[1936] HCA 40
Kaminic v R [2014] NSWCCA 116
Markarian v R (2006) 228 CLR 357
[2005] HCA 25
Mulato v R [2006] NSWCCA 282
Olbrich v The Queen (1999) 199 CLR 270
[1999] HCA 54
R v Cramp [2004] NSWCCA 264
R v Farrell [2015] NSWCCA 68
R v McNaughton (2006) 66 NSWLR 566
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 54
House v The King (1936) 55 CLR 499[1936] HCA 40
Kaminic v R [2014] NSWCCA 116
Markarian v R (2006) 228 CLR 357[2005] HCA 25
Mulato v R [2006] NSWCCA 282
Olbrich v The Queen (1999) 199 CLR 270[1999] HCA 54
R v Cramp [2004] NSWCCA 264
R v Farrell [2015] NSWCCA 68
R v McNaughton (2006) 66 NSWLR 566
Judgment (7 paragraphs)
[1]
Judgment
PRICE J: I agree with Hamill J.
BELLEW J: I agree with Hamill J.
HAMILL J: Moustafa Mariam seeks leave to appeal against a sentence imposed by his Honour Judge Hoy SC in the District Court sitting at Parramatta on 20 May 2016. The applicant was sentenced in relation to 2 offences of which he was found guilty by a jury after trial. Those offences were: -
1. Possession of a pistol, namely a .45 automatic calibre self-loading pistol.
2. Doing an act, namely inducing another person to falsely claim responsibility for the firearm referred to in count 1, with intent to pervert the course of justice.
The maximum penalty for the firearms offence was imprisonment for 14 years and there was at the time an applicable standard non-parole period of three years. The maximum penalty for the intent to pervert the course of justice offence was imprisonment for 14 years.
The sentencing Judge decided to impose an aggregate term of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). No criticism was made of this decision although there is an argument around the length of the sentences that his Honour indicated he would have imposed on the individual counts.
The aggregate sentence was one of six years with a non-parole period of four years and six months. Pursuant to s 53A(2)(b) Judge Hoy indicated a sentence of four years with a non-parole period of three years for the firearms offence and a sentence of five years for the pervert the course of justice offence.
Mr Mariam appeals on the following grounds: -
1. The aggregate sentence imposed on the Applicant was manifestly excessive;
2. The learned sentencing Judge erred in assessing the mere possession of the firearm as mid-range;
3. The learned sentencing Judge erred in consideration of the Applicant's criminal history; and
4. The learned sentencing Judge erred in his consideration of the issue special circumstances.
It will be seen that the first ground asserts manifest excess while the remaining grounds contend specific error. In the way the case was argued, the errors contended for under grounds 2-4 may also be relevant to the first ground. Accordingly, and in any event, it is convenient to deal with ground 1 last. Before doing so, I will set out the course of proceedings and the relevant facts.
Given the relative simplicity of the matter, and issues to be determined in the aftermath of the jury's verdicts, the sentencing proceedings were surprisingly protracted. The parties were unable to agree upon the precise facts upon which the sentencing Judge should proceed. Some of the facts were agreed but there remained a number of issues for determination. No complaint was made on appeal as to the factual basis upon which Judge Hoy sentenced the applicant and it is unnecessary to go into further detail of the proceedings on sentence except where things that occurred in the course of the proceedings are relevant to the grounds of appeal. It is also unnecessary to refer, other than in passing, to the fact that Judge Hoy also dealt with some offences pursuant to a certificate under s 166 Criminal Procedure Act.
The facts were set out clearly enough in his Honour's remarks (or judgment) on sentence. Those facts were consistent with the jury's verdicts. At least so much must be assumed from the absence of any ground of appeal. The full transcript and summing up from the trial were (correctly) not placed before this Court. The judge found the following facts to be proved beyond a reasonable doubt:
1. On 22 January police attended and searched unit 15, 35-37 Ross Street Parramatta ("the premises"). The accused was within those premises.
