R v ALI

District Court of NSW|2020-04-15|Before: Mr J

REMARKS ON SENTENCE

The offender appeared at the Young Local Court on 22 October 2019 and pleaded guilty to two charges namely a charge of Possess Loaded Firearm in a Public Place contrary to s 93G(1) of the Crimes Act, 1900 and one charge of Possess Shortened Firearm (Not being a Pistol) contrary to s 62(1)(b) of the Firearms Act, 1996. The pleas of guilty were adhered to at the sentence hearing at Wagga Wagga District Court on 12 March 2020. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
The maximum penalty for the charge of Possess Loaded Firearm in a Public Place is 10 years imprisonment. The maximum penalty for the charge of Possess Shortened Firearm contrary to s 62(1)(b) of the Firearms Act is 14 years imprisonment. Parliament has not specified a standard non-parole period in respect of either of the offences.
In addition to the two substantive matters, the offender asks that when passing sentence in respect of the charge of Possess Shortened Firearm the court take into account six matters on a Form 1 document. Those are three charges of Possess Prohibited Weapon - namely an extendible baton, an electronic control device (taser) and a flick knife - and three charges of Possess Prohibited Drug, namely .43 g of methyl amphetamine, 0.03 g of Buprenorphine and 12.23 g of oxymetholone.
Pleas of guilty are entered to three charges attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. Those charges are Possess Ammunition without Permit, Drive While Disqualified and Affix unauthorised Licence Plate. The remaining three matters on the s 166 Certificate are now on the Form 1 document.

Facts

The facts are before the Court by way of agreed facts within the Crown tender bundle exhibit A on sentence. The facts do not specifically set out the date of the offence but I presume it is 28 March 2019 as that is the date pleaded on the Court Attendance Notices. I proceed on the basis that the date of the offence was 28 March 2019. The accused, his partner (Ms Erin Cox) and two associates were packing up items at an address in Prospect Street in Young and moving them to an address in Orchard Street. A member of the public had advised police that there was unusual activity occurring at the Prospect Street premises, including the swapping of registration plates.
Police undertook a patrol of the area around the premises and observed a number of vehicles in the driveway of the Prospect Street premises. A white van bearing ACT registration plates left the driveway and on seeing the police the driver pulled to the side of the road. Police drove towards the van and it sped off. The van was later found parked on the footpath at an address in Orchard Street. No one was in the van when it was found by police. An iPhone X, a hat, a jumper and a shoe were found inside the van. The facts recite that the van was secured. Given what I perceived to be ambiguity as to whether the van was locked when police came upon it or whether the police secured the van caused me to make inquiries of the parties. Police secured the van. This means that the van was unlocked at the time police came upon it.
The van was searched. Inside the van was a toolbox, which was not locked, in which was located wrapped in a pillow case the shortened shotgun the subject of one of the charges for which the offender appears for sentence. Curiously however the facts do not refer to the weapon being shortened. That weapon was loaded (giving rise to the other substantive charge, i.e. the charge contrary to s 93G(1) of the Crimes Act) and there was a spare shell as well. Also in the toolbox were the three prohibited weapons, the subject of three of the charges on the Form 1, those weapons being a flick knife, a taser and an extendable baton. The tool box and contents was secured in a police vehicle.
Inside the toolbox was found a chewing gum container with 121 white tablets that were found to be oxymetholone, which is a steroid. Further, 0.43 grams of methyl amphetamine was also found in the container.
The offender's father, Bassen Ali arrived shortly later. He advised police that the house in Orchard Street belonged to him and that no one should have been there. He gave police permission to search the premises. He also told police that the white van belonged to the family farm and it should not be in town as it was not registered.
A DNA profile consistent with that of the offender was found on the latch of the red tool box, on the lid of the chewing gum container and the taser located inside the tool box. The iPhone X was registered in the offender's name and to an address of the Ali family in the ACT. The two associates referred to earlier provided statements to the effect that the offender was at (I presume) the Prospect Street address.
The offender was arrested at 42 Orchard Street, Young on 30 April 2019 and charged. When arrested he was found to have on his person a strip of Buprenorphine, accounting for the remaining charge on the Form 1. The offender was interviewed. He told police on 28 March he was sick and that he did not leave the address of his mother. He went on to say that he did not attend Prospect Street. He admitted to handling sawn off shot guns in the past while hunting with his family. He admitted to handling the extendable baton but maintained it belonged to his brother. He denied handling the taser (electronic control device). He told police that the tools inside the toolbox were the property of his family and that he had given the iPhone to his brother.

