HIS HONOUR: Today I am sentencing two gentlemen, Mohammed El Chami and Bilal Allouche, each to what could be called a "common offence" but relating to different circumstances. Each of the offenders is to be sentenced in relation to an offence contrary to s 7(1) of the Firearms Act 1996. In the case of Mr Allouche, in respect of an offence that he, on 21 October 2015, at Punchbowl in the State of New South Wales, did possess a pistol, namely a Belgian brand .380 calibre silver revolver, not being authorised to do so by licence or permit. In respect of that offence, there is a related offence on a s 166 certificate of possessing ammunition for a firearm without being authorised to possess that ammunition by licence or permit. The firearms offence has a maximum penalty of 14 years imprisonment and it has a standard non-parole period of four years imprisonment. The standard non-parole period for this particular offence was raised from three years to four years, on my researches, in approximately August 2015.
In respect of Mr El Chami, his offence is one of on the same date but at a different location, possessing a pistol, namely a black coloured pistol with removable magazine (no brand), not being authorised to do so by a licence or permit. This offence obviously carries the same maximum penalty as the one to which the prisoner Mr Allouche pleaded guilty. The related offence relating to this gentleman is likewise an offence of possessing ammunition for a firearm without being authorised to possess that ammunition by a licence or permit.
In respect of the offence on the s 166 certificate for each of the offenders, this is an offence contrary to s 65(3) of the Firearms Act 1996 and carries a maximum penalty of 50 penalty units. For reasons I will explain in due course, I propose, in the case of Mr El Chami, to order that he be fined the modest sum of $100 in respect of that offence. Being a matter on a certificate it requires a discreet penalty. In the case of Mr Allouche, I propose to convict him pursuant to s 10A but impose no further penalty.
The reason for that will be self-evident from the facts. The circumstances of the prisoners' possession of the ammunition and, of course, the significance of the presence of the ammunition in the firearm is so intimately bound up in the principal offence and so salient to the sentencing exercise in relation to that offence, that in my view it is not appropriate to impose any further penalty in relation to that. If I did, in any event, it would be obviously of the character of a fine.
The reason the two men are before me today and came before me last week is to be found in the fact that each of them, in 2015, were charged in relation to a murder allegation which led to their respective arrests in October 2015. Each of the offences for sentence today, the principal offences and the matters on the certificate, arose from police operations conducting searches of the residences of the respective offenders in connection with the particular matter for which they were, at one point, each charged with murder. I do not propose to go through the details of the circumstances relating to the alleged murder with which they are originally charged. Those matters are set out in the judgment of her Honour Justice Fullerton, delivered on 21 July 2017, in R v Rajab & Ors (the others including the two prisoners before me today) [2017] NSWSC 975.
For reasons which will be self-evident from later remarks I make, many of her Honour's findings in relation to that sentencing exercise have salience in this sentencing exercise. Two of the offenders that were sentenced by her Honour are the two gentlemen before me today and, of course, the sentencing of these two gentlemen occurred only four weeks ago and much of the material, from what I can gather from reading her remarks on sentence, that was available to her Honour was presented to me in this sentencing exercise, albeit in a different context.
I should point out that whilst the two prisoners were charged in relation to the murder to which I referred, ultimately, as the matter unfolded and was concluded, neither prisoner was sentenced in respect of matters relating to responsibility for the death of the deceased. In fact, Mr Allouche was convicted of being an accessory after the fact to murder and was sentenced in the context of the facts as her Honour found it in relation to that matter to what might be seen as a "modest" sentence of six months imprisonment.
In relation to Mr El Chami, he was convicted of concealing a "serious offence". The concealment that he was concerned with was limited to the fact that he failed to disclose to police over a period of time that he had been present in the park where the deceased person was shot at Punchbowl on 29 June 2015. He, Mr El Chami, was sentenced to three months imprisonment in relation to that offence, which reflected most of the time that he had spent in custody after he had been charged by police in late October 2015. He ultimately had been released to bail earlier in 2016 and it would appear, based upon the calculations of the Crown and myself, that Mr El Chami has two days credit for time spent in custody not referrable to the sentence imposed by her Honour.
It is also clear from her Honour's reasoning that Mr Allouche's role as an accessory after the fact was a limited one. The sentence imposed by her Honour reflected an aspect of the matter that is of significance in the formulation of the sentence I impose. That is that Mr Allouche was initially taken into custody in late October 2015, charged with murder and effectively remained bail refused up until the time that he appeared before her Honour to be sentenced for being an accessory after the fact.
The Crown has undertaken a number of calculations in relation to the matter and has identified 280 days of pre-sentence custody related this matter, not referrable to any sentences imposed either by her Honour in respect of the accessory after the fact matter or in the Local Court in respect of a matter of driving whilst disqualified. My understanding is that the effective sentences imposed at the Local Court and by her Honour total 11 months imprisonment, to be subtracted from the time that Mr Allouche was in custody, that is from 24 October 2015 until 21 July 2016.
