Taha v The Queen

[2019] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Taha v R [2019] NSWCCA 240

Hearing dates:

1 July 2019

Decision date:

11 October 2019

Before:

Payne JA at [1]
Button J at [3]
Lonergan J at [116]

Decision:

(1) Leave to appeal granted.

 

(2) Appeal allowed.

 

(3) The aggregate sentence imposed by Judge Colefax SC on Mohammed Taha on 16 March 2018 is quashed, and instead the following aggregate sentence is imposed.

 

(4) Mohammed Taha is sentenced to an aggregate head sentence of imprisonment for 7 years 6 months commencing on 30 April 2017 and expiring on 29 October 2024, with an aggregate non-parole period of 4 years 10 months, expiring on 28 February 2022.

 (5) The first date upon which it appears that the applicant is eligible for possible release to parole is 28 February 2022.

Catchwords:

CRIME – APPEALS – appeal against sentence –firearm offences contrary to s 93G(1)(a)(i) of the Crimes Act 1900 (NSW) and s 7(1) of the Firearms Act 1996 (NSW) – drug supply contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) – whether error in assessment of culpability with regard to firearm offences – whether error in assessment of objective gravity of drug offence – whether sentence manifestly excessive – discussion of particularisation of firearm offence on Court Attendance Notice – discussion of period of possession of firearm – consideration of double punishment and imposition of identical wholly concurrent sentences for the firearm offences – consideration of indicative sentence for the drug offence – aggregate head sentence manifestly excessive – resentence

Legislation Cited:

Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:

Einfield v R (2010) 200 A Crim R 1; [2010] NSWCCA 87
Georgopolous v The Queen [2010] NSWCCA 246
Island Maritime Limited v Filipowski 226 CLR 328; [2006] HCA 30
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Becker [2019] NSWSC 1205
R v Jacobs (No 9) [2013] NSWSC 1470
R v Kearnes (No 2) [2013] NSWSC 1652

Category:

Principal judgment

Parties:

Mohammed Taha (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Game SC and R Khalilizadeh (Applicant)
B K Baker (Respondent)

  Solicitors:
Just Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/128236

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 March 2018

Before:

Judge Colefax SC

File Number(s):

2017/128236

Judgment

1. PAYNE JA: I have read the decision of Button J in draft. I agree with his Honour, for the reasons his Honour gives that ground 3 of the appeal must be upheld. I agree with the orders his Honour proposes.

2. Having reached this conclusion it is unnecessary that I separately address grounds 1 and 2, other than to observe that there is a significant overlap between some of the matters relevant to address grounds 1 and 3 as explained by Button J at [71].

3. BUTTON J:

Introduction

4. This application for leave to appeal concerns an aggregate head sentence of nine years six months imposed upon Mr Mohammed Taha (the applicant) on 16 March 2018 by Judge Colefax SC in the District Court at Parramatta. In a nutshell, the applicant submits that there is error in the assessment of the objective gravity of two offences involving the same firearm; that there is error in the assessment of objective gravity with regard to a serious drug offence; and that the aggregate sentence is manifestly excessive.

Various charges reflecting objective features

5. The following overview of the offending itself is derived from undisputed portions of the remarks on sentence.

6. In the early hours of 30 April 2017, the applicant was observed by two police officers in the car park of a motel in Parramatta in the western suburbs of Sydney. He showed signs of being affected by prohibited drugs. A search of his person located two plastic bags together containing a little over 100 g of crystal methylamphetamine (ice), $8,200 in cash, a patch infused with the abused prescription opioid fentanyl, and a .25 calibre pistol, fitted with a fully loaded magazine containing seven cartridges.

7. The finding of those items led to the following charges.

8. Count 1 (or sequence 1) was an offence of possessing a loaded firearm in a public place, contrary to s 93G(1)(a)(i) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 10 years, and no standard non-parole period.

9. Taken into account on a Form 1 with regard to that offence was an offence of possessing ammunition without authority, pertaining to the seven bullets. This wholly summary offence is to be found in s 65(3) of the Firearms Act 1996 (NSW), and carries a maximum penalty of 50 penalty units.

10. Count 2 (or sequence 4) was an offence of supplying a prohibited drug, contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). The applicable maximum penalty was imprisonment for 15 years, with no standard non-parole period. The prosecution no doubt relied upon the deeming provision in s 29 of the same Act. It was conceded by the applicant in the proceedings on sentence that a proportion of the hundred grams of ice was possessed with the intention of supply for money, albeit the majority of the prohibited drug was for his own use.

11. Taken into account pursuant to a second Form 1 on sentence for this offence was a charge of possessing a prohibited drug (the fentanyl), along with a charge of dealing with property suspected of being the proceeds of crime (the $8,200 in cash). The former offence is wholly summary, and carries a maximum penalty of imprisonment for two years. The latter offence is contrary to s 193C(2) of the Crimes Act, and, when dealt with on indictment, carries a maximum penalty of imprisonment for 3 years. It was agreed in the proceedings on sentence that the cash found upon the applicant could be understood in a broad sense to be “tainted”.

