Police v Tabbaa (No.2)

Case •

[2022] NSWLC 22

•

22 December 2022

No judgment structure available for this case.

Local Court


New South Wales

Medium Neutral Citation: Police v Tabbaa (No.2) [2022] NSWLC 22
Hearing dates: 6 December 2022, 15 December 2022
Date of orders: 22 December 2022
Decision date: 22 December 2022
Jurisdiction:Criminal
Before: Stewart LCM
Decision:

Imprisonment 3 years NPP 2 years

Catchwords:

Two loaded pistols in a public place - traversal of guilty pleas following Court’s refusal to accept inappropriate Form 1 – withdrawal of previously substantive charges – guilty pleas to certain charges on earlier version of Form 1 – further Form 1 prepared – retribution and personal deterrence – general deterrence – protection of community – supervisory role accorded by s 33(2)(b) Crimes (Sentencing Procedure) Act - jurisdictional limit – partial accumulation – sentence to reflect seriousness of totality of conduct – objects and principles of Firearms legislation – only full-time custody appropriate

Legislation Cited:

Crimes Act1900 (NSW) s 93G

Crimes (Sentencing Procedure) Act1999 (NSW) ss 3A, 5, 21A, 24, 33, 47, 53A

Criminal Procedure Act 1986 (NSW)

Firearms Act1996 (NSW) ss 7, 39, 65

Cases Cited:

Attorney General’s Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Bresnahan v R [2022] NSWCCA 288

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

C-P v R [2009] NSWCCA 291; (2009) 213 A Crim R 26

Fangaloka v The Queen [2020] HCASL 12

Greaves v R [2020] NSWCCA 140

Hardman v Minehan (2003) 57 NSWLR 390; [2003] NSWCA 130

Imbornone v R [2017] NSWCCA 144

Karout v R [2019] NSWCCA 253

Karout v The Queen [2020] HCASL 56

Laspina v R [2016] NSWCCA 181

Luu v The Queen [2008] NSWCCA 285

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Park v The Queen (2021) 273 CLR 303; [2021] HCA 37

Police v Tabbaa [2022] NSWLC 21

Quinn v Director of Public Prosecutions (Cwlth) (2021) 106 NSWLR 154; [2021] NSWCA 294

R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1

R v Campbell; R v Smith [2019] NSWCCA 1

R v Fangaloka [2019] NSWCCA 173

R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Stanley v Director of Public Prosecutions (NSW) & Anor [2022] HCATrans 202

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Thurlow v The Queen [2022] NSWCCA 20

White v R [2022] NSWCCA 241

Category:Sentence
Parties: NSW Police Force (prosecution) and
Mohammad Tabbaa (defendant)
Representation: Sergeant G Lolis, Police Prosecutor
Solicitors: Mr V Vijay
File Number(s): 2022/52588
Publication restriction: NIL

remarks on sentence

The Charges and the Pleas

  1. The offender was arrested and charged by police on 22 February 2022 with the following offences (H89100788):

  • Possess Unauthorised Pistol contrary to section 7(1) Firearms Act 1996 (NSW) – 2 counts

  • Possess Loaded Firearm in a Public Place contrary to section 93G(1)(a)(i) Crimes Act 1900 (NSW) – 2 counts

  • Not Keep Firearm Safely contrary to section 39(1)(a) Firearms Act – 2 counts

  • Possess Ammunition without Permit contrary to section 65(3) Firearms Act, and

  • Goods in Custody contrary to section 527C(1)(a) Crimes Act.

  1. The matters were referred to the Director of Public Prosecutions for possible election to proceed on indictment, however no election was ultimately made.

  2. On 10 March 2022, not guilty pleas were entered to all counts. The matters were listed for defended hearing on 5 December 2022.

  3. On 11 October 2022, the matters were re-listed and guilty pleas entered to sequences 1, 4 and 5 ie., Possess Unauthorised Pistol, Possess Ammunition without Authority, and Possess Unauthorised Pistol. The matter was adjourned to 6 December 2022 for sentence with a Sentencing Assessment Report to be prepared.

  4. A Form 1 was prepared by agreement between the defence and prosecution, and signed by the offender. The proposed Form 1 listed 4 counts: 2 counts of Possess Loaded Firearm in a Public Place (sequences 3 and 7) and 2 counts of Not Keep Firearm Safely (sequences 2 and 6). It was intended that those offences would be taken into account when imposing sentence for Possess Unauthorised Pistol (sequence 1).

