R v Abdul-Karim

The Facts

1. The facts are agreed and they are as follows. On 26 April 2018 at about 11pm, police in a marked vehicle observed another vehicle travelling east on the Great Western Highway at Springwood. The police followed the vehicle and stopped it. An Erin Hanley was driving and this offender was seated in the front passenger seat. The police located a blue carry-bag under the front passenger seat. It contained a silver pistol and a wad of $50 notes totalling $3,400. Underneath the notes was a red wallet containing documents belonging to this offender, $3,350 and a passport in the offender's name.
2. A .32 calibre bullet was located under the front passenger seat, but perhaps more significantly there were four rounds found in the magazine of the pistol. The offender was arrested and charged and made no comment in relation to the matter.
3. The pistol was subsequently examined by a ballistics officer. It was identified to be a .32 automatic Frommer Stop self-loading pistol with the particular serial number set out in the facts, with a detachable box magazine, which had the capacity to hold eight .32 automatic calibre cartridges. The pistol was test-fired. The extractor was found to be worn, causing an intermittent extracting issue, occasionally jamming the action. The detachable box magazine also showed wear, with the follower causing sporadic feeding issues. It was deemed to be a prohibited pistol. There was no record of the pistol being registered, and the offender, it goes without saying, was not authorised to possess or use any firearms.
4. The pistol and red wallet were forensically examined and a trace swab was taken from the trigger and trigger guard of the pistol and DNA evidence linked the offender to those items, and the results of that DNA evidence is set out in the facts but I do not see the need to read it onto the record. The offender's fingerprint was also located on the rear side of a business card recovered from the red wallet.
5. A demand under the Law Enforcement (Powers and Responsibilities) Act was made on the offender for the driver's name and he said he did not know who it was.

Assessment of Objective Seriousness

1. I turn then to my assessment of the objective seriousness of the offences. The pistol was possessed in a vehicle which was being driven at night on a public street. In relation to the firearm offence there was a detachable magazine box, which had the capacity to hold eight cartridges and within the magazine there were four rounds. A single bullet was located near where the pistol was found. The pistol was capable of being fired, although it occasionally jammed.
2. The agreed facts do not suggest the offender's purpose in possessing the pistol. The offender in the sentencing assessment report is reported as saying, "His offending was partially to blame on attempting to set up his drug dealer and not thinking about the consequences of his actions." It is not clear to me what the offender meant by that. He is also recorded in the sentencing assessment report as having an intention to use the pistol as payment to support his drug addiction. In any event, I cannot find beyond reasonable doubt that the offender intended to use the pistol himself.
3. Given the loaded pistol was found in a motor vehicle in a public place and was capable of being discharged, I consider the objective seriousness of the offence to be in the lower part of the mid-range of objective seriousness.
4. In term of the proceeds of crime offence, the amount of cash is relatively modest and there is no evidence as to its source. I assess the objective seriousness of that offence as being towards the lower end of the scale of objective seriousness.
5. In arriving at my conclusions as to the objective seriousness of the offences, I have had regard to my assessment of the relevance of his mental health conditions, which I will discuss later in these remarks.

