R v Sabbouh

The Offences Charged Against Nashat Sabbouh

1. The offences with which Nashat Sabbouh was charged were: Sequence 3, on 10 August 2020 at Chester Hill in the State of New South Wales, that he acquired a firearm part without authority to do so: s 50A(1) Firearms Act 1996; Sequence 4, on 9 August 2020 at Chester Hill in the State of New South Wales, Nadim Sabbouh fired a firearm with disregard for the safety of Gary Minchenko, and Nashat Sabbouh, knowing the said Nadim Sabbouh to have committed the serious indictable offence, on or about 9 August 2020 assisted Nadim Sabbouh: s 93G(1)(c) Crimes Act 1900.
2. The maximum penalty for the offences charged in sequence 3 against Nashat Sabbouh was imprisonment for five years; and for the offence charged as sequence 4, imprisonment for ten years. There was no standard non‑parole period specified for either of these offences for the purposes of Part 4, Div. 1A, Crimes (Sentencing Procedure) Act 1999.
3. I have included the details of these charges to highlight the disparity between the predicament faced by Nadim Sabbouh in contrast to that of his brother, Nashat. The parties in both proceedings concede that the differences in the cases are such that parity is not a matter of significant concern.
4. On 19 May 2022 I imposed sentence upon Nashat Sabbouh, each indicated sentence reduced by 25% for the plea of guilty. For the offence in sequence 3, acquiring a firearm part, a sentence of 1 year and 3 months; for the offence of accessory after the fact, a sentence of 2 years and 3 months. I imposed an aggregate sentence of imprisonment of 2 years and 4 months from 19 May 2022, to expire on 18 September 2024, to be served by way of an intensive corrections order pursuant to s 7, Crimes (Sentencing Procedure) Act 1999. Pursuant to s 73, standard conditions applied. Thus, the offender must not commit any offence and must submit to supervision. Pursuant to s 73A(2)(d), the offender is required to perform 50 hours of community service.

The Offences Against Nadim Sabbouh

1. The offences with which Nadim Sabbouh are charged are: Sequence 3, on 9 August 2020 at Chester Hill in the State of New South Wales he acquired a firearm in contravention of a firearms prohibition order that was in force: s 74(1) Firearms Act 1996; Sequence 4, on 9 August 2020 at Chester Hill in the State of New South Wales he fired a firearm with disregard for the safety of Gary Minchenko: s 93G(1)(c) Crimes Act 1900.
2. The maximum penalty for the offence charged at sequence 3 is imprisonment for 14 years. The maximum penalty for the offence charged at sequence 4 is imprisonment for 10 years. There is no standard non‑parole period specified for either offence for the purposes of Part 4, Div. 1A, Crimes (Sentencing Procedure) Act 1999.

The Pleas of Guilty

1. The offender pleaded guilty in the Local Court at Burwood in committal proceedings. These are matters to which Part 3, Div. 1A, Crimes (Sentencing Procedure) Act 1999 applies, and in accordance with s 25D(2)(a) the discount for the utility of the pleas of guilty is 25% of the sentences that would have otherwise been identified for each of the offences if they were not admitted.

Pre-Sentence Custody

1. The offender has been in custody since his arrest on 17 September 2020, but not all of it is because of the misconduct for which he now faces sentence.
2. His pre‑sentence custody arose from the following:

• 11 December 2019 ‑ convicted of stealing a motor vehicle, demand money with menaces, and aggravated break and enter ‑ for each a sentence of 18 months indicated ‑ aggregate sentence of 18 months to be served by intensive corrections order;
• 9 August 2020 ‑ revocation of an intensive corrections order ‑ resulting in imprisonment of ten months, two days from 16 September 2020 to 17 July 2021;
• 8 March 2021 to the present time ‑ refused bail in respect of the present matters and an unrelated prosecution for an alleged robbery for which the offender is to be tried on 5 December 2022.

1. The period of custody solely referable to the present matter is therefore from 18 July 2021, when the imprisonment upon breach of the intensive corrections order was completed; and thereafter when bail was refused for this and the pending trial matter to be heard on 5 December 2022. To address the principle of totality, relevant because of the present matter and the offending which ultimately led to the imprisonment upon breach of the intensive corrections order, I shall commence the sentence to be imposed today on 16 March 2021.
2. I accept that this discretion is available, consistent with the discussion by Simpson J in Callahan v R [2006] NSWCCA 58. It could not be said that the offender would have been denied an opportunity to apply for reinstatement of the intensive corrections order but for this further misconduct. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, I shall impose an aggregate sentence that shall be taken to have commenced on that day.

The Offender's Affidavit

1. The offender provided an affidavit but was not required for cross‑examination. This has left a challenge in the circumstances. Although this was a decision which he was entitled to make, in the absence of some further explanation of the misconduct that has him before the Court there is care required when considering the weight to be given to his explanations for the misconduct, resonating with the guidance offered by Smart AJ in R v Qutami [2001] NSWCCA 353, and more recently, that offered by Wilson J in the Imbornone v R [2017] NSWCCA 144, regarding unsworn and untested representations as to the nature and extent of his role in the activities from which his prosecution arose, and those providing material upon which the offender would rely in mitigation of penalty standing alone, or as premises underpinning the opinions offered by those who have written for him.
2. He is attributed with an explanation by the psychologist which is not replicated in the affidavit.

