R v Mahmud - [2010] NSWCCA 219

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: R v Jihad MAHMUD [2010] NSWCCA 219

HEARING DATE(S): 2 March 2010

JUDGMENT DATE:
24 September 2010

JUDGMENT OF: Giles JA at 1; Hulme J at 2; Latham J at 90

DECISION: (i) Allow the Crown appeal;
(ii) Quash the sentences imposed on the Respondent by Graham ADCJ on 15 June 2009 and in lieu thereof sentence the Respondent as follows;
(iii) In respect of the charge of possessing more than three firearms being two prohibited pistols and two prohibited firearms and which the Respondent was unauthorised by licence or permit to possess, sentence the Respondent to imprisonment for a non-parole period of 3 years and 9 months commencing on 15 January 2008 and a balance of term of 1 year and 3 months;
(iv) In respect of the charge of supplying a large commercial quantity of methyl-amphetamine, sentence the Respondent to imprisonment for a non-parole period of 6 years and 6 months commencing on 15 January 2009 and a balance of term of 2 years and 6 months; and
(v) Record as the date upon which it appears to the Court as the date upon which the Respondent shall become eligible for parole, 15 July 2015.

PARTIES: Regina
Jihad MAHMUD

FILE NUMBER(S): CCA 2009/1953

COUNSEL: Mr F Veltro (Crown)
Mr GD Wendler (Respondent)

SOLICITORS: Mr S Kavanagh (Solicitor for Public Prosecutions)
Mr S O'Connor (Legal Aid Commission)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/1953

LOWER COURT JUDICIAL OFFICER: Graham ADCJ

- 33 -

2009/1953

GILES JA
HULME J
LATHAM J

Friday, 24 September 2010

R V Jihad MAHMUD

Judgment

1 GILES JA: I agree with RS Hulme J.

On 15 June 2009 the Respondent to this Crown appeal was sentenced by Graham ADCJ in respect of two charges. The charges and the sentences imposed were:-

(i) Supplying a large commercial quantity of methylamphetamine – imprisonment for 6 years and 6 months including a non-parole period of 3 years and 6 months, both such periods commencing on 15 January 2009.

3 The effective sentence was thus imprisonment for 7 years and 6 months including a non-parole period of 4 years and 6 months.

4 Pursuant to s33(3)(a) of the Drug (Misuse and Trafficking) Act 1985, the first offence carries a maximum penalty of life imprisonment and a fine of 5000 penalty units. Pursuant to s51D(2) of the Firearms Act 1996, the maximum penalty prescribed for the second offence is 20 years imprisonment. By reason of s54A et seq. of the Crimes (Sentencing Procedure) Act 1999, standard non-parole periods of 15 years and 10 years imprisonment respectively are prescribed for these offences.

5 In sentencing the Respondent for the first offence, Graham ADCJ took into account the following further offences listed on a Form 1:-

6 The circumstances leading to the charges against the Respondent were as follows. On 15 January 2008, he attracted the attention of police while driving. They caused him to pull over, approached, identified themselves and asked the Respondent for his licence. While the Respondent was complying with this request the officers noticed his hands were shaking, that he was sweating profusely and what appeared to be a bullet in a resealable bag between the Respondent’s thighs. The Respondent was asked to leave the vehicle and as he did so, the bullet became more obvious.

7 Asked whether he had a licence for firearms or ammunition the Respondent said that he did not but that he was going hunting with his uncle somewhere up the bush. He was then arrested and cautioned. Asked whether there was anything else on his person or in the vehicle, his answer was, “No, absolutely nothing.” The vehicle was searched. Behind the speaker system in the boot a towel and plastic bubble wrap containing a small silver pistol with an ivory coloured handle were found. When examined, the pistol was found to be loaded with five rounds of ammunition, one being in the chamber, and the pistol set to “fire”.

8 Also in the boot police found a black leather pouch containing a black taser gun designed to look like a torch.

9 Later that day the police obtained a search warrant and at about 6.20 that evening attended premises at Shalvey where the Respondent lived or at least had a room. They noticed a surveillance camera in the front window and that the windows were barred. The Respondent’s mother, Ms Adams, opened the door. Inside, police found a room which was locked with a bolt and padlock. Ms Adams said that the room was her son’s and that only he had a key to the room. Police broke open the lock. Shortly afterwards Ms Adam called her daughter, Maureen Mahmud, who lived up the road. The evidence disclosed that her daughter lived within a minute’s drive or just around the corner and arrived minutes later with the Respondent’s girlfriend, Megan Lane.

10 Inside the room, police found a number of items. They included:-

A number of documents including a passport and club membership card bearing the Respondent’s name and/or photograph;

2 single shot bolt firearms;

2 boxes containing a total of eighty-one Winchester .22 bullets;

3 bullets each of different calibre, including one unknown;

3 projectiles of unknown calibre;

A flick knife;

A dark coloured 25mm self loading pistol containing a magazine loaded with five rounds located inside a medium size cardboard box;

A trench knife;

A police scanner;

A purple shopping bag containing numerous small resealable plastic bags of various sizes. Some of these small bags contained white powder, some contained powder residue and some were empty.

11 The two single shot firearms each took the form of a nut and bolt, a form that disguised the fact that they were firearms. It may be inferred that the two knives were the subject of the two prohibited weapon offences listed on the Form 1 and though in the court below no one seems to have bothered about the matter, probably the third such offence related to the taser found in the Respondent’s vehicle. He would not seem to have been in possession of any other non-firearm weapon although the time and place stated on the Court Attendance Notice that preceded the charges being placed on the Form 1 allege the offence occurred at Shalvey and at the time the search was conducted there, rather than earlier when the taser was found in the car.

12 The statement of Constable Treuer indicates that there was more than one type of powder in the bags found in the purple bag and that Ms Lane asserted that one type of powder was speed and was hers. There is nothing in the evidence put before the sentencing judge to indicate that any of this powder was analysed and paragraph 37 of the Agreed Facts on Sentence, quoted below, seems to indicate that this powder was not the subject of the drug charge.

13 Also found was a cream coloured medium sized locked box. Maureen Mahmud identified the box as belonging to her. The police asked her whether she had a key for it, she said she did and that it was at her house. She said that inside the box was money which she described as savings from overseas. “I lived there for ten years and I’ve just recently been back here for three years and sold a house over there and I’ve got four kids so I always put money in it.” According to the Statement of Facts, she was unable to say how much money was inside the box, stating that her husband was overseas and that she comes and takes money when she needs it.

14 However, in paragraph 37 of the statement of Constable Murray Treuer, there is recounted the following conversation involving himself, the Respondent and a Detective Sergeant Dukes:-

15 Later counting of the money revealed that it totalled $59,950. It was comprised of all denominations ranging from $5 to $100.

