R v Ahmad (No 2)

Cases Cited: R v Ahmad (No 1) [2024] NSWDC 676
R v Amurao [2005] NSWCCA 32
R v AZ [2011] NSWCCA 43
Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
R v Campbell; R v Smith [2019] NSWCCA 1
Chandab v R [2021] NSWCCA 186
Dawson (a pseudonym) v R [2021] NSWCCA 33
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Fernando (1992) 76 A Crim R 58
Grills v R [2016] NSWCCA 46
Jackson v R [2010] NSWCCA 162
Leffley v R [2016] NSWCCA 243
Luu v R [2008] NSWCCA 285
R v Mehcur [2002] NSWCCA 56
R v Smith [2016] NSWCCA 75
SY v R [2020] NSWCCA 320

Category: Sentence

Parties: Rex (Crown)
Mohammad Ibrahim Ahmad (Offender)

Representation: Counsel:
B Ng (Crown)
B Eurell (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Just Defence Lawyers (Offender)

File Number(s): 2022/00391590

Publication restriction: N/A

JUDGMENT

1. Mohammad Ibrahim Ahmad, also known as Jordan Issa, stood trial before me in a judge-alone trial from 25 November 2024 to 3 December 2024. I delivered my verdict judgment on 13 December 2024 returning a finding of Guilty on all 6 counts on the Indictment. The offender now appears for sentence in respect of those 6 substantive offences.

2. Count 1 relates to possession of not less than a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 20 years imprisonment with a standard non-parole period of 10 years and/or 3,500 penalty units.

3. Counts 2, 3 and 4 each relate to possession of .22 calibre long-rifle cartridges which were located in three different areas of a motor vehicle. Each of these counts charges an offence contrary to s 74(3) of the Firearms Act 1996, namely possession of ammunition in contravention of a Firearms Prohibition Order that was in force. The maximum penalty for this offence is 5 years. There is no standard non-parole period.

4. Count 5 relates to possession of a prohibited weapon, namely a .22 calibre long-rifle firearm magazine, which was also located in the vehicle. This offence is a contravention of s 34(1) of the Weapons Prohibition Act 1998 in circumstances where the offender was subject to a Weapons Prohibition Order. The maximum penalty for this offence is 10 years imprisonment. There is no standard non-parole period.

5. Count 6 relates to possession of a prohibited firearm, namely a .22 calibre GEVARM E-1 self-loading rifle, without being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act 1996. The maximum penalty for this offence is 14 years with a standard non-parole period of 4 years.

6. There are three further offences which have been placed on a Form 1 to be taken into account in relation to Count 1.

7. Sequences 3, 4, and 9 on the Form 1 relate to possession of prohibited drugs contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985. Sequences 3 and 9 relate to methylamphetamine, and sequence 4 relates to cannabis leaf. The penalty for these summary offences if prosecuted separately in the Local Court is 2 years and/or 20 penalty units.

8. The last offence is Sequence 6 which relates to hindering or resisting police in the execution of their duty contrary to s 60(1AA) of the Crimes Act 1900. This matter is before the court pursuant to s 166 of the Criminal Procedure Act 1986 as a related offence. The maximum penalty for this offence if prosecuted separately and in the Local Court is 12 months and/or 20 penalty units. After the trial with respect to the substantive indictable matters, the defendant pleaded Guilty to Sequence 6.

FACTUAL BACKGROUND

9. The evidentiary background is set out in detail in my verdict judgment R v Ahmad (No 1) [2024] NSWDC 676 of 13 December 2024. However, the relevant facts for sentence are as follows.

10. On 28 December 2022 the offender and his partner, Michelle Earsman, were observed by police at Concord in a black VW Amarok. The offender was driving and Ms Earsman was in the front passenger seat.

11. The vehicle was observed parking outside a block of units at 33 Churchill Crescent, Concord. Ms Earsman got out of the vehicle, had a 20-second conversation with the offender through the passenger window, and walked to the front entrance of 33 Churchill Crescent. The Amarok then drove away, followed by Detective Senior Constable Davidson in an unmarked police car.

12. The Amarok parked outside 51 Patterson Street, Concord and the offender left the vehicle. Detective Davidson’s unmarked vehicle continued along Patterson Street before effecting a U-turn further down the road. As he came back along Patterson Street in the opposite direction, Detective Davidson could not immediately see the offender.

13. Moments later, a separate police unit identified the offender walking along Patterson Street in a direction away from the VW Amarok. Detective Davidson’s vehicle continued along Patterson Street and did another U-turn before pulling up alongside the kerb having caught up with and just overtaken the offender who was still walking on the footpath in Patterson Street. Detective Davidson got out of the vehicle and placed the offender under arrest.

14. During the course of that arrest, the offender smashed his mobile phone against a brick wall in an attempt to destroy it. He also resisted arrest and had to be physically restrained by a number of police before being handcuffed. This conduct represents Sequence 6 to which he has now pleaded Guilty.

15. The keys to the VW Amarok were not located on the offender’s person. The keys, together with a $2 coin and a clear resealable bag containing white crystals, were subsequently located on the grass next to the footpath between where the offender had exited the vehicle and where he was arrested. The white crystals were subsequently ascertained to be methylamphetamine and resulted in the original Sequence 3 which has been placed on the Form 1 which attaches to Count 1, being possession of 0.34 grams of methylamphetamine.