12. Count 3 (or sequence 8) was expressed in its Court Attendance Notice (CAN) to be an offence of “Possess unauthorised prohibited firearm”. It was particularised as having occurred “at 12:15 am on 30/04/2017 at Parramatta.” It was also expressed as being constituted by the proposition that the applicant “did possess a prohibited firearm that was not registered, to wit, Colt .25 calibre pistol serial number 0D34598.”

13. That offence was understood by all parties at first instance to be an offence against s 7(1) of the Firearms Act 1996 (NSW) (later in this judgment, I shall explore the disjunction between the terms of the count and the offence-creating provision). The maximum penalty for that offence is imprisonment for 14 years, and there is a standard non-parole period of 4 years.

14. The basis upon which the applicant was sentenced for those offences was as follows (I appreciate that the following is something of a melding of objective and subjective features).

15. The applicant, in his late 30s at the time of the offences, had suffered from a longstanding addiction to prohibited drugs. It had developed in his teenage years, and had been severe enough for his family to send him from Australia to Lebanon in order to “dry out” years beforehand. Despite that unresolved problem, over many years he built up a successful business that involved internet cabling and the laying of gas pipes. As a result of his physical labour at work, he suffered a serious injury to his back. The only relief from the resultant pain that he could obtain was from opioids, which he commenced to abuse. He counteracted the stupefying effects of those drugs with ice. By the time of the commission of the offences in late April 2017, the applicant was spending an enormous amount of money each day on prohibited drugs. His business was in serious danger of failing, not only because of the sums he was siphoning off in order to feed his habit, but also because of a tax debt of well over $100,000.

16. Separately, some years beforehand the wife of the applicant had been a witness with regard to the murder of her sister. A very dangerous and frightening person was convicted at trial of that crime, and lodged an appeal against conviction to this Court. Someone approached the applicant on behalf of that person, asking that the wife of the applicant agree to change her evidence. The applicant did not pass on the request to his wife, but at some stage around then (the precise chronology is a little unclear), obtained the Colt pistol for protection. He kept it in a locked drawer at work.

17. Eventually, the threat to the applicant’s wife receded with the acquittal on appeal of the other person, but the applicant retained the pistol.

18. Things reached a point at which the applicant had the opportunity to save himself money by buying the prohibited drug ice in bulk. He proposed to use the majority of his purchase himself, but some of it was to be supplied for money, in an effort to stabilise the financial position of the applicant and his business. He put together funds from himself and others in the amount of $19,000 cash. On the evening in question, he was to purchase from persons who were “third parties”, and of whom he was cautious. He therefore took with him the pistol, loaded, and contained in a deep pocket of his clothing.

19. In short, when arrested, the applicant had just come into possession of the one hundred grams of ice, some of which was for supply (count 2, sequence 4). He had on his person a loaded firearm in a public car park (count 1, sequence 1). That firearm was a pistol that he possessed unlawfully (count 3, sequence 8). The pistol was loaded with unauthorised ammunition, the applicant possessed a small quantity of fentanyl for his own use, and the “leftover” cash that had not been spent on the ice was itself tainted money (the various Form 1 offences).

Subjective features

20. Turning to subjective aspects of the matter that I have not already mentioned, the applicant was refused bail continuously from the date of arrest.

21. He pleaded guilty to all offences in the Local Court, and it was agreed between the parties that there should be a 25% discount for the utilitarian value of those pleas.

22. The applicant gave evidence on sentence, and the learned sentencing judge accepted that he was remorseful.

23. The applicant did have a prior criminal record, but it was not overly lengthy. Much of it consisted of driving offences. It featured a negative interaction with the police, and two convictions for possessing a prohibited drug separated by many years. As at the date of sentence, the applicant had never been sentenced to imprisonment, never sentenced for an offence of violence, and (apart from the two “possess” charges mentioned above), never convicted of an offence to do with prohibited drugs.

24. A great deal of documentary evidence was placed before the sentencing judge to show that the applicant was very well regarded by many, and that these offences were thought by many to be very out of character.

25. There was evidence to show that the wife of the applicant continued to suffer from a psychological condition as a result of the violent death of her sister, and its consequences. There was also evidence that one of the three children of the applicant and his wife suffers from a severe form of autism.

26. Apart from the matters sketched above, a psychological report tendered in the defence case showed that the applicant’s father had fled from Lebanon to this country in the mid-1970s to escape civil unrest. His mother, who also lives in Australia, is in poor physical health.

27. The applicant completed high school up to year 10. It was after the death of a close friend that the applicant became dependent on heroin, and his family sent him to Lebanon for a period of time. Since returning to Australia, the applicant has had steady employment, including in his own successful business.

28. The psychologist found that the applicant was suffering from “clinically moderate levels of depression” and has been “subject to major trauma”; illicit substances had completely masked the pain in his back and made him feel “like Superman”; and that he had become increasingly paranoid as his drug use escalated.

29. Finally, apart from one failing, the applicant had not used any drugs in custody, and no longer required medication or illicit substances to manage his physical pain.

