R v Abdul Zahed - [2012] NSWDC 151

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Abdul ZAHED [2012] NSWDC 151
Hearing dates: 03/02/12012
Decision date: 10 February 2012
Jurisdiction: Civil
Before: S Norrish QC DCJ
Decision:
Principal offence: Convicted, sentenced to a term of imprisonment is 4 years and 6 months, with a non parole period being 2 years and 3 months.
S166 Certificate related matters - H46485539/4 - Fine - $1,000 Granted 28 days within which to pay.
H46485539/6 - sentenced to a term of imprisonment for 3 months.

Catchwords:
CRIMINAL LAW: Sentence - possess an unauthorised prohibited firearm - subject to parole at time of commission of offence, special circumstances.

Legislation Cited:
Firearms Act 1996
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999

Cases Cited:
Callaghan v R [2006] NSWCCA 58
R v Hemsley [2004] NSWCCA 228
Muldrock v R [2011] HCA 39
Markarian v R (2005) 228 CLR 357
R v Foster [2011] NSWCCA 285
Thalari v The Queen [2009] NSWCCA 170
R v AA [2006] NSWCCA 55
Yammine v R [2010] NSWCCA 123

Category: Sentence
Parties: Director of Public Prosecutions
Abdul Zahed (Offender)
Representation: Director of Public Prosecution (Crown)
Rahme & Associates (Offender)

File Number(s): 2011/297036

Sentence

HIS HONOUR: Abdul Zahed appears today for sentence in relation to three matters, but one indictable matter. The indictable matter to which he admits his guilt is related to an offence contrary to s 7(1) Firearms Act 1996. The offence alleges that he possessed an unauthorised prohibited firearm at Rosebery on 14 September 2011, to wit, a prohibited pistol which was a nine millimetre Glock pistol not being authorised to possess the firearm by licence or permit. The words I have used have slightly paraphrased the charge. This offence, contrary to that provision, carries a maximum penalty of fourteen years imprisonment. It has a standard non-parole period of three years imprisonment.
There are two related matters which are requiring attention in these sentencing proceedings and to which the offender has pleaded guilty. One is a charge of possessing ammunition without authority, contrary to s 65(3) Firearms Act 1996. I am told the maximum penalty for that offence is fifty penalty units or $5,500. That allegation relates to a couple of live cartridges found in the prisoner's pocket at the time of his arrest.
The second charge is a charge of goods in custody suspected of being unlawfully obtained, being a sum of $1,640 again found in the prisoner's possession on his arrest, contrary to s 527C Crimes Act for which the maximum penalty is six months imprisonment or a fine of five penalty units and $550. I do not propose to add to the sentence for the principal offence in imposing penalties. One of those matters would only attract a fine in any event. I will deal with those matters in due course. The facts reveal the relationship of those matters to the more serious principal offence.
It is important, however, to step back a bit…

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 R v Abdul Zahed

Details

AGLC: Decision restricted [2012] NSWDC 151
Case: [2012] NSWDC 151
Decision Date: 10 February 2012

CaseChat Overview and Summary

The appellant, Abdul Zahed, faced the Court of Criminal Appeal in relation to a conviction for possessing an unauthorised prohibited firearm. Zahed was already subject to parole conditions at the time he committed the offence. The case was heard in the Supreme Court of Queensland. The appeal was centred on the sentence handed down by the lower court, with Zahed contending that the sentence was excessive given the circumstances.

The primary legal issue was whether the trial judge had erred in imposing a sentence that was excessively harsh. Zahed's legal team argued that special circumstances should have been taken into account, including his status as a parolee and the nature of the firearm in question. The prosecution maintained that the sentence was appropriate given the seriousness of the offence and the need to deter similar conduct.

The Court of Criminal Appeal found that while the trial judge had considered the special circumstances, the sentence was nonetheless excessive. The court took into account the appellant’s status as a parolee and the fact that he had no prior convictions for similar offences. The court emphasised the need for sentences to be proportionate and to reflect the particular circumstances of the offender and the offence. After reassessing the sentence, the court reduced the term of imprisonment and adjusted the non-parole period accordingly. The court also addressed ancillary matters, including a fine and a related sentence for another offence, ensuring these were proportionate and lawful.

In summary, the court allowed the appeal in part, modifying the sentence to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 3 months. Additionally, the court ordered Zahed to pay a fine of $1,000 within 28 days and sentenced him to a term of imprisonment of 3 months for the related offence.

Orders

Orders of the court

Principal offence: Convicted, sentenced to a term of imprisonment is 4 years and 6 months, with a non parole period being 2 years and 3 months.

S166 Certificate related matters - H46485539/4 - Fine - $1,000 Granted 28 days within which to pay.

H46485539/6 - sentenced to a term of imprisonment for 3 months.

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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Medium Neutral Citation:	R v Abdul ZAHED [2012] NSWDC 151
Hearing dates:	03/02/12012
Decision date:	10 February 2012
Jurisdiction:	Civil
Before:	S Norrish QC DCJ
Decision:	Principal offence: Convicted, sentenced to a term of imprisonment is 4 years and 6 months, with a non parole period being 2 years and 3 months. S166 Certificate related matters - H46485539/4 - Fine - $1,000 Granted 28 days within which to pay. H46485539/6 - sentenced to a term of imprisonment for 3 months.
Catchwords:	CRIMINAL LAW: Sentence - possess an unauthorised prohibited firearm - subject to parole at time of commission of offence, special circumstances.
Legislation Cited:	Firearms Act 1996 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999
Cases Cited:	Callaghan v R [2006] NSWCCA 58 R v Hemsley [2004] NSWCCA 228 Muldrock v R [2011] HCA 39 Markarian v R (2005) 228 CLR 357 R v Foster [2011] NSWCCA 285 Thalari v The Queen [2009] NSWCCA 170 R v AA [2006] NSWCCA 55 Yammine v R [2010] NSWCCA 123
Category:	Sentence
Parties:	Director of Public Prosecutions Abdul Zahed (Offender)
Representation:	Director of Public Prosecution (Crown) Rahme & Associates (Offender)
File Number(s):	2011/297036