R v Sabbouh

[2022] NSWDC 281

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Sabbouh [2022] NSWDC 281

Hearing dates:

17 May 2022

Date of orders:

19 May 2022

Decision date:

19 May 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Aggregate term of imprisonment of 2 years 4 months to be served by way of intensive correction in the community

Catchwords:

CRIME — Firearms offences — Unauthorised use/possession of firearm

SENTENCING — Penalties — Intensive correction orders

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Cases Cited:

Bonett v R [2013] NSWCCA 234

Imbornone v R [2017] NSWCCA 144

Veen v The Queen [1988] HCA 14

Muldrock v The Queen [2011] HCA 39

Munda v State of Western Australia [2013] HCA 38

R v Cartwright (1989) 17 NSWLR 243

R v Quinlin [2021] NSWCCA 284

R v Qutami [2001] NSWCCA 353

R v Serratore [2000] NSWSC 696

R v Ward [2004] NSWSC 420

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

Regina (Crown)
Nashat Sabbouh (offender)

Representation:

Tara Reddy (Solicitor for the ODPP)
Michael Coroneos (Counsel for the offender)

Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2020/00233197

REVISED EX TEMPORE JudgEment

INTRODUCTION

1. Nadim Sabbouh and Nashat Sabbouh are brothers. Both appeared for sentenced proceedings upon charges arising from events on 9 August 2020 when Nadim Sabbouh discharged multiple shots from a firearm on a suburban street near to the home occupied by Nashat Sabbouh.

2. The matter commenced before me on Tuesday 17 May 2022 and thereafter the proceedings against Nashat Sabbouh were adjourned for judgement and sentence today, 19 May 2022. Those against Nadim Sabbouh were adjourned to 21 June 2022 for further hearing.

3. The offence with which Nadim Sabbouh is charged are:

Sequence 3

On 9 August 2020 at Chester Hill in the State of New South Wales [he] did acquire a firearm in contravention of a Firearms Prohibition Order that was in force.

S 74(1) Firearms Act 1996

Sequence 4

On 9 August 2020 at Chester Hill in the State of New South Wales [he] did fire a firearm with disregard for the safety of Gary Minchenko.

S 93G(1)(c) Crimes Act 1900

4. These will be the subject of further evidence on the next occasion. I have included the details of these charges to highlight the disparity between the predicament faced by Nadim Sabbouh in contrast to that of his brother Nashat. The parties concede that the differences in the cases are such that parity is not a matter of significant concern.

THE OFFENCES

5. The offences with which Nashat Sabbouh is charged are:

Sequence 3

On 10 August 2020 at Chester Hill in the State of New South Wales [he] did acquire a firearm part without authority to do so.

S 50AA(1) Firearms Act 1996

Sequence 4

On 9 August 2020 at Chester Hill in the State of New South Wales Nadim Sabbouh did fire a firearm with disregard of the safety of Gary Minchenko and Nashat Sabbouh knowing the said Nadim Sabbouh to have committed the said serious indictable offence on or about 9 August 2020 did assist Nadim Sabbouh.

S 93G(1)(c) Crimes Act 1900

PENALTIES

6. The maximum penalty for the offence charged in sequence 3 against this offender is imprisonment for five years and for the offence charged in sequence 4 imprisonment for ten years. There is no standard non-parole period specified for either of these offences for the purposes of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999.

THE TIMING OF THE PLEAS OF GUILTY

7. The offender pleaded guilty in the Local Court at Burwood committal proceedings. The offender adhered to his pleas of guilty when called upon in this Court.

8. These are matters to which Part 3 Div. 1A Crimes (Sentencing Procedure) Act 1999 applies. In accordance with s 25D(2)(a) of the Act the discount for the utility of the pleas of guilty is 25% for the sentences that would otherwise have been identified for each of the offences if they were not admitted.

PRE-SENTENCE CUSTODY AND CONSTRAINT

9. The offender spent time in custody prior to the determination of sentences.

10. He was arrested on 10 August 2020 and remained in custody until granted bail in the Supreme Court on 29 October 2020. The period he was held was two months and 20 days.