  5. The Goods in Custody count was withdrawn.

  6. On 6 December 2022, I exercised my supervisory role as to the appropriateness of the Form 1 conferred by section 33(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) and refused the Form 1. The matter was stood over to 15 December 2022 so that my full reasons could be published, and the parties could discuss amongst themselves the way forward.

  7. On 15 December 2022 I delivered those reasons: see Police v Tabbaa[2022] NSWLC 21.

  8. Familiarity with that earlier decision is not essential, as I have repeated relevant parts where necessary, in these remarks on sentence.

Sentencing Proceedings after initial Form 1 rejected – 15 December 2022

  1. Following my rejection of the first Form 1, it was the joint position of the police prosecutor and defence solicitor that a guilty plea be entered to the 2 counts of Possess Loaded Firearm in a Public Place with 2 counts of Not Keep Firearm Safely and the count of Possess Ammunition without Permit to be placed on a Form 1. It was proposed that the 2 counts of Possess Unauthorised Pistol be withdrawn.

Traversal of Initial Pleas

  1. Since guilty pleas had earlier been entered to the Possess Unauthorised Pistol offences, it was necessary given the new plea bargain arrangement between prosecution and defence that application be made pursuant to section 207 Criminal Procedure Act 1986 (NSW) for the traversal of those pleas. An oral application was made to that effect.

  2. In White v R [2022] NSWCCA 241 handed down on 18 November 2022, the Court held that a different test applies in terms of withdrawal of a guilty plea, depending on whether or not a conviction had been recorded. The Court said at [62]:

“[62] … Where a conviction has been entered and sentence passed, any attempt on appeal to disturb that outcome will necessarily impact on the finality of the verdict and sentence. On the other hand, where a conviction has not yet been entered even though the accused has pleaded guilty, nothing is final because it remains open for the Crown or the Court not to accept the guilty plea and, in the case of the Crown, to withdraw its acceptance at any time until the formal recording of a conviction and sentence.”

  1. I have taken into account the non-exhaustive list of factors affecting the interests of justice set out in White at [65], and in particular the circumstances in which the plea was given; the circumstances giving rise to the application; and the lack of prejudice to the prosecution who support the application.

  2. I am satisfied in the interests of justice that it is appropriate to allow the defendant to withdraw the earlier guilty pleas. As the Possess Ammunition count is now sought to proceed on a Form 1, I also allow that plea to be withdrawn.

Fresh Guilty Pleas – Possess Loaded Firearm in Public Place (2 counts)

  1. The offender pleaded guilty to the possession of a loaded 9mm semi-automatic pistol in a public place (seq.3) and possession of a loaded .22 calibre pistol in a public place (seq.7).

  2. Upon those pleas being entered, the 2 counts of Possess Unauthorised Pistol were withdrawn by consent (seq.1 and 5). I disregard for the purpose of sentencing the withdrawn counts and any fact or element solely referable to those counts (eg. unauthorised possession).

Fresh Form 1

  1. A further Form 1 was prepared seeking that I take into account the Not Keep Firearm Safely offences (seq.2 and 6) and Possess Ammunition without Permit matter (seq.4).

  2. I again complied with the formal requirements of section 33(2)(a) Crimes (Sentencing Procedure) Act by asking the offender whether he wanted me take into account the 3 offences listed on the Form 1 that he had signed, when dealing the sequence 3 – Possess Loaded Firearm (9mm pistol). He confirmed that wish and indicated his guilt to those offences as I read aloud each allegation to him.

  3. I am satisfied pursuant to section 33(2)(b) Crimes (Sentencing Procedure) Act that it is appropriate to deal with those offences as requested and will give further brief reasons shortly.

Maximum Penalty and Jurisdictional Limit

  1. The maximum penalty for Possess Loaded Firearm in a Public Place is 10 years imprisonment.

  2. The maximum penalty for Not Keep Firearm Safely is 2 years imprisonment, or a fine of 50 penalty units ($5,500), or both.

  3. The maximum penalty for Possess Ammunition without Permit is a fine of 50 penalty units.

  4. The jurisdictional limit in the Local Court is 2 years for an offence that carries a maximum penalty of more than 2 years.

