Citation: Rami Mohamad v Regina [2005] NSWCCA 406
Court: NSW Court of Criminal Appeal
Date: 28 November 2005
Judge(s): Sully J, Hidden J, Hall J
Background
The appellant pleaded guilty in the District Court to attempting to purchase 18 unregistered firearms from persons who were not licensed firearms dealers, contrary to section 51A(2) of the Firearms Act 1996. The offence arose from police surveillance of a criminal enterprise in September 2001, during which covertly monitored telephone calls revealed the appellant's participation in arrangements to acquire a large cache of firearms in south-western Sydney.
The appellant was 21 years old at the time of the offence. He had one prior conviction for receiving stolen mobile phones, for which a suspended sentence had been imposed. He had a stable family background, was employed in his father's business, and was assessed as remorseful with positive prospects for rehabilitation.
The sentencing judge, Nicholson DCJ, imposed a sentence of two years' imprisonment with a non-parole period of 15 months, commencing 20 December 2004. The appellant sought leave to appeal, arguing that two factual findings were flawed and that the sentence should have been suspended.
Legal Issues
- Whether the sentencing judge was entitled to reject the appellant's claim that he acted merely as a "go-between" for another participant, notwithstanding a Crown concession that this was not in contest.
- Whether the sentencing judge erred in characterising the firearms involved as pistols, given the evidence and any relevant Crown concessions.
- Whether the two-year sentence should have been suspended, having regard to the appellant's youth, immaturity, favourable subjective circumstances, delay between offence and sentence, and good rehabilitation prospects.
Decision
On the go-between issue, the Court found that the sentencing judge was entitled to reject the characterisation, despite the Crown prosecutor's concession at first instance. The claim had been raised only in hearsay form through a psychological report and was never the subject of sworn evidence. The agreed statement of facts supported findings that the appellant and a co-participant were each willing to purchase firearms and that the appellant was present at the exchange to protect their shared interests in the transaction. The Court acknowledged that the concession created a complication, but found the judge had not erred in finding the burden of proof on this mitigating matter had not been discharged by the appellant.
The Court next considered whether the sentencing judge had erred by referring to the firearms as pistols. It found this made no practical difference to the sentence, as the judge corrected himself during proceedings when reminded no evidence identified the weapons as pistols, and made clear that even if they had been pistols, this would not have led to a heavier sentence. No intervention was warranted on this point.
On the question of suspension, the Court acknowledged the sentencing exercise was difficult and that the subjective case was favourable. However, the sentencing judge had characterised the offence as serious, well-organised criminal activity presenting a very substantial threat to public safety, and had emphasised the importance of general deterrence. The Court was not persuaded that the judge erred in declining to suspend the sentence, and noted that no challenge had been made to the length of the head sentence or non-parole period.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A sentencing judge is not bound by a Crown prosecutor's concession on a mitigating factual matter where that matter rests solely on hearsay evidence in a report and has not been established by sworn testimony. The burden of proving mitigating circumstances rests on the offender.
- Where a sentencing judge makes a misstatement of fact during remarks but corrects it before sentence is finalised, and indicates the correction would not have altered the outcome, the Court of Criminal Appeal will not intervene on that basis alone.
- Suspension of a sentence is not warranted as a matter of course even where subjective circumstances are favourable. General deterrence considerations can legitimately outweigh youth, remorse, and good rehabilitation prospects where the offending is characterised as serious and well-organised.
- In dismissing the appeal, the Court confirmed that attempting to acquire 18 unregistered firearms constitutes offending of a high order of criminality, particularly where the transaction would have proceeded but for police intervention.
- Under the Firearms Act 1996, an attempt to commit an offence under section 51A(2) carries the same maximum term of five years' imprisonment as the completed offence, a proposition the sentencing judge applied and which was not challenged on appeal.
Legislation and Cases Referenced
Legislation:
- Firearms Act 1996 (NSW), s 51A(2)
Cases:
- 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