The Facts

1. The facts in support of the Crown case, upon the extent and nature of the offences, to the extent that they inform the objective gravity of the misconduct against the case argued for the offender, must be established beyond reasonable doubt, from which it follows that any inference adverse to the offender drawn from the direct evidence must be the only rational inference available, the Crown bearing the burden of eliminating any alternative hypothesis that might be available in support of the offender ‑ R v Olbrich [1999] 199 CLR 270.
2. The facts put before the Court were common to both offenders. The shooting from which the prosecution arose was during the evening of 9 August 2020 after 9.20pm in Alpha Street, Chester Hill.
3. On 9 August 2020, Nashat Sabbouh had been friends with Aaren Minchenko, the nephew of the victim, Gary Minchenko. Nashat Sabbouh and Aaren Minchenko had been friends for about two or three years. The offender was the subject of a firearms prohibition order issued on 31 March 2020 and enforceable from 5 May 2020.
4. On 23 June 2020, Aaren Minchenko and Nashat Sabbouh were together in Nashat Sabbouh's Volkswagen Golf when it was involved in a serious car accident. According to Aaren Minchenko, Nashat Sabbouh was driving the vehicle at the time but did not hold a valid driver's licence. When police arrived, Aaren Minchenko nominated himself as the driver of the vehicle so that Nashat Sabbouh would not be charged. Aaren Minchenko was charged with serious criminal offences, including dangerous driving occasioning grievous bodily harm.
5. In early August 2020, the victim, Gary Minchenko, observed that his nephew was not himself and asked him what was going on. Aaren disclosed that he had been charged in relation to a driving incident for which he took the blame despite not being the driver. The victim tried to persuade Aaren to go to the police and tell them the truth and offered to help him to do so. Aaren called Nashat Sabbouh and spoke to him about this issue. He agreed to speak about this issue in person. The victim offered to drive Nashat Sabbouh from his home to the Granville Police Station.
6. About 25 minutes after the phone call, at 9.20am, the victim arrived at Nashat Sabbouh's house. He sat alone in his vehicle and called Nashat Sabbouh. At 9.21pm, Nashat Sabbouh and the offender, his brother, came outside. Nashat Sabbouh and the victim had the following conversation: "Nashat Sabbouh, "Hey man, how are you?" The victim, "Yeah man, you ready go to?" Nashat Sabbouh, "No worries. My brother wants to talk to you quickly." Nashat Sabbouh was joined by the offender. Both stood at the driver's door window of the victim's vehicle. The offender said, "What are you doing? Let's talk about this." The victim said, "What's there to talk about? Nash can talk at the station." The offender said, "Jump out of the car and let's talk about it like men. Come inside and talk about it." The victim said, "If you want to talk about it, jump in my car." The offender said, "Where's Aaren?" The victim said, "He's at the police station.""
7. A few minutes later a vehicle pulled up in the middle of the road near where the victim's vehicle was stopped. Nashat Sabbouh approached the driver's window of the other vehicle and spoke with the person inside. The Crown does not allege that person had any link to or made any contribution to these events.
8. The offender remained at the driver's window of the victim's vehicle and said things such as, "Come outside, come outside."
9. At 9:24:20 ‑ the time taken from closed circuit television images ‑ the victim decided to leave and started to drive away. Nashat Sabbouh remained at the driver's window of the second vehicle. The offender moved toward his brother. The offender looked in the direction of the victim's car after it drove away and slowly paced down the street in the same direction.
10. At 9:24:57, the offender reached into his pocket and produced a firearm. Nashat Sabbouh can be heard on the closed‑circuit television product yelling, "Oi, oi, oi, no, no, no, oi, no, no, no, no." The offender fired shots in the direction of the victim's vehicle in Alpha Street. Six shots are heard on the closed‑circuit television product. The victim heard gunshots and felt his vehicle struck by bullets. The offender and his brother moved down Alpha Street in the opposite direction, running or jogging away from where the shots were fired.
11. Police arrived about 15 minutes later, at 9.36pm. Police recovered five 9-millimetre Parabellum cartridge cases from the roadway. Ballistics examination confirmed all had been fired from the same weapon. Examination of the victim's car revealed three impact marks consistent with having been caused by bullets, all on the passenger side of the vehicle. Two were located on the passenger side back tray of the utility; one was located on the cabin below the passenger side door.
12. Police obtained a search warrant for Nashat Sabbouh's house in Alpha Street, Chester Hill, and located a 9-millimetre Parabellum detachable box magazine designed to suit a self‑loading pistol. This is the circumstance founding sequence 3 against Nashat Sabbouh. The item was loosely wrapped in tissue paper inside a plastic sandwich bag and was placed inside a loose piece of exterior wall cladding. The package was tested and was found positive for Nashat Sabbouh's DNA and fingerprint. It was agreed, for the case against Nashat Sabbouh, that this was used in the shooting and was placed by Nashat Sabbouh where it was found to assist his brother to avoid justice.
13. Included in the Crown material is a video recording captured by closed‑circuit television from premises nearby to where the incident occurred. It is uncontroversial that it depicts the victim's motor vehicle travelling at a modest speed along the street, after which the offender is seen to walk in the same direction. His brother is seen to be walking also in that direction and as they proceed in this fashion a voice is heard, acknowledged to be that of Nashat Sabbouh, consistent with him calling out to his brother, attempting to have his attention. The offender disappears from the field of vision to the right, whereupon Nashat Sabbouh's voice is heard uttering the words I described above from the statement of facts, and then there is heard in rapid succession six shots discharged.
14. According to the agreed statement of facts, as I noted, there were five shot casings retrieved and three projectiles struck the victim's vehicle. The recording concludes with Nashat Sabbouh jogging in the opposite direction, followed by the offender.
15. The offender was arrested on 16 September 2020 and did not participate in an interview, which was his right and which is not a matter to be considered against him.

