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Court of Criminal Appeal 16 August 2012

Mohamed v R

[2012] NSWCCA 173

DrugsFirearms & weapons
CRIMINAL LAW SENTENCING DRUG AND WEAPON OFFENCES NO OPERATIVE ERROR SENTENCE WITHIN APPROPRIATE RANGE NO QUESTION OF PRINCIPLE ARISING

Citation: Mohamed v R [2012] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 16 August 2012
Judges: Allsop P, Latham J, Davies J

Background

The applicant had pleaded guilty to a series of drug and weapons offences arising from two separate episodes. The first set of charges stemmed from a police search of his premises in June 2009, which uncovered cannabis, a prohibited drug known as 1-benzylpiperazine, and an operating taser stun gun. The second set of charges arose after the applicant committed further offences while on bail, supplying methylamphetamine to an undercover operative on four occasions and possessing a loaded sawn-off shotgun when police searched his premises following his arrest in November 2009.

The sentencing judge imposed an overall effective sentence of seven years with a non-parole period of five years. The applicant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the overall sentence offended the principles of totality and proportionality
  • Whether the sentence failed to reflect sufficient parity with the sentence imposed on a co-offender
  • Whether the sentencing judge erred in failing to characterise the taser offence as falling in the lower range of objective seriousness under the Weapons Prohibition Act 1998 (NSW)
  • Whether the sentence for possession of the loaded shortened firearm was excessive

Decision

The Court of Criminal Appeal rejected all grounds of appeal and found no reasonable prospect of success on any of them.

On totality and proportionality, the Court found the sentencing judge had carefully structured the sentences with significant concurrency. The remarks on sentence demonstrated active consideration of proportionality, including an effective reduction of the drug premises penalty by half through the degree of concurrence applied.

On parity with the co-offender (the applicant's girlfriend, sentenced by the same judge), the Court found the modest difference of six months in the ongoing supply offence was justified by the difference in the roles each played. The sentencing judge had expressly turned his mind to the equivalence of the two sentences, and no legitimate grievance arose from the comparison.

On the taser offence, the Court confirmed that the characterisation of objective seriousness is an evaluative task for the sentencing judge, not a binding factual finding from earlier decisions. The reference in Tran v R [2010] NSWCCA 183 to a taser as significantly below the mid-range applied to the particular circumstances of that case. Here, the presence of the taser in connection with a drug supply business was a relevant distinguishing factor, and the sentence imposed remained well below the standard non-parole period of three years. No error was established.

Orders Made

  • Time for filing the application for leave to appeal extended to 26 March 2012
  • Leave to appeal refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that the characterisation of objective seriousness for a weapons offence is an evaluative judgment for the sentencing court, and a description of seriousness from a prior case does not bind subsequent judges facing different factual circumstances.
  • In refusing the parity ground, the Court found that a modest sentencing difference between co-offenders is justified where their respective roles differ, particularly where the sentencing judge expressly addressed the question of equivalence.
  • A sentencing error (here, the misstatement of a maximum penalty) will not be operative where the sentence in question runs entirely concurrently with another and no coherent argument of prejudice is advanced.
  • Upholding the overall sentence, the Court found that seven years with a five-year non-parole period was within the appropriate range for a combination of ongoing drug supply offences committed while on bail, together with possession of both a taser and a loaded sawn-off shotgun in connection with a drug supply business.
  • The principles of totality and proportionality do not require mathematical equality across concurrent terms; careful structuring of concurrency by a sentencing judge is a legitimate and recognised means of achieving a just overall result.

Legislation and Cases Referenced

Legislation
- Weapons Prohibition Act 1998 (NSW), s 7

Cases
- Tran v R [2010] NSWCCA 183