Police v Tabbaa

1. The matters were referred to the Director of Public Prosecutions (DPP) re possible election to proceed on indictment, however no election was ultimately made.
2. On 10 March 2022, not guilty pleas were entered to all counts. The matters were listed for defended hearing on 5 December 2022.
3. On 11 October 2022, the matters were re-listed and guilty pleas entered to sequences 1, 4 and 5 ie., Possess Unauthorised Pistol, Possess Ammunition without Authority, and Possess Unauthorised Pistol. The matter was adjourned to 6 December 2022 for sentence with a Sentencing Assessment Report to be prepared.
4. A Form 1 was prepared by agreement between the defence and prosecution, and signed by the offender. The proposed Form 1 listed 4 counts: 2 counts of Possess Loaded Firearm in a Public Place (sequences 3 and 7) and 2 counts of Not Keep Firearm Safely (sequences 2 and 6). It was intended that those offences would be taken into account when imposing sentence for Possess Unauthorised Pistol (sequence 1).
5. The Goods in Custody count was withdrawn.

Relevant Legislation re Form 1 33 Outstanding charges may be taken into account (1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence. (2) The court may take a further offence into account in dealing with the offender for the principal offence-- (a) if the offender-- (i) admits guilt to the further offence, and (ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and (b) if, in all of the circumstances, the court considers it appropriate to do so. (3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account. (4) A court may not take a further offence into account-- (a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or (b) if the offence is an indictable offence that is punishable with imprisonment for life. (5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender. (6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account. (Emphasis added.).

1. I complied with the formal parts of section 33(2)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) by asking the offender whether he wanted me to take into account the 4 offences listed on the Form 1 that he had signed when dealing the sequence 1, Possess Prohibited Pistol: see Dale v R [2021] NSWCCA 320 at [38] - [40]. The offender confirmed that he wanted that to occur, and I then read out each of the relevant court attendance notices to the offender, and to each count he acknowledged his guilt.
2. I then indicated that I had to make a determination in accordance with section 33(2)(b) of the Act as to whether I considered it appropriate to deal with the Form 1 as requested by the offender.
3. I provided the prosecutor and Mr Vijay with various case law citations, and read relevant parts of those decisions to the parties.
4. I told them that if I formed the view that the appropriate sentence for sequence 1, Possess Unauthorised Firearm reached or exceeded the jurisdictional limit, then I was unlikely to find it appropriate to deal with the Form 1 as proposed, referring to the case law. One reason is that in such circumstances the Form 1 was incapable of increasing the sentence for the substantive offence. There are further reasons. I will expand upon that case law and my findings in due course.
5. Sergeant Lolis referred me to decisions of Cummins v R [2019] NSWCCA 163 at [44] and RL v R [2018] NSWCCA 274. No particular paragraph in the latter case was referred to, however it appears that paragraphs [33] to [40] deal with the Form 1 considerations. Reference was made to the principles relating to Form 1 offences stated 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], [34] and [39].
6. The decision of Cummins at [44] confirms that an offence on a Form 1 is not relevant to the assessment of the seriousness of a principal offence. Such principle is not disputed. The decision of RL v R adds nothing beyond the case law that I first informed the parties of.
7. Mr Vijay suggested that the sentence likely to be imposed for sequence 1 might not exceed the jurisdictional limit.
8. I expressed a view that perhaps the fairest way to determine that issue or suggestion, as a preliminary point to determining the appropriateness of the Form 1, was to hear Mr Vijay's submissions on behalf of the offender. Both Mr Vijay and Sergeant Lolis agreed with that suggestion.
9. If I found that the appropriate range of sentence for sequence 1 was less than the jurisdictional limit, there may be some work for the Form 1 to do. If the range of appropriate sentence, without determining a precise sentence, was at or above the jurisdictional limit, then the Form 1 matters could have no impact on that sentence and would appear to be inappropriate to be taken into account in dealing with the substantive offence.