Assessment

Counsel for the offender tendered without objection a photograph of the weapon. The photograph became exhibit 2. Precisely why the Crown did not tender the photograph or at least a photograph of the weapon remains a complete mystery to me. Even a cursory glance at the weapon depicted in exhibit 2 indicates that the weapon has been very substantially shortened both at the barrel and the stock. There are two triggers indicating that the weapon has two barrels. This fact is not stated in the facts.
In his evidence (into further detail of which I will go later) the offender said that he purchased the weapon about two years ago but he had no intention of using it. I was reminded in further brief oral submissions taken by AVL on 15 April 2020 that the offender gave evidence at the initial sentence hearing that at some time after acquiring the weapon he used it to shoot a snake on his farm. In further written submissions (MFI 3 on sentence) Mr Jiang, counsel for the offender, put that the offender acquired the weapon for recreational purposes.
At least since the decision of R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 it has been uncontroversial that there is no legitimate use for a shortened firearm.
The evidence that the offender gave about shooting the snake, taken with the fact it was loaded and had a spare shell nearby, entitles me to reject the evidence that the offender had no intention of using the weapon and I do so. Put simply if there was no intention to use the weapon then there was no necessity for ammunition to be anywhere near the weapon, let alone a cartridge being in the breech.
The fact that the offender had the weapon for two years is a relevant matter in determining the seriousness of the matter - see for e.g. DJ v R [2017] NSWCCA 319 at [101]-[102] per Johnson J. Also relevant to the issue of the seriousness of the matter is the nature of the weapon that had been shortened, i.e. a double-barrelled shotgun. The fact of it being loaded grounds the other substantive charge for which the offender appears for sentence and accordingly that fact cannot be taken into account in determining the seriousness of the Possess Shortened Firearm charge.
Counsel for the offender puts (p 3 of written submissions, MFI 1 on sentence) that I can take into account in respect of both substantive matters that the firearm was not on the offender's person, that there was no evidence that the offender had used or intended to carry the firearm on his person in public, that the firearm has some significant age, that there is no evidence to suggest that it was in working order, that the firearm was not cocked, that it was capable of discharging only two rounds, that there was no evidence that it had ever been used in the commission of a criminal offence, that there was no evidence that the offender had personally shortened the firearm, that there was no evidence that the offender intended to supply or give possession of the firearm and the firearm was not easily concealed.
I note the facts include that the police secured the vehicle. It follows therefore that the vehicle was unlocked and it would seem so was the toolbox in which the weapon was located. The accused gave evidence that he put the firearm in that toolbox some time before it was found by police. As Johnson J (Hoeben CJ at CL, Price J agreeing) commented in Taylor v R [2018] NSWCCA 50 at [46], "The question of public safety lies at the heart of the Firearms Act 1996." The weapon being in an unlocked toolbox in an unsecured vehicle had the consequence that the weapon was accessible by anyone that happened upon the vehicle. This is also a relevant consideration to the charges of Possess Prohibited Weapon on the Form 1 document.
To remove any doubt, I am not finding that the factor of aggravation in s 21A(2)(i) of the Crimes (Sentencing Procedure) Act is made out. I am merely (as was found to be the situation in Taylor) considering the public safety issues so far as the seriousness of the offending is concerned.
Further on the issue of the shortened shotgun not being easily concealed, it was located concealed in a toolbox in the front foot well of a vehicle. It might not have been particularly easily concealed on someone's person but it was concealed in the toolbox. At the further brief sentence hearing on 15 April 2020 Mr Jiang reminded me that the offender gave evidence on 12 March 2020 to the effect that the toolbox was in the foot well of the van because the rest of the van was full. The reason why the toolbox was there is not to the point - it was there in the unlocked van and the toolbox would have been visible.
The facts within the Crown tender bundle are silent as to whether the firearm was functional. This was one of the issues raised at the further brief sentence hearing on 15 April 2020. The offender gave evidence at the initial sentence hearing that he had used it to shoot a snake. At the further brief hearing of the matter on 15 April 2020 the Crown's representative (who was not the representative on the first occasion) read from the preliminary ballistics report. The "functionality" of the weapon was not tested but it appeared to be capable of firing a projectile. The fact that the weapon had been used by the offender to shoot the snake, it was loaded and there was a further cartridge nearby leads to an irresistible inference that the weapon was in working order. The evidence of the offender that he had used the weapon to shoot the snake is sufficient for me to be able to find beyond reasonable doubt that the weapon was functional. I am fortified in this finding by the presence of the two pieces of ammunition, one of which was in the breech.
Given the nature of the weapon, the fact that it could only discharge two rounds is not really to the point noting the type of firearm. If there was evidence that the offender had personally shortened the firearm that would lead to another serious charge. Supplying such a weapon also leads to another charge. Put simply the lack of factors that would make the matter more serious does not make the matter less serious. The gravamen of the offences for which the offender appears for sentence is possession.
In further written submissions (marked MFI 3 on sentence) Mr Jiang refers to the decision in R v Lachlan, noting that the finding that the offending was just below mid-range was not disturbed. Mr Jiang further submits that if the offending in the matter presently under consideration is found to be within the mid-range that does not leave much scope for more serious matters.
Although the offending in Lachlan related to the possession of shortened firearms, the principal offence dealt with was one contrary to s 51D(2) of the Firearms Act that carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. As I read the decision the number of firearms or weapons (namely four when the prohibition in the legislation is more than three) was at the cusp of being an offence contrary to s 51D(2). This offender is charged with Possession of a Shortened Firearm contrary to s 62(1)(b) of the Firearms Act.
Given the nature of the weapon including the extent to which it has been shortened, the length of time the offender possessed the weapon and the circumstances of the possession including that I am satisfied beyond reasonable doubt it was functional, I am of the opinion that both matters, i.e. the offences contrary to s 93G of the Crimes Act and s 62(1)(b) of the Firearms Act are both within the mid-range of seriousness for matters of that type.

