R v Mansaray

[2020] NSWDC 114

District Court

New South Wales

Medium Neutral Citation:	R v Mansaray [2020] NSWDC 114
Hearing dates:	3 April 2020
Decision date:	16 April 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [59]
Catchwords:	Possession of prohibited pistol without licence
Legislation Cited:	Firearms Act 1996
Cases Cited:	Callaghan v R [2006] NSWCCA 58 Zreika v R [2012] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Kassim Mansaray (Offender)
Representation:	Counsel: Mr Pickin (Offender)   Solicitors: Ms I Maxwell-Williams (Crown)
File Number(s):	19/172076
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of one charge of possess prohibited pistol without licence, to which he has pleaded guilty. The offence is pursuant to s 7(1) of the Firearms Act 1996 and it carries a maximum penalty of 14 years imprisonment and a Standard Non-Parole Period of 4 years imprisonment.

2. The offence occurred on 1 June 2019 and the offender has been in custody since his arrest on that day. At the time of the offending the offender was on parole, which was revoked on 1 June 2019 on the basis of the commission of the index offence, and previous failures to report and engage with any treatment, as well as use of an illicit drug.

The sentence hearing

3. The sentence hearing took place on 3 April 2020. The Crown Sentence Summary became Ex A. It included a Statement of Agreed Facts which may be summarised as follows. About 10pm on Saturday 1 June 2019, the police attended premises at Bankstown, responding to a report of a disturbance at the address which was occupied by the offender’s brother. As police approached the front door of the premises, they saw the offender outside in a hallway and spoke to him. They searched a shopping trolley which was two to three metres away from the offender, and had two items of clothing in it, including tracksuit pants. Inside the pocket was a bankcard in the name of the offender’s girlfriend. The offender indicated that the tracksuit pants were his. Also in the trolley was a jacket with a packet of cigarettes in one pocket. The offender indicated they were his. Police then located a black pistol with a wooden brown handle in another pocket of the jacket. The offender denied ownership of the pistol. He was then arrested.

4. Following examination by a ballistics expert, the pistol was found to be an “Edison Giocattoli” brand cap gun. It displayed similar external features in terms of form, size and appearance, of a revolver-style pistol. There was no evidence that the pistol was loaded, or that it was capable of firing a projectile of any kind. Rather, it was accepted that the pistol was an “imitation firearm that is an imitation of a pistol” for the purposes of s 4D(2)(a) of the Firearms Act 1996.

5. The offender was not authorised in any way or at any time to possess such a pistol.

6. Exhibit A included a photograph of the pistol, together with the criminal antecedents of the offender. They included an offence of goods in personal custody suspected being stolen in 2011; drug possession offences in 2014; traffic offences in 2014 and 2015, for which the offender received a fine; and in 2015 an offence of specially aggravated break and enter and commit serious indictable offence, for which he was sentenced to a term of imprisonment of 5 years and 9 months with a non-parole period of 3 years and 5 months commencing on 22 April 2015. An appeal to the Court of Criminal Appeal was dismissed. On 19 March 2019 he was convicted of two offences that occurred on 31 December 2018 of drive vehicle with illicit drug present in blood, and unlicensed driving, for which he was fined.

7. Exhibit A also included the offender’s custodial history. It also included the facts on which the offender was sentenced by Judge Frearson SC on 30 November 2016, together with his Honour’s remarks on sentence.

8. Exhibit A also included the order revoking the offender’s parole and the breach of parole report dated 3 June 2019.

9. Exhibit B was a Sentencing Assessment Report under the hand of Ms H Whitley dated 1 April 2020. The author recorded that the offender had been staying with a cousin for approximately one week prior to the index offence. Problems arose between the pair of them during this stay which ultimately led to the index offence. The author further noted the offender’s criminal history consisted of offences relating to violence, driving and illicit substances. Since being released from custody in September 2018, he had been convicted of three offences of driving under the influence of illicit substances.

10. Under the heading “Attitudes”, the author noted that the offender had taken responsibility for the offence. She also noted that he claimed that his cousin had “set him up” for the offence, knowing this would involve breach of his parole order, however, he disavowed this at the sentence hearing.