16. A search of the Amarok was then undertaken by police. During the search the following items were located:

17. 363.8 grams of methylamphetamine in a glass container located in the passenger’s door recess (Count 1)

18. 35 x .22 calibre long-rifle cartridges contained in a sock located in the driver’s side door recess (Count 2)

19. A .22 calibre long-rifle firearm magazine located in the same driver’s side door recess (Count 5), containing 8 x .22 calibre long-rifle cartridges (Count 3)

20. 3 x .22 calibre long-rifle cartridges contained in a plastic zip-seal bag inside a plastic case in the rear of the vehicle (Count 4)

21. 8.5 grams of cannabis leaf inside the same plastic case (Sequence 4 on the Form 1 attached to Count 1)

22. A .22 calibre GEVARM E-1 self-loading rifle located in a black RM Williams bag (Count 6)

23. 1.4 grams of methylamphetamine in a glass container located in the tray of the vehicle (Sequence 9 on the Form 1 attached to Count 1)

24. The offender was subsequently charged with the various offences.

25. The offender pleaded Not Guilty to these offences and maintained at trial that the items belonged to Ms Earsman, not him. As already indicated, I ultimately found Mr Ahmad Guilty in respect of all 6 counts on the indictment.

OBJECTIVE SERIOUSNESS

19. In relation to Count 1, Mr Ng on behalf of the Crown submitted that the offending was below the mid-range, but noted that the Form 1 offences ought to have some, but not a significant, upward impact on any sentence for that Count.

20. I note that under Schedule 1 of the Drug Misuse and Trafficking Act 1985, a commercial quantity of methylamphetamine is 0.25kg or 250 grams. A large commercial quantity is 0.5kg or 500 grams. The quantity in the present matter, being 363.8 grams, falls just below the mid-point between those quantitative thresholds.

21. I also note, as submitted by Mr Eurell of counsel on behalf of the offender, that there was no evidence of actual supply by the offender at trial, notwithstanding that possession of more than a trafficable quantity is a deemed supply under s 29 of the Drug Misuse and Trafficking Act 1985*.*

22. Whilst I am cognisant of the semantic variability in ascribing a notional location on a broad scale of objective seriousness, such notional placement being, to a considerable extent, the product of a subjective assessment, I am prepared to accept the submission on behalf of the Crown that the offending falls under the mid-range of objective seriousness – albeit to some small degree.

23. In relation to Count 6, the rifle located in the black RM Williams bag, Mr Eurell submitted that the nature of the prohibited firearm placed it at the lower end of objective seriousness, due firstly to its having an inoperable trigger and therefore requiring steps to be taken before it could be discharged, and secondly as a result of it being a single-load-action firearm requiring cartridges to be manually loaded into the chamber before each shot, as opposed to a repeating-action firearm which is capable of repeated discharge without being reloaded.

24. The evidence established that the barrel of the weapon had been shortened and the normal rifle butt had been removed and replaced with a pistol-grip handle. While the trigger mechanism was inoperable, the weapon was still capable of functioning as a “slam-fire”. This would enable it to be discharged with the manual insertion of a cartridge.

25. The Crown submitted that the offending was above the mid-range of objective seriousness, noting that the weapon was an actual weapon rather than a replica, that it was accompanied by compatible ammunition and therefore capable of being fired if properly loaded, and that it was in a public place.

26. The Defence submitted that the offending was below mid-range, noting that the weapon was unloaded, that it was not pointed at anyone or used as a threat, that it was not brandished in public or readily available for use in the centre console or door-well of the car, but was instead in the back of the vehicle concealed in a bag, and that the trigger was not operable.

27. In my view the objective seriousness falls well within an identifiable mid-range.

28. It was conceded by Mr Eurell that Counts 1 and 6 each crossed the threshold under s 5(1) of the Crimes (Sentencing Procedure) Act 1999. It was submitted that Counts 3, 4 and 5, being possession of the .22 calibre long-rifle cartridges in different parts of the vehicle, did not cross the s 5 threshold and were effectively only preferred as separate charges to make alternative verdicts with respect to possession available to the Court as to the ammunition found in each of the different locations in the vehicle. Mr Eurell further submitted, and the Crown conceded, that there should be a degree of concurrency in the sentences for Counts 3, 4, and 5.

29. While the presence of compatible ammunition is an aggravating factor in relation to the possession of the firearm, viewed separately, these three counts each fall to the lower end of objective seriousness.

30. Mr Eurell submitted that the overall offending was mitigated by its brevity of a single day and it being a single course of related conduct, thereby requiring a degree of concurrency.

31. While the possession of the various items relates to their possession at the time of his apprehension on the specific day, as would be clear from my verdict judgment, the offender was in possession of the shortened firearm at an earlier point in time and had taken photographs of it in an apparent endeavour to persuade someone with respect to a prospective transaction relating to drug supply. I bear in mind the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 and remind myself that the offender is not to be sentenced for more serious or uncharged conduct than that which is the subject of these proceedings.

SUBJECTIVE CIRCUMSTANCES

32. The offender gave evidence at the sentence proceedings. Further evidence with respect to his subjective circumstances was provided through a report by Sam Borenstein, clinical psychologist, dated 31 January 2025; an affidavit by Courtney Walker, solicitor, dated 28 April 2025; an affidavit by Taman Ahmad, the offender’s mother, dated 30 April 2025; a letter of apology by the offender dated 30 April 2025; and letters in support by each of his two children, both dated 30 April 2025.