  5. In the recent High Court decision of Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 at [19], the Court said:

“[19] Contrary to the appellant's submission, a jurisdictional limit is not a matter required to be taken into account “in determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit. 27

27 R v Doan (2000) 50 NSWLR 115 at 123 [35]; Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31]; R v Duncan (2007) 172 A Crim R 111 at 117 [20] per Nettle JA, Chernov and Vincent JJA agreeing.”

  1. In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J. with Hoeben CJ at CL and Hamill J. agreeing, said:

“[66] … the sentencing principles applicable to the process of sentencing remain the same in the local and district courts…

The magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit.”

  1. The principle in Greaves is clear. The Local Court in sentencing an offender is no different to the way in which the District Court should sentence an offender, subject to the jurisdictional limit if the sentence that should be imposed for an individual offence exceeds that limit.

Discount for Utilitarian Value of Pleas

  1. I allow a discount of 15% for the utilitarian value of each guilty plea in accordance with the principles enunciated in R v Thomson; R v Houlton (2000)49 NSWLR 383; [2000] NSWCCA 309 and R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]. The guilty pleas to the original plea bargain were entered prior to the hearing date and I allowed a 15% discount. The same discount is applied upon the new plea arrangement, albeit from a later negotiated outcome.

Agreed Facts

  1. About 6:35pm on Tuesday, 22 February 2022, police followed a black Holden Cruze driven by Abdulla Hariri that had turned onto Ormonde Parade, Hurstville where it was stopped by police.

  2. The offender Mohammad Tabbaa walked towards the vehicle with a mobile phone up to his ear and appeared to police as though he was waiting to be picked up by Hariri.

  3. One of the police officers recognised the offender from a previous interaction and approached him, as the other officer spoke with the driver of the car. Both police had body worn cameras. The defendant told police he was just getting picked up by his mate. He was asked why he had walked away when police arrived, to which he said: “No reason, I just don’t want to be involved.” He appeared to be nervous and kept grabbing at the strap of the satchel that he wore over his shoulder.

  4. Hariri initially said that he did not know Tabbaa, before changing his story and said that he had come to pick him up. The driver appeared to be nervous, shaking slightly and he kept staring straight ahead. Police conducted checks on both persons.

  5. Police informed both the offender and Hariri they and the car would be searched.

  6. The offender refused to comply with the search despite being told that he must comply or would be committing an offence. He was handcuffed to the front.

  7. In the front pocket of the black leather satchel bag that the offender was wearing, police removed his black wallet containing cards in his name before opening the larger main pocket of the bag and seeing the handle of a silver firearm. Police removed the loaded CZ75B 9mm semi-automatic pistol and magazine from the bag. The magazine contained several 9 mm Luger rounds. There was no ammunition in the chamber but all that was required to make the pistol ready to fire was to rack the slide and cock the pistol. Further ammunition was visible within the bag.

  8. The offender was arrested and taken back to the police station. A further search for the black bag was carried out which revealed about 50 rounds of ammunition being a mixture of 9 mm Luger and .22 calibre bullets.

  9. Also located in the bag was a ‘very small pistol’ with three barrels. The pistol did not have any engraving or serial numbers and had a live .22 round in one of the barrels with the second barrel empty and the third barrel containing a spent .22 calibre empty casing. The pistol was ready to be fired.

  10. Two mobile phones were located within the bag as well as a further mobile phone the offender had within his pocket.

Criminal Record

  1. The offender was dealt with in the Children’s Court for Damage Property by Fire and placed on probation in 2016. Within 2 years thereafter, he committed the offence of Drive Whilst Suspended and Larceny offences and was dealt with in the Local Court. Then followed entries for Offensive Language, Driving Disqualified (second or subsequent offence), Resist Police and Common Assault and Novice Range prescribed concentration of alcohol (PCA). The criminal record is not a matter of aggravation, though it affords him little leniency.

Conditional Liberty

  1. On 3 February 2022, the offender was placed on two Community Corrections Orders for Drive Suspended (2+ of subsequent offence), and non-conviction Conditional Release Orders for Novice Range PCA and Common Assault.

  2. He was therefore on conditional liberty at the time of the offending for which he is to be sentenced.

  3. The commission of further offences whilst on conditional liberty is a statutory aggravating factor pursuant to section 21A(2)(j) Crimes (Sentencing Procedure) Act.

Sentencing Assessment Report

  1. The offender told the report writer that he works part-time as a second year electrical apprentice. However, the offender’s previous employer said he had not worked there for 2 months. When challenged, the offender said he does cash in hand work for family and friends.