I have calculated, taking into account 280 days of custody, backdated from 18 August takes the sentence I impose to a date in early-mid November. But I have determined, as I foreshadowed to Mr Allouche, to backdate his sentence to 18 August. Well might someone ask, "What was that decided upon?" The reason was that I, as was submitted by learned Senior Counsel for the prisoner, I was required to give full effect to consideration of the concept of totality of sentencing.
I am very mindful, of course, that her Honour chose to make the six months sentence she imposed accumulative upon a quite distinct and separate offending of driving whilst disqualified. But, in my view, giving full effect to the concept of totality in sentencing, I could not make any sentence I impose entirely "accumulative" upon that time spent in custody that could be said to be referrable to other offending.
Part of the reason for that was by regard to what the concept of totality represents. There are a number of decisions relating to this, perhaps the leading authority is, of course, the 1998 decision of Mill v R, which is reported at 166 CLR 55, but also there is the obiter dicta that appears in the decision of McHugh J, that learned senior counsel for the prisoner referred me to, in the High Court judgment of Postiglione (1997) 189 CLR 295.
In the matter of Postiglione the principal issue that was resolved by the Court in the leading judgment, as I would understand it given by Dawson and Gaurdon JJ, was directed at the issue of 'parity' of sentencing. But McHugh J, in his usual erudite way, noted in the context of the matters requiring consideration in Mr Postiglione's case that regard to totality of sentencing required an evaluation of the overall criminality involved in all offences for which a prisoner is charged. His Honour went on to say,
"Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that in order to comply with the totality principle, a sentencing judge must consider the total criminality involved, not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."
His Honour, in that regard, cited part of the judgment of Hunt J of the New South Wales Supreme Court in an earlier decision of Gordon. Justice Hunt, who was then the Chief Judge at Common Law, observed,
"When a custodial sentence is to be imposed, which will be cumulative upon or which will overlap an existing custodial sentence, the judge must take into account that existing sentence, so the total period to be spent in custody adequately and fairly represents the totality of the criminality involved in all of the offences to which the total period is attributable."
This is nothing new, of course. Judges in this jurisdiction are required to have regard to this aspect of sentencing on many occasions, most notably in circumstances where the court is exercising its supervisory jurisdiction over the Local Court and reviewing sentences of imprisonment previously imposed, where the magistrate might not have turned his or her mind to the concept of totality. Or where the judge is imposing a term of imprisonment for indictable offences in circumstances where there were to be taken into account previous terms of imprisonment currently being served for matters dealt with in the Local Court.
There are many other examples of that occurring. Thus, I have determined in the case of Mr Allouche, whilst it may have been open to me simply to backdate the sentence by the 280 days calculated by the Crown, to extend the benefit of that backdating to a period one year from today, thus effectively making the sentence I impose partially accumulative upon the effective sentences imposed at the Local Court to which I referred and by her Honour.
Of course, it is obvious from what I have said that her Honour's sentence, in its terms by reference to her judgment, was actually calculated to commence in late 2016 and expire in 2017 and the Magistrate's order was made in 2016. But one must look at the matter from the perspective of the total time spent in custody, calculate the 11 months imposed in the other jurisdictions from the date the prisoner came actually into custody, which is in late October 2015 and then stand back and consider, as best one can do, the totality of the criminality.
The offending in relation to Mr Allouche concerning a firearm is, at face value, separate from the offending for which he was found guilty of accessory after the fact to murder. But it has a relationship which is apparent in the material presented to me.
To deal with the objective facts of the matters. Firstly in relation to Mr El Chami, police executed a search warrant at his home in Lakemba, where he lived with his wife, in a small flat at the rear of his parents' property. Police located what is described as a 6 millimetre Airsoft calibre air pistol in a right bedside drawer. It was examined by a forensic ballistics expert and found to be an "airgun" and a "pistol", as defined under s 4 of the Firearms Act. However, the firearm was not in working order. It had a faulty trigger mechanism and, as the Crown has helpfully identified in its written submissions for which I am very grateful, there was evidence available at the proceedings that occurred before the matter came before me that the object itself was made of plastic.
The ammunition that was found, giving rise to the charge on the s 166 certificate was ammunition for a firearm other than that found. It was a .38 calibre round of ammunition but it was not capable of being discharged by the airgun. The prisoner, of course, was not the holder of a licence or permit that authorised him to possess either the ammunition or the "pistol".
I have concluded, in the context of the range of offences that might be contemplated under the section and the character of "firearms" or "pistols" that warrant prosecution under the section in the absence of any suggestion whatsoever that the prisoner was proposing to use the firearm to commit other crimes even as a weapon designed to cause someone fear, that this offence, in the scheme of things, is at the very lowest if not the lowest level of seriousness of offences of this type. The firearm itself was completely incapable of discharging any projectile in its condition.
There is some material, I appreciate untested, in references written on behalf of the prisoner from family members that the firearm itself was an item that the prisoner had had since he was a child. Whether that be true or not, in the context of those representations not being able to be tested if needs be by the Crown I do not know. They may not be disputed, for all I know, if given on oath or affirmation. The weapon itself is one that could not harm anybody.
