Raniga v R

The facts of the offending

1. The Sentencing Judge had before her a Crown case statement setting out the facts. Objection was taken to some of the material in that statement but ultimately the Sentencing Judge considered the following facts from that statement related to the offending.
2. By the middle of 2013 there was animosity between members of the Hells Angels Motorcycle Club and the Comanchero Motorcycle Club. In July 2013 the accused, Suvat Sarmisakliglu, was the president of the Sydney Chapter of the Hells Angels Motorcycle Club. The co-accused, Ashoor Khaie and the Applicant were "prospect" members of that club.
3. A member's position in the club's hierarchy determines the extent to which he is under the control of the organisation and members who are senior to him. Before becoming a full member of the club a member must be a prospect. A prospect is required to perform duties such as tending the clubhouse bar, cleaning the clubhouse, performing security and attending to the needs of full members. A prospect is required to hold this status for a minimum period of 12 months and is subject to the direction of a full member. Failure to comply with the direction of a full member is grounds for a wide range of penalties. These range from fines to expulsion from the club.
4. At about 10:40pm on 1 July 2013, police were travelling in an unmarked, serialised police vehicle, eastbound, on Parramatta Road, Camperdown. Police were travelling in lane 2 of 3 of the carriageway when they saw Sarmisakliglu's black Mercedes four-wheel-drive, registration CDW 09X, travelling behind a Toyota Tarago Premier taxi, registration T5901 in lane 3, closest to the centre of the road. The two vehicles were travelling in convoy.
5. Police moved into lane 3, behind the Mercedes, which was still behind the taxi. As they approached the intersection of Missenden Road, where a 4th right hand turn lane is designated on Parramatta Road, police saw the taxi continue driving in lane 3. About 10 to 20 metres past the commencement of the right-hand turn lane, the taxi indicated and moved into it, followed, somewhat erratically, by the Mercedes. Police followed the two vehicles into the right-hand turn lane and all three vehicles came to a stop at a red traffic light at the Missenden Road Intersection.
6. Police activated their siren and pulled the taxi over on Carillon Avenue. Police requested that the front passenger, Ashoor Khaie, get out of the taxi. The Applicant who was sitting in the rear of the taxi was also removed. The taxi driver, Mr Izzet Ozturk, was escorted away from the taxi. While being escorted he told police, "They put something in the boot, I don't know what it was".
7. Police then obtained identification details from the Applicant and Khaie and told them they and the taxi would be searched. They were spoken to and searched.
8. Police opened the boot of the taxi and found a green rifle bag. Inside a side pocket of the bag, they found a plastic bag containing 7.62 x 39mm calibre rounds of ammunition and 15 x 5.56 x 45mm calibre cartridges. Upon opening the rifle bag, police found a purple towel within which was wrapped:

• a 7.62 x 39mm calibre Chinese manufactured SKS model self-loading rifle, serial number 8903811. The rifle was unregistered and is a prohibited firearm as defined in clause 5 of schedule 1 of the Firearms Act; and
• two unknown manufacture detachable box magazines - one containing 30 rounds of ammunition and the other containing 27 rounds.

1. At Newtown police station, police offered the Applicant the opportunity to participate in an ERISP but, after initially agreeing to this, he said he did not feel comfortable about doing an electronically recorded interview. Police then explained that they would ask some questions which would be recorded in their notebook. When asked how long he had been a Hells Angel, the Applicant replied "about a year as a prospect". When asked if he knew the gun was in the boot of the car, the Applicant replied "we wanted to go hunting". Police asked "so you knew the gun was in the car" to which the Applicant said "No, I don't know what they put in there".
2. The Applicant has since supplied a statement indicating that the rifle was put there by him and that he wanted to go hunting. The Sentencing Judge noted that the Applicant did not provide any details as to what it was he proposed hunting or the circumstances of such hunting.
3. Her Honour concluded beyond reasonable doubt that, in all the circumstances of the Applicant's apprehension including his being part of the Hells Angels outlaw motor cycle group and the fact that he was travelling in a convoy with a senior officer of that club, when he told the police he wanted to go hunting it was untrue, and his possession of the weapon was not for some innocent purpose but was in some way connected with his involvement with that outlaw motor cycle group.
4. Her Honour noted the Applicant's statement of 30 August 2013 where he said that the others had no knowledge of the weapon. However, the circumstances of their travelling in convoy and the fact that the item was placed in the boot of the taxi in what clearly appeared to be a rifle bag caused her Honour to have grave doubts about his claim that the others knew nothing of the weapon at all. Her Honour noted also that the taxi driver described the circumstances in which he was hired to drive the group. When he arrived at the front of the property he saw the men all standing around together and he realised that something was placed in the boot.