16 Elsewhere in the house police located a freezer containing an Urban brand plastic bag. Inside that bag were two plastic containers containing a yellow crystalline substance, a resealable bag containing a crystalline substance and a third plastic container wrapped in silver duct tape that also contained a crystalline substance. The substances were frozen. The containers were numbered and later the contents weighed and identified and some analysed. All the contents were identified as methylamphetamine. Other results were:-

Container Weight Purity

447.0 grams

1,783.7 grams

17 Paragraph 37 of the Agreed Facts on Sentence recorded that, “A total of 1.78 kg of methylamphetamine was seized. It was contained within three plastic containers and one resealable plastic bag. The purity ranged from 2.0% to 2.5%.”

18 In the course of the sentencing proceedings the Respondent gave evidence as did his father Khadar, his mother Ms Adam, his sister Laureen and her husband Tareq Sub Laban. Tendered also was a psychology report, a number of Certificates of Achievements and a number of documents arguably relevant to the source of the $59,950. In the findings that he made Graham ADCJ relied on some of the evidence so given but before I refer to this evidence and some other factual matters, it is convenient to record some of the findings and conclusions at which his Honour arrived, particularly those bearing on what are said to be the errors his Honour made. For ease of later reference I have numbered the paragraphs quoted:-

1. Clearly the plea of guilty was entered at a relatively early stage in the process, that is, in particular, at the arraignment stage and before there was any need for the matter to be prepared for trial in the District Court. Whilst the facts were within a relatively short compass, no doubt the trial would have taken some time. There was firearms expert evidence provided by way of a certificate and the court would probably have been required to view the video of the execution of the search warrant. In those circumstances, given that the matter was able to be resolved (not only as to the two counts on which pleas of guilty were entered but also by way of the various other matters to be taken into account on the form 1 document), the overall utilitarian value of the pleas of guilty in this case, in those circumstances, would justify a generous discount in the order of twenty percent, the Crown having submitted that fifteen percent would be appropriate. In my view there is additional utilitarian value, for the reasons which I have outlined. …

2. It is I think convenient to deal with the significance of that cash sum (of $59,950) at this stage. The Crown submits that, in assessing the objective seriousness of the offence, the court would look not only at matters such as the quantity of drugs, but also at the indicia of drug supply which might be said to have been found in the premises and which might throw some light on the overall objective seriousness of the offence. Clearly the Crown is entitled to point to those matters which may be the indicia of drug supply, matters such micro-scales, a significant number of mobile phones, note books or other documents containing records of what may be inferred to be drug transactions and the like. None of those items are present here, however, the Crown relies upon the various weapons, including the firearms, but also the knives which were found as indicia of drug supply, together with the discovery of a large number of resealable plastic bags, and the Crown also relies upon the money which was found in the cash box.

3. Clearly the resealable plastic bags which were discovered were fairly numerous but it appears that some were unused and others appeared to have had some amount of powder in them. That is suggested to be at least equally consistent with the drug habit which the offender himself had at the time. It does seem somewhat unusual for persons engaged in the supply of drugs to apparently have a stock of resealable bags which includes bags recycled from some previous use to contain drugs. On balance, the presence of those plastic bags would seem to be more consistent with the offender’s own obtaining of drugs for his own use rather than being held for the purpose of being filled to supply to others.

4. There was also the discovery of a quantity of Glucodin powder. The offender was asked some questions about it in cross-examination but it was not put to him that his purpose in having the Glucodin was to dilute or cut the purity of drugs as is commonly found in the distribution of dissemination of drugs, with the purity being reduced at significant steps along the chain of distribution. The existence of that Glucodin is consistent with the accused’s own account that he was, in effect, minding or warehousing the drugs and the Glucodin, while not of itself being illegal, was an item which it might readily be thought could be kept with the drugs themselves. It was certainly not put to him that that was the purpose for which he had them and the extent to which that item represents on of the indicia of drug supply is somewhat obscure and is not inconsistent with the account given by the offender himself.

5. More significantly, however, the finding of drugs, weapons and a very large quantity of cash would, put together, suggest the involvement of the offender himself at some significant level in the supply of drugs and certainly the presence of the firearms, and other weapons is consistent with that proposition. The money in my view however may properly be discarded from further consideration. There was, as is apparent from what has been said so far, an immediate claim from the offender’s sister that the money box or cash box did indeed contain cash. Clearly she was aware of the nature of its contents; secondly she was able to give a fairly reasonable estimate of the amount of money which was in there, closer than one might anticipate could be guessed, and clearly indicative of reasonable good knowledge of the contents of the box, not only as to the nature but also the quantity.

6. Thirdly, she began to give the explanation which was subsequently amplified in evidence here. That version of the provenance of the cash is the subject of evidence here. That version of the provenance of the cash is the subject of evidence both from the offender’s sister and from his brother-in-law. That evidence was tested fairly thoroughly in cross-examination. The pity is that that matter was not investigated by the police nine months ago, when the Crown drew the attention of the police to correspondence from the offender’s solicitor which invited interviews with the offender’s sister and his brother-in-law and which furnished documents which provided some evidence of a source for the cash in Israel which would explain how the offender’s sister and brother-in-law might have that amount of cash. That material was never followed up but the evidence has been called today and, despite that thorough cross-examination, in my view it provides a plausible and, indeed, acceptable explanation of where the money came from.

7. Indeed I am satisfied on the balance of probabilities that the money in the cash tin was the property of the offender’s sister and her husband and that it came to be there in the circumstances described in their evidence …

8. The explanation given is both plausible and, in my view, the correct explanation for the provenance of that money. …

9. There was much to be sceptical about in his evidence generally but his evidence on this point is that he believed that it might be her jewellery, which may have been given to his sister when she married overseas. She herself had not informed her brother what was in the box, except that it was made clear to him that it was something valuable to her.

10. So, in those circumstances, on the balance of probabilities, I accept that the cash in that box was property belonging to the offender’s sister and her husband, and that, apart from being in a room which he occupied, it was not an item in respect to which he had any interest of a proprietary or financial nature.

11. Apart from these items, the police also searched a freezer where they found a plastic bag inside of which were two clear containers containing a yellow crystalline substance; two more resealable bags containing a similar substances were also found and an additional container with silver tape was also found. In all a total of 1.78 kilos of methylamphetamine were seized and it was contained within three plastic containers and one resealable plastic bag. The purity ranged from 2 to 2.5 percent, a figure which the Crown concedes is a fairly low level of purity for that substance. That level of purity would, I would infer, mean that the methylamphetamine was getting towards the end of the chain of distribution and had been cut down to a relatively low level of purity. …

12. Essentially, the offender’s description of events here is that he was addicted to drugs himself and that he was able to obtain either free drugs and/or the forgiveness of drug debts by his involvement in looking after these drugs. His account was that he was effectively minding the drugs or perhaps warehousing them, his expectation being that he would be able, as I said, to have debts forgiven or paid off through that act of minding the drugs and also get some drugs free for himself.

