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R v Mowlawisada

R v Mowlawisada

Case [2023] NSWDC 401 22 September 2023

Possession of Prohibited Firearm

Possession of Unauthorised Pistol

Dealing with Proceeds of Crime

Supply of Prohibited Drug in Commercial Quantity

Sentencing

Rehabilitation

Special Circumstances

Non-Parole Period

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Mowlawisada [2023] NSWDC 401
Hearing dates: 7 July 2023, 18 August 2023
Date of orders: 22 September 2023
Decision date: 22 September 2023
Jurisdiction: Criminal
Before: Judge Fitzsimmons SC DCJ
Decision:
(1)   The offender, having pleaded guilty to Counts 2, 3, 4 and 7 is convicted of those offences.
(2)   I impose a total aggregate sentence of imprisonment of 6 years to date from 24 November 2021 and to expire on 23 November 2027.
(3)   I impose a non-parole period of 3 years 1 months to date from 24 November 2021 and expiring on 23 December 2024.
(4)   The earliest date the offender is eligible to be released on parole is 23 December 2024.

Catchwords:
CRIME – sentence – possess unauthorised pistol – possess prohibited firearm - dealing with proceeds of crime - supply prohibited drug commercial quantity – 10% discount for guilty plea – disadvantaged upbringing – mental health impairment at time of offending – rehabilitation – special circumstances – reduced non parole

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999, ss 21A(2), 25D(2)(b), 37, 53A
Crimes Act 1900, s 193B(2)
Drug Misuse and Trafficking Act 1985, ss 25(1), 25(2), 10
Firearms Act 1996, ss 4(1), 7(1), 36(1), 65(3), 74(1), 74(3)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:
Abbas, Bodiotios, Talev and Amoun v R [2013] NSWCCA 115
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 15
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hoskins v R [2021] NSWCCA 169
R v Farrell [2015] NSWCCA 68
R v Pak [2015] NSWCCA 45
Rakielbakhour v DPP [2020] NSWSC 323
Sumrein v R [2019] NSWCCA 83
TM v R [2023] NSWCCA 185

Category: Sentence
Parties: Rex (Crown)
Ibrahim Mowlawisada
Representation:
Counsel:
Mr J Peluso (Offender)
Solicitors:
Office of the Department of Public Prosecutions (NSW) (Crown)
Astoria Lawyers (Offender)

File Number(s): 2021/00334795
Publication restriction: N/A

JUDGMENT

The offender is to be sentenced in respect of four offences, having entered a plea of guilty at the third arraignment listing following committal for trial. The four offences are as follows: –

Count 2 - Supply prohibited drug (not less than the commercial quantity) (417.95 grams of methamphetamine) contrary to s 25(2) the Drug Misuse and Trafficking Act 1985. The maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years. Attached to this offence on a Form 1 is an offence of supply prohibited drug (14.12 g of cocaine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and possess prohibited drug (3.6 g of cannabis leaf) contrary to s 10 of the Drug Misuse and Trafficking Act 1985.

Count 3 - Knowingly possess proceeds of crime ($87,960) contrary to s 193B(2) of the Crimes Act 1900. The maximum penalty is 15 years imprisonment with no standard non-parole period .

Count 4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mowlawisada

Details

AGLC: R v Mowlawisada [2023] NSWDC 401
Case: [2023] NSWDC 401
Decision Date: 22 September 2023

CaseChat Overview and Summary

In the matter of the Crown versus Mowlawisada, the offender was found in possession of an unauthorised pistol, a prohibited firearm, and commercial quantities of a prohibited drug, while also dealing with the proceeds of crime. The offender entered a guilty plea for four of the counts against them, resulting in their conviction on those counts. The court imposed a total aggregate sentence of imprisonment of 6 years and 3 months, with a non-parole period of 3 years and 1 month. The court took into consideration the offender's disadvantaged upbringing, mental health impairment at the time of offending, and their potential for rehabilitation in determining the sentence.

The legal issues before the court included whether the offender's background and mental health at the time of the offending warranted a reduced sentence, and if the discount for a guilty plea should apply. The court considered the offender's disadvantaged upbringing and mental health impairment as mitigating factors, but also noted the seriousness of the offences committed. The court also considered the offender's early guilty plea as a mitigating factor, which resulted in a 10% discount to the sentence. The court found that the offender's background and mental health impairment did warrant a reduced non-parole period, but the offences committed were still serious enough to warrant a significant sentence.

The court took into consideration the principles of deterrence, denunciation, rehabilitation, and protection of the community in determining the sentence. The court found that the sentence imposed would adequately reflect the seriousness of the offences, provide for the protection of the community, and provide an opportunity for the offender's rehabilitation. The court also found that the offender's disadvantaged upbringing and mental health impairment at the time of offending were significant mitigating factors, but not sufficient to warrant a significant reduction in the sentence. The court ultimately determined that a total aggregate sentence of imprisonment of 6 years and 3 months, with a non-parole period of 3 years and 1 month, was appropriate in this case. The offender is eligible for parole after serving the non-parole period.

Orders

Orders of the court

(1) The offender, having pleaded guilty to Counts 2, 3, 4 and 7 is convicted of those offences.

(2) I impose a total aggregate sentence of imprisonment of 6 years to date from 24 November 2021 and to expire on 23 November 2027.

(3) I impose a non-parole period of 3 years 1 months to date from 24 November 2021 and expiring on 23 December 2024.

