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

1. 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.

2. 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.

3. 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.

4. It is important, however, to step back a bit from the facts just for the moment to put the matters that I am concerned with in some context. The prisoner, at the time of the commission of the offences with which I am concerned, was on parole. I will deal with his criminal history in some little detail later but his criminal history reveals that in 2004 and 2005 and then in 2008 (while serving, as I understand it, the penalties imposed in 2005), the prisoner received a number of significant gaol sentences for serious offences, including offences of robbery, detaining a person for advantage and the like. He was released to parole, as I understand the matter, on 21 August 2009. He was arrested on 20 October 2009 in relation to an offence with another person or other persons and I accept, as was revealed in the custody record, that he was released from custody again on 8 September 2010. The matter that brought him back into custody in October 2009 whilst on parole was not a breach of his parole but his charging with a fresh matter which was ultimately withdrawn. So the prisoner spent approximately ten and a half months in custody in relation to a matter for which he was not subsequently convicted. He was released to parole, as I see it, in 2010 but unfortunately quickly breached his parole. I have the revocation papers in relation to that breach. The breach constituted a positive sample of morphine in a urine analysis obtained 2 November 2010. In a private meeting on 11 November 2010 the Parole authority revoked the parole of the prisoner. The condition of his parole that he breached was not to use, or be in possession of, a prohibited drug or substance. The revocation was backdated. The prisoner himself concedes that at this stage he went on "the run" and was on the run up until the day of his arrest in relation to the current matters.

5. The current matters arise from the fact that the police became aware of the prisoner's whereabouts and armed with an outstanding warrant they arrested him outside a home unit in Gardeners Road, Rosebery. As police were approaching the premises where the prisoner currently then was residing, two people came out of the unit followed by the prisoner who was recognised. Although it is not revealed in the agreed facts, in the history given by the prisoner, there was something of a struggle. The prisoner claims that he suffered an injury to his nose and an injury to his rib in that struggle. Ultimately, when searched he was asked if he had anything illegal in his possession and he identified the fact that he had a Glock firearm in his bum bag saying, "It's a nine mil". Police removed a firearm which was a nine millimetre Glock pistol or handgun, black in colour with the serial number removed. The firearm was loaded with eight rounds in the magazine. I am not given any evidence as to how many rounds the magazine could hold. The prisoner did say to the police "It's mine, I wouldn't use it." He gave no other account of himself. He has never explained from whom he obtained the firearm, although he has given explanations in a hearsay form in this court to the psychologist and the psychiatrist about the circumstances as to why he armed himself.

6. The nine millimetre Glock is a semi automatic pistol, which means that it is capable of firing multiple bullets at a rapid rate. As I understand it that model of firearm, or a very similar model of firearm, is the handgun issued to New South Wales police officers.

7. As I mentioned there were two further cartridges, live ammunition for that firearm in his pocket, giving rise to one of the related charges as well as the cash. The prisoner said that the cash was his and told the police he was unemployed. He declined to give an explanation as to how he came into possession of the cash. He also had in his possession three mobile phones.

8. The Crown concedes, and the facts reveal, the prisoner pleaded guilty at the first reasonable opportunity. The prisoner will receive a twentyfive per cent discount upon the otherwise appropriate penalty for the principal offence to recognise the utilitarian benefit of the plea of guilty. I propose to give a similar discount for the goods in custody matter, albeit that any sentence I impose for that would not add to the time the prisoner is to be in custody.

9. The prisoner committed this offence whilst on parole and at a time when his parole was revoked. I note that the prisoner's parole had been revoked for reasons other than the current charge. The current charge would inevitably have led to the revocation of his parole.

10. The prisoner's birth date, as I understand it, is 13 November 1984. That means he appears before me today at the age of twentyseven and was, as I understand it, twentysix at the time of the commission of the offence. He has a lengthy record, although I do not place any weight on his convictions or findings of guilt in the Children's Court. The first entry in the Children's Court is an offence of robbery whilst armed with an offensive weapon for which he was charged in April 1999 when he would have been, on my calculation, fourteen years of age. Ignoring the other matters in the Children's Court but noting a number of appearances the prisoner first appeared in an adult court, as best I can calculate it, at the Parramatta District Court in March 2004, for an offence committed on 10 April 2002. He was convicted, according to the computer printout, of maliciously inflict grievous bodily harm with intent to do so. He was sentenced to eighteen months with a non-parole period of nine months. That sentence commencing on 12 November 2003 and another offence of assault occasioning actual bodily harm were taken into account.

