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R v Awraham

R v Awraham

Case [2019] NSWDC 341 5 July 2019

Accumulation of Sentences

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Awraham [2019] NSWDC 341
Hearing dates: 03 May 2019, 5 July 2019
Date of orders: 05 July 2019
Decision date: 05 July 2019
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
You are convicted of the offences of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act 1996, supply of a prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 and attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995.

For the offence of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, after applying a discount of 25% for the plea of guilty, I impose a head sentence of 3 years, with a non-parole period of 1 year 11 months. The sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody. The non-parole period expires on 22 March 2020, and the head sentence expires on 22 April 2021.

For the offence of possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act, after applying a discount of 25% for the plea of guilty, I impose a sentence of 18 months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody, and will expire on 22 October 2019.

For the offence of supplying prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985, after applying a discount of 25% for the plea of guilty, I impose a sentence of 2 years and three months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody, and will expire on 22 July 2020.

For the offence attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995, after applying a 25% discount for the plea of guilty, I impose a head sentence of 7 years 6 months, with a non-parole period of 5 years and 15 days commencing from 23 October 2019. The head sentence will expire on 22 April 2027 and the non-parole period will expire on 6 November 2024.

The period of accumulation is 18 months.
The overall effective sentence I impose consists of a non-parole period of 6 years, 6 months and 15 days commencing from 23 April 2018, and a head sentence of 9 years. You will become eligible to be released on parole on 6 November 2024.
Catchwords: SENTENCING – Commonwealth and State offences – possess unauthorised pistol – possess unregistered firearm – supply of a prohibited drug (MDMA) – attempt to possess a commercial quantity of a border control drug, namely cocaine – penalties – imprisonment
Legislation Cited:

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 Awraham

Details

AGLC: R v Awraham [2019] NSWDC 341
Case: [2019] NSWDC 341
Decision Date: 05 July 2019

CaseChat Overview and Summary

In the case of R v Awraham, the defendant was convicted on multiple charges including possession of an unauthorised pistol, possession of an unregistered firearm, supply of a prohibited drug (MDMA), and attempting to possess a commercial quantity of a border control drug, namely cocaine. The case was heard in a relevant Australian court, where the defendant pleaded guilty to all charges.

The court had to determine appropriate sentences for each offence, taking into account the defendant's plea of guilty which warranted a 25% discount on the sentences. The legal issues revolved around the appropriate length of sentences considering the severity of the offences and the mitigating factor of the plea of guilty. The court also needed to ensure that the sentences were cumulatively just and proportionate to the crimes committed.

The court applied the discount for the plea of guilty to each offence. For the possession of an unauthorised pistol, the court imposed a head sentence of 3 years with a non-parole period of 1 year 11 months. For the possession of an unregistered firearm, the court imposed a sentence of 18 months. The supply of a prohibited drug (MDMA) resulted in a sentence of 2 years and three months. The most severe charge, attempting to possess a commercial quantity of a border control drug, led to a head sentence of 7 years 6 months with a non-parole period of 5 years and 15 days. The sentences were backdated to the date of the defendant's custody, and the cumulative effect of the sentences was considered in determining the overall effective sentence.

The final orders included a non-parole period of 6 years, 6 months and 15 days, and a head sentence of 9 years. The defendant will become eligible for parole on 6 November 2024. The period of accumulation was set at 18 months.

Orders

Orders of the court

You are convicted of the offences of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act 1996, supply of a prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 and attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995.

For the offence of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, after applying a discount of 25% for the plea of guilty, I impose a head sentence of 3 years, with a non-parole period of 1 year 11 months. The sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody. The non-parole period expires on 22 March 2020, and the head sentence expires on 22 April 2021.

For the offence of possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act, after applying a discount of 25% for the plea of guilty, I impose a sentence of 18 months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody, and will expire on 22 October 2019.

For the offence of supplying prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985, after applying a discount of 25% for the plea of guilty, I impose a sentence of 2 years and three months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody, and will expire on 22 July 2020.

For the offence attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995, after applying a 25% discount for the plea of guilty, I impose a head sentence of 7 years 6 months, with a non-parole period of 5 years and 15 days commencing from 23 October 2019. The head sentence will expire on 22 April 2027 and the non-parole period will expire on 6 November 2024.

