R v Osman Elmasri

[2013] NSWDC 177

District Court

New South Wales

Medium Neutral Citation:	R v Osman Elmasri [2013] NSWDC 177
Hearing dates:	22 August 2013
Decision date:	19 September 2013
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Custodial sentence imposed; for Orders see [58]
Catchwords:	Sentence; possession of firearm
Legislation Cited:	Firearms Act 1996 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Krstic [2005] NSWCCA 391 R v AA [2006] NSWCCA 55 Zreika v R [2012] NSWCCA 44 Pearce v The Queen (1998) 194 CLR 610
Category:	Sentence
Parties:	The Crown Osman Elmasri - Offender
Representation:	C Reynolds - Crown Solicitor P Givorshner - Offender
File Number(s):	13/78864
Publication restriction:	Nil

Judgment

Introduction

1. The offender is charged with an offence pursuant to s 7(1) of the Firearms Act 1996 in that on 14 March 2013 he was in possession of an unauthorised prohibited firearm, being a prohibited pistol, to wit, a .38 calibre Smith and Wesson revolver, not being authorised to do so by a license or permit.

1. The offender has been in custody since the date of his arrest on 14 March 2013. He pleaded guilty to the offence and was committed for sentence on 22 May 2013.

1. The matter came on for sentence hearing before me at Parramatta District Court on 22 August 2013. There was one matter to be dealt with on a Form 1, namely, one charge pursuant to s 65 (3) of the Firearms Act 1996 of possess ammunition without holding a license/permit/authority for firearm without holding a license or permit for a firearm which takes that ammunition. I have certified that that matter has been taken into account pursuant to s 35 of the Crimes (Sentencing Procedure) Act 1999 (the C(SP)A") - see exhibit B.

Statement of Agreed Facts

1. A Statement of Agreed Facts became exhibit A4 on the Sentence Hearing. The following is a summary. On 14 March 2013 the Police executed a search warrant at premises at 45 Warren Road, Woodpark, part of which was occupied by the offender and his wife Rachel Games. During a search of the living area Police located a .38 Smith and Wesson revolver with serial number 7455 which was loaded with six rounds of ammunition in a black-coloured soft holster. The weapon was located in a drawer, together with a wallet and a number of Vodafone unused sim card packets. The wallet contained identification and other document in the name of the offender as well as $550 cash.

1. The offender was arrested but declined to participate in an electronically recorded interview. The weapon was sent to ballistics for examination and was found to be in working order. Part of the serial number was missing and the revolver was deemed to be a prohibited pistol. The .38 calibre cartridges were also examined by ballistics and were found to be designed for use in the .38 Smith and Wesson revolver.

Antecedents

1. The only antecedents of the offender were matters dealt with in the Fairfield Local Court on 19 May 2006 for possess/use a prohibited weapon without a permit and common assault, both of which were dealt with by way of a bond pursuant to s 10 for twelve months. It was common ground that the prohibited weapon, the subject of that charge, was a can of pepper spray.

1. The offender was born on 20 December 1973 and is now thirty-nine years of age.

Evidence on Sentence Hearing

1. The offender relied on two reports of a psychologist, Ms Rima Nasr, dated 24 June 2013 and 21 August 2013 (exhibit 1). The offender was assessed for the purpose of those reports on 17 June 2013 for approximately one and a half hours. The offender was one of four children and came with his family to Australia from Lebanon when he was nine years of age. He came from a stable family background. He completed his year ten school certificate, leaving school shortly thereafter to obtain work as a furniture upholsterer. He worked for Brescher Furniture for thirteen years and then established his own business in furniture upholstery which he maintained up until the time of his arrest.

1. In 2003 the offender became involved with the Rebels motorcycle club. He remained a member of that club until early 2012 when he made a decision to leave. Thereafter, he was subjected to ongoing threats from persons associated with that club. He was supported in his decision to leave the motorcycle club by his wife and family.

1. The offender has two children by a former marriage now aged twelve and fifteen years. He and his wife married in January 2013. They had met during the time he was a member of the Rebels motorcycle gang, and he had supported her in overcoming a drug problem and also in qualifying as a nurse.