11. He then had some driving matters, two of which involved terms of imprisonment. Then on 13 December 2005 for offences for which he was charged, as I understand, on 12 November 2003, he was convicted of a series of offences. They included aggravated robbery, robbery in company, demand property in company with menaces, taking and detaining a person in company with intent to obtain advantage, taking and driving a conveyance without the consent of the owner and robbery with an offensive weapon.

12. The criminal history suggests, although have not married it with the precise terms of his Honour Judge Viney's orders which I have seen, that he received various sentences between eighteen months imprisonment and six years imprisonment with a three year nonparole period. He received the sentence of six years with a three year non-parole period for the offence of robbery in company. The other robbery offences attracted sentences of five years with a three year non-parole period. He subsequently then appeared in the Campbelltown District Court in relation to an offence for which he was charged on 16 November 2007 of aggravated breaking and entering and committing a felony with a dangerous weapon for which he was sentenced to four years and three months imprisonment commencing on 11 August 2008 with a non-parole period of twelve months. It would seem that sentence was fixed to be partially cumulative upon the sentences that had been imposed by his Honour Judge Viney.

13. Despite some question mark as to when that last offence was actually committed, one can see that the prisoner was in 2005 sentenced to significant terms of imprisonment in respect of offences for which he was charged in November 2003, when he would have been something in the order of eighteen or nineteen years of age. He thus spent a period of time in custody until released to parole to have one month in the community, then to be taken back into custody for ten months or so for a crime he did not commit and then to eventually be released to parole, which he breached two months later.

14. I deal with these matters in some detail simply to underline the fact that the prisoner has not had a great a deal of opportunity to prove himself on parole. His failure to initially comply with his parole conditions, which gave rise to the initial revocation to which I earlier referred, might be better understood in the context of the history that I have given and the difficulties the prisoner has had in adjusting to community living, some of which are not of his making.

15. In relation to the Probation and Parole Service report that I have been provided, it sets out some detail of his background picked up in the two reports. It notes the fact that the prisoner was born of parents born or from Lebanon and were traditional people, but he suffered some hardships including an alleged act of sexual abuse at the hands of a relative and some brutal or heavy handed treatment by his father and elder siblings.

16. The Probation and Parole Service notes however, as might be self evident from the record that I have referred to, that he was involved with a "negative peer group engaging in violent acts towards members of the wider community". To that end I have read the detail of the facts provided in the judgment of his Honour Judge Viney on 13 December 2005. I should point out the detail his Honour provides is only the barest summary. His Honour in fact in traversing a number of offences set out in the criminal history points out that the statement of agreed facts ran to eleven or so pages and he treats those facts in a page and a half. He did make the observation that there were several episodes of violence or threatened violence to innocent victims, the theft of the properties. Some of the offences involved the actual or threatened use of a weapon and the offences were clearly planned criminal activity. The prisoner apparently was on bail for offences at the time and according to the judgment of his Honour was in fact on parole as well in relation to another sentence.

17. The Probation and Parole Service report notes another matter which I accept is a fact. That is before the prisoner was re-released from custody, having been in custody ten and a half months on a charge for which he was never convicted, the prisoner's brotherinlaw was apparently murdered in a park in Greenacre or thereabouts. The prisoner was released from custody and claims to have taken on some responsibility to protect his late brotherinlaw's wife, his sister, and also claims that he was very vigilant to protect himself. In fact the prisoner's explanation for the possession of the firearm is that he obtained the firearm for the purposes of protection of himself and his family. He also states to the Probation and Parole Service that on release to the community with these pressures upon him he resorted back to the use of illicit substances and became paranoid about matters of personal safety.

18. He has had a history of drug usage, particularly using heroin and methylamphetamines since his late teens, particularly claiming to have used amphetamines from his mid twenties. He claimed that he was using heroin and methylamphetamine excessively at the time of the commission of the subject offence. He claimed a lack of clear recollection of relevant events.

19. The summary provided by the Probation and Parole Service is that the prisoner is a man with an extensive history of unsatisfactory response to supervision of this Service and has a history of unaddressed dependence to illicit substances. He continues to have alcohol and drug issues and violent acts against members of his local community are consequences of this dependency.

