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 25Category: Principal judgment Parties: M Mariam (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
Mr D Carroll for the Applicant
Ms S Dowling SC for the Crown Respondent
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
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PRICE J: I agree with Hamill J.
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BELLEW J: I agree with Hamill J.
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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.
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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…
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- AGLC
- Moustafa Mariam v Regina [2017] NSWCCA 292
- Case
- [2017] NSWCCA 292
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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