11. Under the heading “Mental Health”, the author noted that the offender had been diagnosed with Chronic Depressive illness including Post-Traumatic Stress Disorder (“PTSD”) due to his exposure of the volatile environment in his home country of Sierra Leone when he was younger. He still suffers from recurring nightmares and has often turned to illicit substances as a means of coping. Whilst he had undertaken previous treatment to address his mental health issues, he was now reluctant to engage with further counselling.

12. Under the heading “Insight into impact of offending”, the offender offered little insight into his offending and deflected blame onto others. The author noted that the offender claimed that he often makes impulsive decisions and acknowledged the need for him to stop and think things through prior to acting in the future. He stated that he was now willing to undertake interventions to address his criminogenic needs, and would engage with his GP for ongoing management and monitoring of his mental health.

13. The offender was assessed as a medium/high risk of re-offending and the author set out a supervision plan to prepare him for his return to the community.

The offender’s evidence

14. The offender tendered a report of Mr Tim Watson-Munro dated 1 April 2020 (Ex 1).

15. Mr Watson-Munro reported that during his previous custody, the offender was medicated for his depression, however, following his release to parole he became non-compliant with medication which led to a recrudescence of his symptoms. He had now detoxified during his current custody and was now compliant with his medication regime. He was also motivated to re-enter the workforce following his release from custody.

16. Mr Watson-Munro opined that there was a direct nexus between the offender’s early childhood trauma, unresolved symptoms arising from numerous traumatic events and the development of a Substance Use Disorder as a means of self-medicating. This in turn had led to his criminal activity. The offender’s father had died in combat in 1999 during the Civil War in Sierra Leone. His family had fled that country in 2000 and spent a brief time in Guinea before travelling to Australia. The Crown accepted that the offender had high levels of anxiety, hypervigilance and some features of PTSD arising from his experiences as a young person during his formative years.

17. Mr Watson-Munro recorded that the offender is on a waiting list for the EQUIPS aggression program. That reflected some insight into his need for professional assistance. The author opined that he would also benefit from Cognitive Behaviour Therapy focussed on developing more effective relapse prevention strategies. He described the offender as “a genuine individual who is keen to move forward with his life”, and further opined that “with employment, supervision, treatment and structure in his life, considerable gains will be made in terms of his overall prognosis”.

The Crown submissions

18. The Crown relied on a detailed written outline of submissions. The Crown conceded that the offending fell below the mid-range of objective seriousness for an offence pursuant to s 7(1) of the Firearms Act, however, did not accept that it falls at the low range. The following factors were relevant to this assessment:

“(a) In the mind of the person whom the firearm might have been presented, the firearm would still appear dangerous and operational. They would not know the firearm was a replica.

(b) When asked about the pistol, the offender denied that it belonged to him.

(c) The offender was in possession of the pistol in a public place.

(d) The offender came to the attention of police by virtue of his presence/attendance at that place.

(e) The offender has never, at any time, been licenced/authorised to possess a pistol.”

19. The Crown noted that there was no evidence as to why the offender had the pistol in his possession. The Crown submitted that at the time of the offending, the offender was on parole for his involvement in a serious and violent home invasion in 2015. He was just over seven months into the 2 year and 4 month parole period when the offence occurred. In that previous offence, the sentencing judge had found that he was armed at the time of the home invasion, although not with a firearm. The fact that the offender was on parole significantly aggravates the seriousness of the offence, pursuant to s 21A(2)(j) of the CSPA.

20. The Crown submitted that both general and specific deterrence loom large in the sentencing exercise for offences of possession of firearms.

21. In respect of the offender’s prospects of rehabilitation, the Crown submitted that the previous sentencing judge had been guarded in his findings in relation to remorse and found that the offender was a moderate to high risk of re‑offending. The Crown submitted that he remains at such a risk, and that there is no evidence of remorse available at this stage. Further, the offender’s custodial history revealed that he had committed 13 custody related offences which demonstrated an indifference to rehabilitation on the part of the offender. The Crown also noted that the breach of parole report concluded that his response to supervision was unsatisfactory and that he had refused to engage with prescribed mental health treatment despite multiple directions. This was relevant to whether any finding of special circumstances could be made.