The Offender

1. The offender was born in 1994 and has here reached the age of 28 years. His record of antecedents begins in 2013, when he was sentenced in the Local Court to suspended sentences of imprisonment of 15 months for offences of being armed with intent to commit an indictable offence and assault occasioning actual bodily harm.
2. Thereafter he was before courts for driving unlicensed and when his licence was suspended; having a knife in a public place; possession of a prescribed restricted substance; failure to appear; demand property with menaces; steal motor vehicle; aggravated break and enter being in company; possession of prohibited drugs; providing a false name; negligent driving; resisting an officer; custody of an offensive implement; driving with visiting privileges withdrawn; driving upon an expired licence; and contravening apprehended violence conditions.
3. The offences of demand property with menaces, steal motor vehicle and aggravated break and enter being in company initially resulted in an intensive corrections order of 18 months, which in due course was revoked, as earlier noted.
4. His antecedent record, and that he was subject to conditional liberty at the time, does not allow him to present as a person of good character to whom leniency might otherwise have been allowed and are relevant to the assessment of specific deterrence and whether there are prospects for his rehabilitation. The history does not amplify the objective gravity of the offences, nor the sentences that are proportionate to the crimes.
5. A great deal of time was taken up in this matter after the offender objected to the content of the sentence assessment report that was prepared to assist the Court. The report was written on 20 October 2021 by Community Corrections Officer Harrison, who wrote in less than favourable terms of the offender and his family. The officer was required for evidence but he had since left the position and in his stead his former supervisor attended and produced the case notes upon which it was understood that the report was prepared.
6. Officer Harrison, it was learnt, was available to give evidence and he attended and did so. A fair summary of the evidence he could give was that he relied upon the case notes and previous reports that were prepared but had no independent memory of the bases upon which he came to the conclusions expressed in his report. I accept that he wrote the document upon his perception of the matters that formed his challenged conclusions, but notwithstanding that the offender did not give evidence and did not call evidence to challenge what was written in the report, I have come to the view that I should put to one side the opinions the officer provided. These were: "Mr Sabbouh advocates a positive family environment: however, his family are dismissive and minimise his offending behaviour, attributing blame upon others."
7. Next passage: "Mr Sabbouh has limited insight into his behaviour, minimising the events, while attributing blame upon others, for his reckless acts."
8. Next passage: "Although Mr Sabbouh vocalised his remorse to the victim, this did not appear sincere."
9. And the next: "Upon reactivation of his ICO, Mr Sabbouh's response was unsatisfactory, failing to report as per schedules, and his whereabouts were unknown."
10. The evidence given by Officer Harrison did not provide a sound basis upon which to find that these negative comments were accurate. This is not to say that they were inaccurate but considering his responses to the cross‑examination upon his methodologies for the preparation of his report, and his reports generally, I have put to one side this document.
11. The offender tendered a psychological assessment by Gaius G Gorham, written on 4 April 2022 after an interview of three and a half hours via audio visual link, including one and one‑half hours of psychometric testing. The psychologist was armed with agreed facts, the criminal history and records from Westmead Hospital and Auburn Hospital and New South Wales ambulance records.
12. She briefly noted the content of the agreed facts, the criminal history, and what was found in the New South Wales Health and Ambulance records. These included reference to admission to Westmead Hospital on 24 January 2015 following a motor vehicle collision. He was reported to be amnesic. He had self‑extricated from the vehicle after the accident. There was no loss of consciousness reported.
13. In the period between 2016 and 2018, the medical records include drug‑induced clonic seizures that were not being managed by medication. He was admitted to hospital on occasions and reviewed for a possible head injury secondary to a fall from seizures, but the CT brain scan showed no abnormalities.
14. The offender provided the psychologist with an account of the offences. He understood, according to this, the offences with which he was charged and could recall that his solicitor had informed him of them. He acknowledged that he committed the subject offences and was able to recall the incident and provide an explanation for his behaviour. I quote: "9 August 2020...at my brother's house...I went and spoke to him (victim)...asked him to come into the house and talk about it...he didn't want to talk...I took that as a threat...he (victim) took off...I fired some shots just to scare him away...I was off my head (on drugs)...I wasn't straight...on a bender (not slept) for three days."
15. Those words appear within quotation marks as I have stated them, in the report at p 2 and continuing on p 3.
16. He said that on the day of the offences he had used about 3 grams of cocaine and about six Xanax and ten Valium tablets. He said he used about one and a half grams of heroin over the previous two days. He spoke of psychosocial stressors about the time of the subject offences, including the health and safety of his family. The report continues within parentheses: "(i.e., approximately two months before the subject offences, two men wearing balaclavas approached me" outside his home and chased him off his property; and approximately one month later someone shot at his house), constant relationship difficulties with his wife due to his ongoing drug use, and concern about his physical and mental health (i.e., he was worried and depressed because he was having regular seizures (...) He knew his behaviour was wrong and against the law: 'It wasn't right...I could have hurt someone.'"
17. The report attributes to him denial of considering the consequences of his actions at the time. He said he was not thinking. He acknowledges that his behaviour had caused harm to the victims as well as to himself and his family.
18. The report then deals with his experience in custody. He incurred one institutional violation about 12 months before for fighting. He reported that he did not start the fight but was defending himself. He indicated having some occasional reactive depression because his wife no longer wants to continue their relationship.
19. Considering the reference there to the institutional misconduct, I should note that in the custodial record included in the Crown bundle, exhibit A, there is a list of punishment details, the most recent of which is against the date, "3/05/2021, assault". Before then, "5/10/20, failing to comply with corrections centre routine, intimidation and using tobacco." The remaining custodial misbehaviour was in 2019.
20. He reported that at the beginning of his incarceration he was using sleeping tablets for about two weeks and buprenorphine, Valium, and Xanax for about six months. He said he stopped taking buprenorphine because he wanted to get off drugs and he stopped taking Valium and Xanax because they made his depression worse and were triggers for him using illicit drugs like cocaine and heroin. The implication in that passage is that the ingestion of those drugs followed upon his acquisition of them whilst in custody.
21. The report then deals with his developmental and psychosocial history. He grew up in the western suburbs. He was unaware of any difficulties with his birth. His mother did not consume alcohol during pregnancy. He was not aware of any delays in reaching his milestones. He grew up with his mother as a homemaker and his father as a labourer and five siblings. He is the second‑eldest. He said his childhood was okay and he got along with his parents, but his parents began having relationship difficulties when he was about 14, which he and his siblings found stressful. They divorced when he was about 16. He then indicated a history of physical abuse from his father as punishment when he had done something wrong. There was no sexual abuse by his parents or anyone else.
22. He completed eight years of schooling; the particulars are there in the report. His intimate and social relationships were discussed, including his marriage in 2012 and two children. He has two other close friends whom he has known for about 15 years. He reported them to be supportive and a good influence on him because they were responsible and did not use drugs. He said he could talk to them and his family about personal matters when he needed support.
23. His substance use history is then discussed. He began using prescription medications recreationally at the age of 14 and has continued taking them nearly every day since, or whenever he could get hold of them. This included Tramadol, Xanax, and a drug he identified as D5. He tried cocaine at 15 and became a regular user at the age of 17. He began smoking heroin from 19. He acknowledged there was a link between his polysubstance abuse and his offending behaviours.
24. The report then continues with his medical history, gleaned from documents that the psychologist reviewed. He reported being involved in a motorbike accident in 2012. He denied any loss of consciousness and had a good recollection of detail of the event. He denied any cognitive, emotional, or behavioural changes post injury and did not report any follow up required, for example, brain scan, or brain injury rehabilitation. He reported the beginning of migraines about twice a week soon after he was discharged, which he manages with Nurofen and Panadol; these are the only current medications that he reports consuming.
25. He reported a history of seizures that began between six months and one year after his motorcycle incident and which stopped with incarceration for the present offences. He saw a GP about his seizures but could not recall when. He was prescribed anti‑epileptic medication, Lyrica, which he took for about one week but stopped because it made him drowsy. He denied any other history of neurological concern.
26. His psychiatric history is discussed. He reported depression since the age of 15, attributed to his mother and father's relationship difficulties. He said he was diagnosed with depression by a general practitioner about ten years ago but couldn't recall being prescribed medication. He did recall being prescribed Xanax for depression when he was in Lebanon for about four years.
27. A neuropsychological assessment was performed. The tests are listed. These were the Information/Orientation and Mental Control 15‑item memory test, Weschler Adult Intelligence Scale, California Verbal Learning Test, Delis‑Kaplan Executive Function System Depression, Anxiety and Stress Scale.
28. The report then deals with observations which were largely unremarkable.
29. The results on the neuropsychological testing resulted in a finding that he performed within normal limits on the tests of effort administered throughout the assessment. His pre‑morbid intellectual functioning was estimated to be within the low range. The information that he could hold in mind was in the high/average range. On tasks of mental control and efficiency he performed in the average range. His temporary storage and mental manipulation of verbal information was the average range, and speed of information processing was within the average range. His learning of unstructured verbal information was within normal limits. His initial acquisition of information was in the average range and overall acquisition was in the low/average range. His executive function was found to be within normal limits.