General Deterrence

The nature of the weapon leads to the issue of the need for general deterrence. As I observed at first instance in sentencing DJ v R (District Court (NSW) 13 December 2016, unrep) - which comments were recited by Johnson J in DJ v R [2017] NSWCCA 319 at [39] - "one would have to be cloistered from the world not to understand the havoc that they [i.e. firearms] wreak in residential and suburban areas".
In R v Lachlan, 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 position 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)".
Rothman J, although dealing with different offending although still relating to firearms in Laspina v R [2016] NSWCCA 181 said at [6] by way of additional comment: "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."
Again by way of additional comment Rothman J said in R v Smith & Campbell [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."
These last cited comments by Rothman J also apply to the three other (i.e. the prohibited) weapons found in the tool box to which three of the matters on the Form 1 document relate.
Although dealing with offences of armed robbery I also note the comments of Beech-Jones J in connection with shortened firearms in Nabalarua v R [2020] NSWCCA 68 at [42]. Also on the issue of general deterrence I again note the comments of Johnson J (earlier extracted at [21] of these remarks) in Taylor at [46].

Criminal History

In 2015 the offender was convicted on indictment of Supply Prohibited Drug and was released on an Intensive Correction Order. On 17 December 2018 he was dealt with at the Queanbeyan Local Court for offences of Use Offensive Weapon to Prevent Lawful Detention and Police Pursuit for which he was sentenced to imprisonment. He was also dealt with for two counts of Driving in a Manner Dangerous to the Public.
In addition to the New South Wales record the offender has a record in the ACT. On 17 May 2018 there was no appearance and recognizance was forfeited in respect of a number of charges including Possess Weapon without Authorisation and Possess Drug. There are serious driving matters including Drive While Disqualified. I also note in 2015 he was dealt with by way of suspended sentence for make Demand with Threat to Endanger Life.
Overall the offender has a criminal history that does not entitle him to any particular leniency. It is my understanding from the submissions that counsel for the offender concedes as much.
Further, at the time of the offending for which the offender appears for sentence he was subject to parole for the Police Pursuit matter. The factor of statutory aggravation pursuant to s 21A(2)(j) of committing an offence while subject to conditional liberty is made out. In this regard see also for e.g. R v AD (2008) 191 A Crim R 409; [2008] NSWCCA 289 at [41] per Harrison J.

