Citation: Alrubae v R [2016] NSWCCA 142
Court: Court of Criminal Appeal, NSW
Date: 18 July 2016
Judges: Hoeben CJ at CL; Rothman J; R A Hulme J
Background
The appellant was an 18-year-old man who pleaded guilty in the District Court at Parramatta to two offences of possessing an unauthorised firearm and a prohibited firearm, contrary to s 7(1) of the Firearms Act 1996 (NSW). Each offence carried a maximum penalty of 14 years' imprisonment and a standard non-parole period of three years. The items in question were an imitation .45 calibre self-loading pistol and a sawn-off double-barrelled shotgun with its serial number removed.
Police discovered the weapons concealed beneath garbage in an industrial area at Warwick Farm. The appellant was arrested approximately 40 minutes later when he returned to the location in a vehicle. Fingerprint evidence connected him to the firearms and ammunition, and his guilty pleas confirmed possession. He was not licenced or permitted to hold either weapon.
The District Court imposed an aggregate sentence of five years' imprisonment with a non-parole period of two years and six months. The sentencing judge also took into account four further firearms-related offences on a Form 1 (a procedural mechanism allowing additional offences to be considered in fixing the sentence for a principal offence, without recording separate convictions). The appellant sought leave to appeal, arguing both that the pistol offence was assessed at too high a level of seriousness and that the overall sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in placing the imitation pistol offence in the middle of the range of seriousness, given that it was a replica rather than a functional weapon.
- Whether the aggregate sentence of five years with a non-parole period of two years and six months was manifestly excessive.
Decision
On the first ground, R A Hulme J (with whom Hoeben CJ at CL and Rothman J agreed) held that the sentencing judge's assessment of the pistol offence as falling in the middle of the range of seriousness was reasonably open. While an imitation firearm is less inherently dangerous than a real one, it still carries the potential to cause harm if presented with criminal intent. The pistol had a realistic appearance and there was no error of principle in the sentencing judge's characterisation.
On the question of manifest excess, the Court reviewed a range of comparable sentencing decisions involving unlawful firearm possession. Those comparisons supported rather than undermined the sentence imposed. The individual indicative sentences of three years (non-parole period 18 months) for the pistol offence and four years (non-parole period two years) for the shotgun offence were assessed against the statutory benchmarks of a 14-year maximum and a three-year standard non-parole period, and neither was excessive.
The aggregate sentence of five years represented only 12 months more than the indicative sentence for the shotgun offence alone, with the non-parole period extending by only six months. The Court found that this degree of partial accumulation appropriately reflected the additional criminality involved in possessing the pistol alongside the shotgun. No error in the exercise of the sentencing discretion was established.
Rothman J, while agreeing with the orders and reasons of R A Hulme J, added observations about the sentencing of young offenders and noted that the growing possession of prohibited weapons among youth called for both specific and general deterrence, even where the offender's background involved personal hardship.
Orders Made
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- An imitation firearm may properly be assessed as falling in the middle of the range of seriousness for a possession offence under s 7(1) of the Firearms Act 1996 (NSW), particularly where it has a realistic appearance and the potential to cause harm if used with criminal intent.
- No error was established merely because a sentencing judge placed an imitation pistol offence in the mid-range. The assessment was one reasonably open on the facts.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the standard non-parole period and maximum penalty remain relevant statutory guideposts when calibrating individual sentences for firearm possession.
- Where an aggregate sentence is formed across multiple firearm offences, some degree of partial accumulation to reflect additional criminality is appropriate and does not of itself render the sentence excessive.
- Rothman J's comments reiterate the Court's view that possession of prohibited weapons by young offenders remains a serious matter requiring deterrence, even where the offender's personal background involved hardship or disadvantage.
Legislation and Cases Referenced
Legislation
- Firearms Act 1996 (NSW), ss 3, 7(1), 36(1), 39(1)(a), 65(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i), s 37
Cases
- Atkinson v R [2014] NSWCCA 262
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Ballard v R [2011] NSWCCA 193
- BP v The Queen [2010] NSWCCA 159
- Bullock v R [2016] NSWCCA 131
- Chompeay v R [2011] NSWCCA 96
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Do v R [2010] NSWCCA 182
- El Masri v R [2014] NSWCCA 13
- Henderson v R [2012] NSWCCA 65
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Marracos v R [2008] NSWCCA 267
- Mulato v R [2006] NSWCCA 282
- R v Harris [2001] NSWCCA 322; 125 A Crim R 27
- R v Krstic [2005] NSWCCA 391
- Salafia v R [2015] NSWCCA 141
- Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270