30. The summary opinion and recommendations section of the report asserts that: "Upon the assessment, he is performing at or above pre‑morbid expectations, within normal limits in nearly all areas of cognition assessed. He is not cognitively impaired or mentally ill, and the findings from this assessment indicate that his commission of the subject offences is largely driven by substance abuse. He has a long history of that. His ability to control his behaviour at that time would have been impaired to a certain degree by his substance use. His primary criminogenic need is for substance abuse. He has demonstrated a failure to conform to social norms, aggressiveness and a reckless disregard for the safety of others, a lack of remorse and substance abuse, all common features of a cluster B personality disorder. Further assessment is recommended to examine this."
31. The offender provided an affidavit, which contains the sequence of events following upon his arrest on 16 September 2020 and incarceration at Parklea Correctional Centre and then ultimately to Goulburn Correctional Centre in early February 2022. He was moved in March 2022 to the South Coast Correctional Centre. He has had three contact visits with his family, two with his brother and one with his mother and father.
32. There are limitations in Goulburn, where there are only four AVL rooms, and arranging a booking so that he might communicate with his family by that medium is next to impossible. iPads have since been provided and it's slightly easier now to make contact. However, it is still difficult, he says, to get bookings, and his family must call the centre every week and spend hours on hold to try make a booking. They are permitted one booking per week and he must make decisions each week as to whether he sees his children or his parents and brothers, a difficult decision for him to make, which I can understand.
33. He said he has not seen his children in person since the date of the arrest. As I understand, the children are here in Court today. The offender is sitting in the dock. He has a four‑year‑old daughter and a son who is aged eight. Both live with their mother, now his ex‑wife. There has been a serious breakdown in the relationship between them since the arrest. That is described in some detail thereafter in the affidavit.
34. Because of the culture from which he has come, divorce is not a difficult transition. Under Islamic law she was able to arrange a divorce without his knowledge. He learned of it through his father about a month after it had been formalised. This caused him upset and confusion. He found out after his arrest that she had sought an apprehended violence order to prevent him from contacting her. He made errors of judgement and contravened the order in his efforts to contact her from gaol. The affidavit continues with his knowledge now that he must respect her decision, despite how much hurt he has suffered, and deals with the breaches of the AVO and how he has come to adjust to the current circumstances.
35. He says this is the first significant period in custody and he refers to the difficulties with COVID‑19 and the limitations that are imposed. It is now accepted, as a matter of which the courts will take notice, that the COVID‑19 pandemic has imposed significant limitations upon inmates and the opportunities they have for time out of their cells and to have contact with their family and face‑to‑face visits. These are matters brought to account as a measurement of the punishment that he is called upon to suffer. He speaks of the limitations in the cells without adequate showering facilities; I have no difficulty accepting that he suffers those challenges.
36. At paragraph [41] in his affidavit he speaks of having had a lot of time to think about his actions and the trauma that he caused and how his actions would have affected him and his family long‑term. At paragraph [42] he states he sincerely regrets being so thoughtless and reckless and he is thankful every day that he did not injure the victim or anyone else around, including neighbours. He continues to express himself in terms acknowledging the misconduct, the nature of it, the impact of it, and asserts that what he did was something that he would never have done sober and that he is deeply ashamed.
37. He then referred to other stressors in paragraph [45] of the affidavit, and in paragraph [46] went on to describe an event on 1 July 2020 when his wife and children and his wife's family were at their home in Guilford where shots fired at the house. There is a newspaper article annexed to the affidavit speaking to that event. After the shooting his wife left the house and went to her mother's house for weeks; everyone else in the home was terrified, to the extent that they were sleeping on mattresses on the floor because they were too scared to sleep in their beds near the windows. The shooting was reported to police.
38. In paragraph [49] he refers to another occasion, several months before the above shooting at his home, when he was standing at the front of his house near the mail box and realised there were two men walking through the park beside his home. When they came closer he could see they were both wearing balaclavas. One stood looking at him and pulled out a gun. Before anything happened, he turned around and ran up the back driveway and jumped the back fence. He said he was terrified. He describes the impact of that and that until this day he has no idea who these people were or why this took place, but it was, in his words, "very scary" for both him and his family.
39. The affidavit deals with his background, beginning in 2005 when his father decided to pack up the family to move to Lebanon to start a business. There was no war in Lebanon at that time, but about a year later the conflict began to become progressively worse. There were episodes, including a bridge being blown up about five minutes away from their house. He did not witness any shootings, but he did witness a lot of people injured from bombings.
40. Circumstances evolved to the point where the Australian government arranged to send boats to help Australian citizens leave the country and return home. They ended up leaving Beirut to go to Turkey, where they stayed for five nights before being flown to Sydney. They had nowhere to go when they arrived here. They moved around for a couple of months from different shelters and refuges, and it was at that point that his parents began to argue and their relationship began to break down. His father left the mother and children homeless but they were able to finally obtain accommodation through the Department of Housing. He was about 14 and he began to experience low moods and bad depression.
41. He then speaks of the separation, his resort to drugs, beginning with Tramadol. This was the most used drug at the high school that he attended. He was taking six to ten pills per day, because it provided, he thought, happiness. He moved to cannabis, cocaine and then heroin, and at the time of his arrest he was taking cocaine at least every second day. He spoke of being on benders without sleep for two or three days and then would sleep for three days, taking up to 4 to 5 grams of cocaine per day. Up until his arrest he was using heroin every day.
42. He then gives a history of drug use, including when he would wake up in hospital after overdosing. There was an occasion when he left hospital and the medical staff arranged for an ambulance to go to his home and collect him. He speaks of the difficulties he was having because of his drug use, the seizures that he suffered on a regular basis, the motorcycle incident. He said it might have been a head injury that caused them, but that is not consistent with what the psychologist has provided in the report. There were brain scans and CT scans, but nothing found by the doctors, as he acknowledges, that could explain why the seizures were happening. He did not see a neurologist, because he was so addicted to drugs at the time that he did not care about his health.
43. He speaks of the psychologist's report, the inability to have a brain scan because of his custodial circumstances. He did not think about his mental health or addictions as a younger person because he did not take them seriously. He thought that was normal and that he was invincible. He now sees how important it is for him to have help for his depression and to stay off the drugs. He was assessed as suitable last year to enter a rehabilitation facility but was not granted bail and could not take that opportunity. He saw another psychologist, Andrew Wong, and plans to see him regularly once he is released. He spoke to Mr Wong in January this year.
44. He continues with a reference to the contact and exchanges with the psychologist and then speaks of his future, what he wants to do when he is released to parole. He wants to stay clean and healthy and become qualified in a trade, and he concludes by saying that he is determined to lead a clean and honourable life.
45. There is an affidavit provided by Ms Black, who is the solicitor instructing counsel in this matter. Annexed to her affidavit are documents from Auburn Hospital, Cumberland Hospital, Ryde Hospital and Liverpool Hospital. There is a covering document providing a summary of what is behind, including the admission documents. For example, at p 33 of the defence bundle, there is the discharge transfer document from Auburn Hospital for the admission on 3 October 2012 at 10.23 and the discharge on the same day at 19:56. He was then 18 years of age, seen by night staff for suicide ideation. He left, despite scheduling, to speak with his wife. He returned of his own will and denied ingestion of any further medication or drugs. He was alert and otherwise unchanged.
46. In the mental health assessment he reported that he was not suicidal, he just did not care what happened to him, he was sick of life, and admitted that he had a sentencing hearing that day on assault charges. The Bankstown Court was contacted to advise that he was in hospital and that no doubt impacted upon the continuation of the proceedings that day.
47. He was seen by a Dr Shiv. He was calm and settled at that point. This was at 10.42. His wife was in attendance. He is recorded as having wanted to go home again. He was scheduled, according to this, but he still wanted to leave. The mental health team assessed him. There is a further notation at 19:55 for his transfer to Cumberland Hospital because he had been scheduled. It notes that he frequently walked outside for cigarettes but had been compliant. At 19:30 it is noted that he had been reported as having absconded with a friend.
48. There was a further document from Auburn Hospital regarding 20 October 2012 to 3 October 2012. This records the observations made of him, how he was presenting. The notes include the observation that he was drowsy but could become agitated, engaged in speech with good eye contact, had some aggressive speech but no actual aggressive behaviour and no unusual movements. He was described as having an irritable mood, he was impulsive and aggressive. There was no acute psychosis, no voices or hallucinations and no dissociative symptoms.
49. There is an entry in the mental health assessment recording that he took an overdose of Alprazolam 2 milligram tablets, with alcohol left over from the day before when binging on vodka. The tablets came from a friend. He is described as a poor historian and reported he could not tell what had happened to him over the last two days but reported that he was supposed to attend Bankstown Court for sentencing that day. It is apparent that he was suffering the consequences of excessive drug use throughout this period leading up to these attendances at the hospital.
50. Helpfully, counsel for the offender provided a document which summarises the history of salient events which are advanced in support of the assertion that there is an explanation for his behaviour consistent with concerns for his safety and the assertion that he felt threatened at the time of discharge of this weapon. It would suffice, I think, to simply to refer to what is in this document, without the need to go page by page and line by line through the assembled records from the hospital admissions:

