr Lamis "knew what was going on" was not in dispute at the sentence hearing, when both written and oral submissions were advanced for Mr Lamis. Then it was submitted that while he was not part of the drug deal, he was the "gofer", sent by someone else to obtain proceeds of the drug deal, which was to take place at the Casino. That was the inference plainly open on the agreed facts.
On those facts, that it was only when he arrived at the Casino at 1.30am, that Mr Lamis came to know that "some sort of nefarious deal is going on", as was also argued on appeal, flies in the face of all of the evidence, including that Mr Lamis was so concerned about his safety, that he went to the Casino armed with both a gun and a knife, which he was prepared to use in self-defence.
His Honour thus was correct to hold that: "The most serious of these offences is the firearm offence. The offence is unusual in that whilst the serious drug deal is taking place, which there is no suggestion he was involved in, he is there to collect money after the drug deal for another person whilst carrying a gun in a bag which is not produced at any time but was loaded. He didn't take it out of the bag, at no time did he threaten anyone, nor any violence. However he knew what was going on, it was a serious criminal offence. As the Crown point out, the gun was within easy reach."
There was no error of fact or law in those conclusions. That on the evidence Mr Lamis could have been charged with even more serious offending, does not detract from the seriousness of the offences to which he entered his pleas.
His Honour also took into consideration Ms Wakely's report and Mr Lamis' oral evidence. That he ought to have found, in the result, that Mr Lamis suffered "what on any view are very severe mental health issues" and "extremely severe depression that has gone to some degree undiagnosed and entirely untreated" as was submitted on the appeal, was not established on the evidence.
In the result, that his Honour mistook the facts relevant to this sentencing exercise, cannot be accepted.

The Crown's submissions did not offend Barbaro v The Queen.

Contrary to the argument advanced on appeal, the submissions advanced by the Crown did not involve error of the kind discussed in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2. The Crown made no submissions as to the bounds of the available range of sentences which could properly be imposed on Mr Lamis, or what the sentence imposed upon him should be. What was responded to was the submission that the non-parole period imposed on Mr Lamis should not exceed the time he had already spent in custody, only 15 months and 2 weeks. That, the prosecutor submitted, would be unduly lenient, given the matters which his Honour had to take into account in this sentencing exercise.
The matters to which the Crown drew particular attention included the obvious seriousness of the firearm offence, particularly when considered in light of Mr Lamis' record and his tendency to carry dangerous weapons; the 25% discount it was accepted he would receive for his early plea; that the proceeds offence for which he also had to be sentenced was committed in company and involved a joint criminal enterprise; that the offence was committed without regard to public safety in circumstances were it was not inconceivable that if things had gone sour, members of the public and police would have been in extreme danger; that at the time Mr Lamis was at liberty on a bond; that he was later the subject of charges while in custody, which did not make his prospects of rehabilitation promising; and that there were questions as to his remorse, given that he was found red-handed when police arrested him in possession of the gun and knife. In the circumstances, it was submitted that both specific and general deterrence were especially called for.
These were all matters properly drawn to his Honour's attention and did not impermissibly involve the Crown in urging on his Honour its opinion as to an appropriate length of Mr Lamis' sentence. Rather, by the submissions advanced the Crown drew his Honour's attention to the relevant facts and pertinent sentencing considerations, which would properly cause his Honour to reject the approach urged for Mr Lamis, which if adopted, it must be accepted, would have led his Honour into serious error.
Had the prosecutor refrained from assisting his Honour by drawing attention to the obvious error which the course urged upon him for Mr Lamis involved, with the result that an unduly lenient sentence was imposed upon him, on appeal the Crown would face obvious difficulty in urging the Court not to exercise its residual discretion to decline to intervene on the appeal, even if error is established (see CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9 at [34] and [66]).
In the result, that the Crown did not fall into error of the kind discussed in Barbaro, is apparent.

