R v Elbadar

District Court of NSW|2021-06-22

REMARKS

The offender is to be sentenced in respect of the following three offences: 1. H145818902/Sequence 3 - Accessory after the fact to fire firearm at other than dwelling disregarding safety. This is an offence pursuant to s 93GA(1) and s 347 of the Crimes Act 1900. The maximum penalty prescribed is five years imprisonment and there is no standard non-parole period. 1. Sequence 4 - Accessory after the fact to fire firearm at other than dwelling disregarding safety. This also is an offence pursuant to s 93GA(1) and s 347 of the Crimes Act 1900. The maximum penalty is five years imprisonment and there is no standard non-parole period. 1. H67114803 - Count 2 on the indictment (Sequence 10) - Possess unauthorised firearm being an Uzi submachine gun (serial number 094181) This is an offence pursuant to s 7(1) of the Firearms Act 1996. The maximum penalty prescribed is 14 years imprisonment and there is a standard non-parole period of 4 years imprisonment.
Attached to Count 2, the offender has asked the following matters to be dealt with on a Form 1: Sequence 1 - Possess prescribed restricted substance (220 tablets of diazepam) Sequence 2 - Possess prescribed restricted substance (a tablet of 0.30 grams oxycodone) Sequence 3 - Possess prescribed restricted substance (a tablet of zolpidem) Sequence 4 - Possess prescribed restricted substance (28 tablets of prednisone) Each of those offences are pursuant to s 16(1) of the Poisons and Therapeutic Goods Act 1966. Sequence 5 - Possess prohibited drug (52 tablets: total 7.44 grams of oxymetholone) This is an offence pursuant to s 10(1) of the Drug Misuse & Trafficking Act 1985. Sequence 7 - Possess ammunition without license/permit/authority (a 25 round Uzi submachine gun magazine containing 24 unfired cartridges) This is an offence pursuant to s 65(3) of the Firearms Act 1996. The offender has admitted his guilt in respect of each of those offences.

