R v Ali

Case [2020] NSWDC 125 24 April 2020

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v ALI [2020] NSWDC 125
Hearing dates: 12 March, 15 April 2020
Date of orders: 24 April 2020
Decision date: 24 April 2020
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see paragraphs [93]-[101]

Catchwords: CRIME – sentencing - Possess Loaded Firearm in a Public Place - Possess Shortened Firearm (Not being a Pistol) - Possess Prohibited Weapon - Possess Prohibited Drug
Legislation Cited: Crimes Act, 1900
Criminal Procedure Act, 1986
Firearms Act, 1996
Weapons Prohibition Act, 1998
Cases Cited: R v AD (2008) 191 A Crim R 409; [2008] NSWCCA 289
Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146.
Baines v R [2016] NSWCCA 132
Bugmy v The Queen [2013] HCA 37
Casella v R [2019] NSWCCA 201
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Cross v R [2019] NSWCCA 280
DJ v R [2017] NSWCCA 319
DJ v R (District Court (NSW) 13 December 2016, unrep)
R v Fangaloka [2019] NSWCCA 173
Fangaloka v The Queen [2020] HCASL 12
R v GDP (1991) 53 A Crim R 112
R v Hearne (2002) 124 A Crim R 451
KT v R [2008] NSWCCA 51
Karout v R [2019] NSWCCA 253
Karout v The Queen [2020] HCASL 56
R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178
Laspina v R [2016] NSWCCA 181
Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296
R v Mueller [2015] NSWCCA 292
Nabalarua v R [2020] NSWCCA 68
Nguyen v R [2007] NSWCCA 14
R v Pullen [2018] NSWCCA 264
Taitoko v R [2020] NSWCCA 43
Taylor v R [2018] NSWCCA 50
Thammavongsa v R [2015] NSWCCA 107
R v Smith & Campbell [2019] NSWCCA 1
Yildiz v R [2020] NSWCCA 69
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Sentence
Parties: Director of Public Prosecutions (for the Crown)
Moustapha ALI
Representation:
Counsel:
Mr J Jiang (for the Offender)
Solicitors:
Mr S Baumgarten (for the Crown)
Ms E Brown (for the Crown, on the second occasion)
Mr G Abbas of Abbas & Co Lawyers (for the Offender)

File Number(s): 2019/134933
Publication restriction: No

REMARKS ON SENTENCE

The offender appeared at the Young Local Court on 22 October 2019 and pleaded guilty to two charges namely a charge of Possess Loaded Firearm in a Public Place contrary to s 93G(1) of the Crimes Act, 1900 and one charge of Possess Shortened Firearm (Not being a Pistol) contrary to s 62(1)(b) of the Firearms Act, 1996. The pleas of guilty were adhered to at the sentence hearing at Wagga Wagga District Court on 12 March 2020. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
The maximum penalty for the charge of 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 R v Ali

Details

AGLC: R v Ali [2020] NSWDC 125
Case: [2020] NSWDC 125
Decision Date: 24 April 2020

CaseChat Overview and Summary

The case of R v Ali involved the appellant, Ali, who was convicted of multiple offences including possessing a loaded firearm in a public place, possessing a shortened firearm that was not a pistol, possessing a prohibited weapon, and possessing a prohibited drug. The case was heard in the Court of Criminal Appeal, where Ali sought to appeal his sentence. The central issue before the court was whether the original sentence imposed by the primary judge was manifestly excessive or inadequate, and if the appeal against sentence should succeed. The court was required to determine whether the sentence was appropriate in all the circumstances, considering the severity of the offences and the need for deterrence and retribution.

The court examined the principles of sentencing, particularly the need to balance the rights of the offender with the protection of the community. It reviewed the seriousness of the offences, including the potential danger posed by the possession of a loaded firearm and the potential for harm caused by the prohibited substances. The court also considered the appellant's background, including his prior criminal history and personal circumstances, as well as the submissions made by both the prosecution and defence. The court needed to assess whether the sentence imposed was commensurate with the gravity of the crimes committed.