Subjective Case

The offender and his fiancée, Ms Erin Cox, gave oral evidence at the sentence hearing on 12 March 2020. The offender said that he was 23 years of age. He understood the offences for which he was appearing for sentence are serious offences. He agreed with the fact sheet. He went on to say that on the day of the offence he was moving house.
When asked how he came into possession of the weapon he said that he had purchased the gun but never had any intention of using it. He recognised it was a danger to him and the community. While this was the offender's evidence it was clearly stated in Lachlan that there can be no legitimate purpose for such a weapon.
Appropriately, counsel asked the offender why he did not dispose of the weapon earlier. He replied that it was "one of those things" and he accepted that he should have "got rid of it" earlier. He said he had no reason for having it. A little later in the evidence he said that he had no intention of using it. I was reminded by counsel on 15 April 2020 that the offender previously gave evidence of using the weapon to shoot a snake. Noting this and that the weapon was loaded and that there was another cartridge in the near vicinity I reject the offender's evidence that he had no intention of using the weapon. He said that it had never been used in criminal activity. Again, there can be no legitimate reason for the possession of such a weapon but I could not be satisfied beyond reasonable doubt that the weapon had been used in criminal activity. If it had been so used this would make the matter more serious.
The evidence continued that he really regretted having the weapon and that being in custody as a result of the offending has taken a toll on his life. He wants to become a contributing member of the community.
The offender gave an account of working two days per week as a Halal slaughterman (it emerged in cross examination he worked as a Halal slaughterman) at the Ulladulla abattoir and working the remainder of the time on the family cherry orchard in Young. He assisted in the care of his grandfather.
Counsel then took the offender to the other weapons found in the toolbox. He said that they were things that he used to like, that he thought were "cool". He no longer thought they were cool. He said they had never been used in criminal activity. There is no basis for finding to the contrary.
The offender said that the drugs in the toolbox were there before he was taken into custody for the offences for which he was sentenced at Queanbeyan. He said he put everything he should not have had into the toolbox. He said in evidence has not used drugs for nearly two years.
I was reminded at the brief further sentence hearing on 15 April 2020 that the offender gave evidence that the Buprenorphine was prescribed for his father and that he took possession of the patch in order to ensure that no one else could access the drugs. My notes and memory indicate that the offender was not challenged on this at the sentence hearing on 12 March 2020. I cannot reject the offender's evidence but I remain somewhat circumspect.
The offender accepted that he was subject to parole at the time of the offending. He appeared thoroughly genuine in his regret.
The evidence continued that his fiancée has been a stabilising influence on his life. She has kept him away from people who are bad influences. His fiancée has regularly (weekly) visited him in gaol. He has undertaken a positive lifestyles programme in gaol. He accepts that illicit substances and the use of them have led to his conflict with the criminal law in that he became involved with drugs at a relatively early age in Canberra while working as an apprentice plumber. He took methamphetamine for twelve months and underwent a course of rehabilitation.
Although he will not be able to drive for some time because of the lengthy periods of disqualification imposed, he has the offer of work with an uncle who is an electrician. He is also able to secure work at the abattoir at Cootamundra.
The offender gave an account of his upbringing in that after his parents separated he lived mostly with his mother. He went to school in Canberra and went to but did not finish year 10. He said that with hindsight he should have finished school.
He acknowledged that his offending has impacted on his family. He said he was ashamed of himself. His family does not condone the use of drugs. He has let himself down as well as the other people who have tried to help him.
When released following the sentence the court will impose he has every intention of complying with the conditions of parole. He has seen so many people come and go from custody. He wishes to become a contributing member of the community and to assist his aging grandfather.
In cross examination the Crown's representative asked the offender why the weapon was loaded. His response was to the effect that there was no reason why it was loaded and it was easier to keep the shells where they were.
The offender appeared to be genuinely remorseful. This was particularly so when he gave evidence of the breach of parole. I am satisfied on balance that the offender is remorseful. I also accept that he has offers of employment upon his eventual release. Further, I accept that the offender has considerable family support. His fiancée was present (and gave evidence) as were members of the offender's family.