In relation to Mr El Chami, at the time of the commission of the offence with which I am concerned he was then unconvicted, if I can use that expression, of the offence that he had committed before the time of his arrest. That is the offence of concealing a serious indictable offence. So, I sentence him on the basis that he had committed that offence, although he, at that time, remained unconvicted.
The prisoner otherwise had no other convictions or findings of guilt in New South Wales. He had a finding of guilt at the Southport Magistrates Court in March 2013 for possessing dangerous drugs and possessing utensils or pipes that had been used and I note in relation to all the charges, the number of charges is not entirely clear. No conviction was recorded by the Magistrates Court and he was ordered to pay a $450 fine. One can assume, I think fairly safely, that his possession of any "dangerous drugs" was for his own use.
Staying with Mr El Chami just for the moment, there was a body of material provided to the court in respect of him, relating to his circumstances, both references from family members, a reference from a metal fabrication company indicating that the prisoner was employed by that company. It would appear he has been known to the owner of the company for 12 years and, given the prisoner was born in 1990, and on my rough calculation would be 26 years of age, obviously the prisoner knows the owner of that company through a family or parental connection.
There is a psychological report setting out some details of his background which I am prepared to accept for the purposes of sentencing. I must say, as I said earlier, her Honour Fullerton J, when sentencing the prisoner for the matter before her, made various findings of fact in relation to the prisoner which coincide with the findings that I make on the material available to me. As I said earlier, I am not completely sure of this, but it seems highly likely that much of the material before me was available to her Honour.
In fact, the date of the report prepared by the psychologist available to me is 22 June 2007, before the evidence was given to her Honour for sentencing purposes. Her Honour notes the same psychologist that has prepared the report before me was the reporting psychologist to her Honour.
The findings of fact are set out at [122], and may, for my purposes, reflect accurately the findings that I am prepared to make, although I have independently reviewed the material.
I just make the further observation that I have read the psychological report and whilst there are some suggestions of reaction or consequence from his "forensic difficulties", there are no mental illnesses or mental disabilities identified as being causally related to the offending with which I am concerned.
Her conclusion was that whilst the offender, given his conduct as a teenager with suspensions and the like from school, may have met the requirements for the diagnosis of "Oppositional Defiance Disorder ODF", there was no indication that he would have met the criteria for the diagnosis of Conduct Disorder. The psychologist felt it was significant that he had a close and supportive relationship with his family and his partner and no history of psychological or psychiatric problems and he was a low to moderate range at risk of re-offending.
In that context, I have regard to the references that were provided on his behalf. I particularly note the reference of his wife. The prisoner has a one year old baby boy. His wife, at the time of writing her reference in August 2017, was four months pregnant with their second child. She spoke of his personality. She described him as generous, a person with a sense of humour and a caring personality. She, amongst other family members who provided references, said that she had seen the firearm in question "multiple times". She had asked him why he kept it and he said that he had had it since he was a child and it reminded him of his childhood. She regards him as of great support to herself.
The father of the prisoner also wrote a reference, speaking of the circumstances in which the family came from Lebanon, the great difficulties they had in that country that has suffered a great deal of torment from a range of outside forces for many years and how he came to Australia looking for peace and economic contentment. He spoke of the qualities of his son, which he said made the prisoner a person that he was proud of.
The prisoner also wrote a letter to the court, offering his apologies, explaining his possession of the firearm, which I have already dealt with. He did not understand that it was illegal to own the firearm, although ignorance of the law is no excuse. He speaks of the salutary effect of being in custody in relation to the other matter, the circumstances of him being on bail have assisted him to reflect upon his criminality in relation to this matter and he speaks of his affection for his wife and his child and his wish to continue to support them. I have taken all of that evidence into account.
With regard to Mr Allouche, likewise in his case there is a body of material, both references and a psychological report. Likewise, in relation to
Mr Allouche, her Honour Fullerton J made various findings as to his subjective circumstances, particularly in relation to this accused at [95] - [100]. In respect of the psychological report, like her Honour, I cannot find any evidence of any matter that shows a causal connection between the offending and any condition the prisoner may be said to have and, in any event, there is nothing identified in the character of a psychological or psychiatric condition requiring treatment, although the psychologist recommends counselling on his release from custody, which I support.
On the non-verbal intelligence test, quoting a number of tests being administered to the prisoner. The prisoner was described as being of "below average" intelligence. Some of the tests were not valid, for reasons I need not go into. Some of the testing led to results that were not particularly significant in this sentencing exercise. There was some levels of depression assessed but they may well have been reactive to the circumstances in which the prisoner was in at the time of the testing. There were no significant levels of anxiety.
The prisoner, in the context of the facts alleged against him, which I will come to in a moment, reported significant fear following ongoing death threats from the family of the deceased man, for which the prisoner was not responsible for killing and expressed a willingness to undertake psychological programs on his release from custody.