The period of accumulation is 18 months.

The overall effective sentence I impose consists of a non-parole period of 6 years, 6 months and 15 days commencing from 23 April 2018, and a head sentence of 9 years. You will become eligible to be released on parole on 6 November 2024.

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 Awraham [2019] NSWDC 341

Most Recent Citation

Awraham v R (Cth) [2021] NSWCCA 241

Cases Citing This Decision

Awraham v R (Cth) [2021] NSWCCA 241
Citation 1 (Para 11)

…ts, and the fact that there was some independent support for the evidence of the applicant’s rehabilitation. 8. R v Awraham [2019] NSWDC 341 at [100]. 9. R v Awraham [2019] NSWDC 341 at [100]. 10. R v Awraham [2019] NSWDC 341 at [99].…
R v To [2020] NSWDC 923
Citation 2 (Para 80)

…In R v Awraham [2019] NSWDC 341, a controlled delivery in that case of some 2.1 kilograms pure of cocaine, accompanied by other offences, including possession of an unregistered firearm, possession of an unauthorised pistol and supply of MDMA pursuant to the State provisions, was dealt with on sentence by his Honou…

See all citing cases →

Cases Cited

Hughes v R [2018] NSWCCA 2
Citation 1 (Para 3)

…f continuing disregard for the law which would have aggravated the offence and eliminated a submission that the offence was an aberration: Xiao v R [2018] NSWCCA 2 at [153-154];…
Director of Public Prosecutions (Cth) v Vinod Thomas Director of Public Prosecutions (Cth) v Leung Hang Wu [2016] VSCA 237
Citation 2 (Para 71)

…ortant factor in sentencing offenders who commit offences involving attempted drug possession and the possession of firearms. 1. DPP (Cth) v Thomas [2016] VSCA 237.…
R v Robinson [2014] NSWCCA 12
Citation 3 (Para 78)

…that he is unlikely to reoffend. As such he has reformed himself and the court is invited to extend additional leniency as a result. In R v Robinson [2014] NSWCCA 12, the court found that it was within the discretion of the court to extend leniency where that leniency may lead to reform. The court stated at [56]:…
R v Tran [2013] NSWCCA 136
Citation 4 (Para 85)

…comparative principles and would assist the court in determining an appropriate sentence. He refers to R v Karan [2013] NSWCCA 53, and R v Aaron Tran [2013] NSWCCA 136 (with respect to the sentence of Mr Aaron Tran). He further submits that even a single comparable case can be of some assistance in determining an ap…
R v Karan [2013] NSWCCA 53
Citation 5 (Para 85)

…its that the following cases involve comparative principles and would assist the court in determining an appropriate sentence. He refers to R v Karan [2013] NSWCCA 53, and R v Aaron Tran [2013] NSWCCA 136 (with respect to the sentence of Mr Aaron Tran). He further submits that even a single comparable case can be o…
Muldrock v The Queen [2011] HCA 39
Citation 6 (Para 94)

…As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:…
Do v R [2010] NSWCCA 182
Citation 7 (Para 67)

…nder, rather than in a public place where it could be accessed by others, he submits is a relevant matter to take into account on sentence. In Do v R [2010] NSWCCA 182, the offender was in possession of a loaded and unsecured pistol in an urban area. The possession of the pistol created a high risk to the safety of…
R v Jarrold [2010] NSWCCA 69
Citation 8 (Para 105)

…ere should be some accumulation between the Commonwealth offence and the State offences, which was agreed between the parties. 4. R v Jarrold [2010] NSWCCA 69 at [56].…
Stanford v R [2007] NSWCCA 73
Citation 9 (Para 68)

…As to specific deterrence, Mr Edwards submits that in R v Stanford [2007] NSWCCA 73, the court concluded that personal deterrence and the protection of the community had little if any part to play in the determination of an appropriate sentence when there was a demonstrated rehabilitation, as is demonstrated here.…
Cahyadi v R [2007] NSWCCA 1
Citation 10 (Para 103)

…In Cahyadi v R [2007] NSWCCA 1 at [27], the NSWCCA said the following regarding the principal of totality:…
Markarian v The Queen [2005] HCA 25
Citation 11 (Para 95)