33. In consultations with Mr Borenstein, the offender described growing up in Cabramatta and following the footsteps of his older brother into a life of crime. He outlined a childhood of deprivation characterised by financial disadvantage, domestic violence perpetrated by his father, whom he now has not spoken to in 10 years, and a prevalence of schizophrenia amongst his siblings including the aforementioned older brother and a sister who “has the mind of a 9-year-old.” This was corroborated by the offender’s mother in her affidavit. She went on to say that she acts as a carer for one of her daughters with particularly difficult mental health issues and that when the offender has been at home, he assists his mother in caring for that daughter.

34. I note in passing that the Crown has conceded the relevance of Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 factors in relation to the subjective case.

35. Mr Ahmad further described childhood health issues due to liver problems from the ages of 8-12. He left school at age 13 and began working in a warehouse storing hair and beauty products. This warehouse work has resulted in chronic back pain throughout his life, described as a consequence of three ruptured disks. This is corroborated by a report from Maitland Radiology annexed to Ms Walker’s affidavit. The offender also described symptoms of Post-Traumatic Stress Disorder as a result of these early childhood experiences.

36. Mr Ahmad married in 2009. As a result of that marriage, he has two children, a daughter and son now in their mid-teens. Mr Ahmad reported a strong desire to continue being involved in his children’s lives and described his ex-partner as supportive. In her affidavit his mother also described the offender as maintaining a close relationship with his children.

37. In 2016 he purchased a hair salon while continuing to run the warehouse. He reported that shortly after purchasing the salon, he began using cocaine to maintain energy while working 7 days per week. After six months, he “switched to ‘ice’ because it was cheaper, and the cocaine wasn’t working. The ‘ice’ helped [him] stay at work and be productive”. He described that he “got into real problems when he started taking ‘ice’”.

38. In 2017 the offender was the victim of an assault and robbery at his hair salon, during which his eye socket was reportedly fractured. This experience and his ongoing use of methylamphetamine appeared to exacerbate his PTSD. He effectively ceased work and “everything went downhill”. His marriage ended and he described being evicted.

39. He attempted to work in kitchen and bathroom renovations but was unsuccessful and has been unemployed since 2017. As I will detail later in these Remarks, he has been in almost continuous custody since April 2017.

40. Mr Ahmad also reported that he suffered from a gambling disorder or addiction during the period of his ‘ice’ or methylamphetamine addiction. He referred to his partner Michelle Earsman whom he had been with for four years, presumably from 2019 up to Ms Earsmen’s death in January 2023 by apparent suicide by intentional overdose and possibly slashing her wrists. The Agreed Facts, together with the Death Certificate which was tendered, indicate that her death occurred at sometime between 1 and 4 January 2023. The cause of death in the Death Certificate is noted as a preliminary finding which is held with the Assistant Coroner at Lidcombe.

41. Mr Ahmad reported that Ms Earsman was also an ‘ice’ and heroin user. He reported that her death, which occurred only a week after Mr Ahmad went into custody for the present matters, had a significant impact on him, stating “I got really depressed, I went on heroin for a while in prison.”

42. While in custody, Mr Ahmad has been placed on the Buvidal injection program to assist with opioid withdrawal. He reports that it has assisted him in resisting the urge to return to abusing substances, and that it has strengthened his resolve to ensure he does not relapse. He has also undertaken a variety of EQUIPS courses in Addiction, Aggression and Foundation courses, in total for some 10 weeks.

43. Mr Ahmad also reported seeing John Jacmon, psychologist, in 2017, but this ceased after two sessions, said to be due to the practitioner’s passing. He reported that Mr Jacmon had diagnosed him with Post-Traumatic Stress Disorder and prepared a report to assist Mr Ahmad on sentence for a previous matter. No such copy of any report was tendered in these sentence proceedings. As a result, the Crown submitted that the evidence should be approached with some circumspection.

44. Mr Borenstein administered the Personality Assessment Screener (‘PAS’) test which measures potential problem areas in mental health. Mr Ahmad’s score of 36 indicates “marked potential for emotional and/or behavioural problems of clinical significance.” Mr Borenstein also administered the Post-Traumatic Stress Disorder test (‘PCL’), the results of which confirmed symptoms of PTSD when the offender was reminded of the assault which he described having occurred in 2017.

45. In Mr Borenstein’s opinion, Mr Ahmad was suffering from PTSD and substance use disorder at the time of his offending. In Mr Borenstein’s report it is clear that this opinion was based, in part, on the asserted diagnosis of Mr John Jacmon, psychologist who the offender reported had diagnosed him with PTSD as early as 2016 or 2017. Leaving to one side Mr Borenstein’s recorded history describing the assault and robbery at the hair salon having occurred in 2018 (which cannot be correct as the offender was incarcerated throughout that calendar year), Mr Borenstein appears to place the diagnosis at a time before the alleged assault.

46. In his apology letter to the Court, Mr Ahmad described his substance abuse issues as having had a “domino effect.” He expressed that if he had been sober and utilised appropriate support, he would not have “been in the wrong place at the wrong time and ended up before the Court.” He went on to say that he feels a level of guilt over Ms Earsman’s death as, if he was sober, he would not have been in custody at the time and may have been able to stop her killing herself.