The Offender's Subjective Case

1. Turning then to the offender's subjective case: his date of birth is 24 April 1997, so he is currently 22 years of age and was 21 as at the date of the offences. He is still a relatively young male adult offender and the principles applicable to the sentencing of a young adult offender have some application here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution; see the summary of relevant principles in Bullock v R [2016] NSWCCA 131.
2. In terms of his criminal history, he has a number of significant offences on his record. As a juvenile he received a control order for an offence of armed robbery. In February 2016 in the Local Court he received a sentence of imprisonment for an offence of entering a building with intent to commit an indictable offence. In this Court on 18 April 2016 he received for an offence of armed robbery a sentence of four years and six months, with a non-parole period of two years and three months dating from 4 October 2015, expiring on 3 April this year. The current offences were therefore committed while on parole for that offence.
3. Clearly his criminal history disentitles him to leniency in this sentence, but I do not consider it as an aggravating factor in the Veen No 2 or McNaughton sense. The fact the current offences were committed while on parole for an armed robbery offence is an aggravating factor when imposing sentence.
4. In terms of his custodial history, the offender went into custody on 26 April 2018. On 16 May 2018 his parole for the armed robbery offence I referred to earlier was revoked by the State Parole Authority. He has been serving the balance of parole for that offence from 26 April 2018, which will expire on 3 April 2020. I will return to this issue when considering the appropriate date upon which to commence the sentence.
5. There is a sentencing assessment report before me. There is also a report by Mr Bradley Jones, a forensic psychologist, dated 15 April 2016 prepared in relation to earlier sentencing proceedings.
6. In terms of his family background, the sentencing assessment report records that he is currently single and upon his release from custody he intends to reside with his parents, who have confirmed that that is so. Further details concerning the offender's family background are contained in the psychologist's report.
7. The offender was born in Iraq and came to Australia when six years of age. He told the psychologist that he had a positive relationship with his mother throughout his childhood. He informed the psychologist that his relationship with his mother deteriorated because of his poor lifestyle choices and his substance abuse. In terms of the relationship with his father, he told the psychologist back in 2016 that he had a "conflictual relationship with his father", again citing his substance abuse as a significant factor in that regard.
8. The offender told the psychologist that in 2013 he and his brother and mother travelled to Iraq to visit family. That visit was to have been only for a number of weeks but they remained in Iraq for 14 months, returning in 2014. According to what the offender told the psychologist, while in Iraq he was exposed to war and bombing as part of the ISIS war and conflict within Iraq.
9. In terms of his education, the psychologist records in his report that the offender attended six educational facilities between Kindergarten and Year 8. He reported being expelled on three occasions and that he had learning difficulties. He did not return to school after his third expulsion.
10. The sentencing assessment report records that the offender, prior to his incarceration, held irregular employment as a casual labourer in the construction industry and hopes to engage in similar employment upon his release from custody.
11. In terms of his illicit substance use, he told the psychologist in 2016 that he commenced alcohol consumption when he was 17. He reported commencing cannabis use when he was 14 and he did so as a calming mechanism and to regulate his behaviour. The offender told the author of the sentencing assessment report that at the time of the commission of the offences he was drug-dependent and associating with negative peers.
12. The sentencing assessment report records that the offender has unaddressed diagnoses of attention deficit hyperactivity disorder, post‑traumatic stress disorder, adjustment disorder with anxiety and depressed mood and amphetamine-type substance use disorder and that those conditions "remain a factor to his offending".
13. The history of his mental health is more fully discussed in the 2016 psychological report. He reported to the psychologist that he had been "unable to learn with constant chatter in his head" and that he had been easily distracted. The offender also reported to the psychologist a significant exposure to trauma when living in Iraq in 2013 and 2014. He reported being exposed to two separate bombing incidents, the details of which are contained in the report. The psychologist considered in 2016 that the offender was suffering from the following disorders: attention deficit hyperactivity disorder, post-traumatic stress disorder, adjustment disorder with anxiety and depressed mood, amphetamine-type substance use disorder, severe anxiety in early remission in a controlled environment.
14. In terms of his response to supervision in the past, the sentencing assessment report records that his response to supervision in the past was deemed unsatisfactory.
15. In terms of his attitude to the offences, he is recorded in the sentencing assessment report as placing blame for his current incarceration on the driver of the vehicle. He is also recorded as stating that his offending was partially to blame on attempting to "set up his drug dealer".
16. In the sentencing assessment report it is recorded that the offender "displayed some resistance as to how his offending behaviour impacts the community". The sentencing assessment report also observes that the offender "struggled to comprehend the risk and impact unregistered loaded firearms pose on the community, however did indicate the possibility of causing harm or death should they have been in the wrong hands".
17. The sentencing assessment report records the offender as having a medium to high risk of re-offending.
18. An issue raised in the sentencing proceedings is the relevance of the offender's mental health conditions to the sentence I impose. In this State if there is a causal connection between a person's mental health condition and the commission of an offence, that is a relevant consideration in determining objective seriousness of an offence; see Lawson v R [2018] NSWCCA 215 at [35].
