Mohamed v The Queen

[2012] NSWCCA 173

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohamed v R [2012] NSWCCA 173

Hearing dates:

18 July 2012

Decision date:

16 August 2012

Before:

Allsop P at [1]
Latham J at [1]
Davies J at [1]

Decision:

1. Extend time for the filing of leave to appeal up to and including 26 March 2012.

2. Application for leave to appeal refused.

Catchwords:

CRIMINAL LAW - sentencing - application for leave to appeal on ground of manifest excess - drug and weapon offences - no operative error - sentence within appropriate range - no question of principle arising

Legislation Cited:

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Tran v R [2010] NSWCCA 183

Category:

Principal judgment

Parties:

Ahmed Mohamed (Applicant)
Regina (Respondent)

Representation:

J Cohen (Applicant)
T Smith (Respondent)
Elliot Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2009/49124 2009/250074

 Decision under appeal 

Citation:

[2010] NSWDC 322

Date of Decision:

2010-11-26 00:00:00

Before:

Berman SC DCJ

File Number(s):

2009/49124
2009/250074

Judgment

1. THE COURT: On 18 July 2012, the Court made orders extending time for the filing of an application for leave to appeal up to and including 26 March 2012 and refusing leave to appeal. These are the reasons for those orders.

1. The reasons are to be read against the background of the submissions of the parties, in particular their written submissions.

1. The background was summarised accurately in the Crown's submissions, as follows:

"The applicant pleaded guilty to two counts of supply prohibited drug (cannabis and 1-benzylpiperazine), possess prohibited weapon (taser), conduct drug premises, ongoing supply of prohibited drug (methylamphetamine) and possession of shortened firearm without authority. There were a number of other matters to be taken into account on four different Form ones.

All the charges other than the ongoing supply of prohibited drug and possession of the shortened firearm arose from a search by police of the applicant's premises on 3 June 2009. The other two charges were committed whilst the offender was on bail for the first set of drug and weapon offences. They related to the offender's involvement in supplying an undercover operative on four occasions with methylamphetamine and police locating a loaded sawn off shotgun when they searched the applicant's premises following his arrest on 12 November 2009."

1. The individual sentences imposed were as follows:

Offence	Maximum Penalty	Sentence
Conduct drug premises	12 months imprisonment and/or fine $5,500	Fixed term of six months (11.11.09 - 10.05.10)
Supply prohibited drug (13 grams 1-benzylipiperazine - 40 tablets)	15 years imprisonment and/or fine $220,000	Fixed term of 18 months (11.2.10 - 10.08.11)
Supply prohibited drug (448.2 grams cannabis) Form 1: Deal with property proceeds of crime ($4320 cash) Possess prohibited drug (1 gram located in pocket) Possess prohibited drug (5.4 grams located in bedroom)	10 years imprisonment and/or fine $220,000	Fixed term of 18 months (11.2.10 - 10.08.11)
Possession of prohibited weapon (operating taser stun gun) Form 1: Possession of prohibited weapon (non-working taser)	14 years imprisonment	Non-parole period 18 months (11.2.11 - 10.8.12) Balance of 12 months (11.8.12 - 10.08.13) (A standard non-parole period of three years applied)
Possession of shortened firearm Form 1: Possession of unregistered firearm (same shortened firearm) Possession of ammunition	10 years imprisonment	Fixed term of two years (11.11.11 - 10.11.13)
Ongoing supply prohibited drug (4 supplies methylamphetamine) Form 1: Supply 6.8 grams of cannabis Supply 3.5 grams of cannabis Deal with property suspected to be proceeds of crime ($1800) Deal with property suspected to be proceeds of crime ($300)	20 years imprisonment and/or fine $385,000	Non-parole period two years (11.11.12 - 10.11.14) Balance of two years (11.11.14 - 10.11.16)

1. The sentencing judge incorrectly identified the maximum penalty for the cannabis offence (the third offence in the above list) as 15 years imprisonment. That was wrong. It was 10 years. The sentences for it and the second offence were entirely concurrent and no coherent argument that such error was operative was put forward.

1. The overall effective sentence was seven years with a non-parole period of five years.

1. Our view is that there was no prospect of success of the arguments propounded in furtherance of the essential ground of manifest excess.

1. It was first said that the sentence offended the principles of totality and proportionality. We reject this. The structure of the sentence and the remarks on sentence revealed careful regard that was paid to the overlap of the sentences by the sentencing judge. His Honour's remarks on sentence reveal an attendance to the need for proportionality. For instance, the penalty for the first offence of conducting drug premises was effectively reduced from six months to three months by the degree of concurrence fixed. We see no ground for considering that any of the sentences was disproportionate or that the accumulation and consequent totality was in any way unjust.

1. It was next said that the sentence imposed did not reflect sufficient parity with the co-offender. The co-offender was the applicant's girlfriend who was earlier sentenced by the same judge. The only real difference in the sentence was that the applicant received an additional six months in relation to the on-going supply offence. There was also a difference in the roles the two played. The sentencing judge expressly directed himself to the question of equivalence of the two groups of sentences. There is no basis whatsoever to argue that there is any ground for a legitimate sense of grievance by reference to the co-offender's sentence.

1. It was next asserted that the judge erred by failing to characterise a taser weapon as not being in the lower range of offences under the Weapons Prohibition Act 1998 (NSW), s 7. The characterisation of the degree of objective seriousness of an offence is an evaluation of the sentencing judge. In Tran v R [2010] NSWCCA 183, Hislop J referred to a taser (in the circumstances of that case) as significantly below the mid-range. The sentencing judge entirely correctly did not view the factual evaluation in Tran in those circumstances as binding on him. The circumstances here, in particular having such a weapon in connection with a drug supply business, no doubt affected the evaluation. In any event the sentence for the offence was one that was significantly below the standard non-parole period. There are no reasonable prospects of success of demonstrating error in this regard.

1. It was also submitted that the sentence for the loaded shotgun was excessive. We reject that as lacking merit. Given the concurrency with the taser offence and the ongoing supply, very little of this sentence was not concurrent. Again, in the context of the conduct of a drug supply business the offence was a serious one and the sentence plainly just and proportionate.

1. The sentence overall was clearly within the appropriate range.

1. There are no reasonable prospects of success on any of the grounds put forward.

Decision last updated: 16 August 2012