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El Masri v R

El Masri v R

Case [2014] NSWCCA 13 24 February 2014

Appeal

Sentencing

Possession of Unauthorised Firearm

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: EL MASRI, Osman v R [2014] NSWCCA 13
Hearing dates: 4 February 2014
Decision date: 24 February 2014
Before: Basten JA at [1]
Hidden J at [2]
RS Hulme AJ at [3]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - sentencing - appeal against sentence - possession of unauthorised firearm - no question of principle - appeal dismissed.
Legislation Cited: Criminal Appeal Act 1912
Firearms Act 1996
Cases Cited: Dulihanty v R [2013] NSWCCA 275
Duncombe v R [2013] NSWCCA 271
R v AA [2006] NSWCCA 55
R v Krstic [2005] NSWCCA 391
R v Najem [2008] NSWCCA 32
Category: Principal judgment
Parties: Osman El-Masri
Regina
Representation: Counsel:
T Smith (Crown)
S Odgers (Appellant)
Solicitors:
S Kavanagh (Crown)
Blair Criminal Lawyers (Appellant)

File Number(s): 2013/78864
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Citation:

[2013] NSWDC 177

Date of Decision:

2013-09-19 00:00:00

Before:

Mahoney SC DCJ

File Number(s):

DC 2013/78864

Judgment

BASTEN JA: In this matter the applicant should have leave to appeal but the appeal should be dismissed, for the reasons given by RS Hulme AJ.

HIDDEN J: I agree with RS Hulme AJ.

RS HULME AJ: On 19 September 2013 the abovenamed applicant for leave to appeal was sentenced by Judge Mahony to imprisonment for 3 years including a non-parole period of 1 year and 8 months for an offence of possessing an unauthorised prohibited firearm, viz. a .38 calibre revolver, part of the serial number of which was missing.

The weapon was found in the lounge room of the applicant's home during a search by police on 14 March 2013 from which date the applicant has been in custody. The pistol was loaded, in working order and hidden, though readily accessible to persons, including children, in the house. The cartridges within the weapon were the subject of a charge on a Form 1 of possessing ammunition without a licence, which charge was taken into account.

The offence charged arose pursuant to s 7(1) of the Firearms Act 1996 and carried a maximum penalty of 14 years imprisonment. It was also the subject of a standard non-parole period of 3 years. The applicant had pleaded guilty at an early stage and the sentence imposed reflected a 25% discount for the plea.

His Honour accepted that the applicant had been a member of the Rebels Motorcycle Club for a number of years prior to 2012, that since then he had been the subject of threats from persons associated with the Club, his house had been the subject of a drive-by shooting in early 2012, his disabled brother had been attacked by Club members and the applicant had acquired the weapon for the protection of himself and family. His Honour also found that the applicant had been aware of the illegality of possession of the weapon but considered that the threats to him and his family outweighed the illegality.

The applicant had not reported the drive-by shooting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading El Masri v R

Details

AGLC: El Masri v R [2014] NSWCCA 13
Case: [2014] NSWCCA 13
Decision Date: 24 February 2014

CaseChat Overview and Summary

In the matter of El Masri v R, the High Court was called upon to consider an appeal against a sentence imposed following a conviction for possession of an unauthorised firearm. The appellant, Mr El Masri, sought to challenge the severity of the sentence handed down by the lower court. The case presented before the High Court centred on the principle of sentencing and whether the lower court had erred in its assessment of the appropriate punishment for the offence committed. The court was required to determine if there were any errors in the application of legal principles to the facts of the case that would warrant an intervention.

The primary legal issue before the High Court was whether the lower court had erred in its assessment of the appropriate punishment for the offence of possessing an unauthorised firearm. The court had to examine the sentencing principles applied by the lower court, including the relevance of any mitigating or aggravating factors considered. The appellant argued that the sentence imposed was excessive and did not adequately reflect the circumstances of the case. The prosecution, on the other hand, maintained that the sentence was within the appropriate range and that the lower court had correctly applied the relevant legal principles.

After carefully reviewing the evidence and the arguments presented, the High Court found that the lower court had correctly applied the relevant sentencing principles. The court held that there was no error in the application of the law to the facts of the case, and thus, no question of principle was presented that would warrant the court's intervention. Consequently, the appeal against sentence was dismissed, and the original sentence imposed by the lower court was upheld. The court found that the sentence was commensurate with the gravity of the offence and the circumstances in which it was committed.

Orders