1. The offender disclosed to the psychologist that he was a victim of ongoing threats, having left the Rebels, that he had received repeated intimidatory phone calls and abuse on Facebook. His house was subject to a drive-by shooting in early 2012. Further, members of the club had attacked his older disabled brother at gunpoint, reinforcing his fear. He was concerned for his own safety and that of his wife and children. In those circumstances, he claimed that he obtained the prohibited firearm as a means of selfprotection, although he acknowledged to the psychologist the illegality of the firearm and the dangerousness in possessing it.

1. The offender expressed what the psychologist recorded as "seemingly genuine regret and remorse for his offending behaviour". He acknowledged the impact of his behaviour on society in general, his wife and family, and employees of his business. He now realised that he had made things worse for his family because he was now incarcerated and helpless to protect them at all.

1. No psychometric testing was possible, however, the offender did not exhibit overt signs of cognitive impairment.

1. The psychologist recommended that upon release into the community the offender should have regular treatment from a psychologist, particularly as any period of incarceration was likely to lead to a deterioration in his psychological functioning, exacerbated by his fears that his children will suffer. He had expressed a motivation to remain occupied in gaol and he used his time productively. To that end, he had completed a Certificate I in Access to Work and Training (Introductory) (see exhibit 3), and was doing a business class run by an outside TAFE so he could complete this course when released.

1. In the second report dated 21 August 2013 Ms Nasr responded to four matters that the offender's legal representatives had raised, namely:

(1)   To clarify if the offender met the criteria for a diagnosis of post-traumatic stress disorder. He did not, but he did demonstrate some post-traumatic symptoms.

(2)   Whether the offender's PTS symptoms impacted on his ability to make proper judgments in committing the offence. His symptoms did impact on his decision making and offending in as far as contributing to his heightened sense of distress in the circumstances.

(3)   Would his time in custody be more onerous as a result of his psychological symptoms? It was believed that any period of incarceration would be likely to contribute to the offender feeling increasingly vulnerable as he was away from his support systems.

(4)   Whether the offender's condition will be exacerbated by spending time in custody. It was stated that coping in a situation of prolonged incarceration is hard to predict and would depend on whether he was held in protective custody away from other inmates who may want to harm him.

1. Testimonials were tendered from Diana Elmasri, the offender's sister, Veronika Volk, Essy Hollingshed, Mrs Salin Rigoli and Mrs Helen Games, the offender's mother-in-law. All speak highly of the offender's good work ethic, his devotion to his wife and children and the devastating effect that his arrest and incarceration has had on his loved ones, the family and his business.

1. The offender himself gave evidence. He verified the history given by him to the psychologist and confirmed that his upholstery business had been doing well prior to his arrest. When he left the Rebels, demands were made upon him to pay money in respect of another member he had introduced to the club who left at the same time. When he resisted those demands, he was subject to intimidatory and insulting phone calls. He gave evidence that his disabled brother was with his family in a public place when he was approached by members of the Rebels who threatened him. His wife had also taken a threatening phone call. She was at the time a nurse working at Westmead Hospital. It was following that call that he acquired the prohibited firearm. Some weeks later, his home was subject to a drive-by shooting.

1. Notwithstanding that numerous bullets had penetrated the home, including the bedroom where he and his wife were sleeping, the Police were not called.

1. The offender gave evidence that he had left the Rebels club because the whole outlook of the club had changed, with a wave of "young thugs ... coming through the club". He was settled in his home life, and his business needed his attention.

1. At the time he acquired the prohibited weapon he did not focus on its illegality, he was only focussed on protection for himself and his family. He now understood that he had made matters worse for his wife and family, both by being unable to be present to protect them at all, and by causing his business to deteriorate.

1. In cross-examination the offender was not prepared to disclose where and from whom he had purchased the weapon. When asked why not, his reply was that it was not going to change anything. He acknowledged that it was a concern that the supply of a weapon would add to the stock of weapons in circulation in the community. He agreed that he had no training in the safe use of the weapon. He gave evidence that he was prepared to use the weapon to shoot at the floor or ceiling to "threaten but not to cause harm".