Ms Erin Cox then gave evidence amplifying the contents of her reference that is part of exhibit 1 on sentence. I am constrained to comment that I was quite impressed with her evidence. She is 23 years of age and engaged to be married to the offender. She has been a pre-school educator for five years.
She met the offender in 2019 and noticed a change in the offender. She said that the offender's entire demeanour has changed, very much for the better since she met him. She said that initially her family did not approve of the relationship in that her father was a "very old school" Australian man. He has come around. I note however that Ms Cox met the offender in early 2019 and he has been in custody since late April of that year.
The evidence continued that she knew the offender had made some very bad decisions but she is satisfied that he genuinely wants to change. She said that he has a good heart. She has visited the offender every week in custody. She has engaged with his family. She has not seen the offender take illicit drugs or handle firearms since she has known the offender.
When the offender is eventually released she wishes to have a healthy relationship with the offender and his family and she would like the offender to get employment.
One can only hope that the offender realises how fortunate he is to have the fiancée that he has. The assistance of Ms Cox can only be good for the long term prospects of the offender's rehabilitation.
A volume of written material was tendered on behalf of the offender and became exhibit 1 on sentence. There is a report indicating the completion of the Positive Lifestyle Programme. There is a letter from the Chaplaincy service at Junee Correctional Centre that sets out that the offender who is a devout Muslim regularly attends Friday prayers. There are two other testimonial references, one from Ms Haley Johnson who it seems is a neighbour and has known the offender for some time and the other from Mr Ali Ali. Both speak well of the offender. Mr Ali confirms the offer of employment.
As Mr Jiang correctly submits the offender has not committed any disciplinary infractions since being in custody.
Also included in exhibit 1 is a report from Ms Ann Marie De Santa Brigida, Psychologist of Mindways Psychological Services. She interviewed the offender for about two hours via AVL for the preparation of the report. An amount of the background of the offender has already been dealt with in summarising the offender's evidence.
The offender told the psychologist that the weapon and the drugs were placed in the toolbox before he achieved abstinence from illicit substances. This is consistent with the evidence the offender gave. The offender expressed remorse to the author of the report. I have already found on balance that the offender is remorseful.
The author of the report opines (pp 6-7) that the offender would have met the criteria for Oppositional Defiance Disorder. A test that was administered was not indicative of ADHD.
The report goes into some detail (see particularly p 8) of difficulties that the offender had in his formative years at school, particularly with language. When he started school he could not speak English but could only speak Arabic. This meant he was substantially behind other children at school.
The report at pp 8-10 goes into issues of relationship between a father and son, educational success or failure being associated with quality of parental and marital relationships, influence of a father and family instability. All of this is very interesting however there does not appear to be any firm conclusion or opinion as a result of the lengthy (and at times, with respect almost rambling) narrative. I did not understand from the submissions of counsel for the offender (MFI 1 on sentence) that it is put that the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened. This was confirmed at the further brief sentence hearing on 15 April 2020.
Rather it is put that the matters relating to difficulty with education because of language and issues of adjusting are part of the overall subjective mix. That is an appropriate manner to deal with those issues.
A number of tests and questionnaires were administered to the offender. The offender suffers anxiety but it is the opinion of the author that this is attributable to the current incarceration of the pending court appearance. The offender falls into the high-moderate range for the risk of recidivism. I note the author of the Sentence Assessment Report opines that the offender is at a Moderate risk of re-offending.
Given that these offences were committed while the offender was on parole, the criminal history and the opinions of the psychologist and the author of the SAR, I could not be satisfied on balance that the offender is unlikely to re-offend.
This has some bearing on the issue of prospects of rehabilitation. I accept that the offender is sincere in his evidence when he says in effect he wishes to lead a law abiding life upon his eventual release. However, much will depend on how he engages with the appropriate authorities and whether he does obtain stable employment and stays away from what have been in the past poor influences. I am not at this stage prepared to make a finding that there are good prospects of rehabilitation. However, I readily acknowledge that there are some really positive signs.

