R v Rifai

[2022] NSWDC 74

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

1. Mr Wasim Rifai, the offender, comes before the Court to be sentenced in respect of three firearms offences.

2. He has pleaded guilty to the following:

1. 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;

2. 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

3. 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.

3. 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; possession of a slingshot; possession of cannabis leaf; and possession of a testosterone. Count 2, Count 3 and the Form 1 offences relate to the criminal activity that took place on 15 December 2020.

4. The offender pleaded guilty to these charges on 16 February 2022 during the Sydney Super Call Over. His trial was listed to commence on 4 July 2022. There is a dispute between the parties as to the applicable discount for the utilitarian value of the pleas of guilty.

The plea of guilty

5. On behalf of the offender, I am urged to apply a discount of 25% in respect of each offence. The Crown contends that the appropriate discount is one of 10%.

Submissions

6. The offender was committed for trial on 11 August 2021. He was arraigned on 10 September 2021, with a trial listed to commence on 4 July 2022. The plea of guilty was entered on 16 February 2022 to an amended indictment. Count 1 on the amended indictment is an ex officio count. The Crown submits that the plea of guilty was entered more than 14 days prior to the first day of trial, therefore, the offender is entitled to a discount of 10%: ss 25D(2)(b) and 25D(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

7. The offender offered to plead guilty in the Local Court to Counts 2 and 3 (and to plead guilty or admit those matters now on the Form 1). He offered to plead guilty to possession of the items in Count 1. That offer was rejected.

8. As it happened, an ex officio count (Count 1) was presented at the Sydney Super Call Over containing the offence of giving a prohibited firearm to an unauthorised person, contrary to s 50B(1) of the Firearms Act 1996 (NSW). The offender pleaded guilty to that count at the first opportunity.

9. Ms Bashir SC, on behalf of the offender, submits that in the context of the offer to plead guilty in the Local Court to the offences which constitute Counts 2 and 3, and his immediate plea of guilty to the ex officio count, a 25% discount applies in respect of each offence.

10. In support of that contention, some reliance has been placed on the decision of Black v R [2022] NSWCCA 17 at [38] – [42].

11. In reply, the Crown submits that the offer to plead guilty to Counts 2 and 3 was contingent upon the Crown withdrawing sequences 5 and 6, namely, offences of supplying prohibited firearms, and substituting those charges with charges of possession only. In those circumstances, the applicable discount is 10%.

12. In respect of Count 1, the Crown submits that a 25% discount does not apply because the facts and evidence that established the elements of the “new count offence” are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in criminal proceedings relating to the original indictment and the penalty for the “new count offence” is the same as, or less than, the offences set out in the original indictment: s25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Consideration

13. It is common ground between the parties that Div 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to this matter.

14. Count 1 is a rolled-up charge relating to the offender giving two prohibited firearms to an unauthorised person. The offence is contrary to s 50B(1) of the Firearms Act 1996 (NSW), and carries a maximum penalty of 14 years’ imprisonment.

15. In respect of that criminality, the offender was originally charged with two offences (H148329901; sequences 5 and 6), namely, offences of supplying a prohibited firearm in circumstances where the other person was not authorised to possess a prohibited firearm by a license or permit. Those offences were contrary to s 51(1A)(a) of the Firearms Act 1996 (NSW), which attract a maximum penalty of 20 years’ imprisonment.

16. Those offences were withdrawn and substituted with Count 1, the offence to which he pleaded guilty when the ex officio indictment was presented.

17. In Black, the Court was concerned with the issue of whether the alternative offence, namely, manslaughter, was “the subject of the proceedings” for the purpose of s 25E(2). The Court held that an alternative offence is only contingently “the subject of the proceedings”, and only truly becomes “the subject of the proceedings”, when a verdict of not guilty is returned for the principal count.

18. In these proceedings, Count 1 was not the offence the subject of the proceedings in the Local Court. The offence was the subject of an ex officio indictment and, therefore, a “new count offence” as defined in s 25B of the Crimes (Sentencing Procedure) Act 1999 (NSW).

19. The operative section is s 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicability of s 25D(4)(a) turns on whether the “facts and evidence that established the elements” of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender. The provision is concerned with the contents of the brief and what is capable of establishing the elements.

20. In R v French [2021] NSWSC 1531 at [77], Dhanji J, in considering this provision, said:

“where an offender’s exposure to an offence, with respect to which he or she ultimately admits guilt, is revealed in the brief of evidence, the offender is sufficiently apprised of that circumstance and consequently in a position to offer a plea to the offence prior to committal.”

21. The application of s 25D(4) was also considered by his Honour Hulme J in R v Doudar [2020] NSWSC 1262 at [56] – [63]. Having had the benefit of the reasoning in these cases, I turn to consider the present case.

22. Are the facts or evidence that established the elements of the new count offence substantially the same as those contained in the brief of evidence or other material served on the offender? I do not have the brief of evidence before me. However, I do not believe it necessary for me to receive the brief of evidence to determine the issue.

