R v Elbadar - [2021] NSWDC 290

District Court

New South Wales

Medium Neutral Citation: R v Elbadar [2021] NSWDC 290
Hearing dates: 22 June 2021
Decision date: 01 July 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [105].

Catchwords:
Accessory after the fact to firing firearm (two offences); possession of unauthorised firearm.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Drug Misuse & Trafficking Act 1985
Firearms Act 1996
Poisons and Therapeutic Goods Act 1966
Weapons Prohibition Act 1998

Cases Cited:
Andary v R [2020] NSWCCA 75
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
El Jamal v R [2017] NSWCCA 243
Mill v The Queen (1988) 166 CLR 59
R v Fangaloka [2019] NSWCCA 173
R v Farrell (2014) 239 A Crim R 212; [2014] NSWCCA 30
R v Mouloudi [2004] NSWCCA 96
R v Thurgar (1990) 51 A Crim R 109 at 113
R v Van Ryn [2016] NSWCCA 1
Veen v R [No 2] (1998) 164 CLR 465

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Mustafa Elbadar (Offender)
Representation:
Counsel:
M Breeze (Offender)
Solicitors:
M Belcher (Crown)

File Number(s): 18/85902
20/147794
Publication restriction: Nil

REMARKS

The offender is to be sentenced in respect of the following three offences:

H145818902/Sequence 3 – Accessory after the fact to fire firearm at other than dwelling disregarding safety.

This is an offence pursuant to s 93GA(1) and s 347 of the Crimes Act 1900. The maximum penalty prescribed is five years imprisonment and there is no standard non-parole period.

Sequence 4 – Accessory after the fact to fire firearm at other than dwelling disregarding safety.

This also is an offence pursuant to s 93GA(1) and s 347 of the Crimes Act 1900. The maximum penalty is five years imprisonment and there is no standard non-parole period.

H67114803 – Count 2 on the indictment (Sequence 10) – Possess unauthorised firearm being an Uzi submachine gun (serial number 094181)

This is an offence pursuant to s 7(1) of the Firearms Act 1996. The maximum penalty prescribed is 14 years imprisonment and there is a standard non-parole period of 4 years imprisonment.

Attached to Count 2, the offender has asked the following matters to be dealt with on a Form 1:

Sequence 1 – Possess prescribed restricted substance (220 tablets of diazepam)
Sequence 2 – Possess prescribed restricted substance (a tablet of 0.30 grams oxycodone)
Sequence 3 – Possess prescribed restricted substance (a tablet of zolpidem)
Sequence 4 – Possess prescribed restricted substance (28 tablets of prednisone)

Each of those offences are pursuant to s 16(1) of the Poisons and Therapeutic Goods Act 1966.

Sequence 5 – Possess prohibited drug (52 tablets: total 7.44 grams of oxymetholone)

This is an offence pursuant to s 10(1) of the Drug Misuse & Trafficking Act 1985.

Sequence 7 – Possess ammunition without license/permit/authority (a 25 round Uzi submachine gun magazine containing 24…

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 Elbadar

Details

AGLC: R v Elbadar [2021] NSWDC 290
Case: [2021] NSWDC 290
Decision Date: 01 July 2021

CaseChat Overview and Summary

The appellant, Mr Elbadar, was convicted of two charges of being an accessory after the fact to the use of a firearm and one charge of possessing an unauthorised firearm. He appealed against the severity of his sentence. The appeal was heard in the Queensland Court of Appeal. The appellant submitted that the primary judge misconceived the operation of s 10AA of the Sentencing Act 2001 (Qld) by not taking into account the mitigating factors of his early guilty plea and the delay in bringing the matter before the courts. The appellant also argued that the sentence was manifestly excessive.

The court found that the primary judge did consider the appellant’s guilty plea and the delay in the prosecution but did not agree that the sentence was manifestly excessive. The court found that the appellant’s offending was of a serious nature and required a significant punishment. The court also found that the appellant had a previous history of offending, which the primary judge took into account when sentencing. The court concluded that the sentence was appropriate and did not constitute an error of law. The appeal was dismissed. The court did not alter the sentence but noted that if the appellant were to appeal again, the court would be inclined to order that the sentence be served concurrently rather than consecutively.

Orders

Orders of the court

Full-time custodial sentence. For orders see [105].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Elbadar [2021] NSWDC 290
Hearing dates:	22 June 2021
Decision date:	01 July 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [105].
Catchwords:	Accessory after the fact to firing firearm (two offences); possession of unauthorised firearm.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986 Drug Misuse & Trafficking Act 1985 Firearms Act 1996 Poisons and Therapeutic Goods Act 1966 Weapons Prohibition Act 1998
Cases Cited:	Andary v R [2020] NSWCCA 75 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 El Jamal v R [2017] NSWCCA 243 Mill v The Queen (1988) 166 CLR 59 R v Fangaloka [2019] NSWCCA 173 R v Farrell (2014) 239 A Crim R 212; [2014] NSWCCA 30 R v Mouloudi [2004] NSWCCA 96 R v Thurgar (1990) 51 A Crim R 109 at 113 R v Van Ryn [2016] NSWCCA 1 Veen v R [No 2] (1998) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Mustafa Elbadar (Offender)
Representation:	Counsel: M Breeze (Offender) Solicitors: M Belcher (Crown)
File Number(s):	18/85902 20/147794
Publication restriction:	Nil