The sentence hearing

The sentence hearing took place on 22 June 2021. The Crown Sentence Summary became Exhibit A. It includes a Statement of Agreed Facts which may be summarised as follows.
Situated on Enmore Road in Newtown was a massage parlour in a two-story brick building. The front entrance was located on Enmore Road and a rear entrance was accessible via a garage located on Reiby Lane. On the other side of Reiby Lane were residential units.
The premises were fitted with CCTV cameras looking out onto Reiby Lane and the business operated seven days a week from 6pm to 6am.
At approximately 4.18am on Friday 9 March 2018, the CCTV camera facing Reiby Lane captured a male walking towards the rear of the premises. At approximately 4.19am, the male held up a handgun and fired two rounds towards the CCTV cameras. The bullets hit the wall that the CCTV cameras were situated on and the male then fled the scene. The manager of the premises was unaware of what occurred and the police were not called to the scene.
At 1.30am on Saturday 10 March 2018, the manager was in the kitchen of the premises when she heard a "pop" sound approximately six times. She went to the office to look at the CCTV cameras and could see smoke and particles falling to the ground from the back of the premises' gate. She smelled gun-power and asked the occupants of the premises to remain inside, lock the front-entry door and call Newtown Police Station.
A nearby resident had observed a vehicle driving very slowly along Reiby Lane without its lights on. He saw a front-seat passenger lean out of the window with his arm pointing high and saw the passenger fire shots. He could not see the gun, however he could see the flash and hear the shots. The nearby resident saw that they were hitting the building, towards the upper-windows of the building. The car then left and the resident also called the police.
What occurred was captured on CCTV cameras at the rear of the building. On one view, the male front passenger of the vehicle put his arms out of the window of the vehicle and fired two rounds. The car then kept moving and then the same male fired a further five rounds in the direction of the premises and its neighbouring property. The vehicle was then observed to turn right into Station Street.
The agreed facts then outline a dispute between the manager of the premises and a former employee, Assaf, which had been simmering for a number of weeks. The manager had accused Assaf of stealing money from the premises and had terminated his employment. When spoken to by police, Assaf had denied any knowledge of the shooting.
Shortly after the shooting, the police attended the premises and a crime scene was established at the premises and its neighbouring property. Police observed damage to the garage door at the rear of the premises and damage to the adjoining properties. A number of exhibits were located including four 9mm calibre-fired cartridge cases, two impact damage 38/.357/9mm calibre-fired bullets and two impact damage portions of copper jackets. The exhibits were later examined by a ballistics expert.
On Friday 16 March 2018, police attended the home of the offender at Greenacre. They had been contacted by his mother, who told police that the offender had firearms at the property. Police were taken to the garage of the home where they located in a wooden cabinet the following: 1. In the second drawer on the right hand side police located, on top of a grey Adidas jacket, an Uzi submachine gun. It did not contain a magazine. Police rendered the weapon safe and noted that it contained a serial number, being 094181. 2. In the bottom drawer on the left hand side, police located a Smith & Wesson M&P 9mm self-loading pistol. Police rendered the weapon safe and observed that it contained a magazine containing six rounds of ammunition. 3. In the bottom drawer on the left hand side police located, wrapped in a floral piece of cloth, a 25-round Uzi submachine gun magazine containing 24 unfired cartridges. 4. The offender was then arrested and a search of his bedroom revealed the various substances which make up the six offences on the Form 1.
The offender agreed to participate in an interview with police. He agreed he lived in the house with his parents. He denied any knowledge of the firearms and claimed that all of the tablets located in his bedroom were for his own personal use.
Whilst he was bail refused and in custody, the offender rang the phone number of Assaf. His call was not answered.
The ballistics expert made the following findings: 1. The Uzi submachine gun was confirmed to be a 9mm parabellum calibre Israel Military Industries Uzi submachine gun. It was in working order and capable of propelling projectiles by means of explosives in rapid succession during one pressure of the trigger. It is a prohibited firearm. 2. The detachable box magazine from the Uzi submachine gun has a capacity for 26 9mm parabellum calibre cartridges. It is a firearm part as described in s 4(1) of the Firearms Act 1996 and is a prohibited weapon as described in schedule 1 clause 4(4)(g) of the Weapons Prohibition Act 1998. 3. The Smith & Wesson pistol was confirmed to be a 9mm parabellum calibre Smith & Wesson military and police self-loading pistol. It was test fired and found to be in working order. It can propel a projectile by means of explosive. It is reasonably capable of being raised and fired by one hand and does not exceed the prescribed dimension of 65cm in length. It is a pistol as defined in s 4(1) of the Firearms Act 1996. 4. The detachable box magazine from the 9mm parabellum calibre Smith & Wesson was examined and found to be suitable for use in the self-loading pistol. It has the capacity to hold 10 9mm parabellum calibre cartridges. It is a firearm part as described in s 4(1) of the Firearms Act 1996. 5. The cartridges located by the police bore the CBC head stamp and each consisted of a cartridge fitted with a primer and projectile. They are designed for use in weapons chambered for 9mm parabellum calibre cartridges and are suitable for use in a submachine gun and self-loading pistol. 6. The offender was not a holder of a firearms license or permit in New South Wales, nor was he a holder of a license or permit for prohibited firearms under Schedule 1 of the Firearms Act 1996 for ammunition.
The Smith & Wesson self-loading pistol had been reported stolen on 15 March 2017. The weapon was still registered. There were no records of the Uzi submachine gun ever having been registered.
The exhibits taken from the crime scene were compared and a microscopic examination revealed that the four fired 9mm cartridge cases had been discharged from the same firearm, that is, the Smith & Wesson pistol. It was further established that the same firearm discharged both the testing fires and the four fired cartridge cases.
The Uzi submachine gun, the Smith & Wesson pistol and the Adidas jacket were forwarded to FASS for analysis. The following results were returned: 1. From a swab of the handgrip of the Uzi submachine gun, the DNA recovered originated from two individuals. The major contributor has the same profile as Assaf. The DNA from the minor contributor was not suitable for comparison due to the low-level. 2. From swabs of the trigger and knurled cocking mechanism of the submachine gun, a mixed DNA profile was recovered but was not suitable for comparison due to the low-level and complexity. 3. From the stop of the magazine for the submachine gun a partial DNA profile was recovered and had the same profile as the offender. 4. From a swab of the grip of the self-loading pistol, a mixed DNA profile was recovered but the DNA was not suitable for comparison due to the low-level and complexity. 5. From a swab of the trigger of the self-loading pistol, the DNA recovered is a mixture that originates from at least three individuals. The offender could not be excluded as a contributor. 6. From a swab of the slide of the self-loading pistol, the DNA recovered is a mixture that originates from at least three individuals. The offender could not be excluded as a contributor. 7. From a swab of the top of the magazine for the self-loading pistol, the DNA recovered is a mixture from at least two individuals, however the offender was not identified as one of them. 8. From a swab of the base of six of the 9mm cartridges from the self-loading pistol, the DNA recovered is a mixture from at least two individuals. The offender could not be excluded as a major contributor to that mixture. 9. From a tape-lift of the front area of the Adidas jacket, the DNA recovered is a mixture that originates from at least three individuals. Assaf and the offender could not be excluded as major contributors to that mixture. 10. From a tape-lift of the back area of the Adidas jacket, the DNA recovered is a mixture that originates from at least two individuals. The offender could not be excluded as a major contributor. Assaf could not be excluded as the minor contributor.
When arrested on 18 May 2020, in relation to sequences 2 and 3, the offender exercised his right to silence.
The offender admits that he took possession of the Smith & Wesson M&P 9mm self-loading pistol knowing that it had been used in the shootings at Newtown on 9 March 2018 and 10 March 2018.
Exhibit A also included the criminal antecedents of the offender. He was born in 1991 and his criminal record commenced in 2009 when he was convicted of a number of traffic offences in the Local Court. In 2011, there were further minor traffic offences. One of those offences was drive vehicle and menaces other with intent to menace, for which he was sentenced to a period of imprisonment for 12 months with a non-parole period of 9 months. In the same year he was convicted of four other offences and sentenced as follows: 1. Not keep firearm safely - pistol - imprisonment for one month 2. In company whilst armed with dangerous weapon - imprisonment for five years with a non-parole period of three years 3. Possess ammunition without holding license/permit/authority - fine of $1000 4. Possess unregistered firearm - pistol - imprisonment for three months
In 2013, the offender was sentenced for an offence of inmate possess mobile phone/sim card with a period of imprisonment for six months.
In 2016, he was convicted of offences of drive motor vehicle whilst license suspended and police pursuit - not stop - drive dangerously - first offence, for which he was sentenced to bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") to two years and three years respectively.
In 2017, he was convicted and fined for an offence of possess/attempt to prescribe restricted substance and in 2018 he was convicted and fined for an offence of possess or use prohibited weapon without permit.
In 2019, he was convicted of various offences including possess prohibited drug, use unregistered registrable class A motor vehicle on road, driving motor vehicle during disqualification period (second offence) for which he was imprisoned for two months, possession of prohibited drugs, driver stating false name or home address, drive vehicle under influence of drugs (second offence) for which he was sentenced by way of Community Correction Order for a period of two years commencing 29 January 2020 and terminating on 28 January 2022 with two years disqualification, supply prohibited drug greater than indictable and less than commercial quantity for which he was sentenced to an Intensive Correction Order for a period of seven months, possess/attempt to prescribe restricted substance, possession of equipment for administering prohibited drugs for which he was administered fines, and stalk/intimidate/intend fear physical etc. harm (domestic) for which he was sentenced by way of conditional release order for a period of 12 months commencing on 1 April 2020.
In November 2019, he was also convicted of possess or use prohibited weapon without permit for which he was fined.
Exhibit A also included the offender's custodial records which included numerous institutional infractions.
Exhibit A also included numerous evidentiary crime scene photographs and photographs of the weapons the subject of the charges. It also included a disk comprising the CCTV footage compiled on 9 and 10 March 2018 at the rear of the premises in Reiby Lane, Newtown, which was played in open court.
Exhibit B was a Sentencing Assessment Report under the hand of Mr S Abbott dated 7 June 2021. The author noted that the offender intends to reside with family following his discharge from custody. Apart from two work colleagues, most of his associates were people with criminal histories and he did not intend to renew any of these past associations.
The author noted the offender's criminal history dating back to 2009 for vehicle, weapons and ammunition charges similar to the current index offences. His first drug-related offences occurred in 2018 which is consistent with his assertion that he commenced use of illicit substances in 2018.
Under the heading "Attitudes", the author recorded that the offender did not attempt to minimise his actions but displayed a pro-criminal attitude when stating he felt obliged to hold the weapons and the ammunition as he had a drug debt comprising $17,000. He reported commencing his use of illicit drugs after the death of his father in 2018. That escalated to using approximately $500 worth of illicit substances each week. The offender reported he had not used prohibited drugs since being in custody however he had not been targeted for urinalysis testing.
Under the heading "Violence", the author recorded that the offender "attempted to shift blame as he denied having fired the firearms at all, stating that he did not do anything other than hold the weapons for his friend". The author also noted a number of misconduct charges whilst the offender has been in custody. The only insight he offered into his offending was that he could not look after his ailing mother due to his incarceration. The author noted that his response to supervision in the past has been satisfactory with the primary focus on the use of illicit substances and maintaining abstinence from them.
The offender was assessed as a medium/low risk of reoffending and as being suitable to undertake community service work.