23. Although the offence contained in the ex officio indictment is a different offence, with a lesser maximum penalty, the facts or evidence that established the elements are substantially the same, namely, handing over possession of the two firearms to the co-offender, Mr Elzamtar. The offender was always apprised of those facts and that evidence.

24. I am, therefore, of the view that in respect of Count 1, the appropriate discount to reflect the utilitarian value of the plea is 10%.

25. I turn then to consider the appropriate discounts for Counts 2 and 3. The offender did not enter pleas of guilty to those counts in the Local Court. He offered to do so if the Crown withdrew the two charges alleging the supply of prohibited firearms and substituting those charges with charges of possession.

26. To that extent, the offer to plead guilty was conditional or contingent. The pleas of guilty were entered after he was committed for trial, more than 14 days prior to the first day of trial.

27. However, the issue is not that straightforward. As it transpired, the more serious offences of supplying a prohibited firearm, contrary to s 51(1A)(a) of the Firearms Act 1996 (NSW), were withdrawn by the prosecution. Although the ex officio count is not an offence of possession, it is an offence of giving a prohibited firearm to an unauthorised person, an offence that carries the same penalty as an offence of possessing an unauthorised prohibited firearm, contrary to s 7(1) of the Firearms Act 1996 (NSW), which was what he was willing to plead guilty to in the Local Court.

28. Although not an offence of possession simpliciter, it carries the same maximum penalty. It is an offence that relies upon the act of possessing the firearms and handing them over to Mr Elzamtar. The offender, as I understand it, denied any involvement in the on-supply of those firearms, or any participation in a joint criminal enterprise to sell them. The Crown has disavowed any reliance upon this offender being involved in the on-supply of the firearms to Mr Mouslmani, or the sale of the firearms to witness X.

29. Given the particular circumstances here, I am not persuaded that the offender should be deprived of the full discount to reflect the utilitarian value of the plea in respect of Counts 2 and 3. In respect of those counts, I apply a discount of 25%.

30. If I am wrong in that analysis, and the appropriate discount is only one of 10%, pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I am satisfied that a lesser penalty than would otherwise be imposed is warranted, given the degree to which the administration of justice has been facilitated.

31. The plea of guilty to these offences was entered during the COVID-19 pandemic. Significant disruptions and delays continue to be experienced by this Court, notwithstanding the fact the jury trials have resumed.

32. The fact that the offender pleaded guilty in these circumstances augments the utilitarian value and is accorded additional weight as a mitigating circumstance. His plea of guilty in these circumstances reflects a willingness 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.

Facts

33. The circumstances giving rise to the offences are set out in the Statement of Agreed Facts that can be summarised as follows:

34. On 30 June 2020, CCTV footage captured Billal Elzamtar entering an apartment building at 11 The Crescent, Yagoona and then exiting. He entered at 3:41pm and left at 3:43pm. He drove away from the apartment block in the vehicle of Nabih Mouslmani.

35. The car entered the underground car park of the apartment block 3:44pm. At 3:46pm, CCTV captured the offender carrying a large bag through the ground floor lobby of the apartment block and accessing the internal staircase.

36. One minute later, at 3:47pm, the offender is captured on CCTV returning from the stairwell. The offender is no longer carrying the bag. He handed over the bag to Mr Elzamtar while they were in the internal staircase. The bag contained two prohibited firearms, which constitutes the offence of give possession of prohibited firearm – a rolled up offence.

37. The bag contained a shortened 12-gauge pump action shotgun; a second firearm which was a shortened self-loading rifle; and three detachable box magazines, one having a capacity for twenty .223 cartridges and the other having a capacity for thirty .223 cartridges.

38. The pump action shotgun meets the definition of both a shortened firearm and a prohibited firearm. When tested, it was in working order. The self-loading rifle meets the definition of both a shortened firearm and a prohibited firearm. It was also in working order.

39. The three detachable magazines each meet the definition of a prohibited weapon. There is no evidence that this offender handled the items in any way.

40. The bag and its contents were later located in the possession of a witness who had been supplied it by Mr Mouslamani. This offender was not part of the agreement to supply the weapons by Mr Elzamtar to Mr Mouslmani or the witness. His role is limited to handing over the bag containing the firearms to Mr Elzamtar in the internal stairwell.

41. His criminality is limited to holding onto the items for Mr Elzamtar and returning them to him when they met in the stairwell.

42. Police executed a search warrant at the offender’s residence on 15 December 2020. They located and seized a number of items, including the ballistic vest and testosterone. It appears that the offender was being prescribed testosterone, although the quantity seized was not the subject of a prescription.

43. In the garage, police located 7.6g of cannabis; a slingshot; a Winchester calibre repeating lever action rifle; a 12-gauge self-loading shotgun; and a single 12-gauge Winchester shot gun round.