47. Mr Ahmad further noted that his time in custody has been difficult due to ongoing drug use and chronic back pain. He is medicated for both problems and expressed an intention to remain on Buvidal or “BUPE” injections upon his release from custody, and to engage with Odyssey House to prevent relapse. He recounted his childhood abuse and noted that he has come to understand how that affected him and his approach to dealing with stress or emotions. He expressed an intention to engage in community service and to reconnect with his children after his release.

48. In his letter of support, Mr Ahmad’s son reported a close relationship with his father. He expressed that he believed his father wanted to change and was trying to do so. He identified the difficulties in having an absent father, and implored the Court to have some leniency.

49. In his daughter’s letter, she reported that she has seen her father struggle and believes his stated intention to get better and be a good father. She similarly implored the Court to have some leniency.

50. The Court was provided with a Certificate of Acknowledgement for completion of the Alternative Sanctions Program in custody which consists of sessions addressing anti-social attitudes and poor self-control, addiction and stress management planning. It also requires attendance at Narcotics Anonymous meetings.

51. The Court has also been provided with a Sentencing Assessment Report prepared by Anthony Watson, Senior Community Corrections Officer on 21 February 2025. Mr Watson noted that Mr Ahmad had an escalating criminal history from 2008, to which I will refer again briefly later in these Remarks. Mr Watson also stated that while the offender admitted to possession of cannabis and methamphetamine, he denied culpability for the other offences and denied knowledge of the firearm and ammunition in the vehicle. He instead attributed those to the vehicle’s passenger, the now-deceased Ms Earsman. Mr Ahmad reportedly acknowledged that if he had not lapsed into drug use, he would not have been “there that day and not be convicted of the matters before the Court.” He also reportedly displayed remorse concerning Ms Earsman’s passing.

52. Mr Watson further noted that the offender’s prior response to supervision was unsatisfactory due to reoffending on a range of Community Orders. Mr Watson also identified that Mr Ahmed had in fact been withdrawn from the EQUIPS program at that time due to non-compliance. He was ultimately assessed as being at a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).

53. In assessing the offender’s subjective circumstances the Court has also had regard to Mr Ahmad’s extensive criminal history. It is unnecessary to examine this history in specific detail, but it suffices to note that it includes driving while disqualified from holding a licence, dishonestly obtaining property, dishonestly obtaining a financial advantage by deception, possessing prohibited drugs, stealing a motor vehicle, aggravated breaking, entering and stealing, and relevantly, possessing unauthorised and unregistered firearms.

54. The offender’s initial interaction with the criminal justice system related to reckless and furious driving at 18 years of age followed by numerous and repeated offences of driving whilst disqualified resulting in penalties which increased in severity. The penalties increased from a s 10 bond, to community service, and then in 2008 to a term of imprisonment which was suspended pursuant to a s 12 bond, before culminating in actual time served in 2009 when he was 22 years of age.

55. Following that first period in gaol, it would appear that prison may well have had a salutary effect on the offender. His next term of imprisonment was not imposed until 2017 by which time he was 30 years of age. He was then sentenced in respect of a number of offences of dishonesty and possession of prohibited drugs. He was subsequently referred on more than one occasion to the jurisdiction of the Drug Court.

56. However, since April 2017 until the present time, he has only spent just over 1 and a half years (approximately 1 year 7 months) in the community. His various sentences related to offences of dishonesty, possession of prohibited drugs and an aggravated break and enter. He was also sentenced in relation to a number of counts of possessing unauthorised pistols. Those offences ultimately resulted in the imposition of Community Correction Orders which were still current at the time of the commission of the offences before this Court. This is an aggravating factor pursuant to s 21A(j) of the Crimes (Sentencing Procedure) Act 1999.

57. His periods in the community during the past approximate 8 years have been intermittent periods of some duration. In 2017 he was released pursuant to the Drug Court program for 1 month before going back into custody and a subsequent period of 2 months before going back into custody. In 2019 he spent 5 months on parole before going back into custody on a raft of offences which included yet another driving whilst disqualified, a police pursuit, driving a stolen vehicle, dishonest possession of an item with the unique identifier interfered with, and additional offences of dishonesty.

58. He was again released to parole in November 2020 before being re-arrested in January 2021 with respect to drug offences and dealing with proceeds of crime. He was also charged with possessing equipment to fraudulently make identification documents.

59. He was yet again released to parole in respect of those matters in November 2021. He spent approximately 4 months in the community before again being arrested with respect to summary offences of goods in custody and possession of prohibited drugs. After serving a 3-month sentence for those matters he was released in July 2022.

60. Whilst still in custody he had been sentenced in the Local Court in June 2022 with respect to the various offences of possessing an unauthorised pistol, to which I have already referred, and as a result of which he was subject to Community Corrections orders at the time of his arrest for these offences.

61. As would be self-evident, he had been back in the community for approximately 5 months at the time of his arrest for the matters now before the Court.

62. As identified by Mr Watson, many of these offences took place while the offender was already on supervision orders. It is again noted that the offender was on a supervision order at the time of the present offending.

SUBMISSIONS ON BEHALF OF THE OFFENDER

63. On behalf of the offender in written submissions by Mr Eurell of counsel, which were further developed in oral submissions, it was conceded that Count 1, the deemed supply of 363.8g of methylamphetamine and Count 6, possession of the shortened prohibited firearm, namely the .22 calibre self-loading rifle, each crossed the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 and that there is no alternative to the imposition of a term of imprisonment.