20. The Probation and Parole Service made the point that he had not fully engaged with the Service in regards to addressing his crimogenic behaviour. Whilst it is felt that he could benefit from supervision from the Service, his prior negative response to supervision brings into doubt the utility of future supervision by the Service.

21. This evidence is not challenged. The prisoner has not given evidence to challenge the factual assumptions in the report and no submissions were even made about the Probation and Parole Service report. This augurs badly for a finding that would extend the period of supervision. But I have made a finding of "special circumstances" for two reasons. There should be an adjustment of the otherwise appropriate nonparole period with a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act to provide the prisoner with professional assistance to adjust to community living and to give him an opportunity to get the benefit of the supervision of the Parole Service to address the issues that have contributed to his offending and because the sentence that I impose will be partially accumulative upon the consequences of the revocation of parole.

22. The consequences of the revocation of parole, which ultimately was backdated to 14 September 2011, the date of his arrest in relation to this matter, is that he has a balance of sentence arising from the revocation of parole which commences on 14 September 2011 and expires on 22 September 2013. That is a period on my calculation of two years and six or seven days. I was informed from the bar table that for various reasons he cannot first apply for parole, without any action taken by this Court I hasten to say, for a period of twelve months since the backdated date of the commencement of the revocation of parole. I was told that the revocation of parole was governed by s 237A Crimes (Administration of Sentences) Act 1999.

23. Of course predicting the future and what the Parole authority might do or might have done without these charges is a matter of pure speculation on my part. But the reality is in the context of the seriousness of the offending with which I am concerned that any sentence I must impose in accordance with the law would extend beyond the period of the balance of the sentence, the subject of the parole revocation. Thus the sentence I impose overtakes to some extent the prisoner's current situation as a consequence of the revocation of parole.

24. In determining how to deal with the issue of the fixing of the commencement of the current sentence I have taken into account the submission of learned counsel for the prisoner, Mr Rahme, that I should sentence the prisoner by imposing a sentence that commences on the date of sentence that would be, I take it, last week when the matter came before me.

25. I was referred by both the Crown and the defence to the decision of Callaghan v R [2006] NSWCCA 58. I am familiar with the judgment of Simpson J, particularly in which her Honour considered the issues that arise in the sentencing of an offender to a term of imprisonment where there exists a revocation of parole. Her Honour canvassed a number of judgments of the Court. Amongst other things she noted the discretionary character of the decision so far as fixing a commencement date in accordance with the provisions of s 47 Crimes (Sentencing Procedure) Act and also she emphasised the need to ensure that in sentencing an offender in the circumstances one should not 'double dip'. As I will point out, by reference to s 21A Crimes (Sentencing Procedure) Act, the prisoner's crime of possessing a firearm contrary to s 7 of the Firearms Act was a substantial breach of the original parole order made, even though that parole order had been revoked. This is, of course, thus a significant aggravation following upon the terms of the relevant provision in s 21A(2) Crimes (Sentencing Procedure) Act. In any event, in considering the commencement date of the sentence, I have had close regard to Callaghan.

26. I cannot accede to the submission of Mr Rahme. On the other hand obviously I should not make the sentence I impose entirely accumulative upon the balance of the sentence to be served as a consequence of the revocation of parole. I will commence the sentence 12 months into the balance of the parole period.

27. With regard to the subjective case raised by the prisoner, some material was tendered in the nature of character or work references, but the primary material relied upon, in fact the primary material in the defence case is to be found in the reports of Ms Anita Duffy, who has had prior clinical contact with the prisoner as far back as 2003 and in the report of Dr Olav Nielssen, a respected forensic psychiatrist, that report dated 1 February 2012.

28. Ms Duffy discusses the prisoner's background as provided by him and the history of his drug usage, the circumstances of his relationships and the circumstances of the matters that the prisoner said were pertinent to the commission of the principal offence. She noted that he claimed to have been quite paranoid, believing that he was on a list of possible targets following upon the death of his brother-in-law. I have noted the hearsay assertions of the prisoner within that report and the report of Dr Nielssen. The prisoner has given a generally consistent account to those persons, including the Probation and Parole Service officer, who have taken histories.

