Rami Mohamad v Regina

After referring to a passage in the joint judgment in The Queen v Olbrich (1999) 199 CLR 270 at [25], his Honour continued: There was no counter evidence against the applicant's assertion nor was he put on notice by the Crown or by the presiding judge that his assertion was not to be accepted. The challenge to the approach disclosed in his Honour's reasoning is made good. (Emphasis added) 14 It is the italicised words in that passage which are apposite in the present case. I would hesitate to say that a judge is invariably bound by a concession of fact made by the Crown's representative in sentence proceedings. However, it is important that a judge should voice any concern she or he has about it, so that it could be the subject of further argument and, if necessary, further evidence. In the present case, after the Crown prosecutor said that he did not contest the proposition that the applicant was acting as an intermediary, his Honour said no more than that Mr Odgers' task as the applicant's advocate was, to that extent, made easier. Mr Odgers then developed no further argument about the matter, no doubt assuming that it was resolved in his client's favour. 15 Accepting that his Honour fell into error in that way, the question remains whether it is of such significance as to call for this Court's intervention. I shall refer later to his Honour's assessment of the gravity of the offence. What is relevant for present purposes is the absence of any evidence of the motive of the applicant El Saadi who purchased the weapons. His Honour concluded that their motive was unlawful, although he was unable to be satisfied of the specific nature of the illegal activity contemplated by them. 16 Mr Odgers argued that, in general, an agent bears less responsibility for a crime than the principal. That may be so in many cases, but the culpability of the agent must fall to be determined in the light of the facts of each case. Mr Odgers also argued that, if the applicant were treated as an intermediary, it would not have been open to his Honour to be satisfied that he was a party to the unlawful purpose of his principal. The most that could be found, he said, was that the applicant was aware of the possibility that the weapons might be used for some unlawful purpose. 17 On the facts of the case, I consider this to be a fine distinction. Even if the applicant were acting as an intermediary, given the number of weapons involved and the surrounding circumstances, he could have been in no doubt that they were being purchased for an unlawful end. As his Honour pointed out, the provisions of the Firearms Act restricting the sale and purchase of weapons were born of the recognition of the association of "the unlawful disposal of firearms with the subsequent illegal use of those firearms by the criminal element". Involvement in that distribution as an intermediary may be, as his Honour recognised, "somewhat less culpable" than that of the purchaser, but not markedly so. Even as a go-between, I do not consider the applicant's criminality to be significantly less than that of El Saadi. I would not interfere with the sentence on this basis. 18 The other challenge to his Honour's factual findings can be dealt with briefly. On several occasions in the course of his remarks, his Honour said that the intention of the enterprise was to purchase eighteen "pistols". Mr Odgers pointed out that the agreed facts used the neutral expression "firearms". Section 51A(2) of the Act provides for a significantly higher penalty if the offence relates to pistols: imprisonment for fourteen years. Mr Odgers submitted that his Honour had fallen into the error identified in The Queen v De Simoni (1981) 147 CLR 383. 19 However, it is clear that his Honour was aware that he was dealing with the offence which carried a five year maximum term. Moreover, towards the end of his remarks, counsel for El Saadi reminded his Honour that there was no evidence that the weapons were pistols and his Honour corrected what he had said before, noting that the attempt was to purchase eighteen "firearms". I might add that it is apparent from the exchange between his Honour and counsel at that point that, even if they had been pistols, that would not have led him to pass a heavier sentence. This also is a matter which does not call for this Court's intervention. 20 Finally, Mr Odgers submitted that the two year sentence should have been suspended. He referred to the examination of the suspended sentence by Howie J in R v Zamagias [2002] NSWCCA 17 at [31]ff. He argued that it was the appropriate course in the present case because of the applicant's youth, his immaturity at the time of the offence, his generally favourable subjective case, his remorse and his good prospects of rehabilitation. He also relied upon the delay of a little over four years between the offence and sentence (for reasons which are not spelled out in the material before us), during which time the applicant had committed no further offence and had pursued a responsible lifestyle. 21 There is no doubt that his Honour was confronted with a very difficult sentencing exercise. However, he saw the offence as a serious one, in which considerations of deterrence, particularly general deterrence, loomed large. He was satisfied that, if the activity of the applicant and the other men had not been interrupted by police action, the sale would have proceeded, and he added that the "unlawful sale or purchase of the 18 firearms must be seen as representing a very substantial threat to public safety". He described the offence as a "well organised criminal activity" and the criminality exhibited by it as "of a very high order". 22 No challenge was, or could have been, made to his Honour's characterisation of the offence in this way. Nor was there any challenge to the length of the sentence or of the non-parole period. As I have said, the only submission was that it should have been suspended, a matter which was raised in Mr Odgers' address on sentence but was not referred to by his Honour in his remarks. It is clear that his Honour decided that suspension of the sentence was not appropriate and, in all the circumstances, I am not persuaded that he fell into error in so doing. 23 I would grant leave to appeal but dismiss the appeal. 24 HALL J: I agree with Hidden J. ********** IN THE COURT OF CRIMINAL APPEAL 2005/1002

