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Police v Tabbaa (No.2)

Police v Tabbaa (No.2)

Case [2022] NSWLC 22 22 December 2022

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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

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…

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 Police v Tabbaa (No.2)

Details

AGLC: Police v Tabbaa (No.2) [2022] NSWLC 22
Case: [2022] NSWLC 22
Decision Date: 22 December 2022

CaseChat Overview and Summary

In Police v Tabbaa, the respondent was found with two loaded pistols in a public place, leading to a series of legal proceedings. The case was before the court to decide on the appropriate sentence following the respondent's change of plea to guilty on lesser charges after the court initially refused to accept an inappropriate Form 1. The legal issues included the appropriate sentence to reflect the totality of the respondent's conduct, the principles of retribution, deterrence, and community protection, and the applicability of partial accumulation of sentences.

The court held that the seriousness of the respondent's conduct warranted a sentence that appropriately reflected the totality of his actions. It considered the principles of retribution, personal and general deterrence, and the protection of the community. The court also noted its supervisory role under section 33(2)(b) of the Crimes (Sentencing Procedure) Act and the objects and principles of firearms legislation. The court concluded that full-time custody was the only appropriate sentence given the nature of the offence and the respondent's criminal history.

The court imposed a sentence of imprisonment for three years with a non-parole period of two years, ensuring that the sentence was proportionate to the seriousness of the respondent's conduct and aligned with the objectives of the relevant legislation. The court's decision balanced the need for retribution and deterrence with the protection of the community, ultimately reflecting the gravity of the offence.

Orders

Orders of the court

Imprisonment 3 years NPP 2 years

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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Citations

AGLC Citation

Police v Tabbaa (No.2) [2022] NSWLC 22

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 32 of 32 shown

Police v Tabbaa
[2022] NSWLC 21 Para 8

…On 15 December 2022 I delivered those reasons: see Police v Tabbaa [2022] NSWLC 21 .…
Bresnahan v R
[2022] NSWCCA 288 Para 92

…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.…
White v R
[2022] NSWCCA 241 Para 12

…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]:…
Stanley v Director of Public Prosecutions (NSW) & Anor
[2022] HCATrans 202 Para 94

…(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…
Thurlow v R
[2022] NSWCCA 20 Para 92

…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.…
Quinn v Commonwealth Director of Public Prosecutions
[2021] NSWCA 294 Para 92

…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.…
Park v The Queen
[2021] HCA 37

…ASL 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 1…
Nguyen v The Queen
[2020] HCA 23 Para 87

…In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64], Gageler, Nettle and Gordon JJ. said:…
Greaves v R
[2020] NSWCCA 140 Para 25

…In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J. with Hoeben CJ at CL and Hamill J. agreeing, said:…
Karout v The Queen
[2020] HCASL 56 Para 99

…loka 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…
Karout v R
[2019] NSWCCA 253 Para 98

…In Karout v R [2019] NSWCCA 253 at [94], Fullerton J. said:…
R v Fangaloka
[2019] NSWCCA 173 Para 97

…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:…
R v Campbell; R v Smith
[2019] NSWCCA 1 Para 60

…In R v Campbell; R v Smith [2019] NSWCCA 1 at [9] – [10], Rothman J. said in relation to firearms:…
Imbornone v R
[2017] NSWCCA 144 Para 83

…iew, 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].…
R v Baden-Clay
[2016] HCA 35 Para 69

…here 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].…
Laspina v R
[2016] NSWCCA 181 Para 59

…In Laspina v R [2016] NSWCCA 181 at [6], Rothman J. said in relation to firearm offences:…
Nguyen v The Queen
[2016] HCA 17 Para 87

…In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64], Gageler, Nettle and Gordon JJ. said:…
R v Lachlan
[2015] NSWCCA 178 Para 58

…In R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277 Gleeson JA (Johnson & Garling JJ agreeing) said at [68]:…
R v Mahmud
[2010] NSWCCA 219 Para 71

…s 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…
C-P v R
[2009] NSWCCA 291

…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…
R v Robert Borkowski
[2009] NSWCCA 102 Para 27

…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. Th…
Luu v R
[2008] NSWCCA 285 Para 88

…In Luu v The Queen [2008] NSWCCA 285 at [32] the court (Giles JA, Latham J, Matthews AJ) said:…
Cahyadi v R
[2007] NSWCCA 1 Para 89

…, 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.…
Markarian v The Queen
[2005] HCA 25

…ncluding 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.”…
R v Howard
[2004] NSWCCA 348 Para 66

…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).”…
Hardman v Minehan
[2003] NSWCA 130 Para 70

…In Hardman v Minehan (2003) 57 NSWLR 390; [2003] NSWCA 130 Tobias JA said at [16]:…
R v Doan
[2003] NSWSC 345

…n 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…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 73

…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]:…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 27

…unt 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 d…
R v Thomson; R v Houlton
[2000] NSWCCA 383

…9] 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 [202…
Pearce v The Queen
[1998] HCA 57

…g 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 66…
Mill v The Queen
[1988] HCA 70

…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 Pr…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 24, 33, 3A, 3A(a), 47, 5, 53A 9 mentions (from Para 7)
Firearms Act 1996 (TAS)
39, 65, 7 4 mentions
Crimes Act 1900 (ACT)
93G 2 mentions
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 11)

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