R v Khoder El Ali

Case •

[2017] NSWDC 46

•

17 March 2017

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Khoder El Ali [2017] NSWDC 46
Hearing dates: 4 November 2016 and 23 January 2017
Date of orders: 17 March 2017
Decision date: 17 March 2017
Jurisdiction:Criminal
Before: Whitford SC DCJ
Decision:

Commonwealth offence - 8 years imprisonment with a non-parole period of 5 years and 6 months commencing 13 March 2012 and expiring 12 September 2017.


State offences - aggregate sentence of imprisonment consisting of a non-parole period of 12 years and 6 months commencing from 13 September 2012 and expiring on 12 March 2025 and a balance of term of 4 years and 3 months expiring on 12 June 2029. That is a total effective sentence of 17 years and three months and a total effective non-parole period of 13 years. The Offender will become eligible to be released to parole on 12 March 2025.

Catchwords: CRIMINAL LAW – sentence – firearms – conspiracy to import – conspiracy to possess – knowingly take part in sale.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s10(1)(b), s10A, s98
Criminal Code (Cth), s11.5(1)
Customs Act 1901 (Cth), s233BAB(5)
Firearms Act 1996 (NSW), s51B(1), s51D(2), s70
Cases Cited: R v Brown [2006] NSWCCA 249 at [21]–[22]
Diesing v R [2007] NSWCCA 326 at [53], [55]
Kilic [2016] HCA 48
R v Lachlan [2015] NSWCCA 178 at [63], [68]
R v Mahmud [2010] NSWCCA 219 at [71]
Category:Sentence
Parties: Regina (Crown)
Khoder El Ali (Offender)
Representation:

Counsel:
Mr P McGuire SC (Crown)
Mr N Steel (Offender)

  Solicitors:
Commonwealth Director of Public Prosecutions
Hanna Legal
File Number(s): 11/286048; 12/81506; 12/81507; 14/30842

REMARKS ON SENTENCE

OFFENCES FOR SENTENCE

  1. Khoder EL ALI ("the Offender") appears today to be sentenced with respect to 18 offences, contained on two indictments. Those indictments and the offences charged on each are as follows:

"First Indictment"

Counts 1 to 15

Fifteen (15) counts of providing false information in relation to an application under the Firearms Act 1996 (NSW), each pertaining to a pistol, contrary to s 70 of the Firearms Act 1996 (NSW). The Offender pleaded guilty to these 15 offences on 4 July 2016, immediately prior to trial.

The maximum penalty applicable to each offence is 10 years imprisonment.

"Second Indictment"

Count 1

The first count on the Second Indictment charged the offence of conspiracy to import tier 2 goods contrary to s 11.5(1) of the Criminal Code (Cth) and s 233BAB(5) of the Customs Act 1901 (Cth)). The Offender also pleaded guilty to this offence prior to trial, a plea that was repeated when the Offender was arraigned before the jury on 5 July 2016.

The maximum penalty applicable to this offence is 10 years imprisonment.

Count 2

The Second Indictment also charged one count of conspiracy to unlawfully possess more than 3 firearms, at least one of which was a pistol, contrary to s 51D(2) of the Firearms Act 1996 (NSW). When arraigned before the jury, the Offender maintained his plea of not guilty to this count and on 9 September 2016 the jury returned a guilty verdict.

Commission of an offence contrary to s 51D(2) carries a maximum penalty of 20 years imprisonment, and a standard non-parole period of 10 years is prescribed. However, the penalty for the common law offence of conspiracy, with which the Offender was charged, is at large, and no standard non-parole period is applicable [Diesing v R [2007] NSWCCA 326 at [53], [55]].

Count 3

The final count on the Second Indictment charged the offence of selling or knowingly taking part in the sale of a pistol to another person on 3 or more separate occasions in a 12 month period, contrary to s 51B(1) of the Firearms Act 1996 (NSW). When arraigned before the jury, the Offender maintained his plea of not guilty to this count and on 9 September 2016 the jury returned a guilty verdict.

The maximum penalty applicable to this offence is also 20 years imprisonment and a standard non-parole period of 10 years is prescribed by Parliament.

  1. Additionally, by the commission of counts 1 and 2 on the Second Indictment, the Offender has failed to comply with the good behaviour condition of a 2 year bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That bond was imposed upon the Offender on 21 September 2011 at Fairfield Local Court in connection with an offence of possession of a prohibited drug, namely cocaine, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). With the consent of the Offender, communicated to this Court on 9 September 2016, those proceedings (2011/286048) have been called up before this Court for the Offender to be dealt with in accordance with s 98 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

PRE-SENTENCE CUSTODY

  1. The Offender has been in custody since his arrest on 13 March 2012. As at today, the Offender has spent just in excess of 5 years in pre-sentence custody. That time served will be taken into account when sentences are imposed.

CONSPIRACY TO IMPORT

  1. If any demonstration were needed, the maximum penalty applicable to the offence of conspiracy to import demonstrates that it is a serious offence. In fact, where it obviously includes firearms and firearm parts within its prohibition it is frankly surprising that the maximum penalty is not higher, having regard to the object it addresses, particularly when one compares it to the penalties that apply in respect of analogous dangerous imports, for example illicit drugs. The legislative object of this offence is to deter and eliminate conduct that frustrates the orderly and controlled importation into Australia of dangerous goods and so to protect the community from harm that may be caused by the introduction of those goods into the community.

  2. Notwithstanding the Offender's plea of guilty to this offence, the relevant events were the subject of a lengthy trial on account of their inextricable relationship to the two State offences charged on the same indictment, which were contested by the Offender's pleas of not guilty. The three charges, two State, one Commonwealth, address discrete aspects of conduct engaged in the pursuit of a single illicit enterprise, the broad object of which was to profit from the introduction into Australia and subsequent sale into the black market of firearms. There is inherently discrete criminality attaching to different steps in the prosecution off that enterprise. However, those steps are all inevitably linked to pursuit of the ultimate profit which was plainly the intended object of the broad criminal enterprise. Accordingly, for the purposes of sentencing, there will likely need to be a high degree of concurrence for the sentences imposed for the counts on the Second Indictment, in order to give appropriate effect to the principle of totality. As will become clear from the findings I will shortly state in respect of this first count on the Second Indictment, the inevitable inter-relationship of the various steps in the enterprise that are reflected in the individual charges also dictates some commonality between this first and the subsequent counts in assessing the nature and scope of the Offender's role and, accordingly, the objective gravity of each offence.

  3. The extent of the Offender's role in the conspiracy to import was disputed. Initially he was unwilling to admit more than that the essential elements of the offence were established by the guilty plea. In the concluding stages of the trial that position was extended slightly to admit bare facts covering a very small proportion of the additional conduct in furtherance of the enterprise which the Crown alleged was attributable to him.

  4. Evidence presented at trial established that, in the pursuit of the broader commercial enterprise that I have described, firearm parts capable of assembling a substantial quantity of pistols were successfully, but unlawfully, imported into Australia and entered the community. In particular, the evidence establishes the following matters:

  1. Between 20 June 2011 and 6 February 2012, 22 separate consignments of firearm parts (which corresponded with 129 complete and 14 partial readily concealable semi-automatic pistols, variously of Glock models 17, 19, 26 or 27) were unlawfully imported into Australia, without interdiction by Australian Customs, from legitimate suppliers in Switzerland, Germany or the USA. In addition, 80 magazines for use with Glock 26 pistols were also imported without interdiction by Australian Customs.

  2. A further 140 magazines for use with Glock 19 or 26 pistols were detected by Australian Customs upon arrival and seized.

  3. Additionally, steps had been actively taken, including part-payment, towards the importation of over 120 further Glock 19 or 26 pistols and not less than 470 magazines (including 250 large capacity magazines) for use with Glock 19 and 26 pistols.

  4. In excess of AUD$100,000 was expended towards the acquisition of these firearms, parts and magazines.

  5. The majority of the firearm parts and magazines were ordered as complete pistols by the user of various false identities, and employing various email accounts and false documents. The pistols were disassembled by their suppliers, at the request of the user of the false identities, and, also at the request of that individual, misdescribed on documentation accompanying shipping documents in order to evade detection of the true contents of consignments by Australian and foreign border control authorities.

  1. I am satisfied beyond reasonable doubt that the following conclusions flow inevitably from the whole of the evidence presented at trial. The conspiracy to import was ongoing at the time of the intervention of the authorities in February 2012. It involved a number of individuals with different roles within a demonstrable hierarchy. The object of that ongoing conspiracy was to smuggle into Australia firearm parts and magazines on a large, commercial scale. The firearm parts imported were not only capable, but were also intended to be used for the purpose, of re-constructing complete firearms, capable of use with the magazines. The type of firearms involved were all high-powered, readily concealable, semi-automatic pistols, the availability of which to members of the public was restricted and highly regulated under Australian law, because weapons of this character pose a serious danger to public safety. The imported firearm parts and magazines were incapable, as unregistered firearms, of being lawfully possessed. Consequently, they were inevitably intended by the conspirators for black market sale and, accordingly, inevitably destined for use by criminals. The conspiracy was prolonged, sophisticated and involved significant and repeated dishonest conduct, including the impersonation of Commonwealth public officials, the creation and use of false identities and the presentation of false documents, including false Commonwealth documents, intending they be provided to and relied upon by public officials both here in Australia and overseas. There is no rational conclusion available but that each of the conspirators, in particular, relevantly for present purposes, the Offender, was motivated by a desire for personal financial gain to be derived from the ultimate illegal sale of the firearms to be re-constructed from the imported parts. The conspirators, motivated by greed, displayed a callous disregard for the potential consequences of the introduction into the community of such a large quantity of inherently dangerous, unregistered, illegal pistols.

  2. There is evidence that 23 pistols constructed from the imported parts have been recovered to date by police. There was also evidence tendered on sentence that establishes that at the time of their recovery, many of those weapons were possessed by persons involved in organised and other criminal activity of a most serious kind, including large commercial drug manufacture and trafficking activities and armed robbery. Several of the pistols had been discharged indiscriminately in public places jeopardising the safety of members of the public. One pistol was recovered during the investigation of an armed robbery of an Armaguard vehicle at Broadway and it was determined that it had been used to shoot a member of the public multiple times, grievously wounding her, in an incident unrelated to the armed robbery.

  3. The admission of this evidence on sentence was objected to on behalf of the Offender. In my view it is appropriate that it be admitted, for a very limited purpose. The inference is readily available, from the matters set out above concerning the broad scope of the illicit enterprise and its objects, that the offending involved manifest disregard for public safety and posed real and substantial risks to the community. The impugned evidence serves an important purpose in providing a foundation to those conclusions which is not just theoretical.

  4. The Offender cannot, and will not, be held criminally culpable for unlawful conduct engaged in by the end users of the imported pistols. However, it is appropriate for the Court, when assessing the objective seriousness of the Offender's conduct, to have regard to realised as well as potential consequences of the uncontrolled introduction into the community of a vast quantity of illegal semi-automatic concealable pistols. It is far preferable that any consideration of those consequences be informed not only by inferences drawn as a matter of human experience and logic, but by facts which bear a direct connection to the contraband the subject of the admitted conspiracy. For that reason, and solely to that end, it is appropriate that the evidence (which appeared at Tabs 8 and 10 of Ex A) be admitted.

  5. The Crown submitted that the conspiracy to import, and in particular the Offender's role and motivation in it, involved offending of the most serious kind against the legislative object of the Commonwealth offence provision. It was submitted that the objective gravity of the offending should be regarded as warranting imposition of the maximum penalty and, in that sense, as falling within the worst category of the spectrum of offending that might be caught by this offence [see Kilic [2016] HCA 48].

  6. The Offender, by the entry of his guilty plea, and the limited admissions made by counsel on his behalf, has admitted only the following with respect to his role in the conspiracy to import:

  1. between about 25 May 2011 and about 13 March 2012 he intentionally entered into an agreement with Ahmed Karnib, Andrew Botros and divers other unidentified persons to import into Australia, without requisite permission, firearm parts and magazines, and that at least one overt act was performed by a person in furtherance of that agreement;

  2. he had, using his own identity, engaged in email communications with a Swiss supplier, placing orders in his own name for the firearms, firearm parts and magazines contained in consignments that were designated [S1], [S3] and [S6] (and also [S2], [S4] and [S5], which have been the subject of earlier prosecution by the Australian Customs and Border Protection Service);

  3. he had made the payments to the Swiss supplier, also using his own identity;

  4. consignments [S1], [S3] and [S6] had been delivered to the Offender's parents address;

  5. he had been responsible, using his own identity or the name Khoder Hawlli (which name comprises an amalgamation of the Offender's christian name and his wife's surname), for initial email correspondence with the German supplier;

  6. he had been responsible for making payments to the Swiss supplier, again using his own identity;

  7. using his own identity, he had made the first 6 payments (designated [T1] to [T6]) to the German supplier;

  8. he did not dispute that he had been present at the Bank of China on occasions when two transfers ([T7] and [T8]) had been sent to the German supplier using the false identity "Tim Gordon";

  9. he did not dispute that he had met with Garth Zreik and "Esham" on 21 February 2012 and had been present at the Westpac Bank when Garth Zreik transferred funds ([T9]) to the German supplier.   

  1. In contrast with the position taken by the Offender, the Crown submits that the totality of the evidence supports a finding beyond reasonable doubt that the Offender was the principal and the originating and controlling mind, not only in respect of the conspiracy to import, but also in the broader commercial enterprise to which that conspiracy was directed. That submission in large measure depends upon acceptance of the submission that the user of the false identities was the Offender. The circumstances set out in the Crown's written submissions on sentence, in particular at paragraph 33, are eloquent in support of that conclusion.

  2. In my assessment, consideration of the whole of the evidence compels the conclusions, beyond any reasonable doubt, both that the Offender was the user of the various false identities employed and that he was the architect and person primarily responsible for the prosecution of the objects not only of the conspiracy to import, but indeed of the entire broader illicit enterprise of which the conspiracy to import was merely the initiating step. In the absence of anything realistically, as opposed to merely theoretically, supportive of a conclusion to the contrary, the circumstances relied upon by the Crown exclude any reasonable hypothesis other than that the Offender was the user of the false identities. I am accordingly satisfied that he was the person responsible for the negotiations and transactions with suppliers, using his own and the false identities. He was the person responsible for the production and promulgation of a variety of forged documents. He was responsible for directing and co-ordinating the roles of others, including the co-conspirators Karnib and Botros. He was the person most closely associated with financing the endeavour and the person with the greatest expectation of ultimate profit.

  3. A catalogue of specific aspects of the Offender's conduct is usefully set out at paragraph 34 of the Crown's written submissions on sentence. That conduct reflects criminality that was sustained and escalating, that was sophisticated in its planning and employment of deceptive devices, including the use of the false identities and forged documents, and which was obviously motivated by a desire to derive personal financial gain from the ultimate sale of unregistered firearms on the black market.

  4. I will come to consider the other offences in due course, but I should make it quite plain by repetition at this early stage that I am satisfied beyond reasonable doubt that the Offender was not only the principal behind the conspiracy to import; he was the architect and person primarily responsible for the prosecution of the objects of the entire broader commercial enterprise that is reflected in the conduct the subject of all three counts on the Second Indictment. Although there are other people referred to in aspects of the evidence, notable among them a man named Jihad Taha, who is the uncle of the co-offender Karnib, there is nothing which connects them to the enterprise in any way which gives realistic credence to a hypothesis that rather than being the principal motivating force and directing mind behind the broader enterprise, and the person calculated to profit most from it, the Offender was only the instrument of others, and his efforts confined solely to execution of the conspiracy to import. Likewise, having regard to the weight of the evidence connecting the false identities to the Offender, and the absence of any evidence connecting them to any other individual, there is no basis for a realistic hypothesis that some other or others were involved in the communications using fictitious identities.

  5. The motivation for ultimate profit, together with the conduct which demonstrates the nature and extent of the Offender's involvement in the conspiracy to import, creates an inevitable nexus between the three offences on the Second Indictment – the conspiracy to import, the conspiracy to possess and the participation in the sale of firearms. As I have already intimated, that nexus will in due course require an assessment and careful balancing of the degree of connection between the three offences on the one hand and the separate criminality embraced by each offence on the other. All of that criminality bespeaks at best a reckless indifference to, if not a positive desire to promote, the social harms, including the threat to public safety, inevitably associated with the unregulated introduction of these weapons into the community. In assessing the objective gravity of this offending, it is important to recognise that the conspiracy extended further than merely being confined to those weapons that were successfully imported without interception, that is firearm parts for 129 complete and 14 partial Glock pistols and 80 magazines. The conspiracy was ongoing and, in addition to any future imports that were in contemplation but not yet ordered, there was a substantial number of outstanding orders, indeed partially paid, for a further 610 magazines and 120 pistols.

  1. The evidence before me establishes that in late 2011 and throughout 2012 Glock pistols were a desirable black market commodity fetching prices of between AUD$6,000 and AUD$15,000 per pistol. Having regard only to the complete Glock pistols successfully imported, the total black market value of those firearms thus ranged between AUD$792,000 and AUD$1.98 million, providing opportunity for a very substantial profit to be derived by the conspirators in comparison with the sum expended to acquire and import the parts from which those firearms were constructed. The weapons the subject of the outstanding orders that were frustrated by the interception of the authorities would necessarily have the result of almost doubling those figures.

  2. The criminality attaching to the conspiracy to import is in my view extremely serious.

  3. For the very limited demonstration of a willingness to facilitate the course of justice that is represented by the factually qualified plea of guilty to this offence, I will allow the Offender a limited degree of leniency that would not otherwise have been warranted.

CONSPIRACY TO POSSESS FIREARMS

  1. The maximum penalty and standard non-parole period applicable to contraventions of s 51D of the Firearms Act, in particular to s 51D(2), reflect the seriousness with which unregulated possession and accumulation of firearms is regarded by the State legislature. This is reasonably indicative of increasingly heightened community concerns about the threat to public safety posed by particular types of firearms, such as pistols, because of their ease of concealment for use by criminals.

  2. In 2006, Spigelman CJ explained the rationale behind s 51D in the following terms [R v Brown [2006] NSWCCA 249 at [21]–[22]]:

When s 51D was introduced by the Firearms Amendment (Public Safety) Act 2002, the Minister said: "Firearm related crime is a major concern for both police and the community." The offence, in a series of offences relating to firearms in the Firearms Act 1996, is directed to persons who are engaged in the warehousing of firearms for sale. A person so engaged plays a critical role in the perpetration by other criminals of the worst crimes of violence in this community. The maximum sentence reflects the important role that such conduct plays in the injuries inflicted upon members of the community by deadly weapons.

  1. Sentences imposed for offences of this character must reflect the legislative intention expressed in the Act, which is to eliminate firearms from the community unless their possession is expressly authorised, so as to "operate as real disincentives to those otherwise attracted to the illegal possession of firearms" [R v Mahmud [2010] NSWCCA 219 at [71] and see R v Lachlan [2015] NSWCCA 178 at [68]].

  2. Of course the offence charged here is conspiracy, so the penalty is at large. That notwithstanding, it seems to me proper to have regard to the maximum penalty prescribed for s 51D when determining the penalty appropriate to the charged combination.

  3. The extended meaning of key terms such as "firearm" and "possession" under the Firearms Act afford to this conspiracy offence a potentially very broad scope consistent with the logic underlying the jury's verdict of guilty.

  4. In the present case, the jury's verdict establishes, at a minimum, the essential elements of the offence, namely that the Offender was a party to an agreement with at least Karnib and Botros, and possibly also others, to simultaneously "possess" three or more "firearms", at least one of which was a pistol, in the period between 27 July 2011 and 13 March 2012.

  5. However, I am satisfied beyond reasonable doubt that a combination of circumstances established by the evidence compels the conclusion that the involvement of the Offender in the criminal agreement entered into by the conspirators substantially exceeded the minimum necessary to establish the offence. On multiple occasions, each subsequent to the completion of the successive importations of the component parts from which the complete pistols were to be re-constructed, the Offender was a party to an ongoing agreement to "possess" multiple "firearms", every one of which was a "pistol", indeed as many as 30 on any single occasion.

  6. As I have already outlined, the three offences charged in the Second Indictment each capture a discrete aspect of an ambitious commercial enterprise that is broader than the acts, matters or circumstances underpinning the individual charges. I am satisfied that the Offender's role in that broader enterprise, and hence his role in respect of the conspiracy to possess and participation in sale counts, is properly and substantially informed by his role and his motivation as I have assessed them in relation to the conspiracy to import.

  7. The nature and extent of the Offender's involvement in the conspiracy to import, and his motivation for that involvement, provide a powerful foundation to the conclusion I have reached that he was also necessarily the originating and controlling mind in the conspiracy to possess (and, by reference to the matters relied upon at paragraph 113 of the Crown's written submissions on sentence, likely also the principal actor in respect of that combination). Those matters ultimately also lead to the inevitable conclusion that he thereby took part in one way or another in sales of a substantial number of the pistols re-constructed from the imported parts. The evidence does not admit of any other reasonable conclusion that is not entirely hypothetical and devoid of objective support.

  8. I am satisfied beyond reasonable doubt that there existed among the co-offenders an agreement to possess the firearms that corresponded entirely with the totality of firearms re-constructed from the imported firearms parts and to be re-constructed from the parts the importation of which was frustrated by the intervention of the authorities. There is no reasonable basis for any alternative conclusion. The only thing which distinguishes the present conspiracy from the conspiracy to import is the time frame over which the combination is charged to have existed and the nature of the acts contemplated by the agreement.

  9. In assessing the objective gravity of the present offending, there are several features that require consideration.

  10. Just as in the case of the conspiracy to import, the execution of the instant agreement occurred over an extended period and necessarily intended and involved repeated instances of offending corresponding with individual shipments of parts. The charged agreement also inevitably extended to weapons to be re-constructed from orders unfulfilled at the time of arrest.

  11. This offending, like the logically prior conspiracy to import, involved a determined, well planned and organised ongoing criminal endeavour that contemplated, and in its execution required, repeated instances of offending devoted to the ultimate end of financial gain through sale of the weapons on the black market.

  12. Further, the offending was committed at a time when the Offender was subject to conditional liberty, having been released by Fairfield Local Court without conviction on 21 September 2011 conditional upon his compliance with a bond requiring him to be of good behaviour for 2 years. It may ultimately be a marginal thing in the context of the whole of this exercise, but it, along with so much of the conduct revealed by the evidence, reflects a contemptuous disregard for the law.

  13. The Crown submitted that the present offending is aggravated by disregard for public safety. There was patently disregard for public safety attending every aspect of the pursuit of this broader criminal enterprise. However, having regard to the nature of the offence, and the objects which the underlying provision addresses, which I have already outlined, it seems to me that considerations of public safety are so fundamentally an aspect of the offence, and reflected in the penalty prescribed for it, that it is not appropriate to conclude that the offending is further aggravated in the way contended by the Crown. The risk to the public posed by this offending is precisely what might reasonably be expected to flow from commission of the offence and is precisely what the offence is designed to address.

  14. The combination of the scale of the enterprise and the planned accumulation, for the ultimate purpose of unlawful sale, of completed firearms, all contributes to an assessment of the objective gravity of the offending. It does not follow, however, that those matters represent aggravation, in the way contended for by the Crown, above and beyond what is already contemplated in the relevant prohibition.

  15. The Crown submitted that having regard to the various matters I have outlined, and in particular the substantial nature and scope of the enterprise and the Offender's central role in it, the objective gravity of this offending falls within the worst case category of offending conduct for this offence.

  16. One can conceive of what might reasonably be called worse cases of offending, either on account of a greater number of weapons than is here involved, or because the nature of the weapons is perhaps even more disturbing or dangerous than the present or indeed on various other bases.

  17. However, the nature and scale of the broader criminal enterprise of which this offending was a part, the organisation, the planning, the duration and the repetition of criminal conduct here involved, along with the quantity and type of firearms involved, the inevitability that they would be acquired by criminals and the longevity of risk to the community following their unregulated sale combine to compel a conclusion that even it is not within what might be described as the worst category of offending that might be caught by this offence, it is extremely serious and certainly well approaching that characterisation.

  18. Sentencing statistics are a crude tool at the best of times. In the present case they are of even more limited utility than they ordinarily might be, particularly in light of the recent recognition by the Court of Criminal Appeal of the small number of cases that have been decided [see R v Lachlan [2015] NSWCCA 178 at [63] and the cases there cited]. Another observation that bears acknowledgement in respect of the statistics for sentences imposed under s 51D(2), is the fact that the entire sample is represented by cases in which the offenders pleaded guilty. Account would need to be given to the consequences of that fact, even if the sample were large enough otherwise to support any attempt to discern a range. A further limitation in the present case of course is the fact that the sentences imposed in respect of that statutory offence are merely an analogue to the common law count of combination here charged, where the penalty is at large.

SELLING OR KNOWINGLY TAKE PART IN THE SALE OF FIREARMS

  1. The maximum penalty which Parliament has prescribed for the offence of selling or participating in the sale of firearms and the applicable standard non-parole period again serve to reflect the seriousness with which unregulated distribution of firearms is regarded by the State legislature.

  2. In the second reading speech for the Firearms Amendment (Trafficking) Bill 2001 (NSW) which introduced to the Firearms Act 1996 (NSW) the offence provision, as it applied at the time of commission of the instant offence, the responsible Minister reflected community concern about the criminal use of firearms. The provisions being introduced were expressed to be intended to provide powers similar to those in the Drug Misuse and Trafficking Act 1985; powers purportedly designed to catch the masterminds of trafficking activity.

  3. The Crown concedes that it cannot establish precisely when any particular sale transaction occurred within the period alleged, nor can it demonstrate the identity of the seller and purchaser directly participating in any particular sale transaction, nor quantify the consideration involved.

  4. The jury's verdict establishes, at a minimum level, the essential elements of the offence, namely that the Offender unlawfully "sold" or otherwise knowingly "took part in" the unlawful sale of a "firearm" on three separate occasions between 10 November 2011 and 9 November 2012. However, the Crown submits, and I accept, that a combination of circumstances arising from the totality of the evidence point inevitably to a conclusion beyond reasonable doubt that the Offender sold or knowingly took part in the sale of a substantial number of firearms re-constructed from the successfully imported firearm parts.

  5. The matters primarily relied upon by the Crown in support of that conclusion are set out at paragraph 136 of the Crown's written submissions. With one limited exception, I agree with the proposition that those matters stand as substantial support for the conclusion I have reached. The exception concerns the recording of a conversation between the Offender and the co-offender Karnib at a restaurant. The quality of that recording is so poor that I am unprepared to make any definitive conclusions concerning the subject matter(s) of that conversation.

  6. Ultimately, having formed the conclusions that I have already expressed concerning the broader enterprise reflected in the conduct underpinning the three counts on the Second Indictment, and in particular the role of the Offender as the instigator and directing mind and will in that broader enterprise, there seems to me to be no rational conclusion available on the evidence but that in at least one, if not more, of the senses contemplated by the Act, the Offender either sold or "took part" in the sale of numerous firearms on multiple occasions in the charged period.

  7. The extended meaning of key terms such as "firearm", "sale", "take part in sale" and also "possession" under the Firearms Act, also afford this offence a very broad scope consistent with the jury's verdict. Once it is accepted, as I have found, that the Offender was the principal architect of the entire broader commercial enterprise, and the person primarily responsible for the prosecution of its objects, it follows inevitably that he sold or knowingly took part in the sale of a substantial, though unquantifiable, number of firearms re-constructed from the successfully imported firearm parts. He did so, at least in the sense of causing or allowing supply, or causing to be taken steps inevitably involved in the process of supply.

  8. On any view, for the same reasons as I found in assessing the objective gravity of the first two offences on the Second Indictment, the criminality attaching to this offending is extremely serious, indeed it is not overstating it to describe it as grave.

  9. There is a high degree of correspondence between this offence and the offence of conspiracy to possess in terms of the matters that realistically bear upon an assessment of the objective gravity of the offending.

  10. However, there are distinctions too that need to be borne in mind and which I think must necessarily have the consequence that the objective gravity of the offending against s 51B(2) must be assessed as lower than in the case of the conspiracy to possess count.

  11. Given that the possession charged was framed in conspiracy, there is no difficulty, in all the circumstances that I have outlined, in being satisfied beyond doubt that the relevant agreement extended to an agreement in the relevant period to possess all pistols that were or were to be imported in that period pursuant to the conspiracy to import. Likewise, given my conclusion that he was the architect of the broad illicit enterprise, and the principal in terms of directing its execution, financing it and entertaining an expectation of financial gain, I have no doubt that it was at least the Offender’s intention that he be involved, in one relevant way or another, in the ultimate sale of all those weapons. Given the evidence that supports an inference that the re-construction of weapons from parts occurred within a relatively short time frame after the imported parts were received in Australia, it is open to conclude to the relevant standard that the Offender relevantly took part in the sale of a substantial number of the pistols. However, in light of the facts both that the relevant period extends beyond the date the Offender was arrested, and that there is no evidence concerning any single transaction, it is impossible to quantify the number of weapons involved in this offending. All that can be said with confidence is that the evidence is capable of supporting a conclusion to the requisite standard that it is substantially more than the minimum number (3) required to make out the offence. That conclusion is supported by the matters extensively canvassed at paragraphs 135 and 136 of the Crown’s written submissions on sentence. Principle requires that a sentence be separately imposed or indicated for this offence which is appropriate to the objective gravity of the offending, and that will be done. However, it is worth noting, having regard to the degree of correspondence between this offence and the conspiracy to possess, that any difficulty in definitively assessing the objective gravity of this offending in isolation will have little, if any, practical impact on the outcome where I intend to impose (or indicate) sentences for counts 2 and 3 on the Second Indictment that are substantially concurrent.

COUNTS 1 TO 15 ON THE FIRST INDICTMENT

  1. Counts 1 to 15 in the First Indictment relate to multiple instances of providing false or misleading information in separate forms, each entitled "Application for Permit to Acquire a Handgun".

  2. Some of the events relevant to the commission of the offences were the subject of evidence adduced in the Offender's trial with respect to the Second Indictment. That material was supplemented on sentence with additional evidence.

  3. The 15 offences can be grouped referable to conduct that occurred on 4 separate occasions, each of which involved the provision of information falsely representing that certification had been provided by authorised officials of St Mary's Pistol Club:

  1. Counts 1 and 2 – relate to 2 of 3 forms lodged by the Offender with the Firearms Registry in April 2009, each representing that certification had been separately provided by a particular pistol club official when only one form bearing the corresponding certification had been signed by her.

  2. Counts 3 to 7 – relate to 5 forms lodged by the Offender with the Firearms Registry in May 2009, each again representing that certification had been separately provided by that same pistol club official when no further such form had been certified by her.

  3. Counts 8 to 10 – relate to 3 of 4 forms lodged by the Offender with the Firearms Registry one year later, in May 2010:

  1. Counts 8 and 9 relate to 2 of those forms which again represented that certification had been separately provided by the same pistol club official when no further such form had been certified by her.

  2. Count 10 relates to 1 of 2 forms representing that similar certification had been separately provided by a different pistol club official when only one form bearing the corresponding certification had been signed by him. Those two forms related to applications for permission to acquire pistols which were more restricted, qualifying as prohibited pistols due to their high calibre.

  1. Counts 11 to 15 – relate to 5 forms lodged by the Offender with the Firearms Registry almost one year later, in April 2011:

  1. Counts 11 to 13 relate to forms which again represented that certification had been separately provided by the female pistol club official when no further such form had been certified by her.

  2. Counts 14 and 15 relate to forms which again represented that certification had been separately provided by the male pistol club official when no further such form had been certified by him.

  1. Lodgement of each duplicate form represented falsely to the Firearms Registry that a club official had certified the Offender had a good reason to acquire the additional pistol to which each application related, was a financial member of the club, intended the pistol for its limited legitimate use in target shooting and could be safely stored by the Offender. The club official had not been approached to provide such certification.

  2. Each application was granted by the Firearms Registry permitting the Offender to acquire 15 pistols which he otherwise was not authorised to acquire. The Offender in fact used 13 of those permits to acquire pistols, a number of which were later reportedly stolen from the Offender's residence and others of which were disposed of by the Offender in a lawful manner.

  3. Although committed reasonably proximate to counts 1 and 2, counts 3 to 7 were committed after permits to acquire had been issued to the Offender as a result of that earlier offending, in consciousness of the Offender's prior successful deception.

  4. Evidence adduced from an employee of the Firearms Registry in the trial indicated that at the time of the commission of these offences it was routine for persons with an appropriate firearms licence lodging multiple genuinely separately certified forms to be issued with multiple permits authorising them to accumulate multiple pistols, and that the total number of pistols acquired by the Offender had not been atypical. Consequently, had the Offender not committed the offences, and had instead properly obtained legitimate certification from a club official with respect to each separate pistol he was seeking to acquire, it appears reasonably probable that he could, as a person licensed to possess pistols of the types he ultimately acquired, have lawfully achieved the same outcome he did via unlawful means.

  5. The maximum penalty of 10 years imprisonment reflects the public importance of regulated firearms ownership, reflected in the National Firearms Agreement. It also reflects heightened concern about the threat to public safety posed by particular types of firearms, such as pistols, because of their ease of concealment for use by criminals. The Offender's evasion of the certification process sidestepped safeguards against proliferation of firearms by those who might not have a genuine legitimate need to possess them or the capability to store them in a manner to prevent them from potentially coming into the possession of those without the requisite authority.

  6. This offending was planned, albeit perhaps only in a limited way. The planning involved altering duplicates to make them appear different from one another and storing duplicates for use in future offences. In its totality, the offending was repeated and escalated and occurred over an extended period of time. There are four instances of offending across which the 15 separate counts are spread. It seems to me that subject to principles of totality, a high degree of concurrency between instances of offending occurring on the same date is warranted, but there should be at least some accumulation between the four distinct periods of offending.

  7. The Crown submitted that the objective gravity of each of the 15 offences was in the lower to mid-range of seriousness for the conduct foreseeably capable of being captured by the offence. Perhaps essentially on the basis that there was no evidence that the pistols acquired consequent upon the offending were used for anything other than target shooting, it was submitted on behalf of the Offender that in terms of its gravity the offending fell at the lower end of the spectrum of conduct that might be caught by the offence.

  8. In my view the offending is serious, but I accept that is far from the most serious conduct that might be caught by this offence. Nonetheless, it represented conscious contempt for the regime of regulation intended to safeguard the community from the potential harm that can so readily flow where weapons of this character are concerned. That contempt, and the gravity of the conduct accordingly, increased with each repeated instance of offending.