The offender's evidence

The offender tendered a report of Mr S Albassit, psychologist, dated 7 June 2021 (Ex 1.2). The author recorded that the offender is a 29 year old single man, being the youngest of seven siblings. He was expelled from school in year 10 and had difficulty learning. He then worked for his older brothers at fruit markets on and off over the next 12 years.
The offender reported first using illicit substances at the age of 15. The offender started using cannabis heavily and his substance use escalated. He was first incarcerated at age 18 and was released approximately five years later.
In February 2016, the offender was involved in a major motor vehicle accident ("MVA"). He had had an argument with his partner and was under the influence of illicit substances. When police tried to pull his vehicle over, he panicked and subsequently crashed his vehicle into a pole. He had to be cut out of the vehicle and was hospitalised with substantial physical injuries including a head injury, lung contusion and collapsed lungs. He spent three weeks in ICU and suffered significant trauma to his brain. The author reported that the offender struggles with short-term memory, has become more agitated, forgetful, confused and socially withdrawn. Thereafter, his illicit substance use increased significantly and he was using prescription medication to nullify his pain and later became dependent on them.
The offender reported that he fell into a deep depression, had become increasingly anxious and avoided his family and friends. He used cocaine, ice and GBH on a regular basis to numb his physical and emotional pain.
The offender married in 2017 however the marriage lasted for only four months. He stated that he was always angry, short-tempered and was regularly using illicit drugs. Thereafter, his drug use spiralled and he began to accumulate substantial debt. He tried to nullify his debt by doing favours for the drug suppliers. His relationship with his family deteriorated substantially and he described living his life "with reckless abandonment". In 2018 his father died, which affected him significantly as he was not around for his father in his time of need. His drug addiction continued to spiral out of control until his most recent arrest and subsequent incarceration.
Psychological assessment of the offender determined that the symptomatology presented was consistent with a dual diagnosis of post-traumatic stress disorder (PTSD) and substance use disorder as outlined in DSM-V. He had been exhibiting symptomatology of PTSD for approximately four years and of substance use disorder for approximately 13 years. Due to the trauma experienced from the MVA in February 2016, the offender experiences recurring intrusive thoughts, lucid dreams and flashbacks. His mood is poor, he finds it difficult to get motivated and feels worthless. Mr Albassit stated a belief that his poor concentration and short-term memory deficiency were a direct result of the MVA. He further opined that the offender's addiction to poly substances, trauma and subsequent mental health issues developed into a maladaptive pattern of substance use. He stated: "In my opinion there is a direct and significant correlation between Mr Elbadar's offending behaviour and his ongoing chronic psychiatric/psychological conditions. His feelings of worthlessness and low self-esteem stemmed from the trauma associated to serious MVA sustained in 2016 and then the subsequent death of his father in July 2018, lead to self-medicating through substance use, namely cannabis, cocaine, ice and prescription medication. In and around the time of the offences, Mr Elbadar was under the influence of illicit drugs which significantly impaired his judgment in relation to the decision to carry out the offences carried out above. Furthermore, Mr Elbadar's ability to comprehend the seriousness of his actions in relation to the firearms offences can also be attributed to his easily manipulated personality and his need for approval and belong. Mr Elbadar appears to be easily led and influenced, which in my opinion led to having the firearm kept at his residence." (sic)
The author also noted that when asked what he thought of his offending behaviour, the offender acknowledged that it was undeniably wrong to have committed the offences and he was appalled by his actions and expressed regret with remorse. Mr Albassit opined that the offender had taken responsibility for his actions and wanted to make significant changes. His willingness to engage during the assessment was positive for his prospects of rehabilitation. He had been abstinent from the abuse of substances whilst incarcerated and had completed a number of programs. The author noted he had not received any psychiatric or psychological treatment that would have been adequate to address his chronic mental health conditions. He noted that it typically takes up to 24 months of intensive therapy to treat PTSD and to achieve optimal results. Such treatment would greatly improve the offender's ability to make sound judgments based on correct strategies to deal with decision making and impulse control to correct his reckless behaviour. He attached a comprehensive treatment plan which included ongoing psychotherapy, pharmacotherapy, psychological therapy, regular supervision by his GP and referral to a residential drug and alcohol program.
Exhibit 1.3 is a letter written by the offender to the court expressing his regret for his offending and acknowledging his responsibility for it. He also acknowledged the heartache caused to his family by his incarceration and stated he had had a lot of time to reflect on his life and the decisions he had made. The offender stated he had been working to better himself, to turn his life around and to be a positive role model upon his return to the community.