11. The bail conditions imposed were restrictive. They were:

1. To appear before Court as directed.

2. To be of good behaviour and not commit any criminal offences.

3. To reside at a specified address.

4. Not to absent the premises where required to live between 8pm and 6am except in the company of his wife.

5. To present himself at the front of the premises where required to live at the direction of any police officer who believed on reasonable grounds that it is necessary to do so, having regard to the rights of occupants of the premises to peace and privacy, to confirm compliance with the curfew condition.

6. Not to associate or communicate by any means other than to his legal representative with any co-accused, including his brother Nadim Sabbouh or any witnesses.

7. Not go within 1 kilometre of two nominated addresses.

8. To report to the officer in charge Granville Police Station once each day between 8am and 8pm.

9. To use one mobile telephone only and provide the OIC with the service number, the IMEI number and any user password code for it within 24 hours of acquiring or resuming possession of it following release to bail. The offender was to consent to and permit police to examine the content of and communications made on the telephone.

10. Not to apply for a new passport or travel document at any time whilst on bail.

11. Not to enter any domestic or international airport at any time whilst on bail.

12. Not to leave the State of New South Wales at any time whilst on bail.

12. On 9 November 2021 the conditions were varied to exclude the curfew condition, the non-association condition, the condition requiring he remain away from nominated premises, the reporting condition and the condition limiting access to phones. Thus from 9 November 2021 to the present time his conditions of bail have been:

1. To appear before Court as directed.

2. To be of good behaviour and not commit any criminal offences.

3. To reside at a nominated address.

4. Not to apply for a new passport or travel document at any time whilst on bail.

5. Not to enter any domestic or international airport at any time whilst on bail.

6. Not to leave the State of New South Wales at any time whilst on bail.

13. The offender’s counsel urged the proposition that these were restrictive conditions, especially those until 9 November 2021, to be treated as quasi custody; R v Quinlin [2021] NSWCCA 284 was offered in support of this. At para [88] and following the judgement provides:

“[88] Nevertheless, there will be occasions when bail conditions are so harsh or 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, conveniently referred to as “quasi-custody”. The onus of establishing whether an offender’s bail conditions amount to quasi custody falls on the offender on the balance of probabilities. As Garling J explained (with the concurrence of Basten JA and myself) in LA v R:

“[43] A sentencing court is entitled to take into account any conditions of bail granted to an offender awaiting sentence where those conditions may be particularly harsh or restrictive. Such terms are often referred to as “quasi-custody”. Prior to a court taking into account conditions of quasi-custody as a basis for reducing a sentence, or commencing a sentence from an earlier date than it otherwise would have, there has to be an evidentiary foundation to establish the nature, kind and effect of any restrictions: see Bonett v R [2013] NSWCCA 234 at [50] where Adamson J said:

“Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing Judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing Judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to.”

[89] An assessment of whether a person’s bail conditions amount to quasi-custody and whether and to what extent an allowance is made by backdating the sentence is a discretionary decision to be made by the sentencing judge in light of the particular facts and circumstances of the case. Such a decision is only reviewable by this Court in accordance with the principles of House v The King.”

14. The Crown submitted that the conditions were not so restrictive as to amount to “quasi-custody” attracting a reduction in sentence or an earlier commencement date than otherwise would apply.

15. I agree that those initial conditions did impose significant constraint upon the offender’s liberty for a little more than one year and I have brought them to account as part of the punishment suffered by the offender in the process of synthesis of factors upon which a Court is engaged without quantification of a period of incarceration they might represent. I have considered the representations by the offender’s wife and the offender in their documents to which I shall come, and I accept the impact of the bail conditions upon their lives. But as challenging as they might have found them, they do not extend to the level of the circumstances afflicting the applicant in R v Quinlin ibid, which persuaded the sentencing judge to reduce or backdate the sentence selected, a decision which was not disrupted by the appellate Court.

16. Although I am satisfied that no course other than imprisonment is appropriate in this case, I intend to have the sentence served by way of Intensive Corrections Order that will commence today, bringing to account the punishment that was implicit in the bail conditions to which I have referred. This will be in respect of an aggregate sentence I shall announce in due course pursuant to s 53A Crimes (Sentencing Procedure) Act 1999.