  9. The Offender entered guilty pleas to each offence, albeit at a late stage, subsequent to initial arraignment in mid-June 2016 and the determination in his favour of an application to sever the 15 offences from a joint indictment then including the 3 counts since reflected on the Second Indictment. The Offender then entered guilty pleas on 4 July 2016, the date upon which a separate trial for counts 1 to 15 on the First Indictment was due to commence, having communicated to the Crown on 1 July 2016 an intention to plead guilty to each count, resulting in the utilitarian benefit of avoiding a short trial preceding the lengthy trial with respect to the Second Indictment. I will allow a 10% discount on sentence on account of the utilitarian value of those late pleas.

  10. The delay in disposition of the prosecution of the offences also warrants some limited consideration in the Offender's favour in my view. There was some delay in bringing the charges between their detection in mid-2011 and the Offender being charged on 13 March 2012, however the delay is not substantial and is largely explicable due to ongoing investigations occurring in the context of representations addressing the circumstances of the creation and presentation of the relevant forms and a subsequent application for administrative review made by the Offender.

  11. It is true, as the Crown submitted, that the delay is at least partially explicable by the Offender's unwillingness to enter a guilty plea until a late stage and by the Offender exercising his rights both to bring the interlocutory applications which delayed the progress of the charges ultimately appearing on the Second Indictment and by the Offender's decision not to agitate for separate trial of the offences on the First Indictment until June 2016. All that notwithstanding, I think consistently with the authorities pertaining to delay it is appropriate to extend to the Offender some favourable account having regard to the attendant delay, albeit limited.

THE OFFENDER’S SUBJECTIVE CIRCUMSTANCES

  1. The Offender did not give evidence on sentence. There was tendered on his behalf a report of a forensic psychiatrist and a number of references, all from members of his family, with the exception of one, which was from a family friend.

  2. The psychiatrist's report was the subject of objection, on what I might crudely summarise as Makita grounds. There was extensive cross-examination on the voir-dire, conducted on the basis that should I admit the report, it would also stand as the cross-examination on the evidence itself.

  3. I propose to admit the report. I consider it barely admissible but, given the extensive probing of the report and its author, it seems to me the circumstances favour dealing with it as a question of what weight it should be accorded, rather than as a matter of its admissibility.

  4. In addition to the objection to the entirety of the report, there were discrete objections to short passages of the report that recounted assertions by the Offender, unsupported by anything objective, concerning his motivation for the offending and the circumstances in which it occurred. Again, whilst on one view strictly inadmissible, I admit them as evidence of what the Offender told the psychiatrist, but accord the statements no weight where the truth of the assertions is otherwise entirely unsupported and, in the case of one at least of the passages, plainly inconsistent with the jury's verdicts.

  5. Save for one aspect of his circumstances, relied upon for some mitigatory effect in the submissions made on his behalf, the Offender's subjective circumstances are unremarkable. The one qualification relates to his use of cocaine and the extent of the implications that use might have in the present exercise.

  6. The Offender is now aged 32. At the time of his arrest he was aged 27. He has been married for over 11 years. He has two children now aged 6 and 5. At the time of his arrest he was living with his wife and children at rented premises at Wentworth Point. He is the fourth of six children. He appears to have grown up in a loving and supportive environment. He still enjoys the support of his immediate and extended family. By all accounts, in the eyes of those who love him, he has always been a co-operative, caring, hardworking, quiet and gentle person who was regarded by them as trustworthy and reliable. Up until his arrest the Offender worked for Singtel Optus at Macquarie Park as a network technician earning a gross annual salary of $60,642. His family were proud of him and his occupational achievements and were apparently surprised by his involvement in this conduct. They are also apparently surprised by the revelations now concerning his asserted cocaine addiction.

  7. There is independent evidence that the Offender was a user of cocaine. He was admitted to hospital in 2009 for what the tendered hospital records describe as cocaine poisoning, or a cocaine overdose. He was found in possession of a small amount of cocaine in 2011. Telecommunications intercepted in early 2012 contained references to cocaine use. I have no difficulty concluding that the Offender was a cocaine user. It is, however, a significant and, on that material alone, difficult step to conclude that the Offender was addicted to cocaine. The psychiatrist diagnosed the Offender as suffering a substance use disorder in long term remission.

  8. That diagnosis depended upon the objective material I have just referred to as evidencing cocaine use by the Offender, upon the Offender's self report and upon an assumption, presumably founded again on the Offender's otherwise unsupported assertion, that his cocaine use had some causative connection to his participation in the present offending.

  9. All the evidence concerning the nature and scope of the offending conduct supports the psychiatrist's conclusion that the Offender is reasonably intelligent. The devices employed in the deception of local and overseas authorities, and the firearms suppliers with whom he dealt, all point to the likelihood that the Offender was unaffected by any cognitive or similar compromise when he embarked upon the ambitious scheme represented by the broader illicit commercial enterprise that gave rise to the three counts on the Second Indictment. Indeed, he was called upon in the prosecution of that enterprise, over an extended period, to maintain multiple deceptions through a variety of identities. This necessarily required substantial presence of mind and conscious deliberation over the extended period of the offending. He did this, largely successfully for a long time before detection, in a determined, thoughtful and meticulous way that denies any scope for the suggestion that he was suffering an addiction, or at least, even if addicted, that there was any causative connection between cocaine use and the offending conduct that would admit of the extension to him of some leniency on that account.

  10. The Crown submits that the Court should find that the Offender was not of prior good character at the time of commission of the offences.

  11. Evidence of a criminal history (or relevant lack thereof) is appropriately considered to evaluate whether an offender's criminal conduct was an aberration, or otherwise out-of-character, such that they should be afforded some leniency they might not otherwise attract.

  12. In this case, prior to commission of count 1 on the First Indictment, the Offender had not been criminally convicted. However, the Offender has since entered guilty pleas to counts 1 to 15 on the First Indictment, each of which was committed prior to commission of the Federal offence charged as the first offence on the Second Indictment. Those prior offences, as I have already noted, involved repeated and sustained acts of deception.

  13. Further, during the period referable to the commission of the first count on the Second Indictment, on 11 July 2011, 8 August 2011 and 11 August 2011, the Offender committed offences [contrary to s 233(1)(b) of the Customs Act 1901 (Cth)], of importing without permission three consignments containing Glock pistol parts and magazines he had ordered from the Swiss supplier (that is, those designated in the trial materials as [S2], [S4] and [S5]). In connection with those offences, the Offender supplied Australian Customs with an altered form, misrepresenting that approval to import the contents of the consignments had been obtained from the NSW Police Firearms Registry. Subsequent to an overt investigation by Australian Customs, including the execution of search warrants at the addresses of the Offender and extended family members on 31 August 2011, the Offender was charged on 20 August 2012 and entered guilty pleas on 27 February 2013. He was convicted and fined AUD$30,000.

  14. Additionally, on 31 August 2011 also during the period referable to count 1 on the Second Indictment, the Offender was charged with possession of a quantity of cocaine, and on 21 September 2011 discharged without conviction upon entry into a good behaviour bond.

  15. Furthermore, the Crown submitted that having regard to the various facts and circumstances that found my conclusion, already expressed, that the Offender was the principal in the conspiracy to import, and accordingly the person primarily responsible for repeated and sustained acts of deception during the commission of that offence, his conduct is incapable of being considered an aberration, or an isolated incident or out-of-character.