• At the age of 14, in about 2008, he began suffering from low mood and depression. This information is drawn from his affidavit.
• At the age of 18, on 11 May 2012, he committed the offence of assault occasioning actual bodily harm and being armed with intent found in his criminal record.
• On 24 October 2012 to 4 October 2012, he was admitted to Auburn Hospital, as I have said, telling staff, amongst other things, that he wanted to die, whereupon he was scheduled. He absconded from that hospital notwithstanding. That is contained in the hospital notes. The assertion that he wanted to die is not strictly accurate. It does not stand alone. I accept that on occasions he might have uttered those words. but this is to be read with the other representations attributed to him.
• About November 2012 he was involved in his motorcycle accident. 13 December 2012, he was admitted to Westmead after the motorcycle accident for injury management.
• On 5 February 2013 he was sentenced for the assault occasioning actual bodily harm and armed with intent, for which he was given a suspended sentence.
• 4 May 2013, he was admitted to Westmead with tachycardia following an overdose of Alprazolam in the context of stress.
• At 19 years of age, on 17 July 2013, he committed driving offences.
• On 28 November 2013 he was sentenced for those.
• When 20, in mid to late‑2014, he was involved in a motor vehicle head‑on collision, with post‑traumatic amnesia, spinal tenderness and injury to his neck and lower back.
• On 24 January 2015 he was admitted to Westmead Hospital for post‑motor vehicle incident treatment. A CT scan was conducted.
• On 7 May 2015 he was admitted to Auburn Hospital with headaches, against the background of the earlier motor vehicle incidents.
• When aged 21, between 28 July and 30 July 2015, he was admitted to Ryde Hospital for grand mal seizures, this being the second such seizure in two months. It is said that the first seizure was unprovoked. The second seizure was cocaine‑provoked, witnessed by friends to have lasted for 90 seconds, with twitching lasting for about five minutes. He fell and suffered injuries. He experienced headaches, depression, he was using Tramadol and Valium, he was recommended to undertake an ECG, but he did not. A CT was conducted. He was prescribed more Tramadol and Valium but was discharged without anti‑epileptic medication.
• On 13 September 2015 to 14 September 2015, he was admitted to Westmead Hospital with two episodes of haematemesis, that is, vomiting blood, and recent seizures.
• On 12 February 2018 the ambulance was called to attend the offender, suffering from a grand mal seizure in his car.
• On 12 February 2018 an ambulance was called to attend the offender, suffering further grand mal seizures at home.
• About 10pm on 12 February 2018 he was admitted to Westmead Hospital, having suffered two tonic clonic seizures, against the history of previous seizures described. Anti‑epileptic medication was recommended but was never prescribed.

