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District Court 19 September 2013

R v Osman Elmasri

[2013] NSWDC 177

Firearms & weapons
SENTENCE POSSESSION OF FIREARM

Citation: R v Osman Elmasri [2013] NSWDC 177
Court: District Court of New South Wales
Date: 19 September 2013
Judge: Mahony SC DCJ

Background

The offender, a 39-year-old self-employed furniture upholsterer, pleaded guilty to possessing an unauthorised prohibited firearm, specifically a loaded .38 calibre Smith and Wesson revolver, contrary to section 7(1) of the Firearms Act 1996. Police found the weapon during a search warrant executed at his home in Woodpark on 14 March 2013. The revolver was loaded with six rounds, housed in a soft holster in a drawer, and part of its serial number was missing.

The offender had been a member of the Rebels motorcycle club from 2003 until early 2012, when he chose to leave. Following that departure, he and his family became the targets of sustained intimidation, including threatening phone calls, a drive-by shooting at his home, and an armed attack on his disabled brother. He told the court he acquired the pistol for self-protection in that context.

A related charge of possessing ammunition without a licence, taken into account on a Form 1, was the only other matter before the court. The offender had been in custody since his arrest, and his prior record was limited to two section 10 bonds in 2006.

  • What was the appropriate sentence for possession of an unauthorised prohibited firearm under section 7(1) of the Firearms Act 1996?
  • What weight should be given to the offender's claimed subjective circumstances, including fear of retribution from a motorcycle club, post-traumatic stress symptoms, and family responsibilities?
  • Whether special circumstances existed under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify varying the standard non-parole period ratio.
  • What discount was appropriate for the offender's early guilty plea?

Decision

Mahony SC DCJ confirmed that the offence carries a standard non-parole period of three years under the Firearms Act 1996, reflecting the legislature's view that unlicensed possession of prohibited firearms is a serious matter warranting significant deterrence. His Honour reviewed the relevant Court of Criminal Appeal authorities, including R v Krstic, R v AA, and Zreika v R, and noted that personal protection is not a mitigating factor that meaningfully reduces the objective seriousness of the offence.

The offender's claimed motive of self-protection was accepted as genuine, but the court found it did not substantially diminish the gravity of the conduct. The loaded state of the weapon and its accessibility in premises where children were sometimes present were treated as aggravating features. The court was also unimpressed by the offender's refusal to disclose the source of the firearm, noting this contributed to the ongoing circulation of prohibited weapons.

On the subjective side, the court accepted the psychological evidence that the offender experienced post-traumatic stress symptoms (though not a full PTSD diagnosis) and that these contributed to his decision-making at the time of the offence. His good character, genuine remorse, productive use of time in custody, and the support of his family and community all carried weight. The court accepted that his incarceration in protective custody and the impact on his family were relevant to the overall assessment.

A 25 per cent discount was applied for the guilty plea. Special circumstances were found, given that this was the offender's first custodial sentence, that he required early psychological treatment and support on release, and that his need for protective custody added an unusual dimension to his imprisonment. Those circumstances justified departing from the standard non-parole period ratio.

Orders Made

  • The offender was convicted of possessing an unauthorised prohibited firearm (a .38 calibre Smith and Wesson revolver) on 14 March 2013, contrary to section 7(1) of the Firearms Act 1996.
  • Non-parole period of one year and eight months, commencing 14 March 2013 and expiring 13 November 2014.
  • Balance of sentence of one year and four months, expiring 13 March 2016.
  • Total term of imprisonment: three years.

Key Takeaways

  • A motive of self-protection does not, of itself, significantly reduce the objective seriousness of possessing a prohibited firearm; the District Court confirmed this principle is well established in NSW sentencing law.
  • Under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances can be found where an offender is serving a first custodial term, requires psychological treatment on release, and faces unusual custodial conditions such as protective custody.
  • Aggravating features identified in this case included the weapon being loaded, being readily accessible outside a locked container, and being present in premises visited by children.
  • Refusal to disclose the source of an illegally acquired firearm was treated as a factor operating against the offender, reflecting the court's concern about the continued supply of prohibited weapons into the community.
  • A 25 per cent guilty plea discount was applied, consistent with the approach in Pearce v The Queen and the relevant sentencing legislation.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), sections 7(1) and 65(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 5, 35, and 44
- Criminal Procedure Act 1986 (NSW)

Cases:
- R v Krstic [2005] NSWCCA 391
- R v AA [2006] NSWCCA 55
- Zreika v R [2012] NSWCCA 44
- Pearce v The Queen (1998) 194 CLR 610