Subjective matters

1. The Applicant did not give evidence at the sentencing proceedings. Her Honour was provided with a pre-sentence report. That report disclosed that he was the second of five children born and brought up in a stable and supportive environment. However, five years before the offending he was asked to leave the family home due to his abuse of illicit substances.
2. The Applicant first became associated with the Hells Angels in January 2012 as a prospect and became a club member in March 2014. He told the Community Corrections Officer that he discontinued his Club membership in June 2014.
3. Since completing the High School Certificate he has largely been unemployed except for a position as a furniture removalist for eight months and some other short term casual employment.
4. The Applicant told the Community Corrections Officer that he was under the influence of cannabis at the time of the offence, having smoked a quarter of an ounce shortly beforehand. He told her that he commenced using illicit substances in June 2012, regularly using cocaine, ecstasy and GHB. He ceased using GHB in November 2012 but commenced using methamphetamine. He had developed a daily habit and had also commenced the use of non-prescribed benzodiazepines. By April 2013 he had identified methamphetamine as problematic. He ceased using it and replaced it with daily use of cannabis.
5. He told the Officer that he drank alcohol about three times per week to intoxication. He also said that he was gambling approximately $800 per day at the TAB and on poker machines. He saw that this had become a problem for him. He also told the Community Corrections Officer that he could now see that his association with the Hells Angels was a backward step.
6. The Applicant was convicted of two counts of robbery in company in December 2007. He was initially given a four year section 9 bond but on a Crown appeal he received an overall sentence of nine months non-parole with a balance of term of one year and three months (the sentencing judge mistakenly referred to a non-parole period of six months).
7. Since going into custody in respect of the present offence the Applicant has had a number of breaches for intimidation, disobeying directions, damaging property and other prison infractions.

Remarks on Sentence

1. Her Honour characterised the objective seriousness of the offence as being at the upper end of the mid-range of objective seriousness. In the Applicant's favour her Honour found that the weapon may only have been in his possession for a short time and that its condition when it was found meant that it did not present an immediate threat.
2. However, her Honour said that one matter that made the offence particularly serious was the Applicant's connection with a criminal organisation that was well known for its engagement in criminal activity of a highly violent kind where the lives of innocent members of the public might be endangered. Her Honour said there was a clear inference that such a weapon could have been used in connection with potential criminal activities although there was no direct evidence of any particular crime at that time being committed.
3. Further, although the weapon was not loaded, ammunition for the weapon was found in the same bag. The weapon was a military type weapon that could inflict serious harm on other people if misused.
4. The Sentencing Judge noted that the Applicant had written a letter to the court explaining that his time in custody had led him to change his attitude towards his past activities and that the experience has been something of a wake-up call. He accepted that he had made some poor decisions in the past. Her Honour commented that what the Applicant said in that regard had to be given limited weight because he had not given it in sworn evidence nor been subject to questioning about it. Her Honour said also that the worth of the letter was further diminished by his institutional offences in prison.
5. Her Honour stressed that both general and specific deterrence were significant in the sentencing process in this matter. Her Honour thought the Applicant's prospects of rehabilitation, in the light of his criminal history and his institutional behaviour, must be guarded.
6. Her Honour accorded a discount of 25% for his early plea and she found special circumstances to a small extent because of his need for ongoing supervision once released.