64. With respect to Counts 2, 3, and 4, each of which relate to possession of the .22 calibre cartridges capable of use in the rifle, and Count 5, possession of the .22 calibre firearm magazine, it was submitted that each of those offences did not cross the s 5 threshold.

65. With respect to aggravating factors, it was conceded that the offending was aggravated by virtue of the offender having been subject to conditional liberty (s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999). It was further submitted that mitigating factors included that the injury, loss or damage caused by the offence was not substantial, and that the offender had expressed genuine remorse and acknowledged the impact of his drug offending conduct on the community. His letter of apology was referred to in support of this submission.

66. It was further submitted that the offender has good prospects of rehabilitation and that his utilisation of the program in which he receives Bupidal injections is of considerable assistance in ensuring that he does not return to the use of prohibited drugs. The willingness of the offender to comply with supervision requirements was submitted to further mitigate the risk of reoffending.

67. With respect to the deemed supply, it was submitted that there was no evidence of actual supply by the offender. His possession of the drug was said to be for a very short period of time.

68. With respect to the possession of the shortened firearm and the ammunition in various locations in the vehicle, it was submitted that the possession was similarly for a short period of time and that the firearm was inoperable. With respect to various of the items, it was submitted that the presence of fingerprints and DNA of other persons supported a conclusion that although in possession, the offender was not the “owner” of the items. It was submitted that the overall offending would be found to fall below the mid-range of objective seriousness.

69. The submissions on behalf of the offender focused on his subjective material set out in the various reports and correspondence which have been tendered. Bugmy considerations were submitted to require “full weight” in the determination of a proper sentence. Similarly, the mental health of the offender was submitted to reduce his moral culpability and to render him an inappropriate vehicle for general deterrence.

70. These various factors were also relied upon to support a conclusion that there should be a finding of special circumstances. The emerging risk of institutionalisation was also said to support such a finding, see Jackson v R [2010] NSWCCA 162. In conclusion, the submissions on behalf of the offender invited the Court to consider imposing an aggregate sentence and to bear in mind the relevant principle of totality in determining an ultimate sentence.

CROWN SUBMISSIONS

71. The Crown’s written submissions set out a brief overview of the Crown case at trial, which it is unnecessary to repeat.

72. The Crown made specific reference to the verdict judgment in which findings had been made at [147] that the offender had “videoed the firearm in the same bag on 26 December 2022 and forwarded one of those videos on his mobile phone.”

73. On the basis of the messages sent to and from the offender which were set out in the verdict judgment at [115]-[124] and also at [144]-[145], the verdict judgment had concluded that the offender “was occupied in the business of drug supply in the days leading up to his arrest.”

74. In the Crown’s submission, the objective seriousness of the various offences was as follows:

75. Count 1 Supply 363.8g of methylamphetamine: just below the mid-range;

76. Count 2 Possession of 35 x .22 calibre cartridges: below mid-range;

77. Count 3 Possession of 8 x .22 cartridges and Count 4 Possession of 3 x .22 cartridges: both towards the bottom of the range;

78. Count 5 Possession of .22 calibre firearm magazine: below the mid-range;

79. Count 6 Possession of unauthorised prohibited firearm: within the mid-range.

80. The Crown set out the basis for its assessments of objective seriousness which I do not repeat in detail.

81. With respect to Count 6, the Crown submitted that the objective seriousness fell within the mid-range. The basis of that submission was the evidence in both the ballistics report and oral evidence by Senior Constable Harvey. The officer had given evidence that although the trigger was inoperable, the weapon could “still be functioned as a slam fire and will continue to fire until the ammunition source is depleted or removed.”

82. In evidence at the trial, the officer gave evidence that while the weapon could be fired “it probably would not cycle the weapon.” Senior Constable Harvey explained that the fired cartridge would not be able to be extracted or ejected from the chamber and would cause a stoppage. In the Crown’s submission, even taking into account these limitations, it “remained a formidable weapon.”

83. The Crown reminded the Court of the observations of Rothman J in R v Campbell; R v Smith [2019] NSWCCA 1 at [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.”

79. The Crown made specific reference to the offender’s extensive criminal history which, it was said, disentitled him to leniency.

80. His prior convictions for possession of firearms and ammunition were submitted to require more significance to be placed on specific deterrence in the determination of an appropriate sentence.

81. The Crown made reference to the Sentencing Assessment Report. The reference by the author of that report to the offender taking “some responsibility” was pointed to as demonstrating very little genuine insight by the offender into the seriousness of his offending. The offender’s previous responses to supervision had been gauged as poor and the Crown submitted that the Court would entertain a degree of scepticism with respect to the offender’s assertions of a willingness to comply with future supervision upon his release.

82. With respect to the report by Mr Borenstein, the reliance on an asserted previous diagnosis of PTSD by Mr Jacmon in 2017 was submitted to require consideration with a degree of circumspection. The absence of any report from Mr Jacmon would leave the Court unable to properly understand the nature and extent of any previous diagnosis. The Crown submitted that the absence of any further report from Mr Jacmon, and Mr Borenstein’s information about the previous diagnosis relying upon an oral account from the offender, would lead the Court to give limited weight to the assessment of a causal connection with the offending, which was the conclusion by Mr Borenstein. In the Crown’s submission, the offender’s prospects of rehabilitation should be viewed as quite guarded based upon his lack of insight, his poor response to prior supervision, and the assessment that he is a Medium risk of reoffending.