So far as the objective facts relating to Mr Allouche, he was detected in possession of the relevant firearm when a search warrant was executed at his home on 21 October 2015. The firearm was found in a bedroom that the prisoner shared with his brother. The prisoner was not arrested at that point and, in fact, was not arrested, as I understand the matter, until 23 October, at the Sydney International Airport. Whether he was endeavouring to leave the country or not is not made clear on the facts.
When the police were searching the residence of the prisoner in connection with the murder investigation they found the firearm. It was a six chamber revolver, with a shoulder bag and it was secreted in a wardrobe in the bedroom of the offender. The revolver was loaded with six .38 calibre rounds of ammunition. When asked about the firearm, the prisoner denied knowledge of it or its presence in the bedroom to his knowledge and, when the firearm was examined further, a mixed DNA profile was identified on the grip of the firearm with the DNA profile of the offender being the major contributor.
In respect of that particular offence, of course, it is clear that the firearm was an operating firearm, as distinct from the circumstances of Mr El Chami. It was a firearm that was loaded, which is a significant matter in assessing the seriousness of an offence of possessing a firearm.
I bear in mind that the firearm was not being displayed in public. There was no suggestion that the prisoner has in any way, by body movement or verbal threat, suggested to police that he was intending to use it in their presence. I accept that the firearm was hidden in a bedroom of a house where the prisoner lived; it was not on "public display", and was not "readily accessible" to the extent that it may have been hidden in the wardrobe. It certainly was not secure in a gun safe. Not that the prisoner had any right to have access to a gun safe, let alone the firearm that he had in his possession.
The prisoner asserts, in hearsay representations which are not tested, that his possession of the firearm was related to his concern for his safety, given the circumstances of the killing of the gentleman at Punchbowl in late June. In relation to the claim of the prisoner that he was in fear of his safety, I am prepared to accept, having read the remarks on sentence of her Honour relating to the circumstances of the killing of the deceased and related matters, that the prisoner, in the context of being innocent of the responsibility of the death of that person, had some basis to be fearful for his safety. Particularly in the context of fearing attribution to him of responsibility for a crime that he did not commit.
His presence at the park where the deceased was killed was not, it was found, by reason of the plea entered by the prisoner, concerned with any pre‑conceived plan for the deceased to be shot as he was by one of the co‑accused. That having been recognised, however, it is important to reflect upon some matters that were identified by the Crown in its very helpful written submissions.
The Crown, in its written submissions, referred the Court to a range of authority, well recognised, and reflected, of course, in the Judicial Commission Sentencing Bench Book.
The maximum penalty for the "mere" possession of a firearm and the fact that there is a standard non-parole period highlights the view of the legislature, to be enforced by Judges, that there is an increasing threat to the community arising from the possession of firearms to which people are not entitled to gain access.
In sentencing for firearms offences, there has to be an element, and a strong element, of general deterrence in respect of these offences.
The legislative purpose is clear, and as was pointed out by the learned counsel for the Crown in the written submissions, as Rothman J observed in the decision of Laspina v Regina [2016] NSWCCA 181:
"[6] 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 doing so, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession."
So far as the prisoner's reason proffered, albeit in a hearsay fashion untested, for his possession of the firearm, again, as the Crown has submitted, it has been recognised for a number of years that possession of a loaded firearm for one's "own protection" is not a matter of significant, "if any", mitigation. Latham J made this observation in the decision of Krstic [2005] NSWCCA 391, particularly at [14].
She observed that the policy of the legislature evidenced by the creation of the offence and the maximum penalty is to "deter and punish possession of firearms per se", whatever be the reason behind it.
In any event, one must ask oneself, if one is in possession of a firearm for "self-defence", what good is the firearm to that person without actually using it, particularly in circumstances where the firearm is loaded. Of course, it is well recognised in various authorities that are cited in the Bench Book that the possession of a firearm that is loaded at the time that it is detected is an aggravating factor.
It was observed in the decision of Najem [2008] NSWCCA 32, at [40], that there is a recognition that firearms and pistols if possessed are liable to be used, and if used are liable to be a source of great danger or damage.
It also involves a recognition "that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons, and that misuse, even without discharge, is liable to amount to a great infringement of "[the rights of others]."
However, it is recognised in the context of the range of seriousness of offences of this type that a person's criminality is more serious when the person possesses a firearm as part of their involvement in other crimes, such as trading in illegal drugs or even trading in illegal firearms or involving oneself in "serious assaults".
I do not conclude that this prisoner possessed the firearm in furtherance of his "involvement in serious assaults" on the basis that he was not convicted of primary or secondary involvement in the killing of the man at Punchbowl.
I bear in mind too that there are other aggravations that can arise in sentencing of this type, such as defacing the identity of the firearm, possession the firearm in a manner that would allow others readily to get access to the firearm, or displaying the firearm in public and the like.
Having a firearm in one's possession in order to enable others to make use of the firearm is another circumstance of general aggravation. I am not talking now about aggravations under s 21A(2) Crimes (Sentencing Procedure) Act 1999. I am talking about aggravations in the understanding of the general principles relating to fact finding that are incorporated within s 21A(1) of the Act.