THE FACTS

17. The accuracy and detail of the statement of agreed facts as presented by the Crown were acknowledged on behalf of the offender without qualification. The offender did not give evidence, a decision which he was entitled to make, but which enlivened consideration of the guidance offered by Smart AJ in R v Qutami [2001] NSWCCA 353 and more recently that offered by Wilson J in Imbornone v R [2017] NSWCCA 144, regarding the out of Court representations he has made. Bringing those authorities to account I have come to the view that notwithstanding that he has not given sworn evidence and has not faced cross-examination, I should accept and bring to account the favourable representations, the making of which is not challenged by the Crown.

18. The shooting from which the prosecution of the offender and his brother arose was during the evening of 9 August 2020 after 9.20pm in Alpha Street, Chester Hill. On 9 August 202 Nashat Sabbouh had been friends with Aaren Minchenko, the victim’s nephew. They had been friends for about two or three years.

19. On 23 June 2020 Aaren Minchenko and the offender were together in the offender’s Volkswagen Golf when it was involved in a serious car accident. According to Aaren Minchenko the offender was driving the vehicle at the time but did not hold a valid driver’s licence. When police arrived Aaren Minchenko nominated himself as the driver of the vehicle so that the offender would not be charged. Aaren Minchenko was charged with serious criminal offences including dangerous driving occasioning grievous bodily harm.

20. In early August 2020 the victim observed that his nephew was not himself and asked him what was going on. The nephew disclosed that he had been charged in relation to a driving incident for which he took the blame despite not being the driver. The victim tried to persuade his nephew to go to the police and tell them the truth and offered to help him do so. The nephew called the offender and spoke to him about this issue. The offender agreed to speak about this issue in person. The victim offered to drive the offender from his home to the Granville Police Station.

21. About 25 minutes after the phone call at 9.20pm the victim arrived at the offender’s house. He sat alone in his vehicle and called the offender. At 9.21pm the offender and his brother came outside. The offender and the victim had the following brief conversation.

22. The offender, “Hey man how are ya.” The victim, “Yeah man, you ready to go?” The offender, “No worries my brother wants to talk to you quickly.” The offender was joined by his brother; both stood at the driver’s door window of the victim’s vehicle. His brother said, “What are you doing let’s talk about this.” The victim said, “What’s there to talk about? Nash can talk at the station.” The offender’s brother said, “Jump out of the car let’s talk about it like men. Come inside and talk about it.” The victim said, “If you want to talk about it jump in my car.” The offender’s brother said, “Where is Aaren?” The victim said, “He is at the police station.”

23. A few minutes later a vehicle pulled up in the middle of the road near where the victim’s vehicle was stopped. The offender approached the driver’s side window of the other vehicle and spoke with the person inside. The Crown does not allege that that person had any link or made any contribution to these events.

24. The co-offender, the brother, remained at the driver’s side window of the victim’s vehicle and said things such as, “Come outside, come outside.”

25. At 9.24.20 (a time taken from closed circuit television images) the victim decided to leave and started to drive away. The offender remained at the driver’s side window of the second vehicle, the co-offender, his brother, moved toward the offender. The offender’s brother looked in the direction of the victim’s car after it drove away and slowly paced down the street in the same direction. At 9.24.57 the co-offender, his brother, reached into his pocket and produced a firearm. The offender can be heard on the closed-circuit television product yelling “Oi, oi, oi, no, no, no, oi, no, no, no, no.” His brother fired shots in the direction of the victim’s vehicle, which was in Alpha Street. Six shots are heard on the closed-circuit television product. The victim heard gunshots and felt his vehicle being struck by bullets. This is the conduct founding the offence with which the offender’s brother is charged.

26. The offender and his brother then moved down Alpha Street in the opposite direction, running or jogging away from where the shots were fired. Police arrived about 15 minutes later at 9.36pm.

27. Police recovered five 9-millimetre parabellum cartridge cases from the roadway. Ballistics examination confirmed all had been fired from the same weapon. Examination of the victim’s car revealed three impact marks consistent with having been caused by bullets, all on the passenger side of the vehicle. Two were located on the passenger side back tray of the utility, one was located on the cabin below the passenger side door.