44. Both the lever action rifle and pump action shotgun were in working order. The lever action rifle meets the definition of a firearm as defined in the Firearms Act 1996 (NSW). The pump action shotgun meets the definition of a prohibited firearm as defined in the Act. The shot gun is capable of being operated as both a pump action and self-loading shotgun and is of a kind that has been designed or adapted for military purposes.

45. The Crown contends that the offender is criminally responsible for giving possession of the prohibited firearms to Mr Elzamtar on 30 June 2020, but does not contend that he is criminally responsible for the joint supply of prohibited firearms to witness X by Mr Mouslamani and Mr Elzamtar.

46. In respect of the items seized from his premises during the search on 15 December 2020, the Crown contends that he is criminally liable as a principal in the first degree.

47. There is no evidence that the offender received a financial reward, or expected to receive a benefit, for giving possession of the bag containing the two prohibited firearms to Mr Elzamtar.

Objective Seriousness

48. The assessment of objective seriousness of an offence is quintessentially for the sentencing judge. It is an evaluative process involving the exercise of discretion. These are serious offences as reflected in the maximum penalties and the standard non-parole period that applies to Count 2.

49. The Crown submits that the offences are objectively serious, having regard to the nature of the firearms and the fact they were in working order. In respect of Count 1, the Crown points to the capacity of the self-loading rifle in conjunction with the magazines and the fact that the offence relates to two separate firearms. In respect of Counts 2 and 3, the Crown points to the fact that the firearms were located with a round of ammunition in each case.

50. Ms Bashir SC, on behalf of the offender, accepts that each of the offences is objectively serious, however, submits that none of them could be said to be in the middle of the range of objective seriousness.

51. I take into account that each of the firearms was in working order. I also take into account the nature of the firearms.

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.

53. Count 1 relates to the offender giving Billal Elzamtar possession of two prohibited firearms, the pump action shot gun and the self-loading rifle. They were both tested and found to be in working order. In addition to the two firearms, the offender also gave the co-offender three detachable box magazines.

54. Clearly, shortened firearms have no legitimate purpose and are particularly dangerous due to their capacity for concealment which makes them suited to serious criminal activity. This is part of the reason that offences of this type are serious offences. I am not, however, satisfied to the requisite standard that the offender was in possession of the firearms for the purposes of committing a criminal act or acts. There is no evidence that he had used the firearms or handled them in any way.

55. In assessing the objective seriousness of Count 1, I take into account the offender’s limited role. There is no evidence that he sourced the firearms, and there is no evidence as to how long he was in possession of them before he handed them over to the co-offender. He gave an account of essentially “warehousing” the firearms for Mr Elzamtar. I cannot determine with any precision how long he had warehoused the firearms. I proceed on the basis that he was in possession of it for a relatively short time.

56. This offender was not involved in any of the arrangements made to on-supply the firearms to Mr Mouslmani, or in the sale of the firearms to witness X. I cannot be satisfied beyond reasonable doubt that this offender obtained any financial benefit for his role in the offence.

57. I am satisfied that this offender’s culpability falls well below the middle of the range. Although this is a serious offence, I am satisfied that this offender’s role was limited and significantly less than that of his co-offender, Mr Elzamtar. I will return to the principle of parity in due course.

58. Counts 2 and 3 relate to the location of firearms at the offender’s residence following the execution of a search warrant on 15 December 2020. The firearms were in working order, each located with a round of ammunition.

59. It is unclear as to how long he possessed those firearms, and how he came to be in possession of them originally. The offender told Mr Macklin, Clinical Psychologist, that he was in possession of these firearms because he used them for hunting while camping. The Crown submits that I would reject this explanation given the nature of the firearms involved.

60. The explanation given by the offender is not provided by way of sworn evidence and has not been subjected to cross-examination. However, a summary of the search warrant video states that police located a trunk containing two firearms in the garage. Located near the trunk were jackets, a tent and snorkelling equipment. Located on a couch, close to the door of the garage, were a number of items, some of which were also camping equipment. The location of the firearms in proximity to camping equipment lends some support for the representations made by the offender to the psychologist.

48. Other than the nature of the firearms themselves, there is no evidence that they had been used, or were intended to be used, in criminal activity. The only facts available to me, other than the nature of the weapons themselves, is that they were located in the offender’s garage amongst a number of camping related items.

49. I cannot be satisfied beyond reasonable doubt that the firearms were possessed by the offender with an intention of using them for criminal activity. I cannot be satisfied beyond reasonable doubt that the firearms were used by the offender in connection with criminal activity.

50. In light of the location of camping-style equipment in close proximity to these firearms, I am prepared to find on a balance of probabilities, that the offender was in possession of the firearms (constituting Counts 2 and 3) for hunting and camping purposes.

