R v Hijazi

Case •

[2021] NSWDC 330

•

16 July 2021

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Hijazi [2021] NSWDC 330
Hearing dates: 11 May 2021
12 May 2021
13 May 2021
17 May 2021
25 June 2021
Date of orders: 16 July 2021
Decision date: 16 July 2021
Jurisdiction:Criminal
Before: Coleman SC DCJ
Decision:

I make orders as follows:

1. I find the offender, Mohamed Hijazi, not guilty of the related offences which I have dealt with under s 167 of the Criminal Procedure Act 1986 (NSW), namely the three offences under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and the additional offence under Reg 34(2) of the Road Transport (Vehicle Registration) Regulation 2017 (NSW) (Sequences 20, 21, 22 and 24).

2. In accordance with his guilty pleas, the offender, Mohamed Hijazi, is convicted of Counts 3, 4 and 5 on the indictment dated 7 May 2021 (Sequences 1, 4 & 11) and the two related offences (Sequences 5 and 23).

3. The offender is sentenced to full‑time imprisonment for a term of 17 months, with a non‑parole period of 13 months. Taking into account time already served, that sentence is backdated to commence from 29 May 2021. The head sentence expires on 28 October 2022 and the offender is eligible for parole on 28 June 2022 (Sequences 1, 2, 4, 5, 11 & 23).

Catchwords:

Criminal Law – Firearms Act 1996 (NSW) s 7(1) – Weapons Prohibition Act 1998 (NSW) s 7(1) – Multiple Firearms & Weapons Offences – Breach of Multiple Prohibition Orders – Determination of Additional Matters Dealt with under ss 166 & 167 of the Criminal Procedure Act 1986 (NSW) – Multiple Prior Offences (Different Type) – Sentencing – General Sentencing Principles – Objective Seriousness

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5, 21A(2)(d), 22, 25D(2)(c), 44(2), 53A, 66(1)

Criminal Procedure Act 1986 (NSW) ss 166, 167

Drug Misuse and Trafficking Act 1985 (NSW) s 10(1)

Firearms Act 1996 (NSW) ss 4D(3), 7, 7(1), 39(1), 39(1)(a), 73(1), 74A, 74(6)

Road Transport (Vehicle Registration) Regulation 2017 (NSW) r 34(2)

Weapons Prohibition Act 1998 (NSW) ss 7(1), 33(1), 34(1)

Cases Cited:

Attorney‑General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146

Ibbotson (A pseudonym) v R [2020] NSWCCA 92

Jacob v R [2014] NSWCCA 65

Mandranis v R [2021] NSWCCA 97

Mariam v R [2017] NSWCCA 292

Pereira v DPP (1988) 35 A Crim R 382

PG v R [2017] NSWCCA 179

R v AZ [2011] NSWCCA 43

R v Barnier [2001] NSWCCA 459

R v Filippetti (1978) 13 A Crim R 335

R v Hinton (NSWCCA, 19 March 1976, unreported)

R v Krstic [2005] NSWCCA 391

R v Paddison [2021] NSWDC 291

R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170

Category:Sentence
Parties: Regina (Crown)
Mohamed Hijazi (Offender)
Representation: Mr A McMaster, Crown Prosecutor (Crown)
Mr I Lloyd QC with Mr P Lange of Counsel (11-13 and 17 May 2021); Mr P Lange (25 June and 16 July 2021) (Mohamed Hijazi)
Ms R Howard, Solicitor (Crown)
Ms R Kadidi, Solicitor (Mohamed Hijazi)
File Number(s): 2018/00339165
Publication restriction: N/A

Judgment on sentence

OFFENCES

  1. Mr Mohamed Hijazi (who is also known as Mick Hijazi), appears today for sentence after pleas of guilty in relation to three counts, being Counts 3, 4 and 5 on the indictment dated 7 May 2021. I will refer to him as the offender in these remarks even though, as I set out below, he is the accused in respect to certain related matters for which he has pleaded not guilty.

  2. The offender was tried, but found to be not guilty, of a further three counts on that indictment (Counts 1, 2 and 6) following a trial by judge alone which was heard before me. The reasons for my findings in relation to those counts are contained in my Judgment dated 17 May 2021. I mention this as the evidence received in that hearing and some of the matters I dealt with in that judgment have relevance to these sentence proceedings and to matters I have been asked to deal with under s 167 of the Criminal Procedure Act 1986 (NSW).

  3. The first of the three counts to which the offender has pleaded guilty is an offence under s 7 of the Firearms Act 1996 (NSW), namely, possessing a pistol without being authorised to do so by licence or permit (the “count 3 offence”). In this case, the subject pistol was a Gonher cap gun, which comes within the definition of a firearm for the purposes of the Act: s 4D(3) Firearms Act 1996 (NSW).

  4. The offences in Counts 4 and 5 both arise under s 7(1) of the Weapons Prohibition Act 1998 (NSW), being the offence of possessing a prohibited weapon without a permit. For Count 4, the prohibited weapon was a Poelang Guillotine X crossbow (the “count 4 offence”) and in relation to Count 5, the prohibited weapon was a “Min Sheng” flick knife (the “Count 5 offence”).

  5. All three of the offences individually carry maximum sentences of 14 years’ imprisonment: s 7(1) of the Firearms Act 1996 (NSW); s 7(1) of the Weapons Prohibition Act 1998 (NSW). The Count 3 offence has a standard non‑parole period of 4 years’ imprisonment, whereas the offences under Counts 4 and 5 each carry standard non‑parole periods of 5 years’ imprisonment: Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  6. The offender was initially taken into custody on 5 November 2018 and granted bail on 3 April 2019. He was later taken into custody in relation to other offences arising from matters which are not the subject of these proceedings and has remained in custody since, although his bail status in relation to the offences for which he is sentenced today remained unchanged until it was revoked by me at the sentencing hearing on 25 June 2021.