COMPARATIVE CASES

83. I acknowledge that comparative cases and judicial commission statistics have limited utility in determining a sentence given that individual cases turn on their own specific facts and vary greatly in their subjective and objective circumstances. However, it suffices to say that reference to comparative cases in an overall way can provide some measure of the types of sentences passed in similar matters and can act as a touchstone for comparison of a contemplated sentence (see R v Smith [2016] NSWCCA 75 at [73]).

84. In Dawson (a pseudonym) v R [2021] NSWCCA 33 the offender had pleaded Guilty to an offence of supplying not less than the commercial quantity of methylamphetamine, two offences of supplying methylamphetamine, an offence of knowingly taking part in the supply of not less than the commercial quantity of methylamphetamine, and offences of possessing an unauthorised firearm and possessing an unauthorised prohibited firearm.

85. The offender had purchased 284g of methylamphetamine following discussions with his supplier concerning the loss of clients over the poor quality of drugs which had been previously purchased. The offender then went on to sell 170.4g and 198.8g of methylamphetamine, being the two supply offences. Next, he attempted to purchase a further 286g of methylamphetamine, being the offence of knowingly taking part in supply.

86. As a result of a gunfight during that attempted purchase, which took place at the offender’s home, a crime scene warrant was executed on the property. During that search police found a 6 mm black Colt self-loading pistol which was not in working order due to broken components. This constituted the possess unauthorised firearm offence. Police also found a .22 calibre keyring automatic pistol. The first barrel was in working order, however the second was not functioning due to a chamber or cartridge sleeve not being properly inserted in the barrel. This was the possess unauthorised prohibited firearm offence.

87. Given the differences between Dawson and the present case, it is not necessary to delve into the sentencing judge’s reasoning and findings for each of these offences. It is of greater utility to extract her findings and indicative sentences in relation to the supply commercial quantity offence and the firearms offences.

88. In relation to the first substantive offence of supply not less than the commercial quantity of methylamphetamine (in the order of 284g), the sentencing judge, Judge Herbert, found this offence to be within the mid-range of objective seriousness given that there was no evidence of purity and it was not significantly above the 250g threshold for a commercial quantity. Further lesser supply offences were taken into account in relation to this offence on a Form 1. The indicative sentence for this offence was 5 years and 6 months with a non-parole period of 3 years and 9 months.

89. In relation to the firearms offences, the sentencing judge held that the non-functioning 6mm Colt was effectively a replica pistol possessed in circumstances where the applicant was involved in a drug supply operation. Her Honour found the offence was below the mid-range of objective seriousness and noted an indicative sentence of 1 year and 1 month.

90. In relation to the keyring pistol, which was in working order and readily able to be concealed, unable to be possessed for any lawful purposes, and again possessed in circumstances relating to a drug supply operation, the offence was found to be in the mid-range of objective seriousness. Her Honour noted an indicative sentence of 2 years and 2 months with a non-parole period of 1 year and 6 months.

91. The offender had previous convictions for domestic violence, driving offences, and supply prohibited drug offences which disentitled him to leniency. He had extremely limited subjective circumstances, effectively confined only to wounds sustained during the aforementioned gunfight during the attempted purchase. These were undoubtedly treated as extra-curial punishment. The offender had been given a significant discount of 45% given his early pleas of Guilty and assistance provided to authorities. An appeal on the basis of parity and manifest excess was dismissed.

92. In Leffley v R [2016] NSWCCA 243 the offender pleaded Guilty to two counts of supplying not less than a commercial quantity of a prohibited drug, being amphetamine and methylamphetamine. The offender had been pulled over by police for the purposes of a random breath test and, on questioning, admitted to having some drugs in the car which he surrendered. Police suspected further drugs were in the vehicle and executed a search. A total of 922.9g, just shy of the threshold for a large commercial quantity of amphetamine was found together with a total of 383.3g of methylamphetamine.

93. It is noted that at the time of the offending in 2014, the threshold for a large commercial quantity for methylamphetamine was 1kg, the same as for amphetamines. From September 2015, the threshold for a large commercial quantity of methylamphetamine was reduced to 500g.

94. The offender initially told the custody manager that he conveyed the drugs due to threats by unknown persons. He later told a Community Corrections officer that his motivation for offending was to pay off his drug debts. He subsequently told a psychologist/social worker that he was asked to deliver a package, and did so under the assumption they contained illicit substances. The sentencing judge characterised his role as one of a courier, motivated by habit and debt rather than financial gain, though nevertheless playing an important role in the distribution of a significant quantity of drugs. The sentencing judge, Judge English, found that the offences fell below the mid-range of objective seriousness.

95. The offender was otherwise of good character, expressed remorse and had good prospects of rehabilitation, and was entitled to a 25% discount for his pleas of Guilty. Her Honour ultimately imposed sentences of 6 years with a non-parole period of 3 years in respect of the methylamphetamine supply, and 8 years and 6 months with a non-parole period of 4 years and 6 months in respect of the amphetamines. Each sentence was to be served concurrently. An appeal on the basis of manifest excess was dismissed.

