Citation: R v Abdul Zahed [2012] NSWDC 151
Court: NSW District Court
Date: 10 February 2012
Judge(s): S Norrish QC DCJ
Background
The offender, a 27-year-old man with an extensive criminal history dating back to his early teenage years, appeared for sentencing on three matters arising from his arrest at a Rosebery unit block on 14 September 2011. Police, executing an outstanding warrant, found him in possession of a loaded nine-millimetre Glock semi-automatic pistol (with the serial number removed), two additional live cartridges, and $1,640 in cash. When searched, he voluntarily disclosed the firearm and stated it was his.
At the time of the offending, the offender was on parole from earlier sentences imposed for a series of serious offences including robbery in company, detaining a person for advantage, and aggravated breaking and entering. His parole had already been formally revoked in November 2010, following a positive drug test for morphine, and he had been a fugitive from that revocation up to the date of his arrest.
He pleaded guilty at the first reasonable opportunity to the principal charge of possessing an unauthorised prohibited firearm contrary to s 7(1) of the Firearms Act 1996, as well as to possessing ammunition without authority and having goods in custody suspected of being unlawfully obtained.
Legal Issues
- What was the appropriate sentence for possessing an unauthorised prohibited firearm, having regard to the standard non-parole period of three years and the principles in Muldrock v R?
- What weight should be given to the offender's guilty plea entered at the first reasonable opportunity?
- How did the offender's status as a parolee at the time of the offence affect the sentencing exercise?
- Whether the offender's psychological and psychiatric circumstances provided meaningful mitigation.
- Whether special circumstances existed justifying a variation to the standard non-parole period ratio.
Decision
The principal offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of three years. The sentencing judge applied the Muldrock v R framework, treating the standard non-parole period as a guidepost rather than a starting point. The offender received a 25 per cent discount on the otherwise appropriate sentence in recognition of the utilitarian benefit of his early guilty plea.
Significant aggravating features weighed in the sentencing exercise. The offender committed the offence while on parole that had already been revoked, he was a fugitive at the time, and the firearm was a loaded semi-automatic pistol with its serial number removed. The offender's lengthy record of serious violence-related offending was also a substantial adverse factor.
The medical and psychological evidence, which included reports from a psychiatrist and a psychologist, was considered but found to provide only limited mitigation. Counsel for the offender conceded that the conditions identified by the expert witnesses offered little explanation for the decision to possess the firearm.
The sentencing judge found special circumstances existed, adjusting the ratio between the non-parole period and the balance of sentence to give the offender a longer opportunity to demonstrate rehabilitation on parole. The head sentence was fixed at two years and three months, to commence on 14 September 2012, with the full balance of sentence (also two years and three months) to expire on 13 March 2017, meaning no fixed non-parole period was set for the principal offence in the conventional sense. The structure effectively deferred the commencement of the principal sentence to allow for the completion of the back-time period already being served.
Orders Made
- Convicted of possessing an unauthorised prohibited firearm (s 7(1), Firearms Act 1996): sentenced to two years and three months imprisonment, commencing 14 September 2012 and expiring 13 December 2014, with a balance of sentence of two years and three months expiring 13 March 2017.
- Convicted of possessing ammunition without authority (s 65(3), Firearms Act 1996): fined $1,000, with 28 days to pay.
- Convicted of goods in custody suspected of being unlawfully obtained (s 527C, Crimes Act 1900): sentenced to three months imprisonment, commencing 14 September 2012 and expiring 13 December 2012.
Key Takeaways
- Committing a serious firearms offence while on parole that has already been revoked, and while a fugitive from that revocation, constitutes significant aggravation in the sentencing exercise.
- A 25 per cent discount applied to the principal offence where the offender pleaded guilty at the first reasonable opportunity, consistent with the utilitarian value of early pleas under the Crimes (Sentencing Procedure) Act 1999.
- Psychiatric and psychological evidence will provide only limited mitigation where it does not adequately explain the specific criminal conduct in question, even where genuine conditions are identified.
- Under the Muldrock v R framework, the standard non-parole period of three years for unauthorised possession of a prohibited firearm functions as a legislative guidepost, with the ultimate sentence determined by a synthesis of all relevant factors.
- Special circumstances can justify restructuring the non-parole and balance-of-sentence ratio where the court determines a longer supervisory period on parole would better serve rehabilitation.
Legislation and Cases Referenced
Legislation:
- Firearms Act 1996 (NSW), ss 7(1), 65(3)
- Crimes Act 1900 (NSW), s 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases:
- Muldrock v R [2011] HCA 39
- Markarian v R (2005) 228 CLR 357
- Callaghan v R [2006] NSWCCA 58
- R v Hemsley [2004] NSWCCA 228
- R v Foster [2011] NSWCCA 285
- Thalari v The Queen [2009] NSWCCA 170
- R v AA [2006] NSWCCA 55
- Yammine v R [2010] NSWCCA 123