Other Matters

  1. In addition to the principal offences, there are a number of related and back‑up offences arising under s 166 of the Criminal Procedure Act 1986 (NSW) before the Court. The offender has pleaded guilty to some of those matters, namely:

  1. Pursuant to s 74(6) of the Firearms Act 1996 (NSW): residing in a premises where firearms were found whilst being subject to a Firearms Prohibition Order (FPO); again relating to the Gonher cap gun which is the subject of the Count 3 offence (Sequence 23); and

  2. Pursuant to s 34(1) of the Weapons Prohibition Act 1998 (NSW): possessing a prohibited weapon in contravention of a Weapons Prohibition Order (WPO); being the Poelang Guillotine X crossbow and the Min Sheng flick knife which are the subject of Counts 4 and 5 respectively (Sequence 5).

  1. The offender has also requested that the Court take into account on a Form 1 the offence under s 39(1)(a) of the Firearms Act 1996 (NSW): failing to safely keep a firearm, being the Gonher cap gun which is the subject of the Count 3 offence (Sequence 2).

  2. The parties ask the Court to deal with the offender’s guilty pleas to the two further offences under s 74(6) of the Firearms Act 1996 (NSW) and s 34(1) of the Weapons Prohibition Act 1998 (NSW) summarily pursuant to s 167 of the Criminal Procedure Act 1987 (NSW).

  3. The Court was also asked to deal with a further four back‑up offences under s 167 of the Criminal Procedure Act 1987 (NSW), to which Mr Hijazi has pleaded not guilty, namely:

  1. Pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), three charges for the possession of the prohibited drugs testosterone, Nadrolone and Trenbolone (Sequences 20, 21 and 22); and

  2. Pursuant to s 34(2) of the Road Transport (Vehicle Registration) Regulation 2017 (NSW), for possessing number plates that were not issued by a state or territory of Australia but could be mistaken for or resemble number plates so issued (Sequence 24).

  1. With the leave of the Court, those contested matters were the subject of further oral and documentary evidence (additional to that tendered at the trial before me) at the sentencing hearing on 25 June 2021. I will provide my determination and reasons in relation to those matters after setting out agreed factual matters. I will then make my findings with respect to these contested charges as any guilty verdicts will be relevant to the overall sentence I impose.

FACTS

  1. The facts which follow are extracted from the sentence facts in the Crown bundle (Exhibit 1), which I note Defence counsel indicated were agreed at the sentencing hearing.

  2. As at November 2018, the offender was residing with his de facto partner and three children at an address in Middleton Grange, New South Wales (“the premises”). The premises consisted of a two‑storey residential dwelling with a detached garage at the rear. The offender was renting those premises through a real estate agency and it is understood that the lease permitted employees of the offender to occupy the premises from time to time. However, it is agreed that the offender had occupied the property from 20 September 2018.

  3. At all relevant times, the offender did not hold a firearms licence or permit in New South Wales authorising his possession or use of a firearm, prohibited firearms, ammunition or prohibited weapons. He was also subject to both a Firearms Prohibition Order (FPO) under s 73(1) of the Firearms Act 1996 (NSW) and a Weapons Prohibition Order (WPO) under s 33(1) of the Weapons Prohibition Act 1998 (NSW).

  4. At about 8:40am on 1 November 2018, NSW Police attended the premises for the purposes of conducting a search under s 74A of the Firearms Act 1996 (NSW). Shortly before 9:00am, the police approached the front door of the premises and announced their presence. In the absence of any response, the police gained entry to the house via an open side laundry door and commenced to search the premises. The search was video recorded. Exhibit 6 contains an edited version of a recording of part of that search, which was played before the Court during the sentencing hearing. A more detailed recording of the search was played to the Court at the trial.

  5. Following unsuccessful attempts to contact the offender and his partner via telephone, the offender’s partner arrived at the premises. She advised police that the offender had gone to work and was a few hours away. She remained present at the premises for the remainder of the search and answered questions about property located and seized by police.

Count 3

  1. The police search commenced in the laundry, kitchen and lounge/dining rooms. On the top shelf of a laundry cupboard, police located a plastic bag containing medical scripts in the name of “Mohamed Hijazi”, alcohol wipes and a “Gonher” brand cap gun which had an appearance that imitated a “Beretta” brand 84FS Cheetah self‑loading pistol (in the sense that it displayed similar external features such as form, size and appearance). The “Gonher” brand cap gun is not designed to propel a projectile by means of explosive, however it substantially imitates a firearm (a pistol) for which a licence or permit is required in NSW. As I have already noted, that cap gun falls within the definition of a firearm for the purposes of s 4D(3) Firearms Act 1996 (NSW) and there is no dispute in that regard.

  2. Those are the agreed facts which are relevant for the purposes of Count 3, as well as the related offences under s 39(1)(a) (the Form 1 offence – Sequence 2) and 74(6) of the Firearms Act 1996 (NSW) (Sequence 23).

Count 4

  1. As the search continued, police also located a “Min Sheng” flick knife of unknown manufacture in a chest of draws in the dining room near the kitchen. The knife consisted of a 106mm long metal blade held under spring tension in the handle that “flicks” open using a button on the handle. It is agreed that this item is a prohibited weapon for the purposes of the Weapons Prohibition Act 1998 (NSW).