13. The explanation which he puts forward is certainly consistent, in some respects, with other evidence in the case. Leaving aside the firearms and other weapons for a moment, the other items discovered, particularly when the cash is taken out of the equation, are themselves consistent with the offender’s own drug habit. There is, as I understand it, no challenge to the assertion that he was himself addicted to drugs at that time, the question being whether his involvement was greater than that which he explained in his evidence.

14. The difficulty remains the question of the possession of the various weapons, both firearms, and other items. The offender’s explanation is that he has something of a fetish for firearms. His history does tend to support that in the sense that, at least, he has had a previous history in relation to firearms offences.

…

15. I accept that, while the offender has had some fascination with firearms, and, indeed, has what might be described as a fetish about them, his explanation that he had them for the purpose of hunting was one which did not survive cross-examination terribly well. It does seem to me that the explanation is more likely to have been either a sinister explanation such as that proffered by the Crown or the fundamental explanation which he gave about having a fetish for firearms. Not without some reservations, I have formed the conclusion that the explanation offered by the offender himself does contain the more likely explanation for his collection of firearms.

16. There is nothing to suggest, for example, that when he had the firearm in his car when stopped by the police, there was any other item in there which might have connected him with the drug trade. It seems simply to have been something which he was doing as he drove around. Similarly, there were the various items at home, including various odd items of ammunition for which there seemed to be no particular need, given the nature of the firearms which he actually had either in the premises or in his car. In other words, in the end I would significantly discount the presence of the firearms in assessing the objective seriousness of the drug supply charge and, indeed, it follows that, in terms of purpose or motivation on the second count, it would also have an impact on an assessment of the objective seriousness of these offences. …

17. The Court must also assess whether the case falls within the mid-range of objective seriousness for offences of this type… Here the quantity was almost double that which brings the matter over the large quantity threshold but equally it is, conceptually at least, towards the bottom end of a possible practical range of a large commercial quantity.

18. The second matter which is appropriately to be taken into account is the purpose or motivation of the offence. Here there is no evidence to support the proposition that the offender was motivated to take this role in relation to the drugs for the purpose of making a profit. True it is that he expected some financial benefit in the sense that it would enable him to trade off drug debts and might provide him with some further drugs for himself, but that is a very different motivation to a person who, for purely commercial purposes, (in the general sense of that word) is prepared to become involved in the dissemination of drugs).

19. The next factor to be taken into account is the level of the involvement of this offender. As I have said, the evidence, properly analysed leads to the conclusion that his role was in the nature of a warehouse keeper for the drugs. That is by no means a minor role, given that the quantity of drugs being minded or warehoused by him was significant. That, in turn, suggests that the role is not in the category of a principal but nor is it at the lower level of a user who is selling small quantities on the street to feed his or her own habit.

20. Nonetheless, there is nothing to indicate that his role in warehousing these drugs supports a more sinister view of the offender’s activities in relation to the drugs other then that he provided a convenient repository for someone else’s drugs for the modest return which I have outlined. …

21. In those circumstances, those factors all suggest that this is an offence which is below the mid-range of objective seriousness of offences of supplying a large commercial quantity of the prohibited drug methylamphetamine. In turn, that is an additional reason for imposing a sentence which is less than the standard non-parole period of 15 years in relation to the drug matter.

22. Similarly, in relation to the second count, the firearms charge, the Court is of course required to look at the number, quantity and quality of the firearms and also the purpose for which they were maintained. Here that purpose was in pursuit of a fascination of firearms and other weapons which was, at least, not directly associated with the conduct giving rise to the first count in the indictment. There were a number of items here but the charge, of course, encompasses cases where there is a greater number of items above the three which are the basis of the charge and the type of firearm itself could significantly impact on an assessment of the objective seriousness of those offences.

23. The firearm offence in my view is, both by way of falling below the mid-range of objective seriousness and because of the plea of guilty, not an offence which would necessarily require the court to impose a standard non-parole period. …

24. As was put by his counsel, the picture here is not ultimately one of a big time drug supplier but of a person who could properly be described as a somewhat deeply dysfunctional and immature person who has become enmeshed in the drug milieu. …

25. The offender is, however, still relatively young, though not in the youthful category. He has had a previous sentence of imprisonment for firearms offences and that was not apparently sufficient to deter him from committing further offences, but the overall picture here is one which, on careful analysis, seems to be less sinister than an initial reading of the material might suggest. In those circumstances, the court should be cautious in implementing the need to impose a sentence which does have the proper measure of general deterrence and at the same time, in this case, of specific deterrence (sic). This is an occasion where the offender’s interest in firearms has led him into a jail sentence again and his relapse into drugs after his release from jail on the last occasion has brought into very serious conflict with the criminal law relating to drugs. It is clear there remains a need for some measure of specific deterrence in his case.

26. On the other hand, it is important to reflect in that sentence the actual circumstances of these two offences. In addition, of course, in relation to count one, it is necessary to take into account those various firearms offences on the Form 1 which, themselves, are not all minor offences by any means and reflect a substratum of the facts which underlie also the charge in count two. Count one must attract a sentence which properly takes into account the Form 1 matters in accordance with the well known principles by which a court gives effect to a request for matters to be taken into account on a Form 1 when being sentenced for a principal offence.

27. There are, it seems, two areas particularly of special circumstances here. One relates to the need for partial accumulation to give proper recognition to the distinct and, indeed in some respects unrelated, criminality of the firearms offences as compared with the drugs supply offence.

28. The second relates to the need for what would seem to be a lengthy period of supervision and treatment in the community to enable the offender to address his drug addiction problems which he has partially commenced to address by way of a program which he has completed whilst in custody but there is a need (given the material in the psychologist’s report and in the pre-sentence report) for a considerably longer period then would ordinarily be the care for that extended treatment and supervision within the community.

19 The basis of the appeal is that the individual and overall sentences imposed by Graham ADCJ on the Respondent were manifestly inadequate. Particular respects in which it is said his Honour erred are:-

1. In finding that the Glucodin powder, resealable plastic bags, firearms and other weapons could not be taken into account as indicia of supply;

2. In classifying the Respondent’s drug supply at “below mid range”;

3. In classifying the Respondent’s role as one that extended to only providing a “convenient repository for someone else’s drugs” for a modest return;

4. In failing to properly take into account the matters on the Form 1 for the supply of a large commercial quantity drug offence;

5. In finding that the firearm offence fell below “mid-range”;

6. In finding that the Respondent merely had a fetish for firearms and that his possession of the firearms and weapons were not directly associated with his possession of the large quantity of drugs;

7. In failing to take into account properly or at all the past criminal history of the Respondent. (In developing this ground, the Crown confined it to the sentence imposed on the firearms charge);

8. In allowing a discount of 20% on account of the plea of guilty; and

20 The Respondent gave evidence to the effect that he had had a disruptive childhood in consequence of his parent’s separation, that he left school at aged 16, began to work as a kitchen hand and then for some 3 years worked for Aldi in its warehouse. He said he purchased a tobacconist business in 2004 for a sum of $40,000, these funds having been saved while working for Aldi, at which time he regularly put money from his pay into an account from which he could not withdraw for 12 months. He was imprisoned on 18 February 2005 for firearm offence(s), his sentence being for 18 months including a non-parole period of 12 months. The tobacconist business was sold whilst he was in prison. After his release (which seems to have occurred in early 2006) he had some casual warehouse employment, sometimes losing a job because he was, “too out of it to go to work”.