30. In his oral evidence, the applicant accepted that he had “slipped” in custody with regard to the use of a prohibited drug on one occasion. He explained that the business was running satisfactorily despite his incarceration, and that it would be waiting for him on his eventual release. He also spoke of his confidence that the abuse of prohibited drugs, and any other offending, was a thing of the past.

Sentences indicated and imposed

31. Attached to this judgment is a diagram that sets out the aggregate sentence and the indicative sentences in readily comprehensible form.

32. The indicative sentences were as follows.

33. For count 1, sequence 1, (possessing a loaded firearm in a public place) with the first Form 1 attached, the discount of 25% was applied to a starting point of 6 years 6 months, to arrive at an indicative head sentence of 4 years 10 months.

34. For count 2, sequence 4 (supplying a prohibited drug), the discount was applied to a starting point of 7 years, arriving at an indicative head sentence of 5 years 3 months.

35. For count 3, sequence 8 (expressed to be possessing an unauthorised prohibited firearm) the discount was applied to a starting point of 6 years 6 months, arriving at an indicative head sentence of 4 years 10 months, along with an indicative non-parole period of 3 years 5 months.

36. With regard to putative sentence structure, and questions of implicit concurrence and cumulation, the sentencing judge said:

“The indicative sentences for the two firearm offences would have been partially accumulated with each other. The indicative sentence for the drug offence would have been more substantially accumulated with those two sentences.”

37. Ultimately, an aggregate head sentence of 9 years 6 months with an aggregate non-parole period of 6 years 2 months was imposed. The ratio between the latter and the former is almost exactly 65%.

Grounds of appeal

38. In support of the application for leave to appeal against sentence, the following amended grounds were notified and pressed at the hearing:

Ground 1   The sentencing judge erred in his assessment of the applicant’s culpability with respect to the firearms offences, both individually and in combination

Ground 2   The sentencing judge erred in assessing the objective gravity of sequence 4, by:

(a)   Making such an assessment in an unduly prescriptive way;

(b)   Failing to provide reasons for such an assessment; and

(c)   Imposing a sentence that was disproportionate to the offending.

Ground 3   The sentence was manifestly excessive.

Ground 1   The sentencing judge erred in his assessment of the applicant’s culpability with respect to the firearms offences, both individually and in combination

Submissions of the applicant regarding Ground 1

39. This ground is based on the fact that, in the remarks on sentence, the sentencing judge said the following:

“In terms of their objective seriousness for offences of their type, the possess loaded firearm in a public place and possess unauthorised prohibited firearm offences are just above mid-range offences.

I note that the offender was in a state of methyl amphetamine intoxication at the time of his arrest and because of his drug abuse had been the subject of increasing paranoia over time. The pistol, therefore, represented a high risk to members of the public and to the arresting police, notwithstanding that it was not used on this occasion. This is relevant in assessing the criminality and moral culpability of the first mentioned offence. I also note that the offender had had possession of the unauthorised prohibited firearm from at least September 2015 to 30 April 2017. This is also relevant in assessing the criminality and moral culpability of the second offence.”

40. In written submissions, senior counsel put forward two separate but related ways in which the sentencing judge erred in the assessment of the objective gravity of count 1 and count 3.

Period of possession

41. First, it was submitted that his Honour assessed the criminality of count 3 in accordance with a lengthy period of possession prior to the date and time of the offence particularised on the CAN, that extended period being from September 2015 to 30 April 2017. It was said that, in assessing the objective gravity of count 3, it was not open to the sentencing judge to take into account the extended period during which the applicant had said that he had possessed the pistol. This error, it was said, affected the length of the indicative sentence on count 3, and the degree of implicit cumulation between count 1 and count 3.

42. Senior counsel referred to the extracted portion in the remarks on sentence in which the sentencing judge stated that the circumstances of the possession of the firearm before the date of count 3 was “relevant to the criminality and moral culpability” of the offence. It was submitted that the applicant was impermissibly sentenced for objective criminality over a lengthy period prior to the date appearing on the CAN for count 3.

43. With regard to implicit cumulation between the sentences for count 1 and count 3, senior counsel submitted that the offending underpinning each count was particularised in the CANs as occurring at the identical date and time; as a result, count 3 “adds very little, if any, to the criminality”. The submission was made that, had the sentencing judge assessed the criminality of count 3 in accordance with the limited duration of the offence as actually charged, his Honour would not have implicitly accumulated the sentences, or at the least would have taken a more favourable view of the question.

44. Particular emphasis was placed on the following exchanges during the final addresses of counsel in the proceedings on sentence.

45. In her address, the Crown prosecutor said:

“The offender obtained the firearm in 2016 and continued to possess until April 2017 when stopped by the police. It's my argument that there are independent criminal acts involved in counts 1 and counts 3. Count 3 refers to the fact that he possessed an unauthorised and unregistered firearm, which he did for, on his own evidence, more - around a year. Count 1 refers to the fact that he possessed a loaded firearm in a public place. Whilst he was obviously detected with the pistol, or the firearm, on the one incident. His possession and his criminality in count 3 extends for a longer portion of time than just that single moment when he took the gun out into the public place, so in my submission, there should be some accumulation between counts 1 and count 3 to recognise the separate criminality of retaining an unauthorised firearm for over a year and then taking that firearm out into the public.”

