Evidence on Sentence Hearing
8The offender relied on two reports of a psychologist, Ms Rima Nasr, dated 24 June 2013 and 21 August 2013 (exhibit 1). The offender was assessed for the purpose of those reports on 17 June 2013 for approximately one and a half hours. The offender was one of four children and came with his family to Australia from Lebanon when he was nine years of age. He came from a stable family background. He completed his year ten school certificate, leaving school shortly thereafter to obtain work as a furniture upholsterer. He worked for Brescher Furniture for thirteen years and then established his own business in furniture upholstery which he maintained up until the time of his arrest.
9In 2003 the offender became involved with the Rebels motorcycle club. He remained a member of that club until early 2012 when he made a decision to leave. Thereafter, he was subjected to ongoing threats from persons associated with that club. He was supported in his decision to leave the motorcycle club by his wife and family.
10The offender has two children by a former marriage now aged twelve and fifteen years. He and his wife married in January 2013. They had met during the time he was a member of the Rebels motorcycle gang, and he had supported her in overcoming a drug problem and also in qualifying as a nurse.
11The offender disclosed to the psychologist that he was a victim of ongoing threats, having left the Rebels, that he had received repeated intimidatory phone calls and abuse on Facebook. His house was subject to a drive-by shooting in early 2012. Further, members of the club had attacked his older disabled brother at gunpoint, reinforcing his fear. He was concerned for his own safety and that of his wife and children. In those circumstances, he claimed that he obtained the prohibited firearm as a means of selfprotection, although he acknowledged to the psychologist the illegality of the firearm and the dangerousness in possessing it.
12The offender expressed what the psychologist recorded as "seemingly genuine regret and remorse for his offending behaviour". He acknowledged the impact of his behaviour on society in general, his wife and family, and employees of his business. He now realised that he had made things worse for his family because he was now incarcerated and helpless to protect them at all.
13No psychometric testing was possible, however, the offender did not exhibit overt signs of cognitive impairment.
14The psychologist recommended that upon release into the community the offender should have regular treatment from a psychologist, particularly as any period of incarceration was likely to lead to a deterioration in his psychological functioning, exacerbated by his fears that his children will suffer. He had expressed a motivation to remain occupied in gaol and he used his time productively. To that end, he had completed a Certificate I in Access to Work and Training (Introductory) (see exhibit 3), and was doing a business class run by an outside TAFE so he could complete this course when released.
15In the second report dated 21 August 2013 Ms Nasr responded to four matters that the offender's legal representatives had raised, namely:
(1)To clarify if the offender met the criteria for a diagnosis of post-traumatic stress disorder. He did not, but he did demonstrate some post-traumatic symptoms.
(2)Whether the offender's PTS symptoms impacted on his ability to make proper judgments in committing the offence. His symptoms did impact on his decision making and offending in as far as contributing to his heightened sense of distress in the circumstances.
(3)Would his time in custody be more onerous as a result of his psychological symptoms? It was believed that any period of incarceration would be likely to contribute to the offender feeling increasingly vulnerable as he was away from his support systems.
(4)Whether the offender's condition will be exacerbated by spending time in custody. It was stated that coping in a situation of prolonged incarceration is hard to predict and would depend on whether he was held in protective custody away from other inmates who may want to harm him.
16Testimonials were tendered from Diana Elmasri, the offender's sister, Veronika Volk, Essy Hollingshed, Mrs Salin Rigoli and Mrs Helen Games, the offender's mother-in-law. All speak highly of the offender's good work ethic, his devotion to his wife and children and the devastating effect that his arrest and incarceration has had on his loved ones, the family and his business.
17The offender himself gave evidence. He verified the history given by him to the psychologist and confirmed that his upholstery business had been doing well prior to his arrest. When he left the Rebels, demands were made upon him to pay money in respect of another member he had introduced to the club who left at the same time. When he resisted those demands, he was subject to intimidatory and insulting phone calls. He gave evidence that his disabled brother was with his family in a public place when he was approached by members of the Rebels who threatened him. His wife had also taken a threatening phone call. She was at the time a nurse working at Westmead Hospital. It was following that call that he acquired the prohibited firearm. Some weeks later, his home was subject to a drive-by shooting.
18Notwithstanding that numerous bullets had penetrated the home, including the bedroom where he and his wife were sleeping, the Police were not called.
19The offender gave evidence that he had left the Rebels club because the whole outlook of the club had changed, with a wave of "young thugs ... coming through the club". He was settled in his home life, and his business needed his attention.
20At the time he acquired the prohibited weapon he did not focus on its illegality, he was only focussed on protection for himself and his family. He now understood that he had made matters worse for his wife and family, both by being unable to be present to protect them at all, and by causing his business to deteriorate.
21In cross-examination the offender was not prepared to disclose where and from whom he had purchased the weapon. When asked why not, his reply was that it was not going to change anything. He acknowledged that it was a concern that the supply of a weapon would add to the stock of weapons in circulation in the community. He agreed that he had no training in the safe use of the weapon. He gave evidence that he was prepared to use the weapon to shoot at the floor or ceiling to "threaten but not to cause harm".
22He acknowledged that the weapon was loaded at all times it was stored in his home and that he needed quick access to it at all times. It was located in an invisible drawer in a piece of furniture which was not locked, but was kept in place with a pin. He also acknowledged that he did consider the illegality of the item, however, he believed the threats to him and his family outweighed the illegality.
23Mr Khodar Hayder gave evidence that he was living opposite the offender in Woodpark. They did not socialise but were on neighbourly terms. He was aware that the offender had been a member of a motorcycle gang and had seen regalia at the offender's home signifying that. He gave evidence corroborating that early in 2012 the offender's home was subject to a drive-by shooting. He had seen the offender that evening and the next day had examined the premises with him, seeing numerous bullet holes throughout the whole house. He did not call the Police because he believed the incident was bikie related and he did not want to get involved. In cross-examination he estimated that he had heard thirty shots fired. The effect of that incident was "scary".
24On the basis of that evidence, the Crown conceded that it would be open to find, on the balance or probabilities, there was an incident largely consistent with that described by the offender that took place at his home in about April 2012.
25The plaintiff's wife, Rachel Games, gave evidence that he was not a drug user and that he had helped restore her to good health and to re-establish her relationships with her family. She corroborated the offender's evidence that he had received threatening and disgusting phone calls following his withdrawal from the Rebels. She also confirmed the details of the driveby shooting. She described him as a kind man who had made a mistake. She had visited him in gaol regularly and he had expressed his remorse to her and felt that he had left her vulnerable. She produced records relating to his upholstery business which demonstrated for the same five months period in 2013, by comparison to 2012, turnover had diminished significantly. She had had trouble paying the wages of the employees in the business and had had to let one employee go.
26Mrs Helen Games also gave evidence. She described the offender as a quietly spoken man with good manners who she had observed to be loving and caring of his children and keen to join in family events. He had supported her charitable interests by donating both time and money and had cared for her daughter.