  16. The Offender had no recorded criminal history prior to the smorgasbord of offending that is presently before the Court (and the related matters represented by the Swiss imports dealt with separately). The whole of that offending manifests a determined contempt over the corresponding period for obedience to the law. Nonetheless, I will accord him some leniency, albeit limited, in the determination of sentences for the present matters on account of the fact that until this offending, he had no prior criminal history.

  17. There have been some asserted expressions of remorse by the Offender, to the psychiatrist and his referees. Absent any independent support for that asserted remorse there is little basis for giving it more than limited credence in the present exercise. There is perhaps some remorse reflected in the pleas of guilty; to the counts on the First Indictment and to the first count on the Second Indictment. However, the timing of those pleas and the limited nature of them, in respect at least of the conspiracy to import, also give rise to only a limited basis for them being given much mitigatory account. The Offender will be given limited account for the pleas, but beyond that there is little basis for additional leniency on account of remorse.

  18. It seems to me the Offender is well capable of being a productive member of society. Any desire by him to resume a law-abiding existence, making a positive contribution to the life of the community and his family, is certainly assisted by the extent of his education, his apparent intelligence, and the broad and deep support he clearly enjoys from family and friends.

  19. Whether those matters translate into realistic prospects of rehabilitation is virtually impossible to judge. All those factors existed at and prior to the time of the present offending. That notwithstanding, the evidence discloses a degree of contempt for authority and a disregard for public safety and for compliance with laws and regulations intended to ensure public safety that without having heard from the Offender himself, or without some significant, objective demonstration by him in the meantime of a desire for reform, it is difficult to be any more than guarded about his future prospects.

  20. Indeed, rather than reflecting any real acceptance of responsibility for his conduct, the Offender has largely sought to undermine and deflect any personal acceptance of responsibility, through the attempts to attribute his conduct to the effects of cocaine and the influence of people he claims to have encountered as a consequence of his abuse of that drug.

  21. The Crown's written submissions, and an accompanying chronology of the proceedings, dealt in considerable detail both with the principles relevant to delay in the finalisation of matters and the history of these particular prosecutions.

  22. As is evident from matters I have already recounted, whilst there has been delay longer than what might be regarded as usual, or indeed desirable, between when the Offender was charged and the date of sentence, nothing in the circumstances warrants more than limited mitigatory consideration when imposing sentence. I will give the attendant delay some weight in the Offender's favour, but in all the circumstances and for the reasons outlined in the Crown's written submissions, it will be limited.

TOTALITY, CONCURRENCE AND ACCUMULATION

  1. It is necessary to impose a discrete sentence for the Federal offence. With respect to the State offences, I propose to impose an aggregate sentence in lieu of individual sentences, and to indicate the sentences that would have been imposed for the individual offences otherwise.

  2. It will be clear from my preceding remarks that I am satisfied that there is substantial overlap between the three offences on the Second Indictment, given that they are three integral steps in the prosecution of the broader criminal enterprise I have already outlined.

  3. The Crown submitted that each of those three offences has a distinct gravamen, individually capturing additional relevant criminality not caught by the other offences.

  4. The Crown submitted that the gravamen of the Federal offence, count 1 on the Second Indictment, was the ongoing, and substantially executed, criminal agreement to evade Australian border controls and introduce unregulated firearm parts and magazines into Australia, intending that they would be assembled into complete firearms and sold on the black market. The offence included planned importation of firearm parts manufactured as spare parts ordered from the German and US suppliers which were not intended for assembly with other parts by the Offender or co-conspirators. It also included the planned importation of additional magazines ordered from the German and US suppliers. Further, unlike count 2 in the Second Indictment, it included as part of the ongoing criminal agreement the initial importation of those firearm parts purchased from the Swiss supplier and imported in consignments [S2], [S4] and [S5].

  5. The Crown submitted that the gravamen of count 2 on the Second Indictment was the ongoing, and substantially executed, criminal agreement to accumulate quantities of pistols, a restricted type of firearm, assembled from the imported parts and magazines, intending complete unregistered firearms would later be sold or retained and applied for any other purpose. It also reflects the greater seriousness with which accumulation of quantities of firearms, in particular, pistols, was regarded by the State legislature vis-à-vis the maximum penalty set by the Federal legislature for count 1 on the Second Indictment.

  6. The Crown submitted that the gravamen of count 3 on the Second Indictment was the Offender's involvement, directly or indirectly, in trafficking activity with respect to those firearms that, within the relevant period, were sold or intended for future sale.

  7. To avoid double punishment, it is necessary that there be concurrence corresponding to the extent to which the sentence for one offence comprehends and reflects the criminality in either or both of the other offences. The extent of commonality among the present offences is substantially reflected in the Crown’s submissions concerning the gravamen of each offence [in particular in portions that I have emphasised in bold in the three preceding paragraphs].

  1. Each of the offences plainly addresses different conduct, and in that respect might in certain circumstances be said to embrace distinct criminality. However, in all the circumstances of the present case, that is, primarily the pursuit of the broader enterprise of which each offence constituted a practical step, it seems to me the entirety of the criminality is reasonably addressed by sentences that are substantially concurrent as between counts 2 and 3 and with only limited further accumulation between those two State offences and the Federal offence.

  2. The offences charged on the First Indictment are factually discrete from those charged on the Second Indictment and occurred over a period of several years at a time preceding the commission of the offences charged on the Second Indictment. This suggests that it is appropriate there be a degree of accumulation between sentences for the offences on the First Indictment and those for the offences on the Second Indictment.

  3. The Crown submitted that the gravamen of each of counts 1 to 15 in the First Indictment was the provision of materially false information to the Firearms Registry about compliance with regulatory safeguards.

  4. The Crown submits, and I accept, that discrete penalties should be at least indicated for each count on the First Indictment, with some degree of concurrency and accumulation between each of the counts being appropriate. Some concurrency is appropriate at the very least on account of the fact, as already identified, the 15 occasions of offending were spread across four different occasions.

  5. It was submitted on behalf of the Offender that the totality principle should be employed in a manner that ensured the Court avoided imposing a crushing sentence that might induce a feeling of hopelessness and destroy any expectation of a useful life after release. It was recognised however, that in many cases of multiple offending, an offender may not be entitled to the element of mercy embraced by this consideration.

  6. It was also put on behalf of the Offender that the Court would give recognition to the proposition that the severity of a sentence is not the product of a linear relationship, but rather increases at a greater rate than any increase in the length of the sentence.

  7. Both these submissions were entirely appropriate and will be taken into account when sentences are imposed, but within limits appropriate to the multitude and objective gravity of the present offending.

  8. The Offender is still a relatively young man. His prospects of rehabilitation are difficult to gauge, for the reasons I have identified. Nonetheless, there does need to be some advertence to ensuring that the sentences imposed are not so crushing, as to render entirely futile whatever prospects the Offender might have of resuming a law-abiding existence in the community.