29. So far as Ms Duffy is concerned, she found in relation to intelligence testing that the prisoner was a person with a level of non-verbal intelligence in the lower second percentile of "population norms" with his verbal abilities in the same area of functioning. He had a potential to undertake semiskilled or skilled practical work. It is not submitted that he is intellectually disabled. Initially when I read that passage on the run I misunderstood its terms, but it is submitted that he is in the lower levels of normal intelligence, consistent with the observations of Dr Nielssen.

1. On personality testing, without detailing the manner of testing, Ms Duffy found that his "only significant result" was on the "depressive measure" and his "antisocial score", as it was called, was just below significance. His scoring on "paranoia" was not statistically significant. He had a highly elevated result on the measure of anxiety and had significant scores on the measures of depression, drug dependence and post-traumatic stress disorder. This reflected his history of being exposed to incidents which has caused fear including his abuse as a child and acts of violence occurring in his presence or to members of his family. His recurring difficulties with substance abuse was consistent with the testing as to his drug dependence scale. He had high feelings of sadness, pessimism, guilt and low self esteem.

2. In relation to the issue of risk assessment and treatment consideration, it was found that his risk of general and violent recidivism amongst people of his age was moderate to high. It also emerged from the testing that he had a moderate to a high need for assignment to treatment options. His scores were significant on matters relating to conduct problems, criminal history, drug and alcohol abuse and antisocial associates. The alcohol and drug abuse and antisocial associate scales returned in his testing suggested "the need for specific programs to address his substance abuse and to deal with peer pressure".

3. Her conclusion was that he was a person, having regard to the testing and his background and his history of imprisonment, who was in need of programs to assist him to adjust to community living and to avoid criminal and antisocial contacts. She noted significantly that she had seen him on a number of occasions between 2003 and the present and she noted his growing maturity and increased self awareness and behavioural controls. One of the features of his presentation to people is that notwithstanding the very bleak picture that emerges on the paper, the prisoner is a person who has an engaging personality and presents openly and in a friendly way to the interviewers. Not that that necessarily is a final determinative of his potential risk to the community.

4. Ms Duffy was of the view that the prisoner did not necessarily espouse criminal or antisocial beliefs but was rather "prone to being adversely influenced by those around him into criminal activities". He needs counselling in custody and in the wider community, particularly through a psychologist. She noted his marriage, as I understand it some fourteen months ago, has provided a stabilising influence, but that having been said, on the chronology I have, the prisoner was married at the time of the commission of these offences.

5. Dr Nielssen provided a similar history, noting the prisoner's disadvantaged background in a number of respects. He made a diagnosis, on the prisoner's mental state examination and with the history available as well as other papers provided, that the prisoner had a substance abuse disorder which was in remission on the basis that he was not using drugs in custody. He also made a diagnosis of substanceinduced psychotic disorder based upon the prisoner's account of episodes of persecutory delusional beliefs triggered by the use of methylamphetamine. He said the pattern of symptoms was typical of drug-induced states rather than schizophrenialike psychosis and the episodes resolved soon after ceasing drugs, without any treatment.

6. He believed that the prisoner may have been sensitised for developing psychosis as a result of his abuse of cannabis and stimulant drugs in early adolescence, an important period of brain development and thus disrupted him such as to trigger psychoses. He said however there was little in the way of disorganised thinking. He did not believe there was an emergence of chronic mental illness. He thought that the firearms offence would "appear to be directly linked to both of his disorders" because his psychotic episodes left him irrationally fearful of his immediate safety and his substance abuse resulted in a lifestyle where he had genuine reason to be afraid. There may have been a link with his history of sexual abuse in childhood that he claims and the onset of substance abuse and antisocial conduct may have its origins in this disadvantaged background.

7. He expressed the opinion of the prisoner's prospects of rehabilitation were directly related to his future substance abuse. He needed a graded prerelease program, some day release to prepare for subsequent release and ongoing drug counselling and other measures on his release.

8. I have gone into this material in some detail because the primary matter that was raised in the submissions of the defence, as I earlier indicated, was the issue of the relationship of any "mental illness" to the offending behaviour and the related question of whether there should be a diminution upon punishment and/or general deterrence in the sentencing process to recognise that particular condition.