  2. The offender was said to have provided minimal insight into his offending, and that he committed the offences for financial gain.

  3. He told the report writer that “he knew the risk and his only regret was getting caught”. He accepts the consequences of his decisions.

  4. Corrective Services NSW (CSNSW) records indicate Mr Tabbaa has an Outlaw Motorcycle gang (OMCG) affiliation.

  5. The offender did not offer insight into the impact of his offending on the community. He has a child to an ex-partner.

  6. The offender feels frustrated by the impact of his offending given that a Firearm Prohibition Order has now been imposed.

  7. Mr Tabbaa is willing to undertake intervention and perform community service work. He was assessed as suitable for such work.

  8. Third party verification checks contradicted the information he provided in interviews.

Plea in Mitigation

  1. The offender did not give evidence.

  2. Mr Vijay conceded what he described as ‘the seriousness of the offending’ and that the section 5 threshold ie. section 5 Crimes (Sentencing Procedure) Act was crossed.

  3. In relation to the Sentencing Assessment Report, the offender instructed Mr Vijay that he denied committing the offences for financial gain, and denied affiliation with an outlaw motor-cycle gang.

  4. The offender told Mr Vijay that he doesn’t know Mr Harari very well and denied meeting up with him.

  5. Mr Vijay submitted that an Intensive Correction Order would be appropriate.

  6. The following documents were tendered on behalf of the offender:

  1. Letter from the offender dated 4 October 2022

  2. Letter from the offender’s sister, Amani Tabbaa dated 6 October 2022

  3. Letter from the offender’s former partner Hannah Isaacs dated 3 October 2022

  4. Letter from Tom Jones, psychologist dated 26 November 2022

  5. Notes from the offender’s doctor and discharge notes from St George Hospital

  6. Letter from Andrew Sande, employer

  1. I note the psychologist provided treatment focused on helping Mr Tabbaa to “resolve feeling about his former de-facto partner, to cope with family of origin stresses, to contain his anxiety about his forthcoming court hearing for sentencing, control over anger, regrets over his past behaviour, and feeling of being overwhelmed.” Reference is made to the psychologist being informed that the defendant had presented at St George Hospital with suicidal ideation in October 2022 triggered by relationship stresses. His antidepressant medication was increased.

  2. The letters from his sister and employer are supportive.

General Remarks

  1. In R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277 Gleeson JA (Johnson & Garling JJ agreeing) said at [68]:

“[68] Subsequent cases have emphasised that the possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. Accordingly sentences imposed for such offences must “operate as real disincentives to those otherwise attracted to the illegal possession of firearms”: R v Mahmud [2010] NSWCCA 219 at [71] (R S Hulme J; Giles JA and Latham J agreeing). See also R v Howard [2004] NSWCCA 348 at [66] (Spigelman CJ; Grove J and Smart AJ agreeing); Dionys v The Queen at [47]-[48] (Hoeben J; McClellan CJ at CL and Adams J agreeing).”

  1. In Laspina v R [2016] NSWCCA 181 at [6], Rothman J. said in relation to firearm offences:

“[6] Nevertheless, for far too long courts have dealt with firearm offences in a way which has had regard to whether the firearms were intended to be used in a criminal offence of another kind. In so doing, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession, but particularly when those firearms are possessed for the purpose of sale to other persons who, for obvious reasons, will not be in possession of them legally.”

  1. In R v Campbell; R v Smith [2019] NSWCCA 1 at [9] – [10], Rothman J. said in relation to firearms:

“[9] The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons generally, by which I include knives, has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society.

[10] It must be accepted that the kernel of the criminal conduct involved in possession of firearm offences is the possession of the firearm. Where, as here, the firearm is real and not a replica firearm; is in working order; is a modern firearm and not an antique or collectors’ piece; is possessed at the same time as the offender possesses ammunition; and is possessed in the context of the involvement of the offender in a criminal organisation and/or other criminal conduct, it is difficult to imagine any more serious circumstances.”

  1. In note in relation to the sentencing of Mr Tabbaa, both pistols were real, in working order, apparently modern, and possessed at the same time as the offender possessed ammunition. Both were loaded. He was in a public place.