The Crown submissions

The Crown relied on a detailed written outline of submissions in which it set out the history of the offending. The Crown submitted that the objective seriousness of sequences 3 and 4 - accessory after the fact to fire firearm on 9 and 10 March 2018, fell at the mid-range of objective seriousness for offences pursuant to s 93GA(1) of the Crimes Act. The Crown submitted that the court would have regard to the fact that the offences were serious ones. They involved a person or persons shooting at a building knowing that persons were inside. The building was in a residential neighbourhood and the chance of someone being injured or killed - either an occupant at the building or a person in a residential building nearby - was high. The Crown submitted that the time of the shooting ensured that people would be in the building and targeted, owing to the nature of the business operating there. Further, people in the surrounding residential buildings would likely be present in their homes. The agreed facts also disclosed a member of the public on the street very close to the shooting on 10 March 2018 and potentially in harm's way. Further, on each occasion multiple rounds were fired. On 9 March 2018, two rounds were fired into the building and on 10 March 2018, six rounds were fired into the building.
The Crown submitted that in determining the objective seriousness of the offending, the court would also have regard to the nature of the accessorial liability. The offender had secreted the firearm used in the two shootings knowing the nature of the offences that were committed. The only reason for this was to assist the perpetrator of the offences to escape identification and arrest for the offences.
In relation to Count 2 on the indictment, the offence of possess unauthorised firearm being the Uzi submachine gun (serial number 094181), pursuant to s 7(1) of the Firearms Act 1900, the Crown referred to R v Farrell (2014) 239 A Crim R 212; [2014] NSWCCA 30 at [63] where the court said: "Relevant matters to take into account in an assessment of the objective seriousness of the offence will include the nature of the weapon; the circumstances attending the respondent's possession of it; the fact that it was loaded and its identification information had been defaced; that further ammunition was found with it. Obviously relevant as well is the seriousness with which Parliament has indicated such offences are, given the prescription of a 14 year maximum penalty and a 3 year standard non-parole period."
Here, the firearm in question was a submachine gun, capable of firing ammunition in rapid succession. It was in working order and a serious example of possessing a firearm. There was no legal reason to possess such a firearm. The Crown submitted that whilst the firearm was not loaded the court would take note of the fact that there was ammunition found with the firearm and that it could be loaded and fired in a short amount of time.
Whilst the identification information had not been defaced, the firearm was not stored in any manner that could be considered secure or safe. The Crown therefore submitted, largely owing to the nature of the firearm, that the offence fell at the mid-range of objective seriousness.
The Crown submitted that the Form 1 matters attached to this offence are relatively less serious offences usually finalised in the Local Court. In taking these matters into account on sentence, the court should note the different type of offences and that they did not constitute the same course of conduct as the index offence.
With respect to the remaining offence on the s 166 certificate, being possess unregistered firearm, this was a serious offence carrying a maximum penalty of 14 years imprisonment. However, the Crown conceded that the subject weapon is the same firearm as the offender is being sentenced for in Count 2 and that there will be significant concurrency with the sentence imposed for it.
The Crown submitted that general deterrence is important in the sentencing process, referring to El Jamal v R [2017] NSWCCA 243 where the court said the clear intention of the Firearms Act 1996 is to remove firearms from the community unless possession is expressly authorised. Specific deterrence was also important here, given that the offender had prior convictions for firearm offences, namely, possession of an unregistered pistol and possess ammunition. He had also been convicted of armed robbery. The Crown submitted that the offender was entitled to a 25% utilitarian discount for his early plea of guilty in respect of sequences 3 and 4 and a 10-15% discount in respect of Count 2 given the late plea. It was common ground that the total amount of pre-sentence custody up to the sentence hearing was 585 days or 1 year, 7 months and 7 days.
The Crown conceded there was some evidence of remorse as conveyed in the offender's letter to the court (Ex 1.3) and as described in the report of Mr Albassit (Ex 1.2). The Crown submitted the court would give no weight to the psychologist's opinion of the offender's ability to comprehend the seriousness of his actions in relation to the firearms offences could be attributed to his easily manipulated personality and his need for approval and to belong. The offender had firearms offences pre-dating the MVA and there is no evidence that the offender failed to appreciate the severity of his actions.
The Crown submitted that this was not an appropriate case for a prison sentence to be served by way of an ICO, referring to R v Fangaloka [2019] NSWCCA 173 at [67].
In his oral submissions, the Crown noted that the disclosure to the psychologist that the offender had a drug debt of $17,000 was the first time that information had been disclosed and the Crown submitted it would carry very little weight. The Crown rehearsed its submissions in respect of the utilitarian discount to be applied and conceded that the weapon the subject of the related offence on the s 166 certificate being an offence pursuant to s 65(3) of the Firearms Act 1996, related to the same firearm, namely, the Uzi submachine gun. Therefore, there was a significant overlap with the offending in Count 2.

