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Supreme Court 28 May 2015

R v Abdulrahman

[2015] NSWSC 2094

Firearms & weapons
CRIMINAL LAW BAIL DETENTION APPLICATION OFFENCES NOT “SHOW CAUSE” OFFENCES BAIL CONCERNS WHETHER UNACCEPTABLE RISKS OF NON

Citation: R v Abdulrahman [2015] NSWSC 2094
Court: Supreme Court of NSW
Date: 28 May 2015
Judge: Davies J

Background

The respondent, a hairdresser who operated a barber's shop from the garage of his home, was arrested in January 2015 and charged with 27 firearm offences. Police executing a search warrant found a large number of firearms concealed in a PVC pipe behind lounges in the garage, and three further firearms in laundry cupboards. The respondent occupied the property with his wife and three children.

After initially being refused bail, the respondent was granted bail by a Magistrate on 1 May 2015. The Crown then brought a detention application under s 50 of the Bail Act 2013 (NSW), seeking to have that bail revoked.

The Crown did not argue the offences were "show cause" offences. Instead, it relied on the respondent posing unacceptable risks of failing to appear, committing further serious offences, and endangering community safety.

  • Whether the respondent posed an unacceptable risk of failing to appear at court
  • Whether the respondent posed an unacceptable risk of committing further serious offences or endangering community safety
  • The meaning and operation of "possession" under s 4A of the Firearms Act 1996 (NSW), and whether the Crown had a strong case that the respondent possessed the firearms
  • Whether the respondent's personal circumstances, particularly his wife's significant health needs, were sufficient to overcome those bail concerns
  • Whether the proposed bail conditions adequately addressed those unacceptable risks

Decision

Davies J considered s 4A of the Firearms Act, which deems a firearm to be in a person's possession if it is found on premises they occupy, unless the person can establish one of the statutory exceptions. The respondent argued that, because the property was also used as a public-facing hairdressing business, others had access to the premises, and that he might be able to raise sufficient doubt about his possession at trial. His Honour rejected this as a basis for reducing bail concerns, concluding that both s 4A and the circumstances of the weapons' concealment, read alongside May v R [2012] NSWCCA 250, gave the Crown a strong case that the respondent was in possession of the firearms.

The sheer number and nature of the weapons led the court to draw an inference of criminal associations. While the respondent's counsel argued most firearms were consistent with legitimate purposes such as hunting, Davies J accepted the Crown's submission that the quantity and circumstances supported an inference of involvement in a criminal milieu. The respondent's brother, who was present at the time of the search, was identified in police material as having links to the Comancheros outlaw motorcycle gang.

The court acknowledged the respondent's compelling personal circumstances, particularly the advanced pregnancy of his wife, her inability to speak English, her history of pregnancy loss, and the family's financial stress arising from his custody. However, these considerations could not overcome the bail concerns identified. Davies J noted that, if convicted across the bulk of these charges, the respondent faced a lengthy term of imprisonment, including a maximum of 20 years for the s 51D offence. That sentencing exposure provided strong motivation not to appear at trial.

His Honour was not satisfied that any combination of conditions, including the financial securities, surrender of passports, non-association orders, and effective house arrest proposed by counsel, would adequately address the identified risks.

Orders Made

  • The respondent is to be detained; a detention order was made under the Bail Act 2013 (NSW).

Key Takeaways

  • The Supreme Court confirmed that the number and location of firearms found on a person's premises can support a reasonable inference of criminal associations, even where a legitimate business explanation is offered.
  • Under s 4A of the Firearms Act 1996 (NSW), firearms found on premises occupied by a person are taken to be in that person's possession unless the person establishes one of the statutory exceptions; the court assessed this as giving the Crown a strong prosecutorial case.
  • Genuine and serious personal hardship, including a partner's high-risk pregnancy and sole-breadwinner status, is a relevant consideration in bail proceedings but does not automatically displace a finding of unacceptable risk.
  • Where conviction would likely result in a lengthy term of imprisonment, that sentencing exposure is itself a factor supporting an inference that the accused poses an unacceptable risk of non-appearance.
  • Proposed bail conditions, however stringent, will not satisfy a court if they cannot reasonably address the identified unacceptable risks of non-appearance, further offending, and community danger.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 18, 19, 50
- Firearms Act 1996 (NSW), ss 4A, 7(1), 7A(1), 51B, 51D(2)

Cases:
- May v R [2012] NSWCCA 250