  2. Those are the relevant agreed facts for the purposes of Count 4 on the indictment, as well as the related offence under s 34(1) of the Weapons Prohibition Act 1998 (NSW) (Sequence 5).

Count 5

  1. The police then conducted a search of the master bedroom of the premises, which the offender’s partner (who was then present at the premises and answered questions asked of her by the police) indicated was occupied by her and the offender. Under the bed, police located and seized a Poelang Guillotine X crossbow consisting of a stock with a groove designed to direct or propel an arrow or bolt by means of a tensioned bow string that is released by a trigger mechanism. Eight bolts in a quiver were also located which were suitable for use with the crossbow. The bolts were suitable for use with the crossbow. The offender’s partner denied any knowledge of the crossbow and the offender later mentioned to police that he had bought it in South Australia.

  2. Police were later provided with a letter from a removalist, Mr Kevin Dowse, in which he states that he was engaged by the offender to move items from a gym owned by the offender in South Australia to an address in Sydney. Mr Dowse adds that he had accidentally relocated a crossbow which was meant to remain in South Australia. He says that he was contacted by the offender regarding same and agreed to return it to South Australia at the next available opportunity.

  3. Those are the relevant agreed facts for the purposes of Count 5 on the indictment, as well as the related offence under s 34(1) of the Weapons Prohibition Act 1998 (NSW) (Sequence 5).

Other Matters

  1. I also make the following findings beyond reasonable doubt either from the evidence presented to me or based on the agreed facts.

  2. During the search of the kitchen and lounge/dining area, police also located a cardboard shoebox on a lounge which contained what appeared to be a number of prohibited drugs. Upon further testing by the NSW Forensic & Analytical Science Service (NSW FASS), those drugs were determined to be the following (per Exhibits 2 and 3):

  1. Two crimp sealed glass vials containing 15.5 grams of testosterone enthanate between them and a further 18 glass syringes containing 250mg of testosterone emanthate each, giving a total of 60.5 grams of testosterone (Sequence 20);

  2. Two crimp sealed glass vials containing a total of 15.4 grams of Nandrolene (Sequence 21); and

  3. Two crimp sealed glass vials containing a total of 15.7 grams of Trenbolone (Sequence 22).

  1. The offender resided in the premises with his de facto partner and children. He had recently relocated there from Adelaide. His partner had also recently relocated to the premises from another residence in Sydney. It was apparent from the video recordings of the search that some removalist boxes had not, at the time of the search, been unpacked.

  2. After searching the house and garage, police approached a silver Toyota Hilux near the premises which was used by the offender. The offender’s partner had also confirmed that fact to police. After gaining access to the vehicle using keys which had been located inside the house, police found stickers which appeared to resemble New South Wales number-plates within the glove box (Sequence 24). Those stickers are depicted in Exhibit 4. Exhibit 5 contains an edited version of a recording of part of the search of the Hilux vehicle. Police also located a paper with a school crest and the names of the offender’s children within the vehicle.

  3. Police later arranged to meet with the offender at Liverpool Police Station on 5 November 2018. The offender attended alongside his legal representative and was cautioned, arrested and charged. The offender declined to participate in an electronically recorded interview but consented to giving the police a DNA sample in the form of a buccal swab.

  4. Those are the relevant facts which I find for the related offences under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and s 34(2) of the Road Transport (Vehicle Registration) Regulation 2017 (NSW) (Sequences 20, 21, 22 and 24).

  5. I note that the FPO and WPO were served personally on the offender on 11 May 2018. At the time of service, he was taken through them and the effect of them was explained to him.

DETERMINATION OF CONTESTED MATTERS UNDER SECTION 166

  1. As I have indicated, of the six matters on the s 166 certificate, there are four matters to which the offender has pleaded not guilty that the parties have asked the Court to deal with pursuant to s 167 of the Criminal Procedure Act 1986 (NSW). Three of those matters relate to allegations that he was in possession of prohibited drugs (being steroids) and the fourth is that he unlawfully possessed a number-plate not issued in New South Wales that resembled such a number-plate so issued. I will deal with each of the prohibited drug matters and the number-plate matter separately.

  2. It is accepted that the Court must deal with these matters on a summary basis, with the penalties applicable as if they were in the Local Court.

Possession of Prohibited Drugs

  1. The offender is charged with three counts of possessing a prohibited drug (namely Testosterone, Nandrolene and Trenbolone) in contravention of s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The Crown’s evidence in respect to these three charges (Sequences 20, 21 and 22) is contained on the video disc recording of the search of the premises on 1 November 2018 (Exhibit 6). That evidence shows that the drugs were found in a shoebox on a couch in a living area of the premises adjacent to the kitchen. The drugs were in boxes, vials and packaged syringes (prefilled with the relevant drug).

  2. Also in the shoebox was a novelty photo in a frame, being a photo of the offender with the words “Wanted Dead or Alive”. There was also a medical attendance certificate for the offender from 2007.

  3. The Crown also tendered a certificate of analysis of the substances found at the premises (Exhibit 2) and there is no dispute that the substances found are “prohibited substances” within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW).

  4. The real question in issue between the parties is whether or not I can be satisfied that the offender was in possession of the prohibited drugs.

  5. There is no definition of “possession” in the Drug Misuse and Trafficking Act 1985 (NSW). Whilst the location of a prohibited drug within a residence, coupled with knowledge and sanction by an accused of its presence there are factors which may in some cases be ingredients which form a basis for finding that those drugs are the possession of a particular individual, they do not necessarily constitute possession in all cases: R v Hinton (NSWCCA, 19 March 1976, unreported) per Street CJ. It can also be observed that the number of other occupants or individuals with access to the subject residence is often a key consideration when determining issues of possession in matters of this type: R v Filippetti (1978) 13 A Crim R 335 at [338]; R v Barnier [2001] NSWCCA 459.