22. In regard to the structure of any sentence, the Crown noted that the parole period the offender is presently serving expires on 21 January 2021. The offender would therefore have the benefit of concurrently serving the balance of parole and any sentence imposed for the index offence for a period of at least 10 months. Therefore the sentence should commence on the date of sentence.

23. The Crown submitted that the only appropriate disposition was a period of full‑time imprisonment, with a term which must reflect the need for general deterrence for firearms offences, the criminal history of the offender and the fact that he was on conditional liberty at the time of the offending.

24. In her oral submissions, the Crown rehearsed the salient features of the offending to be taken into account in assessment of the objective seriousness of the offending. The photo in Ex A of the pistol demonstrated that it was a very realistic replica. Further, the offender had denied possession, and had been in a public place. He had never been licenced to possess a firearm. The fact that the offender was on parole at the time of the offence elevated it to very serious offending.

25. The Crown rehearsed her submissions as to the importance of general and specific deterrence in the sentencing for firearms offences. Here, the offender had deflected blame for his offending and had not accepted responsibility for it.

26. Whilst the Crown accepted the offender’s exposure to traumatic events in the civil war in Sierra Leone as a child, it submitted that there was no causal nexus between those psychological issues and the instant offending here.

27. The Crown submitted that the offender’s prospects of rehabilitation were particularly limited and he had demonstrated a continuing disregard for authority which was demonstrated by his custodial infringements and his unsatisfactory response to supervision, as outlined in the breach of parole report. These matters combine to demonstrate that no special circumstances should be found so as to allow an extended period on parole.

28. Rather, the Crown submitted that the s 5 threshold in the CSPA had been crossed. The Crown submitted that pursuant to s 47(5) of the CSPA there would be concurrency of the balance of parole and the sentence for the index offence for at least 10 months. It was therefore unnecessary to backdate the commencement date of the sentence.

29. In her oral submissions, the Crown acknowledged, given the disadvantaged background of the offender, that a finding of special circumstances was available, but submitted that it must reflect the offender’s patently limited prospects of rehabilitation. Any sentence therefore must reflect the principles of general deterrence, the offender’s criminal antecedents and the fact that he was on conditional liberty for very serious offences at the time of committing this offence.

The offender’s submissions

30. Counsel for the offender also relied a written outline of submissions.

31. Counsel referred the court to the definition of “imitation firearm” in s 4D(2) of the Firearms Act. It was submitted that the relevant article here was an imitation revolver-style firearm that was incapable of use or being altered for actual use and could not be used to propel a projectile. It was therefore incapable of inflicting any physical harm or being subsequently used or fashioned for such a purpose.

32. The offender submitted that the Agreed Facts did not allege that the firearm was used in a threatening manner or in relation to any criminal act or purpose. The offender had denied ownership of the firearm.

33. The offender relied on Ex 1 to submit that he was suffering from a number of underlying mental illnesses including PTSD and an Anxiety and Depressive Disorder at the time. He also suffered from a Substance Abuse Disorder. It was submitted that his judgment was likely to be impaired to some extent.

34. It was submitted that the objective seriousness of the offending fell below the mid-range of seriousness for the following reasons:

• “The fact that it was not ‘used’

• The fact that the ‘possession’ averred (and admitted) cannot be proven to be ongoing or one based in ownership. It is a real possibility that (as he said) he was not the owner – and I note that the relevant premises were not his current residence

• ‘The firearm’ was a replica – incapable of use or of conversion to use so as to represent a physical danger to persons then or later (by others)

• ‘The firearm’ was NOT in the personal custody (on his person where it may have been used to intimidate or threaten)

• ‘The firearm’ was not used in conjunction with any offence, nor on the evidence was this intended or likely (he is not alleged to have been aggressive or intoxicated)

• There is no evidence that any possession for an illicit criminal purpose or to facilitate any crime

• There are no s 21A features of ‘aggravation’ applicable, save that he was at conditional liberty (released in September 2018).”

