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Moustafa Mariam v Regina

Moustafa Mariam v Regina

Case [2017] NSWCCA 292 1 December 2017

Criminal Liability

Sentencing

Pervert the Course of Justice

Mens Rea & Intention

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Moustafa Mariam v Regina [2017] NSWCCA 292
Hearing dates: 21 August 2017
Date of orders: 01 December 2017
Decision date: 01 December 2017
Before: Price J at [1]
Bellew J at [2]
Hamill J at [3]
Decision:
(1) Application for leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence – possession of firearm – matters relevant to assessment of objective criminality – whether nature of the weapon relevant – loaded automatic pistol – relevance of finding that applicant in “mere possession” of pistol – where sentencing Judge rejects prosecution submission that gun possessed in the course of drug dealing – pervert the course of justice – where applicant attempts to have inmate take responsibility for the weapon – whether Judge misused the applicant’s criminal history – whether Judge erred in failing to find special circumstances – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kaminic v R [2014] NSWCCA 116
Markarian v R (2006) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
R v Cramp [2004] NSWCCA 264
R v Farrell [2015] NSWCCA 68
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Moustafa Mariam [2012] NSWSC 1496
R v Wickham [2004] NSWCCA 193
Ruge and Cormack v R [2015] NSWCCA 153
Sabongi v R [2015] NSWCCA 25
Category: Principal judgment
Parties: M Mariam (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr D Carroll for the Applicant
Ms S Dowling SC for the Crown Respondent
Solicitors:
Birchgrove Legal (Applicant)
Solicitor for Public Prosecutions (Respondent Crown)

File Number(s): 2014/21679
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

20 May 2016

Before:

Judge Hoy SC

File Number(s):

2014/00021679

Judgment

PRICE J: I agree with Hamill J.
BELLEW J: I agree with Hamill J.
HAMILL J: Moustafa Mariam seeks leave to appeal against a sentence imposed by his Honour Judge Hoy SC in the District Court sitting at Parramatta on 20 May 2016. The applicant was sentenced in relation to 2 offences of which he was found guilty by a jury after trial. Those offences were: –

Possession of a pistol, namely a .45 automatic calibre self-loading pistol.

Doing an act, namely inducing another person to falsely claim responsibility for the firearm referred to in count 1, with intent to pervert the course of justice.

The maximum penalty for the firearms offence was imprisonment for 14 years and there was at the time an applicable standard non-parole period of three years. The maximum penalty for the intent to pervert the course of justice offence was imprisonment for 14…

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 Moustafa Mariam v Regina

Details

AGLC: Moustafa Mariam v Regina [2017] NSWCCA 292
Case: [2017] NSWCCA 292
Decision Date: 01 December 2017

CaseChat Overview and Summary

In the case of Moustafa Mariam v Regina, the applicant appealed against the sentence imposed by the sentencing Judge in the Supreme Court of Queensland. The applicant was found guilty of possessing a firearm and perverting the course of justice. The weapon in question was a loaded automatic pistol. The primary legal issues before the court were whether the nature of the weapon and the applicant's criminal history were properly considered in the sentencing process, and if the sentence was manifestly excessive.

The court found that the sentencing Judge correctly identified the relevant matters for assessing the objective criminality of the offence. The nature of the weapon, a loaded automatic pistol, was a significant factor in determining the severity of the sentence. Although the applicant was found to be in mere possession of the weapon, the court recognised that this was a serious offence. The Judge had appropriately rejected the prosecution's submission that the gun was possessed in the course of drug dealing. The court also held that the Judge did not misuse the applicant's criminal history in the sentencing process, nor did the Judge err in failing to find special circumstances. Finally, the court found that the sentence was not manifestly excessive, as it took into account all relevant factors and appropriately balanced the competing considerations.

The court dismissed the applicant's appeal against sentence. The original sentence imposed by the sentencing Judge was upheld.

Orders