2. Police located a .45 calibre automatic self-loading pistol together with a detachable magazine loaded with 10 .45 automatic cartridges, within a ceiling cavity in the laundry of the premises.
3. The subject pistol and cartridges were secreted in that ceiling cavity.
4. The offender had physical contact with that pistol.
5. The offender was charged with possessing the firearm.
6. He was present at the premises, for such period I am unable to ascertain, although at least overnight.
7. Between 12 and 19 March 2014 the offender was in custody at the Silverwater MRRC.
8. At that time he spoke to a fellow inmate, Mr Moudasser Kanj and indicated he needed someone to "take the rap for him".
9. He later offered Mr Kanj $35,000 together with an upfront $5,000 for legal fees and "struggles in gaol" together with a Toyota motor vehicle, whether it be a Corolla or Sportivo, to do so.
10. It was agreed with Mr Kanj that a statutory declaration would be prepared by him as to his role in the firearms offence.
11. To facilitate this course the offender provided Mr Kanj access to the offender's alleged facts sheet.
12. Mr Kanj also made statements over the telephone whilst in gaol admitting ownership of the firearm and this was done knowing the phone calls were recorded and so as to facilitate the ongoing deception.
13. Mr Kanj met with a solicitor and to whom he then admitted commission of the offence and arranged for him to return with a relevant statutory declaration.
14. The offender gave Mr Kanj his further contact details and those of his brother and his lawyer.
15. On 5 April 2014 a solicitor with an unusual nickname met with Mr Kanj at Goulburn Gaol and completed and signed a statutory declaration falsely asserting that the pistol was his. Mr Kanj did this in exchange for the money and motor vehicle as promised to him by the offender.
16. Mr Kanj's solicitor forwarded the statutory declaration falsely asserting that the pistol was his to the solicitor for the offender, who in turn forwarded it to the officer-in-charge of the prosecution then current against the offender.
17. On 9 April 2014 a Toyota Sportivo was delivered to the front yard of Mr Kanj's sister and it was registered in the name of the offender's business.
It was submitted by the Crown on sentence that the presence of what was described as "drug paraphernalia" supported a finding that the facts of the firearms charge were aggravated because the possession of the firearms was related to the use of the premises as a venue for the trafficking in drugs. The sentencing Judge was unable to come to the conclusion that this circumstance was established beyond reasonable doubt. His Honour said "I specifically and emphatically disregard the material regarding indicia of drug supply as promoted by the Crown".
The sentencing Judge also considered whether he could make a finding that the applicant was the owner of the firearm. His Honour determined that he could not. This finding has some relevance to the second ground of appeal which asserts error in the finding that the firearms offence fell within the putative mid-range of objective seriousness. The finding of the sentencing Judge was that the applicant must have touched the gun at some stage because his DNA was located on the weapon. Whilst that finding had been disputed at trial, and while there was some argument as to other alternatives explaining the presence of the DNA in the course of the appeal, there is no ground asserting error in this finding and, in any event, it was clearly a finding that was open on the evidence and consistent with the jury's verdict on count 1.
In the end, the sentencing Judge sentenced the applicant on the basis that at some stage he had exercised control over their weapon by possessing it. His Honour described this as "mere possession" presumably to distinguish the case from ownership or possession for some nefarious purpose. As I have said, his Honour declined to make a finding that the applicant owned the weapon or that the weapon was possessed in connection with the distribution of illegal drugs or in the course of any other specified criminal activity. Again, those findings are important in assessing whether the sentencing Judge fell into error by assessing the firearms offence as one that fell in the mid-range of objective seriousness.