Submissions

I have dealt with a number of Mr Jiang's submissions already. It is my understanding of what is set out under the heading "Youthful Offenders" that the offender be given some consideration for his youth. The decision of R v GDP (1991) 53 A Crim R 112 has been largely superseded by later authority. In particular I note the decision of KT v R [2008] NSWCCA 51 at [21]-[26] per McClellan CJ at CL. Those decisions deal with juvenile offenders and have no real application in the matter presently under consideration. The offender is 23 and cannot really be described as a youthful offender. The age of the offender is to be contrasted with the offender (aged 18 years 5 months, with no prior convictions) in Yildiz v R [2020] NSWCCA 69. I also note the fact that the offender has a record that does not entitle him to any leniency and that the offender was on parole. I note the Court of Criminal Appeal in the decision of Yildiz reviewed a number of authorities relating to the significance of youth. In particular I note [57]-[60] of Rothman J (Simpson AJA, N Adams J agreeing with additional comments).
Mr Jiang does however refer to the decision of R v Hearne (2002) 124 A Crim R 451 at [27]. I also note the decisions of Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296 at [41]-[49] per RA Hulme J and Thammavongsa v R [2015] NSWCCA 107 at [84]-[90] per Bellew J (Simpson J (as her Honour then was) generally agreeing but dissenting as to the ultimate disposition of the appeal) Hulme J agreeing). In particular I note the conclusion of Bellew J at [90], namely: "There is no doubt that the applicant's youth at the time of the offending is a relevant factor to be taken into account in considering sentence. However, I am not satisfied that the applicant's offending displayed the level of immaturity for which senior counsel contended, nor am I satisfied that there was any nexus between any such immaturity and the offending."
The appellant in Thammavongsa was much younger than this offender at the time of the offending, and as I read the decision was still a juvenile at the time of the offending. With unfeigned respect to Bellew J the comments his Honour made are very apposite to the matter that I am considering on the issue of youth. The age of the offender is one of the factors to be taken into account in the instinctive synthesis approach to determining the appropriate sentence in this matter.
The Crown's representative who appeared on 12 March 2020 in written submissions (MFI 2 on sentence) comments on the issue of the possibility of summary disposal. The Crown refers to the decision of Baines v R [2016] NSWCCA 132. In that decision Basten JA presided with Rothman & Fagan JJ. Fagan J gave the leading judgment however Basten JA and Rothman J both made separate additional comments including on the issue of summary disposal. I note the judgment of Basten JA at [8]-[13] and the judgment of Rothman J at [35]-[36]. Fagan J said at [133]: "Ground 2 is that her Honour erroneously omitted "to take into account the fact that the offences were capable of summary disposition". I consider the circumstance that these charges could all have been dealt with in the Local Court was of no significance to the determination of appropriate sentences in this case. Criminal liability was in issue. It turned upon acceptance or otherwise of the evidence of several female complainants and to some extent upon assessment of the legitimate bounds of massage technique. It was within the discretionary judgment of the Director of Public Prosecutions to elect that these issues be tried by jury."
Further, I also note the decision in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [70]-[120] and at [107]-[109] in particular. At [107]-[109] Johnson J said: "Very few cases before this Court display the exceptional circumstances which existed in R v El Masri and McCullough v R. The usual case before this Court, illustrated by the present case, involves a person who is committed for trial upon one or more indictable offences and pleads guilty, usually after charge negotiations, to a lesser indictable offence. A common feature is that the circumstances of the offence for which sentence was passed remain serious, and frequently the offender has a significant criminal history. [108] These more common circumstances lead to an argument in this Court, which seeks to challenge the characterisation of the offence as one which was appropriate to be dealt with on indictment. This process leads inevitably to an examination of the circumstances of the offence and the criminal history of the offender. [109] Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67]."
The decision in Zreika was recently followed in the decision of the Court of Criminal Appeal in Taitoko v R [2020] NSWCCA 43 at [91] where Leeming JA (Hoeben CJ at CL agreeing with brief additional comments, Lonergan J agreeing) observed that, "this offending is a long way removed from the 'rare and exceptional' set of circumstances to which Johnson J referred where the possibility of summary disposal is relevant to the sentence imposed by the District Court…" With unfeigned respect to Leeming JA his Honour's comments in my opinion apply equally to the matters presently under consideration.
In the matter presently under consideration the maximum penalties for the substantive offences are 14 years and 10 years imprisonment respectively. The matter involves the possession of a substantially shortened double barrelled shotgun by an offender who has a record that does not entitle him to any leniency and who was on parole. There is a Form 1 document containing inter alia three charges that each would otherwise individually carry a maximum penalty (if dealt with on indictment) of 14 years imprisonment with a standard non-parole period of 5 years. In these circumstances it occurs to me that the Director of Public Prosecutions may well have been open to criticism if these matters were not dealt with on indictment.