  2. The offender exercised his right to silence and has not proffered any reason as to why he was in possession of 2 loaded pistols in a public place, or why he had ample ammunition for the pistols with him at the time of his arrest.

  1. The pistols were easily concealed and easily retrievable, kept by the offender in a satchel that he carried by strap over his shoulder. Police were able to see the 9mm pistol upon opening the main pocket of the satchel.

  2. The .22 calibre pistol (revolver) was actually loaded with a live round in one chamber and a spent round in another. The 9mm semi-automatic pistol was loaded as it had an attached magazine containing live rounds: see Section 93G(2)(a) Crimes Act re Possess Loaded Firearm in a public place.

  3. The legislative basis of the substantive offences is from the Crimes Act. There does not appear to be an offence of possess loaded firearm/pistol per se. It is the element of the possession of a loaded firearm in ‘a public place’ that identifies the seriousness of such an offence.

  4. The seriousness of the substantive offences becomes readily identifiable, if not already abundantly obvious, from the principles and objects of the Firearms Act set out in Section 3, which are important considerations in this sentencing exercise. They include the overriding need to ensure public safety, strict controls on possession and use of firearms, and the safe and responsible storage and use of firearms.

Section 3 Principles and Objects of the Act

(1) The underlying principles of this Act are--

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety--

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows--

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

  1. The overriding need to ensure public safety is potentially compromised by persons such as Mr Tabbaa who possess not one, but two loaded pistols in a public place.

  2. I do not find that the reference in the (sentencing assessment report) SAR of CSNSW notes indicating the offender is affiliated with an outlaw motor cycle gang as relevant to objective seriousness of any of the offences. There is no evidence of connection between the noted affiliation and the offender’s possession of the loaded pistols.

  3. The factors relating generally to the seriousness of this type of offending have already been identified above. They were real firearms, in working order, possessed at the same time as the offender possessed ammunition. There is a clearly available inference that they were not possessed for a ‘non-criminal purpose’: see The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]- [47].

  4. In Hardman v Minehan (2003) 57 NSWLR 390; [2003] NSWCA 130 Tobias JA said at [16]:

“[16] …..I am of the view that s 93G(1)(a)(i) requires that the person charged with possession of a loaded firearm is in a public place in the sense that his presence therein in those circumstances is, of its very nature, likely to endanger persons within that place. In other words, the provision assumes that others will be endangered by the mere fact that the person charged possesses a loaded firearm in the public place.”

  1. The objective seriousness of each of the possess loaded firearm matters is well into the mid-range.

  2. There can be no doubt that the threshold referred to in section 5 Crimes (Sentencing Procedure) Act has been crossed.

Matters on Form 1

Relevant Case Law

  1. In Attorney General’s Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, Spigelman CJ. said at [42] and [50]:

“[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. (Emphasis added.)

…

[50] As long as the most serious offences or, in the case of similar offences, an appropriate range of offences, are included on the indictment, there is no objection to the inclusion of some offences on a Form 1. It would normally be inappropriate to include more serious offences on a Form 1, where the maximum sentence available for the offence on an indictment would be insufficient to allow for the total criminality revealed by the whole course of the offender’s conduct to be appropriately reflected in the sentence.”

  1. At [57] in the Attorney General’s Application regarding Form 1 offences, Spigelman CJ. said:

“[57] Further, there is a balance to be struck between the number and gravity of charges on an indictment and the number and gravity of charges on a Form 1. A sentencing judge will find it difficult to undertake the statutory task if the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of criminal conduct revealed by the indictment and the Form 1.”

  1. As will become abundantly clear, the matters on a Form 1 are incapable of increasing the sentence for the Possess Loaded Firearm charge to which they attach. The appropriate sentence already far exceeds the jurisdictional limit.

  2. However, the fact of each pistol not being kept safely is obvious due to the circumstances of how they were being carried – loaded, in a bag worn off the offender’s shoulder, concealed but easily accessed. Those facts are part of the ‘total criminality of the whole course of conduct’.

  3. Although the use of a Form 1 in these circumstances is not ideal, the factual overlap allows the Court to consider the totality of the offender’s conduct. For that reason, I consider the use of the Form 1 to be appropriate.

Sections 3A and 5 Crimes (Sentencing Procedure) Act.

  1. Section 3A sets out the purposes of punishment, namely:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e)to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

  1. All of the purposes of sentencing have relevance to this matter. However, particular emphasis needs to be placed on the protection of the community, the need for general deterrence, denunciation and adequate punishment of the offender.