35. It was submitted that based on his mental state and impairment due to illness, the offender’s moral blame-worthiness may be mitigated.

36. The offender submitted the following matters were relevant to his subjective case. The offender had pleaded guilty and was entitled to a 25% discount. His remorse was evidenced by his plea of guilty and by him telling Mr Watson‑Munro, “I feel guilty over many things I have done or should have done”.

37. It was submitted that the offender’s prospects of rehabilitation, whilst guarded, are reasonable. It was further submitted that the matter could have been disposed of summarily. The offender’s history of extreme childhood hardship and disadvantage is relevant to the sentencing process and it was conceded that the offender’s criminal history disentitles him to leniency.

38. Counsel referred to JIRS statistics and submitted that any sentence should be backdated to his arrest in June 2019.

39. In his oral submissions, counsel rehearsed his submissions as to the discretionary power to backdate the sentence, relying on Callaghan v R [2006] NSWCCA 58. The offender had been released on parole on 21 September 2018 and his parole was revoked only after he was charged with the index offence. He had now been in custody for a period of 10 months and 3 days.

40. Counsel rehearsed his submissions as to the pre-existing genuine mental health history of the offender, his diagnosis of PTSD and his history of Substance Abuse Disorder, which was no doubt linked to it.

41. It was submitted that there was some basis for guarded optimism in terms of his rehabilitation and recidivism. This offence was less serious than that for which he was previously convicted. In that previous matter, the sentencing judge had not been satisfied that the offender had a firearm. The custodial records demonstrated that he had numerous misconduct charges, whereas since he had been in custody on remand following revocation of his parole, he had only two misconduct charges, one in 2019 and one in 2020. It was submitted that this suggested that with the clarity brought about by his detoxification, he was at a cross‑roads and demonstrated a willingness to engage.

42. Counsel rehearsed his submissions that there was no suggestion of criminal conduct with respect to the firearm. It was discovered on private property in circumstances where the offender was homeless and desperate and was non‑compliant with his medical regime.

43. Counsel conceded that there was not enough evidence to conclude a causal nexus between the offender’s mental health state and his offending, and he did not claim that he was not a vehicle for general deterrence. Notwithstanding that, the court would take into account his background and the diagnosis of PTSD. The fact that he was non-compliant with treatment probably did contribute to his offending behaviour. On balance therefore, the court could take into account general deterrence in a diminished way.

44. It was submitted that the offender was now thinking clearly and had applied for the EQUIPS program. He needed supervision over a long period of time to ensure he was prepared and special circumstances were established. The court would also take into account the fact that he was keen to work and that the community would be protected.

45. It was submitted that his plea of guilty demonstrated some remorse for his criminal behaviour.

46. Counsel submitted that the Sentencing Assessment Report provided some evidence of remorse, that the offender had now some insight into his offending, which demonstrated that he had reasonable prospects of rehabilitation that would warrant a finding of special circumstances.

47. Counsel rehearsed his submissions that it was not impermissible for this matter to be heard in the Local Court, relying on Zreika v R [2012] NSWCCA 44. It was accepted that the s 5 threshold had been crossed and a custodial sentence should be imposed, however, the statistics demonstrated sentences of between 12 and 18 months for such offences and an appropriate sentence in this case would be a term of imprisonment for nine months, backdated to his date of arrest. Alternatively, there should be a finding of special circumstances so as to alter the statutory ratio between head sentence and non-parole period.

Determination

48. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

49. In assessing the objective seriousness of the offending here, I take into account that the prohibited pistol had similar external features, in terms of form, size and appearance, of a revolver-style pistol. As an imitation firearm, it was not loaded, nor was it capable of firing a projectile of any kind. I accept the Crown submission that in the mind of any person to whom the firearm might have been presented, it would appear dangerous and operational. Such a person would not know that the firearm was a replica. I note the firearm was located inside clothing in a shopping trolley, outside premises where the offender had been staying. It was therefore not in his personal custody to the extent of being on his person, nor was there any evidence that the offender intended to use it for any criminal purpose. I accept the Crown submission that the objective seriousness of the offending fell below mid‑range for an offence pursuant to s 7(1) of the Firearms Act, however, it was not at the lowest end of the range and fell in the middle of the low range for such an offence.