The submissions on behalf of the offender

Counsel for the offender also relied on a detailed outline of submissions. In respect of Count 2, counsel submitted that the objective seriousness fell below the mid-range for an offence pursuant to s 7(1) of the Firearms Act 1996 for the following reasons: 1. The possession of the Uzi was not associated with any crime, relying on R v Thurgar (1990) 51 A Crim R 109 at 113; Andary v R [2020] NSWCCA 75. It was submitted there was no link between the shooting on 9 and 10 March 2018 and the possession of the Uzi. 2. There was no evidence that the Uzi was associated with any other crime or that it was intended to be used in criminal activity. There was further no evidence that the offender ever used the weapon in any threatening way, unlike the offender in R v Mouloudi [2004] NSWCCA 96 at [63]. 3. There was no evidence as to the length of time that the offender had the firearm in his possession. 4. The firearm was not in public. 5. The firearm was not hidden in any sophisticated way. 6. There was no evidence of any significant planning in acquiring the firearm.
In relation to the assessment of objective seriousness of the offending in sequences 3 and 4, it was submitted that the gravamen of the offences was that the offender admitted taking possession of the Smith & Wesson pistol knowing it had been used in the shootings on 9 and 10 March 2018. It was submitted the objective seriousness was below mid-range for offences pursuant to s 93GA(1) of the Crimes Act for the following reasons: 1. The firearm was seized only six and seven days after the respective shooting. 2. DNA evidence obtained from the pistol revealed that the DNA of another person was on the trigger and the magazine. It was submitted that ballistics analysis linked the firearm to the shooting and the police had CCTV evidence of the shooting and evidence of enmity between the manager and Assaf. It was thus submitted that the conduct of the offender in no way successfully delayed or thwarted the investigation and prosecution of the principal offender. 3. The extent of the knowledge of the crime by the offender as the accessory to the shootings cannot be established beyond the elements of the charge itself. It was submitted that it could not be said that the offender knew or knows the identity of the shooter or that the offender assisted the principal offender in escaping justice. 4. Whilst there were two offences, the criminality is effectively encapsulated in a single act, being the receipt of the firearm.
It was submitted that the offences on the Form 1 would only marginally increase the penalty for the substantive offence in Count 2. They inform the court that the offender has a poly-substance drug problem and corroborate the offender's account of drug addiction given to Mr Albassit.
Counsel submitted that the offender was entitled to a 25% utilitarian discount on sentence in respect of sequences 3 and 4, and a 15% discount in respect of Count 2 on the Indictment.
It was submitted that the offender's criminal history does not entitle him to any substantial leniency; however, it does not constitute an aggravating factor.
The offender submitted that he had expressed heartfelt and insightful contrition and remorse in his apology letter to the court. The court would also take into account the 19 months and 7 days he had spent in custody to date.
Counsel referred to the application of the principle of totality, referring to Mill v The Queen (1988) 166 CLR 59 at 63 where the court held that the overall sentence must be just and appropriate to the totality of the offending behaviour. It was submitted there should be total (or almost total) concurrency for sequences 3 and 4 as they arise from the single act of taking possession of the Smith & Wesson pistol. It was further submitted there should be partial concurrency for the Uzi submachine gun in that the items were possessed at the same time and in the same place.
Counsel submitted that the offender presents with a relatively complex subjective case, relying on the personal background outlined by Mr Albassit in his report. It was submitted that the mental disabilities of the offender were relevant in reducing his moral culpability, in making him an inappropriate vehicle for general deterrence, and in meaning that a custodial sentence may weigh more heavily on the offender and in reducing or eliminating the significance of specific deterrence, in accordance with DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
Counsel referred to the opinion of Mr Albassit that the offender was showing symptomatology supporting a diagnosis of PTSD and substance use disorder. He was also in the severe range for depression, anxiety and stress. Counsel submitted there is a direct and significant correlation between the offender's criminal conduct and his ongoing chronic psychiatric/psychological condition.
It was submitted on behalf of the offender that his prospects of rehabilitation are reasonable. He had accepted responsibility for his actions, he had expressed remorse for his conduct and his plea of guilty was an acknowledgment of his conduct. It was submitted that in the event the court imposed a full-time custodial sentence, special circumstances should be found so as to alter the statutory ratio between head sentence and non-parole period so as to progress the offender's rehabilitation. Counsel for the offender advocated that if a period of imprisonment was imposed, it should be served by way of an Intensive Corrections Order.
In his oral submissions, counsel for the offender rehearsed his submissions as to the objective seriousness of the offending being below mid-range for each offence. Whilst the evidence established that the offender was in possession of the Smith & Wesson pistol for a short period of time, between six and seven days following the shootings, an inference was available that he was in possession of the Uzi submachine gun for the same period of time. Counsel conceded that the disclosures made by the offender to the author of the Sentencing Assessment Report was the first time the offender gave an explanation as to how he came into possession of the firearms. Counsel submitted the court would accept this explanation by virtue of its very "openness". It was conceded that the offender knew that the shooting had occurred, however, attempts to conceal the firearms were neither sophisticated nor planned.
In respect of sequences 3 and 4, accessory after the fact, counsel conceded that the primary crime was serious being in each case a shooting that occurred at night time however no person was injured and no members of the public were hurt. This led to a finding of below mid-range for the objective seriousness of the offence. The highest involvement of the offender in the criminal conduct was taking possession of the pistol and police DNA evidence established that another person's DNA was on the trigger and the magazine of it. Counsel rehearsed his submissions concerning the offender's conduct not giving rise to any significant delay or thwarting the police investigation. There was a further body of evidence available to investigating police and there was no evidence of the offender wiping down, tampering or destroying the firearm.
It was further submitted that it could not be said that the offender knew the identity of the primary offender in the shooting. No inference could be drawn from the evidence that he did so.
Counsel rehearsed his submissions as to the application of the principle of totality and proportionality in sentencing here, given that the offending in sequences 3 and 4 was almost concurrent offending. It was submitted that the offender was not motivated by greed but driven by his drug addiction which had given rise to a large drug debt.
Counsel rehearsed his submissions regarding the offences on the Form 1 as only marginally accumulating on sentence for Count 2. Items 1-5 on the Form 1 related to the possession of prescribed restricted substances or prohibited drugs which were not relevant to the index offence on Count 2. They did, however, support a poly drug addiction over a number of years as described in the Sentencing Assessment Report.
The final and sixth item on the Form 1 related to the magazine for the Uzi submachine gun. It was an offence under s 65(3) of the Firearms Act and the court should not double count it in sentence. The fact that the ammunition was found nearby was also a factor to be taken into account in assessing the objective seriousness of the index offence.
Counsel also rehearsed his submissions in respect of the utilitarian discount and the fact that the offender's criminal history disentitled him to leniency but was not an aggravating factor. Here, there was some evidence of contrition and remorse provided by the offender's letter to the court and the expression of remorse to the psychologist. However, acknowledging the limitation that could be put on the weight of such evidence, it was submitted there was a degree of insightfulness by the offender into his offending conduct. He had not attempted to minimise his involvement.
Counsel further rehearsed his submissions advocating that any period of imprisonment, taking into account the 19 months and 7 days spent in custody to date and given that the Intensive Correction Order could not be backdated but was available given there were multiple offences for a period of up to 3 years, any further sentence could be served by way of an ICO. Whilst community safety was a factor to be taken into account, it was submitted that it was an important factor but just one of numerous factors for the court to take into account. If an ICO was imposed, it remains a significant punishment any breach of which could result in immediate incarceration by the Parole Board. It was submitted that it was critical for both the community and the offender to progress the offender's rehabilitation by adoption of the treatment plan outlined by Mr Albassit and it is clearly more appropriate that that should occur in the community.
Counsel submitted that a key event in the subjective factors was the MVA in 2016 which gave rise to a number of mental health issues that now needed addressing. Whilst this has led to an involvement by the offender with a criminal milieu, this was underpinned by the medical issues present. Substantial subjective factors also included the offender's lack of education which led to a lack of life skills, his use of illicit drugs commencing with cannabis at age 15 which gave rise to poor peer choices. His use of illicit drugs did not amount to an excuse for his offending but rather gave it a context. Following the serious MVA in February 2016 in which he suffered a brain injury, the offender spiralled in his use of prohibited drugs and became addicted to cocaine, ice and GBH which he used to numb his physical and emotional pain. This was further complicated following the death of his father in July 2018. Counsel rehearsed his submissions that these factors led to a diminishing moral culpability and criminality and made the offender a less appropriate vehicle for general deterrence. It also meant that any custodial sentence would weigh more heavily on him and should reduce specific deterrence.
Counsel rehearsed his submissions as to the reasonable prospects of rehabilitation for the offender given that he had accepted full responsibility for his criminal conduct and expressed remorse for it. He was still a relatively young man at 29 years of age with some degree of family support who wanted to get away from prohibited drugs, criminal peers and wanted to work to become a constructive member of the community. Counsel further rehearsed his submissions as to a finding of special circumstances being warranted in the event that a full-time custodial order was made.