Maximum Penalty for Sequence 1 - Possess Unauthorised Firearm

1. As indicated above, the maximum penalty for the Possess Unauthorised Pistol, is 14 years imprisonment.
2. The jurisdictional limit in the Local Court is 2 years for an offence that carries a maximum penalty of more than 2 years.
3. In the recent High Court decision of Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 at [19], the Court said: "Contrary to the appellant's submission, a jurisdictional limit is not a matter required to be taken into account "in determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit27 27 R v Doan (2000) 50 NSWLR 115 at 123 [35]; Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31]; R v Duncan (2007) 172 A Crim R 111 at 117 [20] per Nettle JA, Chernov and Vincent JJA agreeing."
4. In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J. with Hoeben CJ at CL and Hamill J. agreeing, said: "[66]…..the sentencing principles applicable to the process of sentencing remain the same in the local and district courts…… The magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit."
5. The principle in Greaves is clear. The Local Court in sentencing an offender is no different to the way in which the District Court should sentence an offender, subject to the jurisdictional limit if the sentence that should be imposed for an individual offence exceeds that limit.

Discount for Utilitarian Value of Pleas

1. In accordance with the principles enunciated in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and the judgment of Howie J. in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32], I allow a discount of 15% for the utilitarian value of each guilty plea.

Agreed Facts

1. About 6:35pm on Tuesday, 22 February 2022, police followed a black Holden Cruze driven by Abdulla Hariri that had turned onto Ormonde Parade, Hurstville where it was stopped by police.
2. The offender Mohammad Tabbaa walked towards the vehicle with a mobile phone up to his ear and appeared to police as though he was waiting to be picked up by Hariri.
3. One of the police officers recognised the offender from a previous interaction and approached him, as the other officer spoke with the driver of the car. Both police had body worn cameras. The defendant told police he was just getting picked up by his mate. He was asked why he had walked away when police arrived, to which he said: "No reason, I just don't want to be involved." He appeared to be nervous and kept grabbing at the strap of the satchel that he wore over his shoulder.
4. Hariri initially said that he did not know Tabbaa, before changing his story and said that he had come to pick him up. The driver appeared to be nervous, shaking slightly and he kept staring straight ahead. Police conducted checks on both persons.
5. Police informed both the offender and Hariri that they and the car would be searched.
6. The offender refused to comply with the search despite being told that he must comply or would be committing an offence. He was handcuffed to the front.
7. In the front pocket of the black leather satchel bag that the offender was wearing, police removed his black wallet containing cards in his name before opening the larger main pocket with the bag seeing the handle of a silver firearm. Police removed the loaded CZ75B 9mm semi-automatic pistol and magazine from the bag. The magazine contained several 9 mm Luger rounds. There was no ammunition in the chamber but all that was required to make the pistol ready to fire was to rack the slide and cock the pistol. Further ammunition was visible within the bag.
8. The offender was arrested and taken back to the police station. A further search of the black bag was carried out which revealed about 50 rounds of ammunition being a mixture of 9 mm Luger and .22 calibre bullets.
9. Also located in the bag was a 'very small pistol' with three barrels. The pistol did not have any engraving or serial numbers and had a live .22 round in one of the barrels with the second barrel empty and the third barrel containing a spent .22 calibre empty casing. The pistol was ready to be fired.
10. Two mobile phones were located within the bag as well as a further mobile phone the offender had within his pocket.

Criminal Record

1. The offender was dealt with in the Children's Court for Damage Property by Fire and placed on probation in 2016. Within 2 years thereafter, he committed the offence of Drive Whilst Suspended and Larceny offences and was dealt with in the Local Court. Then followed entries for Offensive Language, Driving Disqualified (second or subsequent offence), Resist Police and Common Assault and Novice range prescribed concentration of alcohol (PCA). The criminal record is not a matter of aggravation, but does not afford the offender any particular leniency.

Conditional Liberty

1. On 3 February 2022, the offender was placed on two Community Corrections Orders for Drive Suspended (second or subsequent offence), and non-conviction Conditional Release Orders for Novice Range PCA and Common Assault.
2. He was therefore on conditional liberty at the time of the offending for which he is to be sentenced.
3. The commission of further offences whilst on conditional liberty is a statutory aggravating factor pursuant to section 21A(2)(j) Crimes (Sentencing Procedure) Act.

