R v Ranny Shaitly

[2007] NSWDC 135

CITATION:	R v Ranny Shaitly [2007] NSWDC 135
HEARING DATE(S):	3/4/07 19/4/07 20/4/07
JUDGMENT DATE:	20 April 2007
EX TEMPORE JUDGMENT DATE:	18 October 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted: Selling pistol to person unauthorised to posses it. (principal offence); Sentenced: 2years non parole to date from 26 October 2006 to expire 25 October 2008. Balance of term expires 25 October 2010. (principal sentence)
CATCHWORDS:	Criminal Law - Sentencing - Firearm Offence - selling prohibited weapon to person not authorised to possess it - sale to undercover police operative - Form 1 matters - sale reckless as to future use of pistol - objects of Firearms Act 1996 - offence against public safety - impact of standard non-parole period on sentence - reason offence below mid-range of seriousness - subjective features disadvantaged upbringing.
LEGISLATION CITED:	Firearms Act 1996 Crime (Sentencing Procedure) Act of 1999
CASES CITED:	R v Gladue [1999] 1SCR 688 R v Cuthbert (1967) 86 N (NSW) Pt 1 272 R v Rushby [1977] 1 NSWLR 594 R v Hayes [1984] 1 NSWLR 740 R v Way (2004) 60 NSWLR 168 R v Thompson & Houlton (2000) 49 NSWLR 383 The Attorney General's Application under s37 Crimes (Sentencing Procedure) Act 1999 (2004) NSWLR 305
PARTIES:	Regina Ranny Shaitly
FILE NUMBER(S):	07/21/0031
COUNSEL:	Accused: Mr J. Viney - Lachlan Macquarie Chambers
SOLICITORS:	Mr Ball - Office of Director of Public Prosecutions - Parramatta

SENTENCE

1 HIS HONOUR: For a number of reasons, there is a growing access to the presence of illegal firearms in this State. In April 2006, in circumstances not adequately disclosed in the evidence, Ranny Shaitly had possession of a Norinco 0.45 self-loading pistol. It was assessed as reasonably capable of being fired with one hand. It certainly is a big handgun. The detachable magazine could hold as many as ten 0.45 automatic calibre cartridges. It was a self-loading pistol. Fire once, the cartridge was discharged and another in the breech. It was a killing weapon. It was classified by the Firearms Act 1996 as a prohibited weapon. The serial numbers on the weapon had been removed. It was for sale.

2 Ranny Shaitly’s brother, who was in prison told him “Get rid of it”. Ranny said to the brother, “But you haven’t seen it to know why I like it so much”. His brother told him to “Get rid of it”. The going price was $5,000. The buyer was someone he did not know. As events turned out the buyer was an undercover police officer.

3 Six months later police swooped on Ranny Shaitly. He was charged with selling a pistol to a person not authorised to possess the pistol. He was charged with possessing the 0.45 calibre self-loading pistol bearing no serial number, when he was not authorised by permit or licence to possess it.

4 To these two charges he has pleaded guilty before the Parramatta Local Court on 8 February 2007. There are other charges he is facing.

5 Today he is to be held accountable for his criminal conduct in breaching provisions of the Firearms Act 1996. When he is sentenced for selling the 0.45 Norinco pistol he asks that I take into account three further offences that he admits. The first relates to his possession of the Norinco 0.45 calibre pistol, on which the serial number was defaced. At the time of his arrest on 26 October 2007 police lawfully searched his premises. They found a black-coloured canister of Olio(?) resin, capsicum spray. The offender’s possession of it was unauthorised. Also found was a silver-coloured flick knife with a 3-inch blade. These are the remaining two maters on the Form 1.

6 As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this Court committed by this offender against the people of this community. See Gladue v The Queen [1999] 1SCR 688 at [80]. My initial task requires an assessment of the objective criminality of the offences before the Court. I also need to have regard to matters personal to the offender, subjective matters.

7 The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. My fact-finding task has been circumscribed to some extent in that the parties have tendered an agreed set of facts. However, there is other material from which facts can be gleaned. The tender of agreed facts does not relieve a sentencing judge from his fact-finding responsibility. It may simply limit the material from which the facts may be found.

8 The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly.

9 Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality. In this case one of the offences may attract a standard non-parole period, whether it does so or not will need to be determined; the length of the non-parole period; and finally of course the ultimate term of imprisonment or other penalty that is to be imposed all need to be determined.