51. In respect of Counts 2 and 3, I find that the objective seriousness falls below the middle of the range, but not towards the lower end of the range, given that each of the firearms was in working order and was located with a round of ammunition. I am satisfied that Count 2 is more serious than Count 3, having regard to the maximum penalty and the standard non-parole period.

52. In determining the objective seriousness of each offence, I have also taken into account the absence of planning, organisation and sophistication on the part of the offender.

Standard non-parole period

66. Count 2 attracts a standard non-parole period of four years’ imprisonment. I remind myself that the standard non-parole period is not the starting point, or the endpoint, at arriving at an appropriate penalty. Instead, I am required to take into account all relevant factors, including the legislative guideposts reflected in the maximum penalty and the standard non-parole period.

67. I intend to depart from the standard non-parole period in a significant way because I am satisfied that the offence falls below the middle of the range objective seriousness; having regard to the plea of guilty; and giving appropriate weight to the offender’s subjective case.

Form 1 Offences

68. Count 2 has a Form 1 attached. The offences to be taken into account are:

• possession of a ballistic vest;

• possession of a slingshot;

• possession of cannabis; and

• possession of testosterone;

69. The offender is now eligible for medicinal cannabis treatment. I accept that the cannabis leaf found in his possession on 15 December 2020 was to be used by him as a way of self-medicating to deal with his chronic pain. I accept that at the relevant time, he was being prescribed testosterone, although the amount located in the garage was not obtained under prescription. These two offences do not operate to increase the penalty for the substantive offence.

70. The possession of the ballistic vest and slingshot are more serious offences. I have taken these two offences into account with a view to increasing the penalty that would otherwise be appropriate for the offence to which they attach. I do so by giving greater weight to two elements which are always material in the sentencing process, namely, personal deterrence and retribution.

Subjective Case

71. The offender was born in Lebanon, the youngest of four children. The family fled Lebanon due to the civil war when he was an infant and arrived in Australia as refugees, settling initially in Fairfield.

72. His parents separated when he was five years old, and his mother raised the four children as a single mother. His father had minimal contact with the family. He had a gambling problem and did not contribute financially. The offender’s mother lived on social security with minimal support from extended family. As a child, he was interested in sport and played soccer and later pursued an interest in boxing. It appears that during his childhood, adolescence, and early adulthood, he had no substance abuse issues and did not come under notice of the police.

73. Other than some driving offences, his criminal record commences in 2007, when he was 23 years old. At the age of 20, he was involved in a motorcycle accident where he sustained serious injuries. The injuries included traumatic brain injury in the very severe range, with significant cognitive and behavioural deficits; fractured pubic bone; fractures of the cervical spine; fractured fingers and fracture of the ribs.

74. The report of Trudy Warner, Occupational Therapist, dated July 2008, concluded that the offender suffered significant functional restrictions resulting from both physical and cognitive injuries sustained as a result of the accident. At that time, it was opined that he would be restricted to only sedentary or light physical work. His physical disabilities, being compounded by cognitive impairments, restricted him to only simple and organised work in a highly regulated environment.

75. Dr Buckley, Consultant Physician in Rehabilitation Medicine, prepared two reports, dated June 2007 and August 2008. In his 2008 report, he refers to the report of Dr Sunny Lah, which set out the results of forensic neuropsychological testing. The results indicated multiple cognitive deficits involving general knowledge, expressive vocabulary, and verbal and visual memory. The results obtained on both neuropsychological assessments were suggestive of significant residual mental status impairments, which included, but were not limited to, marked memory impairment.

76. The traumatic brain injury led to behavioural abnormalities such that a recommendation was made that a male registered nurse supervise the offender on a 24-hour basis.

77. Mr Macklin, in his report, states that the offender suffered from amnesia from the accident and a loss of memory relating to parts of his history. He noted signs of distress and trauma in the offender’s recollection of his hospitalisation. Pain and depression followed a long course since his discharge from hospital. He was prescribed opioid painkillers and antidepressants.

78. This was the beginning of his reliance upon prescription medication and illicit drugs. He reported increasing reliance on Xanax, cocaine, MDMA, alcohol and cannabis. He used a cocktail of substances to cope with pain, depression, and anger. It was a way of blanking out the trauma and self-medicating. The offender has now been successful in obtaining a prescription for medicinal cannabis.

79. His life following the accident was characterised by pain and depression. His reliance upon illicit drugs was not a matter of “choice” in the true sense of that word. Prior to the accident, he did not use illicit substances. After the accident, he was prescribed opioid painkillers and antidepressants to deal with the physical and mental symptoms. His use of prescribed and illicit substances was directly related to his chronic pain and his depression.

80. The offender was convicted of supplying prohibited drugs in 2007. He was sentenced to 12 months’ imprisonment, which was suspended. He was also convicted in 2009 for offences of driving whilst disqualified, committed in 2006 and 2007. He has further convictions for driving whilst disqualified in 2010, 2012 and 2013. However, his record is not extensive, and he has no prior matters relating to firearms charges.