SULLY J HIDDEN J HALL J

Monday 28 November 2005 Rami Mohamad v Regina Judgment 1 SULLY J: I agree with Hidden J. 2 HIDDEN J: The applicant, Rami Mohamad, pleaded guilty in the District Court to a charge that, not being a licensed firearms dealer, he attempted to purchase eighteen firearms from other persons who were themselves not licensed firearms dealers. Provision for the completed offence is to be found in s51A(2) of the Firearms Act 1996, and it carries a maximum sentence of five years imprisonment. The sentencing judge treated the attempt, to which the applicant had pleaded guilty, as carrying the same maximum term. He was sentenced to imprisonment for two years, with a non-parole period of fifteen months, dating from 20 December 2004. He seeks leave to appeal against that sentence. 3 Before his Honour was an agreed statement of facts, as follows: On 23 September 2001 Jack James Dunn, Guy Shannon Robson and Scott Thomas Archer were arrested by police and charged with trafficking offences under the Firearms Act 1996. These offenders, together with Rami Mohamad, Bellal El Saadi and Patrick Sheehan, participated in an enterprise to sell firearms to unauthorised persons. Between 15 September and 23 September 2001 police covertly monitored telephone calls between the offenders. Telephone calls reveal that Dunn had indicated to Mohamad that he could sell Mohamad firearms. Other telephone calls between Mohamad and El Saadi indicate that Mohamad and El Saadi were willing to purchase the firearms. Robson assisted Dunn at certain material times. Archer held a firearms licence but not of the type which permitted commercial dealings with the weapons. On the evening of 23 September 2001, police attached to Organised Crime Firearms Trafficking monitored a gathering of the offenders in the south-western suburbs of Sydney. The offenders Archer, Sheehan, Dunn and Robson met in the car park of the McDonald's Restaurant at Narellan. Dunn and Robson arrived at the car park in a silver Ford sedan. Archer arrived in a blue Holden Commodore. Sheehan arrived in a red Holden utility. After a short meeting, Archer left in the Ford that had been driven by Dunn and Sheehan left in the Commodore. About one hour later, Sheehan returned in the Commodore and left in his utility. Five minutes later, Archer returned in the silver Ford. He had further discussions with Dunn and Robson. Dunn and Robson then left in the Ford. Mohamad was nearby when the exchange between Archer, Dunn and Robson occurred. El Saadi was at the cinema at the time these incidents occurred at Narellan. There is no evidence that El Saadi ever met with any of the other participants in the enterprise, apart from Mohamad. Telephone calls reveal agreement to purchase 18 unregistered and assorted firearms from amongst a total of 42, including 21 pistols, found by police in the boot of the Ford. Other telephone calls reveal the firearms were being sold for $2700 each or between $40,000 and $50,000 for the lot. No such large sum of money was ever recovered. There is no evidence that El Saadi paid any money towards the purchase. Police attempted to arrest Archer, Dunn and Robson but they escaped in cars driven at high speed. Archer was a passenger in the Commodore. Dunn and Robson, travelling together in the Ford, were arrested after a pursuit. Archer made good his escape. The Commodore was abandoned and a person or persons hid a few additional firearms removed from it in the surrounding area. Archer surrendered himself to police 2 hours later. At all material times, Archer was employed as a Corrective Services officer at Silverwater Gaol. His participation in this offence was active to the extent that telephone call interceptions display his coercive attempts at settlement with both Sheehan and Dunn. 4 Of the other men referred to in the statement of facts, all but Sheehan have pleaded guilty to the same or a similar offence under the Firearms Act and have been dealt with. It is not necessary to set out the sentences imposed upon them. At the time of the hearing of the application, Sheehan was facing trial in the District Court. The agreed statement of facts was somewhat laconic about the applicant's role in the enterprise, but his Honour made certain findings about his involvement which were challenged in the application. 5 The applicant was twenty-one years old at the time of the offence and is now twenty-five. His only prior conviction is for receiving a large number of mobile phones, for which a suspended sentence of two years was imposed in the District Court in September 2003. However, that offence had been committed in May 2001, some five months before the present offence. 6 He is the son of Lebanese migrants to this country, and enjoyed a close and stable family life. At the time of sentence he had been in a relationship with a young woman, who remained supportive of him. He left school in year eleven to work in his father's electrical business, and had undertaken a TAFE apprenticeship. It seems that he had been a competent and responsible worker. He was a social drinker and did not use illicit drugs. 7 There were before his Honour a pre-sentence report, a psychological report and a number of character references. The pre-sentence report assessed him as a person who required no more than "a low level of intervention". The psychologist concluded from the history that his commission of the offence was due to "immaturity and peer group influences at the time". He continued to benefit from the support of his family (included his extended family) and the opportunity for on-going employment in his father's business. His Honour accepted that he was remorseful and that his prospects of rehabilitation were "positive".

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.

