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R v Rifai

R v Rifai

Case [2022] NSWDC 74 9 March 2022

Criminal Liability

Sentencing

Intensive Correction Order

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Rifai [2022] NSWDC 74
Hearing dates: 03 March 2022
Date of orders: 09 March 2022
Decision date: 09 March 2022
Jurisdiction: Criminal
Before: Yehia SC DCJ
Decision:
The offender is convicted.
Pursuant to s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and taking into account a total term of 10 months’ and 17 days’ of pre-sentence custody, I impose an aggregate sentence of 2 years, 1 month and 13 days, to be served by way of an Intensive Correction Order.

Catchwords:
CRIME – possessing a prohibited firearm
SENTENCE – taking into account pre-sentence custody and quasi custody – whether an Intensive Correction Order is available

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 25B, 25D(2)(b), 25D(3)(b), 25D(4)(a), 25E(2), 66, 68 and 71(1)
Firearms Act 1996 (NSW) ss 7(1), 7A(1), 50B(1) and 51(1A)(a)

Cases Cited:
Black v R [2022] NSWCCA 17
Cao v R [2013] NSWCCA 321
Chenhall v R [2021] VSA 175
Fangaloka [2019] NSWCCA 173
Hoskins v R [2016] NSWCCA 157
Mandranis v R (2021) 289 A Crim R 260
McKinnon v R [2020] NSWCCA 106
Mourtada v R [2021] NSWCCA 21
Pulitano v R [2010] NSWCCA 45
R v Blackman & Walters [2001] NSWCCA 121
R v Carroll; Carroll v The Queen 77 NSWLR 45
R v Doudar [2020] NSWSC 1262
R v Farrell [2015] NSWCCA 68
R v French [2021] NSWSC 1531
R v Najem [2008] NSWCCA 32
R v Newman (2004) 145 A Crim R 361
R v Pogson and Ors [2012] NSWCCA 225
R v Pullen [2018] NSWCCA 264
R v Quinlin [2021] NSWCCA 284
Taha v R [2022] NSWCCA 46
White v R [2009] NSWCCA 118
Worboyes v R [2021] VSCA 169

Category: Principal judgment
Parties: Wasim Rifai (Offender)
Director of Public Prosecutions (Crown)
Representation: G Bashir SC (Offender)
A Walkowiak (Crown)

File Number(s): 2020/355375

Judgment

Mr Wasim Rifai, the offender, comes before the Court to be sentenced in respect of three firearms offences.
He has pleaded guilty to the following:

Count 1 – is an offence of giving possession of a firearm to an un-authorised person, an offence contrary to s 50B(1) of the Firearms Act 1996 (NSW). The offence carries a maximum penalty of 14 years’ imprisonment. Count 1 relates to the criminal conduct on 30 June 2020;

Count 2 – is an offence of possessing a prohibited firearm, not authorised to do so by a license or permit, an offence contrary to s 7(1) of the Firearms Act 1996 (NSW). The offence carries a maximum penalty of 14 years’ imprisonment, with a standard non-prior period of 4 years’ imprisonment; and

Count 3 – is an offence of unauthorised possession of a firearm, contrary to s 7A(1) of the Firearms Act 1996 (NSW). This offence carries a maximum penalty of 5 years’ imprisonment.

When I sentence him for Count 2, I take into account four offences on a Form 1, namely, possession of a home-made ballistic vest;…

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 Rifai

Details

AGLC: R v Rifai [2022] NSWDC 74
Case: [2022] NSWDC 74
Decision Date: 09 March 2022

CaseChat Overview and Summary

In the case of R v Rifai, the defendant was convicted of possessing a firearm that was prohibited under the Arms Act 1996 (Cth). The case was heard in a New South Wales court. The central issue in this case was whether an Intensive Correction Order (ICO) could be imposed considering the defendant had already spent a considerable amount of time in pre-sentence custody and quasi custody.

The court was required to determine if it was appropriate to impose an ICO on the defendant, given that he had already served a significant period of pre-sentence custody and quasi custody. The court needed to consider the total amount of time the defendant had already spent in custody and weigh this against the necessity of imposing a sentence that would serve the purposes of punishment, rehabilitation, and deterrence.

The court found that the defendant, despite the substantial time spent in pre-sentence custody and quasi custody, could still benefit from an ICO. The court reasoned that an ICO could provide a structured and intensive program that would address the underlying issues that led to the offence, while also providing an opportunity for the defendant to reintegrate into society. The court imposed an aggregate sentence of 2 years, 1 month, and 13 days, to be served by way of an ICO, taking into account the 10 months and 17 days already served by the defendant. The court considered this sentence to be appropriate in the circumstances, balancing the need for punishment and rehabilitation.

Orders

Orders of the court

The offender is convicted.

Pursuant to s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and taking into account a total term of 10 months’ and 17 days’ of pre-sentence custody, I impose an aggregate sentence of 2 years, 1 month and 13 days, to be served by way of an Intensive Correction Order.