The consequences of Mr Lamis' mental health condition were not overlooked

Consideration also had to be given to the evidence of Mr Lamis' difficult personal circumstances, including his account of increasing substance abuse and his development of mental health issues, after the sale of his business and his partner's ill health, matters to which his Honour referred. Beforehand, Mr Lamis had achieved both personal and business success in his life, despite his difficult upbringing, but that he was a person of good character could not have been accepted, given both his criminal record and his own account of his illegal drug taking and possession of a gun, even prior to this offending.
Reference was made on sentence to the principles discussed in R v Hemsley [2004] NSWCCA 228, namely that a mental condition may be such as to reduce moral culpability for offending; that it may render an offender an inappropriate vehicle for general deterrence; and that a custodial sentence may weigh more heavily on an offender, because he or she is a mentally ill person. The countervailing factor, that he or she may present a level of danger to the community, which has to be reflected by way of specific deterrence, then also arises for consideration.
Like in Thalari v Regina [2009] NSWCCA 170, the evidence did not establish that Mr Lamis suffered a mental illness which made him an inappropriate vehicle for general deterrence (see at [92]). There had been relatively recent pursuit of treatment for the paranoia he described and the anxiety and depression Ms Wakely identified him to be suffering. The development of those conditions followed the antisocial lifestyle he described that he had adopted, significantly abusing a variety of drugs, after his partner had suffered increasing ill health and he had encountered financial difficulties and with his realisation, in custody, of the consequences of his errors of judgment.
Further, not only had Mr Lamis fallen into the habit of carrying a gun prior to this offending, but he was also a heavy user of a variety of drugs and at the time of his arrest at the Casino, he told Ms Wakely he was affected by the drugs he had taken over the course of the preceding five days, during which he had not slept. Given that he had armed himself with a loaded and lethal pistol, which he was prepared to use, as well as a knife, when he went to the Casino to receive the proceeds of a drug supply, that he posed considerable risks to public safety is undoubted. In the result, specific deterrence also had to feature in the sentence imposed upon him.
That his Honour nevertheless took proper account of Mr Lamis' difficult personal circumstances, is reflected both in the reference which he made to the evidence about those matters and the relatively lenient sentence which he imposed on Mr Lamis, given the seriousness of his offending.
That it would be desirable for Mr Lamis to have an extended period of supervision and mental health treatment was also recognised by his Honour's finding of special circumstances. There was no error in his Honour's approach, the result being a departure from the statutory ratio fixed by s 44 of the Sentencing Procedure Act, so that Mr Lamis will have longer than the normal period of supervision, once released on parole.

There was no error in assessing the seriousness of this offending

It is well settled that an offender's criminality is objectively more serious where a firearm is possessed as part of his or her involvement in other crimes and sentences imposed on such offenders must be such as "to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law" (see R v Amurao [2005] NSWCCA 32 at [69]).
On the evidence his Honour was correct in concluding both that the firearms offence was the more serious of the two for which Mr Lamis was being sentenced and that it was a serious criminal offence, involving as it did possession of a loaded gun on arrest at the Casino, which he was prepared to use. That his offending could have been even more serious, had he discharged the gun, is apparent, but does not detract from the seriousness of the offence to which he entered his plea, an offence which was not objectively at the lower end of the mid-range of such offending, as was argued on sentence.
While possession of a firearm for a very short period may, in the circumstances of a particular case, reduce the seriousness of the offence, (see R v Goktas [2004] NSWCCA 296 at [26]), this was not such a case. What was relevant both to the assessment of the objective seriousness of this offence and Mr Lamis' moral culpability for that offending, was not only that he had attended the Casino with a loaded gun in his bum bag, a gun which he was prepared to use to defend himself, when pursuing his part in the proceeds offence.
Also relevant was that in his oral evidence Mr Lamis said that he was carrying a gun and knife that day, which "wasn't in my character to be doing all the time". Mr Lamis had, however, not only a prior conviction for carrying a knife, he had earlier told Ms Wakely that he carried the gun because of his increasing feelings since 2014, of paranoia and fear for his personal safety and that prior to these offences he had not slept for five days, during which he had gambled and abused a variety of drugs. It was in the light of all of that evidence, that Mr Lamis' preparedness to use the gun he took with him to the Star Casino, had to be considered.
As his Honour correctly found in the light of that evidence, Mr Lamis carrying a loaded gun to the Casino, where he and Mr Sabbah were to collect the debt from the drug deal which was to generate the funds it was expected would be used to make the payment they were to collect, a gun which he was prepared to use, was objectively serious offending indeed. Mr Lamis' moral culpability for that offending was high.
His Honour's sentence reflects a conclusion that the firearm offence fell at the mid-range of such offending. On the evidence a finding that, objectively, it fell above that range, was open.

