R v Karnib

Supreme Court of NSW|2012-04-19|Before: Johnson J

Judgment (application for bail- video link to parkLEA correctional centre) 1JOHNSON J: This is an application for bail by Ahmed Karnib, who is to appear at Central Local Court on 9 May 2012 with respect to a number of charges: (a)a charge laid under s.51D(2) Firearms Act 1996 of possessing more than three unregistered firearms (150 model 26 Glock pistols) - the maximum penalty for that offence is 20 years' imprisonment, with a standard non-parole period of 10 years; (b)a charge under s.51B(1) Firearms Act 1996 of unlawfully selling more than three firearms within a 12-month period (150 model 26 Glock pistols) - the maximum penalty for that offence is imprisonment for 20 years with the standard non-parole period of 10 years; (c)a charge of participating in a criminal group contrary to s.93T(1) Crimes Act 1900, an offence punishable by a maximum penalty of five years' imprisonment; (d)a charge of intentionally importing prohibited Tier 2 goods (150 model 26 Glock pistols), an offence against s.233BAB(5) Customs Act 1901 (Cth) - an offence punishable by a maximum penalty of 10 years' imprisonment.

Presumption Against Bail Under s.8B Bail Act 1978 2Because of the charges under ss.51B and 51D Firearms Act 1996, the Applicant is not to be granted bail unless he satisfies the Court that bail should not be refused: s.8B Bail Act 1978. 3The operation of provisions such as s.8B has been considered in a number of decisions of Courts of this State. More commonly, s.8A Bail Act 1978 has been considered with respect to serious drug supply and importation offences. See, for example, Director of Public Prosecutions (Cth) v Germakian [2006] NSWCCA 275; 166 A Crim R 201 at 203-206 [9]-[20]. 4Section 8B has been considered in a number of decisions of this Court in the context of charges of possessing a firearm under s.7 Firearms Act 1996, an offence which is also caught by s.8B. As those decisions make clear, there can be a wide range of circumstances in which possession of a firearm is committed. See, for example, R v Do Young Lee (unreported, Johnson J, 19 February 2010). 5The present charges are in a different class. These are not allegations of bare possession of firearms. These are allegations of significant involvement in the selling of firearms on an ongoing basis and unauthorised possession of firearms in aggravated circumstances. 6The provisions of s.8B Bail Act 1978 involve the Court looking at the seriousness of the charges, and the strength of the case insofar as it can be assessed on the material before the Court. Other matters relevant to the Applicant, including his subjective circumstances and background and the availability of sureties and hardship and distress, which he may suffer as a result of a period in custody, are relevant, but are matters which are common to bail applications. As was said in Director of Public Prosecutions (Cth) v Germakian (at 205-206 [18]-[20] and R v Do Young Lee (at [10]), factors of that sort attract less weight when provisions such as ss.8A or 8B Bail Act 1978 are being considered.

7The charges against the Applicant are outlined in documents tendered in the Crown case, and in the oral evidence of Detective Inspector Taylor, who has given evidence on the application. 8The Applicant was at all relevant times the Operations Manager for Transitainer (NSW) Pty Limited, a freight services company located at Sylvania Waters. The Applicant is 21 years of age. 9The evidence adduced on this application provides, in my view, a strong Crown case that the Applicant was involved in the business of importation of firearms. The case against him includes direct evidence of things which he has said in intercepted conversations, together with documentary and other evidence. Thus, the Crown case involves both a direct and a circumstantial case against the Applicant. 10The Crown case is that 150 Glock pistols have been brought to this country from Germany. The proprietor of the relevant gun shop in Germany has provided a statement to the prosecution and will be a Crown witness. 11At least 10 of the packages (containing Glock parts) which have been received in this country were signed for by this Applicant. There is, as well, evidence of the Applicant saying on one occasion in a conversation with a co-accused, Andrew Botros, "I don't know what size, it's for the Glocks". 12There is also evidence of the Applicant asking that the description in computer entries with respect to the items to be imported be amended by the supplier from "Glock grip frames" to "plastic grip frames". 13In other recorded conversations, the Applicant has discussed Australian Customs in a manner which, in my view, can clearly be related to the activity of importing these weapons. Of course, the Applicant himself was intimately involved with importation and the activities of Customs, because of his position as an Operations Manager with a freight services company. 14It is alleged, and it appears to me to be reasonably clear, that the Applicant was playing a fairly important role in the process of importation of these pistols. The evidence makes clear that the Applicant knew what was being imported. 15I refer to these aspects because the strength of the prosecution case is an important aspect of the test under the Bail Act 1978. Submissions have been made for the Applicant that his activities may be described as being those of a forwarding agent only with respect to these items. In my view, that description significantly understates the role of the Applicant in this alleged criminal activity. 16The fact that what was being imported were sophisticated handguns, to be supplied to the criminal element, is itself a significant matter. Mr Richter QC has urged the Court not to succumb to "moral panic". I do not propose to do so. I do observe, however, that what is involved on the Crown case is the importation of valuable and sophisticated firearms for clearly unlawful distribution to others, who would use them (as a matter of irresistible inference) for criminal purposes. 17As Detective Inspector Taylor said, the importation of firearms of this sort, which are then deployed into the community, has very significant consequences for the safety and protection of the community. 18The fact that there has been occurring in this city, in recent months and weeks, criminal activities involving the use of handguns is not to be ignored. In fact, there is direct evidence that a Glock 26 pistol (constructed from three pistols imported from this German supplier) was associated with a shooting in a public place at Campsie in January this year. There is at least some direct evidence that these firearms were being used in this way. 19The evidence also revealed significant organisation and planning in the importation process. The appropriate inference is that this is not some minor activity being undertaken without expectation of profit. The process of importing items of this sort for sale is clearly an exercise undertaken for significant profit. 20Mr Richter QC has questioned Detective Inspector Taylor on the basis that there is no evidence that this Applicant himself has sold or supplied a weapon to another person, nor that he has disposed of one of these weapons himself. I do not think that that factor is of great assistance to the Applicant (there is a broad definition of "sell" in s.4 Firearms Act 1996). The very purpose of the activities in which, on the Crown case, he was involved was the supply of these firearms to persons who were prepared to pay significant sums of money, so as to justify an importation exercise of this type. 21There is some evidence that this Applicant did make money from the sale of guns. 22All of this then provides a body of evidence that this otherwise offence-free 21-year old man, who clearly comes from a supportive family, was acting in a way that involved serious criminality, which had a direct capacity to put the community at risk.