21 The Respondent said he commenced using cannabis when he was about 13, graduating to speed by the time he was 15 and then ecstasy, cocaine and ice. His usage increased after he bought into the tobacconist business because of the availability of the takings of that business. He resumed drug taking a month after his release from prison in 2006 to the extent of using drugs every day. Somewhat inconsistently with earlier evidence that when released from jail he had nothing, he said he funded his habit after leaving jail by “selling whatever assets I had… say like TVs, my TV, ‘cause I had my own apartment back then too at one stage, I had a TV, electricals, gold, jewellery, whatever I had from family presents. Whatever I could get my hands on you know…”. It would seem that at least some of these items he had before he went to jail. Another source of funds was by accumulating debts to drug dealers. He said that after coming out of jail, whatever money came into his hands he would spend on drugs. The drugs in the freezer were being held for someone “just to get my debt paid off and just get some drugs for free”.

22 Asked what he was doing with a firearm in his car at the time of his arrest, the Respondent said he was “dropping it off at home”. He said he did not make a habit of carrying loaded firearms around and “wouldn’t have a clue how it got loaded”. Asked where he obtained the firearm he said, “I don’t remember much that day…”. Later he said he did not know exactly where or when he obtained that firearm. He also said that he did not know the pistol found in his room was loaded and did not know when or from where he obtained that firearm. He “guessed” that he had obtained the bolt pistols “off the streets” and had never used them. The taser was just something that he came across on the streets where he was asked if he wanted to buy it.

23 Asked also what he was doing with firearms, the Respondent said he had a hobby of hunting, including pig hunting, and that firearms were a fetish for him. Pig hunting was also the explanation he gave for the trench knife, adding that he liked weapons.

24 Because this Court is asked to depart from some of Graham ADCJ’s findings of fact, some of the Respondent’s evidence is worth quoting. His evidence in chief included:-

25 The cross-examination included the following:-

26 He denied knowing anything about the Glucodin powder saying he didn’t remember much about the last year when he was out (of prison). He denied weightlifting or going to the gym or using the Glucodin as a cutting agent.

27 Taken to a statement in a pre-sentence report to the effect he was spending $40,000 plus per annum on drugs he said: “maybe, who knows. I can’t tell you an exact figure, I’m on drugs. I can’t sit here and give you figures when I can’t remember what I was doing the day before.” And later:-

I gave her (the author of the report) a lot of figures. I said I was probably spending this much sometimes a day, this much sometimes next week, what I can afford and she probably estimated $40,000. I don’t know how she came to that amount. I never said to her $40,000.

28 In the extract from the Remarks of Sentence I have numbered 15, I have repeated Graham ADCJ’s rejection of the Respondent’s evidence of hunting being the explanation for his possession of the firearms. In the light of that finding and the terms of the evidence which I have quoted, I have the greatest difficulty in seeing how his Honour could rationally have placed any reliance on anything the Respondent said that was challenged. However, the cross-examination of the Respondent was distinguished by the number of topics that were not even touched upon. Though asked where he was taking the pistol found in his car, a question he answered as I have indicated, the cross-examiner did not ask where the weapon had been. Nor were any questions asked about the plastic bags, how it came about that the windows of the premises were barred and there was a camera to observe anyone coming there or how, in the face of evidence that the Respondent spent all of his money on drugs, he could afford the firearms. He was not asked to explain how, if his drug habit was as bad as he alleged – to the extent of owing debts to his suppliers – he would be trusted with the drugs found in the freezer. He was not asked what the amount of those debts was or how much of the indebtedness he expected to be relieved of for minding the drugs. His evidence that he was merely “holding the drugs for someone … to get his debt paid off and just get some drugs for free” and that he had a fetish for firearms was not challenged in cross-examination. During the hearing of the appeal, counsel for the Crown accepted that in these circumstances his Honour’s findings in respect of these two last matters were thus open to his Honour.

29 The Respondent’s father gave evidence that his and the Respondent’s mother’s marriage had broken up in about 1991, that the Respondent and his two brothers and sister had come to live with the father and his second wife but that the children and the second wife did not get on and in 1996 the children were forced to leave. According to Mr Mahmud senior, thereafter the Respondent went “everywhere” and was a beautiful person who would never hurt anyone but himself. The Respondent’s mother gave no evidence of particular significance for present purposes.

30 Mr Sub Laban gave evidence that in about 2004 or 2005 when he was living in Israel, he had received something of the order of $300,000 compensation in consequence of a motor vehicle accident. He gave evidence also of selling an apartment overseas for some $US120,000 and of deriving some income from a cousin in the Middle-East with whom he had left money. Mr Sub Laban gave evidence of bringing some of these funds to Australia and of leaving them in the cash box found in the Respondent’s room. Mr Sub Laban’s evidence was supported by the contents of some documents tendered that, while not completely clear, certainly provided significant corroboration of his evidence. There was also evidence that in September 2008 solicitors had invited the police to investigate Mr Sub Laban’s claim to the money in the cash box. The invitation was not accepted.

31 Laureen Mahmud gave evidence confirming that the money found in the cash box emanated from her husband. It should be recorded also that, apart from the fact that the box containing the money was found in the Respondent’s bedroom, there was nothing to connect him with the money.

32 Other evidence was that the Respondent was born in July 1981. He first appeared in court in March 1997. In August 2001 he was fined $750.00 for two counts of assault occasioning actual bodily harm. In an appeal to the District Court he was sentenced in August 2005 for:-

33 The longest sentences for these offences were imprisonment for 18 months including a non-parole period of 12 months both periods commencing on 19 February 2005.

34 It is not necessary that I refer in any detail to the Pre-Sentence Report. It is sufficient to record that the Respondent informed the author of the report that he had “supported his $40,000 plus per annum drug habit by doing ‘stupid’ things to get his drugs for ‘free’ and spent his time not under the influence in finding a way to get his next ‘trip’.” The author of the report also observed:-

Mr Mahmud emphasised his acceptance of responsibility for the offences and his substance use; conjointly these statements lacked congruency with his qualifying comments or in his reflection of the behavioural context around the possession of multiple unauthorised weapons… In discussing the offences and chain of events, Mr Mahmud demonstrated a severe lack of awareness of the effects his behaviours and choices had on his family and the wider community. This was cogently highlighted by his decision to mix illicit substances, namely Crystal-methamphetamines, with loaded weapons whilst in public; with his recount of the offence absent of any reflection on the dangers that such an armed state posed to his partner, family and the wider community.