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 Rifai [2022] NSWDC 74

Most Recent Citation

Rokovada v The King [2025] NSWCCA 64

Cases citing this decision · 3 of 3 shown

Rokovada v The King
[2025] NSWCCA 64 Para 54

…Sentence) [2023] NSWSC 103 at [33]-[34] (Hamill J), Tuxford v Director of Public Prosecutions [2023] NSWSC 1300 (Weinstein J) at [13]-[17], R v Rifai [2022] NSWDC 74 at [25]-[32] (Yehia SC DCJ, as her Honour then was) and Borri v R [2023] NSWCCA 166 at [35].…
R v Honeysett (No 2) (Sentence)
[2023] NSWSC 103 Para 34

…proper application of its language. [5] 4. Cf R v Cardoso [2003] NSWCCA 15 at [21]. 5. See also Ke v R [2021] NSWCCA 177 at [340]-[342], R v Rifai [2022] NSWDC 74 at [29]-[32], R v Tailford (No 2) [2021] NSWSC 695, R v Camilleri [2021] NSWSC 221 at [62]-[70] and Green v R [2022] NSWCCA 230.…
R v Carr, Dean William
[2022] NSWDC 231 Para 15

…“ substantially the same ”. [7] The other decisions do not provide guidance on the present issue. 4. R v French [2021] NSWSC 1531, R v Rifai [2022] NSWDC 74, R v Black (No 2) [2021] NSWSC 77. 5. [2022] NSWDC 74. 6. At [28]. 7. Cf at [23] and [29].…

View all 3 citing cases →

Cases cited in this decision · 20 of 20 shown

Taha v R
[2022] NSWCCA 46 Para 143

…with the risk of the spread of the pandemic and the stress that this would cause to the offender, particularly given his physical health: Taha v R [2022] NSWCCA 46 at [72].…
Black v R
[2022] NSWCCA 17 Para 10

…In support of that contention, some reliance has been placed on the decision of Black v R [2022] NSWCCA 17 at [38] – [42].…
R v Quinlan
[2021] NSWCCA 284 Para 115

…some part of the period on bail should be treated as the notional equivalent of custody, sometimes referred to as “ quasi-custody ”: R v Quinlin [2021] NSWCCA 284.…
R v French
[2021] NSWSC 1531 Para 20

…In R v French [2021] NSWSC 1531 at [77], Dhanji J, in considering this provision, said:…
Mourtada v The Queen
[2021] NSWCCA 211 Para 139

…In the recent decision of Mourtada v R [2021] NSWCCA 211, Basten JA referred to his judgement in Fangaloka [2019] NSWCCA 173, where he said that unless a favourable opinion is reached in assessing whether an Intensive Correction Order would be more likely to address the risk of re-offending, an Intensive Correction…
Worboyes v The Queen
[2021] VSCA 169 Para 32

…s to facilitate the administration of justice. It is a benefit to a justice system which is under pressure: Chenhall v R [2021] VSA 175; Worboyes v R [2021] VSCA 169.…
Mandranis v The Queen
[2021] NSWCCA 97 Para 138

…serving a sentence is more likely to address the offender’s risk of re-offending, is relevant to the assessment of community safety: Mandranis v R [2021] NSWCCA 97, at [51].…
Quinlan v The Queen
[2021] NSWCCA 21

…Fangaloka [2019] NSWCCA 173 Hoskins v R [2016] NSWCCA 157 Mandranis v R (2021) 289 A Crim R 260 McKinnon v R [2020] NSWCCA 106 Mourtada v R [2021] NSWCCA 21 Pulitano v R [2010] NSWCCA 45 R v Blackman & Walters [2001] NSWCCA 121 R v Carroll; Carroll v The Queen 77 NSWLR 45 R v Doudar [ 2020] NSWSC 1262 R v Farrell […
McKinnon v R
[2020] NSWCCA 106 Para 92

…likely serve his sentence in more onerous conditions and there would be attendant heightened anxiety should he be returned to custody: McKinnon v R [2020] NSWCCA 106 at [32].…
R v Fangaloka
[2019] NSWCCA 173 Para 139

…In the recent decision of Mourtada v R [2021] NSWCCA 211, Basten JA referred to his judgement in Fangaloka [2019] NSWCCA 173, where he said that unless a favourable opinion is reached in assessing whether an Intensive Correction Order would be more likely to address the risk of re-offending, an Intensive Correction…
R v Pullen
[2018] NSWCCA 264 Para 141

…ending. The concept of community safety as it is used in the Act is, therefore, inextricably linked with considerations of rehabilitation: R v Pullen [2018] NSWCCA 264.…
Hoskins v R
[2016] NSWCCA 157 Para 114

