R v Hijazi - [2021] NSWDC 330

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);…

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 Hijazi

Details

AGLC: R v Hijazi [2021] NSWDC 330
Case: [2021] NSWDC 330
Decision Date: 16 July 2021

CaseChat Overview and Summary

The case of R v Hijazi involved the respondent, Hijazi, and was heard in a court in New South Wales. Hijazi faced charges under the Firearms Act 1996 (NSW) and the Weapons Prohibition Act 1998 (NSW), including multiple firearms and weapons offences, as well as breaches of multiple prohibition orders. The court was required to determine several legal issues, including the applicability of the Firearms Act and the Weapons Prohibition Act to Hijazi's actions, and the appropriate sentence in light of Hijazi's prior convictions and the objective seriousness of the crimes.

The primary legal issue before the court was whether the provisions of the Firearms Act and the Weapons Prohibition Act were correctly applied to the respondent's actions. The court examined the specific sections of these Acts to ascertain if Hijazi's possession and use of firearms and weapons were indeed unlawful under the statutes. Additionally, the court had to consider the breaches of prohibition orders and the cumulative impact of these breaches on the sentencing process. Another critical issue was the application of general sentencing principles, specifically the objective seriousness of the offences, in light of Hijazi's history of prior convictions.

In reaching its decision, the court meticulously analysed the relevant statutory provisions and the facts of the case. It confirmed that Hijazi's actions did indeed contravene the Firearms Act and the Weapons Prohibition Act. The court also found that the breaches of prohibition orders significantly aggravated the seriousness of the offences. In determining the sentence, the court took into account the objective seriousness of the crimes, Hijazi's multiple prior offences of a different type, and other relevant factors. The court concluded that a substantial sentence was warranted to adequately address the gravity of the offences and to ensure public safety.

The court made several orders, including a declaration that Hijazi was guilty of the charges brought under the Firearms Act and the Weapons Prohibition Act, and that he had breached multiple prohibition orders. The court also ordered that Hijazi be sentenced in accordance with the findings, taking into account the objective seriousness of the offences and other relevant sentencing considerations.

Orders

Orders of the court

109.

I therefore make orders as follows:

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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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);…