(all emphases added by me)

46. In response, senior counsel then appearing for the applicant said at the very beginning of his oral submissions in reply:

“Can I just start with my learned friends, the submission relating to the period of possession, that's not a relevant matter with respect when one looks at the particulars of the offence. In charge of possessing the loaded firearm on a specific date on a specific time. It's part of the context clearly, and it may well be that your Honour could see it as relevant under some heading, but certainly to assert that there is a lengthy period of criminality attaching to the possession of that firearm on the basis of his admissions would not be an appropriate matter to take into account bearing in mind the particulars of the offence.

HIS HONOUR: Let me just look at the CAN. Yes, thank you.”

47. In short the submission was that it was made perfectly clear by senior counsel at first instance that, although the extended possession of the pistol and the reason for it had been raised as a mitigating subjective feature, the particulars of the charge meant that its objective seriousness was to be confined to the occasion upon which the applicant was found by police in possession of it.

48. In oral submissions, senior counsel also developed the following further points before us.

49. At the outset, senior counsel drew to the Court’s attention that count 3, sequence 8 had been incorrectly particularised on the CAN as “possess a prohibited firearm” – instead, the offence should have been particularised as “possess a prohibited pistol”. Whilst accepting that there was no issue taken with the pleading of the CAN directly, senior counsel submitted that count 3, sequence 8 nonetheless centred upon unauthorised possession, rather than the particular type of firearm in question.

50. In this context, it was said that, bearing in mind that count 3 captured only minimal criminality above and beyond that already captured by count 1, the objective criminality of count 3 should have been assessed as being much less. It was also submitted that, in accordance with Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [46] and following, it was at the least incumbent upon the sentencing judge to address explicitly the issue of double punishment, bearing in mind that the one firearm gave rise to two offences.

51. Secondly, senior counsel emphasised that the exchange between the sentencing judge and defence counsel (extracted at [46]) indicated that on the date of the proceedings on sentence, the sentencing judge accepted that count 3 concerned possession on a particular date. However, the sentencing judge did not provide any analysis of the circumstances that would support his Honour’s assessment of objective seriousness in the subsequent remarks on sentence. Senior counsel submitted that the sentencing judge, having reserved the sentencing judgment, “must have forgotten” about the exchange with defence counsel regarding length of time of relevant possession.

52. Thirdly, senior counsel also clarified that it was not being argued on behalf of the applicant that he should have been sentenced on the basis that he possessed the pistol for the one minute or less spoken of in the CAN. Rather, it was said that the background of earlier unauthorised possession was able to be taken into account as part of the mitigating circumstances, but that it would be erroneous to sentence the applicant in accordance with the criminality attaching to the entire period of unauthorised possession.

Blanket assessment of criminality

53. The second way in which it was said in written submissions that the sentencing judge erred with regard to Ground 1 was the making of a blanket assessment of the criminality of count 1 and count 3, and the related question of the degree of implicit concurrence and cumulation between the two indicative sentences. It was accepted that the conduct comprising each sequence was the same, in the sense of the possession of a single firearm, but nonetheless, it was said to be incumbent upon the sentencing judge to provide a separate explanation or assessment of each count as to their criminality.

54. Senior counsel emphasised the portion in the remarks on sentence in which his Honour referred to both matters as “just above mid range offences” for “offences of their type.” It was said that, even if (for the sake of argument only) the length of time of possession of the item could be taken into account, it was incumbent on the sentencing judge with regard to count 3 to reflect the mitigatory aspects of self-disclosure of the previous lengthy possession of the firearm, and the understandable reasons for it.

55. A further submission was made that the only difference between the elements of counts 1 and 3 is that the latter requires a firearm that is “unauthorised”; accordingly, there remained a requirement to assess the criminality of the offences separately. It was argued that the failure to address the criminality in this refined way led to the failure to identify the single additional factor within the criminality in count 3.

56. On this point, senior counsel in oral submissions underscored the importance of identifying the separate criminality of the offences with reference to the principle of “double jeopardy”. It was said that counts 1 and 3 both concern the same act – that is, unlawful possession of a firearm – and both concern the same state of mind on the same day.

57. It was submitted that the sentencing judge failed to explicitly address the “double punishment” issue as described in Pearce. Had the sentencing judge done so, his Honour would have assessed the prior possession of the firearm in two respects: first, the applicant’s admissions about the topic, and secondly, the circumstances in which he came to possess the firearm, which the prosecution did not seek to challenge. It was said that none of these were present in the remarks on sentence.

58. Senior counsel further argued that the degree of implicit cumulation between the sentences for the firearm offences must have been “quite substantial” as the indicative sentence of each was 4 years and 10 months, but the aggregate head sentence was 9 ½ years.

59. In oral submissions in reply, senior counsel revisited the “double punishment” point, submitting that it is possible to commit count 3, sequence 8 (possess unauthorised prohibited firearm) without necessarily committing count 1 sequence 1 (possess loaded firearm); but that count 1, sequence 1 cannot be committed without committing count 3, sequence 8, as it is not possible to conceive of a situation in which one is authorised to possess a loaded firearm in a public place.