In relation to Mr Allouche, as I said in my introduction of the material relating to him, Mr Allouche has been sentenced by her Honour for offending that occurred, although he was unconvicted of it at the time, before his arrest in relation to the current matter. I also noted that the prisoner had been sentenced to a term of imprisonment in relation to driving whilst disqualified.
To return to the detail of his criminal history, the context is that the prisoner was born on 17 May 1993, and thus is now 24. At the time of the commission of the offence with which I am concerned, he would have been 22 years of age.
The prisoner has a number of findings of guilt in relation to the misuse of motor vehicles. In 2014 he was sentenced to seven months imprisonment, which was suspended, in relation to a drive whilst disqualified matter. He has convictions in 2009 for driving as a learner whilst unaccompanied; in 2010 for driving whilst suspended; for driving in a manner dangerous or recklessly in 2013; and for driving whilst disqualified, an offence committed in February 2014. That offence of driving whilst disqualified in 2014 was dealt with by a fine and a period of disqualification.
The offence of driving whilst disqualified dealt with in the Local Court to which I earlier referred was an offence committed on 13 October 2015, that is, before the offence of possessing the firearm but before the prisoner's arrest on 23 October of that year.
The prisoner obviously was in custody awaiting determination of the more serious charge when he appeared at the Burwood Local Court on 21 July 2016 and was convicted and sentenced to five months imprisonment commencing on 21 July 2016, the date of the order. I have already earlier explained the way in which I approach the sentencing of the prisoner taking that matter and Fullerton J's sentence into account.
As her Honour pointed out in the circumstance of also having to sentence the prisoner's brother at the same time for being an accessory after the fact to murder, the prisoner's criminal history did not entitle him to any particular leniency, although it was not an aggravating factor in that sentencing exercise and is not an aggravating factor here.
With regard to her findings of fact concerning his personal circumstances, they are in accord with my understanding of the material available. I have mentioned the psychological report already. I did receive what I thought was a very interesting letter prepared by Teresa Allouche, his sister-in-law, who has known the prisoner for 20 years. Her letter was an exceedingly learned and insightful document, a very sophisticated document indeed. Whether the detail of that document was before her Honour or not, I do not know. It reflects upon a particular finding of her Honour in relation to Mr Allouche's family, not that they are on trial or for sentence, that the prisoner is not a person who comes from what could be described as a "dysfunctional family". He has considerable family support, particularly from Ms Allouche, his sister-in-law, and his siblings, and she would continue to support him, as would other members of the family, as they have done throughout the time that he has been in detention. His parents are law‑abiding people. His presence in custody charged with an offence of murder has been a shocking experience for the family. Of course, probably aggravated by the fact that his brother was in a similar position.
It is to be fairly said in relation to that reference and other references that they do not seem to appreciate the relevance of his prior offending, and they certainly do not reflect the detail of the, if I could call it, misbehaviour of the prisoner over the period of time that he was at school. Why he would misbehave in the way that he admitted whilst at Punchbowl Boys' High School and the like is difficult to explain. He told the psychologist that he had over 50 school suspensions in both primary school and high school, and was expelled from school in year nine.
He has had various employment since leaving school and has worked as a carpenter for a period of time. In that regard I note that he has a reference from an employer who employed him before he went into custody in 2015, and in the short period of time that he has been at large since being released from custody in July 2017. He has returned to that employment.
His employer describes him as "hard-working", with a commitment to the tasks at work, and his employer is prepared to continue to support him. I trust that support will continue after the sentence which I impose. He believed in recent times the prisoner had matured, and one would hope that that was true. Otherwise, as I have said, the matters that fell from her Honour's lips concerning the circumstances of the prisoner are findings that accord with the evidence available to the Court in this matter.
There are obviously, in the consideration of Mr Allouche's matter, a number of important considerations. I have already dealt with the assessment of the objective seriousness of Mr El Chami's offending.
Mr Allouche's offending, in my view, taking all relevant matters into account, and noting the absence of the aggravations which I have earlier identified, falls well within the middle range of objective seriousness of offending based only upon the objective circumstances.
His counsel, in his helpful written submissions, sought to portray the offending as below the mid-range of objective seriousness, but one could not conclude that. The firearm, as I have earlier pointed out, was loaded, and that is a very significant matter. It was a firearm of considerable threat, certainly capable of inflicting lethal and fatal injury to another if discharged.
If the prisoner was concerned to have a firearm for protection, even as a threat to others, rather than discharging it, then there was no need for him to have it loaded.
In relation to that aspect of the matter, I would regard the objective seriousness of the offending as at the middle of that mid-range of objective seriousness.
I bear in mind, so far as it may be relevant to the assessment of the objective seriousness of the offending, although it might be otherwise seen to be a subjective matter in one sense, that the prisoner had no prior findings of guilt for firearms offences, and as I have earlier pointed out, in light of his lack of involvement directly in the murder of the other gentleman, no alleged involvement with the use of firearms on previous occasions.