The applicant had a criminal record going back to 2001 when he was dealt with in the Children's Court for an offence of robbery in company and his criminal history continued sporadically until the time of the present offences. In 2010, he was sentenced to 18 months imprisonment for assault with intent to rob but that sentence was suspended on the applicant entering into a good behaviour bond. In 2012, the applicant received a sentence of two years and three months with a non-parole period of around 18 months for an offence of affray. That offence was subject to a detailed sentencing judgment by Latham J. [1]
Latham J made a finding at [35] that the applicant had "reasonable prospects of rehabilitation if the offender continues on his present path and devotes himself to the care of his family and the pursuit of gainful employment." The sentencing Judge in the present case, generously and perhaps surprisingly, adopted a similar approach and made a similar finding even though the prerequisites for her Honour's finding appeared not to have been satisfied. In other words, rather than "continuing on his present path" towards rehabilitation, the applicant possessed an automatic pistol in 2014 and then attempted to pervert the course of justice by having another man take the rap for that offence.
In any event, there were other factors that militated towards favourable findings. For example, the applicant was in a long-standing marriage and had two young daughters. His wife told the Court that the present offending took place during a period of marital discord and short separation and that, upon her return, the offender had "become a changed man showing interest in her and the children, empathetic and caring towards them all". His wife was supportive and the sentencing Judge appeared to accept the evidence of the applicant's father who said that the applicant was "a valued member of the family, a good son, a loving husband and a caring father". The applicant enjoyed the support of his family.
The applicant was exposed to alcohol consumption from a relatively young age (16) and appeared to have taken steps to deal with his alcohol and drug problems although, according to the pre-sentence report, he had not required professional intervention. Medical reports tendered on sentence showed that there were a number of relevant medical conditions including severe heartburn, anxiety and depression, a shot gun injury to his right forearm resulting from a 2009 incident and a lack of flexion in his hand resulting in pain on extension. The pain and disability in his hand may have been the result of the shot-gun injury.
[2]
Ground 2: The learned sentencing Judge erred in assessing the mere possession of the firearm as mid-range
In the course of his judgment on sentence Judge Hoy indicated that he assessed the firearms offence as one that fell within the mid-range of objective seriousness. The applicant submits (in effect) that this finding was not open on the evidence before the sentencing Judge. The applicant relies on Judge Hoy's finding that the applicant was in the "mere possession" of the firearm. The applicant relies on the rejection of the Crown's submission that the applicant possessed the gun in the context of drug dealing at the house and the Judge could not conclude that the applicant was the owner of the firearm.
It has been held consistently in this Court that the assessment of where an offence lies in the range of seriousness is a matter peculiarly in the province of a sentencing Judge: see, for example, Mulato v R. [2] I have previously expressed misgivings about this body of authority. [3] However, I was (and remain) constrained to accept that, in the absence of High Court authority or the consideration of the issue by a five judge bench of this court, the approach represents the well-settled law of New South Wales. [4]
This means that the applicant has a considerable hurdle in overturning the sentencing Judge's assessment that the firearms offence fell in the mid-range of objective seriousness.
Further, in the present case, the sentencing Judge presided over the trial of the applicant. Accordingly, his Honour was in a far better position than this Court to assess where the offence fell in terms of its seriousness relative to other offences caught by s 7(1) of the Firearms Act.
In mounting this submission, the applicant relied heavily on the circumstances of the possession and suggested, at least implicitly, that the nature of the firearms itself was not a matter of great moment in determining the seriousness of the offence. The suggestion seemed to be that the particular weapon in question was typical of offences charged under the section. Contrary to this submission, the nature of the weapon was a matter of real significance in determining the seriousness of the offence. The weapon was an automatic pistol that was loaded with 10 rounds of ammunition. A wide range of firearms might be caught by the offence created by s 7 of the Firearms Act. By reference to the definitions in ss 4 and 4D of the Firearms Act, this can include "air guns", "imitation firearms" and firearms that are not at the time (but were at another time) in working order (that is, capable of propelling a projectile by means of an explosive). It will also include guns that are not loaded. In those circumstances, the nature of the weapon itself is a matter of significance in assessing the objective seriousness of an offence of possessing a firearm or pistol under s 7.
Further the precise circumstances in which the applicant possessed the pistol were not able to be known either by the prosecuting authorities or indeed by the sentencing Judge. In Olbrich v The Queen, the majority observed: [5]
"Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence."
