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District Court 20 April 2007

R v Ranny Shaitly

[2007] NSWDC 135

Firearms & weapons
CRIMINAL LAW SENTENCING FIREARM OFFENCE SALE TO UNDERCOVER POLICE OPERATIVE FORM 1 MATTERS OBJECTS OF FIREARMS ACT 1996

Citation: R v Ranny Shaitly [2007] NSWDC 135
Court: District Court of New South Wales
Date: 20 April 2007
Judge(s): Nicholson SC DCJ

Background

The offender sold a Norinco .45 calibre self-loading pistol, with its serial number removed, to an undercover police operative in Merrylands in April 2006. The pistol was a prohibited firearm under the Firearms Act 1996, capable of holding up to ten rounds and described by the court as a killing weapon. The sale price was $5,000, and the offender acted at the direction of his brother, who was then in prison.

The offender was arrested in October 2006. He pleaded guilty in the Parramatta Local Court in February 2007 to selling a pistol to a person not authorised to possess it, and to possessing that pistol without a licence or permit. Three further matters were placed on a Form 1 to be taken into account on sentence: possession of the pistol with a defaced serial number, possession of capsicum spray, and possession of a flick knife.

The sentencing hearing proceeded in the District Court in April 2007, with the court required to balance the objective seriousness of the offending against the offender's personal circumstances and prospects for rehabilitation.

  • Whether the principal offence fell at, above, or below the mid-range of objective seriousness for the purposes of the standard non-parole period regime
  • What weight to give the standard non-parole period applicable to selling a prohibited pistol
  • How to assess objective criminality where the sale was made to an undercover operative (that is, where actual harm to the public did not eventuate)
  • What discount to apply for the guilty plea
  • Whether special circumstances existed justifying a variation to the standard non-parole/balance of term ratio
  • How to apply totality across the principal offence and the Form 1 matters

Decision

The court found the principal offence was below the mid-range of objective seriousness, for several reasons. The sale was made to an undercover police operative, meaning the pistol never entered general circulation and no actual harm to the public resulted. The offender acted at his brother's direction and, but for that direction, was unlikely to have sold the weapon. He received only part of the proceeds and was reckless, rather than wilfully indifferent, as to the identity and purpose of the buyer.

Despite those mitigating factors, the court emphasised the serious public safety objects of the Firearms Act 1996 and the broader problem of illegal firearms in New South Wales. The court rejected the offender's account of how he came to possess the pistol as self-serving, finding instead that he had possessed and valued the weapon before selling it on his brother's instruction for financial gain. The court treated the sale of a loaded, high-capacity handgun with a defaced serial number as inherently serious conduct, even if the circumstances reduced it below the mid-range.

On subjective matters, the court accepted evidence of a disadvantaged upbringing and noted the offender's youth and rehabilitation prospects as relevant to the length of the non-parole period. The court found special circumstances existed: the offender would require a lengthy period of supervision and support from Probation and Parole upon release, and a shorter custodial period with a longer parole period was appropriate to allow for rehabilitation. A 25 per cent discount was applied for the guilty plea, reducing a notional head sentence of five years to four years.

Orders Made

  • Convicted of selling a pistol (a Norinco .45 calibre self-loading pistol with no serial number) to an undercover police operative not authorised to possess it, on 19 April 2006 at Merrylands
  • Sentenced to a non-parole period of 2 years, commencing 26 October 2006 and expiring 25 October 2008, with a balance of term expiring 25 October 2010 (total sentence of 4 years)
  • Convicted of possessing the same pistol without authorisation; fixed term of 18 months commencing 26 October 2006 and expiring 25 April 2008
  • Form 1 matters (possession of pistol with defaced serial number, possession of capsicum spray, possession of a flick knife) taken into account in sentencing for the principal offence
  • Three remaining charges (possession of unregistered pistol, possession of loaded firearm in a public place, and possession of ammunition) withdrawn pursuant to leave granted under s 166 of the Criminal Procedure Act 1986

Key Takeaways

  • The District Court confirmed that where a firearm sale is made to an undercover operative rather than into the general community, the absence of actual harm to the public is a relevant factor in assessing objective seriousness, capable of placing the offence below the mid-range.
  • A sale of an illegal prohibited firearm nonetheless engages significant sentencing weight because of the public safety objects of the Firearms Act 1996, regardless of whether the weapon ultimately caused harm.
  • Where an offender acts at the direction of another person and would not otherwise have committed the offence, that circumstance can reduce objective criminality, though it does not excuse it.
  • Special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 may be established by a combination of the offender's need for extended post-release supervision and the sentencing principle that youth can be accommodated through a shorter custodial period and longer parole, allowing greater opportunity for rehabilitation.
  • A 25 per cent discount for a guilty plea was applied to the notional head sentence, reducing it from five to four years, consistent with the approach to utilitarian plea discounts confirmed in R v Thompson & Houlton and R v Way.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- R v Gladue [1999] 1 SCR 688
- R v Cuthbert (1967) 86 WN (NSW) Pt 1 272
- R v Rushby [1977] 1 NSWLR 594
- R v Hayes [1984] 1 NSWLR 740
- R v Way (2004) 60 NSWLR 168
- R v Thompson & Houlton (2000) 49 NSWLR 383
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (2004) NSWLR 305