Crown submissions in reply

In reply, the Crown submitted in relation to Count 2 that concealing the firearms in a drawer in a garage was not sophisticated offending but it made the weapons easily accessible and therefore increased the objective seriousness of the offending. It was submitted that the offender's submission about the absence of evidence of the firearms being linked to other offences was not relevant to the sentencing process as such matters would, in the event there was evidence, give rise to additional charges. The Crown submitted the only purpose for possession of the firearms in this case is to use the firearms in some offence.
The Crown further submitted that the court could not draw an inference that both weapons were in the possession of the offender for the same period of time. There was no evidence whatsoever relating to the Uzi submachine gun from which such an inference could be drawn.
In respect of the submission made on behalf of the offender that there was no delay caused to the police investigation, the Crown referred to the report being made by the offender's mother to police and further that the offender had not confirmed the name of the person who gave him the firearms. This was also relevant to the offender's remorse and prospects of rehabilitation.
The Crown conceded that the accessory after the fact offences in sequences 3 and 4 were largely intertwined and therefore significant concurrency would be applied in sentence. Further, it conceded that the drug offences on the Form 1 were relatively minor and the offence subject to the s 166 certificate, namely the unregistered Uzi, was also a matter requiring significant concurrency with the other offences.
The Crown submitted that ordering any sentence of imprisonment to be served by way of ICO was not appropriate in all of the circumstances here. Community safety mandated, having regard to the history of the offender's previous firearm offences, his untreated mental health, drug dependency and grief issues, that an ICO was not appropriate. Further, the offender's prospects of rehabilitation must be regarded as low although the Crown conceded a finding of special circumstances could be made so as to provide increased opportunity for supervision and rehabilitation. The imposition of a full-time custodial sentence did not involve abandoning rehabilitation and an ICO involved considerable leniency, having regard to the offender's criminal antecedents and the objective seriousness of the offending. Further, whilst the mental health issues suffered by the offender may mean diminished important for specific deterrence, the fact that he had committed similar offences previously negated this as a consideration. Further, there was no evidence before the court that his custody has been more onerous than the rest of the prison population because of his mental health issues.