28. Police obtained a search warrant for the offender’s house in Alpha Street Chester Hill. His wife told the police that she and her husband were the only people who lived at the address. The police located a 9-millimetre parabellum calibre detachable box magazine designed to suit a self-loading pistol. This is the circumstance founding sequence 3 against this offender. The item was loosely wrapped in tissue paper inside a plastic sandwich bag and was placed inside a loose piece of exterior wall cladding. The package was tested and was found positive for the offender’s DNA and fingerprint. It is agreed that this was the item that was used in the shooting and was placed in the location found by the offender as a positive act of assistance to assist his brother to avoid justice.

29. The offender was arrested during the search warrant at his residence on 10 August 2020 and taken to Bankstown Police Station. The police seized his mobile phone. He participated in an electronically recorded interview during which he made the following assertions.

30. He was asked about the whereabouts of himself and his brother on 9 August 2020. Although expressed as having been an assertion by the offender, clearly that was an inquiry made of him during the interview by its very terms. The offender exercised his right to silence in relation to the specifics of the allegations. There was further investigation into the offender’s statements during the interview, which proved him to be misleading and untruthful about his whereabouts and the whereabouts of his brother. This is part of the conduct which founds the offence of accessory after the fact.

31. His brother was arrested on 16 September 2020.

32. Included in the Crown material is the video recording captured by closed circuit television from premises nearby to where the incident occurred. It is uncontroversial in that it depicts the victim’s motor vehicle travelling a modest speed along the street after which the offender’s brother is seen to walk in the same direction, the offender is seen to be walking also in that direction, and as they proceed in this fashion a voice is heard, acknowledged to be that of the offender, consistent with him calling to his brother attempting to have his attention. The brother disappears from the field of vision to the right whereupon the offender’s voice is heard uttering the words I described from the statement of facts, and then there is heard in rapid succession six shots discharged.

33. According to the agreed statement of facts as I noted there were five shot casings retrieved and three projectiles struck the victim’s vehicle. The recording concludes with the offender jogging in the opposite direction followed by his brother.

THE ASSESSMENT OF THE GRAVITY OF THE OFFENDING

34. To assess the gravity of the offending underpinning these charges it is first noted that the offence charged in sequence 3 of acquiring the firearm part without authority, is part of the conduct that founds the charge of accessory after the fact to the offence of discharging the firearm, sequence 4.

35. The context in which the offences occurred began with the involvement of the offender in the motor vehicle collision in which he drove without a licence to do so, and the agreement with the victim’s nephew for him to take responsibility for the driving which was followed by the decision by the nephew in consultation with his family to correct the information given to the police investigating the collision, a course which the offender’s brother sought to thwart in the confrontation with the victim the driver’s uncle, culminating in the discharge of the weapon six times with three shots striking the victim’s vehicle as he drove off. The CCTV depicts the vehicle departing at a sedate pace as it disappears to the right of the screen.

36. The context concludes with the offender’s misrepresentations in the interview about his and his brother’s whereabouts at the time of the offence which is also part of the conduct founding sequence 4.

37. In Tepania v R [2018] NSWCCA 247 Johnson J dealt with the assessment of objective gravity and moral culpability for standard non-parole period offences and those without a standard non-parole period. After dealing with the provisions introducing standard non-parole period his Honour continued:

“[112] In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment.

[113] The concept of “moral culpability” was used by the sentencing judge in this case and in submissions to this Court. The term “moral culpability” has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court. In Veen v The Queen [1988] HCA 14, it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability.

[114] In Muldrock v The Queen [2011] HCA 39 (at 140 [58]), it was observed that the applicant’s limited moral culpability may mean that retribution and denunciation did not require significant emphasis.

[115] In Munda v State of Western Australia [2013] HCA 38 (at 621 [57]), it was said that the circumstances of the appellant being affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that must be balanced with the seriousness of his offending.”

38. I have assessed the objective gravity and the misconduct upon which the offender engaged as being below mid-range but not significantly so and not toward the lower end of the range of misconduct as was submitted on his behalf. I do not accept the Crown’s contention that the objective gravity of this offending should be placed above that level.