Determination regarding Ground 1

60. Dealing first with the proposition that it was incumbent upon the sentencing judge to assess the objective gravity of each of the firearm offences in a more discriminating way, in my opinion it is significant that, in oral submissions at first instance, the following exchange occurred between the sentencing judge and senior counsel then appearing [AB 139-140]:

“HIS HONOUR: What do you say the level of objective seriousness is for each of the offences for offences of their kind?

TURNBULL: … In relation to the possess unauthorised prohibited firearm and the possess loaded firearm, that's towards the mid range.”

61. In similar vein, in the subsequent oral submissions of the Crown prosecutor, the following exchange occurred:

“HIS HONOUR: ‑‑formulate it, what does the Crown say the objective seriousness of offences 1 and 3 is?

SADDINGTON: I would be contending that it is at the mid-range, if not slightly above the mid-range.”

62. In other words, both counsel at first instance provided a submission about the objective gravity of the two firearms offences that did not differentiate between the two of them. In those circumstances, it is not easy to criticise the decision of the sentencing judge to do the same thing.

63. Separately, I accept the submission of the Crown in this Court that there was, in fact, a degree of differentiation between the two offences: in the remarks on sentence, the sentencing judge spoke of the intoxication of the applicant and his increasing paranoia as aggravating the objective gravity of count 1, based as it was on the possession of a loaded firearm in a public place. And the sentencing judge separately spoke of the period of many months over which the applicant had possessed a pistol as aggravating the objective gravity of count 3, based as it was (on an analysis that I shall develop later) on the unlawful possession of a readily concealed and semi-automatic lethal weapon.

64. In other words, despite the lack of variegation in the oral submissions of the parties at first instance, and despite the assessment of the objective seriousness of each firearm offence ultimately being the same, I think there was a degree of discernment demonstrated by the sentencing judge in the remarks on sentence.

65. Thirdly, I believe that the assessment that the objective gravity of each of these firearm offences was “just above mid range” was well open to the evaluative judgement of the sentencing judge in any event, for reasons that follow.

66. Turning to the second aspect of this ground, it is quite true that the CAN with regard to count 3 particularised the specific date and time to the minute at which the applicant was found to be in possession of the pistol. But it was the applicant himself who put in evidence the fact that he had possessed the weapon for many months. It is not easy to accept that the particulars of the CAN had the effect that the reasons for that extended possession could be fully taken into account as mitigating subjective features pertaining to motivation, but could not be taken into account with regard to the assessment of the objective gravity of count 3.

67. Secondly, testing the proposition advanced by way of its hypothetical opposite, if there had been evidence that the applicant had been handed the pistol by another person for the first time a mere three minutes before he was found to be in possession of it by police, that surely would have been relevant to the question of the objective gravity of the offence of possessing it at 12:15am on 30 April 2017. That suggests that the extended possession that he admitted to could be taken into account in the opposite way.

68. Thirdly, I think that the decision of Einfield v R (2010) 200 A Crim R 1; [2010] NSWCCA 87 is authority for the proposition that the extended prior possession of the pistol was not irrelevant to the objective seriousness of the offence. As Basten JA said at [146]:

“… a course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed.”

69. Fourthly, it is noteworthy that, in the remarks on sentence, the sentencing judge spoke of the extended possession as being “relevant in assessing the criminality and moral culpability of the second offence”, not determinative or conclusive. Leaving aside the separate concept of moral culpability, and assuming that “criminality” is a synonym for objective seriousness, I cannot accept that the extended possession was irrelevant to the assessment of the latter.

70. Fifthly and finally on this aspect, I do not accept that, by saying “Let me just look at the CAN. Yes, thank you.” (extracted at [46] above) with regard to count 3, the sentencing judge was explicitly or implicitly informing senior counsel at first instance that he accepted the submission that the extended possession “would not be an appropriate matter to take into account bearing in mind the particulars of the offence”. For that reason, I do not accept that there has been a denial of procedural fairness in the sentencing judge approaching the matter in the way that he did.

71. Separately, because it is closely connected to the question of outcome in the sense of questions of implicit concurrence and cumulation, I analyse the question of the relationship between the two firearm offences under the rubric of Ground 3. I will not repeat myself here, except to say that I do not accept that that relationship meant that there could be no effective punishment imposed for count 3. Nor do I accept that the fact that two offences related to the same firearm meant that the objective seriousness of either of them was necessarily less than the assessment made by the sentencing judge.

72. I would not uphold Ground 1 on any basis.

Ground 2   The sentencing judge erred in assessing the objective gravity of sequence 4, by:

(a)   Making such an assessment in an unduly prescriptive way;

(b)   Failing to provide reasons for such an assessment; and

(c)   Imposing a sentence that was disproportionate to the offending

Submissions of the applicant regarding Ground 2

73. The submissions of the applicant for this ground concern the sentence for supplying a prohibited drug in the form of the one hundred grams of ice; that is, count 2 or sequence 4. Senior counsel drew attention to the assessment of the objective seriousness made by the sentencing judge as “hover[ing] somewhere just above a point equidistant between the middle and the bottom of the range”.