…evant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen [2005] HCA 25.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 12 (Para 104)

…ct and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 [2002] NSWCCA 518 at [39]–[42]. This has the effect of increasing the sentence that would otherwise have been imposed for the principal offences, although I note that in…
Wong v The Queen [2001] HCA 64
Citation 13 (Para 41)

…what was being imported is a relevant consideration in determining the objective seriousness of the offending: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at [64]. In this matter under the Criminal Code Regulations 2002 (Cth), a commercial quantity of cocaine is 2 kg. The offender attempted to possess 215…
R v Olbrich [1999] HCA 54
Citation 14 (Para 37)

…taken to ensure that the shorthand description of the offender’s role does not obscure the assessment of what he actually did: The Queen v Olbrich (1999) 199 CLR 270.…
Mill v The Queen [1988] HCA 70
Citation 15 (Para 102)

…der whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending. [3] 3. Mill v The Queen (1988) 166 CLR 59 at [63].…
Veen v The Queen (No 2) [1988] HCA 14
Citation 16

…383 The Queen v Olbrich (1999) 199 CLR 270 Thorn v R (2009) 198 A Crim R 135 Tyler v R (2007) 173 A Crim R 458 Veen v The Queen [No 2] (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 Xiao v R [2018] NSWCCA 2 Category: Sentence Parties: Regina (Crown) Awraham (…
R v De Simoni [1981] HCA 31
Citation 17 (Para 58)

…High Court took in Olbrich . Mr Edwards says that the court in Olbrich at [18] emphasised, with reference to the decision in The Queen v De Simoni (1981) 147 CLR 383, the importance of the sentencing judge focusing on the crime charged. Mr Edwards notes that in the present case there is no evidence before the court…
The Queen v Olbrich [1999] HCA 5418
Citation 18 (Para 37)

…[141]. Care must be taken to ensure that the shorthand description of the offender’s role does not obscure the assessment of what he actually did: The Queen v Olbrich (1999) 199 CLR 270.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 33, 3A, 44, 5
6 mentions (from Para 104)
Firearms Act 1996 (TAS) 36, 39, 7
4 mentions (from Para 1)
Poisons and Therapeutic Goods Act 1966 (NSW) 16
2 mentions (from Para 5)
Crimes Act 1914 (Cth)
1 mention (from Para 35)
Criminal Code Regulations 2002 (Cth)
1 mention (from Para 41)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 3)
Law Enforcement (Powers and Responsibility) Act 2002 (NSW)
1 mention (from Para 21)
Trafficking Act 1985 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	R v Awraham [2019] NSWDC 341
Hearing dates:	03 May 2019, 5 July 2019
Date of orders:	05 July 2019
Decision date:	05 July 2019
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	You are convicted of the offences of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act 1996, supply of a prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 and attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995. For the offence of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, after applying a discount of 25% for the plea of guilty, I impose a head sentence of 3 years, with a non-parole period of 1 year 11 months. The sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody. The non-parole period expires on 22 March 2020, and the head sentence expires on 22 April 2021. For the offence of possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act, after applying a discount of 25% for the plea of guilty, I impose a sentence of 18 months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody, and will expire on 22 October 2019. For the offence of supplying prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985, after applying a discount of 25% for the plea of guilty, I impose a sentence of 2 years and three months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody, and will expire on 22 July 2020. For the offence attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995, after applying a 25% discount for the plea of guilty, I impose a head sentence of 7 years 6 months, with a non-parole period of 5 years and 15 days commencing from 23 October 2019. The head sentence will expire on 22 April 2027 and the non-parole period will expire on 6 November 2024. The period of accumulation is 18 months. The overall effective sentence I impose consists of a non-parole period of 6 years, 6 months and 15 days commencing from 23 April 2018, and a head sentence of 9 years. You will become eligible to be released on parole on 6 November 2024.
Catchwords:	SENTENCING – Commonwealth and State offences – possess unauthorised pistol – possess unregistered firearm – supply of a prohibited drug (MDMA) – attempt to possess a commercial quantity of a border control drug, namely cocaine – penalties – imprisonment
Legislation Cited: