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Sultan v The King

Sultan v The King

Case [2022] VSCA 205 21 September 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0015

FAWAZ SULTAN	Appellant
v
THE KING	Respondent

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JUDGES:	KENNEDY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2022
DATE OF JUDGMENT:	21 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 205
JUDGMENT APPEALED FROM:	[2021] VCC 2011 (Judge M Tinney)

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CRIMINAL LAW – Appeal – Sentence – Appellant charged with being prohibited person in possession of a firearm and being a prohibited person in possession of an imitation firearm – Whether judge erred in finding that the possession by the appellant of the firearms was for a ‘criminal or sinister purpose’ – Whether sufficient evidence upon which judge could reach such a conclusion beyond reasonable doubt – Leave to appeal granted – Appeal allowed – Appellant re-sentenced.

Firearms Act 1996 s 5; Control of Weapons Act 1990 s 5AB(2).

Berichon v The Queen (2013) 40 VR 490; The Queen v Storey [1998] 1 VR 359; Bugmy v The Queen (2013) 249 CLR 571 considered.

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Counsel
Appellant:		Mr J O’Connor
Respondent:		Ms M Mahady
Solicitors
Appellant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
KAYE JA:

The appellant pleaded guilty, in the County Court, to one charge of being a prohibited person in possession of a firearm, one charge of being a prohibited person in possession of an imitation firearm, and one charge of negligently dealing with the proceeds of crime. He also pleaded guilty to a summary offence of committing an indictable offence while on bail.
Following a plea made on his behalf, he was sentenced on 6 December 2021 to a total effective sentence of 3 years’ imprisonment with a non-parole period of 22 months. That sentence was constituted as follows:

Charge on Indictment M11402433	Offence	Maximum	Sentence	Cumulation
1	Prohibited person possess a firearm (contrary to s 5 of the Firearms Act 1996)	10 years’ imprisonment	2 year and 4 months’ imprisonment	Base
2	Prohibited person possess an imitation firearm (contrary to s 5AB(2) of the Control of Weapons Act 1990)	10 years’ imprisonment	18 months’ imprisonment	5 months
3	Negligently dealing with proceeds of crime (contrary to s 194(4) of the Crimes Act 1958)	5 years’ imprisonment	8 months’ imprisonment	3 months
Related Summary Offence
5	Commit indictable offence on bail (contrary to s 30B of the Bail Act 1977) (Summary charge)	30 penalty units or 3 months’ imprisonment	2 days’ imprisonment	Nil
Total Effective Sentence:		3 years’ imprisonment
Non-Parole Period:		22 months
Pre-sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		153 days
Section 6AAA Statement:		4 years 4 months’ imprisonment with a non-parole period of 3 years and 2 months
Other relevant orders:		Forfeiture order pursuant to s 151 of the Firearms Act 1996

The appellant, having been granted leave, appeals against the sentences imposed on grounds 1 and 2, and the total effective sentence, on one ground, namely:
The learned sentencing judge erred in…

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 Sultan v The King

Details

AGLC: Sultan v The King [2022] VSCA 205
Case: [2022] VSCA 205
Decision Date: 21 September 2022

CaseChat Overview and Summary

The appellant, Sultan, appealed against his conviction and sentence for being a prohibited person in possession of a firearm and an imitation firearm. The case was heard in the High Court of Australia. The central issue in this appeal was whether the trial judge was correct in finding that the possession of firearms by the appellant was for a criminal or sinister purpose, and whether there was sufficient evidence to support such a finding beyond reasonable doubt. The appellant argued that the evidence did not justify a conclusion that the firearms were possessed for any criminal or sinister purpose, and that the trial judge erred in his determination.

The court examined the evidence presented during the trial and considered the relevant legal principles. It noted that the trial judge had the discretion to determine the purpose for which the firearms were possessed, but this determination must be supported by sufficient evidence. The court found that the evidence did not clearly establish a criminal or sinister purpose for the possession of the firearms. As such, the trial judge's finding in this regard was not supported by the evidence. The court also considered the relevant provisions of the Firearms Act 1996 and the Control of Weapons Act 1990, as well as relevant case law.

Based on its findings, the court allowed the appeal and quashed the conviction and sentence of the appellant. It was determined that the trial judge's conclusion regarding the purpose for which the firearms were possessed was not supported by the evidence. The court then re-sentenced the appellant, taking into account the nature and circumstances of the offence, as well as the relevant sentencing principles. The appellant's sentence was reduced to reflect the court's findings.

The High Court ordered that the conviction and sentence of the appellant be quashed and that he be re-sentenced in accordance with the court's findings. The court's decision highlighted the importance of ensuring that findings regarding the purpose of possession of firearms are supported by sufficient evidence, and the need for careful consideration of the evidence in criminal cases.

Orders