After referring to a passage in the joint judgment in The Queen v Olbrich (1999) 199 CLR 270 at [25], his Honour continued: There was no counter evidence against the applicant's assertion nor was he put on notice by the Crown or by the presiding judge that his assertion was not to be accepted. The challenge to the approach disclosed in his Honour's reasoning is made good. (Emphasis added) 14 It is the italicised words in that passage which are apposite in the present case. I would hesitate to say that a judge is invariably bound by a concession of fact made by the Crown's representative in sentence proceedings. However, it is important that a judge should voice any concern she or he has about it, so that it could be the subject of further argument and, if necessary, further evidence. In the present case, after the Crown prosecutor said that he did not contest the proposition that the applicant was acting as an intermediary, his Honour said no more than that Mr Odgers' task as the applicant's advocate was, to that extent, made easier. Mr Odgers then developed no further argument about the matter, no doubt assuming that it was resolved in his client's favour. 15 Accepting that his Honour fell into error in that way, the question remains whether it is of such significance as to call for this Court's intervention. I shall refer later to his Honour's assessment of the gravity of the offence. What is relevant for present purposes is the absence of any evidence of the motive of the applicant El Saadi who purchased the weapons. His Honour concluded that their motive was unlawful, although he was unable to be satisfied of the specific nature of the illegal activity contemplated by them. 16 Mr Odgers argued that, in general, an agent bears less responsibility for a crime than the principal. That may be so in many cases, but the culpability of the agent must fall to be determined in the light of the facts of each case. Mr Odgers also argued that, if the applicant were treated as an intermediary, it would not have been open to his Honour to be satisfied that he was a party to the unlawful purpose of his principal. The most that could be found, he said, was that the applicant was aware of the possibility that the weapons might be used for some unlawful purpose. 17 On the facts of the case, I consider this to be a fine distinction. Even if the applicant were acting as an intermediary, given the number of weapons involved and the surrounding circumstances, he could have been in no doubt that they were being purchased for an unlawful end. As his Honour pointed out, the provisions of the Firearms Act restricting the sale and purchase of weapons were born of the recognition of the association of "the unlawful disposal of firearms with the subsequent illegal use of those firearms by the criminal element". Involvement in that distribution as an intermediary may be, as his Honour recognised, "somewhat less culpable" than that of the purchaser, but not markedly so. Even as a go-between, I do not consider the applicant's criminality to be significantly less than that of El Saadi. I would not interfere with the sentence on this basis. 18 The other challenge to his Honour's factual findings can be dealt with briefly. On several occasions in the course of his remarks, his Honour said that the intention of the enterprise was to purchase eighteen "pistols". Mr Odgers pointed out that the agreed facts used the neutral expression "firearms". Section 51A(2) of the Act provides for a significantly higher penalty if the offence relates to pistols: imprisonment for fourteen years. Mr Odgers submitted that his Honour had fallen into the error identified in The Queen v De Simoni (1981) 147 CLR 383. 19 However, it is clear that his Honour was aware that he was dealing with the offence which carried a five year maximum term. Moreover, towards the end of his remarks, counsel for El Saadi reminded his Honour that there was no evidence that the weapons were pistols and his Honour corrected what he had said before, noting that the attempt was to purchase eighteen "firearms". I might add that it is apparent from the exchange between his Honour and counsel at that point that, even if they had been pistols, that would not have led him to pass a heavier sentence. This also is a matter which does not call for this Court's intervention. 20 Finally, Mr Odgers submitted that the two year sentence should have been suspended. He referred to the examination of the suspended sentence by Howie J in R v Zamagias [2002] NSWCCA 17 at [31]ff. He argued that it was the appropriate course in the present case because of the applicant's youth, his immaturity at the time of the offence, his generally favourable subjective case, his remorse and his good prospects of rehabilitation. He also relied upon the delay of a little over four years between the offence and sentence (for reasons which are not spelled out in the material before us), during which time the applicant had committed no further offence and had pursued a responsible lifestyle. 21 There is no doubt that his Honour was confronted with a very difficult sentencing exercise. However, he saw the offence as a serious one, in which considerations of deterrence, particularly general deterrence, loomed large. He was satisfied that, if the activity of the applicant and the other men had not been interrupted by police action, the sale would have proceeded, and he added that the "unlawful sale or purchase of the 18 firearms must be seen as representing a very substantial threat to public safety". He described the offence as a "well organised criminal activity" and the criminality exhibited by it as "of a very high order". 22 No challenge was, or could have been, made to his Honour's characterisation of the offence in this way. Nor was there any challenge to the length of the sentence or of the non-parole period. As I have said, the only submission was that it should have been suspended, a matter which was raised in Mr Odgers' address on sentence but was not referred to by his Honour in his remarks. It is clear that his Honour decided that suspension of the sentence was not appropriate and, in all the circumstances, I am not persuaded that he fell into error in so doing. 23 I would grant leave to appeal but dismiss the appeal. 24 HALL J: I agree with Hidden J. **********

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.