74. In written submissions, this assessment of objective seriousness was impugned in three ways.

75. First, it was said that the assessment was unduly prescriptive, in that this was an offence with no applicable standard non-parole period, and yet the sentencing judge precisely assessed the objective seriousness of the offence against the mid-range. The case of Georgopolous v The Queen [2010] NSWCCA 246 was relied upon for the proposition that a detailed assessment of the objective seriousness of an offence with no standard non-parole period “is likely to lead to confusion and misinterpretation”.

76. Secondly, senior counsel submitted that the sentencing judge did not provide any reasons for the precise finding of objective seriousness made, other than a reference to the unknown purity of the drug and a general statement as to the risk of damage from such drugs even when they are of low purity.

77. The third submission was that the indicative sentence for count 2 was disproportionate to its objective seriousness, if the latter were properly assessed. In other words, even if (for the sake of argument only) the sentencing judge was correct in the assessment of the objective seriousness, it was said that the starting point for the indicative sentence of 7 years (being close to half of the maximum penalty of 15 years) was disproportionate to that assessment.

78. In oral submissions in reply, senior counsel emphasised the “absence of reasoning” in relation to the second count, in that there were no findings of fact which supported the assessment of objective seriousness of it, and there was no evident path of reasoning from the assessment of objective seriousness to the “very lengthy” sentence imposed.

Determination regarding Ground 2

79. The context in which the impugned finding of objective seriousness was made is as follows. During the oral submissions at first instance of senior counsel for the applicant, the following exchange occurred:

“HIS HONOUR: What do you say the level of objective seriousness is for each of the offences for offences of their kind?

TURNBULL: Firstly in terms of the drug offences and, of course, maybe it's a symptom of familiarity with the levels of drug offending which now seem to be relevant in the community and the amounts therein, my respectful submission is it would be between the low and mid range, so that it's obviously a serious drug, that's why the maximum penalty is what it is, but in the circumstances of him obtaining it for the first time, in part for his own use, additionally for on sale to realise some funds because he'd run out of funds, and in the context of the fact that your Honour would accept that for many, many years this man could fund his own drug habit himself and he's had a business where he's worked five and six days a week 12 hours a day which seems to have blossomed and certainly provided him with resources.

He's had various responsibilities, but he's been able to handle himself, and finally the addiction clearly and the financial problems have got to a stage they have where he's adopted the course that he has. Of course, it could be that that's rather convenient that the one time that he's out and about he's getting caught, but nonetheless that's the objective factual scenario and my respectful submission that that as a first-time effort, your Honour has heard me say it lacks a degree of sophistication, and without more, those bulk drugs and his explanation leads to a submission that it is not at the lowest end, it's towards the lower end, but it may well sit between the lower and the mid range of objective seriousness, bearing in mind, of course, that there's no standard nonparole period, I don't think, in relation to that, and a finding obviously may be of assistance to your Honour but not required.” (Emphasis added.)

80. The following exchange occurred between the sentencing judge and the Crown prosecutor in her oral submissions:

“HIS HONOUR: Where do you say it is?

SADDINGTON: Your Honour, I would argue it's towards the middle of the range for this type of offending, primarily because of the quantity of the drugs involved, but also because of the indicia found on the offender. …”

81. I agree that, with respect, the finding made by the sentencing judge about objective seriousness was somewhat obscure. I also agree that it was at the same time overly precise. I also agree that that kind of precision, if it was ever necessary, is no longer necessary since the decision of Muldrock v R (2011) 244 CLR 120; [2011] HCA 39. And in my respectful opinion, it is even less necessary with regard to offences that do not carry a standard non-parole period, as here.

82. But in my opinion the sentencing judge has accepted the submission of senior counsel for the applicant about the assessment of objective gravity of the supply offence: the objective seriousness of the drug offence has been found to be between “the low and the midrange”. If that be the case, it is not easy to see how the assessment can found error in this Court.

83. Secondly, in my opinion, the sentencing judge did provide reasons for that assessment. The following matters were referred to in the remarks on sentence in the paragraphs preceding the assessment of objective seriousness of the drug offence: the fact that some of the drugs would be for the use of the applicant, but “the rest of it for sale to others to support his addiction”; the fact that the weight of the prohibited drug was a little over 100 grams; the fact that the purchase price was $10,800; the fact that there was no evidence about the purity of the drugs; and the fact that, “even with low purity, the capacity for very substantial damage to the general community by the distribution of that vile drug was very significant”.

84. Thirdly, I accept the submission of the Crown that the asserted disjunction between that assessment of objective gravity and the starting point of the indicative head sentence of the drug offence of seven years is a matter to be considered with regard to Ground 3, in that it is focused on sentencing outcome.

85. I would not uphold Ground 2.

Ground 3   The sentence was manifestly excessive

Submission of the applicant regarding Ground 3

86. The contentions of the applicant concerning this ground were twofold: first, that the indicative sentences are manifestly excessive, thereby “feeding in” to an erroneous aggregate sentence, and secondly, that the significant implicit cumulation of the indicative sentences resulted in an aggregate sentence that is manifestly excessive for that separate reason.