23Evidence has been given by the Applicant's father. Undoubtedly, he has faith in his son. Members of the family are prepared to provide substantial surety and accommodation, in effect proposing a type of house-arrest arrangement. The Applicant's father effectively swears by his son. 24The difficulty with this is that the evidence reveals, on the face of it, that the Applicant's activities have involved a sustained and sinister activity of the type to which I have referred. Accordingly, a question arises as to the extent to which the Applicant's family have a clear and full understanding of his activities. The Applicant, of course, is entitled to the presumption of innocence. Nevertheless, I bear in mind that the activities which he has undertaken (on the evidence) involve most serious breaches of the law. 25Mr Richter QC has stressed the ties which the Applicant has to the community, and the delay that there will be in the provision of the brief prior to committal, let alone after. Insofar as the Crown has raised concerns about flight, Mr Richter QC has submitted that they simply do not arise. The family will stand by the Applicant and will not take any step to assist him to flee. 26Once again, the difficulty is that the activity in which the Applicant is said to have been involved (and as to which there is a significant body of evidence) involves serious alleged criminality and engaging with persons for that purpose who may well not view the Applicant favourably. In these circumstances, were the Applicant at liberty on bail, he would be subject to unprecedented pressure in his life. 27I have serious concerns as to whether any bail regime which could be put in place would secure the attendance of the Applicant. He has shown, on the material which the Crown has relied upon, a capacity for communication, both nationally and internationally, with persons allegedly involved in this criminal enterprise. Despite the hopes of his family, there is, in my view, a significant concern as to flight. 28Concern has been expressed with respect to interference with witnesses. Mr Richter QC says a home-imprisonment type bail regime will guard against that. 29As to interference with evidence in the Crown case, including electronic evidence, it has been submitted for the Applicant that the remote wiping of the Applicant's Apple iPhone (relied upon by the Crown), occurred at a time when he was in custody. This factor is part of the evidentiary mix which the Court has to take into account on this application. It is clear that someone involved in this criminal activity took steps to remotely wipe the Apple iPhone in a manner that was intended to interfere with evidence. This activity cannot be related directly to the Applicant. However, the fact that remote interference of this type is possible, leaves open the prospect that the Applicant, if released on bail, and whilst under great pressure, may himself take action of that type.

30In my view, there are very substantial concerns that any grant of conditional bail would not secure the attendance of the Applicant at Court. There is, at least, legitimate concern whether the Applicant might take action, even from the confines of his house, with respect to evidence which may exist, or by way of communication with witnesses, given the electronic means of communication which would be available to him. 31I return to the question posed by s.8B Bail Act 1978. Not only is there no presumption in favour of bail, the statute in this case requires the Court to refuse bail unless the Applicant satisfies the Court that bail should not be refused. 32These are, in my view, some of the gravest firearms charges which are caught by s.8B Bail Act 1978. If the Applicant is convicted of these matters, very substantial sentences are likely to be imposed. 33In all the circumstances, the Applicant has not satisfied the Court that bail should not be refused. Bail is refused.

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: 26 April 2012

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