39. In reaching this view I have considered the Crown submission as to the nature of the predicate offence in respect of which the offender faces accessorial reliability, the circumstances that brought the victim and the offender and his brother into proximity, and the absence of any circumstances that might ameliorate the offender’s moral culpability revealed in his role. To the extent that an assessment of objective gravity must be made in respect of each of the offences, I find that the offence in sequence 3 is lower than that of sequence 4, considering that it is one aspect of the assistance the offender provided to his brother. I consider that the placement of the magazine from the pistol used in the shooting to protect it from discovery is a serious matter, when the offender was aware of the significance of the item and the predicate offence upon which count 4 is charged, the commission in circumstances of which the offender well knew when he called out to his brother which could have been only for him to desist. I accept that the offender did not support this brother in the decision he made to produce and discharge the weapon graphically depicted in the CCTV.

40. There is no material before me that might suggest that the offender was burdened with any mental health or the consequences of difficulties from his formative years that might reduce the assessment of his moral culpability. He has a modest record of antecedent offences which will not bear significantly upon my assessment of his moral culpability or the assessment of objective gravity. Ultimately however the offender must face the consequences of the steps he took to assist his brother, aware of the circumstances leading the confrontation with the victim and the discharge of the weapon six times in the direction of the victim as he drove from the scene. He gained the advantage of avoiding the arrangement to attend upon police to put right the circumstances in which he had his friend, the victim’s nephew, take blame for his driving offences.

41. I have no material before me as to what followed from the disclosure that the offender was the driver in the collision leading to grievous bodily harm of another. I simply must put any thorough analysis of that information to one side.

42. Thus upon these considerations I have assessed the seriousness of this misconduct.

THE OFFENDER

43. The offender was born during the second part of 1999 and was therefore approaching 21 years of age at the time of the offences. He is now 23 years of age. He is married with a daughter born earlier this year. His antecedent offences are limited to driving when his licence was cancelled and suspended and possession of a prescribed restricted substance.

44. His experience in custody was limited to the remand period before granted bail to which I referred; there is no record of misconduct in gaol.

45. He faced a detention application after allegedly breaching a bail condition on 23 November 2021. This was alleged to have occurred when he changed address without notifying police supervising his bail. The police had attended his nominated address, found it vacant, and learned of his relocation upon the canvass of neighbours. An affidavit provided by his wife represents her pregnancy of seven months, their decision to change address for a more certain lease arrangement, notification of their goal to their lawyers, the advice that he should remain there until the change of address notification, and that he did so without the furniture after it was removed to the new address other than for a mattress where he slept in the interim that might not have been visible from an outside inspection of the premises. It appears that this was unchallenged by the Crown and bail was continued.

46. There is a sentence assessment report prepared upon an interview with offender, contact with his partner, and the records raised by the police and Corrective Services. This informs me that he lives with his wife and new born baby. He has a close and supportive relationship with his extended family. He has fulltime employment as a tree lopper. He has a minimal history of offending.

47. He is attributed with expressions of disappointment at his offences. He claimed, and I accept, that he did know his co-offender his brother had a firearm on his person. He made every attempt to stop his brother discharging the firearm and this I find to be the fact.

48. He admitted that he took the firearm to his home and said this was an attempt to conceal the weapon on behalf of his co-offender. I pause to note that I have come to my decision upon the terms of the charge and the agreed statement of facts which do not assert that he took the firearm to his home but the box magazine from the firearm.

49. The purpose he attended the meeting with the victim in Alpha Street, Chester Hill was to speak to him without any intention of violence; this I accept. He showed insight into the impact of his offending upon the victim and the community’s safety. He is attributed with the following:

“I can’t believe this happened for nothing, it was meant to be a conversation and look what’s happened.”

50. He is agreeable to intervention and community service work. He has not been previously supervised and he is assessed with a low risk of re-offending.

51. He provided a letter written on 8 February 2022. He expresses his apology for his actions and offered information to allow the Court insight as to who he is. The time he spent in custody was a critical wakeup call he says. The circumstance of his incarceration included confinement due to COVID and inappropriate responses by Corrective Services officers given the task of supervising him. He could not at one point have green clothing for whatever reason and was left to wear street clothes which attracted unwanted attention from other inmates. He criticises the unhygienic facilities where he was forced to take showers.