In considering the standard non-parole period I am required to have regard to s 54A(2) Crimes (Sentencing Procedure) Act. That provides that for the purposes of sentencing an offender, a standard non-parole period represents the non-parole period for an offence in the Table to the Division, taking into account only the objective factors affecting the relative seriousness of that offence.
Section 54B(2) now provides that the standard non-parole period is a matter to be taken into account by the Court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.
This latter provision, amended after the High Court decision in Muldrock (2011) 244 CLR 120, reflects upon the need to assess all considerations before fixing the appropriate non-parole period, the standard non-parole period operating as a form of guidepost, but not the starting point for determining the appropriate sentence in relation to the matter.
I have dealt with, in passing, a number of the submissions that have been made by the parties. The only other matter I should refer to by way of material available to the Court are some statistics that were provided by counsel for the accused. They are very general in nature. They certainly confirm the fact that usually, although there are some exceptions, a term of imprisonment will be imposed for an offence of this type, although there are, on the matters reported to the Judicial Commission, a percentage of matters, slightly less than 23%, where full-time custody was not imposed by court order.
I was also provided with some JusticeLink results, but the details of those cases are so sparse as to provide little in the way of guidance as to the range of penalties that may be imposed for an offence of this type. Every offence will differ from another matter involving other accused persons, for a range of reasons, both the objective seriousness and the subjective circumstances of the offender.
With regard to that aspect, I am mindful of the observations of, for example, Spigelman CJ in Bloomfield back in 1998, and also the High Court in Hili, as to the limitations of statistics. But the statistics I was given in this matter really provided me with little assistance once it was clear, as it is the case in relation to Mr Allouche, that the threshold set down by s 5 of the Act had been passed, and it was required that a term of imprisonment be imposed.
I should say, in relation to that aspect of the matter, and Mr Allouche would understand this, there is some aspects of his situation that are beyond his control, but make the current situation that he faces of going back into custody, if I may use the expression rather loosely, "somewhat unfortunate".
By the time he came before her Honour, he had been in custody almost two years. When her Honour dealt with him he was released to bail for the purposes of appearing in relation to this matter. He has been on bail, as I would understand it, barely a month.
In the circumstances where he had been in continuous custody, I would imagine, although an offer of freedom would not be forsaken, the prospect of a short period of freedom only to be returned to custody would be a very daunting situation.
I am not expressing sympathy for Mr Allouche. But I do understand the difficulty. I can tell him of a story of a man that I appeared for, convicted of two offences, one after a plea of guilty, one after a plea of not guilty. He appealed to the Court of Criminal Appeal against both his conviction for one offence, and for the entirely separate offence in respect of the severity of the sentence.
He appealed to the Court of Criminal appeal firstly in relation to the conviction and was acquitted on appeal. He was still serving, however, the sentence the subject of the sentence appeal. He came to thank me the day after his acquittal for his release from custody, in my office at the Aboriginal Legal Service, only to discover, to his horror, that he was still required to serve the sentence that he still had to have reviewed by the Court of Criminal Appeal. In other words, he had been wrongly released by the authorities. They had made a huge mistake. They got word of his acquittal and let him go before he had served the sentence that he was then otherwise currently serving.
I had to sit down with him and explain the sad truth to him, that although he had been in custody for nearly two years, he had to go back to custody, surrender himself to the police, and go back to Long Bay Gaol until his appeal in the Court of Criminal Appeal was heard. And that he did. He did ask me if he could go and see his mother first, and then I took him up to the police station and the matter was finally resolved by the Court of Criminal Appeal.
So I have had personal experience of a person coming out of custody and then coming back into custody. But, as Mr Allouche would understand, I am required, notwithstanding the understanding I have of the impact this will have on the prisoner, the responsibility of performing my duty to the best of my ability.
With regard to each of the prisoners, of course, there is a requirement to have regard to s 3A of the Crimes (Sentencing Procedure) Act, and of course, in this sentencing exercise, to varying degrees, all of the purposes of sentencing have some role to play, although less in respect of protection of the community in the case of Mr El Chami.
With regard to the weight to be given to general deterrence, obviously, it will be greater in the case of Mr Allouche than Mr El Chami, having regard to the character of the weapon and the purpose of its possession, and the circumstances in which it was retained.
With regard to both men, however, I am required, amongst the purposes of sentencing, to have regard to the promotion of their rehabilitation, in the case of Mr Allouche, knowing, of course, that he has had a far greater period in custody than Mr El Chami over the last two years.
With regard to Mr Allouche I have referred to his criminal history. It is certainly not an aggravating factor under s 21A(2). There is, it can be fairly said, an absence of violence in his history and an absence of firearms type offences, but her Honour, Fullerton J, in her judgment referred to the aspect of the prisoner's inability to comply with court orders on prior occasions.
In the case of Mr El Chami, in my view his criminal history is not "significant"; findings of guilt without conviction, for which he was modestly fined in Queensland, and the special circumstances of him concealing a serious indictable offence, in my view do not disqualify him from consideration of a finding pursuant to s 21A(3) in mitigation, that he did not have a significant criminal history.