1. There is no hospital record or material from Justice Health before me. The last hospital record is dated 19 April 2019. It is not entirely clear to me what difficulties he has been suffering in custody that apparently were impacting upon him when he was at large in the community and using drugs to the extent that he was.
2. There is a document included in the material tendered that tells me that there is work available for him once he is released from gaol. This is provided by a director of a company which has been operating for some four years. The author has known him for ten years. He was a neighbour and is aware of the material that has brought him before the Court.
3. Also included in the defence material are Court Attendance Notices in respect of charges against a person known as Hijazi, and a facts sheet, some of which has been struck, and I take it, not to be read, but then dealing with the conduct of the offender and his cousin in March of 2019. There was a dispute between those operating a business as a construction firm and the offender's cousin, who had left that employment claiming to be owed money by this business. There was a break and enter that involved the theft of a motor vehicle and tools and equipment. The claimed wages were of about $15,000.
4. Through a series of steps in the investigation, including access to telephones, and telephone call charge records, I expect, there was a connection established between the offender and his cousin and the conduct which, upon the reading of this material, suggests that they were holding the vehicle and the tools to encourage the business proprietors to pay the money that was claimed by the offender's cousin. The facts include representations by the offender, including appearing at p 115 of the defence bundle, at the bottom of the page, where in a conversation the offender is said to indicate that he had possession of the stolen Nissan vehicle. He asked the owner if it had been reported stolen. The owner indicated that it was, in response to which the offender said, "But I was going to drive that ute back to you, you know that, but youse reported it stolen." He then became angry and accused the owner of breaking his word, and continued, "You want to report it stolen on me and break the deal that you fucking made with me, yeah." He went on to direct the owner to lie to the police, to tell the workers to say that they "fucking found it".
5. He was asked to leave the vehicle where someone could pick it up, to which the offender replied, "Yeah, with my prints on it, brother. Aren't you fucking dreaming". He went on to demand multiple times that the owner unreport the utility as stolen and to say that one of the workers had it. The offender said, "I'll give it to you by hand once I know it's clear." And so it continues.
6. I am not entirely sure why that was put in the defence material, and I do not see it as a matter that assists the offender. However, I do not propose to bring it to account in what I am about to do. It is simply part of his antecedent history, which informs questions of specific deterrence and prospects of rehabilitation but cannot aggravate the offending with which I am now concerned or the sentence that should be found to be proportionate.