The sentence for the firearms offence was not too high

As discussed in R v Tolley [2004] NSWCCA 165 at [54], in sentencing for this offence, his Honour had to pay attention to s 3 of the Firearms Act, which specifies both the underlying principles and objects of the Act, which include "the overriding need to ensure public safety".
Given the seriousness of his offending, his Honour was correct to refuse the case advanced for Mr Lamis, that the sentence imposed upon him for his two offences should not involve any longer time in custody than the time he had already served.
After a 25% discount the sentence which was imposed for the firearms offence was 3 years and 9 months imprisonment, with a non-parole period of 2 years and 3 months. That reflects a starting point of 5 years, with a 3 year non-parole period.
The firearms offence itself attracted a maximum penalty of 14 years and a 3 year standard non-parole period. The non-parole period is the minimum period that the offender must spend in full-time custody, having regard to all the elements of punishment, which include rehabilitation, the objective seriousness of the crime and the offender's subjective circumstances, as explained in Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 628-629.
Under s 54A(2) of the Crimes (Sentencing Procedure) Act a standard non-parole period is the non-parole period "that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness". As Hulme J observed in R v Najem [2008] NSWCCA 32 at [38], the 3 year standard non-parole period and the maximum penalty of 14 years for this offence were "two irreconcilable standards" and "one would fairly have expected that the standard non-parole period for an offence in such mid-range to be of the order of half of the maximum" (at [39]).
Despite this difficulty, his Honour had to take the 3 year standard non-parole period into account, as one of the two relevant legislative guideposts, the other being the maximum 14 year penalty, in the way discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].
The sentence for the firearms offence also had to be increased, as the result of the consideration which had to be given to the knife offence, which arose for consideration under a Form 1, in accordance with s 33(2) of the Sentencing Procedure Act, as was accepted on appeal.
As discussed by Spigelman CJ in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [18], the "essence" of that exercise involved imposing a longer sentence on Mr Lamis for the firearms offence, than would have been imposed, if that offence had stood alone. Such a sentence must be determined by the sentencing judge first focusing on the sentence that is appropriate for the principal offence charged on the indictment, which is then increased by reason of the Form 1 offence, for which guilt has been admitted.
The sentence imposed on Mr Lamis thus also had to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the Form 1 offence (see at [42] - [43]). In his case that was a particularly relevant consideration, because his prior record included other weapon offences.
The sentence which his Honour imposed for Mr Lamis' firearms offence, increased as the result of the consideration of the Form 1 offence, prior to the grant of the 25% discount, was not too high, given the objective seriousness of these offences and the level of his moral culpability for that offending. When considered together with the other matters which arose for consideration in this sentencing exercise, including his difficult personal circumstances and mental condition, by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; (2005) HCA 25 at [51], the sentence imposed was certainly not erroneously severe.

Overall Mr Lamis received a lenient sentence

Further, when all of this is considered together with the final result, a concurrent sentence imposed for the proceeds offence, that the overall sentence imposed on Mr Lamis for all of his offending was manifestly excessive, cannot be accepted.
Sentences should not be made wholly concurrent because two or more offences may be seen as part of the one course of criminal conduct, as his Honour indicated he proposed to do, a course to which no objection was taken by the Crown
The total sentence thus imposed on Mr Lamis for the firearms offence was 3 years and 9 months imprisonment, with a non-parole period of 2 years and 3 months. The sentence for the proceeds offence, a total term of 2 years and 6 months with non-parole period of 18 months, was made totally concurrent with that sentence.
Mr Lamis' two offences were committed in the course of the same conduct, but they involved quite different offending. His Honour's conclusion was that despite this, the sentence for the firearms offence could entirely reflect the criminality involved in the proceeds offence.
Nevertheless, the leniency involved in his Honour's approach cannot be overlooked. After all, the result of the exercise of the sentencing discretion was to Mr Lamis' considerable benefit, given that he will serve no time at all in custody for the proceeds offence, in addition to that served for the firearms offence.
In this sentencing exercise his Honour had to take into account the principal of totality, in accordance with the approach discussed in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]. That required an appropriate sentence to be fixed for each offence and then consideration given to questions of totality, cumulation or concurrence.
What that required was for consideration to be given to whether the sentence for Mr Lamis' firearms offence could encompass the criminality of the proceeds offence for which he was also being sentenced (see R v Jarrold [2010] NSWCCA 69 per Howie J at [56], Franklin v R [2013] NSWCCA 122 at [44] and MPB v The Queen (2013) 234 A Crim R 576; [2013] NSWCCA 213 at [134]).
As discussed in R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52], that "calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence".
His Honour's consideration of all of these matters did not result in the two sentences being made even partly cumulative, as, in accordance with these binding principles, they should have been. That involved a very favourable exercise of the discretion in relation to the concurrency of the sentence for the proceeds offence.
Reasons for that conclusion were not given and the result was not challenged on appeal. There was an obvious basis on which his Honour's conclusion as to concurrency could have been challenged on appeal, had the Crown also assisted his Honour by drawing attention to the error involved in the approach which he adopted.
The result is, nevertheless, a relevant consideration when the severity of the overall sentence imposed on Mr Lamis is considered. It simply does not leave open the conclusion that the sentence imposed on Mr Lamis was manifestly excessive.

Orders

For all of these reasons, I consider that the appeal must be dismissed. I would make the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.

Amendments 02 December 2016 - Correction to Counsel's name 05 December 2016 - typographical corrections in [29], [62] and [63] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2016

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (28)

Cited By (1)