Submissions

1. The two appeal grounds are considered together because one basis for the assertion that the sentence was manifestly excessive is the Sentencing Judge's assessment of objective seriousness.
2. The Applicant pointed to the notional starting point for the sentence as one of six years with a non-parole period of four years against a standard non-parole period of three years. Whilst accepting the limited usefulness of statistics the Applicant pointed to the JIRS statistics from January 2008 to December 2014 for offences against s 7(1) of the Firearms Act. There were 71 offenders, 59 of whom were sentenced to full time imprisonment. Of those, 27 offenders were sentenced to non-consecutive terms. One received a six month non-parole period, two a 12 month non-parole period, nine an 18 month period, nine a 24 month period, three a 30 month period, two a 36 month period and one a 42 month period. The mid-point was said to be 24 months.
3. All but one of those 27 offenders pleaded guilty. Eight were sentenced for one offence only and seven had matters taken into account on a Form 1. Of those eight offenders, two had a non-parole period of 18 months, five had a non-parole period of 24 months and one had a non-parole period of 30 months. The Applicant submitted, therefore, that he had been sentenced to a non-parole period that exceeded any of the non-parole periods imposed for offenders in a similar situation.
4. On the assessment by her Honour of the objective seriousness of the offence as being at the upper end of the mid-range the Applicant submitted that a survey of cases indicated that the objective seriousness of the Applicant's offence was no higher than those who received lesser sentences. The Applicant relied on a number of decisions said to be comparable which showed that the Applicant's offending was significantly lower than the offending in those cases. Those cases were R v Farrell [2015] NSWCCA 68; El Masri v R [2014] NSWCCA 13; Atkinson v R [2014] NSWCCA 262; Bejanov v R [2013] NSWCCA 207 and Satuala Nanai v R [2012] NSWCCA 141. The Applicant also relied in particular on Van Vinh Cao v R [2013] NSWCCA 321 and Thalari v R [2009] NSWCCA 170; (2009) 75 NSWLR 307 concerning matters that can properly be taken into account in assessing objective seriousness of offences against s 7(1) of the Firearms Act.
5. The Crown submitted that the finding of objective seriousness involved the exercise of discretion. Reference was made to Mulato v R [2006] NSWCCA 282 and Kiernan v R [2016] NSWCCA 12.
6. In relation to the statistics the Crown pointed out that neither the underlying factors nor the subjective features of the cases forming the basis of the statistics were disclosed. In that way the statistics were of no utility in determining that the sentence imposed was excessive. The Crown analysed the cases relied upon by the Applicant to show why they were of little assistance in the matter.
7. The Crown pointed to a number of aspects of the case identified by the Sentencing Judge which indicated that the sentence was not unreasonable or plainly unjust. These included the Applicant's connection with the outlaw motorcycle group, the real potential for a weapon such as was found to cause damage by falling into the wrong hands or of being misused, the Applicant's continuing disregard and disobedience for authority in prison and the inability of the Applicant to grasp the seriousness of his actions. The Crown further pointed to the seriousness of the offence reflected in both the maximum penalty and the standard non-parole period.

