R v Abdulrahman

[2015] NSWSC 2094

Supreme Court

New South Wales

Medium Neutral Citation:	R v Abdulrahman [2015] NSWSC 2094
Hearing dates:	28 May 2015
Date of orders:	28 May 2015
Decision date:	28 May 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Bail refused
Catchwords:	CRIMINAL LAW – bail – detention application – offender charged with 27 firearm offences – offences not “show cause” offences – bail concerns - whether unacceptable risks of non-appearance, commission of further serious offences and being a danger to the community – Firearms Act s 4A – meaning of “possession” – inferences from number of weapons found and location of weapons – need for offender to be at liberty because of wife’s health issues – offender with minor criminal history – suspected links to outlaw motorcycle gang – offender is unacceptable risk – bail order made detaining offender
Legislation Cited:	Bail Act 2013 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	May v R [2012] NSWCCA 250
Category:	Principal judgment
Parties:	Crown Hussein Abdulrahman (Applicant)
Representation:	Counsel: G Newton (Crown) G James QC (Applicant)   Solicitors: Office of the Director of Public Prosecutions (Crown)
File Number(s):	2015/147227

Judgment

1. The Respondent has been charged with 27 firearm offences. A number of these offences are in contravention of s 7(1) of the Firearms Act 1996 (NSW); a number are in contravention of s 7A(1) of the Act and there is an offence under s 51D(2) of the Act of possessing more than three firearms, any one of which is a prohibited firearm. He was arrested on 15 January 2015 and was refused bail until bail was granted on 1 May.

2. The present is a detention application under s 50 of the Bail Act 2013 (NSW) by the Crown. None of the offences charged is a show cause offence. The Crown bases its application on the basis that the Respondent is an unacceptable risk in terms of non-appearance at court, of the commission of further serious offences and being a risk of danger to the community.

3. The firearms were located in a large PVC pipe behind some lounges in the garage of his house, which has been converted into a barber’s shop where the Respondent conducts his hairdressing business. Three other firearms were found in two cupboards in the laundry of the house. The Respondent, his wife and three children are the occupants of the property.

4. Section 4A of the Firearms Act imposes an onus on a person charged with possession of firearms and that relevantly applies to the charges under ss 7(1), 7A(1) and 51B. Section 4A(1) of the Act provides:

4A Meaning of “possession” of a firearm - proof of possession

(1) Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the    person, unless the court is satisfied that:

(a) the firearm was placed in or on, or brought into or on to,    the premises by or on behalf of a person who was lawfully    authorised by or under this Act to possess the firearm, or

(b) the person did not know and could not reasonably be    expected to have known that the firearm was in or on the    premises, or

(c) on the evidence before it, the person was not in    possession of the firearm.

5. The Crown puts its case on the basis that the large number and types of firearms concerned leads to an inference that the Respondent must have some association with a criminal milieu, whether it is the organisation that is referred to in the Crown material or otherwise. The pipe was located in a position behind the lounges that is said to have been reasonably obvious to anyone who cared to look and certainly, to someone who conducted a hairdressing business in the room where regular cleaning would be both required and necessary.

6. The Respondent points to what is contained in s 4A(1)(c), in particular, to suggest that the premises where the weapons were found was a place of access by various other persons, partly at least because a hairdressing business was being conducted there and points further to the final paragraph of the letter from the Police Officer involved in the investigation of 20 April 2015, referring to the Respondent’s brother who is said to have links to the Comancheros outlaw motorcycle gang. That letter refers to that brother being present at the time the Police executed the search warrant that led to the location of the firearms.

7. The suggestion is that possession of the premises was not such by the Respondent alone, that he would not be able to discharge the onus contained in s 4A because he may well be able to raise, by a circumstantial case, a sufficient doubt that he was not the person in possession of the firearms.

8. Both by reason of s 4A and the circumstances of the location of these firearms, together with a reading of the decision of the Court of Criminal Appeal in May v R [2012] NSWCCA 250, it seems to me that the Crown has a strong case for demonstrating that the Respondent was in possession of these weapons.

9. Mr James QC for the Respondent said it was necessary to look to the type of weapons that were found and the condition that they were in. He said, with the exception of one of the weapons, they were the sort of weapons one might expect for a person who might possess weapons legitimately, for hunting or for some other legal reason. That was in particular response to the suggestion by the police and the Crown that the weapons might have been gathered and possessed for the purpose of bringing about some catastrophic event that would jeopardise the lives of innocent members of the community.

10. The Respondent wishes his bail to continue for two particular reasons. The first is the length of time he is likely to remain in custody before the trial comes on. It may be accepted that it is unlikely that that trial will take place before the first half of next year and that is certainly a consideration.

11. The second matter is the state of health of his wife. I have been provided with an affidavit of his wife, together with medical reports. That demonstrates that the Respondent and his wife have by miscarriage well into the pregnancies lost two children and were forced to terminate another pregnancy because of health difficulties of the Respondent’s wife. She is in her last trimester of pregnancy at the moment and needs the Respondent’s presence and care. She does not speak English and whilst he was not in custody he attended all hospital visits with her. She also needs his assistance for the care of her three children. As a result of his arrest and going into custody, she has suffered a great deal of emotional and financial stress, the financial stress deriving from the fact that he was sole breadwinner in the family, presumably through the hairdressing business.

12. The proposal is that the Respondent would return to live at his property and Mr James offers that he could be placed under virtual house arrest. The bail conditions imposed by the Magistrate on 1 May included the forfeiture of $10,000 by the Respondent if bail was breached and the forfeiture of $50,000 from an acceptable person.

13. In addition, there would be the usual conditions that are currently in place of surrendering passports and not approaching points of departure, non-association with the brother already referred to and any other person who might be thought undesirable.

14. Any application, whether for bail or for detention is a balancing act. The matters to be considered are set out in s 18. If the court, after consideration, does find that there is an unacceptable risk in respect of any of the matters in s 19(2), then either bail should be refused or a detention order made, depending on the application.

15. The Respondent has only one offence on his criminal record; an offence of common assault for which he was given a 12 month s 10 bond some seven years ago. I do not have any regard to that matter.

16. The concern I have, as the Crown has submitted, is that by the serious nature of the offences, the Respondent will fail to appear at any proceedings and will endanger or may endanger the safety of the community and commit further serious offences. It is a reasonable inference and it is an inference that I draw, that the amount and type of weapons that were found in the Respondent’s premises mean that he has criminal associations, with the result that he poses an unacceptable risk of continuing to commit serious offences and thereby, endanger the community.

17. The maximum penalty for the s 51D offences is twenty years imprisonment with a standard non-parole period of ten years. The maximum penalty for the s 7(1) offences is fourteen years with a standard non-parole period of three years.

18. If the Respondent is convicted of these offences, and the likelihood is that it will be a conviction on a large group of them or none at all, he will be sentenced to a long period of imprisonment. That is a strong motivation, in the circumstances, for him not to appear in court.

19. I cannot be satisfied that the bail concerns I have are met by the conditions proposed and those that are currently in place. I find, therefore, that the Respondent is an unacceptable risk of failing to appear, continuing to commit serious offences and endangering the safety of the community, and I order his detention.

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Decision last updated: 09 September 2016