87. Senior counsel for the applicant analysed various sentencing statistics, including statistics for sentences imposed for offences of possession firearm in a public place, in which aggregate and effective head sentences ranged between 18 months and 6 years; sentences imposed for offences of possessing an unauthorised pistol, in which the range of aggregate and effective head sentences is between 24 months and 6 years; and sentences imposed for offences of supply prohibited drugs (amphetamines, less than a commercial quantity), in which the range of aggregate and effective head sentences is between 6 months and 10 years.

88. Senior counsel also analysed in greater detail three comparative cases with similar or greater level of criminality, but that had resulted in significantly lesser sentences than the sentence imposed on the applicant in this case.

86. Some aspects of the circumstances of the applicant were also summarised (namely the location of the firearm deep in the applicant’s pocket; the admissions made by the applicant), as well as various aspects pointing to the strength of the applicant’s subjective case (such as drug addition, the applicant’s age at the time of offending, and his limited criminal record)

87. In oral submissions, senior counsel primarily relied on his written submissions, but emphasised the mitigating circumstances surrounding the context in which the applicant came to be addicted to drugs and came to possess the pistol.

Submissions of the Crown regarding Ground 3

91. In written submissions, the Crown emphasised the maximum penalties of the two firearm offences; the dangerousness of the conduct of the applicant; and the discrete gravity of the drug offence. The cases relied upon by the applicant were analysed, and some inevitable distinct factual aspects pointed out.

92. In oral submissions, it was accepted that the starting point of the indicative sentence for count 2, the drug offence, was in light of the finding about its objective seriousness “a very stern indicative sentence”. Similarly, it was accepted that the aggregate head sentence of 9 years 6 months was a “stern sentence”. But the resistance to the proposition that manifest excess in the latter had been established was maintained.

Determination regarding Ground 3

93. In order to deal with this ground, it is necessary first to unravel the problems with regard to the CAN for count 3 sequence 8.

94. The relevant offence-creating provision in the Firearms Act, as it was as at 30 April 2017, is to be found in s 7(1). It was as follows:

“A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.”

95. In accordance with that subsection, one would have expected the CAN simply to allege that the applicant had possessed a pistol without being authorised to do so by a licence or a permit.

96. In fact, as I have said, the CAN actually asserted that the applicant “did possess a prohibited firearm that was not registered, to wit, Colt .25 calibre pistol…” That allegation was inapposite as to subject matter, because s 4 of the Act defined a “prohibited firearm” as meaning “a firearm described in Schedule 1” of the Act. And yet “Schedule 1 Prohibited firearms” did not capture a pistol of the kind possessed by the applicant; indeed, speaking generally, as one might expect bearing in mind the availability of choice of subject matter in the offence-creating provision, Schedule 1 focuses on firearms that are not pistols.

97. As well as that, it was seemingly wrong for the CAN to speak of the subject matter of the offence being “unregistered”, when the offence-creating provision actually spoke of possession without being authorised “by a licence or permit”.

98. In short, the offence particularised in the CAN was regrettably not in accordance with the offence-creating provision in the statute. That has led to difficulties in analysing the relationship between count 1 and count 3. But to my mind, the way that count 3 is expressed is ultimately of little moment, for three reasons.

99. First, senior counsel who appeared at first instance made nothing of it. Secondly, the applicant in this Court did not assert that the charge should be set at naught. Thirdly, in my opinion it has always been clear that count 1 captured the criminality of possessing a loaded firearm (of whatever kind) in a public place, and count 3 captured the separate criminality of that firearm specifically being a pistol that was possessed without authorisation.

100. It is quite true that those two offences pertain to the one item – the Colt .25 calibre pistol that the applicant possessed in the early hours of the morning. But because those offences have some different “un-included” elements, I do not believe that there is any infringement of the decision of Pearce v The Queen or Island Maritime Limited v Filipowski 226 CLR 328; [2006] HCA 30. Nor do I believe that either offence cannot be committed without committing the other: one can commit count 1 by possessing a loaded .22 rifle in a public place, and one commit count 3 by having a pistol under the couch at home. And even if I be wrong in that analysis in some theoretical way, the applicant undoubtedly did commit both offences in a practical way: on the one hand, he possessed a loaded firearm in a public place, and on the other hand, the firearm was a pistol that he was not authorised to possess in any location.

101. It follows that I do not believe that it was incumbent upon the sentencing judge to “impose” implicitly wholly concurrent indicative sentences for count 1 and count 3, not least because the gravamen of count 3 was the specific nature of the firearm, not the simple fact that it was generically such a weapon. Nor do I believe that the simple fact that the indicative head sentences of the firearm offences were identical of itself demonstrates erroneous lack of discrimination between the two of them, let alone effective double punishment.

102. I also think that, in whichever way the legislature has seen fit to divide up the attributes of the offending with regard to one firearm by way of those two offences, the offending was undoubtedly serious: a readily concealed semi-automatic pistol, loaded, was possessed in a public place, for the purposes of drug dealing, by a grossly intoxicated person. The results could easily have been catastrophic.