Sentencing Assessment Report

1. The offender told the report writer that he works part-time as a second year electrical apprentice. However, the offender's previous employer said he had not worked there for 2 months. When challenged, the offender said he does cash in hand work for family and friends.
2. The offender was said to have provided minimal insight into his offending, and that he committed the offences for financial gain. He told the report writer that 'he knew the risk and his only regret was getting caught'. He accepts the consequences of his decisions.
3. Corrective Services NSW (CSNSW) records indicate Mr Tabbaa has an Outlaw Motorcycle gang (OMCG) affiliation.
4. The offender did not offer insight into the impact of his offending on the community. He has a child to an ex-partner.
5. The offender feels frustrated by the impact of his offending given that a Firearm Prohibition Order has been imposed.
6. Mr Tabbaa is willing to undertake intervention and perform community service work. He was assessed as suitable for such work.
7. Third party verification checks contradicted the information he provided in interviews.

Plea in Mitigation

1. The offender did not give evidence.
2. Mr Vijay conceded what he described as 'the seriousness of the offending'.
3. In relation to the sentencing assessment report (SAR), the offender instructed Mr Vijay that he denied committing the offences for financial gain, and denied affiliation with an outlaw motorcycle gang.
4. The offender told Mr Vijay that he doesn't know Mr Harari very well and denied meeting up with him.