81. What is clear, is that his criminal record essentially commenced after the accident, and after he had sustained, what can only be described as, extremely serious injuries.

82. Mr Macklin states that the current assessment identifies chronic and pervasive clinical problems symptomatic of a range of overlapping conditions, of which the following appear to be the most prominent:

1. Somatic Symptom Disorder – this diagnosis reflects the offender’s emotional distress and associated thoughts and behaviours in response to pain symptoms in the dominant place the pain has held in his life since the accident. The diagnosis does not imply that the pain sensations are imagined or exaggerated;

2. Depression – there is a history of depressive spectrum disorder since the accident, likely amounting to a major depressive episode at times for which he has long been prescribed antidepressants;

3. Post-Traumatic Stress Disorder – although he does not recall the accident, the offender has distressing memories of the aftermath, including his extreme pain and helplessness during his protracted hospitalisation, memories which he continues to find distressing and is motivated to avoid; and

4. Substance Use Disorder – his reliance upon illicit drugs, often in combination with sedatives and painkillers, in the context of pain, depression and trauma, has been to his detriment.

83. The evidence does not establish that any ongoing cognitive impairment may have hindered him at the time of the offending. However, Mr Macklin states that the four conditions listed above would have accounted for a large part of the dysfunction at the time of the commission of the offences.

84. There has been significant improvement in the offender’s cognitive capacity since his discharge from hospital. With the support of his family, he has commenced a business known as ‘Charcoal Chambers’. His family has helped him to establish this chicken shop, which has been in operation for about three months.

85. Clearly, the offender’s cognitive capacity has improved significantly. I do not have a current assessment of any ongoing cognitive impairment and, therefore, cannot find that any residual cognitive impairment is causally connected to the commission of the offences. However, the unchallenged opinion of Mr Macklin is that the conditions of somatic symptom disorder, depression and post-traumatic stress disorder were operating at the time of the commission of the offences and accounted for a large part of the dysfunction.

86. The fact that the offending was unsophisticated and lacking in any planning or organisation is consistent with the opinion expressed by Mr Macklin. I am satisfied that there should be some amelioration, given his state of mental health at the time of the offences.

87. The offender also continues to suffer from a number of physical ailments. They are helpfully summarised in the outline of written submissions filed on his behalf. He suffers from chronic neck pain with bilateral upper limb paraesthesia. He has prescribed tramadol and is required to attend physiotherapy every two weeks to assist him with reducing muscle spasms in the neck and improve his range of movement. He is at risk of regression with his chronic pain if his physiotherapy is interrupted.

88. He continues to suffer from chronic anxiety and depression for which he is prescribed medication.

89. The offender has hypothyroidism which was diagnosed some six years ago. Although he had access to treatment and medication in the community, he did not receive his prescribed medication until early August 2021, some eight months after he was taken into custody. The hypothyroidism has stabilised since his release from custody.

90. Dr Voutos states that the offender has recurrent urticaria, which recurred whilst he was in gaol. He has been referred to an immunologist for further investigation and management. This condition is a state of chronic hives, which can lead to significant swelling.

91. Professor Katelaris states that there is a real association between hyperthyroidism and chronic spontaneous urticaria. It is essential that the offender have access to his medication and that his thyroid function is tested periodically.

92. Curiously, despite the offender’s medical vulnerabilities, he worked as a sweeper in the quarantine unit at Parklea gaol. I accept that the time he was on remand in custody was more onerous owing to COVID-19, with increased lockdowns; limited access to programs; and no in-person visits. If he were returned to custody, his mental and physical ailments and the restrictions resulting from the continuing impact of COVID-19 will mean that he would 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].

Prospects of Rehabilitation/Remorse

93. A letter of apology prepared by the offender has been tendered in the proceedings. It is unsworn evidence, and the offender has not been subjected to cross-examination.

94. The offender describes how his family has helped him establish his charcoal chicken shop. He has had a lot of time to think about his actions and fully appreciates the serious nature of the charges. He has cut off all ties with his co-offender and has never spoken to Mr Mouslmani.

95. The offender expresses his sincere remorse. The evidence of remorse is not limited to the contents of his letter to the Court. A number of references/letters of support have been tendered on his behalf. He has expressed his remorse and regret about his offending behaviour on countless occasions. The offender has recognised his wrongdoing and has worked hard to grow his business and remain crime free.

96. Although he has been subject to very onerous bail conditions, he has not breached or reoffended. I accept that he is remorseful for his actions and is motivated and focused to continue upon this path of rehabilitation.

97. He has taken up a position as a responsible member of the community, continuing to work in his business and distancing himself from criminal elements. He has demonstrated positive rehabilitation and I am persuaded that he has good prospects and is unlikely to reoffend. Sending him back to custody at this stage of his rehabilitation, will be to undo all the good work that has been achieved.

Purposes of Sentencing

98. General deterrence and 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]:

“That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others rights.”