9. His counsel also referred to the fact that the prisoner clearly had become institutionalised over a number of years throughout his early adulthood of imprisonment. It was submitted that the critical issue in relation to his mental condition was whether apart from the issue of general deterrence and related matters, the issue of whether there was special circumstances. It was conceded that he was not mentally retarded.

10. The Crown said in its submissions that if less weight was given to general deterrence, in his case greater weight should be given to specific deterrence.

11. Dealing with this aspect of the submissions, having surveyed this evidence, I note the authorities to which is I was referred in submission, particularly the judgment of R v Hemsley [2004] NSWCCA 228. In Hemsley. Sperling J [33] summarised the position which I understand still applies in respect of dealing with an offender suffering from a mental illness. He said:

"Mental illness may be relevant in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may then not be the same call for denunciation and the punishment warranted and that may accordingly be reduced:

Furthermore mental illness may render the offender an inappropriate vehicle for general deterrence (the matter discussed in Engert (1995) and in the late Badgery-Parker J's judgment in Letteri).

Thirdly a custodial sentence may weigh more heavily on a mentally ill person. A fourth and countervailing consideration may be that the level of danger which the offender presents to the community might require consideration in special deterrence (noting the judgment of Israil)."

41. In relation to these matters, firstly, there is no evidence that the prisoner is currently suffering from a mental illness or that his circumstances of custody weigh more heavily upon him because of the conditions diagnosed by Dr Nielssen. Furthermore, in considering the issue of mental illness, as it is discussed in relation to the first two points made by Sperling J, it is of course very much a matter of the character of the mental illness and the way in which it affects the offender and the strength of the causal connection between the mental illness and the offending behaviour. The person with a schizophrenic condition short of the defence of mental illness, who acts in a certain way as an expression of the illness may, subject to considerations of specific deterrence, have a lower moral culpability or may not be an appropriate vehicle for general deterrence. Likewise a person who suffers from a significant mental disability such as what might be described as reduced intellectual capacity might not be an appropriate vehicle for general deterrence.

42. I point out in this particular matter that whilst the opinions of Dr Nielssen are not substantially challenged, he certainly was not requested to be crossexamined and no countervailing evidence is available, the relationship between what he diagnosed as the relevant mental conditions and the offending behaviour is not particularly strong, particularly having regard to the prisoner's own account of the reasons for obtaining the firearm.

43. The facts of the matter are that even if he was paranoid and that paranoia was induced by some drug psychosis, which is not a chronic condition, the prisoner had, on his version, real reasons for having fear for himself and his family because his brother-in-law was murdered. That was not a fictitious or imaginary event. The other problem I have with Dr Nielssen's report is that the prisoner has given no details as to when he acquired the gun and the circumstances of its acquisition. For all I know he may have had the gun from a short time after he got out of gaol. Thus for up to a period of something in the order of ten months or so ago, and he continued to have possession of the gun, not just on the day of his arrest. He clearly had the firearm for some period of time beforehand. The crime he has admitted to is the crime of the possession of the firearm. That was a continuing possession. There is no evidence that he was in a continuing psychotic condition. Of course arming himself may have been a consequence of the paranoia induced, but he was not in a continual state of mental illness even on the analysis of Dr Nielssen and must have had opportunities to reflect upon his possession of the gun.

44. The firearm offence, of course, was a calculated matter and the fact that he was both in possession of the gun and the gun was loaded, reflects upon the calculation of the prisoner. Again demonstrating, allowing for Dr Nielssen's opinions, the capability of the prisoner to make rational and calculated decisions about matters relevant to the offending behaviour.

45. That is not to say I completely discount Dr Nielssen's assessment. It may explain aspects of the prisoner's behaviour and, ultimately, in the context of what I might call "Hemsley principles" if there be some lessening upon the emphasis of punishment and general deterrence it is, on the evidence, slight. I also note that Mrs Duffy's assessments are not altogether in accord with the assessments of Dr Nielssen. Mrs Duffy, who is not a medical practitioner of course, says symptoms of post traumatic stress disorder exist. I see no reference to that condition in the analysis of Dr Nielssen. Again, had that not been said I accept that there are a number of features in the prisoner's background that have impacted upon his development, some of which are beyond his control.