(4) The earliest date the offender is eligible to be released on parole is 23 December 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Mowlawisada [2023] NSWDC 401

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 12 of 12 shown

TM v R
[2023] NSWCCA 185 Para 75

…continue his rehabilitation as found. In the circumstances, I find this is a suitable case for leniency in considering the non-parole period; TM v R [2023] NSWCCA 185 at [103] (Yehia J with whom Payne and Stern JAA). In all the circumstances, I fix a non-parole period of 3 years 1 month.…
Hoskins v R
[2021] NSWCCA 169 Para 71

…advantaged upbringing, and the abuse to which he was subjected whilst in juvenile custody, that his moral culpability is reduced: Bugmy ; Hoskins v R [2021] NSWCCA 169.…
Rakielbakhour v DPP
[2020] NSWSC 323 Para 73

…s or contact. The hardship arising from these circumstances are to be taken into account in considering the appropriate sentence: Rakielbakhour v DPP [2020] NSWSC 323.…
Sumrein v R
[2019] NSWCCA 83 Para 51

…aler who was in possession of firearms in connection with a criminal enterprise, elevating the objective gravity of the firearm offences: Sumrein v R [2019] NSWCCA 83 at [22] – [45]. Both firearms were found to be in working order and the .38 calibre Smith & Wesson was found wrapped alongside ammunition suitable fo…
R v Farrell
[2015] NSWCCA 68 Para 51

…le for use in the firearm. The objective seriousness was further elevated where the ammunition was located in proximity to the firearm: R v Farrell [2015] NSWCCA 68.…
Pak v R
[2015] NSWCCA 45 Para 50

…However, the Crown contended that the quantity of the drug was not the only factor that could be taken into consideration, citing R v Pak [2015] NSWCCA 45. Supporting a submission that the offender was engaged in a drug supply enterprise, the Crown noted that other items found in the unit occupied by the offender i…
Bugmy v The Queen
[2013] HCA 37 Para 60

…od disadvantage was one of the most significant factors in the sentencing process and the principles referred to in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 were applicable.…
Abbas, Bodiotis, Taleb and Amoun v R
[2013] NSWCCA 115 Para 54

…The Crown noted the comments of Bathurst CJ in Abbas, Bodiotios, Talev and Amoun v R [2013] NSWCCA 115 in respect to the approach to the Form 1 matters.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 72

…ity in respect of the offences be reduced and general deterrence is less of a factor in the sentencing process: DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] to [178].…
BP v R
[2010] NSWCCA 159 Para 74

…ised that emotional maturity and impulse control is not necessarily fully developed at the end of the teenage years ( BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159), it is necessary to look at the circumstances in which the offences occurred. I am not satisfied that the offender’s youth, any undeveloped emotiona…
WILLIAMS v R
[2010] NSWCCA 15

…t Forensic Provisions Act 2020 Cases Cited: Abbas, Bodiotios, Talev and Amoun v R [2013] NSWCCA 115 BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 15 Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hoskins v R [2021] NSWCCA 169 R v Farrell [2015] NSWCCA 68 R v Pak [2…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 3

…ciples enunciated by the Court of Criminal Appeal in The Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No.1 (2002) 56 NSWLR 146. Spigelman CJ observed at [39]:…

Legislation cited in this decision · 5

Firearms Act 1996 (TAS)
36(1), 4(1), 65(3), 7(1), 74(1), 74(3) 7 mentions (from Para 3)
Crimes (Sentencing Procedure) Act 1999 (NSW)
21A(2), 25D(2)(b), 37, 53A 5 mentions (from Para 2)
Drug Misuse and Trafficking Act 1985 (NSW)
10, 25(1), 25(2) 4 mentions (from Para 1)
Crimes Act 1900 (ACT)
193B(2) 2 mentions (from Para 2)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 31)

Medium Neutral Citation:	R v Mowlawisada [2023] NSWDC 401
Hearing dates:	7 July 2023, 18 August 2023
Date of orders:	22 September 2023
Decision date:	22 September 2023
Jurisdiction:	Criminal
Before:	Judge Fitzsimmons SC DCJ
Decision:	(1) The offender, having pleaded guilty to Counts 2, 3, 4 and 7 is convicted of those offences. (2) I impose a total aggregate sentence of imprisonment of 6 years to date from 24 November 2021 and to expire on 23 November 2027. (3) I impose a non-parole period of 3 years 1 months to date from 24 November 2021 and expiring on 23 December 2024. (4) The earliest date the offender is eligible to be released on parole is 23 December 2024.
Catchwords:	CRIME – sentence – possess unauthorised pistol – possess prohibited firearm - dealing with proceeds of crime - supply prohibited drug commercial quantity – 10% discount for guilty plea – disadvantaged upbringing – mental health impairment at time of offending – rehabilitation – special circumstances – reduced non parole
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 21A(2), 25D(2)(b), 37, 53A Crimes Act 1900, s 193B(2) Drug Misuse and Trafficking Act 1985, ss 25(1), 25(2), 10 Firearms Act 1996, ss 4(1), 7(1), 36(1), 65(3), 74(1), 74(3) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Cases Cited:	Abbas, Bodiotios, Talev and Amoun v R [2013] NSWCCA 115 BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 15 Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hoskins v R [2021] NSWCCA 169 R v Farrell [2015] NSWCCA 68 R v Pak [2015] NSWCCA 45 Rakielbakhour v DPP [2020] NSWSC 323 Sumrein v R [2019] NSWCCA 83 TM v R [2023] NSWCCA 185
Category:	Sentence
Parties:	Rex (Crown) Ibrahim Mowlawisada
Representation:	Counsel: Mr J Peluso (Offender) Solicitors: Office of the Department of Public Prosecutions (NSW) (Crown) Astoria Lawyers (Offender)
File Number(s):	2021/00334795
Publication restriction:	N/A