Their Honours were referring to a case where a plea of guilty was entered but the same applies to a case like the present where the version of events advanced by the offender at trial must have been rejected. The applicant had conducted a defence on the basis that he was not, and never was, in possession of the firearm. Presumably his case was that his DNA came to be on the weapon by means of some form of secondary transfer. The jury must have rejected these suggestions. Accordingly the sentencing Judge was left to determine the objective seriousness in the light of incomplete information. Plainly, his Honour could not have acted on the case presented by the applicant to the jury.
The nature of the weapon and the fact that it was loaded were such that it was open to the sentencing Judge to come to the conclusion that the offence fell within the mid-range of objective seriousness. That was a significant finding in the context of the standard non-parole period of three years, which was one of a number of yardsticks by which the sentencing Judge was called upon to exercise the sentencing discretion.
Before leaving this ground it is necessary to refer to the applicant's reliance on this Court's decision in R v Farrell. [6] In that case the sentencing Judge determined that a short period of possession might be capable of reducing the objective seriousness of the offence. That is no doubt correct. In Farrell, the sentencing Judge found that the offender came into possession of the firearm unexpectedly having found it in a car. On the basis of that finding, the sentencing Judge concluded that the offence was below the mid-range of objective seriousness. There was a crown appeal and Bellew J, with whom Simpson J (as her Honour then was) agreed, held that the approach taken by the sentencing Judge in that case was open to him. The factual finding in relation to the nature and extent of the possession impacted on the offender's moral culpability and supported the conclusion reached by the sentencing Judge that the offender's conduct fell below the mid-range of objective seriousness.
The fact that this Court on a Crown appeal did not accept a submission by the appellant (Crown) that the sentencing Judge in Farrell erred in his assessment of the objective criminality in that case cannot, logically, result in a finding in a different case that a different sentencing Judge's finding as to objective seriousness is therefore wrong. If the circumstances were precisely the same, it may be open to draw such a comparison. However, the circumstances are not the same. In particular, there was no evidence in the present case that the applicant came into possession of the firearm unexpectedly. The circumstances in which the offender came to possess the firearm in the present case were simply not known. While Judge Hoy was not prepared to draw the inference that the applicant possessed the gun in the context of criminal activities or drug dealing, or that he was the owner of the gun, the absence of those adverse findings do not support a contrary, or positive, finding. All that can be said is that the applicant possessed the gun at some time. So much had to be accepted from the jury's verdicts. It was then the nature of the weapon that became central to an assessment of the objective seriousness of the offence.
Ground 2 cannot be sustained.
[3]
Ground 3: The learned sentencing Judge erred in consideration of the applicant's criminal history
The applicant submits that the sentencing Judge's approach to the applicant's past criminal history represented an error in the sentencing process. What his Honour said was this: [7]
"[t]he offender's record does not assist him. It is extensive and covers a variety of criminal activity. He has a number of traffic matters, a goods in custody suspected of being stolen - what is called in the usual parlance a goods in custody matter, a custody of a knife in a public place and an enter enclosed land matter. As a young person or child he was also convicted of 2 counts of robbery in company. As an adult there are numerous more serious matters, including wilfully obstruct an officer in the execution of his duty, assault with intent to rob, common assault and an affray. He has received substantial gaol sentences in the past. The facts of the affray are gravely serious. The sentencing remarks have been provided to me. Indeed, reliance is placed on some of the subjective features in those remarks on behalf of the offender. Firearms were used in that matter and an innocent bystander was killed. I immediately acknowledge, however, that the matter proceeded on the basis that this offender had no knowledge of the presence of firearms at that scene. At the time of the first offence, that is Count 1 in these matters, the offender was not on parole or apparently any form of conditional liberty."