Consideration

1. Submissions on behalf of the offender were provided and so too by the Crown. Before I come to those, though, I should deal with the assessment of the seriousness of the misconduct.
2. The submissions made on behalf of the offender in Court sought to minimise the objective seriousness of the offending in several respects.
3. The offender, when arrested on 16 September 2020, exercised his right to silence, and apart from the affidavit, he has not given evidence and as I noted earlier, that did not deal with the details of the event on the night and why he engaged as he did. He does, though, proffer an explanation as to why it was necessary that he have a gun.
4. Thus, assessment of the facts might involve a consideration of whether inferences may be drawn from the admitted facts and representations attributed to and made by the offender. Facts in support of the Crown case and adverse to that of the offender, to the extent that they inform the objective gravity of the misconduct, must be established beyond reasonable doubt, from which it follows that any inference adverse to the offender drawn from the direct evidence must be the only rational inference available, the Crown bearing the burden of eliminating the alternative hypothesis that might be available in support of the offender ‑ R v Olbrich ibid. I made comments in these terms previously.
5. The facts upon which the offender would rely in mitigation will be proved, it is accepted, upon the civil standard of proof.
6. The context in which these offences occurred began with the involvement of the offender's brother in a motor vehicle collision in which he drove without a licence to do so, and the agreement between the victim's brother and the victim's nephew, for him to take responsibility for the driving, followed by the decision by the nephew in consultation with his family to correct the information given to the police investigating the collision, a course which the offender sought to thwart in the confrontation with the victim culminating in the discharge of the weapon six times, with three shots striking the victim's vehicle as he drove off. The CCTV depicts the vehicle departing at a sedate pace as it disappears from the right of screen.
7. The context includes the offender's acquisition of a firearm at some point before the events charged; that it was operational and loaded with six rounds, all of which were discharged in rapid succession at the victim's vehicle, three of the projectiles striking the vehicle, the conduct perpetrated notwithstanding the pleas of his brother to desist. There was a firearms prohibition order in force, which was not included in the material before me, but it is not controversial that the offender was subject to this restriction as set forth in the statement of facts.
8. The offender pleaded guilty to the charge, which included as an element of the offence that he acquired the firearm in contravention of a firearms prohibition order and therefore this is fact upon which sentence is to be assessed. Upon consideration of the legislative scheme provided in the Firearms Act, it must be accepted that the offender admits that there was a firearms prohibition order against him, on the basis that he was not fit to have possession of the firearm he used on this occasion or any other firearms.
9. Section 4 Firearms Act 1996.
10. In s 4, Firearms Act 1996, the term "firearms prohibition order" is defined in the following terms: "means an order in force under s 73".
11. Section 73 Firearms Act 1996 provides: "1. The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm; 2. The firearms prohibition order takes effect when a police officer serves a copy of the order personally on the person against whom it is made; 3. The Commissioner may revoke a firearms prohibition order at any time for any or no stated reason".
12. Section 74(1) of the Act provides: "A person who is subject to a firearms prohibition order must not acquire, possess or use a firearm. Maximum penalty-imprisonment for14 years if the firearm is a pistol or a prohibited firearm; or imprisonment for 5 years in any other case."
13. The offence charged particularises that the offender acquired a firearm in contravention of the firearms prohibition order and it therefore extends to whatever the circumstances were in which he came into possession of the weapon. The offence must also extend to the possession of the weapon, thereafter, including at the time the weapon was discharged in the commission of the second of the offences. This leads to the conclusion that there must be some overlap found in the commission of the offences, with appropriate concurrence between the sentences to be indicated, but with accumulation to reflect the acquisition of the weapon.
14. There is no evidence of when the weapon was acquired and therefore how long the offender had it before these events. There is no material from which the Court might infer its source and the purpose for which it was acquired. There is no evidence of what has happened to the weapon since, though the magazine was seized in the possession of the offender's brother. It is not possible to reach a conclusion as to whether the offender had the weapon with him intending to offer harm to the victim or his nephew or to make use of it for some coercive purpose, to defeat arrangements to have the victim's brother accept responsibility for the collision.
15. It remains, though, that the offender had the weapon and that it was loaded at the time he removed it from his jacket pocket shortly before he discharged it, and that he made the conscious decision to discharge the weapon six times in rapid succession at the vehicle driven by the victim, with three projectiles striking it. There is no evidence of where the stray shots ultimately came to rest.
16. I do not accept the proposition that he resorted to the weapon because the decision by the victim to drive away caused him to be fearful, a state of mind that arose from the experiences upon which he would seek to rely for that purpose. I reject that proposition. I am satisfied that the arrangement was for the offender to speak with the victim and the victim's nephew to discourage the matter of the collision to be taken forward to the police, as the victim and the victim's nephew were intending to do. I find that the discharge of the weapon was conduct that arose from those circumstances and not from a fear, as claimed by the offender.
17. I find that the offence charged in the first matter is within mid‑range of objective seriousness. The offence was merely three months after the firearms prohibition order. The weapon was a 9-millimetre self‑loading semi‑automatic pistol capable of discharging six rounds in quick succession and capable of being secreted in the pocket of the jacket the offender was depicted wearing in the closed‑circuit television.
18. It was said that there was no evidence upon which to conclude that the weapon was discharged at the vehicle and that the finding upon this point must be that the discharge of the weapon was in the direction of the vehicle, which, in the circumstances, is less serious, bearing in mind that the vehicle was driven off along the street and the discharge of the weapon involved limited, if any, risk of harm to members of the public, because any shots that did not strike the vehicle would be likely to be spent along the length of the roadway rather than in the direction of any nearby house.
19. Section 93G(1)(c) Crimes Act 1900, provides: "(1) A person who - (a) possesses a loaded firearm or loaded spear gun - (i) in a public place, or (ii) in another other place, so as to endanger the life of any other person; or (b) fires a firearm or spear gun in or near a public place; or (c) carries or fires a firearm or spear gun in a manner likely to injure or endanger the safety of himself or herself or any other person or any property, or with disregard to the safety of himself or herself or any other person, is liable to imprisonment for ten years".
20. The offence provided in s 93G(1)(c) arises if the person carries or fires a weapon in any of the circumstances nominated, including with disregard for the safety of another person. The offence is committed if the firearm is fired in a manner likely to injure or endanger the safety of, or with disregard to the safety of any other person. Firing a weapon is more serious than merely carrying a weapon. The offence charged is in terms of the third alternative circumstance for which this paragraph provides.
21. The Crown submits that the offence of firing a firearm in a manner likely to injure a person is within the middle range of objective seriousness. Before I turn to the reasons for this submission, I note that the offence to which the plea was entered was firing the firearm with disregard for the safety of the victim. Though upon the material before the Court one could find comfortably that the conduct was likely to injure, I do not understand that to be the basis of the plea entered and it is not consistent with the submissions made on behalf of the offender. I shall proceed to assess sentence in terms of the charge to which the offender pleaded guilty.
22. Whether the facts are to be assessed in terms that the weapon was fired in the direction of the victim, or at the victim, there is little, if any, distinction to be made, in my judgement. I believe firing in the direction of the victim equates to firing at the victim, but either way, the conduct was clearly in disregard of the safety of the victim, which the offender acknowledged by his plea of guilty.
23. It was said that I could not be satisfied beyond a reasonable doubt that the projectiles struck the vehicle and caused the damage described. The answer to this is that this is the assertion in the agreed statement of facts upon which the sentence is to be determined. To the extent that it might be necessary, I find that to the criminal standard that the offender discharged the weapon at the vehicle, which he was aware the victim was driving, and thereby disregarded to a substantial degree the victim's safety. Moreover, I do not accept the submission made that the discharge of the weapon in the direction of travel taken by the vehicle along the length of the street did not risk the safety of other members of the community who might have been in the direction that the shots were fired or at risk from a deflected projectile. I refer to two decisions: Ah‑Keni v R [2020] NSWCCA 122 at 60; and R v Haidar [2007] NSWCCA 95 at 26.