  2. Section 5 of the Crimes (Sentencing Procedure) Act provides that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate.

  3. I am satisfied that the offences of possess loaded firearm in a public place cross the section 5 threshold and that only a period of imprisonment is appropriate.

Prospects of Rehabilitation and Likelihood of Re-offending

  1. I am satisfied that the offender told the SAR author that “he knew the risk and his only regret was getting caught.” I am also satisfied that he said that he committed the offence for financial gain.

  2. The offender’s bare denials to his lawyers of some comments attributed to him in the SAR are untested self-serving assertions that carry no weight. Those comments were made at a time after he had prepared his letter to the Court. He did not give evidence. Third party verification checks contradicted information he gave at interview, eg. employment. Despite the agreed facts, he now appears to want to distance himself from Mr Hirari. I adopt the principles from Imbornone v R [2017] NSWCCA 144 at [57].

  3. Given the uncontradicted reference to the defendant having an affiliation with an OMCG, his attitude to offending and contradictory information provided to the report writer, I am not of the view that he has good prospects of rehabilitation. Similarly, I am not persuaded that he is unlikely to re-offend.

  4. I am not persuaded that the offender is remorseful. In his letter dated 4 October 2022 to the Court, he expressed ‘sincere remorse’. However, he subsequently told the author of the SAR that “he knew the risk and his only regret was getting caught”. He reported feeling frustration by the impact of his offending on himself in that a Firearm Prohibition Order has been imposed. In the absence of sworn evidence by the offender, I am unable to find that he is remorseful.

Aggregate sentence

  1. I will deal with the offender by way of an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act.

Seq.

Offence

Indicative Sentence

3

Possess Loaded Firearm in a Public Place contrary to section 93G(1)(a)(i) Crimes Act

(Form 1 taken into account)

2 years (starting point 4 years)

7

Possess Loaded Firearm in a Public Place

2 years (starting point 3 years 6 months)

Partial Accumulation

  1. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64], Gageler, Nettle and Gordon JJ. said:

“Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence 81 while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences82.  That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case83.  Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong84.  Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.

[81] Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(a); R v McNaughton (2006) 66 NSWLR 566 at 572 [15] per Spigelman CJ.

[82] Mill (1988) 166 CLR 59 at 62-63; Pearce (1998) 194 CLR 610 at 623-624 [43]-[45] per McHugh, Hayne and Callinan JJ.

[83] Mill (1988) 166 CLR 59 at 62-63; Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 680 per Ormiston JA (Winneke P agreeing at 665, Hedigan AJA agreeing at 690).

[84] Hammoud (2000) 118 A Crim R 66 at 67 [7] per Simpson J.”

  1. In Luu v The Queen [2008] NSWCCA 285 at [32] the court (Giles JA, Latham J, Matthews AJ) said:

“Possession of the two different kinds of drugs giving rise to the "deemed supply" offences is not properly regarded as one episode of criminality.”

  1. Similarly, the possession of two different loaded pistols in a public place is not properly to be regarded as one episode of criminality. See also Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] per Howie J.

  2. Further, section 93G(1)(a)(i) of the Crimes Act refers to the singular possession of a loaded firearm in a public place. Mr Tabbaa had two loaded firearms and is appropriately charged with two separate offences.

  3. To reflect those principles, the appropriate sentence is 3 years imprisonment.

Consideration of Intensive Correction Order

  1. The principles enunciated in Quinn v Director of Public Prosecutions (Cwlth) (2021) 106 NSWLR 154; [2021] NSWCA 294 at [186] and [187] remain good law, having been followed in Thurlow v The Queen [2022] NSWCCA 20 at [32] – [34], and as recently as 15 December 2022 in Bresnahan v The Queen [2022] NSWCCA 288.

  2. Specifically, the seriousness of the offending brings consideration of making an intensive correction order (ICO) to an end.

  3. However, as adverted to in Bresnahan (supra) Beech-Jones CJ at CL at [2] and at [40] per Walton J., the recent High Court appeal of Stanley v Director of Public Prosecutions (NSW) & Anor [2022] HCATrans 202 may cast some doubt on Quinn, Thurlow and Bresnahan once the reasons for the successful appeal are published. For that reason, and despite any cogent legal argument being raised in support of the bare assertion that an ICO was appropriate, I will consider section 66(1) and (2) Crimes (Sentencing Procedure) Act and further consider section 66(3).