  6. The Crown accepts that its case with respect to the offender being in possession of the drugs is a circumstantial one. The Crown submits that the following facts, none of which standing alone would be determinative of guilt but which give rise to the only reasonable inference from a combination of them, show that the offender is guilty beyond reasonable doubt:

  1. A cardboard shoebox was found sitting on a couch;

  2. The couch was in the living area that formed part of the open‑plan area that included the kitchen;

  3. Inside the box were the drugs;

  4. The drugs were in commercial packaging that caused them to have some bulk in their size; and

  5. Also inside the box were personal items linked to the offender, namely a medical certificate and a “Wanted Dead or Alive” novelty photograph of the offender.

  1. The Crown submits that there was no suggestion that one of the other residents of the house (the offender’s partner or his children) might have placed the items in the shoebox without the knowledge of the offender and that there is no reasonable possibility that this occurred.

  2. The Crown submits that whilst it can never exclude the existence of a bare possibility that someone else placed the drugs into the shoebox (with the medical certificate and novelty item linked to the offender) without the knowledge of the offender, the Crown submits that this is not a reasonable possibility. The only reasonable inference based upon the combination of the circumstances, the Crown submits, is that the offender was the person who possessed the drugs.

  1. The Crown submits that the bare possibility that someone other than the offender might have placed the drugs into the shoebox at the gym in Adelaide and that they were then transported to his house is not a reasonable inference. The Crown notes that the shoebox was found sitting on a couch in the offender’s premises, not in a removalist box.

  2. The Crown submits that the bare possibility that someone other than the offender might have placed those items in the box at the home of the offender without his knowledge is not a reasonable inference. The Crown asked the Court to infer that the drugs had some value (in the sense of utility) to whoever possessed them. The Crown asked the Court to infer that the person who possessed those drugs would store them somewhere that they were unlikely to be located by someone else and used, sold, discarded. The Crown submits that it was highly unlikely that the items were placed in the shoebox by someone else together with documents linked to the offender, without his knowledge.

  3. Counsel for the offender submitted that the Court could not be satisfied beyond reasonable doubt that the offender was in possession of the drugs. That is because the Crown cannot prove beyond reasonable doubt that the offender had knowledge of, custody of or control over the drugs. Counsel for the offender submitted that the Court should not place too much emphasis on the fact that the medical certificate and novelty photograph, which might be thought to be items linked to the offender, were also found in the shoebox. That is because the medical certificate was of some age and would now be of no use to the offender and also because the other items found in the shoebox could have been just placed there by anyone, rather than by a deliberate act of putting those things belonging to the offender in one place.

  4. Counsel for the offender reminded the Court that the offender’s partner and his son resided at the house and that other people would come and go frequently and unsupervised. He submitted that the Crown cannot prove that the offender had either joint or exclusive possession of the drugs in circumstances where other people resided at the house, the items appear to have been thrown together and other people had access to the house including the area where the shoebox was found. He also referred to the offender’s evidence, where he specifically denied knowledge and ownership of the drugs.

  5. In my opinion, the Crown has failed to discharge its burden to prove beyond reasonable doubt that the offender was in possession of the drugs. I cannot accept the Crown’s submission that the only rational inference to draw, having regard to the location of the shoebox where the drugs were found and the other items found in the box linking the offender to the contents of the box, is that the offender had knowledge and custody of those drugs. The offender denied he knew of or owned the drugs. Whilst I had some concerns with the veracity of his evidence as a whole, the fact is that other people had access to the premises where the drugs were found both before and after the offender moved in. I cannot rationally exclude an inference that one of those people may have placed the drugs in the box.

  6. As I have said, the offender denied that he knew the drugs were in the house and that they were his. The Crown was required to prove beyond a reasonable doubt that the offender had actual knowledge of the drugs and in circumstantial cases relying on inference, the offender’s actual knowledge must be the only rational inference available: Pereira v DPP (1988) 35 A Crim R 382. It has not done so and I cannot find this is so.

  7. Nor can I exclude as a rational inference that the drugs were placed in the box by some other person in Adelaide and then transported to the offender’s residence in Sydney. The evidence established that this occurred with the crossbow. There is also evidence from Ms Evans that there was steroid use in the offender’s gym in Adelaide where some boxes were collected by the removalist and brought to the offender’s residence. True it is that the shoebox containing the drugs was not found in a removalist’s box, but I have already referred to the other people residing in the premises and coming and going and I cannot exclude as a rational inference the possibility that one of them apart from the offender may have removed the shoebox from a removals box.

  8. In the circumstances, I find the offender not guilty of each of the three charges with respect to possession of the drugs.

The Number Plate Stickers

  1. As set out above, the facts in respect of this charge indicate that adhesive stickers containing letters and numbers which resemble those that would be found on a number plate were found in the glove box of the Hilux vehicle when searched by the police.

  2. The offender gave evidence that he used the car and had seen those stickers rolled up in the glove box of the car. His evidence as to who owned the car was contradictory. At first, he said that the car was owned by a Mr Frank Esber and then he said it was owned by the gym. He said that Mr Esber left the car in Sydney and used it when he came to town from Western Australia. The offender could give no satisfactory answer as to why a car that was owned by a business which operated in South Australia, or a person from Western Australia, had been bought and registered in New South Wales with New South Wales license plates.