24. A submission was made in terms that the nature of the projectile was not significant as one intended to explode on impact and likely to cause extensive damage to human tissue. There is no evidence upon which to conclude that the projectiles in this case were other than solid, and I have assessed the offence accordingly. The nature of the ammunition is ascertained from the shell casing located at the scene, which in the circumstances must have been discharged by the weapon. I note that the weapon has not been recovered. The magazine found in the possession of the offender's brother is presented as part of the weapon.
25. I find that the objective seriousness of this offence is above mid‑range. It occurred about 9.30pm on Sunday on night in a suburban street, surrounded by homes, to which the victim had gone to have the offender's brother correct the misrepresentation to police regarding the victim's nephew. As the Crown submitted, relevant to this assessment is the context in which the offence occurred, as earlier discussed. There was a limited measure of premeditation in the offender taking the loaded weapon to the confrontation in which he attempted to have the victim step out of his vehicle and accompany him. The weapon was a 9-millimetre self‑loading semi‑automatic pistol. Six shots were discharged in rapid succession when the vehicle was close enough to permit three of the projectiles to strike it. The weapon was fired in the direction of the vehicle. The vehicle suffered damage.
26. In Tepania v R [2018] NSWCCA 247, Johnson J dealt with the assessment of objective gravity and moral culpability for standard non‑parole period offences and those without a standard non‑parole period. After dealing with the provisions introducing standard non‑parole periods, his Honour observed that the Court should assess objective gravity in all offences, applying general law principles and bringing out all factors that bear upon objective seriousness, unless excluded by statute. Motive, provocation and non‑exculpatory duress may be considered if relevant.
27. In the instant case there is no evidence of provocation or duress that I find reliable. The facts provided allow a finding that the offender was motivated by his desire to assist his brother to avoid the consequences of his driving, for which the victim's nephew was persuaded to accept responsibility.
28. His Honour went on to discuss moral culpability, which might be diminished by mental illness or impairment, or alternatively, illuminated by antecedent offences in the way I earlier discussed.
29. In this instance one has a significant record of antecedent offences which is relevant to the assessment of moral culpability, but I have not overlooked that he has, according to the history before me, suffered because of his parents' deteriorated marriage that followed the forlorn attempt at a new life in Lebanon, which ultimately had to be abandoned so that they could be returned to Australia. His decision to embark upon drug use was his, but one can understand why he might have fallen under the spell of that pattern of behaviour. I bring that to account as part of his background in the assessment of sentence. I note, however, that self‑induced intoxication is not a matter that can be relied upon in mitigation of penalty.
30. The submissions that have been made on behalf of the offender are extensive. I do not need to go into detail. Much of what has been advanced I have already addressed. I have already dealt with the pre‑sentence history, the pre‑sentence custody, the decision to backdate in accordance with the discretion that I have, the need for appropriate concurrence in the sentences. I have noted the pleas of guilty, for which he has the benefit of the discount for utility. I have noted what was said about objective seriousness and moral culpability. I have had regard to the fact that the offences were committed whilst he was subject to conditional liberty and the way in which that is to be used in the assessment of the weight to be given to specific deterrence and whether there are prospects for rehabilitation. I repeat that the antecedent history does not increase the objective seriousness of this offending or the punishment that is otherwise proportionate.
31. I accept that the offender has exhibited some level of remorse for his misconduct and has asserted so in his affidavit. I do not accept that he has made no excuses for his conduct. It is not so simply stated, in my view. He sought to explain his conduct, drawing upon what he said was concern resulting from previous incidents that were disclosed in his affidavit, including the shooting at his house, but I do not believe that, in the circumstances that led to the shooting on this occasion, he was acting out of any fear or anxiety arising from those past events. This arose from the attempt by the victim to correct the situation into which his nephew had been placed because the offender's brother sought to avoid his responsibility for the motor vehicle collision beforehand. I accept that there was no actual injury to anybody, but there was damage to the vehicle and the potential for harm was patent.
32. The extent of the offender's mental health is asserted, but I have noted that is a consequence of his misuse of drugs, largely, although there is in the hospital records support for the proposition that he had this propensity for seizure. The psychologist's report, I note, is not entirely supportive in that regard.
33. However, on balance, I will extend to him the benefit of the content of those medical reports in mitigation of the punishment that he must face.
34. I note that serving a sentence is going to impact upon him perhaps more onerously than in the past when offenders did not have the worry of the COVID‑19 epidemic. I note that he has a young family, and in accordance with what was recently said in the Court of Criminal Appeal, difficulties for the family and the extended families are matters that are not to be overlooked when assessing the level of punishment suffered an offender.
35. I am not persuaded there are good prospects of rehabilitation. I am not satisfied that there is little likelihood of reoffending. History is against him in that regard. I accept this is the longest period of custody that he is going to face. I accept that there are special circumstances. He will need a longer period on parole to reintegrate back into the community and to hopefully build upon progress that he might be able to make whilst in custody.
36. All the purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act are relevant here. There must be general deterrence. This sort of behaviour cannot be tolerated and the courts must make clear that if people are prepared to take weapons and discharge them in the street in circumstances such as this, punishment will follow. Specific deterrence has a role to play. The conduct must be denounced. Harm to the community and to the victim is to be recognised and the offender is to be made accountable. He has demonstrated in the past the need for a sentence that will do what it can to provide adequate protection for the community.
37. All these matters, of course, are brought together in synthesis in the process the Court is required to embark upon to determine the appropriate sentence.
38. The Crown submissions remind me of the serious nature of the offending, that an intensive corrections order is not available in this case by force of s 67(1)(f) Crimes (Sentencing Procedure) Act 1999. It is conceded on behalf of the offender that a custodial sentence is the only option.
39. The objective seriousness is assessed in relation to the fire firearm offence with regard to the context, the level of planning, which was not great. It was rather spontaneous, although there was some level of premeditation because the offender had the loaded firearm in the pocket of his jacket at the time he confronted the victim's uncle. The type of weapon used is relevant; the number of shots fired; the direction in which the weapon was discharged; the damage to the vehicle; that it occurred in a suburban street with a significant risk of injury to others.
40. The objective seriousness of the acquire firearm offence is informed by the existence of the firearms prohibition order so recent to the occasion that the offender chose to have this weapon and discharge it; and there is, as the Crown points out, separate and distinct criminality which requires appropriate accumulation. The Crown has reminded me of the aggravating factors of conditional liberty, reminded me that there is a plea of guilty attracting the discount. There is a reminder of the purposes of sentencing and the form of the sentence.
41. As I noted, the attribution found in the psychologist's report as to his reasons why he shot at the victim, taking the departure of the vehicle as a threat, not replicated in the affidavit, I reject. There is absolutely no evidence of any connection between the victim and his family on the one hand, and whoever might have been involved in the events to which the offender has pointed in his affidavit with reference to the newspaper report. The reference to the offender's affidavit to "Gary" clearly is consistent with the fact that there was no connection.

The Sentence

1. This brings me now to the task of imposing the sentence. The offender is convicted of each of the offences. The aggregate sentence I shall impose will consist of a non‑parole period of 3 years and 3 months, commencing on 16 March 2021, with a head sentence of 5 years and 6 months. The offender will become eligible for parole on 15 June 2024. The sentence I find appropriate for each of the offences are, for the offence of acquire firearm, a sentence of 3 years; for the offence of discharging the firearm, a sentence of 4 years and 6 months. These have been reduced by a discount of 25% in each case.
2. To repeat, the aggregate sentence commences on 16 March 2021. The non‑parole period of 3 years and 3 months expires on 15 June 2024 and the head sentence expires on 15 September 2026. The head sentence is one of 5 years and 6 months.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2022