…may, although is not obliged to, take into account that an offender has been the subject of onerous bail conditions prior to sentencing: Hoskins v R [2016] NSWCCA 157 at [36]. It is a discretionary matter that depends upon the facts of the particular case. The nature of the offence and the purposes of punishment ma…
R v Farrell
[2015] NSWCCA 68 Para 124

…During the course of oral submissions, I was referred to the decision of R v Farrell [2015] NSWCCA 68, a Crown appeal against inadequacy of sentence imposed for the possession of unauthorised pistol. In that case, the respondent had served 9 ½ months on remand. The sentencing judge “ took into account ” the period…
Cao v R
[2013] NSWCCA 321 Para 52

…The use or purpose of the possession of a firearm is a key factor in assessing the objective seriousness of the offence: Cao v R [2013] NSWCCA 321. An offender’s criminality is more serious when he or she possesses a firearm as part of involvement in other crimes, such as trading in illegal drugs.…
R v Pogson
[2012] NSWCCA 225 Para 102

…viour so that they will, notwithstanding their past offending, re-establish themselves in the community as law-abiding citizens: R v Pogson and Ors [2012] NSWCCA 225.…
Pulitano v R
[2010] NSWCCA 45 Para 121

…The question as to how to take into account pre-sentence custody was addressed in the case of Pulitano v R [2010] NSWCCA 45, where it was held that s 24 permits the matter to be addressed in a “ global fashion ” by the sentencing judge by reducing the sentence, including prescribing the manner in which the sentence…
Brendan White v The Queen
[2009] NSWCCA 118 Para 122

…The decision in White v R [2009] NSWCCA 118 affirmed that it was not an error for a sentencing judge to “ take into account ” time served in custody by reducing a sentence, and the prior custody was, nevertheless, to be taken into account where backdating was not an option. The application of the principal in practi…
R v Najem
[2008] NSWCCA 32 Para 98

…d punishment are of considerable importance for each of the three offences. Part of the rationale behind s 7(1) was explained by Hulme J in R v Najem [2008] NSWCCA 32 at [40]:…
R v Newman
[2004] NSWCCA 113 Para 123

…In R v Newman (2004) 145 A Crim R 361, it was held that pre-sentence custody can be taken into account by way of backdating the sentence, or the court can simply state that the pre-sentence custody is being taken into account to reduce the sentence accordingly.…
R v Blackman and Walters
[2001] NSWCCA 121 Para 142

…induces, or assists, an offender to avoid offending in the future, the protection of the community is to that extent enhanced: R v Blackman & Walters [2001] NSWCCA 121.…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
25B, 25D(2)(b), 25D(3)(b), 25D(4)(a), 25... 10 mentions (from Para 6)
Firearms Act 1996 (TAS)
50B(1), 51(1A)(a), 7(1), 7A(1) 5 mentions (from Para 1)

Medium Neutral Citation:	R v Rifai [2022] NSWDC 74
Hearing dates:	03 March 2022
Date of orders:	09 March 2022
Decision date:	09 March 2022
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	The offender is convicted. Pursuant to s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and taking into account a total term of 10 months’ and 17 days’ of pre-sentence custody, I impose an aggregate sentence of 2 years, 1 month and 13 days, to be served by way of an Intensive Correction Order.
Catchwords:	CRIME – possessing a prohibited firearm SENTENCE – taking into account pre-sentence custody and quasi custody – whether an Intensive Correction Order is available
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 25B, 25D(2)(b), 25D(3)(b), 25D(4)(a), 25E(2), 66, 68 and 71(1) Firearms Act 1996 (NSW) ss 7(1), 7A(1), 50B(1) and 51(1A)(a)
Cases Cited:	Black v R [2022] NSWCCA 17 Cao v R [2013] NSWCCA 321 Chenhall v R [2021] VSA 175 Fangaloka [2019] NSWCCA 173 Hoskins v R [2016] NSWCCA 157 Mandranis v R (2021) 289 A Crim R 260 McKinnon v R [2020] NSWCCA 106 Mourtada v R [2021] NSWCCA 21 Pulitano v R [2010] NSWCCA 45 R v Blackman & Walters [2001] NSWCCA 121 R v Carroll; Carroll v The Queen 77 NSWLR 45 R v Doudar [2020] NSWSC 1262 R v Farrell [2015] NSWCCA 68 R v French [2021] NSWSC 1531 R v Najem [2008] NSWCCA 32 R v Newman (2004) 145 A Crim R 361 R v Pogson and Ors [2012] NSWCCA 225 R v Pullen [2018] NSWCCA 264 R v Quinlin [2021] NSWCCA 284 Taha v R [2022] NSWCCA 46 White v R [2009] NSWCCA 118 Worboyes v R [2021] VSCA 169
Category:	Principal judgment
Parties:	Wasim Rifai (Offender) Director of Public Prosecutions (Crown)
Representation:	G Bashir SC (Offender) A Walkowiak (Crown)
File Number(s):	2020/355375