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Court of Criminal Appeal 24 February 2014

EL MASRI, Osman v R

[2014] NSWCCA 13

Firearms & weapons
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE POSSESSION OF UNAUTHORISED FIREARM NO QUESTION OF PRINCIPLE APPEAL DISMISSED.

Citation: EL MASRI, Osman v R [2014] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 24 February 2014
Judges: Basten JA, Hidden J, RS Hulme AJ

Background

The appellant was sentenced in September 2013 by Judge Mahony in the District Court to three years' imprisonment, with a non-parole period of one year and eight months, for possessing an unauthorised prohibited firearm. The weapon, a loaded .38 calibre revolver with a partially missing serial number, was found hidden but accessible in his lounge room during a police search on 14 March 2013.

The appellant had been a member of the Rebels Motorcycle Club until 2012. After leaving the club, he and his family were subjected to threats, a drive-by shooting at his home, and an attack on his disabled brother. The sentencing judge accepted that the appellant acquired the firearm to protect himself and his family, and that he was aware possession was illegal but considered the threats to outweigh that illegality.

The appellant pleaded guilty at an early stage and received a 25% discount on his sentence. He had limited prior criminal history, was assessed as remorseful, and had good prospects for rehabilitation. A psychologist's report noted that while the appellant did not meet the full diagnostic criteria for PTSD, he displayed post-traumatic symptoms that had contributed to his offending.

  • Whether the sentencing judge erred by giving undue weight to the standard non-parole period, resulting in a sentence inconsistent with the finding that the offence was below the mid-range of objective seriousness.
  • Whether the sentencing judge erred by failing to treat the appellant's psychological symptoms as a mitigating factor.

Decision

On the first ground, the Court of Criminal Appeal acknowledged that the arithmetic of the sentence, working backwards from the head sentence and applying the plea discount, appeared to align with the standard non-parole period of three years. However, the Court noted that the standard non-parole period is not the sole benchmark. The sentencing judge was also required to have regard to the maximum penalty of 14 years' imprisonment. The Court reiterated that, while the two reference points have been described as irreconcilable, both must be considered. On that basis, no error was established.

On the second ground, the Court found that the sentencing judge did err by failing to expressly address the appellant's psychological state and articulate its significance. However, the Court assessed the practical weight of that error as minimal. The psychologist's evidence showed only that the appellant's symptoms "contributed" to his offending, without indicating the degree of that contribution. Nothing in the evidence suggested the symptoms were more than a minor factor.

The Court further observed that the sentencing judge had already recognised the appellant's fear, arising from the threats and drive-by shooting, as a mitigating circumstance. Since the psychological symptoms were an obvious product of that same fear, separately attributing significant weight to those symptoms would have amounted to double-counting the same underlying circumstances. In the result, the Court was not persuaded that a lesser sentence was warranted.

The Court also noted the importance of general deterrence in the context of the apparent prevalence of illegal firearms and drive-by shootings in the community. Consistent with prior authority, courts should not encourage self-help in the form of criminal conduct, even where the motivation is self-protection.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, when sentencing for a firearms offence under the Firearms Act 1996, both the standard non-parole period and the maximum penalty must be considered. A sentence that appears inconsistent with one benchmark does not automatically disclose error if the other benchmark justifies the result.
  • A sentencing judge's failure to expressly address and explain the weight given to psychological evidence is an error, but that error will not produce a lesser sentence unless the evidence, properly assessed, would have warranted one.
  • Where a defendant's psychological symptoms arise from the same circumstances already recognised as mitigating (here, threats and fear), those symptoms cannot independently carry substantial additional mitigating weight without risk of double-counting.
  • General deterrence remains a relevant sentencing consideration for illegal firearm possession, particularly where courts have identified the growing prevalence of firearms-related violence in the community.
  • In dismissing the appeal, the Court reaffirmed the principle, drawn from earlier CCA authority, that sentencing courts must not take steps that could encourage individuals to resort to criminal self-help, even in circumstances of genuine fear.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), s 7(1) (possessing unauthorised prohibited firearm; maximum penalty 14 years; standard non-parole period 3 years)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Duncombe v R [2013] NSWCCA 271
- Dulihanty v R [2013] NSWCCA 275
- R v Najem [2008] NSWCCA 32
- R v Krstic [2005] NSWCCA 391
- R v AA [2006] NSWCCA 55