1. He acknowledged that the weapon was loaded at all times it was stored in his home and that he needed quick access to it at all times. It was located in an invisible drawer in a piece of furniture which was not locked, but was kept in place with a pin. He also acknowledged that he did consider the illegality of the item, however, he believed the threats to him and his family outweighed the illegality.

1. Mr Khodar Hayder gave evidence that he was living opposite the offender in Woodpark. They did not socialise but were on neighbourly terms. He was aware that the offender had been a member of a motorcycle gang and had seen regalia at the offender's home signifying that. He gave evidence corroborating that early in 2012 the offender's home was subject to a drive-by shooting. He had seen the offender that evening and the next day had examined the premises with him, seeing numerous bullet holes throughout the whole house. He did not call the Police because he believed the incident was bikie related and he did not want to get involved. In cross-examination he estimated that he had heard thirty shots fired. The effect of that incident was "scary".

1. On the basis of that evidence, the Crown conceded that it would be open to find, on the balance or probabilities, there was an incident largely consistent with that described by the offender that took place at his home in about April 2012.

1. The plaintiff's wife, Rachel Games, gave evidence that he was not a drug user and that he had helped restore her to good health and to re-establish her relationships with her family. She corroborated the offender's evidence that he had received threatening and disgusting phone calls following his withdrawal from the Rebels. She also confirmed the details of the driveby shooting. She described him as a kind man who had made a mistake. She had visited him in gaol regularly and he had expressed his remorse to her and felt that he had left her vulnerable. She produced records relating to his upholstery business which demonstrated for the same five months period in 2013, by comparison to 2012, turnover had diminished significantly. She had had trouble paying the wages of the employees in the business and had had to let one employee go.

1. Mrs Helen Games also gave evidence. She described the offender as a quietly spoken man with good manners who she had observed to be loving and caring of his children and keen to join in family events. He had supported her charitable interests by donating both time and money and had cared for her daughter.

Crown Submissions

1. The maximum penalty proscribed by s 7 of the Firearms Act is fourteen years imprisonment. A standard non-parole period was set at three years. The Crown conceded that the offender was entitled to a 25% discount on sentence by virtue of his early plea of guilty. With respect to the objective seriousness of the offence, the Crown submitted that the nature of the weapon, namely a .38 calibre Smith and Wesson in working order with six rounds of ammunition loaded in it, was an aggravating factor. Counsel for the offender conceded this. The Crown further submitted that the fact that it was kept in a place where the offender had access on short notice to it meant that it was not stored in a safe manner and that that bears on the seriousness of the offence. Further, the presence of children at various times in his house should be taken into account.

1. The Crown submitted that the fact that the offender attributed his possession of the firearm to protection of himself and members of his family was not a significant matter in mitigation, relying on R v Krstic [2005] NSWCCA 391 per Latham J, (with whom Sully and Hulme JJ agreed) at [13] and [14]: and R v AA [2006] NSWCCA 55 per Rothman J (with whom McLellan CJ at CL and Hulme J agreed at [45] and [46]). At [46] Rothman J said:

"It cannot be emphasised enough that the rule of law and the authority of Courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and is for the Courts to enforce the law."

1. The Crown submitted that the offence approached the middle range of objective seriousness for an offence pursuant to s 7 of the Firearms Act.

1. In respect of the reports of Ms Nasr, the Crown submitted that the symptoms described by her did not amount to a diagnosis of mental disease. The exacerbation of psychological symptoms which she referred to in her second report were not exceptional in any event, they would be symptoms that any offender would suffer in custody.

1. The hardship for the offender's wife and children was powerful evidence, particularly in respect of his wife and the detriment to his business if he was to remain in custody, however, the Crown submitted that those were factors which did not reach the level required to be regarded as extracurial punishment.

1. Further, the Crown submitted there was no evidence of any particular hardship he would suffer in custody other than any other prisoner on the objective factors present. There was no alternative to a full time custodial sentence given the objective seriousness of the offence towards the middle of the range. The Crown submitted that general and specific deterrence had application in the circumstances of the present case.