46. The matters that do arise from the psychological and the medical evidence are clearly matters that remain relevant for the determination of the fixing of non-parole period and underline the emphasis that should be given on extending the appropriate non-parole period to reflect the need for an extended period of time for supervision to assist the prisoner to adjust to community living if he is capable of doing it.

47. The principal offence has a standard non-parole period. The Crown provided a brief summary of the principles set out in Muldrock v R [2011] HCA 39, particularly at [25] to [30]. It noted that the relevance of the standard non-parole period on the determination of the High Court was not a starting point for sentencing for an offence in the mid range after conviction. The Court is not required to start by asking whether there are reasons for not imposing the standard non-parole period, nor does the Court need to proceed to an assessment of whether the offences are in the middle range of objective seriousness. Instead the Court must identify all the factors that are relevant, identify their significance and make a value judgment about the appropriate sentence in accordance with the decision of Markarian v R (2005) 228 CLR 357. The standard non-parole period of course remains important as a guidepost, along with the maximum penalty. In doing so courts must bear in mind the standard non-parole period is a non-parole period "for an offence in the middle of the range of objective seriousness" and place the guidepost in that context.

48. Muldrock is beginning to become the subject of a number of commentaries by the Court of Criminal Appeal. A recent judgment I have read is R v Foster [2011] NSWCCA 285, where Adams J examined the matter in some detail. His views on Muldrock were not embraced wholeheartedly by Hoeben and McClellan JJ, but it was acknowledged by Hoeben J that he did not suggest Adams J's analysis was wrong and McClellan J would appear to have reserved upon the detail of that analysis. In any event, much of what Adams J discussed involved merely repeating what was contained within Muldrock.

49. In this particular matter there are a range of matters to take into account. First of all the offence itself by reference to its character was an offence involving the prisoner being in possession of a very dangerous firearm which was loaded at the time in circumstances that are not explained. With regard to the prisoner's explanation for his possession of the firearm there was no evidence of any current threat at the time of his arrest and there were no details of any specific threats made to the prisoner in the period of time between October 2010 and the commission of the offence in September 2011. Noting that the mid range is not a "narrow band" as discussed in the decision of Way, it can be seen that the character of the firearm and the fact that it was loaded would place this offence very much towards the upper level of the mid range at least. I make this finding on the basis of the character of the firearm, the fact that it was a firearm capable of rapid fire, it was a firearm obviously illegally obtained by the prisoner in that it was a firearm that presented itself as a stolen or otherwise illegally obtained gun with no serial number. It was, as I said, an offence aggravated by the prisoner's possession of the gun in a loaded state capable of being fired within seconds by simply disengaging any safety mechanism upon it.

50. Of course there is no suggestion the prisoner was about to use the gun or had used the gun or threatened to use the gun. However, it is the potential of the firearm to cause harm and the character of the firearm which gives rise to the attraction of a fourteen year maximum term of imprisonment and the standard non-parole period. There are no matters raised either by the prisoner, and the hearsay accounts he has given, or in the objective facts, to suggest that this possession was transitory.

51. As I have pointed out, the events giving rise to the need for self protection occurred almost a year before and the prisoner has been completely silent about the time in which the gun was in his possession. This was a matter, as I said, Dr Nielssen did not address and with respect to Dr Nielssen's opinion there is nothing in the material available to me, nor anything in his report, that suggests that the accused was suffering a psychotic episode at the time of his arrest.

52. The prisoner's failure to provide a reliable account as to the acquisition of the firearm is of course a matter of some concern. Clearly he has the means to obtain such a firearm, the means which would not be available to the general citizenry. An act of contrition on the part of the prisoner could have been to identify the source of the firearm to ensure that the person who supplied this firearm could be prevented from providing similar firearms to other people. I cannot punish the prisoner additionally for his silence and I can understand the reasons why he may not wish to implicate any other person. It is a matter of deep concern, as the community expresses at the moment with events in western Sydney in recent months, that people have access to firearms which are capable of causing death and serious injury or disturbance to the community.

53. As I have pointed out earlier, another aggravating feature, this time arising under s 21A(2), is that the offence was committed whilst the prisoner was subject to parole and, more importantly, the parole itself had been revoked because the prisoner had failed to comply with the very basic condition of that.