96. In Grills v R [2016] NSWCCA 46 the offender pleaded Guilty to two offences, namely supply a prohibited drug, being 4.82g methylamphetamine, and possession of a prohibited firearm, which was a fully loaded and operable American Carbine .44 Magnum. Attached to the drug offence on a Form 1 were offences of possess cannabis and dealing with proceeds of crime. Attached to the firearm offence on another Form 1 were offences of possess shortened firearm, possess unregistered firearms, possess explosives without licence, possess prohibited weapon, not keep firearms safely, and possess ammunition without licence.

97. In relation to the drug offence, the sentencing judge, Judge McLoughlin SC, held that text messages indicated that the offender was not simply a low-level street dealer, but had others dealing on his behalf. The drug offence was assessed as falling slightly below the mid-range of objective seriousness.

98. In relation to the firearm offence, the sentencing judge had held that:

“the only conclusion that could be drawn from the finding of a loaded pistol behind the Applicant’s bedhead was that it was a tool of trade ready to be used if need be. … the offence fell above the middle of the range for offences of its type.”

99. The sentencing judge concluded that the offender had been dealing in drugs and resorted to the use of firearms to enforce payment in drug transactions.

100. The offender had previous convictions for drug offences including supply. He had been diagnosed with depression and had been addicted to methylamphetamine at the time of offending. His offending was motivated by a need to finance his addiction, and to meet the costs of a concurrent gambling problem.

101. In relation to the drug offence, an indicative term of 5 years was imposed. In relation to the firearm offence, an indicative term of 5 years with a non-parole period of 3 years was imposed. The overall effective sentence was 8 years with a non-parole period of 6 years. An appeal on the basis of manifest excess was dismissed.

102. In R v Amurao [2005] NSWCCA 32 the offender pleaded Guilty to six offences; possess firearm on which the identification mark was defaced, possess unauthorised firearm, possess ammunition without licence, supply 10g of methylamphetamine, supply 28g of crystal-methylamphetamine (ice), and knowingly take part in the supply of 137.3g of methylamphetamine. The firearm offences related to possession of a .32 self-loading pistol and ammunition compatible with that weapon.

103. In sentencing the offender, the sentencing judge, his Honour Acting Judge JX Gibson, noted that:

*“When a person in the position of the prisoner was [*and] engaging in the business that he was, the possession of a pistol denotes only one thing, an intention to use it if he thinks it necessary. (sic)”

104. In discussing this comment on appeal, RS Hulme J said:

“I agree, particularly when, as here, the firearm was found by the police in a loaded state. It behoves the Courts to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law.”

105. In other words, it was relevant to objective seriousness that the weapon was possessed for criminal purposes. See also R v Mehcur [2002] NSWCCA 56 at [25]; Luu v R [2008] NSWCCA 285 at [32]; R v AZ [2011] NSWCCA 43 at [76]; SY v R [2020] NSWCCA 320 at [30].

106. The offender in Amurao had no criminal record and had claimed that his offending was motivated by a need to finance his amphetamine addiction. While he received the benefit of a 25% discount on sentence at first instance, the sentencing judge declined to further mitigate the sentence on the basis of cooperation with the authorities. The effective sentence in the District Court was imprisonment for 10 years with a non-parole period of 6 years and 9 months, and a fine of $3,000.

107. A challenge to the sentence imposed was based in part on an asserted error by the sentencing judge in refusing to mitigate the sentence for the offender’s prior cooperation with authorities.

108. That error was found to be established and the Court of Criminal Appeal proceeded to resentence. Sentences of 2 years in respect of each of the firearms offences were confirmed, as was the $3,000 fine in respect of the possession of ammunition. The Court upheld the challenge brought with respect to the sentences for the drug offences in particular and reduced substantially the sentence with respect to the knowingly take part in the supply of the 137.3g of methylamphetamine. RS Hulme J proposed a reduction in the overall sentence to 9 years and 6 months with a non-parole period of 6 years and 4 months. Ipp JA, with whom Hislop J agreed, reached a different view, which became the orders of the Court, that the total effective sentence should be one of 9 years with a non-parole period of 6 years. That sentence was achieved by cascading and delayed start dates of the various individual sentences. It is unnecessary to delve into the fine detail.

109. In Chandab v R [2021] NSWCCA 186 the offender pleaded Guilty to two offences of possession of a prohibited pistol, being a .357 Magnum Smith & Wesson six chamber revolver, and knowingly taking part in the supply of a prohibited drug, being 634.7g of cocaine. Both were found concealed in a compartment hidden below a false bottom of the centre console of his Toyota Hilux. The offence of possessing a defaced firearm was taken into account on a Form 1 attached to the firearm offence. Two further offences of dealing with proceeds of crime and assault occasioning actual bodily harm were taken into account on a Form 1 attached to the drug offence.

110. The drug offence was assessed at below the mid-range and towards the lower end of objective seriousness for the type of offending.

111. Although the objective evidence suggested that the firearm was a tool of the drug trade, the Crown submitted that this nexus in offending should be ignored in assessing the gravity of the firearms offence. The offender instead submitted that the weapon was owned solely for protection, a factor the sentencing judge, her Honour Judge Girdham SC did not accept as mitigating the objective seriousness. In assessing the objective seriousness of the firearms offence, the sentencing judge concluded that given the weapon had been loaded, concealed, had its serial number removed, and was possessed by a person subject to a Firearms Prohibition Order and who was a member of a criminal gang, it fell above the mid-range.