19. The principles in relation to the relevance of a person's mental health to sentencing are well-known. They were helpfully summarised in DPP v De La Rosa. Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is to be served may be reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an antisocial personality disorder there may be a particular need to give consideration to the protection of the public.
20. On the evidence before me here, I am not satisfied on the balance of probabilities that the offender's mental health conditions contributed to the commission of the offences in a material way. I do not consider the four year old psychological report and the sentencing assessment report provide a basis for such a finding. I am satisfied that the offender's mental health to a small degree reduces the weight to be given to general deterrence when formulating sentence. I am also satisfied that the fact he suffers from mental health conditions will mean that his time in custody is likely to be more arduous than it is for offenders who do not suffer those conditions.
21. The fact that the offence was committed in the midst of a drug addiction is not normally a mitigating factor when sentencing. Some mitigation of a sentence can occur when a person turns to illicit drugs at a young age due to trauma they have experienced and where the offender has not had many opportunities to engage in rehabilitation. I consider those principles have some application here. Imposition of sentence
22. There was considerable debate before me as to the appropriate level of discount the offender should receive for the utilitarian value of his plea of guilty to the offences. The pleas were entered on 29 November 2019 when the trial date was 2 December 2019. The Crown submitted that a 10% discount was appropriate for the utilitarian value of the plea. It was submitted on behalf of the offender upon him becoming aware of the DNA and fingerprint evidence contained in the Crown brief the pleas of guilty were entered. There was some debate as to when the solicitors acting for the offender were advised of that evidence, although none of the correspondence was placed before me.
23. The fact remains that the offender pleaded guilty shortly before his trial date. Certainly on the assumption that the agreed facts represent the state of the evidence in the Crown brief, the Crown's case could not be said to be weak absent the DNA and fingerprint evidence, although I note that the strength of the Crown case is not relevant to an assessment of the utilitarian value of the plea. In these circumstances, I propose to allow the offender a 15% discount of his sentence for the utilitarian value of his plea of guilty.
24. Having regard to the contents of the sentencing assessment report, I consider that the only evidence of genuine remorse is that represented by the plea of guilty. Given his criminal history, the fact that the offences were committed while on parole and his response to supervision in the past, the offender's prospects of rehabilitation are no better than guarded. Much will depend upon his ability to deal with his drug addiction when he is next in the community. I note in that regard he appears to have some family support.
25. Given his age, his drug issues and his mental health issues, I consider that it is appropriate to make a finding of special circumstances. His prospects of rehabilitation will be assisted if he has a longer period on parole.
26. I have had some regard to the fact that I am sentencing the offender during a period of time when the world is suffering the COVID-19 pandemic. I consider the offender would have a heightened level of anxiety about being sentenced when the pandemic is raging. I have had regard to that fact as one of the general mix of factors I should have regard to in arriving at the sentence.
27. I noted earlier that he has been in custody since 26 April 2018 and since that time has been serving the balance of parole. As I understand it, it is the commission of the offences I am to sentence him for which led to the revocation of parole. He had only been on parole for a little under four months when he committed the current offences. I have a discretion to backdate the sentence to some point after the date of the revocation of parole in circumstances such as these; see Callaghan v R [2006] 160 A Crim R 145.
28. In the current circumstances I propose to commence the sentence from 26 December 2018.
29. There are two offences which appear to represent discrete criminality so in my opinion there should be some partial accumulation of the sentences.
30. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.
31. General and personal deterrence must always be given considerable weight when sentencing for offences of possessing unauthorised loaded pistols which are capable of being fired. That is because it is well-recognised that the possession of such firearms in public places presents a danger to community safety. An important public purpose behind the Firearms Act is to enhance public safety by closely regulating the possession of firearms, which are inherently dangerous.
32. The maximum penalty and, in relation to the possess pistol offence, the standard non-parole period, have been taken into account as legislative guideposts. It will be seen that I have departed from the standard non-parole period due to my assessment of the level of objective seriousness and my finding of special circumstances.
33. I will not require the offender to stand as he is appearing via video link.
34. The offender is convicted of the two offences to which he has pleaded guilty. On the proceeds of crime offence there is a sentence of six months imprisonment commencing on 26 December 2018, it expired on 25 June 2019. On the possess pistol offence there is a sentence consisting of a non-parole period of two years imprisonment and a balance of term of 12 months imprisonment. That is a total sentence of three years imprisonment. The sentence commences on 26 January 2019 and expires on 25 January 2022. The non-parole period expires on 25 January 2021.
35. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period, which is 25 January 2021. Whether you are in fact released to parole on that day is a matter for the State Parole Authority, which no doubt will take account of your behaviour in prison in determining whether you are released then or on another date.
36. In relation to the offence on the section 166 certificate, I simply record a conviction under s 10A of the Crimes (Sentencing Procedure) Act. There is no further penalty.
37. The firearm and ammunition are to be forfeited or destroyed, if they have not already done so.

Amendments 30 July 2020 - Case name amended to only reflect offender's last name. 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: 30 July 2020