99. The offender must be held accountable for his actions. Equally, rehabilitation, and the protection of the community that successful rehabilitation affords, is of considerable importance in this case.

100. The weight to be afforded specific deterrence is moderated, given that the offender does not have any prior offences of this type and has demonstrated positive rehabilitation. However, it remains a relevant consideration, particularly having regard to two of the offences on the Form 1.

101. In some cases, the purposes of sentencing point in conflicting directions. On the one hand, general deterrence, punishment and denunciation may point towards a term of full-time imprisonment, although it must be acknowledged that a term of full-time imprisonment is not the only way in which those considerations can be reflected.

102. On the other hand, by contrast to deterrence, rehabilitation has at its purpose the remodelling of the person’s thinking and behaviour 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.

Parity

103. Mr Elzamtar was sentenced by her Honour Judge Girdham SC on 3 February 2022. He was sentenced for an unrelated offence of accessory before the fact to robbery in company, and knowingly take part in the supply of prohibited firearm to an unauthorised person.

104. He was sentenced to an aggregate term of imprisonment of three years and six months, with a non-parole period of two years’ and four months’ imprisonment. In respect of the firearms offence, an indicative sentence of three years’ and three months’ imprisonment, with a non-parole period of two years’ and two months’ imprisonment was recorded. In determining the indicative sentences, her Honour applied a discount of 25% to reflect the utilitarian value of the plea.

105. In dealing with the assessment of objective gravity, her Honour found that the co-offender was presented with the knowledge that the two prohibited firearms would be supplied for the sum of $37,500, demonstrating the worth of the product. The supply was not opportunistic and there was a degree of planning. The co-offender’s presence at the scene clearly facilitated the supply, and the facts demonstrated that the supply was delayed until he was present.

106. Furthermore, her Honour had difficulty accepting that the co-offender did not expect to gain financially from his involvement. In respect of the subjective case, her Honour noted that the co-offender was in good physical health with no clinical indicators of an active underlying mental illness.

107. There are a number of distinguishing factors that operate in favour of the present offender. Mr Elzamtar was sentenced for a more serious offence, carrying a maximum penalty of six years higher than the offence of giving possession with which this offender is charged.

108. I have already determined that this offender’s role was significantly less than Mr Elzamtar. This offender was not involved in any agreement to on-supply or sell the firearms. He did not engage in any of the planning or organisation. He did not obtain a financial benefit.

109. Furthermore, Mr Elzamtar was subject to an Intensive Corrections Order and a Firearms Prohibition Order at the time of his offence. He also had prior firearms offences on his record. The present offender’s subjective case is more compelling.

110. Applying the principle of parity, I am satisfied that the indicative sentence in respect of Count 1, taking into account a 10% reduction in sentence to reflect the utilitarian value of the plea, should be significantly less than that recorded in the co-offender’s case.

Section 5 Threshold

111. Given the objective gravity of the offences and the weight to be afforded the various purposes of sentencing, I am satisfied that the section 5 threshold is crossed, and a form of imprisonment is warranted.

Taking into Account Pre-Sentence Custody and Quasi Custody

112. The offender was arrested on 16 December 2020 and remained in custody until 31 August 2021, a period of eight months and 17 days.

113. The offender was then released to bail. The bail conditions are as follow:

1. Report daily to Bankstown Police Station between 8am and 8pm;

2. Within 24 hours of release surrender his passport, if any, to the police officer in charge of the prosecution;

3. Not to go within 500 metres of the boundary of any airport or recognised point of departure for overseas;

4. Not to apply for a new passport or travel document;

5. To live at 2/63 Brancourt Avenue, Yagoona NSW 2199 with his sister, Ms Zeinab Rifai and nowhere else;

6. He is not to be absent from the premises unless in the continuous company of his sister, Ms Zeinab Rifai, or his brother, Mr Adnan Rifai, only for the purposes of attending a medical appointment, legal appointment, reporting to the police, or for the purposes of his employment at 478 Hume Highway, Yagoona NSW 2199;

7. He is to present at the door of the premises if requested so to do by a police officer, officer of Corrective Services or Probation & Parole, in circumstances where such request is not made with unreasonable frequency and is not made without a genuine belief on reasonable basis that there is noncompliance with the curfew;

8. Not to associate in any way with Mr Nabih Mouslmani or Mr Billal Elzamtar;

9. Not to communicate, directly or indirectly (except through legal advisors) with Mr Nabih Mouslmani, Mr Billal Elzamtar or with any person of whom the Applicant has received notice that the person is to be called, or is likely to be called, by the Crown at trial;

10. An acceptable person, agrees to forfeit $300,000 with security;

11. Not to take any prohibited or restricted drug, but only a drug that is prescribed by a qualified medical practitioner;

1. To use only one mobile phone and to provide the Officer in Charge of the Bankstown Police Station with the mobile telephone number and the IMEI number of that device;