General Remarks

1. In R v Lachlan [2015] NSWCCA; (2015) 252 A Crim R 277 178 Gleeson JA (Johnson & Garling JJ agreeing) said at [68]: "Subsequent cases have emphasised that the possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. Accordingly sentences imposed for such offences must "operate as real disincentives to those otherwise attracted to the illegal possession of firearms": R v Mahmud [2010] NSWCCA 219 at [71] (R S Hulme J; Giles JA and Latham J agreeing). See also R v Howard [2004] NSWCCA 348 at [66] (Spigelman CJ; Grove J and Smart AJ agreeing); Dionys v The Queen at [47]-[48] (Hoeben J; McClellan CJ at CL and Adams J agreeing)."
2. In Laspina v R [2016] NSWCCA 181 at [6], Rothman J. said in relation to firearm offences: "[6] Nevertheless, for far too long courts have dealt with firearm offences in a way which has had regard to whether the firearms were intended to be used in a criminal offence of another kind. In so doing, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession, but particularly when those firearms are possessed for the purpose of sale to other persons who, for obvious reasons, will not be in possession of them legally."
3. In R v Campbell; R v Smith [2019] NSWCCA 1 at [9] - [10], Rothman J. said in relation to firearms: "[9] The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons generally, by which I include knives, has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society. [10] It must be accepted that the kernel of the criminal conduct involved in possession of firearm offences is the possession of the firearm. Where, as here, the firearm is real and not a replica firearm; is in working order; is a modern firearm and not an antique or collectors' piece; is possessed at the same time as the offender possesses ammunition; and is possessed in the context of the involvement of the offender in a criminal organisation and/or other criminal conduct, it is difficult to imagine any more serious circumstances."
4. In note in relation to the sentencing of Mr Tabbaa, both pistols were real, in working order, apparently modern, and possessed at the same time as the offender possessed ammunition.
5. The .22 calibre pistol (revolver) was actually loaded with a live round in one chamber and a spent round in another. The 9mm semi-automatic pistol was loaded as it had an attached magazine containing live rounds: see Section 93G(2)(a) Crimes Act 1900 (NSW) re Possess Loaded Firearm in a public place.
6. The offender exercised his right to silence and has not proffered any reason as to why he was in possession of 2 loaded pistols in a public place, or why he possessed those pistols without authorisation, or why he had ample ammunition for the pistols with him at the time of his arrest.
7. The pistols were easily concealed and easily retrievable, kept by the offender in a satchel that he carried by strap over his shoulder. Police were able to see the 9mm pistol upon opening the main pocket of the satchel.
8. The principles and objects of the Firearms Act 1996 (NSW) set out in section 3 are important considerations in this sentencing exercise. They include the overriding need to ensure public safety, strict controls on possession and use of firearms, and the safe and responsible storage and use of firearms. Section 3 Principles and Objects of the Act (1) The underlying principles of this Act are-- (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety-- (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows-- (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
9. Mr Vijay referred to the decision of Chandab v R [2021] NSWCCA 186. That decision does not at all support Mr Vijay's assertion that the sentence for sequence 1 might not exceed 2 years.
10. The offender in that case was charged with Possess Prohibited Pistol contrary to section 7(1) Firearms Act. A charge of Possess Defaced Firearm contrary to section 66(1)(b) Firearms Act was placed on a Form 1 - with it having a maximum penalty of 14 years. The offender was also charged with commercial drug supply of cocaine. He pleaded guilty to the offending on the first day of trial in the District Court. The firearm was loaded. He was allowed a discount of 10% for the delayed plea: at [37]. The Judge found that the offender's possession was 'not for some innocent purpose': at [54]. The pistol was not associated (as a tool of trade) with the commercial drug supply (based upon a concession by the Crown and despite objective evidence): at [55]. The offender was on a Firearms Protection Order. There was no relation between the offender's possession of the pistol and his association with a criminal gang: at [56].
11. The appeal against the finding of the Judge at first instance of objective seriousness being above the mid-range was unsuccessful.
12. The offender was sentenced in relation to the firearms matter, taking into account the matter on the Form 1 to a head sentence of 6 years with a non-parole period (NPP) of 4 years. The appeal on the basis of it being manifestly excessive was also dismissed.
13. There can be no doubt that the head sentence in the District Court was increased by taking into account the Form 1 matter. The starting point for that sentence was 6 years 8 months, with the utilitarian discount applied of 10% bringing it down to 6 years.
14. In Mr Tabbaa's case, I do not find that the reference in the SAR to CSNSW notes indicating the offender is affiliated with an outlaw motorcycle gang as relevant to objective seriousness of sequence 1. There is no evidence of connection between the noted affiliation and the offender's possession of the firearm in relation to any of the possess pistol/firearm counts.
15. Mr Tabbaa was not on a Firearm Protection Order. His record was not as extensive as that of Chandab. In consideration of sequence 1, Mr Tabbaa's matter is similar to that Chandab to the extent that he possessed a loaded pistol which was concealed, the possession being in a public place, with no link found between that possession and membership of a criminal gang (Chandab) or notes of affiliation with an OMCG (Tabbaa). The pistols possessed by Mr Tabbaa were easily accessible to him in a satchel bag worn over his shoulder, whereas Chandab's was concealed in a secret compartment in a car.
16. The factors relating generally to the seriousness of this type of offending have already been identified above.
17. The objective seriousness of each of the possess unauthorised pistol matters is in the mid-range. I do not have to determine a precise sentence for sequence 1 at this point in time, as I am only dealing with the appropriateness of dealing with the Form 1 in the manner asked.
18. I find that on the information currently before the Court, the likely range of sentencing will comfortably exceed the jurisdictional limit. There can be no doubt that the threshold referred to in section 5 Crimes (Sentencing Procedure) Act has been crossed.
19. I will in due course refine that range to a specific figure when it is appropriate to do so by making specific findings in relation to aggravating and mitigating factors, purposes of sentencing, and other considerations etc.
20. I have read all of the comparative decisions referred to in Chandab, and in Raniga v R [2016] NSWCCA 36, as well as the commentary on the difficulties in attempting to compare such cases.
21. I reject the assertion that the sentence for sequence 1 'might not exceed 2 years'. Such an assertion is aspirational and without foundation.