  4. In relation to section 66(2), I am satisfied that a sentence of full-time custody is more likely to deal with the offender’s risk of re-offending. He shows no insight into the seriousness of the offending; offered no insight into the impact of his offending on the community, and is frustrated by the impact of his offending on himself in that a Firearm Prohibition Order has now been imposed. I have not made positive findings as to his prospects of reoffending and am not confident that he is unlikely to re-offend.

  5. In relation to section 66(1), the very nature of the offending involves genuine considerations of potential risk to the community. I am not at all persuaded that the community would be protected by this offender being placed on an ICO.

  6. In relation to section 66(3), I have already addressed section 3A Crimes (Sentencing Procedure) Act. In relation to case law, in R v Fangaloka [2019] NSWCCA 173 at [64] and [67], Basten JA said:

“[64] The first purpose of sentencing, identified in s 3A(a) of the Sentencing Act is “to ensure the offender is adequately punished for the offence.” It is a fundamental principle of long-standing and requires that the sentence be reasonably proportional to the offending. One would expect a clear statement or necessary implication of legislative intention for the 2018 amendments to alter that fundamental principle. Equally, there is no doubt that a sentencing court must have regard to the personal circumstances of the offender; but they should not divert the court from imposing adequate punishment, having regard to the objective gravity of the offence.

…

[67] … No doubt there will be cases in which a person otherwise likely to serve fulltime custody will obtain an ICO, because general deterrence is largely disregarded in favour of a possible reduction in the risk of reoffending by the particular offender, if not sent to gaol. On the other hand, there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of punishment.”

(Footnotes omitted)

  1. In Karout v R [2019] NSWCCA 253 at [94], Fullerton J. said:

“[94] The fact that his Honour made positive findings as to the applicant’s good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant’s offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play.”

  1. Fangaloka and Karout were subject to applications for Special Leave to the High Court – see Fangaloka v The Queen [2020] HCASL 12 and Karout v The Queen [2020] HCASL 56. Both applications were separately dealt with “on the papers”. Gordon and Edelman JJ concluded in Fangaloka that “…The Application does not give rise to any reason to doubt the correctness of the decision of the Court of Criminal Appeal…”. In Karout, Gordon and Edelman JJ concluded that “…The proposed grounds…have insufficient prospects of success to warrant a grant of special leave”.

  2. I am satisfied that the offending is too serious for the imposition of an ICO. An ICO would not give proper effect to the principles and purposes of sentencing, nor would it reflect the overall gravity of the offending. The mere assertion or suggestion, without any cogent argument or reference to case law, that an ICO would be appropriate, is aspirational. The sentence will be by way of full-time custody.

  3. It would be an absurd outcome if Mr Tabbaa’s offending by the possession of two loaded pistols in a public place was dealt with by way of an ICO, where there are genuine concerns for public safety, and where sentencing purposes must emphasise the protection of the community and general deterrence.

Special Circumstances

  1. I take into account the offender’s age, it being his first time in custody, the more onerous conditions of custody due to Covid-19 restrictions, and the need to promote the offender’s rehabilitation. There will be an adjustment to the statutory ration of non-parole to parole period to reflect a strong finding of special circumstances.

Pre-Sentence Custody

  1. The offender was in custody from 22 February 2022 until 31 May 2022, and on 30 October 2022.

ORDERS

  1. The offender Mohammad Tabbaa is convicted of both counts of possess loaded firearm in a public place - sequences 3 and 7.

  2. The offender is sentenced to an aggregate sentence of 3 years from 15 September 2022 to 14 September 2025 with a non-parole period of 2 years.

  3. The non-parole period is to date from 15 September 2022 to 14 September 2024.

  4. The balance of term on parole will commence on 15 September 2024 and will expire on 14 September 2025.

  5. The non-parole period is 66.6% of the total sentence which indicates a finding of special circumstances, the reasons for which have been set out earlier in these remarks.

  6. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

  7. The firearms are forfeited to the Crown.

  8. I have taken into account the matters listed on the Form 1 when determining the appropriate sentence.

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Decision last updated: 13 June 2023

Cases Citing This Decision

0

Cases Cited

38

Statutory Material Cited

4

Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
R v Barrientos [1999] NSWCCA 1
Bresnahan v R [2022] NSWCCA 288