Mr Jiang appropriately submits that the threshold in section 5 of the Crimes (Sentencing Procedure) Act, 1999 is crossed. However, the submission continues that given the assessment of the objective seriousness, the offender's moral culpability, the subjective case, the plea of guilty and the significant period on remand that the court could arrive at a total sentence of three years or less and direct that the sentence be served by way of Intensive Correction Order. Counsel goes on to submit that the decision of R v Pullen [2018] NSWCCA 264 may be "worthy of consideration, fully cognisant of the Court of Criminal Appeal's decision in R v Fangaloka [2019] NSWCCA 173".
Not only is there the decision of R v Fangaloka but also the decisions of Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253 and Cross v R [2019] NSWCCA 280. Since those decisions Applications for Special Leave have been considered by the High Court of Australia in Fangaloka and Karout. In Fangaloka v The Queen [2020] HCASL 12 Gordon & Edelman JJ dealt with the matter on the papers and said: "The applicant requires an extension of time within which to file the application for special leave to appeal. The application does not give rise to any reason to doubt the correctness of the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales (Basten JA, Johnson and Price JJ agreeing). An appeal to this Court would have no prospects of success. It would therefore be futile to grant the extension that is sought. The application should be dismissed."
In Karout v The Queen [2020] HCASL 56 (co-incidentally) Gordon & Edelman JJ again dealt with the matter on the papers and said: "An extension of time is required to enable this application for special leave to appeal to proceed. The proposed grounds of appeal raised by this application for special leave to appeal from the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales (Hoeben CJ at CL and Fullerton J, Brereton JA dissenting) have insufficient prospects of success to warrant the grant of special leave to appeal. Accordingly, it would be futile to grant an extension of time. The application should be dismissed."
In the matter presently under consideration this is, in any event a moot point. After having given the matter a great deal of consideration and taking into account what is undoubtedly a reasonably strong subjective case I cannot conclude that it is appropriate to impose a sentence of three years or less. Even if I were to conclude that a sentence of three years or less was appropriate, given the nature of the offending and in particular the nature of weapon involved, the matters relating to the prohibited weapons on the Form 1 and the strong need for general deterrence it would be entirely inappropriate in this matter for the sentence to be served by an intensive correction order.
The observations of Fullerton J in Karout at [94] are apposite. Her Honour said: "The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play."
On the issue of the appropriateness of an Intensive Correction Order I also note the observation of Basten JA in Fangaloka at [64], namely: "…Equally, there is no doubt that a sentencing court must have regard to the personal circumstances of the offender; but they should not divert the court from imposing adequate punishment, having regard to the objective gravity of the offence".
The two substantive offences for which the offender appears for sentence arise out of identical facts and circumstances. Counsel for the offender submits that the Court would impose an aggregate sentence that involves a significant degree of concurrency. I note that counsel does not submit that the sentences should be wholly concurrent. The Crown submits that the sentences should be partially accumulated to at least some small degree. As the facts arise out of the same facts and circumstances the extent of the accumulation will be slight. In this regard I note the decisions of Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] per Howie J (Adams & Price JJ agreeing, Adams J with additional comments) and Nguyen v R [2007] NSWCCA 14 at [12] per Howie J (Sully & Price JJ agreeing).
Counsel for the offender submits that if I am against him in his submission for the imposition of an Intensive Correction Order I would make a finding of special circumstances. I agree that there should be such a finding despite the offences having been committed while the offender was subject to parole. The offender will require supervision to ensure his reintegration into the community and to ensure that he continues to make pro-social choices so far as his associates are concerned. Included in the need for supervision is to ensure that he remains free from illicit substances.
Counsel for the offender submits that I should deal with the matters attaching to the s 166 Certificate by means of s 10A of the Crimes (Sentencing Procedure) Act and imposing a conviction and no further penalty. That is an appropriate course for the matters relating to the possession of ammunition and the affixing an unauthorised licence plate.
However the offence of Drive While Disqualified is a serious driving offence and the offender has a number of traffic matters on his record, not the least of which is the Drive Manner Dangerous in a Police Pursuit (often referred to in "shorthand" as Police Pursuit - s 51B Crimes Act) matter in respect of which he was on parole at the time of the commission of the offending for which he now appears for sentence. It is appropriate that a sentence be imposed in respect of the Drive While Disqualified and there also be some very slight partial accumulation to recognise this offending. The offence of Drive While Disqualified is a second or subsequent offence and therefore the maximum penalty is increased to 12 months imprisonment. The matter also carries a disqualification of 12 months. Noting the previous driving offences it is appropriate to impose the statutory period of disqualification of 12 months.
The offender has been in custody since 30 April 2019. It is my understanding that both parties agree that any sentence imposed should commence from that date.