Determination

Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
Sequences 3 and 4, the offences pursuant to s 93GA(1) and s 347 of the Crimes Act of being an accessory after the fact to the firing of the Smith & Wesson pistol at commercial premises in Newtown on two occasions in the early hours of 9 and 10 March 2018, involve the same criminal conduct and the objective seriousness of the offending in each case is identical. I accept the Crown's submission that in assessing the objective seriousness I am to have regard to the nature of the accessorial liability. The offender admitted taking possession of the Smith & Wesson pistol knowing that it had been used in the shootings. I accept the Crown's submission that the only reason for this was to assist the perpetrator of the offences to escape identification and arrest, and thus impede police investigations. I do not accept the submission made on behalf of the offender that the objective seriousness is diminished by virtue of the fact that the offender "in no way successfully delayed or thwarted the investigation and prosecution of the principal offender". Whilst it is true that the firearm was seized only six and seven days after the respective shootings, they were seized then only because of the actions of the offender's mother. Although it could not be proven beyond reasonable doubt that the offender knew the identity of the shooter, he admitted taking possession of the pistol knowing that it had been used in the shootings at Newtown on 9 and 10 March 2018. I therefore reject the submission made on behalf of the offender that it could not be said that the offender assisted the principal offender in escaping justice. I do however accept the submission made on behalf of the offender that whilst there are two offences, the criminality is effectively encapsulated in a single act, being the receipt of the firearm.
The gravamen of the offence of being an accessory after the fact to the firing of a firearm is necessarily to impede any investigation into the principal offence. The weapon used in the principal offence would be a critical cog in any investigation as being productive as forensic evidence relating to fingerprints, DNA evidence and ballistics comparison with cartridges located at the scene. I therefore find that the objective seriousness of the offending in both sequences 3 and 4 was within the mid-range of an offence pursuant to s 93GA(1) and s 347 of the Crimes Act 1900.
In assessing the objective seriousness of the offending in Count 2 on the Indictment, the most relevant factor to take into account is the nature of the weapon, namely an Uzi submachine gun in working order and capable of propelling projectiles in rapid succession during one pressure of its trigger. It is a prohibited firearm and there is no justifiable reason for it being in the community. Also relevant to the assessment are the circumstances attending the offender's possession of it. In this case, the offender's possession of the Uzi submachine gun coincided with his possession of the Smith & Wesson pistol as an accessory after the fact to the shooting at Newtown. Whilst the weapon was not loaded, it was not securely kept in the garage of the offender's parents' home. Nearby, in the bottom drawer of the same unsecured cabinet was a compatible magazine containing 24 unfired cartridges. Thus, it could have been loaded and fired by any person either knowing or discovering its whereabouts in a very short period of time.
Whilst there is no evidence as to the length of time that the offender had the firearm in his possession, I do not accept the submission made on behalf of the offender that an inference should be made that the weapon was in the offender's possession for the same length of time as the Smith & Wesson pistol. Rather, it is unknown how long the offender had the firearm in his possession. Whilst there was no link between the shooting on 9 and 10 March 2018 and the offender's possession of the Uzi and no evidence that the offender ever used the weapon in any way at all, those matters do not weigh in the assessment of the objective seriousness of the offending. Here, the nature of the weapon, the unsecure way in which it was concealed, and the nearby presence of the magazine containing 24 rounds warrant a finding that the offending fell between the mid-range of an offence pursuant to s 7(1) of the Firearms Act 1996.
In relation to the matters on the Form 1, the first five matters relate to the possession of prescribed restricted substances (sequences 1-4) and one offence of possess prohibited drug (sequence 5, being 7.44 grams of oxymetholone). The sixth matter concerns an offence of possess ammunition without license, being the 25 round Uzi submachine gun magazine containing 24 unfired cartridges. Whilst that was an offence pursuant to s 65(3) of the Firearms Act 1996 and is serious offending, its presence has been taken into account in assessing the objective seriousness of the offending in Count 2 as outlined above. The first five matters on the Form 1 did not constitute the same course of conduct as the index offence. Thus there will be some accumulation on sentence in respect of Count 2 for the matters on the Form 1.
In relation to the remaining offence on the s 166 certificate, the offence of possession of an unregistered firearm being the Uzi submachine gun, an offence pursuant to s 36(1) of the Firearms Act 1996, I note the Crown's concession that the subject weapon is the same firearm as the offender is being sentenced for in Count 2 and there will be significant concurrency with respect to the sentence imposed for it.
It was submitted on behalf of the offender that there was no evidence of any significant planning in acquiring the firearm. This amounts to a mitigating factor pursuant to s 21A(3)(b) of the CSPA if the offence was not part of a planned or organised criminal activity. I accept that there was no significant planning involved, however the presence of the two weapons together with the magazine for the Uzi submachine gun and the fact that the Smith & Wesson contained six rounds of ammunition in an unsecured place, diminish the mitigating effect.
I accept the Crown's submission that general deterrence is important in sentencing for firearms offences. The clear intention of the Firearms Act 1996 is to remove firearms from the community unless possession is expressly authorised. This is particularly so in relation to a prohibited weapon such as the Uzi submachine gun, which has no place in the community whatsoever. The fact that there is no evidence the weapon was used in any criminal activity or any threatening way does not diminish either the seriousness of the offending or the importance of general deterrence for sentencing.
The offender is entitled to a 25% utilitarian discount on sentence in respect of sequences 3 and 4 arising from his early plea of guilty. In respect of his plea to Count 2, I find in the circumstances he is entitled to a 15% utilitarian discount on sentence. I also find that he has expressed contrition and remorse in his apology letter to the court.
The criminal antecedents of the offender have been set out at paragraph [25] to [30] above. It included a number of firearms offences, for some of which he had been sentenced to imprisonment and the last of which in November 2019 he was fined. He has also had the benefit of s 9 bonds to be of good behaviour imposed in 2016 for period of two and three years, and a Community Correction Order imposed for two years commencing on 29 January 2020. In respect of that criminal history, I have regard to what the High Court said in Veen v R [No 2] (1998) 164 CLR 465 at 477: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