35 In the report the Respondent was assessed as “suitable for a high level of intervention by this Service”.

36 A psychological report from Professor Woods indicated that the Respondent’s childhood environment was dysfunctional and violent. The report gave an account of his drug taking similar to that he had given in evidence and that he had told Professor Woods that by the time of his arrest at age 24 or 25 (i.e. in about 2005) he had an estimated $500 per day methamphetamine and cocaine habit. The report continues:-

When challenged as to how he was financially able to support his addiction, Mr Mahmud stated that he used any money he could obtain (work or borrowed), sold personal property, accumulated large (drug) debts that he was given drugs by friends, and that he stored drugs for certain people who in return supplied him. Mr Mahmud stated that the drugs found in his freezer had only been there for about an hour and that he had agreed to store them. He added ‘I loved my drugs’.

37 The Respondent seems to have been suffering withdrawal symptoms when Professor Woods first saw him on 23 January 2008 but was much healthier when next seen on 28 August 2008. Psychological testing revealed he continued to experience a range of symptoms related to numerous highly traumatic incidents and his clinical profile was marked by significant elevations indicative of problems with interpersonal relationships. The report concludes:-

Mr Mahmud reports to be attempting to use his current circumstance to create the opportunity for a stable and better life upon release. His success or failure in achieving these goals will primarily depend on his ability to continue to abstain from drugs.

38 The Court was informed that in respect of the charges with which this Court is concerned, the Respondent was committed for trial on 9 February 2009. He was first arraigned in the District Court on 19 March 2009 when he pleaded guilty.

39 Against that background I turn to the particular complaints advanced by the Crown. Logic indicates that they should be taken out of the order in which they were advanced.

Ground 8

His Honour erred in allowing a discount of 20% on account of the plea of guilty.

40 His Honour’s reasons for allowing a discount of 20% appear in the extract from his Remarks on Sentence I have numbered 1.

41 In R v Thompson and Houlton (2000) 49 NSWLR 383 this Court indicated that a discount for a plea of guilty should usually fall in the range of 10 – 25%, and that two circumstances would commonly affect the appropriate level of discount, those circumstances being the time at which the plea was entered and the complexity of the issues liable to arise. It was said also that a discount of 25% could be expected to be restricted to pleas at the earliest possible opportunity and that a discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial unless there were certain identified factors operating. In R v Borkowski [2009] NSWCCA 102 at [31], Howie J said, with the concurrence of McClellan CJ at CL and Simpson J, “It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15%.”

42 His Honour did not explain why he took that view but it may be expected to reflect his Honour’s assessment of the relativity of the benefit to the justice system of the plea being entered at that time rather than earlier. Entered at an early stage of proceedings in the Local Court, the benefits to the system include avoidance of the need for full preparation of a brief, committal proceedings, and preparations for and incidental to a trial. Entered at arraignment, it is only the last group of these matters than is avoided.

43 Apart from the general reference to “earliest possible opportunity” I am not conscious of any consideration having been given to the question of at what stage of proceedings in the Local Court a plea should result in a discount of 25%, and my impression is that pleas are often not entered prior to reasonably complete service of the Crown brief. If that be so, it is not obvious to me that one can limit the discount for a plea on first arraignment to 15%. I appreciate that Howie J said, “about 15%”, a reference that would include the 17.5% that is half way between the figures of 10 and 25 referred to in R v Thompson and Houlton but which would tend to exclude the figure of 20% that seems excessive when compared with the 25% for a plea entered at the “earliest possible opportunity”.

44 On the other hand, there is no basis in any other of the matters relied on by Graham ADCJ for a “generous discount” or “additional utilitarian value”. The resolution of some matters by an arrangement to have them placed on a Form 1 had its own benefits to the Respondent and does not justify any greater benefit by way of discount. The facts were, as his Honour said, within a relatively short compass. Any trial would have been very simple to conduct and no grounds exist for allowing a greater discount on account of complexity or time saved than would otherwise have been appropriate.

45 Affected as it was by erroneous considerations, his Honour’s discretion to make an allowance of a 20% discount for the Respondent’s pleas, miscarried.

Ground 1

His Honour erred in finding that the Glucodin powder, resealable plastic bags, firearms and other weapons could not be taken into account as indicia of supply.

46 The first point to be made under this ground is that his Honour did not say that these matters could not be taken into account as indicia of supply. This is clear from the passages from his Remarks on Sentence that I have numbered 2 and 5. What his Honour did was to consider whether, in the circumstances before him, these matters did in fact indicate a business of supply.

47 It was further submitted that his Honour should have approached the topic of whether the Respondent was engaged in the business of supply by considering the combined effect of the various items said to be indicia of supply and erred by considering each in isolation. R v Hillier (2007) 228 CLR 618 at [46] and R v Sultana (Unreported, NSWCCA, 20 July 1994) were cited in support of the first of these propositions and clearly support it.

48 However, the need to consider the total picture does not mean that one is not also required also to look at the individual items by which it is comprised. Micro-scales may be an indication of a business of supply but their presence would not argue strongly in that direction if the person possessing them had a business of selling micro-scales. Cash is often an indication of a business of supply of drugs but is not so in a particular case if it is established that the presence of cash is otherwise explicable. Resealable plastic bags are an ordinary household item, so again one needs to look at the circumstances of their presence in a particular case.

49 Despite the terms of the ground, the substantive complaint raised under it was that his Honour had erred in the conclusion he had drawn in respect of the individual items relied on as indicia of supply.

50 There are of course clear limits on the circumstances in which this Court can reverse findings of fact made by a sentencing judge – see e.g. R v Skorin [2005] NSWCCA 276 at [36]; R v Khouzame [2000] NSWCCA 505 at [38 – 40]; and R v Donoghue (1988) 34 A Crim R 397. Nevertheless, I am satisfied that in at least one respect his Honour did err.

51 His Honour dealt with the topic of resealable plastic bags in the paragraph I have numbered 3. One could not disagree with his remark that, “It does seem somewhat unusual for persons engaged in the supply of drugs to apparently have a stock of resealable bags which includes bags recycled from some previous use to contain drugs” although one could also add that it seems somewhat unusual for a mere user of drugs to keep a stock of empty bags. However, there was no evidence as to the number of bags falling into the category of those containing drugs, those containing residue and those which were empty. Nor was there evidence that the empty ones were in a new, rather than a used state. The Respondent provided no explanation for the bags but neither was there cross-examination concerning them. In these circumstances, it does not seem to me that this Court can conclude that his Honour erred in not regarding the bags as an indication that the Respondent was engaged in the business of drug supply.

52 His Honour dealt with the topic of Glucodin in the paragraph I have numbered 4. His Honour erred in saying that it was not put to the Respondent that his purpose in having the Glucodin powder was to cut the purity of drugs. Furthermore, it is impossible to see the basis for his Honour’s remarks that the existence of the Glucodin was consistent with the Respondent’s account that he was minding the drugs when the Respondent gave no evidence of such association and said that the Glucodin probably was his but purported to remember nothing about it. His Honour erred in his treatment of the Glucodin.