After considering the arguments presented and the applicable legal principles, the court concluded that the original sentence was appropriate. The court found that the sentence reflected the seriousness of the offences and adequately addressed the need for deterrence and retribution. The court emphasised that the possession of a loaded firearm in a public place and the presence of prohibited substances posed significant risks to public safety. The appellant's criminal history and the potential for reoffending were also taken into account. The appeal against sentence was dismissed, and the original sentence was upheld. The court did, however, provide detailed reasons for the sentence, ensuring transparency and accountability in the judicial process.

Orders

Orders of the court

Sentenced – see paragraphs [93]-[101]

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

R v Ali [2020] NSWDC 125

Most Recent Citation

Ali v The Queen [2021] NSWCCA 174

Cases Citing This Decision

Ali v The Queen [2021] NSWCCA 174
Citation 1

…3 Publication restriction: Nil Decision under appeal Court or tribunal: Wagga Wagga District Court Jurisdiction: Criminal Citation: [2020] NSWDC 125 Date of Decision: 24 April 2020 Before: Judge Lerve File Number(s): 2019/134933…

See all citing cases →

Cases Cited

Yildiz v R [2020] NSWCCA 69
Citation 1 (Para 71)

…a youthful offender. The age of the offender is to be contrasted with the offender (aged 18 years 5 months, with no prior convictions) in Yildiz v R [2020] NSWCCA 69. I also note the fact that the offender has a record that does not entitle him to any leniency and that the offender was on parole. I note the Court…
Nabalarua v R [2020] NSWCCA 68
Citation 2 (Para 34)

…Although dealing with offences of armed robbery I also note the comments of Beech-Jones J in connection with shortened firearms in Nabalarua v R [2020] NSWCCA 68 at [42]. Also on the issue of general deterrence I again note the comments of Johnson J (earlier extracted at [21] of these remarks) in Taylor at [46].…
Taitoko v R [2020] NSWCCA 43
Citation 3 (Para 76)

…The decision in Zreika was recently followed in the decision of the Court of Criminal Appeal in Taitoko v R [2020] NSWCCA 43 at [91] where Leeming JA (Hoeben CJ at CL agreeing with brief additional comments, Lonergan J agreeing) observed that, "this offending is a long way removed from the 'rare and exceptional' se…
Karout v The Queen [2020] HCASL 56
Citation 4 (Para 80)

…In Karout v The Queen [2020] HCASL 56 (co-incidentally) Gordon & Edelman JJ again dealt with the matter on the papers and said:…
Cross v R [2019] NSWCCA 280
Citation 5 (Para 79)

…Not only is there the decision of R v Fangaloka but also the decisions of Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253 and Cross v R [2019] NSWCCA 280. Since those decisions Applications for Special Leave have been considered by the High Court of Australia in Fangaloka and Karout . In Fangaloka v The…
Karout v R [2019] NSWCCA 253
Citation 6 (Para 79)

…Not only is there the decision of R v Fangaloka but also the decisions of Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253 and Cross v R [2019] NSWCCA 280. Since those decisions Applications for Special Leave have been considered by the High Court of Australia in Fangaloka and Karout . In Fangaloka v The…
Casella v R [2019] NSWCCA 201
Citation 7 (Para 79)

…Not only is there the decision of R v Fangaloka but also the decisions of Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253 and Cross v R [2019] NSWCCA 280. Since those decisions Applications for Special Leave have been considered by the High Court of Australia in Fangaloka and Karout . In Fangaloka v The…
R v Fangaloka [2019] NSWCCA 173
Citation 8 (Para 78)

…decision of R v Pullen [2018] NSWCCA 264 may be "worthy of consideration, fully cognisant of the Court of Criminal Appeal's decision in R v Fangaloka [2019] NSWCCA 173".…
R v Campbell; R v Smith [2019] NSWCCA 1
Citation 9 (Para 32)

