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10
Court of Criminal Appeal 11 October 2017

El Jamal v R

[2017] NSWCCA 243

Firearms & weapons
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE IMPORTANCE OF GENERAL DETERRENCE NO ERROR IDENTIFIED

Citation: El Jamal v R [2017] NSWCCA 243
Court: Court of Criminal Appeal, New South Wales
Date: 11 October 2017
Judge(s): Hoeben CJ at CL; Latham J; N Adams J

Background

The appellant pleaded guilty in the District Court to possessing more than three unregistered firearms without authorisation, contrary to s 51D(2) of the Firearms Act 1996 (NSW). The firearms, which included two prohibited firearms and a prohibited pistol, were found in a storage unit the appellant had leased only a week before police executed a search warrant on 10 December 2014. His fingerprints and DNA connected him to the weapons, and investigators also located substantial ammunition alongside a range of prohibited weapons, including a taser, a flick knife, an extendable baton, and a firearm silencer.

The appellant's role was accepted as that of a "storeman." He claimed he had been intimidated into holding a bag for others, and that those who gave it to him were members of an outlaw motorcycle club. The parties agreed he had possessed the firearms only from around 2:50 am on 9 December 2014.

Judge Norton SC of the District Court imposed a sentence of 6 years and 9 months imprisonment with a non-parole period of 4 years and 5 months, applying a 15 per cent discount for the guilty plea and also taking into account five additional offences on a Form 1 document. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentence of 6 years and 9 months (non-parole period 4 years and 5 months) was manifestly excessive for possessing more than three unregistered prohibited firearms, when account is taken of the Form 1 offences and the appellant's personal circumstances.
  • Whether the sentencing judge gave proper weight to mitigating factors, including the appellant's role as a short-term storeman, his substance use disorder, his family circumstances, and his prospects for rehabilitation.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach. Her Honour had correctly identified the serious objective criminality of the offending, noting the nature of the weapons (including two prohibited firearms and a prohibited pistol), the presence of substantial ammunition, the connection to an outlaw motorcycle club, and the significance of the storeman role in enabling future criminal activity. The sentencing judge assessed the overall criminality as slightly below mid-range.

The Court affirmed that general deterrence carries particular weight in firearms offences. The underlying legislative purpose of the Firearms Act is to ensure public safety by removing firearms from the community, and the maximum penalty of 20 years imprisonment for an offence of this kind signals a strong legislative intent to deter and punish such possession. These considerations limited the extent to which subjective circumstances could reduce the sentence.

The Court accepted that the sentencing judge had properly considered the appellant's personal circumstances, including his psychologist's report, his low assessed risk of reoffending, his family support, and his expression of remorse. His prior criminal history, which included an offence involving a flick knife and property damage committed while on bail, did not entitle him to leniency. His drug use at the time of the offending was treated as a matter of concern rather than mitigation. No identifiable error in the sentence was established, and the Court was not satisfied it was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that general deterrence is a particularly important sentencing consideration for firearms offences under the Firearms Act 1996 (NSW), given the legislature's overriding concern with public safety.
  • A storeman role in holding firearms on behalf of others is not a trivial form of participation; storing firearms is an essential prerequisite for their availability for criminal use.
  • Under s 51D(2) of the Firearms Act 1996 (NSW), a maximum penalty of 20 years imprisonment applies where a person possesses more than three unregistered firearms including a pistol or prohibited firearm without authorisation, reflecting the seriousness with which the legislature treats such conduct.
  • Substance use disorder was not treated as a mitigating circumstance on these facts; it was characterised instead as a cause for concern given the nature and context of the offending.
  • No error was established merely because the appellant's period of possession was brief or his role was characterised as that of a storeman, where the objective criminality of the offence remained substantial.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Firearms Act 1996 (NSW), ss 51D(2), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Alrubae v R [2016] NSWCCA 142
- Vaiusu v R [2017] NSWCCA 71
- R v Krstic [2005] NSWCCA 391 (cited within Alrubae)