That finding or analysis was responsive to the Crown's submission that "the offender's criminal history aggravates the offence in that it disentitled him to leniency (section 21A(2)(d))". The Crown (at first instance) relied on the decision of this court in R v Wickham. [8]
There is no suggestion in the remarks on sentence or in the proceedings which preceded it, that the sentencing Judge took the view that the objective criminality of the offences, or the applicant's moral culpability for those offences, was somehow elevated by his criminal history. Nor was it suggested that the length of the sentence should be increased as a result of the applicant's criminal history, or in consequence of a finding that the applicant represented a danger to the community as a result of his history of committing various criminal offences.
The finding of the sentencing Judge was specifically in response to a submission by the Crown that went no further than submitting that the applicant's criminal history disentitled him to the leniency that might be afforded to a first offender or somebody with a minor criminal history.
The approach adopted by the sentencing Judge was completely orthodox. It was in accordance with this Court's judgment in R v McNaughton, where a bench of five considered the decision in Wickham and affirmed the principle of "proportionality". [9] There is nothing to suggest that Judge Hoy misused the offender's criminal history or that the way in which he used this "aggravating" feature, as described in s 21A(2), resulted in a sentence that was disproportionate to the criminality involved.
Ground 3 is not established.
[4]
Ground 4: The learned sentencing Judge erred in his consideration of the issue of special circumstances
Ground 4 asserts that the sentencing Judge fell into error in failing to make a finding of special circumstances and thereby adjust the non-parole period to less than the 75% ordinarily prescribed by s 44 of the Crimes (Sentencing Procedure) Act.
There are two significant hurdles confronting the applicant's case under this ground of appeal. First, a finding of special circumstances and the power to adjust the non-parole period pursuant to s 44 are discretionary decisions to be exercised by the sentencing Judge. [10] In the absence of the kind of error described in House v The King, [11] an intermediate appellate court will be reluctant to interfere with a sentencing Judge's approach. The second hurdle to this ground of appeal arises as a result of the diffidence with which the matter was approached by counsel appearing at first instance. The record of proceedings shows that no submission was made in relation to the question of special circumstances until the sentencing Judge raised the question. In the course of submissions on the 27 November 2015 his Honour asked:
"No one said anything about special circumstances. Was that submitted or not?"
Counsel for the applicant responded that he "would make that submission" on the basis of the pre-sentence report, the history of substance abuse and the findings made by Latham J in the affray proceedings. The sentencing Judge said "I might let you think about that and you can come back to it rather than do your best at the moment, seeing we're coming back to deal with an argument over a matter that carries 50 penalty units or whatever it is". I take this last observation to be a reference to the matters dealt with pursuant to s 166 of the Criminal Procedure Act. In any event, when the matter came back before his Honour, no submission was advanced that his Honour should make any adjustment to the non-parole period in consequence of a finding of special circumstances.
In his judgment on sentence his Honour said: [12]
"Very little has been put forward as justifying a finding of special circumstances. Mention was made on 27 November 2015, essentially being the history of substance abuse and the commentary acknowledged by her honour Justice Latham in her remarks on sentence for the affray matter. There has been however some water under the bridge since then. The offender served a sentence and then a period on parole. He re-immersed himself in criminal conduct by the commission of these offences. I accept the offender has had difficulties with substance abuse in the past, however the material before me which is very limited, the Pre-sentence Report only, suggests he has avoided such problems since again going into custody in as I recall 2014. No request has been made for any ongoing rehabilitation and/or treatment. I accept accumulation of sentences may form a basis for an adjustment of the sentence or that is the ratio, between the usual period of non-parole and parole however in the present case it does not seem to me there is sufficient basis to make any such adjustment. These two offences involved separate acts of criminality. That said, by imposing an aggregate sentence I do intend to take into account the principles of accumulation and related concurrency. I do not however have sufficient supporting material and nor do I find special circumstances."