112. The offender had an extensive criminal history and was a senior member of an outlaw motorcycle gang, the Comancheros. The offender took limited responsibility for his offending, accepting responsibility for the firearm but not the drugs, which he said he agreed to conceal on behalf of an acquaintance. He was entitled to a 10% discount as a result of his late pleas of Guilty, which were entered on the first day of his trial. The offender was sentenced to 6 years with a non-parole period of 4 years in respect of the firearms offence, and 3 years and 9 months with a non-parole period of 2 years and 3 months in respect of the drug offence. An aggregate sentence of 6 years and 3 months with a non-parole period of 4 years and 2 months was ultimately imposed. An appeal against this sentence was dismissed.

113. On appeal, the offender argued that the absence of a connection to the supply meant that the offending in respect of the firearm could not be elevated beyond the mid-range. In responding to that argument, Wilson J said that such a position:

“fail[s] to give proper weight to the dangerousness of readily accessible concealed and loaded firearms in the community, particularly in the hands of an individual specifically prohibited from having them, who was a member of a criminal gang. A weapon such as that in the applicant’s possession has the capacity to do great harm and, in my conclusion, the assessment made by the sentencing judge of the gravity of the offence was open to her.”

114. Her Honour Wilson J went on to say that:

“Firearms in the hands of those not permitted to possess them, and even more so in the hands of the criminally minded who may be the subject of a prohibition order, represent a clear and profound threat to the safety of the community. No doubt for this reason, and despite the relatively low standard non-parole period that applies to such offences, the maximum penalty prescribed for offences of this nature reflects the seriousness with which the Parliament and the community view firearms offences. The rule of law and the safety of others equally are imperilled by the unauthorised possession of firearms, and such offences must be treated as serious contraventions of the criminal law — to punish offenders, to deter others, and to protect the community.”

DETERMINATION

115. The instinctive synthesis which leads to the determination of an appropriate sentence requires consideration of a number of factors. I have already indicated my assessment of the respective levels of objective seriousness of the separate offences.

116. While the offender’s extensive criminal history deprives him, to some extent, of leniency to which he may otherwise be entitled, it is important to bear in mind his deprived and disadvantaged upbringing. Such factors do not operate as a “get out of jail free” card but the principles derived from R v Fernando (1992) 76 A Crim R 58 and Bugmy do have relevance in mitigating criminal culpability. I, accordingly, take those principles into account.

117. I accept, with some reservation, the offender’s expressions of remorse and regret notwithstanding his pleas of Not Guilty and his continued denial of knowledge of the weapon and ammunition in his vehicle. As I set out in more detail in the verdict judgment, his phone messages and the video which he took of the weapon in the days prior to his arrest render such protestations of ignorance regarding the presence of the gun lacking in credulity.

118. In the absence of any reports with respect to the asserted diagnosis of PTSD in 2017, I agree with the Crown’s submission that the ultimate attribution of a causal connection with the offending should be viewed with a degree of circumspection.

119. The offender’s previous lack of compliance with supervision and his repeated offending since 2017 following periods of short duration when released back into the community, the assessment of his risk of reoffending as Medium, together with the other factors identified in the sentencing assessment report, lead to a determination that his prospects for rehabilitation should be viewed as ‘guarded’. I would assess his prospects of rehabilitation as moderate at best.

120. His previous offences with respect to possession of unauthorised firearms must also contribute, to some degree, to more weight being given to the need for specific deterrence.

121. Needless to say, possession of firearms in conjunction with other criminal conduct, in this case drug supply, necessitates appropriate weight being given to general deterrence. Any reduction in the significance of general deterrence on the basis of ongoing mental health difficulties, as advocated by Mr Eurell on behalf the offender, is slight.

122. I do find special circumstances on a number of bases including the risk of institutionalisation of this offender and the need for an extended period of supervision.

123. I propose to proceed by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.

124. I am required to indicate the sentences which I would have imposed for the individual offences were I to have imposed separate sentences.

125. The indicative sentences are:

126. Count 1 – supply a commercial quantity of methylamphetamine, taking into account the offences on the Form 1 – 5 years with an indicative non-parole period of 3 years and 4 months.

127. Counts 2, 3, and 4 – possession of .22 cartridges while subject to a Firearms Prohibition Order – in each case, the offender is convicted and the proceedings may be disposed of without the imposition of any further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999*.*

128. Count 5 – possession of a prohibited weapon (magazine) while subject to a weapons prohibition order – 6 months.

129. Count 6 – possession of a prohibited firearm, namely a .22 shortened rifle – 4 years with an indicative non-parole period of 2 years and 8 months.

130. Sequence 6 – the resist arrest brought to this court pursuant to s 166 of the Criminal Procedure Act 1986, taking into account the late plea of Guilty by approximately 10% – an indicative sentence of 3 months.

131. The aggregate sentence will be a non-parole period of 4 years and 8 months. There will be an additional term of 2 years and 4 months. That is an effective head sentence of 7 years with a non-parole period of 4 years and 8 months

132. The sentence and non-parole period will be backdated to commence on 28 December 2022. The non-parole period will accordingly expire on 27 August 2027 and the additional term will expire on 27 December 2029.

**********