10 What weight needs to be given to all of these matters against the imperative that sentencing should have as its primary focus the protection of the community will also need to be determined. See R vCuthbert (1967) 86 W.N. (NSW) Pt 1 272, Rv Rushby [1977] 1 NSWLR 594 and R v Hayes [1984] 1 NSWLR 740.

11 The Firearms and Regulated Industries Crime Squad was targeting illegal activities of a man known as Ayman Manly, who, it would seem, had an interest in firearms. On 12 April, Manly took an undercover police operative to premises at Merrylands. I should hasten to say that Manly did not know that the man he was taking to this site was an undercover police operative. Manly thought he was a person having interest in illegally buying firearms.

12 The premises they went to, as I said, was in Merrylands. And Manly brought from those premises, for the inspection of the undercover operative, the Norinco 0.45 calibre self-loading pistol earlier referred to. It was on that occasion fully loaded. The undercover police officer was told that the pistol was on the market. Arrangements were made to purchase the weapon. At 2.30pm the following day the undercover police officer returned to Merrylands and to those premises. Ranny Shaitly emerged from the premises. There was a discussion with the undercover operative.

13 Again it is important to understand that Ranny Shaitly did not recognise the undercover operative as a policeman but thought he was a person off the streets interested in illegally purchasing firearms Ranny Shaitly agreed to sell. The following Wednesday evening on 19 April 2006 at about eight o’clock, outside the same premises in Merrylands, $5,000 and the pistol were exchanged, one for the other. At the time of the sale Shaitly told the undercover officer, “I still don’t want to do this bro. It’s only because of my brother man”.

14 The offender’s account of this sale is that

“By early April I was really desperate to make some money. I met a person who I do not wish to name for reasons that it would be a real risk to my mother’s safety as well as to me and to my brother in gaol. I was talking to him about being low on money and he told me he would give me a pistol worth four to $5,000 on the street and that he wanted $2,000 for it. He told me that I did not have to give him any money until the transaction was complete. I was desperate and stupid and thought I would be a real man making $3,000 to help my family. I completed the transaction and gave him his $2,000. He offered me another one but I said, “No” as I had made the money I needed. I deleted his number from my phone”.

15 This account I regard as self-serving. It does not, in my view, disclose the real facts. It simply seeks to put Shaitly in as good a light as the illegal sale of a 0.45 calibre repeating pistol would permit.

16 I am satisfied he possessed the pistol and valued it as a possession. I find he sold it at the direction of his brother. I cannot be satisfied beyond a reasonable doubt Shaitly owned the pistol, but I am satisfied beyond reasonable doubt that his possession of it was such that he felt entitled to sell it when his brother so directed. I am also satisfied that but for the direction of his brother to sell the weapon, it is unlikely he would have sold it. I am satisfied his brother had need for the funds, or at least some of them. I am satisfied the brother was at that time engaging legal representation in respect of criminal charges he was then facing.

17 It would be speculating however to assume that the money was made available to the brother for that purpose. However, I do not rule it out. I am satisfied that the weapon was sold for financial gain. I am satisfied when it was sold by Shaitly, he was reckless as to whom he sold it to. His criteria for passing over the weapon was the $5,000 and not the use to which the purchaser intended to put the weapon. I am satisfied he contemplated that the purchaser may well use the weapon for illegal purposes and did not care. He went ahead nonetheless to sell the weapon.

Objective criminality.

18 From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences before the Court as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

19 In assessing the objective criminality of these offences a useful starting point is to have regard to the principal objectives of the Firearms Act 1996. They are to be found in s3 of that Act as being to confirm firearm possession and use as being a privilege, conditional upon the overriding need to ensure public safety. And secondly - to improve public safety by imposing strict control upon the possession and use of firearms.

20 The potential harm that can come to the community from the sale of firearms being made available to unlawfully or unregistered purchasers is so obvious that it needs no stating. This is an act of immense social irresponsibility. There is a poignancy in dealing with an offence such as this at this time when we are reminded of the dangers that firearms can do in the hands of silly people by events recently occurring in America. The objects of the Firearms Act 1996 assumes significance it seems to me, when we are reminded of such events. The firearms laws are enacted by Parliament to guarantee public safety through the close monitoring of weapons and through ensuring that only fit and proper persons have access to these lethal items.