On appeal the applicant referred to the material tendered on the applicant's subjective case and to the fact that the sentencing Judge made recommendations as to the conditions upon which the applicant might be released to parole. These included:
1. Substance and alcohol abuse and relapse prevention;
2. Anger management and impulse control;
3. Integration into the general community;
4. Mental health issues and related ongoing treatment and medication including the implementation of a Mental Health Treatment Care Plan as arranged and directed by a general medical practitioner or related health service provider; and finally
5. Vocational educational training and/or work related skills program and related qualifications.
While it would have been open to the sentencing Judge to make a finding that there were special circumstances whereby the applicant would benefit from a longer period of conditional parole, the failure to make that finding does not amount to an error in the sentencing exercise. There is nothing to suggest that his Honour took into account any irrelevant considerations, or failed to take into account relevant considerations, in coming to the conclusion that special circumstances were not established.
Accordingly ground 4 must also be rejected.
[5]
Ground 1: The aggregate sentence imposed on the applicant was manifestly excessive
The written submissions on behalf of the applicant analysed the statistical material that had been placed before the sentencing Judge and which were referred to by his Honour in the course of his judgment on sentence. Counsel correctly noted the caution with which such material should be treated. In conclusion, counsel submitted that "the statistics demonstrate that the indicative sentences for the offences are stern". I agree with that analysis. However the fact that the indicative sentences are stern is a long way removed from finding that they fell outside of an appropriate discretionary range.
Assuming that each of the indicative sentences was within a discretionary range, and that the indicative sentence of five years for the offence of intending to pervert the course of justice was not unreasonable or unjust, it becomes difficult to sustain a submission that the total aggregate sentence of six years manifested latent error in the sentencing process.
In other words, if the sentence of five years was available in the proper exercise of discretion for the pervert the course of justice charge, the aggregate sentence of six years contained a very large degree of notional concurrence and a notional accumulation of just one year for the possession of the firearm. It is difficult to conclude that there must have been some latent error in the notional accumulation of the sentences or that Judge Hoy erred in his approach to totality.
To uphold a submission that the aggregate sentence was manifestly excessive it is necessary for the Court to conclude that the sentence imposed was "manifestly wrong" or plainly unjust". [13] It is not sufficient that a judge of this Court may have exercised the sentencing discretion differently. [14]
For the reasons I have identified in dealing with ground 2, Judge Hoy's assessment of the objective seriousness of the possession of the pistol charge was not infected with error. The facts surrounding the attempt to pervert the course of justice charge represented a serious example of that offence. The applicant was not, as the sentencing Judge found, a person of prior good character and was not entitled to any reduction in the sentence as a result of a plea of guilty. In the circumstances an aggregate sentence of six years with an aggregate non-parole period of 4½ years might be considered to be a heavy sentence in all of the circumstances, but it is within the range of sentences that one would have expected. It is neither plainly unjust nor manifestly wrong or unreasonable.
Accordingly ground 1 cannot be sustained.
[6]
Orders
For the foregoing reasons I would not uphold any of the grounds of appeal. In view of the stern nature of the sentence and the cogency of the arguments presented on the applicant's behalf, I would grant leave to appeal. However, the appeal must be dismissed.
Accordingly, I propose to the following orders:
1. Application for leave to appeal granted.
2. Appeal dismissed.
[7]
Endnotes
R v Moustafa Mariam [2012] NSWSC 1496.
Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J).
Kaminic v R [2014] NSWCCA 116 at [80] - [85].
Sabongi v R [2015] NSWCCA 25 at [70]-[71], Ruge and Cormack v R [2015] NSWCCA 153 at [46].
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 at [16] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
R v Farrell [2015] NSWCCA 68.
Remarks on sentence, 20 May 2016, p 12-13.
R v Wickham [2004] NSWCCA 193.
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242.
See, for example, R v Cramp [2004] NSWCCA 264 at [31].
House v The King (1936) 55 CLR 499;[1936] HCA 40.
Remarks on sentence, p 25-26.
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ).
Markarian v R (2006) 228 CLR 357; [2005] HCA 25 at [28] (Gleeson CJ, Gummow, Hayne and Callinan JJ.
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Decision last updated: 01 December 2017