General Remarks

In passing sentence I will need to ensure that I give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided, the offending, the nature of the weapon and the need for general deterrence I am firmly of the opinion that a sentence of custody is the only appropriate sentence. I have already dealt with the issue of whether the imprisonment should be full time custody when dealing with counsel's submissions.
Although there are only two substantive offences (but also a matter attaching to the s 166 Certificate) an aggregate sentence is an appropriate manner of dealing with this matter. These remarks have been reduced to writing and will be made available to the parties upon pronouncement of sentence. As I am imposing an aggregate sentence it will be necessary for me to set out the sentences that would have been imposed had separate sentences been imposed. As neither of the principal charges with which I am dealing carries a standard non-parole period it is only necessary for me to set out the total indicative sentence. The sentences that would have been imposed had separate sentences been imposed are: 1. Possess Loaded Firearm - s 93G(1)(a) Crimes Act - a total sentence of 2 years 3 months which indicates a starting point of 3 years; 2. Possess Shortened Firearm - s 62(1)(a) Firearms Act - taking into account the matters on the Form 1 document a total sentence of 4 years 2 months which indicates a starting point of 5 years 9 months with some rounding down in favour of the offender. 3. For the Drive While Disqualified charge attaching to the s 166 Certificate a sentence of 3 months imprisonment, indicating a starting point of 4 months.

Orders

In respect of the matters to which the offender has pleaded guilty he is convicted.
Consequent upon that conviction the offender is sentenced to an aggregate sentence of 4 years 6 months imprisonment with a non-parole period of 3 years.
The non-parole period will date from 30 April 2019 and will expire on 29 April 2022. The balance of term of 1 year 6 months will commence on 30 April 2022 and will expire on 29 October 2023.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
The non-parole period is two-thirds of the total sentence which reflects a finding of special circumstances the reasons for which have been enunciated within these reasons.
In respect of the Drive While Disqualified charge the offender is disqualified for a period of 12 months.
The matters of Possess Ammunition without Permit and Affix Unauthorised Licence Plate attaching to the s 166 Certificate are dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act. The offender is convicted with no further penalty imposed.
The three charges of Possess Prohibited Drug attaching to the s 166 Certificate are marked, "Now on Form 1 document".
The firearm is to be forfeited to the Crown to be destroyed. The prohibited weapons the subject of the matters on the Form 1 document are likewise forfeited to the Crown for destruction. The drugs are to be destroyed.

Amendments 24 April 2020 - Citation amended 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: 24 April 2020

At a glance

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Judgment (10 paragraphs)

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Cases Cited (31)

Cited By (1)