The Offender's Submissions

1. Counsel for the offender submitted that the offender obtained the prohibited weapon because he was terrified, for very good reasons, for the safety of himself, his wife and children. This was a case that could be distinguished from other similar offences in that there was no other criminality involved other than possession of the prohibited weapon.

1. Counsel submitted that the Court could take into account that it was open to the offender to argue there was a defence of justification or alternatively that the offender could have claimed necessity as a defence in the circumstances here. It was submitted that if protection of his family was possibly justifiable in law, then it should be taken into account. Here there was a grave and imminent peril to himself and his family which meant that he did not see any other avenues open to him. In terms, it was a "wholly exceptional case".

1. Further, Counsel submitted that this was a matter that could have been dealt with summarily, relying on Zreika v R [2012] NSWCCA 44. The charge pursuant to s 7 of the Firearms Act is a table 2 offence, and thus it is clear that the Crown elected to prosecute the applicant on indictment - see s 262 of the Criminal Procedure Act 1986.

1. Here, it was submitted that there was only one offence involving one firearm. In response to the Crown's submission of the objective seriousness of the offence approaching the middle, Counsel for the offender submitted that whilst the offence was not at the bottom range of objective seriousness because the gun was loaded, the gun was secured in an invisible drawer secured at the back by a pin. Any aggravating factors must be proved beyond reasonable doubt and in the circumstances of this case it was submitted that the objective seriousness of the offence was at the lower end of the scale because this was a wholly exceptional case and unlike any other case, involved no other aspects of criminality.

1. It was further submitted that there was a significant measure of extracurial punishment of the offender, he had effectively lost his business and he had already spent five and a half months in custody. It was submitted that that was long enough.

1. It was also submitted that the Court should have regard to the offender's mental state at the time of the offending, which may be a mitigating circumstance pursuant to s 21A(3)(j) of the C(SP)A. It was submitted that as he was obsessed with constant fear, relying on the report of Ms Nasr, he was suffering from symptoms of PTSD and therefore his moral culpability was somewhat diminished.

1. Counsel also submitted that he will serve a custodial sentence more onerously than someone who is not so afflicted. Although he had acted out of protection for his family, that had been turned on its head and he had left his wife more vulnerable and was now powerless to protect her and his family. This was a burden of real significance which he would continue to carry.

1. Counsel for the offender submitted that special circumstances were established in this case as it was the first custodial sentence served by the offender. There was a need for him to undertake counselling by way of rehabilitation and in addition, there were subjective matters to be taken into account. Counsel submitted, in those circumstances, that the nonparole period should be set to coincide with the period served, or alternatively, that the offender should be considered suitable for home detention or for an Intensive Corrective Order

Crown's Submission in Reply

1. In reply, the Crown submitted that the matter was properly dealt with on Indictment. The potential defence of necessity was merely hypothetical and the requirement for imminent peril involved in any such successful defence was missing. The offender in this matter had acquired the weapon prior to the drive-by shooting and had been in possession of it for a period of twelve months. There was a complete failure on his part to take lawful steps to protect himself and his family.

1. It was submitted that the Court should reject submissions made by the offender relying on R v Krstic and that this was not an exceptional case. The offender's purpose in obtaining the gun did not detract from the grave danger that such prohibited weapons present to the community and those exposed to them.

Determination

1. 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."

1. In considering the appropriate sentence in this matter I have had regard to the maximum sentence proscribed by s 7 of the Firearms Act of fourteen years imprisonment, together with the standard non-parole period set for such an offence pursuant to s 54A of the Act of three years. These are guide posts to be taken into account in considering all of the circumstances of the offending. I also take into account that the offender is entitled to a discount of 25% in respect of the early plea of guilty he entered to the charge, and I am mindful of the principles of parity, proportionality and avoidance of double punishment set out in Pearce v The Queen (1998) 194 CLR 610 at [45]. I find the objective seriousness of the offence here is on the lower side of the mid-range for such offences. However, I accept the Crown's submission here that general deterrence is a matter to be taken into account given the apparent increasing prevalence of illegal firearms in the community.