Determination as to whether to deal with matters on Form 1

Relevant Case Law

1. 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, Spigelman CJ. said at [42] and [50]: "[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. (Emphasis added.) … [50] As long as the most serious offences or, in the case of similar offences, an appropriate range of offences, are included on the indictment, there is no objection to the inclusion of some offences on a Form 1. It would normally be inappropriate to include more serious offences on a Form 1, where the maximum sentence available for the offence on an indictment would be insufficient to allow for the total criminality revealed by the whole course of the offender's conduct to be appropriately reflected in the sentence."
2. In El-Youseff v R [2010] NSWCCA 4 Howie J. (Tobias JA, Hidden J. agreeing) at [15] said: "[15] It should be noted that this is another case where a serious matter was inappropriately placed onto a Form 1 with the result that the judge could not impose a sentence to reflect the seriousness of that offence: see Eedens v R [2009] NSWCCA 254. This Court has been critical of this practice and has reminded judges of their power to reject a Form 1 which contains inappropriate matters: CP v R [2009] NSWCCA 291. Obviously the offence in the fourth count was the most serious matter for which the applicant was before the court. However, the next most serious offence was clearly the robbery on 7 October where the applicant was armed with a rifle. This offence, although contained on a Form 1, was substantially more serious than each of the first three offences on the indictment, which were in effect snatching money from a till."
3. Consequently, when considering an appropriate sentence for sequence 1, Possess Prohibited Pistol without regard the Form 1 matters, noting the maximum penalty to be 14 years, and allowing a 15% discount for the delayed guilty plea, and the principles enunciated in Greaves (supra) and Park v The Queen (supra), I am in no doubt that the jurisdictional limit must be applied because the appropriate sentence exceeds that limit.
4. In those circumstances, the matters currently on the Form 1 are incapable of having any impact at all on the sentence to be imposed for sequence 1, ie., the Form 1 matters are incapable of increasing the sentencing for the matter to which they are proposed to be attached: see Attorney General's Application (supra) at [42].
5. The other relevant aspect referred to in the Attorney General's Application concerning Form 1 matters (supra) is the community's entitlement to extract retribution for serious offences for which no punishment has in fact been imposed. There can be no element of retribution in relation to the Possess Loaded Firearm in Public Place offences if they are allowed to be dealt with on a Form 1.
6. The same reasons can be applied with regard to the Not Keep Firearm Safely matters. However, given the significantly lower maximum penalties, the overlapping factual matrix between all offences, and the need to consider the principle of totality, I find that those two offences are appropriate to be taken into account on a Form 1.
7. At [57] in the Attorney General's Application regarding Form 1 offences, Spigelman CJ. said: "[57] Further, there is a balance to be struck between the number and gravity of charges on an indictment and the number and gravity of charges on a Form 1. A sentencing judge will find it difficult to undertake the statutory task if the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of criminal conduct revealed by the indictment and the Form 1." (Emphasis added.)
8. In C-P v R [2009] NSWCCA 291; (2009) 213 A Crim R 26 at [8] - [9], McClellan CJ at CL. said: "[8] In as much as it is the prosecutor's task to file the Form 1 it is important to emphasise that s 33(2) contemplates that the court must supervise the use of the Form 1 procedure. The court may take the further offence into account when the court considers it appropriate to do so. Although a court should recognise the many considerations which may inform a prosecutor's decision to include matters on a Form 1, when an entirely inappropriate arrangement is proffered and because of it a court would be denied the opportunity to impose a proper sentence, the discretion provided by s 33(2)(b) should be invoked and the court should decline to accept the Form 1. (Emphasis added.) … [9] In the present case the inclusion of both an armed robbery offence and the concealing robbery offence on a Form 1 was in my view inappropriate. The number of offences and the serious nature of the armed robbery offences meant that the sentence imposed may not adequately reflect the seriousness of the totality of the appellant's conduct. Sentencing judges should be careful to ensure that they exercise the supervisory role accorded to them by s 33(2)(b)." (Emphasis added.)
9. The inclusion of the Possess Loaded Firearm matters on a Form 1 renders nugatory the intended purpose of the use of Form 1 in sentencing. The Local Court has no ability to adequately reflect the seriousness of the totality of the offender's conduct in circumstances where the Form 1 offences can have no impact at all on the sentence to be imposed on the substantive offence.
10. I am not satisfied pursuant to section 33(2)(b) of the Crimes (Sentencing Procedure) Act that in all of the circumstances, it is appropriate to deal with the Form 1 as it presently stands. I refuse to deal with the Form 1.

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: 13 June 2023