103. In my opinion, there is no error in the indicative head sentences of the two firearm offences. I say that because, with regard to count 1, it was extremely dangerous for the intoxicated, paranoid applicant to be in a public place with a loaded firearm. With regard to count 3, it was an offence of considerable gravity for the applicant to be armed with a semi-automatic pistol in connection with dealing in prohibited drugs.

104. Having said all that, there is force in the proposition that a very significant measure of implicit concurrence between the indicative sentences for count 1 and count 3 was necessary, in order to reflect the undeniable fact that the various characteristics of one firearm were being reflected in two counts.

105. Furthermore, with regard to the drug offence, I think that the starting point of the indicative head sentence of seven years may be suggestive of error in the aggregate sentence ultimately imposed, despite the destructive effects of the prohibited drug ice, of which the life of the applicant himself was a good example. I say that because: the sentencing judge had assessed the objective gravity of the offence as being (to paraphrase) well below the midpoint; the quantity of the drug, though not trivial, was not enormous (even within the range of quantities below the statutory commercial quantity of 250 grams); the applicant had only possessed the quantity of the drug for a very short period when he was arrested; the sentencing judge found that the ice was not of great purity; much of it was possessed for the use of the applicant, and a lesser portion only was possessed for supply; although ice is a notoriously destructive drug, none of it ended up being disseminated into the community; the applicant had never committed such an offence before, or indeed any other offence serious enough to warrant imprisonment; and his subjective case was otherwise quite powerful.

106. Separately, analysing the aggregate head sentence of 9 years 6 months, if one assumes that there was a large degree of implicit concurrence between the two indicative head sentences of 4 years 10 months for the two firearm offences, the indicative head sentence of 5 years 3 months for the supply offence must have been implicitly very largely cumulative upon them. And yet the possession of the loaded pistol for a brief time in a public place on the evening in question was very much bound up in the purchase and subsequent possession for supply of the prohibited drug captured by count 2.

107. Speaking more generally, the aggregate sentence, as the Crown submitted in this Court, is “a stern sentence” for a person whose essential criminality all occurred on the same evening; whose criminality was very inter-connected; who pleaded guilty at an early stage to all counts and charges; and who possessed a strong subjective case. And I say that well aware through curial experience of the fatal harm that the possession of pistols by persons intoxicated by amphetamines can easily inflict upon Australian society: R v Jacobs (No 9) [2013] NSWSC 1470, R v Kearnes (No 2) [2013] NSWSC 1652; R v Becker [2019] NSWSC 1205.

108. After reflection, I have come to the view that, in all the circumstances, an aggregate head sentence of 9 years 6 months with an aggregate non-parole period of 6 years 2 months did indeed go beyond the discretion reposed in the sentencing judge, in all the circumstances of this case.

109. I would uphold Ground 3.

Resentence

110. On resentence, an affidavit of a solicitor from the defence legal team was read to show that the applicant has been spending his time in custody quietly and constructively.

111. Replicating the findings of the sentencing judge, I would provide the same indicative head sentences for count 1 and count 3, the first of which included the first Form 1; that is, 4 years 10 months, with an indicative non-parole period of 3 years 5 months on the latter. My first proposed sentence punishes the appellant for possessing a loaded firearm in a public place; the second does so for the fact that it was a pistol, and a semi-automatic one at that.

112. For count 2, however, the drug offence and its second Form 1, I would adopt a starting point of 6 years, which, after application of the 25% discount, leads to an indicative head sentence of 4 years 6 months.

113. I would also provide a greater degree of implicit cumulation between the indicative head sentences, resulting in a reduced aggregate head sentence of imprisonment for 7 years 6 months.

114. Finally, I would repeat the finding of special circumstances and replicate the ratio of 65%, which leads to a reduced non-parole period of 58 months and 2 weeks. Because the law does not concern itself with trifles, I would round that down to 4 years 10 months.

Proposed orders

115. For the foregoing reasons, I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. The aggregate sentence imposed by Judge Colefax SC on Mohammed Taha on 16 March 2018 is quashed, and instead the following aggregate sentence is imposed.

4. Mohammed Taha is sentenced to an aggregate head sentence of imprisonment for 7 years 6 months commencing on 30 April 2017 and expiring on 29 October 2024, with an aggregate non-parole period of 4 years 10 months, expiring on 28 February 2022.

5. The first date upon which it appears that the applicant is eligible for possible release to parole is 28 February 2022.

116. LONERGAN J: I have had the advantage of reading the decision of Button J in draft, as well as the additional comments by Payne JA.

117. I agree with Button J (and Payne JA) that ground 3 of the appeal must be upheld for the reasons set out by Button J.

118. I agree with both Payne JA and Button J that there is significant overlap between the matters addressed by the appellant in ground 1 and the bases for the necessary upholding of ground 3.

119. I agree with Payne JA that there is no need to specifically address ground 1 or ground 2 given that the appellant must be re-sentenced because of his success on ground 3.

120. I agree with the re-sentence proposed by Button J and the orders his Honour proposes.

Taha v R [2019] NSWCCA 240 Diagram (6.80 KB, pdf)

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Decision last updated: 11 October 2019