21 Provisions of the Act seek to prohibit the disposal or distribution of firearms to persons who are untraceable - as a means of ensuring the distribution of firearms only to persons who are known, respectable and prepared to comply with the requirements of strict control upon possession and use of firearms. The distribution of firearms into the community without any means of monitoring or controlling their sale would see weapons in the hands of person ill-suited for them and persons who were prepared to use them for illegal purposes.

22 Parliament, police and the public have long associated the unlawful disposal of firearms with subsequent illegal use of those arms by the criminal element. Consequently breaches of the Firearms Act are recognised as serious offences against public safety. As I said at the outset the circumstances by which this offender came to be in possession of the 0.45 calibre weapon are not satisfactorily disclosed. Its sale had the potential to be dangerous to the public. The weapon sold was lethal and had a capacity to fire ten rounds in rapid fire. It was capable of being concealed on a person. There was a very real potential it was being sold to someone who would use it for criminal purposes. It was criminal conduct undertaken by this offender with reckless disregard for public safety. When sold it had four live rounds in the magazine.

23 As to the possession of the firearm, that is the second charge the offender is facing - that possession was ended with an unlawful act; namely the selling of the weapon to a person unauthorised to purchase or possess it. The weapon was in a condition where it could not be traced. It was in a position where it could be immediately fired.

24 I am satisfied the offence of selling it was not opportunistic or impulsive. While it is hard to say that it was planned it was certainly deliberate taking nine days to consummate the sale.

25 The possession of the capsicum spray and the flick-knife were also serious offences of public safety. There is of course no evidence that they were ever used or ever went beyond the house; but their possession is the nature of these offences.

26 The most serious of the offences before the Court is the unlawful selling of the Norinco 0.45 pistol. The possession of the Norinco 0.45 pistol however attracts a standard non-parole period of 3 years for a mid range offence after trial. Way'scase (R v Way (2004) 60 NSWLR 168 and subsequent cases make clear the standard non parole period applies only after a trial.

27 The objective seriousness of the possession offence falls below the mid-range of seriousness for these reasons - firstly - I am unable on the evidence to establish the length of time the offender had possession of the weapon. The charge itself pinpoints a five minute period. I cannot be satisfied beyond reasonable doubt that the offender’s possession of the weapon came about as consequence of ownership. Within the timespan of the offence 7.55 to 8pm the offender’s possession related to his unlawfully disposing of the weapon. His commission of a further crime with the weapon he possessed aggravates the possession charge. He had no prior history of possessing any weapons or possessing capsicum spray or a flick-knife. He is of course to be held accountable for them today.

Subjective Features.

28 The presence of a standard non-parole period makes clear that even where there is a plea of guilty in circumstances such as are revealed in this case, Parliament’s expectation is that those possessing prohibited weapons will be sent to prison for a substantial period. As I earlier remarked the selling charge is the more serious charge. It consequently will call for a more serious, a more substantial sentence.

29 I turn now to the subjective features. I am both entitled and required to do that. Not only am I sentencing for the criminal offences before the Court but I am also sentencing this offender for them. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of these offences by this man; or some reason why a more or a less sentencing outcome is appropriate.

Family background, social relationship.

30 Ranny Shaitly is the youngest of three siblings. He was born in October 1983. He is now aged 23. He was 22 at the time of offending. His sister lives in London. She is a publisher. His elder brother lives at Windsor. He is a prisoner at the John Moroney Correctional Centre. Ranny Shaitly is currently housed at the Parklea Correctional Centre. The offender’s father, now deceased, died on New Year’s Day of Hodgkinson's Lymphoma. He was in and out of prisons during Ranny Shaitly’s youth. The parents separated I gather, when Ranny was young. The offender’s mother worked hard as a cleaner. She now suffers though from asthma, depression and kidney stones. She is now on a pension. The offender’s father cautioned his sons, urging they avoid crime. Ranny’s childhood memories include visiting his father in various gaols and police raids on his home.

31 Anna Robilliard, a forensic psychologist retained by the defence notes,

“While Ranny remembers him [the father] talking about how he should avoid drugs and criminal conduct, the implicit message of his father’s conduct was contradictory and very confusing.”

32 The confusion became more poignant since the offender’s incarceration. Correctional officers and some inmates have “spoken well of [the father]” to the offender. The son told Anna Robilliard that when he committed the index offences and earned money for doing so he felt he was a real man.