Given the antecedent criminal history here, the offender falls into the latter category nominated by the High Court. I note that he has conceded by his counsel that his criminal history disentitles him to any leniency in the sentencing process. The offender's record is further evidence of a failure by him to rehabilitate on successive occasions.
There are significant subjective features to take into account on sentencing here. The offender is 29 years of age and in February 2016 suffered significant trauma in a motor vehicle accident that occurred when he was under the influence of illicit substances. The court is required to approach self-serving statements, including histories reported by psychologists with considerable circumspection. However, I accept that following the MVA and subsequent death of his father in July 2018, the offender's use of prohibited drugs including cannabis, cocaine, ice and prescription medication, spiralled out of control.
I am not satisfied that the symptomatology identified by Mr Albassit had a causal connection with the current offending for the following reasons. First, it relied entirely on the history provided to Mr Albassit by the offender at a time post-offending, when he was in custody. Secondly, as a psychologist, Mr Albassit was not qualified to diagnose the offender with any psychiatric illness but rather identified symptoms outlined in DSM-V. Further, I accept Mr Albassit's opinion outlined above, namely, that the offender's "ability to comprehend the seriousness of his actions in relation to the firearms offences can also be attributed to his easily manipulated personality and his need for approval and belong. Mr Elbadar appears to be easily led and influenced, which in my opinion led to having the firearm kept at his residence" (sic).
Given the treatment plan outlined by Mr Albassit for the offender which included 24 months of intensive therapy to treat his PTSD, ongoing psychotherapy, pharmacotherapy, psychological therapy, regular supervision by his GP and referral to a residential drug and alcohol program, the offender's prospects of rehabilitation must be regarded as guarded and entirely dependent upon him adhering to that treatment plan and not relapsing into his poly substance abuse. I also find that he is a medium/low risk of recidivism, however, that assessment is reliant on his successful undertaking of relapse prevention programs.
Whilst general deterrence and specific deterrence remain important in the sentencing process here, I accept the submission made on behalf of the offender, based on Mr Albassit's opinions, that the mental health issues suffered by the offender will diminish the importance of general deterrence and specific deterrence in sentencing. I also acknowledge that it may make incarceration more onerous for him.
I have had regard to the maximum penalty of five years imprisonment in respect of both sequence 3 and sequence 4 and the maximum penalty of 14 years imprisonment, together with the standard non-parole period of 4 years imprisonment in respect of Count 2 on the indictment. The maximum penalty and standard non-parole period in respect of Count 2 underlines that an offence pursuant to s 7(1) of the Firearms Act is serious offending, and I take the maximum penalties and the standard non-parole period in respect of Count 2 into account as guideposts in the sentencing process.
I intend to impose an aggregate sentence pursuant to s 53A of the CSPA. So as to provide transparency in the sentencing process, I am required to set out indicative sentences for each offence. Having regard to the objective seriousness of each offence, the subjective features set out above and the utilitarian discounts applicable to each offence, the indicative sentences are as follows: Sequence 3 - accessory after the fact pursuant to s 93GA(1) of the Crimes Act 1900 and s 347 of the Crimes Act 1900 - one year and ten months imprisonment. Sequence 4 - accessory after the fact pursuant to s 93GA(1) of the Crimes Act 1900 and s 347 of the Crimes Act 1900 - one year and ten months imprisonment. Count 2 - offence of possess unauthorised prohibited firearm pursuant to s 7(1) of the Firearms Act 1996 - five years imprisonment and a non-parole period of three years and nine months imprisonment.
It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
The indicative sentences take into account the objective seriousness of the offending, the subjective features set out above, together with the utilitarian discount for each offence as indicated above. In arriving at an aggregate sentence, applying principles of totality and proportionality, the sentences for sequences 3 and 4 will be totally concurrent, as they arise out of the same course of criminal conduct. There must however be some accumulation in respect of those offences and Count 2, which is an entirely separate and serious offence and has already some accumulation by virtue of the Form 1 offences attached to it.
I am satisfied pursuant to s 5 of the CSPA that having considered all possible alternatives, no sentence other than imprisonment is appropriate in all of the circumstances. I intend to impose an aggregate sentence pursuant to s 53A of the CSPA of six years imprisonment.
I find that there are special circumstances pursuant to s 44(2) of the CSPA based on the offender's need for extended supervision and rehabilitation to ensure his productive return to the community. I therefore intend to impose a non-parole period of three years and nine months, backdated by 594 days. The sentence will therefore commence on 15 November 2019.

Orders

I therefore order as follows: 1. You are convicted of sequence 3 - accessory after the fact to firearm at other than dwelling house disregarding safety pursuant to s 93GA(1) and s 347 of the Crimes Act 1900. 2. You are convicted of sequence 4 - accessory after the fact to firearm at other than dwelling house disregarding safety pursuant to s 93GA(1) and s 347 of the Crimes Act 1900. 3. You are convicted of Count 2 being sequence 10 - possess unauthorised firearm being an Uzi submachine gun (serial number 094181) pursuant to s 7(1) of the Firearms Act 1996. 4. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA of six years imprisonment. 5. The non-parole period is three years and nine months imprisonment to commence on 15 November 2019 and to terminate on 14 August 2023. 6. The balance of term will be for a period of two years and three months, terminating on 14 November 2025. 7. In respect of the related matter pursuant to the s 166 certificate, namely sequence 8 possess unregistered firearm pursuant to s 36(1) of the Firearms Act 1996, I sentence you to a fixed term of three years to be served concurrently with the above sentence to commence on 15 November 2019. 8. I certify that I have taken into account the matters on the Form 1 attached to Count 2 on the indictment. 9. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some other date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any conditions of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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: 01 July 2021

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Judgment (9 paragraphs)

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