  3. There also arises in respect of this charge a legal issue as to whether or not the offender was in possession of the items the subject of the charge. Whilst there is significant doubt about that, I do not think, for reasons I shall explain, it is necessary to resolve this question in relation to this charge.

  4. Regulation 34 of the Road Transport (Vehicle Registration) Regulation 2017 (NSW) provides as follows:

  1. A person is guilty of an offence if the person is in possession, without a lawful excuse, of number-plates issued by or under the law of New South               Wales or any other State or Territory;

  2.  A person is guilty of an offence if the person is in possession, without lawful excuse, of number-plates that were not issued by or under the law of               New South Wales or any other State or Territory but that could be mistaken for, or resemble, number-plates so issued.

    1. Thus, reg 34(1) deals with possession of number-plates validly issued by NSW or another State or Territory, whilst reg 34(2) deals with possession of number-plates not so issued.

    2. The dictionary to the Regulation defines “number‑plate” as:

“number‑plate means a number-plate issued under this Regulation.”

  1. Subdivision 2 of the Regulation deals with the issue of number‑plates. Regulation 20 relevantly provides:

  1. If Transport for NSW registers a registrable vehicle, Transport for NSW must assign a distinguishing registration number to the vehicle.

  2. Transport for NSW must, on payment of any applicable fee for the issue of a vehicle number-plate or number-plates, issue--

    (a)   for each motor vehicle registered by Transport for NSW (other than a motor vehicle referred to in paragraph (b) or (c))--2 vehicle number-              plates bearing the registration number assigned to that motor vehicle, and

    (b)   for each motor bike or trailer registered by Transport for NSW--at least 1 vehicle number-plate bearing the registration number assigned to            that motor bike or trailer, and

    (c)   for each other registrable vehicle registered by Transport for NSW--the number of vehicle number-plates that Transport for NSW considers           appropriate.

  3. A vehicle number-plate is to conform to any specifications that Transport for NSW determines and must display the matter "NSW" or the words "New         South Wales", or any other words or matter that may be determined--

    (a)   by Transport for NSW with the consent of the Minister in the case of standard number-plates, or

    (b)   by Transport for NSW in the case of special number-plates.

    …..

    1. It can be noted that reg 20(3) states that a vehicle number‑plate is to conform to any specifications that Transport for NSW determines. The parties have not pointed to, and my research has not turned up any such specifications issued by Transport for NSW with respect to number‑plates.

    2. In order to be guilty of this offence, the Crown must prove beyond reasonable doubt that the offender:

    1. Was in possession of number‑plates;

    2. The number‑plates were not issued by or under the law of NSW or another State or Territory;

    3. The number‑plates could be mistaken for, or resemble number‑plates so issued; and

    4. The offender had no lawful excuse for possession of such number‑plates.

    1. The offender in this case submits that the stickers found in the glove box of the Hilux vehicle are not “number‑plates”. They are, it is submitted, simply stickers which, if affixed to some other material or object in the size or shape of number‑plates (including validly issued number‑plates), may resemble number‑plates. Unless and until they are so affixed, the offender submits that it could not be said that those stickers are or resemble number‑plates as ordinarily understood.

    2. There is force in this submission. Whilst I have no doubt that the stickers found in the glove box of the vehicle were designed to resemble or could be mistaken for what would be number‑plates if stuck over the top of an existing number-plate or on some other object which had the size and dimensions of such a number‑plate, I do not think that in the form in which they are found they could said to be “number‑plates”. They are stickers. As such, I cannot find beyond reasonable doubt that the offender was in possession of “number‑plates” which were not issued in New South Wales but resembled or could be mistaken for such number‑plates.

    3. It may have been different if the wording of reg 34(2) proscribed the possession of things which resembled or could be mistaken for number‑plates issued in New South Wales, however, that is not what the regulation says. It prohibits the possession of number‑plates that were not issued by or under the laws of New South Wales but which could be mistaken for or resemble such plates.

    4. As such, I find the offender not guilty of this offence.

THE OFFENCES FOR SENTENCE

  1. This leaves the Court to sentence the offender for the offences to which he has pleaded guilty. Those offences are:

  1. The offence under s 7 of the Firearms Act 1996 (NSW), namely, possession of the Gonher cap gun without being authorised to do so by licence or permit (Count 3);

  2. Pursuant to s 74(6) of the Firearms Act 1996 (NSW), the offence of residing in a premises where firearms were found whilst being subject to a Firearms Prohibition Order (FPO); again relating to the Gonher cap gun and the Count 3 offence (Sequence 23);

  3. The two offences under s 7(1) of the Weapons Prohibition Act 1998 (NSW), being the offences of possessing a prohibited weapon without a permit, namely a a Poelang Guillotine X crossbow (Count 4) and a “Min Sheng” flick knife (Count 5);

  4. Pursuant to s 34(1) of the Weapons Prohibition Act 1998 (NSW), the offence of possessing a prohibited weapon in contravention of a Weapons Prohibition Order (WPO), namely the Poelang Guillotine X crossbow and the Min Sheng flick knife, which is related to the Count 4 and 5 offences (Sequence 5).

  1. As I have already observed, the offender has also requested that the Court take into account on a Form 1 the offence under s 39(1)(a) of the Firearms Act 1996 (NSW), which is the offence of failing to safely keep a firearm (Sequence 2). That relates to the Gonher cap gun and the Count 3 offence.