Education skills and employment.

33 Ranny Shaitly attended Blacktown South primary. He made good progress there. However, at Mitchell High School he truanted so frequently he was told he would have to repeat Year 9 or leave. He chose instead to attend Seven Hills High School where he completed Year 10. Part way through Year 11 at yet another school, Wyndham, he left school, telling his mother he was taking on an apprenticeship.

34 He was certainly fooling his mother. It is likely he was also fooling himself. The apprenticeship never materialised. He spent time with other unemployed youths.

35 In 2003 he obtained a security licence and found employment at the local shopping centre. From there he was moved to the Seven Hills shopping centre. After four months or so he left claiming he was unhappy at being kept on casual rates. He has spent more time unemployed than employed. He was able, at least until the end of 2004 to obtain casual employment when he needed money.

36 In December of 2004 he was injured in a serious motor vehicle accident. His claim is that the sequelae of that accident left him unfit for work. The consequence is that at 23 he appears to have few skills. There is some work history. It is unlikely he will find employment as a licensed security officer in future however. He will need to consider retraining for other forms of employment if he is to obtain a meaningful income stream on his return to the community.

Health issues. Physical health.

37 The motor cycle accident just referred to saw his spine damaged at T5 and T6. Seven ribs and his left collar-bone were also fractured. He was hospitalised for ten days, wore a body-brace until March 2005. Prior to his arrest he was attending Commonwealth Rehabilitation Services. Doctor Tarig provided a report in which he opined that the offender’s medium term prognosis was guarded while the longer term prognosis was poor in terms of full recovery and resuming a normal active life. I note Doctor Tarig does say however that subject to lifting restrictions of 15 kilos and excessive use of the mid and lower back he is otherwise fit to work a 40 hour a week with overtime.

Mental health issues.

38 Another sequelae of the accident is the onset of depression or at least dysthymia and anxiety. Miss Robilliard also noted post-traumatic stress disorder symptoms - whether those arise out of the motor vehicle accident or his childhood on the material before me is not clear. Miss Robilliard’s testing also revealed systems consistent with borderline and dependent personality characteristics. Miss Robilliard was of the opinion that the offender would need a lengthy period of monitoring and support from Probation and Parole once released from prison.

Drugs and alcohol.

39 Mr Shaitly admits using drugs during his teenage years. At the time of his arrest he was using half a gramme of cannabis daily. There is no evidence suggesting this offence is drug-related. I noted there are two convictions for possessing prohibited drug; one in December of 2004 and the other in May of 2005.

Antecedents

40 Apart from the two drug convictions referred to he has no criminal, no other criminal convictions. His two drug offences were dealt with by way of fines. To this point his criminality has cost him only $1200. This however is his most serious offending to date. The cost of this offending will not be measured in money. He is entitled to some leniency though because of his relatively good prior record.

Attitude to offence.

41 Miss Robilliard crystallised the offender’s attitude to his conduct. She spoke of the offender’s inner conflict and moral confusion. The Probation and Parole report noted that when asked who had been affected by his criminal conduct, his immediate reply was a self-centered one. His answer was “me”. When the Probation and Parole reporter sought to pursue the topic, the offender noted that the police were not affected, they had their “bust”. When asked how his mother, brother and sister may be affected, the offender responded “yes I hadn’t considered that”. It would appear a few days later he told Miss Robilliard he deeply regretted the offence largely because of the distress his imprisonment had caused his mother. Of course it is to be remembered the recognition he has received in gaol as his father’s son. It is also to be remembered he claimed to have felt like a man upon selling the weapon for $5,000. Given his background, his bonding with his father and his brother, it is not surprising he is so confused.

Age.

42 The offender was aged 22 at the time of his offending. There is nothing in the facts which suggests rehabilitation should not be given its proper emphasis in dealing with the young. Of course at 22 the offender whilst still young is well beyond his juvenile years.

Rehabilitation prospects.

43 The offender’s rehabilitation prospects are somewhat clouded. On the one hand there are some positive indicators:- his reasonable health notwithstanding the motor vehicle accident; his reasonable mental health notwithstanding the presence of depression and anxiety; his good family support; his youth. He has been able to stay free of serious crime for all his youth to this point in time. His plea of guilty to the offences was early-entered demonstrating a willingness to be held accountable.