1. Section 54B of the C(SP)A provides as follows:

"54B(1) This section applies when a Court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this division.

(2) When determining the sentence for the offence (not being an aggregate sentence), the Court is to set a standard non-parole period as the non-parole period for the offence unless the Court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons which the Court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s 21A.

(4) The Court must make a record of its reasons for increasing or reducing the standard non-parole period. The Court must identify in the record of its reasons each factor that it took into account ..."

1. I have taken into account, as a mitigating factor pursuant to s 21A(3) that the offender does not have any significant record of previous convictions, that on the basis of the testimonials and evidence referred to above, he is a person of good character, he is unlikely to re-offend and that he has good prospects of rehabilitation. I also take into account the remorse shown by the offender for the offence and the fact that he has accepted responsibility for his actions.

1. There are significant subjective matters which should also be taken into account. In believing he was acting out of protection for himself and his family, the offender now understands that he has left those closest to him more vulnerable and unprotected due to his actions. I also take into account that the impact of his incarceration has had on his business as a furniture upholsterer amounts to a form of extra-curial punishment.

1. I do not accept the offender's Counsel's submission that I should take into account that it was open to the offender to argue that there was a defence of justification, or alternatively, that the offender could have claimed necessity as a defence in the circumstances here. The offender cannot have the benefit both of his early plea of guilty, together with the Court's discretion being exercised in his favour to further reduce the sentence on the basis that he may have had a good defence. In any event, I am not persuaded that either defence could have been made out in the circumstances here, where he obtained the firearm prior to the incident involving the drive-by shooting, and he kept it for over a period of twelve months.

1. Nor do I accept the offender's submission that this was a matter that could have been dealt with summarily, relying on Zreika v R, supra. I do however accept the submission that this was an offence that involved no other criminality, that is, the prohibited firearm was not used to perpetrate any further crime.

1. Further, I was largely impressed with the evidence given by the offender on sentence. He is entitled to have his good character taken into account, and also the high regard that others hold him in. I was not however impressed that he refused to disclose the details of his purchase of the weapon, nor his reasons for so doing.

1. I am not persuaded that he will serve a custodial sentence more onerously than any other offender, however, I note that he has been in protective custody since his arrest for his own protection.

1. I also take into account as an aggravating factor that the weapon was loaded with six .38 calibre bullets, and that it was stored in a place which was not under lock and was readily accessible, in premises where children were from time to time present.

Sentence

1. I am satisfied pursuant to s 5 of the C(SP)A that no penalty other than imprisonment is appropriate.

1. In setting the non-parole period pursuant to s 44 of the Act, I have taken into account a 25% discount for the offender's plea of guilty, and I have also taken into account the subjective mitigating factors as outlined above.

1. I find that there are special circumstances given that it is the first custodial sentence to be served by the offender, that he has a need for early counselling and treatment to assist his productive return to the community and that he may require special protection during the time that he is in custody. Given the somewhat exceptional circumstances of this case, I find that there are compelling reasons for a finding of special circumstances pursuant to s 44(2) of the Act.

1. Having regard to the principles of sentencing set out above, together with the need for deterrence generally, I set a non-parole period for the offender of one (1) year and eight (8) months.

1. I set the balance of the offender's term to a period of one (1) year and four (4) months.

Orders

1. I make the following Orders:

(1) For the offence pursuant to s 7(1) of the Firearms Act 1996 in that on 14 March 2013 the offender was in possession of an unauthorised prohibited firearm, being a prohibited pistol, to wit, a .38 calibre Smith and Wesson revolver, not being authorised to do so by license or permit, I convict Osman Elmasri and sentence him to a term of imprisonment by way of a non-parole period for a period of one (1) year and eight (8) months commencing on 14 March 2013 and expiring on 13 November 2014.

(2)   I fix a balance of sentence of imprisonment of one (1) year and four (4) months expiring on 13 March 2016.

(3)   The total sentence of imprisonment is 3 years.

Decision last updated: 23 September 2013