Rami Mohamad v Regina

The application 8 Mr Odgers SC, who appeared for the applicant in this Court and in the sentence proceedings, challenged two of the sentencing judge's findings of fact about the offence and argued that, in all the circumstances, the sentence imposed should have been suspended. I shall deal firstly with the factual matters. 9 From the psychological report it appears that the applicant told the psychologist that his involvement in the offence was as a "go-between", assisting "one of his friends" who wanted to buy the guns. The friend, it would seem, was El Saadi. The transcript records that, when Mr Odgers raised this matter in final address to his Honour, the Crown prosecutor (who did not appear in this Court) said that it was not in contest. In his remarks on sentence, his Honour observed that "the role of agent of the purchaser would put the offender in a somewhat less culpable position than the purchaser". 10 Nevertheless, while noting the Crown prosecutor's concession, his Honour went on to reject the proposition that the applicant was acting as a go- between. He observed that it was a matter in mitigation, as to which the applicant bore the burden of proof, and he found that that burden had not been discharged. He noted that the matter was raised only in hearsay form in a report and had not been the subject of sworn evidence. He referred to the passage in the agreed statement of facts that certain telephone calls between the applicant and El Saadi indicated that both of them were willing to purchase the firearms, and he drew the inference that "both were willing to finance their respective share of the purchase". From the agreed fact that the applicant was nearby at the time of the exchange between Archer, Dunn and Robson he concluded that he was in attendance "for the purpose of protecting such interests he and El Saadi had in their attempt to purchase the weapons". 11 In my view, were it not for the Crown prosecutor's concession, those findings were clearly open to his Honour on the limited material available to him. However, it was the concession upon which Mr Odgers relied. He referred to the principles governing sentence proceedings considered by the High Court in GAS & SJK v The Queen (2004) 217 CLR 198 at [27] ff and, in particular, to the following passage at [30]: …it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by statement of facts from the bar table which was not contradicted) . (Footnotes omitted, emphasis added) 12 Mr Odgers also took us to the decision of this Court in R v Ryan (2003) 141 A Crim R 403. That was an application for leave to appeal against sentence on a charge of aggravated dangerous driving causing death. The offender had left the scene of a serious accident, and he later told police that he had done so because he had panicked. He did not give evidence in the sentence proceedings. The sentencing judge rejected a submission that he should be found to have left the scene only because of panic, saying that it was "only backed up by hearsay assertions made by the offender". 13 In delivering the leading judgment, Grove J said (at [28]): The Crown tendered statements of police officers to whom the applicant had made relevant assertions of panic and the transcript of the interview in which he had himself so stated. There was no indication that the Crown did not accept this assertion.