52. When on bail he learned that his wife was expecting their baby since born to them. He has progressed improving his circumstances each day, he writes. He has always been employed full-time and he asserts having made a promise to himself that after this proceeding is concluded he will continue to work toward changing his life for the better. He writes of the difficulties with his landlord with the police knocking on the door to confirm his compliance with bail and he writes of the stress that this occasioned to his heavily pregnant wife. He, as I read this, does not extend the blame to the officers who are performing what their duty required of them and accepts that the consequences that he and his wife suffered were the product of his criminality. I paraphrase to record that as my perception of what he has provided to the Court.

53. There are references provided by the principal of a company where he was employed as a carpenter. The authors speak in the most positive terms of the offender personally and as an employee. There is a reference provided by a friend who has known the offender for some five years. He is assessed by this person as dependable and hardworking and a positive member of the community.

54. There is a further reference from the managing landlord at the premises in Alpha Street, Chester Hill. This document speaks of the offender and his wife and their relationship with him as the tenants. He speaks well of them. This might sit as inconsistent with what was contained in the offender’s letter, but on closer analysis whatever stress his wife was experiencing was because of embarrassment arising from the obligation the police had to attend to verify his bail compliance. This did not discourage the author of this letter from providing a reference in support of them.

55. There is another reference from a friend who has known the offender for three and a half years, again speaking well of the offender and his family. A reference is provided by another brother, not the co-offender, again speaking of his qualities and characteristics in positive terms. There is a character reference provided by his current employer where he works as a tree lopper, again in positive terms.

56. Finally there is a document provided by the offender’s wife speaking of their lives together, her understanding of the gravity of the misconduct, his qualities as a motivated and gifted young man who has a strong work ethic and is a good father and a good husband. She attributes him with expressions of remorse. She speaks of the bail monitoring that was undertaken and the embarrassment that caused with the landlord, and she speaks of his growth that has continued to the present time.

SUBMISSIONS

57. Submissions in writing were provided by both the Crown and the counsel appearing for the offender. The Crown reminds me of the background of the offending. The Crown notes that the imposition of an Intensive Corrections Order is not one that is available to the brother in the assessment of his sentence upon the material I have so far, as was conceded by his counsel during submissions that were made on the first occasion. There is no question raised about the application of s 5 Crimes (Sentencing Procedure) Act 1999 in respect of him. It is accepted that he must remain in gaol to conclude the custodial component of the sentence yet to be identified. The option of an intensive corrections order though is available for this offender.

58. The Crown reminds me of the maximum penalty, the pre-sentence custody and addressed the objective seriousness to which I have already referred. The Crown noted that the offence of being an accessory after the fact extends across an array of misconduct from simple larceny with a maximum penalty of five years, over a broad range of predicate or principal offences; that is part of the premise which the Crown urges a view that the objective seriousness of this offence or this misconduct at least in respect of the accessorial charge should be placed at mid-range.

59. The Crown reminded me of the level of knowledge that the offender had of the principal or predicate offence, to which I have already referred. The assistance give to his brother is summarised, including the taking of the box magazine, an essential component of the pistol, and provision of misleading and untruthful information. The Crown concedes the motivation that must have arisen from his relationship with his brother but submits that does not lessen the seriousness of the offence, drawing upon the decision by RS Hulme J in R v Ward [2004] NSWSC 420. The Crown noted there was no evidence of threat, pressure, or any other conduct on the part of the offender’s brother, matters upon which I have already made comment.

60. The Crown concedes the absence of aggravating factors. The Crown concedes the absence of a significant previous record, the plea of guilty, and the availability of a discount of 25%: s 21D(2)(a) Crimes (Sentencing Procedure) Act 1999. I am reminded of the purposes of sentencing and the considerations that must be brought to account when determining whether a sentence may be served by way of an Intensive Corrections Order.