…Again by way of additional comment Rothman J said in R v Smith & Campbell [2019] NSWCCA 1 at [9]:…
R v Pullen [2018] NSWCCA 264
Citation 10 (Para 78)

…years or less and direct that the sentence be served by way of Intensive Correction Order. Counsel goes on to submit that the decision of R v Pullen [2018] NSWCCA 264 may be "worthy of consideration, fully cognisant of the Court of Criminal Appeal's decision in R v Fangaloka [2019] NSWCCA 173".…
Taylor v R [2018] NSWCCA 50
Citation 11 (Para 21)

…he put the firearm in that toolbox some time before it was found by police. As Johnson J (Hoeben CJ at CL, Price J agreeing) commented in Taylor v R [2018] NSWCCA 50 at [46], "The question of public safety lies at the heart of the Firearms Act 1996." The weapon being in an unlocked toolbox in an unsecured vehicle…
DJ v R [2017] NSWCCA 319
Citation 12 (Para 19)

…The fact that the offender had the weapon for two years is a relevant matter in determining the seriousness of the matter - see for e.g. DJ v R [2017] NSWCCA 319 at [101]-[102] per Johnson J. Also relevant to the issue of the seriousness of the matter is the nature of the weapon that had been shortened, i.e. a doubl…
Laspina v R [2016] NSWCCA 181
Citation 13 (Para 31)

…Rothman J, although dealing with different offending although still relating to firearms in Laspina v R [2016] NSWCCA 181 said at [6] by way of additional comment:…
Baines v R [2016] NSWCCA 132
Citation 14 (Para 74)

…written submissions (MFI 2 on sentence) comments on the issue of the possibility of summary disposal. The Crown refers to the decision of Baines v R [2016] NSWCCA 132. In that decision Basten JA presided with Rothman & Fagan JJ. Fagan J gave the leading judgment however Basten JA and Rothman J both made separate ad…
R v Mueller [2015] NSWCCA 292
Citation 15 (Para 6)

…the "offences on the form 1 do not necessarily aggravate the penalties to be imposed on the principal offence to any significant degree". R v Mueller [2015] NSWCCA 292 at [26] per RS Hulme AJ is then cited. The matters relating to the Possession of Prohibited Drugs taken in isolation would have little impact on the…
R v Lachlan [2015] NSWCCA 178
Citation 16 (Para 17)

…At least since the decision of R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 it has been uncontroversial that there is no legitimate use for a shortened firearm.…
Thammavongsa v R [2015] NSWCCA 107
Citation 17 (Para 72)

…Crim R 451 at [27]. I also note the decisions of Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296 at [41]-[49] per RA Hulme J and Thammavongsa v R [2015] NSWCCA 107 at [84]-[90] per Bellew J (Simpson J (as her Honour then was) generally agreeing but dissenting as to the ultimate disposition of the appeal) Hulme J…
Bugmy v The Queen [2013] HCA 37
Citation 18 (Para 66)

…rom the submissions of counsel for the offender (MFI 1 on sentence) that it is put that the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened. This was confirmed at the further brief sentence hearing on 15 April 2020.…
Zreika v R [2012] NSWCCA 44
Citation 19 (Para 75)

…Further, I also note the decision in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [70]-[120] and at [107]-[109] in particular. At [107]-[109] Johnson J said:…
Locke v R [2010] NSWCCA 296
Citation 20 (Para 72)

…iang does however refer to the decision of R v Hearne (2002) 124 A Crim R 451 at [27]. I also note the decisions of Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296 at [41]-[49] per RA Hulme J and Thammavongsa v R [2015] NSWCCA 107 at [84]-[90] per Bellew J (Simpson J (as her Honour then was) generally agreeing b…
R v Mahmud [2010] NSWCCA 219
Citation 21 (Para 71)

…ntences imposed for such offences must "operate as real disincentives to those otherwise attracted to the illegal position 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); Dio…
McIntyre v R [2009] NSWCCA 305
Citation 22 (Para 47)

…with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67].”…
R v AD [2008] NSWCCA 289
Citation 23 (Para 37)

