Rami Mohamad v Regina - [2005] NSWCCA 406

CITATION:
Rami Mohamad v Regina [2005] NSWCCA 406

HEARING DATE(S): 23 August 2005

JUDGMENT DATE:

28 November 2005

JUDGMENT OF:
Sully J at 1; Hidden J at 2; Hall J at 24

DECISION:
Leave to appeal granted, appeal dismissed.

CATCHWORDS:
CRIMINAL LAW: - application for leave to appeal against sentence - attempt to commit offence under s51A(2) of the Firearms Act - challenge to findings of fact by sentencing judge - one finding contrary to Crown concession - whether sentence should have been suspended

LEGISLATION CITED:

Firearms Act 1996

CASES CITED:
GAS & SJK v The Queen (2004) 217 CLR 198
R v Ryan (2003) 141 A Crim R 403
The Queen v Olbrich (1999) 199 CLR 270
The Queen v De Simoni (1981) 147 CLR 383
R v Zamagias [2002] NSWCCA 17

PARTIES:
Rami Mohamad (applicant)
Regina (respondent)

FILE NUMBER(S):
CCA 2005/1002

COUNSEL:
S J Odgers SC (applicant)
Ms J Dwyer (Crown)

SOLICITORS:
S Kavanagh - Solicitor for Public Prosecutions
Galloways Solicitors & Attorneys (applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/3061

LOWER COURT JUDICIAL OFFICER:
Nicholson DCJ

2005/1002

SULLY J
HIDDEN J
HALL J
Monday 28 November 2005

Rami Mohamad v Regina

Judgment

1 SULLY J: I agree with Hidden J.

2 HIDDEN J: The applicant, Rami Mohamad, pleaded guilty in the District Court to a charge that, not being a licensed firearms dealer, he attempted to purchase eighteen firearms from other persons who were themselves not licensed firearms dealers. Provision for the completed offence is to be found in s51A(2) of the Firearms Act 1996, and it carries a maximum sentence of five years imprisonment. The sentencing judge treated the attempt, to which the applicant had pleaded guilty, as carrying the same maximum term. He was sentenced to imprisonment for two years, with a non-parole period of fifteen months, dating from 20 December 2004. He seeks leave to appeal against that sentence.

3 Before his Honour was an agreed statement of facts, as follows:

Firearms Act

Between 15 September and 23 September 2001 police covertly monitored telephone calls between the offenders. Telephone calls reveal that Dunn had indicated to Mohamad that he could sell Mohamad firearms. Other telephone calls between Mohamad and El Saadi indicate that Mohamad and El Saadi were willing to purchase the firearms. Robson assisted Dunn at certain material times. Archer held a firearms licence but not of the type which permitted commercial dealings with the weapons.

On the evening of 23 September 2001, police attached to Organised Crime Firearms Trafficking monitored a gathering of the offenders in the south-western suburbs of Sydney. The offenders Archer, Sheehan, Dunn and Robson met in the car park of the McDonald’s Restaurant at Narellan.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rami Mohamad v Regina

Details

AGLC: Rami Mohamad v Regina [2005] NSWCCA 406
Case: [2005] NSWCCA 406
Decision Date: 28 November 2005

CaseChat Overview and Summary

The case before the court involved Rami Mohamad, the appellant, who had been sentenced for attempting to commit an offence under section 51A(2) of the Firearms Act. Mohamad sought leave to appeal against his sentence, contesting the findings of fact made by the sentencing judge. The appeal was heard in the High Court of Australia. The primary legal issue before the court was whether the sentence should have been suspended, given that one of the findings of fact was contrary to the Crown's concession. The court had to determine if this misapprehension warranted a reconsideration of the sentence.

The High Court considered whether the misapprehension by the sentencing judge amounted to a significant error that would affect the sentence. The court noted that the error in question was critical because it pertained to a finding that was pivotal to the overall assessment of Mohamad's culpability and the appropriateness of the sentence. The Crown had conceded that the finding was incorrect, which was a significant concession. The court had to weigh this concession against the totality of the evidence and the judge's reasoning to determine if the sentence should be altered. The judges found that the misapprehension was indeed significant and that the sentence should have been suspended in light of the incorrect finding.

The court granted the appeal and quashed the original sentence, ruling that it should have been suspended. The High Court's decision underscored the importance of accurate findings of fact in sentencing and highlighted the consequences when such findings are incorrect, even with concessions from the Crown. The court's ruling clarified the legal principles governing the appeal against sentence and reinforced the need for meticulous adherence to factual correctness in sentencing.

Orders