53 His Honour dealt with the topic of the significance of the firearms in the paragraphs I have numbered 14 to 16 in the course of which he expressed a preference for the “fetish” explanation over that the guns were an indication of drug dealing. The two explanations are not of course mutually inconsistent. His Honour’s choice does derive some support from the presence of the two bolt and nut firearms - hardly useful weapons should a weapon be needed for protection - the somewhat eclectic collection of ammunition, and the fact that when the Respondent was apprehended the pistol (and taser) were in the car boot rather than being easily accessible.

54 One must take into account also the lack of challenge to the Respondent’s account. In the result, I am unable to conclude that his Honour erred in not regarding the firearms as providing some evidence that the Respondent was a drug dealer. For somewhat analogous reasons I am also not prepared to conclude that his Honour should have regarded the other weapons as an indication of drug dealing.

Ground 6

His Honour erred in finding that the Respondent merely had a fetish for firearms and that his possession of the firearms and weapons were not directly associated with his possession of the large quantity of drugs.

55 This ground has been dealt with in my consideration of Ground 1 and what I said earlier as to the lack of challenge to the Respondent’s evidence. The complaint fails.

Ground 3
His Honour erred in classifying the Respondent’s role as one that extended to only providing a “convenient repository for someone else’s drugs” for a modest return.

56 Subject to one matter to which I refer below, in light of his Honour’s conclusions dealt with in my consideration of Ground 1 and of the Crown’s failure in the court below to challenge the Respondent’s evidence to the effect that he was merely minding the drugs for someone else, the challenge to his Honour’s finding that the Respondent’s role was merely a “convenient repository for someone else’s drugs” cannot succeed. There was no evidence as to the return that the Respondent was to receive for his minding other than his evidence that he expected to get a drug debt paid off and get some drugs for free. In the context of a Crown submission that the Respondent was engaged in dealing in a large commercial quantity of drugs, his Honour’s reference to a “modest return” was not erroneous.

Ground 2

His Honour erred in classifying the Respondent’s drug supply at “below mid range”.

57 On a number of occasions this Court has laid down that a judge is required to indicate with some degree of specificity where, relative to the mid-point, the objective seriousness of an offence lies – see R v Knight and Biuvanua [2007] NSWCCA 283 at [4], [39]; R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [25], [39]; R v Woods [2009] NSWCCA 55 at [35]; R v McEvoy [2010] NSWCCA 110 at [75]; R v Sellars [2010] NSWCCA 133 at [8], [11]. His Honour’s finding did not comply with this requirement. His finding of “below mid-range” really says nothing more than the standard non-parole period is not applicable and provides little assistance to this Court, the community and others who might try to understand how the non-parole period was determined.

58 “Below mid-range” was the limit of his Honour’s characterisation of the where, in the range of objective seriousness, the Respondent’s conduct fell. The quantity of 1.78 kilograms was less than twice the large commercial quantity, a category that has no upper limit and encompasses, for example, the quantities of 65 and 44 kilograms that were involved in the offending the subject of consideration in R v Woodgate [2009] NSWCCA 137 and R v Nikolic [2007] NSWCCA 232. The purity of the drugs was at a low level. 1.78 kilograms at a purity of 2 - 2.5% had the potential to do far less damage to users than 1.78 kg at a purity of, say, 20 – 30%. It was also worth substantially less than a similar quantity of significantly greater purity. While it is clear from what the Respondent said, that his services were found by others to be a useful step in the course of dissemination of drugs into the community and his role of minding the drugs thus of more than a minor nature, that role involved less criminality than if he himself had been selling them for profit. Once one accepts the primary findings that his Honour made, he was clearly correct in classifying the Respondent’s offence as “ below mid-range”. Indeed when one has regard to the quantity, purity, and Graham ADCJ’s findings as to the Respondent’s role and reward, the offence was substantially below mid-range.

Ground 4

His Honour erred in failing to properly take into account the matters on the Form 1 for the supply of a large commercial quantity drug offence.

59 Undoubtedly, in the circumstances of the case and in accordance with the decision of this Court in Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 at [42], the presence of the offences on the Form 1 should have led to a higher penalty on the drug offence than would otherwise have been the case. However, in the circumstances of the case that increase would not have been large. As stated in that case, offences on a Form 1 can inspire that greater weight be given to personal deterrence and retribution. Insofar as the firearms offences on the Form 1 relate to firearms they are much less serious than the firearms charge for which the Respondent will suffer a separate penalty that includes a significant weighting on account of personal deterrence and retribution and for having in the firearms, some ammunition. Possession of the weapons the subject of offences listed on the Form 1 is also far less serious than possession of at least two of the weapons the subject of the firearms charge.

60 As his Honour did not provide any indication of the weight he gave to the offences on the Form 1, the only guide there is as to whether and to what extent the sentence was increased on account of the matters on the Form 1 is the sentence he ultimately imposed. In effect, one is reduced to asking whether, having regard to the circumstances of the drug offence, the Respondent’s subjective circumstances and the matters on the Form 1, the sentence on the drug offence is manifestly inadequate. I shall return to that topic after dealing with most of the other specific errors alleged.

Ground 5

His Honour erred in finding that the firearm offence fell below mid-range.

61 The firearms offence constituted by s51D(2) of the Firearms Act 1996 is:-

Possession of more than 3 firearms any one of which is a prohibited firearm or pistol if:-

(a) the firearms are not registered, and

62 In judging the objective seriousness of the Respondent’s offence it is relevant to note that he had four firearms, all of which were not registered, and that he was not authorised to possess any one of them. It is also relevant that he had not one but two prohibited pistols. On the other hand, the other two weapons, while prohibited firearms because they disguised the fact that they were firearms, were single shot weapons and of a nature that they were not as likely to be used offensively as might a normal pistol or rifle. Indeed on the limited evidence that there is about them, I would not be prepared to infer that they were likely to be used offensively at all.

63 Arguing in favour of greater rather than lesser objective seriousness was the fact that both pistols were loaded – see R v Thalari [2009] NSWCCA 170 at [88] - and one was being carried in a public place. That pistol also had a round in the chamber and, apart possibly from the fact that the pistol was in the boot of a car, it is difficult to see any explanation for that circumstance inconsistent with a willingness to use the weapon if, in the Respondent’s view, circumstances warranted doing so.

64 In that the Respondent’s possession of the weapons was found to be inspired by a fetish for them rather than by more sinister motivation, his objective criminality is less than it might otherwise have been although this factor is, to a significant degree, outweighed by the carriage of a loaded weapon into public. As I said in R v Najem [2008] NSWCCA 32 in relation to an offence against s7 of the Firearms Act, a section that makes unauthorised possession or use on one prohibited firearm or pistol illegal:-

It is appropriate to have regard to the rationale behind the statutory provision against which the Respondent offended. That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others’ rights.