2. Prior to his release and at his own expense, to be fitted with an electronic monitoring system by Attenti Offender Management System, calibrated to ensure compliance with any geographic restrictions imposed in these conditions;

3. Within 24 hours of release, he is to contact his General Practitioner and undertake the medication required or recommended by the General Practitioner;

4. To comply with the following enforcement conditions: Enforcement Condition – Drug or alcohol testing: To undertake any testing at the direction of any police officer, or officer of Corrective Services or Probation and Parole to confirm compliance with the drug condition imposed. Such direction may not be given with unreasonable frequency and such testing may only be non-invasive and carried out with respect given to the Applicant’s privacy; and

5. That one acceptable person(s) acknowledge that he or she (they are) acquainted with the accused and acknowledge that the accused is a responsible person who is likely to comply with the bail acknowledgement.

114. A judge 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 may determine whether bail conditions are taken into account upon sentence.

115. There will be occasions when bail conditions are so restrictive that they may require a conclusion that at least 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.

116. The offender has been subject to these bail conditions since his release on 31 August 2021, a period of six months and nine days. The bail conditions are onerous. They include, but are not limited to, a home detention condition unless in the company of family members for the purpose of attending upon certain identified activities; a compliance condition; a non-association condition; an abstention condition and electronic monitoring.

117. It is difficult to imagine more restrictive bail conditions. In this case, I exercise my discretion by taking into account a portion of the period on bail as quasi custody. Insofar as I have to quantify the period, I would take into account a period of two months. The total period of pre-sentence custody, including quasi custody, is 10 months and 17 days.

118. How then is this period of presentence custody to be taken into account? A great deal of time was taken up during submissions on this very question. Supplementary written submissions have been filed on behalf of the offender and the Crown. They have been marked for identification. It is not necessary to set them out in the body of these remarks.

119. Section 24 of the Crimes (Sentencing Procedure) Act1999 (NSW) provides that in sentencing an offender, the court must take into account any time for which the offender has been held in custody in relation to the offence. It does not mandate how the pre-sentence custody is to be taken into account.

120. While it has been held in relation to section 24, that the usual and preferable practice of taking into account time already served is backdating, a discretion remains as to how to take such time into account on sentence.

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 is to be served.

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 practice can also be seen in cases such as the re-sentencing exercise in R v Carroll; Carroll v The Queen 77 NSWLR 45, where pre-sentence custody served both by way of periodic detention and full-time custody was taken into account and a suspended sentence was imposed on re-sentence.

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.

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 of pre-sentence custody, determining that a term of imprisonment of two years was appropriate and proceeding to impose that term by way of an Intensive Correction Order. The appeal was dismissed. There was no issue taken with that approach, although I accept it was not raised as an issue on the appeal.

125. These cases were decided prior to the case of Mandranis v R (2021) 289 A Crim R 260. The Court was there dealing with an appeal where, error having been conceded, the Court proceeded to re-sentencing. Simpson AJA considered, among other things, the application of s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It was observed that by s 71(1), an Intensive Correction Order commences on the date on which it is made. A sentence of imprisonment to be served by an Intensive Correction Order cannot be backdated.

126. Her Honour observed:

“That means that an offender who has served a substantial period in pre-sentence custody may be forced to choose between seeking an ICO and having the sentence backdated. That would be an injustice. The position is even more invidious when this court re-sentences after a successful appeal…. It would be virtually impossible for this court to take into account pre-sentence custody in the usual way (by backdating) and making an ICO”.

127. Her Honour then set out a solution to the problem, involving, what was referred to as, a degree of departure from the “Zamagias three-step process”:

“provided that the appropriate term of the sentence is determined before consideration is given to an ICO, it would, if an ICO was found to be appropriate, be acceptable for that term to be adjusted by the deduction of a period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it is made and is co-extensive with the term of imprisonment. The sentence actually recorded and imposed would be less (by the length of the presentence custody) than the sentence found to be appropriate to meet the purposes of sentencing.”

128. What appears to be impermissible (although not definitely decided in that case), is to arrive at a view that the appropriate aggregate term of imprisonment is, for example, four years, and then deduct the pre-sentence custody so as to arrive at a total sentence of three years or less.

129. Adams J observed at [67]:

“As for her Honour’s observation at [63] it seems to me that it would be a rare case in which an ICO could be considered appropriate for an aggregate sentence, the starting point of which exceeds three years (before the pre-sentence custody has been taken into account). The fact that s 68 (3)(b) sets an upper limit of three years for an aggregate sentence before and ICO is available is consistent with the legislative intention that any aggregate sentence that exceeds three years would be inconsistent with s 68 and reflect criminality too serious for an ICO. As her Honour noted at [63] imposing an ICO in such circumstances may not be a legitimate exercise of the sentencing discretion. Despite this, and as her Honour also noted, the question does not arise in this case and therefore does not need to be decided.”