61. The Crown made no submissions against a finding that the offender has demonstrated contrition and remorse.

62. Those offered on behalf of the offender address his present circumstances including his family relationships, his employment history, and his limited antecedent record. It is said that he voluntarily participated in an interview with police but it should not be overlooked that his responses included representations to further assist his brother to avoid detection, upon which the Crown relies as part of the conduct for sequence 4.

63. The submissions include reference to his prior custody and bail conditions, the absence of aggravating factors and mitigating factors of the absence of a significant prior record: s 21A(3)(e); and prior good character: s 23A(3)(f); though this is qualified to some extent by his prior modest record and the misconduct involved in his steps to avoid the consequences of driving in a collision which resulted in injury to another; he is unlikely to re-offend: s 23A(3)(g); his prospects for rehabilitation: s 23A(3)(h); remorse: s 23A(3)(i); and his plea of guilty: s 23A(3)(k). All these provisions are set forth in the Crimes (Sentencing Procedure) Act 1999.

64. I am reminded of the principle of totality that must be applied. The aggregate sentence I have identified involves a modest aggregation of the individual sentences identified for these offences to reflect that.

65. Although the principle of parity should not be disregarded, the disparity between this case and that of his brother requires significantly different outcomes. The parties are ad idem upon that point.

66. Prior examples of sentences for similar prosecutions include decisions in which Intensive Corrections Orders were employed. It is submitted that the Community Corrections Order would suffice in this instance upon the application of s 5 Crimes (Sentencing Procedure) Act 1999.

FINDINGS

67. I have dealt with the assessment of objective gravity and moral culpability. I agree for the reasons discussed the offender’s moral culpability in this misconduct should be assessed as significant. The Crown submits that it is at a high level but I would not place it so.

68. The purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 require comment. General deterrence must attract significant weight particularly considering the proliferation of offences involving the discharge of firearms in public intending harm to others. To endeavour to protect such a perpetrator from the consequences of their misdeed, no doubt for reasons to do with their relationship as brothers, does not justify a finding that general deterrence should attract lesser weight. The need for personal deterrence is constrained in this case considering the offender’s progress towards rehabilitation. There is little risk of further harm from the offender upon my assessment of his progress. He must be made accountable for what he has done which must be denounced and there must be recognition of the harm done to the victim and the community. To assist the brother to escape consequences would impact upon the victim and upon the community in my judgement.

69. I do not accept the submission urging the imposition of a Community Corrections Order. I am satisfied that no penalty other than imprisonment is appropriate, however I accept that the sentence may be served by way of an Intensive Corrections Order.

70. I brought to account s 66 Crimes (Sentencing Procedure) Act 1999. Community safety is the paramount consideration. I am satisfied that an Intensive Corrections Order is more likely to address any risk of re-offending. I am satisfied that I have been provided with sufficient material to come to this view.

ORDERS

71. My orders are:

• The offender is convicted of each of the offences for which he pleaded guilty in the Local Court and to which he has adhered in this Court.

• The sentences I have identified as appropriate are as follow:

• For the offence sequence 3, acquire firearm part a sentence of 1 year 3 months. This term has been reduced by a discount of 25% for the plea of guilty.

• For the offence of accessory after the fact a sentence of 2 years 3 months. This term has been reduced by a discount of 25% for the plea of guilty.

72. I have decided to impose an aggregate sentence of imprisonment. The sentence I impose is one of 2 years and 4 months; that will commence today, 19 May 2022 to expire on 18 September 2024. The aggregate sentence is to be served by way of an Intensive Corrections Order pursuant to s 7 Crimes (Sentencing Procedure) Act 1999. The order commences today. Pursuant to s 73 standard conditions apply. Thus the offender must not commit any offence and must submit to supervision. Pursuant to s 73A(2)(d) of the Act the offender is to perform 50 hours of Community Service.

73. After concluding the completion of documents at the Registry, the offender is to contact the Community Corrections office at Bankstown for the necessary arrangements.

74. No further orders were sought and the terms of the sentence were repeated for the information of the parties and the offender and the consequences of breach were explained to him.

75. Exhibits to remain on file.

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Amendments

04 August 2022 - Corrected typo in section the offender was charged under

Decision last updated: 04 August 2022