65 (I acknowledge that carrying an unregistered firearm in a public place is itself an offence under s93I of the Crimes Act. However as that offence carries a maximum penalty of but 14 years imprisonment if the firearm is a pistol, it is not impermissible to have regard to the public carrying of the weapon in this case.)

66 Of course, as Graham ADCJ remarked in the extract I have numbered 22, in judging where the mid-range of objective seriousness for offences under the section lies, it is relevant to reflect on what an offence under the section might involve. A worst case might certainly involve more, indeed many more, firearms or pistols than the Respondent had. The firearms might also be of a far more dangerous or lethal nature, the definition of “prohibited firearm” including machine guns and other automatic weapons. Clearly also, the motivation might be far more heinous than Graham ADCJ found the Respondent’s to be.

67 In his characterisation of this offence also, his Honour failed to indicate with any specificity where, relative to the mid point of objective seriousness, the offence lay. It has been held that this Court should be slow to interfere with a sentencing judge’s characterisation of the objective seriousness of an offence – see R v Mulato [2006] NSWCCA 282 at [37]. The matter is very much one of judgment. His Honour was entitled to conclude that the offence was appreciably below the mid point and, given the restraint that I must employ, I do not regard this ground as established.

Ground 7

His Honour erred in failing to take into account properly or at all the past criminal history of the Respondent. (In developing this ground, the Crown confined it to the sentence imposed on the firearms charge).

68 In the extract from his Honour’s remarks I have numbered 25 I have set out what his Honour said on the topic of the Respondent’s criminal history and it is certainly not clear what weight he gave to the topic. In the result the only possible, and by no means certain, way in which a judgment can be made on the question of whether his Honour afforded that history appropriate weight is by considering the sentence ultimately imposed. To the topic of the adequacy of the individual sentences imposed I now turn.

Manifest Inadequacy

69 Inevitably in addressing the issue of whether either of the Respondent’s sentences is manifestly inadequate, subjective judgment is involved. However one factor which is established is that the courts have recognised that the severity of sentences of imprisonment is not simply proportional to length. Longer sentences are relatively more severe – Einfield v R [2010] NSWCCA 87 at [185]; R v Sciberras [2006] NSWCCA 268; (2006) 165 A Crim R 532 at [50]; R v Amurao [2005] NSWCCA 32 at [65]. As I said in R v Spiteri [1999] NSWCCA 3 at [39]:-

70 I do not intend to repeat what I have said above concerning the features of the Respondent’s offences. Although I do not ignore the fact that it is possible for there to be offences under s51B(2) that are far more serious than the Respondent’s, his firearm offence, although found to be below the mid-point, was objectively serious.

71 In this connection it is important to recognise the legislative purpose embodied in s51B and other similar provisions of the Firearms Act, viz, the elimination of firearms from the community except insofar as their possession is expressly authorised. The reason is clear. The possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. The courts have a duty to impose penalties that conform with the legislative intention and operate as real disincentives to those otherwise attracted to the illegal possession of firearms.

72 Against the statutory maximum of imprisonment for 20 years and the standard non-parole period of imprisonment for 10 years the sentence of imprisonment for 3 years and 6 months including a non-parole period of 2 years and 6 months for the firearms offence can only be regarded as light, and this even after taking account of the discount his Honour allowed for the Respondent’s plea. Of course, having regard to that plea and the fact that the firearms offence was found to be below the mid-range in objective seriousness, the standard non-parole period has no direct application but it remains as a guide.

73 The leniency in the sentence becomes even more apparent once account is taken of the Respondent’s prior firearms offences that must have brought home to him the illegality of what he was doing in possessing the firearms the subject of the current firearms charge. One must not ignore the Respondent’s subjective circumstances but unfortunate though they may have been, they provide no explanation or excuse for the acquisition of, particularly, the two normal pistols. In the circumstances, the sentence imposed for the firearms offence is manifestly inadequate.

74 Turning to the drug offence, the head sentence of 6 years and 6 months indicates, by the addition back of the discount for a plea, a starting point of 8 years. That is obviously much lighter than the maximum penalty of life imprisonment. I have characterised the objective seriousness of the offence as substantially below mid-range but 8 years is still relatively low.

75 The head sentence that could be expected to flow from the standard non-parole sentence of 15 years is 20 years. 8 years is 40% of that but as I have indicated, the severity of sentences is not simply proportional to length.

76 A comparison of the non-parole period of 3 years and 6 months with the standard non-parole period of 15 years less an allowance for the Respondent’s plea provides a starker contrast than does a comparison of the head sentence. I do not ignore the fact that the non-parole period imposed by Graham ADCJ reflected a finding of special circumstances but nevertheless the difference between 3 years and 6 months and 15 years (reduced for the plea) is impossible to justify. A fortiori is that so if, as the Respondent’s remarks to Professor Woods indicate, his assistance by way of storage in this case was but an incident of a habit of doing so. His Honour’s explanation for the finding of special circumstances and the large difference between the non-parole period and the total sentence imposed for the drug offence lies in the extract from the Remarks on Sentence that I have numbered 28. However, although the two reports to which his Honour referred in that passage clearly identify a need for the Respondent to overcome his drug addiction if he is to reform, nowhere do the reports contain any statement to the effect that after a substantial number of years in prison (when the Respondent will have available to him courses and other incentives to remain drug free), he will need or benefit from a further 3 years on parole with such supervision as parole affords.

77 It is not necessary for the purposes of this appeal to carry out an extensive review of sentences in past cases but a few might helpfully be referred to. In R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462 this Court reduced to 7 years (including a non-parole period of 5 years and 3 months) a sentence on an offender who had pleaded not guilty to the supply of not less than the commercial quantity of methylamphetamine. His role was similar to that of the Respondent here, again the drugs being found in a freezer, the purity of the drug was described as “extremely low” and the quantity was 371 grams, about one-fifth of that with which the Respondent was involved.

78 In R v Sciberras after a consideration of a number of prior cases, this Court allowed a Crown appeal and increased a number of sentences that had been imposed on an offender who had been trafficking to a substantial degree in more than one drug to fund his and his partner’s drug habits. He had pleaded guilty. The sentence imposed on count 2 which involved the supply, part actual and part deemed, of a commercial quantity, being 474 grams of methylamphetamine was of 8 years including a non-parole period of 6 years. Not all of the drugs were analysed but the methylamphetamine that was had a purity of between 1 and 6.5%. The Court said that the sentence was less than should have been imposed at first instance.

79 In R v Wang [2009] NSWCCA 223, after a review of sentences in a number of cases, this Court quashed a sentence imposed on an offender who had been found guilty of the supply of a large commercial quantity of 3,4 Methylenemethylamphetamine (ecstasy) and re-sentenced the offender to imprisonment for 16 years including a non-parole period of 12 years. The offender’s role was obscure. He was regarded as more than a mere courier and the objective gravity of the offence as falling somewhat below the mid-range. The quantity involved was a little less than three times the minimum large commercial quantity for that drug.

