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Court of Criminal Appeal 2 September 2015

Abdulrahman v R

[2015] NSWCCA 238

Firearms & weapons
CRIMINAL LAW BAIL RELEASE APPLICATION STRENGTH OF CROWN CASE UNACCEPTABLE RISK FOUND TO EXIST RELEASE APPLICATION REFUSED.

Citation: Abdulrahman v R [2015] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 2 September 2015
Judge(s): Hoeben CJ at CL, Price J, Fagan J

Background

The applicant, a 37-year-old married father of four, faced 27 firearms-related charges arising from a police search of his home and adjoining barber shop at Tregear in January 2015. Police executing a search warrant discovered eight firearms, ammunition, magazines, a silencer, and a telescopic sight concealed within PVC pipes and cupboards on the premises. Four of the firearms were identified as stolen from break-and-enter incidents in 2010 and 2012.

The applicant operated a barber shop from a garage at the rear of his residential property. The weapons were found within that garage and the adjoining laundry. The applicant participated in a recorded police interview but declined to answer questions about the weapons or the charges.

The Court of Criminal Appeal heard the applicant's release application under s 49 of the Bail Act 2013 on 30 July 2015 and refused it on that date. These reasons were published on 2 September 2015.

  • Whether the applicant posed an unacceptable risk under the Bail Act 2013 if released from custody
  • How the strength of the Crown case and the seriousness of the offending should be weighed against personal circumstances, including the applicant's family situation and time already spent in custody
  • Whether any bail conditions could adequately address the identified risk

Decision

The Court identified the most serious charge as possessing more than three unregistered firearms, including a prohibited pistol, under s 51D(2) of the Firearms Act 1996, which carries a maximum penalty of 20 years imprisonment with a non-parole period of 10 years. The collection included two prohibited semi-automatic firearms capable of causing mass casualties, as well as a silencer and stolen weapons. The Court found the Crown case was strong, given that the weapons were found in premises owned and controlled by the applicant.

The Court acknowledged that the applicant might not have personally placed the weapons in the garage. However, it reasoned that even on that assumption, the applicant's apparent acquiescence in their storage would inevitably involve him in the associated criminality. The Court also noted police intelligence suggesting a possible past affiliation with a criminal network, and a brother with alleged links to a motorcycle gang. The Court was careful to note that these matters rose no higher than possibilities and carried low probative value in isolation, but held they could not be ignored given the circumstances.

Against those risk factors, the Court weighed the applicant's limited criminal history (a single common assault conviction seven years earlier), his strong community and family ties, and the difficult personal circumstances of his wife, who had been diagnosed with postnatal depression, did not speak English, and was relying on family support. The Court also acknowledged that the applicant had already been in custody for approximately five and a half months and that trial was unlikely to be reached until early 2016.

After conducting the balancing exercise required under the Bail Act 2013, the Court concluded that releasing the applicant would constitute an unacceptable risk to public safety that could not be adequately addressed by bail conditions. The personal considerations, while genuine, did not outweigh the protection of the community.

Orders Made

  • The release application was refused.

Key Takeaways

  • Refusing bail, the Court of Criminal Appeal confirmed that the seriousness of firearms offending and the need to protect the community are weighty considerations in any release application, capable of outweighing significant personal hardship to the applicant and his family.
  • Under the Bail Act 2013, a court conducting a bail assessment must carry out a balancing exercise, but unacceptable risk to the public can justify continued detention even where personal circumstances are compelling.
  • A finding of unacceptable risk does not require proof that the applicant personally placed the weapons on the premises; acquiescence in their storage on premises within the applicant's control was sufficient to support the risk conclusion.
  • Police intelligence suggesting criminal associations may be taken into account in a bail assessment, even where that intelligence rises only to the level of possibility and carries limited probative weight on its own, provided it is considered in the context of the broader factual picture.
  • The length of time already spent on remand and the health and welfare of an applicant's dependants are relevant considerations in a release application, but the Court found they did not tip the balance in favour of release where the nature and potential consequences of the charged offending were sufficiently serious.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17(2)(a), 17(2)(b), 17(2)(c), 49
- Firearms Act 1996 (NSW), ss 4A, 7(1), 7A(1), 36(1), 39(1)(a), 51D(1), 51D(2), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases cited: No cases were cited in the judgment.