OBJECTIVE SERIOUSNESS

  1. There can be no doubt that, having regard to the maximum penalties and the standard non‑parole periods for the principal offences (where they have been prescribed), that the legislature regards offences of this type as very serious. This position is reflected in numerous decisions of this Court and the New South Wales Criminal Court of Appeal, particularly where the offending occurs in the absence of any legitimate purpose for possession of prohibited firearms or weapons (see, for example: R v AZ [2011] NSWCCA 43 at [73]‑[74]; R v Krstic [2005] NSWCCA 391 at [14]; Jacob v R [2014] NSWCCA 65; R v Paddison [2021] NSWDC 291).

  2. I will deal with the objective seriousness of each of the offences separately.

The Cap Gun

  1. Whilst it is true that the cap gun found at the offender’s premises falls within the definition of an imitation firearm and is thus captured by the legislation, the cap gun was not a weapon which was capable of firing a projectile or causing injury or death to another person. This is a matter of significance in assessing the exact objective seriousness of this offence: see Mariam v R [2017] NSWCCA 292 at [22] per Hamill J.

  2. The evidence here indicates that the cap gun was a gift to the offender’s young son from a friend of his. However, I do not think that this further mitigates the objective seriousness of this offence as the offender knew the weapon was in his house and was himself the subject of a Firearms Prohibition Order.

  3. The imitation firearm was located in a plastic bag, out of reach of children, on a shelf in the laundry of the offender’s premises. There is no evidence to establish that there is a connection between the possession of this weapon and any other illegal activity.

  4. In all of the circumstances, I find that the objective seriousness of this offence is at the lower end of the spectrum for such an offence.

  5. There is a separate offence to which the offender has pleaded guilty, namely, being in possession of the imitation pistol in breach of the Firearms Prohibition Order (Sequence 23). This offence carries a maximum penalty of 12 months. I regard this as at the lower end of the objective seriousness for such an offence.

The Crossbow

  1. The crossbow was found in the offender’s premises underneath his bed.

  2. It was fully assembled with a scope and bolts (which effectively constitute the ammunition for the weapon) attached to it. The presence or proximity of ammunition is a relevant factor with respect to the seriousness of the offending: see R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [88].

  3. The offender gave evidence that he purchased the crossbow in South Australia at a Westfield shopping centre. He said he did not know that it was illegal in New South Wales to possess such a weapon. The evidence establishes that the crossbow was inadvertently packed and sent to New South Wales from South Australia. When the offender discovered the weapon had been shipped to New South Wales, he contacted the removalist and made arrangements with the removalist to collect it at the next available opportunity. However, the evidence does not disclose that any further steps were taken by the offender to return the weapon to South Australia or otherwise secure it, dismantle it or deal with that such that it could not be accessed or used until it was collected. The offender knew that the crossbow was under his bed and remained there unsecured, assembled and ready to use for a significant period of time until found during the police search.

  4. The weapon is one which could clearly cause serious injury or death if used. The offender knew others had access to his premises, yet he did nothing to secure the weapon pending its proposed return to South Australia. The possession of this weapon in the circumstances constituted a significant risk to the public.

  5. Whilst the evidence of the offender that he did not know that the weapon was a prohibited one in New South Wales can be taken into account, the fact that he was the subject of a Weapons Prohibition Order and did not take any step to ascertain whether or not such a weapon could be possessed by him in New South Wales, and his failure to take any steps to secure the weapon or ensure it could not be used, reduces any mitigating factor that his ignorance of the law may have on the objective seriousness of this offence.

  6. I assess the objective seriousness of this offence as being at about the mid‑range of seriousness of offences of this type.

The Flick Knife

  1. The flick knife was found in a chest of drawers in the dining room. The evidence of the offender was that he had used this weapon as a tool on his property in South Australia. The evidence discloses that the police who discovered the weapon were themselves unsure whether or not the flick knife was a prohibited weapon.

  2. Nevertheless, the offender was the subject of a Weapons Prohibition Order and accepts that he should not have been in possession of the flick knife.

  3. I assess the objective seriousness of this offence as at the very low end of seriousness for offences of this type.

  4. There is a separate offence with respect to the crossbow and the flick knife for which the offender has pleaded guilty, namely, being in possession of the crossbow in flick knife in breach of the Weapons Prohibition Order (Sequence 5). This offence ordinarily carries with it a maximum penalty of 10 years’ imprisonment, although as I’m dealing with the matter on a summary basis, the maximum penalty is 2 years’ imprisonment. For the reasons I have explained with respect to the crossbow, I regard this offence at about the mid‑range of seriousness.

The Section 166 Matters

  1. The offender also stands to be sentenced for two related and backup offences to which he has pleaded guilty. These are, firstly, possess a prohibited weapon in contravention of the Weapons Prohibition Order (in respect to the possession of the crossbow and the flick knife) and in contravention of s 34(1) of the Weapons Prohibition Act 1998 (NSW) and secondly, residing at premises where the imitation pistol was found whilst being subject to a Firearms Prohibition Order, in contravention of s 74(6) of the Firearms Act 1996 (NSW).

  2. The first of those offences, being dealt with summarily, has a maximum penalty of 2 years’ imprisonment. The second has a maximum penalty of 12 months imprisonment and/or at 50 penalty units. Neither of those offences has a standard non‑parole period.

SUBJECTIVE FEATURES

  1. At the sentencing hearing, the Defence read an affidavit of Ms Brigette Zonta dated 23 June 2021. That affidavit details that Ms Zonta and the offender have been in a de facto relationship for over two decades and have three children together. Ms Zonta notes that the offender has a fourth child from a previous relationship. She endorses the offender as a caring and loving father who supports their family.