130. The Court in Mandranis was not referred to the long line of authority summarised above in which, what I will refer to as, a “global approach” to pre-sentence custody was taken into account and, therefore, the issue has not been fully considered in an appellate court.

131. I pause to make the following observation: if the primary approach set out in Mandranis was the only legitimate exercise of discretion, there is a real risk that it will lead to potential injustices.

132. For example, it is not unusual in this Court for offenders to have served lengthy periods on remand before negotiations result in a plea of guilty. There may be cases where the appropriate penalty is an Intensive Correction Order. If that were so, and the only way that pre-sentence custody can be taken into account is to deduct the term of pre-sentence custody from the aggregate term arrived at, then in some cases, such a calculation will result in an Intensive Correction Order of very short duration, namely, a matter of months, being imposed. Such an outcome would, in my view, undermine the purpose of Intensive Correction Orders in providing intensive and comprehensive supervision and treatment in the community.

133. No doubt this issue will require further consideration, in the appropriate case, in the Court of Criminal Appeal. In the present case, I am comfortably of the view that the aggregate term of imprisonment is three years. I come to that view because I am satisfied that in each case, the objective seriousness falls either well below, or below the middle of the range. In respect of Count 1, the offender’s role is significantly less than that of his co-offender. Indeed, his limited criminality in that offence is towards the lower end of the range.

134. In respect of Counts 2 and 3, the firearms were not possessed by the offender in connection with the commission of criminal offences. Although, the offences could not be categorised as anything other than serious, the objective gravity is significantly less than in cases where such firearms are possessed in connection with criminal activity.

135. This offender has a compelling subjective case, which includes positive rehabilitation, significant physical health issues, and mental health issues that require ongoing intensive treatment.

Imposition of an Intensive Correction Order

136. I turn to consider whether that term of imprisonment can be served by way of an Intensive Correction Order. On behalf of the offender, I am urged to proceed by way of an Intensive Correction Order. The Crown submits the given the objective gravity of the offences, the only available option is one of full-time imprisonment.

137. In determining whether I proceed by way of an Intensive Correction, I must have regard to s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

138. Primacy must be given to the clear language of s 66(1) which, in terms, places community safety as the paramount consideration. The answer to the question as to which of the two modes of 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].

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 Order should not be imposed.

140. His Honour clarified the position, stating that a more nuanced approach was to be adopted in the weighing of the various considerations required to be taken into account under s 66, noting that the purpose of the section was to ensure that the Court does not assume that full-time detention is more likely to address the risk of re-offending than a community-based program of supervised activity. The sentencing Court is not required to favour an Intensive Correction Order over full-time custody, but it is required to have specific regard to community protection, and to bear in mind that short sentences are not necessarily effective as a means of deterring further offending.

141. Community safety is not achieved simply by incarcerating someone. Section 66 requires the Court to consider whether an Intensive Correction Order or full-time custodial sentence is more likely to address the risk of re-offending. 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.

142. I have given a great deal of consideration to all of the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence 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.

143. I have turned my mind to the disruption that would be caused to the offender’s rehabilitation if he were returned custody. Given the COVID-19 pandemic and its implications for conditions of incarceration, it is unlikely that the offender would receive the treatment required. I also accept that there is increased hardship associated 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].

144. I am comfortably of the view that the best way to ensure safety of the community and reduce the risk of recidivism, is to allow the offender to productively engage in the community through his business with the support of his family. He will be subject to continued electronic monitoring for the first nine months of the sentence.

Determination

145. Accordingly, the offender is convicted in respect of each offence.

146. I set out the following indicative sentences:

1. Count 1 – taking into account a 10% reduction in sentence to reflect the utilitarian value of the plea of guilty, I indicate a term of imprisonment of 2 years;

2. Count 2 – taking into account a 25% reduction in sentence to reflect the utilitarian value of the plea of guilty, and the Form One offences, I indicate a term of imprisonment of 2 years and 2 months, with a non-parole period of 18 months’ imprisonment; and

3. Count 3 – taking into account a 25% reduction in sentence to reflect the utilitarian value of the plea of guilty, I indicate a term of imprisonment of 12 months.

147. 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. That sentence will commence today, 9 March 2022.

148. The standard conditions that apply during the term of the order are that the offender:

1. must not commit any offence;

2. must appear before the Court if called upon to do so; and

3. must submit to the guidance and supervision of Community Corrections for as long as they deem necessary.

149. I impose the following additional conditions for the duration of the order, that the offender:

1. must attend upon his General Practitioner, Dr Voutos, within 7 days of today’s date to obtain a referral to a psychologist or psychiatrist;

2. must comply with all reasonable directions of the psychologist or psychiatrist of which he is referred to for as long as deemed necessary; and

3. must be subject to electronic monitoring for the first 9 months of this order.

150. I direct that the offender report to the Bankstown Office of Community Corrections within 7 days to facilitate the administration of the orders.

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Decision last updated: 23 March 2022