If I might just deal with s 21A(3) in relation to both prisoners, as I am required to do particularly in the context of having regard to the standard non-parole period, in the case of each offender I find that the injury, emotional harm, loss or damage caused by the offence was not substantial. It is not common that one would find that as a feature of such offending, but it is possible that it could occur.
I am prepared to accept in each instance that the offence to which they have pleaded guilty, 'each offence' includes the one matter on a certificate in each case, was not part of planned or organised criminal activity. Of course, there is a live question as to how Mr Allouche gained access to such a firearm. However, I could not conclude that it is related to organised criminal activity.
As I said, Mr El Chami does not have a significant record of previous convictions. He had no convictions, in fact, at the time of the commission of this offence, but I have already pointed out the conceal serious indictable offence matter was not then prosecuted.
I am prepared to accept, in the case of Mr El Chami, that he was a person of good character. Taking all matters into account, I cannot find that in relation to Mr Allouche.
I do, however, conclude in relation to both offenders that they are unlikely to reoffend, for somewhat different reasons. I got the impression in the conduct of the matter before me in relation to Mr Allouche, that his time in custody has been a salutary experience and that may operate to prevent him from offending in the future. In the case of Mr El Chami, of course, there is the absence of significant prior convictions.
Both men have significant family support, and I accept both men come from law-abiding families as a general rule, and that will assist them.
I am prepared to find that both offenders do have good prospects of rehabilitation. It was a matter favourably found in relation to Mr Allouche by Fullerton J, and I support her finding. Likewise, in the case of Mr El Chami.
Both prisoners have expressed remorse in their apologies to the Court. In the context of all the material, I cannot find "remorse" as a mitigating factor. However, it must be fairly said the character of the offending is not one which readily lends itself to "remorse". Where one has injured some other person or damaged some other person in some way, the issue of remorse, it seems to me, is a much more significant aspect of the sentencing process.
Each offender has pleaded guilty, which is itself a mitigating factor.
That brings me to a discount for the pleas of guilty. I am mindful that both men pleaded guilty in circumstances where they were arraigned in this Court after being committed for trial, but the delay in their pleas has to be seen in the context of them being charged with murder and the various processes involved before ultimately they pleaded guilty to far less serious offences, and having pleaded guilty on arraignment in the District Court in each case, not on the day that each matter was to commence for trial, I have formed the view that I should grant the offenders a discount greater than 10% as a recognition of the utilitarian benefit of their pleas of guilty.
In that regard, of course, the application of a discount for the utilitarian benefit of the pleas of guilty is set down by the guideline judgment of Thomson and Houlton. The Court indicated the general range would be between 25% in the case of a plea entered at the first reasonable opportunity, and 10% for a plea entered at the time the matter was to commence at trial.
These discounts, of course, are going to suffer something of a change with legislation planned by the New South Wales Government. I do not criticise the planned legislation. I merely make the point that the discretion available to a judge to grant particular discounts may not be as wide as it has been up till the present time once that legislation comes into force.
But, noting the Crown's submission that I should only give a discount of 10% in each instance, in my view, in the circumstances, particularly in the context of other, more serious, matters in some respects, waiting around at the relevant time, particularly charges of murder, a discount of 15% is a reasonable discount to give having regard to all the material available to me.
I have already pointed out in relation to Mr Allouche, I take into account time spent in custody not otherwise attributable to other offending. In the case of Mr El Chami, there is only two days of custody, as I earlier mentioned, that is unaccounted for, and in the scheme of things, that is insignificant.
In relation to Mr Allouche, I have indicated to him that I do not propose to impose any pecuniary penalty in respect of the matter on the s 166 certificate. The simple reason for that, if I have not already made it clear, is his possession of the firearm, loaded with those rounds of ammunition in it, is so bound up in the determination of the appropriate sentence for that offence, it would seem to me to amount to an element of double counting to impose some additional penalty. The point to be made is that for possessing ammunition without a licence or permit, there is no term of imprisonment permitted, as I understand it, there are only penalty units provided for as the maximum penalty. If there was a term of imprisonment I could have imposed a small term of imprisonment entirely concurrent with the other term of imprisonment. But to impose upon him some additional financial penalty that might affect his ability to get a driver's licence or the like when he is released from custody is unnecessary.
It is a slightly different situation with Mr El Chami. The ammunition in his possession had nothing to do with the "firearm". It was a solitary projectile. There is no suggestion of anything sinister about it, although he obviously should not have had it, and in my view, in the case of Mr El Chami, a modest fine of $100 is sufficient penalty for that offending.
The various matters that I have identified in my judgment, I trust have largely dealt with matters that have been the subject of submission by learned counsel for the Crown and learned senior counsel for each of the prisoners.
Insofar as both offenders are relatively young men, I have taken that into account, a matter raised on behalf of each of the prisoners.
The issue of totality, I have obviously taken into account as reflected in my earlier remarks relating to Mr Allouche.