44 On the other hand there are some negative and worrying features. He has grown up in a milieu of crime. It seems that he still has mixed emotions about his father; and is possibly have difficulty distinguishing the conduct from the man.

45 His expressed attitude to his offending conduct is ambivalent; and there are the two worrying drug convictions as recently as Christmas/New Year’s 2004/2005.

Plea of guilty.

46 The offender pleaded guilty before the magistrate. He is entitled to a full 25% discount for the plea early-entered. That discount is given in recognition of what is called the utilitarian value of the plea. That utilitarian value is measured in time saved in court; in the resources saved by the Crown and by the defence; in the recognition expected of the community that those who are guilty of crime will be held accountable for it; in the support of confidence that it gives to the community in assessing those who investigate crime. The utilitarian value is measured, in as much as the likelihood of a contest in the appeal court on conviction is unlikely in circumstances where guilt has been admitted.

Deterrence.

47 These are offences requiring deterrence. Both general and personal. General deterrence because it is important that people in the community such as the man involved in orchestrating or oversighting the sale; people with whom he may have been dealing - know that serious sentences will be imposed for those who seek to distribute firearms within the community.

48 Personal deterrence is also important in this case because those who are image-makers for this offender, his older brother and his father, have seen the inside of prison. This offender is said by Miss Robilliard, whose reputation, as least so far as I am concerned in this sort of work, stands high, points to the offender being confused.

Concurrency and totality.

49 The sentences will all be served concurrently but the sentence for the most serious offence will take account of the need for totality and would be more inflated than if it simply stood on its own.

Custodial history.

50 My understanding is that the offender has been in custody since his arrest on 26 October last. All sentences will date back to that date.

Guideline judgements.

51 There are two guideline judgements impacting upon the way in which this sentencing disposition will be finalised. Thompson and Houlton (R v Thompson and Houlton (2000) 49 NSWLR 383) authorises the giving of a discount of the order that I have given for the plea of guilty.

52 The Attorney General’s application under s37 of the Crime (Sentencing Procedure) Act of 1999 (2004) 61 NSWLR 305 requires that I give greater weight to two elements which are always material in the sentencing process when I am taking into account the Form 1 matters. The first of those is the need for personal deterrence which the commission of other offences will frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused is engaged. The second is the community’s entitlement to extract retribution for serious offences which are offences for which no other punishment has in fact been imposed.

Special Circumstances

53 This is a matter in which special circumstances should be found. There are two primary reasons for so doing. Firstly Miss Robilliard was of opinion that the offender would need a lengthy period of monitoring and support from Probation and Parole once he returned to prison. Secondly in a case [I am presently unable to identify] Hunt AJA [I believe it was] indicated that one way to make allowance for youth, was greater attention could be given to the opportunity for rehabilitation by imposing a shorter custodial period and longer parole.

54 Would you stand up please Mr Shaitly? I convict you, Mr Shaitly that you on the 19th day of April 2006 at Merrylands sold a pistol, namely that Norinco 0.45 calibre self-loading pistol bearing no serial number to a police undercover operative in circumstances where the police undercover operative was unauthorised to possess the said pistol by licence or by permit. But for your plea of guilty I would have sentenced you to an overall sentence of five years for that offence. I discount that by 25% which brings it down to 4 years. I set a non-parole period of 2 years for that offence to date from 26 October 2006 and to expire on 25 October 2008. I set a balance of term to expire on 25 October 2010.

55 In sentencing you for that offence I have taken into account totality and I have also taken into account the Form 1 matters.

56 I convict you of the offence of possessing an unauthorised pistol between 7.55 and 8pm on 19 April 2006 namely the Norinco 0.45 calibre self-loading pistol which had no serial number on it in circumstances where you were not authorised by licence so to do.

57 For that offence I set a fixed term of 18 months to commence on 26 October 2006 and to expire on 25 April, Anzac Day, 2008.

58 There are some 166 {Criminal Procedure Act 1986] matters, which the Crown will need to take me to.

WHITE: Yes your Honour. There were six charges referred to this court on a 166 Certificate. Three of those were placed on the Form 1. I am seeking to withdraw the remaining three which are charge sequences 3 being an offence of possess unregistered pistol. 5 being a possess loaded firearm in a public place offence; and 6 being an offence of possess ammunition.

HIS HONOUR: Yes leave is - pursuant to S 166 leave is given to withdraw them. They are withdrawn. Any other matter?

*********