50. An aggravating feature of the offending here was that the offender was on parole at the time of the offence and was therefore on conditional liberty.

51. It is uncontroversial that general deterrence is important in the sentencing for firearms offences. A clear message must be sent to like-minded members of the community that possession of unlicensed and unauthorised firearms have been proscribed heavy maximum penalties by Parliament and that the courts will impose condign punishment for such offences.

52. Specific deterrence is also important here, given that the offender was on parole in respect of serious offending for which he was sentenced by Judge Frearson SC to a term of imprisonment of 5 years and 9 months, with a non‑parole period of 3 years and 5 months. He was 7 months into that parole period when he offended. The offender must understand that to continue to offend in this manner, will only bring more lengthy sentences.

53. There are significant subjective factors to be taken into account on sentence here. The offender was traumatised at a young age by events concerning the civil war in his home country of Sierra Leone. His father and other relatives were killed and he came to this country as a refugee. I accept that he has been diagnosed with PTSD and that he has suffered high levels of anxiety and hypervigilance. This has led to the development of a Substance Use Disorder because of his self-medicating, which in turn has led to criminal activity. This history must be taken into account in the sentencing process.

54. I accept that the offender has made some small progress with his rehabilitation in that he is on a wait list for an EQUIPS Aggression program. The fact that he has detoxified during his current custody and is now compliant with his medication regime, gives some cause for optimism, together with the fact that he is now motivated to re-enter the workforce following his release from custody. Whilst it is difficult to arrive at a conclusion that he has good prospects of rehabilitation, given his high risk of re‑offending, there is some cause for optimism for his rehabilitation prospects. Further, this provides a basis for a finding of special circumstances pursuant to s 44(2) of the CSPA.

55. The offender is entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty. That plea also carries some remorse, however, I am not persuaded that by telling Mr Watson-Munro, “I feel guilty over many things I have done, or should have done”, was an expression of remorse and contrition for the criminal conduct here.

56. I am further not persuaded that the possibility that this matter could have been dealt with by way of summary disposal, is a mitigating factor. In Zreika v R, supra, Johnson J at [83] stated:

“The possibility of summary disposal as a mitigating factor is to be confined to a rare and exceptional set of circumstances where the offender is being sentenced in the District Court for an offence which may be seen as a clear summary offence which would otherwise have been prosecuted in the Local Court.”

That is not the case here, where the offender was found in possession of an imitation pistol when he was on parole for other seriously violent offending. I therefore do not accept the fact that the matter may have been summarily disposed of is a mitigating factor.

57. I have also had regard to the JIRS statistics in respect of offences pursuant to s 7(1) of the Firearms Act 1996. Such statistics should be approached with some caution given the nature of the statistics, and each case has to be determined on its own factual circumstances.

58. As outlined above, I do find special circumstances here pursuant to s 44(2) of the CSPA. The offender is also entitled to a 25% utilitarian discount on sentence, and his background may be taken into account as diminishing his moral culpability and therefore lessening the importance of general deterrence to a certain extent. I have also taken into account that the offender served seven months of his parole without offending and that he has been serving the balance of his parole since his arrest on 1 June 2019. I am satisfied pursuant to s 5 of the CSPA, having considered all possible alternatives, that no other penalty other than a term of imprisonment is appropriate for this serious offence. In applying principles of totality and proportionality, as I am required to do, I intend to sentence the offender to a term of imprisonment of 2 years. Having found special circumstances, I intend to vary the statutory ratio between head sentence and non-parole period and to impose a non-parole period of 1 year, to commence today.

Orders

59. I make the following orders:

1. You are convicted of an offence of possess prohibited pistol without licence pursuant to s 7(1) of the Firearms Act 1996.

2. I sentence you to a non-parole period of 12 months to date from 16 April 2020 and to expire on 15 April 2021.

3. The balance of term will be a period of 12 months from 16 April 2021 to 15 April 2022.

4. I order that the firearm be destroyed.

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Decision last updated: 17 April 2020