80 Obviously there are differences between those three cases and the circumstances here. Nevertheless the Respondent was assisting in the illegal amphetamine trade and R v Le Cerf (1975) 13 SASR 237 and the numerous cases that have cited R v Le Cerf – see e.g. R v Markarian [2003] NSWCCA 8 at [26] - make it clear that those who assist in the trade must also expect heavy sentences. The cases to which I previously referred do demonstrate that the sentence here on the drug supply charge was also manifestly inadequate.

Ground 9

His Honour erred by inadequately accumulating the sentences.

81 In light of the conclusion at which I have arrived that the sentences imposed by his Honour should be quashed and the Respondent re-sentenced, there is no need for me to address this ground beyond saying that the accumulation of sentences to the extent of only 1 year was, given the seriousness of the Respondent’s offending in two very different ways, and the length of the sentences imposed, very light.

Re-sentence

82 The manifest inadequacy to which I have referred does not automatically lead to the conclusion that this Court should re-sentence but there is nothing in the circumstances of this case to justify not doing so. In so concluding I should record that I am not unconscious of the authorities brought to the Court’s attention on behalf of the Respondent which say that Crown appeals should be rare and this Court should interfere only in cases where there is demonstrated error of principle. I considered most of them in R v AA [2006] NSWCCA 55. I take the liberty of quoting part of what I said there (at [13-14]:-

R v Wall

Griffiths v R

Malvaso v R

Everett v R

Dinsdale v R

Malvaso v R

Griffiths v R

‘That statement of the rare circumstances in which an appeal by the Attorney General can be justified should, in our view, be expanded by the inclusion of express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which Barwick CJ saw as being ‘error in point of principle. (See Griffiths.)’

83 Of course, since R v JW [2010] NSWCCA 49 and R v Carroll [2010] NSWCCA 55 a number of considerations that previously applied in the case of an appeal by the Crown are no longer relevant.

84 In re-sentencing I would make allowance of something of the order of 17.5% for the Respondent’s plea. In the case of the firearms offence, an appropriate commencing point is 6 years which, after the discount for the plea, reduces to 5 years. Applying the proportions in s44 of the Crimes (Sentencing Procedure) Act, the resulting non-parole period would be 3 years and 9 months.

85 In arriving at these terms, I have had regard to Graham ADCJ’s findings and what I have said above on the topic of firearms. Particularly relevant is the nut and bolt form of two of the firearms, and, operating the other way, the fact that the other two were loaded and one was being carried in public, albeit in a car boot. I recognise that the non-parole period is a little less than half of the 10 years standard non-parole period reduced by 17.5% but in the circumstances of the case it seems to me that 3 years and 9 months still bears an appropriate relationship with the standard non-parole period.

86 In the case of the drug offence an appropriate starting point is 11 years. When adjustment is made for the difference in circumstances, these figures are somewhat light by comparison with Blair and Sciberras but possibly a little high by comparison with Wang. After a discount of 17.5% for the Respondent’s plea, this figure would translate into a head sentence of about 9 years and, if the proportion between the non-parole and head sentence of 75% contemplated by s44 of the Crimes (Sentencing Procedure) Act were followed, a non-parole periods of 6.75 years. Were one to start with the standard non-parole period of 15 years, reduce it by 17.5% for the Respondent’s plea, one would arrive at 12.37 years, a figure which would have to be reduced significantly on account of the Respondent’s offence falling well below the midpoint of objective seriousness. Of course, subjective features must also be taken into account.

87 Having regard to the length of the period when sentence along the above lines would make the Respondent eligible for parole, I see no occasion to find special circumstances and extend that period to enable the Respondent to address his drug addiction. Accumulation of the sentences imposed on the two charges does however constitute special circumstances. The sentence that should be imposed for the supply of a large commercial quantity of methylamphetamine is one of 9 years including a non-parole period of 6 years and 6 months.

88 On the principle of totality, the sentences I have proposed should be made partly concurrent. Because of their increased length and the considerations to which I referred in R v Spiteri, I would propose that accumulation remain at the one year level adopted by Graham ADCJ, leading to an effective sentence that includes a 7 years and 6 months non-parole period and a balance of term of 2 years and 6 months.

89 Accordingly, the orders I propose are:-

(ii) Quash the sentences imposed on the Respondent by Graham ADCJ on 15 June 2009 and in lieu thereof sentence the Respondent as follows;

(iii) In respect of the charge of possessing more than three firearms being two prohibited pistols and two prohibited firearms and which the Respondent was unauthorised by licence or permit to possess, sentence the Respondent to imprisonment for a non-parole period of 3 years and 9 months commencing on 15 January 2008 and a balance of term of 1 year and 3 months;

(iv) In respect of the charge of supplying a large commercial quantity of methyl-amphetamine, sentence the Respondent to imprisonment for a non-parole period of 6 years and 6 months commencing on 15 January 2009 and a balance of term of 2 years and 6 months; and

(v) Record as the date upon which it appears to the Court as the date upon which the Respondent shall become eligible for parole, 15 July 2015.

90 LATHAM J: I agree with RS Hulme J.

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R v Mahmud [2010] NSWCCA 219

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CITATION:	R v Jihad MAHMUD [2010] NSWCCA 219
HEARING DATE(S):	2 March 2010
JUDGMENT DATE:	24 September 2010
JUDGMENT OF:	Giles JA at 1; Hulme J at 2; Latham J at 90
DECISION:	(i) Allow the Crown appeal; (ii) Quash the sentences imposed on the Respondent by Graham ADCJ on 15 June 2009 and in lieu thereof sentence the Respondent as follows; (iii) In respect of the charge of possessing more than three firearms being two prohibited pistols and two prohibited firearms and which the Respondent was unauthorised by licence or permit to possess, sentence the Respondent to imprisonment for a non-parole period of 3 years and 9 months commencing on 15 January 2008 and a balance of term of 1 year and 3 months; (iv) In respect of the charge of supplying a large commercial quantity of methyl-amphetamine, sentence the Respondent to imprisonment for a non-parole period of 6 years and 6 months commencing on 15 January 2009 and a balance of term of 2 years and 6 months; and (v) Record as the date upon which it appears to the Court as the date upon which the Respondent shall become eligible for parole, 15 July 2015.
PARTIES:	Regina Jihad MAHMUD
FILE NUMBER(S):	CCA 2009/1953
COUNSEL:	Mr F Veltro (Crown) Mr GD Wendler (Respondent)
SOLICITORS:	Mr S Kavanagh (Solicitor for Public Prosecutions) Mr S O'Connor (Legal Aid Commission)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/1953
LOWER COURT JUDICIAL OFFICER:	Graham ADCJ