…21A(2)(j) of committing an offence while subject to conditional liberty is made out. In this regard see also for e.g. R v AD (2008) 191 A Crim R 409; [2008] NSWCCA 289 at [41] per Harrison J.…
KT v R [2008] NSWCCA 51
Citation 24 (Para 71)

…his youth. The decision of R v GDP (1991) 53 A Crim R 112 has been largely superseded by later authority. In particular I note the decision of KT v R [2008] NSWCCA 51 at [21]-[26] per McClellan CJ at CL. Those decisions deal with juvenile offenders and have no real application in the matter presently under consider…
Nguyen v R [2007] NSWCCA 14
Citation 25 (Para 84)

…Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] per Howie J (Adams & Price JJ agreeing, Adams J with additional comments) and Nguyen v R [2007] NSWCCA 14 at [12] per Howie J (Sully & Price JJ agreeing).…
Cahyadi v R [2007] NSWCCA 1
Citation 26 (Para 84)

…ame facts and circumstances the extent of the accumulation will be slight. In this regard I note the decisions of Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] per Howie J (Adams & Price JJ agreeing, Adams J with additional comments) and Nguyen v R [2007] NSWCCA 14 at [12] per Howie J (Sully & Price…
R v Cage [2006] NSWCCA 304
Citation 27 (Para 31)

…. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67].”…
Wise v R [2006] NSWCCA 264
Citation 28 (Para 31)

…the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67].”…
R v Howard [2004] NSWCCA 348
Citation 29 (Para 66)

…acted to the illegal position 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)”.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 30 (Para 5)

…eneral's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (Guideline judgment on form 1 matters) reported at (2002) 56 NSWLR 146.…

Legislation Cited

Firearms Act 1996 (TAS)
1 mention (from Para 21)

Medium Neutral Citation:	R v ALI [2020] NSWDC 125
Hearing dates:	12 March, 15 April 2020
Date of orders:	24 April 2020
Decision date:	24 April 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragraphs [93]-[101]
Catchwords:	CRIME – sentencing - Possess Loaded Firearm in a Public Place - Possess Shortened Firearm (Not being a Pistol) - Possess Prohibited Weapon - Possess Prohibited Drug
Legislation Cited:	Crimes Act, 1900 Criminal Procedure Act, 1986 Firearms Act, 1996 Weapons Prohibition Act, 1998
Cases Cited:	R v AD (2008) 191 A Crim R 409; [2008] NSWCCA 289 Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146. Baines v R [2016] NSWCCA 132 Bugmy v The Queen [2013] HCA 37 Casella v R [2019] NSWCCA 201 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Cross v R [2019] NSWCCA 280 DJ v R [2017] NSWCCA 319 DJ v R (District Court (NSW) 13 December 2016, unrep) R v Fangaloka [2019] NSWCCA 173 Fangaloka v The Queen [2020] HCASL 12 R v GDP (1991) 53 A Crim R 112 R v Hearne (2002) 124 A Crim R 451 KT v R [2008] NSWCCA 51 Karout v R [2019] NSWCCA 253 Karout v The Queen [2020] HCASL 56 R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 Laspina v R [2016] NSWCCA 181 Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296 R v Mueller [2015] NSWCCA 292 Nabalarua v R [2020] NSWCCA 68 Nguyen v R [2007] NSWCCA 14 R v Pullen [2018] NSWCCA 264 Taitoko v R [2020] NSWCCA 43 Taylor v R [2018] NSWCCA 50 Thammavongsa v R [2015] NSWCCA 107 R v Smith & Campbell [2019] NSWCCA 1 Yildiz v R [2020] NSWCCA 69 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (for the Crown) Moustapha ALI
Representation:	Counsel: Mr J Jiang (for the Offender) Solicitors: Mr S Baumgarten (for the Crown) Ms E Brown (for the Crown, on the second occasion) Mr G Abbas of Abbas & Co Lawyers (for the Offender)
File Number(s):	2019/134933
Publication restriction:	No