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Sumrein v R

Sumrein v R

Case [2019] NSWCCA 83 18 April 2019

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sumrein v R [2019] NSWCCA 83
Hearing dates: 3 April 2019
Date of orders: 18 April 2019
Decision date: 18 April 2019
Before: Leeming JA at [1]
Ierace J at [5]
Hidden AJ at [6]
Decision:
1.   Leave granted, appeal allowed.
2.   Sentence in District Court of New South Wales quashed.
3.   Applicant resentenced to imprisonment for 3 years, NPP 1 year and 5 months, from 16 November 2017.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – possession of loaded firearm in a public place – applicant obtained firearm after drive-by shooting at his home – obtained for defence of himself and his family – not involved in criminal activity – whether his motive for obtaining the firearm relevant to assessment of objective gravity, moral culpability
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Cao v R [2013] NSWCCA 321
Johan v R [2015] NSWCCA 58
Luu v R [2008] NSWCCA 285
Mack v R [2009] NSWCCA 216
R v AZ [2011] NSWCCA 43; 205 A Crim R 222
R v Dusan Krstic [2005] NSWCCA 391
R v Shortland [2018] NSWCCA 34
Regina v AA [2006] NSWCCA 55
Tepania v R [2018] NSWCCA 247
Thalari v Regina [2009] NSWCCA 170
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Mahmoud Sumrein (Applicant)
Regina (Crown)
Representation:
Counsel:
S J Odgers SC (Applicant)
G Newton (Crown)
Solicitors:
Ahmed Dib (Applicant)
C Hyland – Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/233293
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

21 February 2018

Before:

Syme DCJ

File Number(s):

2015/131524
2016/233293

Judgment

LEEMING JA: I agree with Hidden AJ, save that I prefer not to express a view on what was said in R v Shortland [2018] NSWCCA 34 as to the assessment of objective gravity. In particular, in relation to the concession made by counsel then appearing for the applicant at the sentencing hearing, I agree that it is unclear from the transcript precisely what the effect of the so-called concession was, and I agree that there was error in the way in which the applicant’s motive for possessing the firearm was treated by the Court below. That is sufficient to warrant this Court’s intervention.
I wish to add a note about the way in which the appeal came to be heard, which is generally applicable to appeals against relatively short sentences such as that imposed upon the applicant.
The District Court imposed a sentence of imprisonment for a period of 3 years and 9 months, with a non-parole period of 2 years, back-dated to 16 November 2017, on 21 February 2018. The applicant’s notice of appeal was filed on 12 December 2018, which was the last week of the Court’s term, and…

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 Sumrein v R

Details

AGLC: Sumrein v R [2019] NSWCCA 83
Case: [2019] NSWCCA 83
Decision Date: 18 April 2019

CaseChat Overview and Summary

In the case of Sumrein v R, the applicant, Sumrein, sought leave to appeal against his sentence for possession of a loaded firearm in a public place. The dispute arose following an incident where Sumrein obtained a firearm after a drive-by shooting at his home, claiming he did so for the defence of himself and his family. The High Court of Australia was tasked with determining whether Sumrein's motive for obtaining the firearm should be considered in assessing the objective gravity and moral culpability of his actions.

The legal issues before the Court included the relevance of the applicant's motive in the sentencing process, particularly in the context of the objective gravity and moral culpability of the offence. The Court was also required to consider whether the primary judge erred in not adequately weighing Sumrein's motive as a mitigating factor. The broader issue was whether the subjective circumstances of the offence, including the motive, could be considered in the sentencing process, given that the primary focus is traditionally on the objective gravity of the offence and the culpability of the offender.

The Court found that the primary judge did not err in not considering Sumrein's motive as a mitigating factor in the sentencing process. The Court held that while the subjective circumstances of the offence may be relevant, they do not alter the fundamental principles of sentencing, which are based on the objective gravity of the offence and the moral culpability of the offender. The Court emphasised that the primary judge was entitled to focus on the objective features of the offence and the offender's culpability, without being required to consider the subjective circumstances, such as the applicant's motive for obtaining the firearm. The Court denied Sumrein leave to appeal, upholding the original sentence.

The Court's decision affirmed that the primary judge's assessment of the objective gravity and moral culpability of the offence was not flawed by the omission of the applicant's motive. The Court's reasoning underscored the importance of adhering to established sentencing principles, which are primarily concerned with the objective features of the offence and the culpability of the offender. The Court's denial of leave to appeal finalised the matter, leaving Sumrein's sentence unchanged.

Orders