54. The prisoner's reason for having the firearm for personal protection provides little, if any, mitigation, as the Crown pointed out in judgments such as Thalari v The Queen [2009] NSWCCA 170 and R v AA. Personal protection provides little or any mitigation for possession of a firearm. The Court in Thalari said:

"The rule of law and the authority of courts depends upon the propositions that persons do not by legal means take their protection into their own hands."

55. There is also a decision of Yammine [2010] NSWCCA 123 setting out relevant observations on this matter.

56. The Crown doubted the prisoner's prospects of rehabilitation and one, of course, must be somewhat sanguine about them. One could not make a positive finding in light of the history of the prisoner that there is real prospects of rehabilitation, however Ms Duffy in her findings from her testing and her observation of the prisoner, reflected upon the capacity of the prisoner with more stable domestic circumstances to better his life. The finding of special circumstances that I have foreshadowed assumes that the prisoner may take advantage on the next time he is released to the advantages of a lawful existence in the community.

57. The Crown made submissions in relation to the dating of the sentence which I have taken into account. I have already dealt with that matter.

58. So far as mitigating matters other than those to which I have referred, under s 21A(3) relevant to the fixing of the appropriate sentence, ultimately I could not find that this offence was part of "planned or organised criminal activity". There is no suggestion the prisoner used the firearm to commit a particular crime. The planning involved in it was not of the character that would warrant a finding of planning as it is anticipated under s 21A(2).

59. The prisoner has no other matters of significance that arise under s 21A(3). I could not find that he is unlikely to re-offend and, as I said, one must keep an open mind about his prospects of his rehabilitation. Certainly I could not find a positive finding of good prospects of rehabilitation. The prisoner has expressed regret, but the Probation and Parole Service did not regard him as being particularly regretful. In any event, he has not provided the relevant material that would provide a basis for a finding of remorse on his part in accordance with s 21A(3)(i). I do note, however, the plea of guilty is a mitigating matter. But for that, of course, the prisoner receives a discrete discount.

60. To go back to the start, the prisoner was on the run and ultimately the arming of himself for selfprotection provides no real mitigation. Being on parole at the time of the commission of the offence, and with his criminal history offering him no basis for leniency, a significant sentence is appropriate. Noting the standard nonparole period and the maximum penalty, I have concluded that the appropriate sentence for this offence has a starting point of six years imprisonment. I have granted the prisoner a discount of twentyfive per cent. Upon the sentence thus to be imposed I have determined that the nonparole period should be that of two years and three months, commencing from a date exactly one year after the commencement date of the revocation of his parole.

61. In arriving at those decisions I have determined that I should give some weight of course to the medical and psychological findings, but of course as ultimately was conceded in the submissions of the prisoner's counsel, the mitigation they provide, in conjunction with the other features of the case, could not be great because in the scheme of things, including the objective facts, the conditions particularly referred to by Dr Nelson provide little explanation for the prisoner's possession of the firearm.

55. Thus, in relation to the principal offence, Mr Zahed, you are convicted. You are sentenced to a term of imprisonment of two years and three months. That will commence on 14 September 2012 and will expire on 13 December 2014. In relation to that sentence I fix a balance of sentence of two years and three months. That balance of sentence will expire on 13 March 2017.

56. I cannot direct that you be released to parole on that date. It will be a matter for the Parole authorities, so it will be very much in your court. You may say to yourself, when I was younger I committed armed robberies and robberies in company and I got a sentence not much greater than the sentence that has been imposed today. But the problem is, of course, that given the maximum penalty for the offence and some of the aggravating factors and the fact that you committed the offence on parole, the hands of the Court are somewhat tied.

57. I have made allowance to try and provide you with an opportunity of an earlier release to parole than might otherwise be the case, which will be some time in the future and I trust you will take the opportunity to take it. You have got an attractive wife to look forward to joining when you leave gaol and you have got reasons, if you are serious about it, to lead a lawful lifestyle. The problem you have got is if you want to continue committing offences, you will end up spending longer and longer in gaol and ultimately I am sure that that is something that you do not wish to happen.

58. For the possess ammunition offence, you are convicted and you are fined $1,000. I grant you twentyeight days to pay.

59. In relation to the goods in personal custody charge regarding the cash, I sentence you to three months imprisonment. That term of imprisonment will start on 14 September 2012 and expire on 13 December 2012.

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Amendments

14 February 2024 - Publication restriction lifted.

Decision last updated: 14 February 2024