  2. The affidavit confirms that Ms Zonta and the offender own a number of businesses, including a gym and a quarry in South Australia. Ms Zonta further notes that the offender owns a commercial building which he has a role in managing, whilst also undertaking a pivotal role in a family run transport business.

  3. The Defence has also tendered two character references from a Mr Ahmed Hijazi (Exhibit 7) and a Mr Thomas Mercuri (Exhibit 8), both of which are dated 23 June 2021.

  4. The reference from Mr Ahmed Hijazi explains that he is the younger brother of the offender, with the offender being the eldest of 12 children. Mr Ahmed Hijazi attests to the offender’s good character, indicating that he is a caring and supportive member of the family who “is always there when anyone needs help with their issues, whether it be family issues or personal issues”. It is further noted that the offender operates a gym in South Australia, which involves personally running his own boxing classes.

  5. In reference to the crossbow, flick knife and cap gun which are the subject of the principal offences in these proceedings, Mr Ahmed Hijazi states that the offender has personally expressed to him that at first, he did not realise that these items were illegal in New South Wales and did not think that they would be because they were legal in South Australia. I note that there is evidence that the offender had at some point moved from South Australia to New South Wales prior to his arrest in relation to these offences. At the trial in these proceedings, the offender also gave oral evidence to the effect that he did not know that those weapons were illegal in New South Wales.

  1. Whilst the brother of the offender gave some evidence of him being contrite with respect to the offences, the offender gave no such evidence directly when he was giving evidence otherwise at the sentence hearing.

  2. As I have noted, the second reference relied upon by the Defence is addressed from a Mr Thomas Mercuri, who indicates that he has known the offender for over 15 years and has a close personal relationship with him and his family. Mr Mercuri also promotes the offender’s good character and passion for boxing, including his training of younger kids who enjoy the sport. The reference then details that the offender has provided support to Mr Mercuri’s family and businesses whilst he was unable to do so himself due to significant medical conditions. Mr Mercuri does not, however, say he is aware of the offender’s other criminal history. As such, in so far as the reference is said to go to the offender’s good character, it is of limited value.

  3. The Crown bundle (Exhibit 1) contains copies of the offender’s criminal history in New South Wales, South Australia, and at the Commonwealth level. That bundle also contains copies of the offender’s custodial record during his time in custody.

  4. Those documents confirm that the offender was born in August 1975 and has a long list of known aliases. He has an extensive criminal history which dates back to June 1990 and includes convictions for breaking and entering, stealing, assault, breaches of apprehended domestic violence orders, stalking and/or intimidating, possessing equipment for administering prohibited unspecified drugs, administering unspecified prohibited drugs, damaging property and giving false/misleading evidence to a commission. The offender has previously served multiple terms of full‑time imprisonment for some of those offences. His custodial history also includes notations for assaults and threats made whilst in custody in 2012, as well as for the possession of an unspecified drug in 2019, for which he was reprimanded.

  5. The offender’s criminal record must be regarded as substantial and an aggravating factor: s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Counsel for the offender accepted that the criminal history of the offender was such that he was disentitled to leniency. The history displays an ongoing disregard for and disobedience of the law. Having said that, I acknowledge that, on the evidence before the Court today, he has never been convicted of any offences relating to firearms or other prohibited weapons.

  6. Aside from that which I have just referred to, there was very little other material placed before the Court in respect to the offender’s subjective circumstances.

Plea of Guilty

  1. The offender entered pleas of guilty to the three principal offences on the first day of the trial. As such, pursuant to s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender is entitled to a discount of 5% for those offences. With respect to the two matters on the s 166 certificate to which the offender pleaded guilty, s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies and requires that I must take into account the offender’s guilty pleas. As the offender pleaded guilty to those matters when they first came to be dealt with, I find he is entitled to a discount of 25% for each of those offences.

Remorse

  1. As I have observed above, there is some limited evidence of remorse from the offender’s brother. The offender did not, however, despite the opportunity to do so, give any evidence of remorse or contrition directly when he was otherwise giving his evidence at the sentencing hearing. I accept that some weight in this regard can be given to the brother’s evidence and the offender’s pleas of guilty; however, that weight is limited.

Prospects of Rehabilitation

  1. The offender submits that although his criminal history is not “unblemished”, it is notable that none of the previous matters are of a similar kind to the offences presently before the Court. Counsel for the offender referred to the mistakes of law that the offender was labouring under (with respect to his not knowing that the crossbow and flick knife were prohibited in New South Wales). He submitted that, having regard to those matters, the Court should find that the offender has good prospects of rehabilitation and is unlikely to reoffend now that he is aware of his obligations under the firearms and weapons prohibition orders and therefore, his prospects of rehabilitation are good.

  2. Whilst I am not satisfied beyond reasonable doubt that the offender’s possession of the weapons was in flagrant disregard of his obligations under the prohibition orders, as I have observed, when those orders were served on him, they were explained to him. Further, if he had any doubt or took the time to consider it, he could have sought advice as to whether the weapons and firearm were caught by the FPO or WPO. His failure to make any enquiries as to whether those orders applied to the weapons he did possess, and his extensive criminal record which as I have said displays a disregard for the law, leads me to a conclusion that his prospects of rehabilitation are, at best, guarded. Further, I note that each of the offences were committed whilst the offender was on bail and a bond for unrelated offences. I regard this fact, which is also an aggravating factor for each of the offences under s21A(2)(j) Crimes (Sentencing Procedure) Act 1999 (NSW), as relevant to the consideration of his prospects of rehabilitation and re-offending. I would regard the prospects of him reoffending as being of medium risk.