With regard to Mr Allouche, obviously I cannot find in his case that his record does not amount to a significant record of previous convictions, but as I said, I do not find his previous record as an aggravating factor.
Likewise, in relation to the very helpful submissions of the Crown, the various matters identified by the learned Crown Prosecutor have been taken into account. I think that is self-evident. I have actually relied upon her analysis of aspects of the matter, particularly the principles. The facts in relation to the matter as she analyses them have also been taken into account.
The learned Crown Prosecutor in fact, as I said, in her submissions pointed to details relating to the character of the firearm possessed by Mr El Chami in evidence given before Fullerton J, for which I am grateful, providing some additional material to that set out in the facts. In relation to that firearm I had the benefit of a photograph of the firearm as well.
The learned Crown Prosecutor noted that Mr El Chami had been on bail since 29 January 2016, almost 19 months. He had been reporting daily, with a curfew from 9pm to 6am. He was not to be absent from the home during curfew hours unless with his parents or his wife, so he has been under quite strict conditions for an extended period of time, albeit not because of any delay in this matter but to allow the other, more serious matters, to be resolved.
Likewise, Mr Allouche has been on bail for a short period of time, reporting daily, with a curfew. It is expected, of course, when people are on bail, that they will observe their conditions. It is the price people pay for being permitted to be free in the community, in circumstances where they might otherwise be in custody awaiting sentence.
That having been said, I have taken that aspect of the matter into account.
Mr. El Chami, do you mind standing up, thanks very much; I will deal with you first.
In relation to the offence to which you pleaded guilty for which you were committed for sentence, you are convicted.
Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, I order that you enter into a good behaviour bond for a period of two years from today.
Conditions applying during the term of the bond are that, firstly, you are to appear before court if called to do so at any time. Secondly, you are to be of good behaviour. Thirdly, you are to advise the registrar or clerk of the criminal listing directorate of the District Court of Sydney, Downing Centre of any change of residential address. Fourthly, you are to accept the supervision and guidance of the New South Wales Community Corrections Service for such time as the service deems necessary, and obey all reasonable directions of the officers of that Service. You are to report to the Community Corrections office at Bankstown, which I think would be the nearest major regional location to Lakemba, within seven days of today.
You can take a seat, sir.
In relation to the matter on the s 166 certificate of possessing ammunition, you are convicted. You are fined the sum of $100. You are given 28 days to pay that.
You can leave the dock, thanks very much. Just take a seat behind your counsel.
I should say, Mr El Chami, I gave some thought to the alternative of imposing a term of imprisonment, but with a view to suspending it, but I determined ultimately that, firstly, in your case, s 5 had not been satisfied to warrant a term of imprisonment being imposed, but otherwise the term of imprisonment I imposed would have placed you on a bond for a shorter period of time than I can under s 9. In other words, I would have imposed a term of imprisonment of somewhere between 12 and 18 months, and I could only place you on a bond for the term of imprisonment, so I determined that I should place you on a bond to be of good behaviour for two years.
Mr Allouche, if you do not mind standing up, sir.
In relation to the offence on indictment of possessing a pistol, not being authorised to do so, you are convicted. You are sentenced to a period of one year six months imprisonment by way of non-parole period. That is to commence on 18 August 2016 and expire on 17 February 2018. I fix a balance of sentence of one year ten months, expiring on 17 December 2019.
I have made a finding of special circumstances in your case. In my view, there is a requirement for an extended period of supervision to assist you to adjust to community living. This is a matter reflected, in fact, in the psychological report provided for you. I bear in mind, of course, technically, taking into account all the other time you have had in custody, this is the first term of imprisonment that you have had, and you require, in my view, particular supervision to assist you in relation to employment and training on your release to custody.
In relation to the matter on the s 166 certificate, possess ammunition without holding a licence, you are convicted. Pursuant to s 10A, Crimes (Sentencing Procedure) Act 1999, there is no further penalty required in that matter.
Yes, Madam Crown, is there any technical matter I can correct?
GAULD: No, your Honour. Could I just clarify the expiry date for the sentence? Was it 17 September 2019? I think I might have missed that.
HIS HONOUR: No, it is 17 December 2019. The balance of sentence is one year ten months. It is a total sentence of three years four months, representing a discount of 15% upon a sentence of four years imprisonment. But it is a balance of sentence of one year ten months; a non-parole period of one year six months expiring on 17 February 2018.
GAULD: Thank you, your Honour.
HIS HONOUR: Do you understand the sentence, Mr Allouche? So you have got to serve another six months in custody, and I understand, of course, as I have already indicated, having been released from custody, you were no doubt hoping that all your legal worries for the short term were at an end. The circumstances are not such that I could allow you to remain at large, but I have made substantial recognition of matters favourable to you that warrant your release to be considered at an earlier time than might otherwise have been the case.
Yes, thank you very much, you are excused. You will have to go with the officers.
Mr El Chami, you will be required to go upstairs to the Registry at level 3, and you cannot leave the building until you enter the good behaviour bond that I have ordered.
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Decision last updated: 18 October 2017