  9. That said, it must also be borne in mind and the preceding principle weighed against the fact that I am here concerned with offending that is remarkable both in its gravity and its extent. In the context of drug trafficking, remarks are often made by sentencing judges concerning the cynical taking advantage, for financial gain, of vulnerable members of the community, or individuals who, for whatever reason, are prepared to risk exposing themselves, to the harms that attend the consumption of drugs.

  10. In the present case, I am concerned with someone who was determined to financially benefit, not just from people who are prepared to expose themselves to risk, but from people who wish to threaten or do considerable harm to other members of the community by resort to the use of weapons in connection with the pursuit of their own criminal exploits. It is difficult to understate the seriousness of the present conduct when one considers the number of weapons that actually made their way into the community and the number that were intended, through the frustrated imports, to enter the community.

  11. Within the limits of the penalties prescribed, and the principles otherwise applicable, any person who seeks to profit illegally from the desire of others to use or threaten deadly force within the community must be met by the Courts with a response sufficiently robust to reflect the community's abhorrence and to dissuade others who might in future entertain a similar cynical disdain for public safety.

  12. If it is accepted that there is value in attaching to particular prohibitions the most severe punishments known to the law, then it is difficult to imagine a more deserving candidate than trafficking on a commercial scale in semi-automatic, readily concealable weapons ideally suited to, indeed in this context intended for, criminal deployment. Anecdotal reports would suggest the incidence of gun related crime is increasing. Particularly in light of this country's apparent status as a world leader in controlling the unfettered circulation of firearms in the community, it is perhaps surprising that Parliaments have not attached to commercial trafficking in weapons of this kind penalties equivalent to those applicable in cases of large commercial drug trafficking, sexual offending against children and some terrorist activity.

PARITY & PROPORTIONALITY

  1. In this case, whilst there are some limited shared features between the Offender and his co-offenders, substantial differences are also apparent:

  1. whilst convicted in respect of a similar Federal offence, the co-offenders were each convicted of different State offences, which in both cases were comparatively less serious than counts 2 and 3 on the Second Indictment;

  2. the period of count 1 on the Second Indictment of which the Offender has been convicted commenced 2 months earlier than the Federal offence of which the co-offenders were convicted, capturing the importation of the additional firearm parts and magazines imported from Switzerland in consignments [S1], [S3] and [S6], evidence of which did not become available to the Crown until after the co-offenders were sentenced;

  3. the State offence contrary to s 51BA of the Firearms Act 1996 (NSW) of which Ahmed Karnib was convicted, though somewhat similar to count 3 on the Second Indictment and carrying the same maximum penalty, was significantly less serious as no standard non-parole period applied and the offending was confined to involvement in sale of firearm parts, rather than firearms;

  4. the evidence compels the conclusion that the Offender's culpability, due to his central and extensive role as the principal and architect of the broader enterprise, was substantially higher in relation to each offence of which he has been convicted than was either of the co-offender's culpability for the offences of which they were each convicted;

  5. Ahmed Karnib and Andrew Botros had not previously committed the 15 counts on the First Indictment, nor the 3 on which the Offender was convicted on 21 February 2013 with respect to the unlawful importation of the firearm parts contained in consignments [S2], [S4] and [S5];

  6. Ahmed Karnib and Andrew Botros each had subjective cases that fundamentally distinguish their circumstances from those of the Offender and they were afforded leniency for reasons including Ahmed Karnib's youth and Andrew Botros's background; and

  7. Both co-offenders entered pleas of guilty and were committed for sentence. By their guilty pleas and other evidence adduced at their sentence hearings, they demonstrated genuine contrition, remorse and acceptance of criminal responsibility for their involvement in the offences of which they were convicted.

  1. Whilst it is appropriate that regard be given to the sentences received by the co-offenders, the circumstances, both objective and subjective, are so fundamentally different among the offenders as to limit the utility that might be gained in the present exercise through advertence to the co-offender's sentences and the extent to which those sentences might usefully inform the appropriate result in this sentencing exercise is accordingly also quite limited. In terms of objective gravity, there is a world of difference between an offender who is the architect of, and principal in directing, a criminal endeavour and an offender who acts in accordance with that principal’s directions.

ORDERS

  1. I am satisfied that no sentence other than a term of imprisonment is appropriate for all the offending the subject of the present exercise. I have already indicted that I will impose an aggregate sentence in respect of the State offences, and a separate sentence for the Federal offence. In my view, there is nothing in the circumstances of the present case that warrants a finding of special circumstances.

  2. In respect of the Federal offence, I will fix a separate non-parole period that reflects the minimum term that should be served having regard to what I consider justice requires in all the relevant circumstances.

  3. It is also necessary that I deal with the Offender’s breach of the good behaviour bond. There does not seem to be any contest that the appropriate disposition of that matter involves revocation of the bond, conviction of the Offender for the relevant offence and otherwise disposing of the proceedings without further penalty, pursuant to s 10A of Crimes Sentencing Procedure Act. That is what I propose to do.

  4. For the Commonwealth offence of conspiracy to import dangerous goods the Offender is convicted. Taking into account the limited facilitation of the course of justice, I impose a sentence of 8 years imprisonment and fix a non-parole period of five years and 6 months commencing 13 March 2012 and expiring 12 September 2017.

  5. For each of the State offences, that is the 15 counts on the First Indictment and the second and third counts on the Second Indictment, the Offender is convicted. In respect of those offences I impose an aggregate sentence of imprisonment consisting of a non-parole period of 12 years and 6 months commencing from 13 September 2012 and expiring on 12 March 2025 and a balance of term of 4 years and 3 months expiring on 12 June 2029.

  6. For all 18 offences, that is a total effective sentence of 17 years and 3 months and a total effective non-parole period of 13 years. The Offender will become eligible to be released to parole on 12 March 2025.

  7. In respect of the breach of the s 10(1)(b) bond for possession of cocaine, I revoke the bond, convict the Offender and otherwise dispose of the proceedings pursuant to s 10A of the Crimes (Sentencing Procedure) Act, without imposing any further penalty.

  8. I indicate that the sentences that would have been imposed for each offence covered by the aggregate sentence, if separate sentences had been imposed instead, are:

For the offence of Conspiracy to possess, a sentence of 15 years.

For the offence of Take part in sale, a non-parole period of 6 years and 9 months and a head sentence of 9 years.

For each of counts 1 and 2 on the First Indictment, a sentence of 1 year 4 months. These terms have been reduced by a discount of 10 per cent for the pleas of guilty.

For each of counts 3 - 7 inclusive on the First Indictment, a sentence of 1 year 6 months. These terms have been reduced by a discount of 10 per cent for the pleas of guilty.

For each of counts 8 - 10 inclusive on the First Indictment, a sentence of 1 year 9 months. These terms have been reduced by a discount of 10 per cent for the pleas of guilty.

For each of counts 11 - 15 inclusive on the First Indictment, a sentence of 2 years. These terms have been reduced by a discount of 10 per cent for the pleas of guilty.

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Amendments

30 March 2017 - Added catchwords to coversheet


Changed “12 September 2030” to “12 June 2029” in coversheet and paragraph [114]

Decision last updated: 30 March 2017

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Most Recent Citation
R v Munro [2021] VCC 918
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Statutory Material Cited

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