Sentencing Principles

  1. I have had regard to the maximum penalties and standard non‑parole period for each of the offences (where applicable) as legislative guideposts for the sentences I will impose.

  2. I have also had regard to each of the matters prescribed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including general and specific deterrence and the protection of the community.

  3. In this case, the sentence I will impose is intended to reflect appropriate punishment for the offences and the fact that they were committed whilst the offender was the subject of the relevant prohibition orders that I have referred to. I regard the offences committed in the circumstances I have identified, including the offenders past history and the fact that he was on bail/bond at the time of the offending, as being sufficiently serious with a corresponding danger to the community such that I am satisfied that the s 5 threshold has been crossed and the only appropriate penalty is a sentence of imprisonment.

  4. I am bound to take into account the principle of totality and the necessity to impose an appropriate sentence which reflects the overall criminality of the offending. The offences were not part of a single course of conduct but the possession of the weapons and the firearm showed a disturbing absence of concern by the offender of the obligations on him under the prohibition orders. It also showed a lack of care with respect to potential dangers to the community, particularly with respect to the possession of the crossbow.

  5. With respect to the matter on the Form 1 (relating to Count 3), I have had regard to this matter in setting the penalty for Count 3, noting that this would impact on the sentence for that Count by way of considerations of specific deterrence for the primary offence and retribution for that offence. I am not, however, imposing a separate sentence for that offence: Attorney‑General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146.

SENTENCE

  1. I propose to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I am required, therefore, to set out the indicative sentences for each offence. As the offender has pleaded guilty to each of the offences, the discount to be applied to each of the sentences will be reflected in each of the indicative sentences rather than the aggregate sentence I will impose: PG v R [2017] NSWCCA 179; Ibbotson (A pseudonym) v R [2020] NSWCCA 92.

  2. The indicative sentences for each offence, after the relevant discount for the pleas of guilty are:

  1. Count 3 (The Gonher Cap Gun and taking into account the Form 1 offence and 5% discount for the guilty plea): 4 months’ imprisonment (Sequences 1 and 2);

  2. Count 4 (the crossbow taking into account the 5% discount for the guilty plea): 17 months’ imprisonment (Sequence 11);

  3. Count 5 (the flick knife and taking into account the 5% discount for the guilty plea): 4 months’ imprisonment (Sequence 4);

  4. Sequence 5 (Possess Prohibited weapons in contravention of Weapons Prohibition Order, taking into account 25% for early guilty plea): 3 months imprisonment;

  5. Sequence 23 (Firearm found at premises whilst subject to Firearm Prohibition Order, taking into account a 25% discount for the early guilty plea): 3 months imprisonment;

  1. The aggregate sentence I impose is 17 months’ imprisonment, with a non‑parole period of 13 months. The offender had served 28 days in custody referable to these offences up until I revoked his bail on 25 June 2021. He has served a further 22 days in custody since that time. Accordingly, he is entitled to a credit for time served of 50 days. The sentence will therefore be backdated to commence on 29 May 2021. The first date the offender will be eligible for parole is 28 June 2022. The balance of the sentence will expire on 28 October 2022.

  2. Counsel for the offender submitted that if a full time custodial sentence was imposed, in order to foster the offender’s rehabilitation, the Court should find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). No other submissions were made as to why special circumstances may exist. In my opinion, none do.

  3. Counsel for the offender also submitted that if the Court concluded that the s 5 threshold had been crossed and a sentence of imprisonment was warranted, and having decided the term of that sentence (see Mandranis v R [2021] NSWCCA 97), then the Court should consider that any such term of imprisonment be served by way of an Intensive Corrections Order (ICO). In considering whether to make an ICO, community safety is the paramount consideration: see s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In considering community safety, I must assess whether or not making an ICO or the offender serving the sentence by way of full‑time detention is more likely to address the offender’s risk of reoffending.

  4. In my opinion, based upon the evidence before me and the circumstances I have described, particularly with respect to the possession of the crossbow and the offending whilst the prohibition orders were in place, together with the fact that the offences were committed whilst the offender was on bail or the subject of bonds for other offences and his significant criminal history, I have formed the view that the offender should serve the sentence by way of full‑time custody. In my opinion, community safety would not be served by the sentence being served by way of an ICO. There is no material before me which would satisfy me that serving the sentence by way of an ICO is more likely to address the offender’s risk of reoffending.

ORDERS

  1. I therefore make orders as follows:

  1. I find the offender, Mohamed Hijazi, not guilty of the related offences which I have dealt with under s 167 of the Criminal Procedure Act 1986 (NSW), namely the three offences under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and the additional offence under Reg 34(2) of the Road Transport (Vehicle Registration) Regulation 2017 (NSW) (Sequences 20, 21, 22 and 24).

  2. In accordance with his guilty pleas, the offender, Mohamed Hijazi, is convicted of Counts 3, 4 and 5 on the indictment dated 7 May 2021 (Sequences 1, 4 & 11) and the two related offences (Sequences 5 and 23).

  3. The offender is sentenced to full‑time imprisonment for a term of 17 months, with a non‑parole period of 13 months. Taking into account time already served, that sentence is backdated to commence from 29 May 2021. The head sentence expires on 28 October 2022 and the offender is eligible for parole on 28 June 2022 (Sequences 1, 2, 4, 5, 11 & 23).

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Amendments

21 July 2021 - Minor amendment to the coversheet to correct a typographical error.

Decision last updated: 21 July 2021

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Cases Cited

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Statutory Material Cited

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R v Barrientos [1999] NSWCCA 1
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Jacob v R [2014] NSWCCA 65