Determination

1. The categorisation of the objective seriousness of an offence is only reviewable on appeal on the principles set out in House v The King (1936) 55 CLR 499; Kiernan at [48]; and Mulato at [37] and [46].
2. The Applicant failed to identify what the error was said to be in relation to the assessment of objective seriousness. General submissions were made that her Honour was not justified in finding the offending as being at the upper end of the mid-range of objective seriousness, and that the Applicant's level of objective seriousness was no higher than other offenders in cases relied upon by the Applicant where such offenders had received lesser sentences than the Applicant. These matters do not, of themselves, demonstrate error.
3. In Thalari matters that were said to be relevant to be taken into account on the present offence were the connection with drug supply (at [86] and [89]), whether the firearm was loaded and whether the offender possessed other ammunition (at [88]) and whether the serial number had been obliterated (at [89]). Whether a loaded firearm was possessed for an offender's own protection was not a matter of significance (at [88]). The Court emphasised that general and specific deterrence were particularly relevant matters for such offences (at [92] and [93]).
4. In Cao Hoeben CJ at CL (with whom Simpson and Hall JJ agreed) said: [32] The firearm offences also involved a significant level of criminality. In Ayshow v R [2011] NSWCCA 240 Johnson J (with whom Bathurst CJ and James J agreed) at [64] - [73] referred to the policy reasons behind s 7(1) Firearms Act 1989 and matters relevant to the seriousness of the offence. His Honour said that the use or purpose of possession of an unlicensed firearm - particularly where it is connected with criminal activities - was regarded as a key factor in assessing the seriousness of offences contrary to the Act. [33] In R v Dusan Krstic [2005] NSWCCA 391 Latham J (with whom Sully and RS Hulme JJ agreed) said at [14]: 14 ... In any event, accepting the applicant's argument for present purposes, possession of a loaded gun for one's own protection is not a matter of significant, if any mitigation, since the policy of the legislature evinced by the enactment of the offence and a maximum penalty of 14 years' imprisonment is to deter and punish possession of firearms per se. ... [34] Part of the rationale behind s7(1) was explained by R S Hulme J (with whom in Beazley JA and Latham J agreed) in R v Najem [2008] NSWCCA 32 at [40]: 40 ... That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others' rights. [35] This Court has said on a number of occasions that an offender's criminality is more serious where he or she possesses a firearm as part of their involvement in crimes, such as trading in illegal drugs. In R v Amurao [2005] NSWCCA 32 at [69] RS Hulme J said: 69 ... It behoves the Courts to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law. This is particularly so in relation to the possession of a concealed weapon such as the key-ring pistol which was not capable of lawful use.
5. Her Honour was well justified in coming to the view that the Applicant's connection with the outlaw motorcycle gang made the offence particularly serious. In addition, although the weapon was not loaded, the ammunition was nearby and the weapon could have been rendered lethal within a very short period of time.
6. In Ayshow v R [2011] NSWCCA 240 a loaded pistol was found in connection with drugs, money and ammunition. Justice Johnson (with whom Bathurst CJ and James J agreed) said that those matters supported the sentencing judge's conclusion that the offence was "well within the upper range of objective seriousness for offences" under that section (see at [70]).
7. I do not consider that any error has been established in relation to the Sentencing Judge's assessment of the offences being at the upper end of the mid-range of objective seriousness.
8. In relation to the statistics, this Court has said many times that the use of statistics is a blunt tool. The Crown's submission that, without knowing the underlying factors nor the subjective circumstances of the offenders in those cases mean that the statistics are of little utility, should be accepted. Further, as Johnson J pointed out in Thalari at [94] the sentencing statistics for s 7(1) offences may not provide any assistance when there are significant offences to be taken into account on a Form 1. Two of the offences in the present case taken into account carried a maximum penalty of 14 years imprisonment with a standard non-parole period of three years.
9. In relation to the Applicant's reliance on what were said to be comparative cases, in Huynh v R [2008] NSWCCA 216 Johnson J (with whom Allsop P and Price J agreed) said at [61]: [61] … The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George (2004) 149 A Crim R 38 at 47 [48]-[49]. See also in that regard Dang v R [2014] NSWCCA 47 at [55], Pham v R [2014] NSWCCA 1115 at [57] and Vandeventer v R [2013] NSWCCA 33 at [45].
10. Not the least reason for that statement of principle is that sentencing is an instinctive process and not a mechanical one. The process does not involve a comparison of similar cases where the sentence for the case at hand is increased or decreased for the differences that can be found. Certainly, the instinctive process is informed to some extent by comparative cases but the correctness of a particular sentence, when being reviewed in a higher court, is seldom determined by examining those comparative cases to see how the sentence in question fits with the sentence in those cases. At best, those cases provide a range of what has been thought appropriate in the past, but that range must be measured against the maximum penalty and, if applicable, any standard non-parole period prescribed: see also Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303] - [304], a passage approved by the plurality in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54].
11. The cases relied upon by the Applicant show a range of sentences for a range of different facts. I have read all of those cases, but it is not necessary to summarise nor analyse them. It is sufficient to note that there are some similarities with the present case in some of those cases and there are also differences. A reading of those cases only emphasises that the sentence imposed in the present case was either in that range of past cases or was sufficiently similar to that range that it cannot be said that the sentence was unreasonable or plainly unjust.

Conclusion

1. Ordinarily the Court would, where all grounds are rejected, grant leave to appeal but dismiss the appeal, so that finality is achieved. However, the co-accused Ashoor Khaie has been convicted but not yet sentenced for his involvement in the offence charged against the Applicant. Having regard to what was said in Lowe v R [2015] NSWCCA 46 and Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 305 I consider that the appropriate course is to refuse leave to appeal.
2. Accordingly, I propose the following order: 1. Leave to appeal refused.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2016