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Court of Criminal Appeal 1 December 2017

Moustafa Mariam v Regina

[2017] NSWCCA 292

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE POSSESSION OF FIREARM WHETHER NATURE OF THE WEAPON RELEVANT LOADED AUTOMATIC PISTOL PERVERT THE COURSE OF JUSTICE

Citation: Moustafa Mariam v Regina [2017] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 1 December 2017
Judges: Price J, Bellew J, Hamill J (judgment of Hamill J, with Price and Bellew JJ agreeing)

Background

The applicant was convicted by a jury in the District Court of two offences: possessing a loaded .45 calibre automatic self-loading pistol found in a ceiling cavity at premises where he was present, and attempting to pervert the course of justice by inducing a fellow inmate to falsely claim responsibility for the weapon. The inducement included an offer of $35,000, upfront legal fees, and a motor vehicle.

The sentencing judge imposed an aggregate term of six years imprisonment with a non-parole period of four years and six months. The indicative individual sentences were four years (non-parole period of three years) for the firearms offence and five years for the perverting justice offence.

The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge made a series of specific errors in the process of arriving at it.

  • Whether the sentencing judge erred in assessing the firearms offence as falling within the mid-range of objective seriousness, given findings of "mere possession" with no established link to drug dealing or ownership
  • Whether the nature of the weapon (a loaded automatic pistol) was a relevant aggravating factor
  • Whether the sentencing judge misused the applicant's criminal history
  • Whether the sentencing judge erred in declining to find special circumstances (which, if established, can justify varying the standard ratio between the non-parole period and the total sentence)
  • Whether the aggregate sentence was manifestly excessive

Decision

Objective seriousness of the firearms offence

The Court rejected the argument that a finding of "mere possession" required the judge to assess the offence below mid-range. Hamill J confirmed that the nature of the weapon is plainly relevant to objective criminality. Possessing a loaded, high-calibre automatic pistol is more serious than possessing an unloaded or less dangerous firearm, regardless of whether the possession is connected to any other criminal purpose. The absence of a finding of drug-related possession did not compel a below mid-range assessment.

Criminal history

No error was found in the sentencing judge's treatment of the applicant's prior record, which included offences of robbery in company, assault with intent to rob, and affray. The Court noted the applicant was not a person of good character and was not entitled to any discount for a guilty plea, having been convicted after a trial.

Special circumstances

The applicant argued the sentencing judge should have found special circumstances to justify a longer tail on the sentence (that is, a longer period on parole relative to the total term). The Court found no error in the judge's approach. The judge had considered the issue and was not persuaded that the circumstances warranted a departure from the standard ratio.

Manifest excess

The Court applied the established standard: an aggregate sentence will only be set aside if it is "manifestly wrong" or "plainly unjust," not merely because an appellate judge might have sentenced differently. The Court acknowledged the sentence was heavy in all the circumstances but concluded it fell within the available range and did not meet that threshold.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the nature and condition of a firearm (here, a loaded automatic pistol) is relevant to assessing objective seriousness, even where the offender is found to be in "mere possession" without any proven connection to organised crime or drug dealing.
  • A sentencing judge's refusal to accept a prosecution submission beyond reasonable doubt does not automatically require the offence to be assessed below mid-range; the remaining proved facts still inform objective seriousness.
  • No error is established simply because another tribunal might have assessed objective seriousness differently; the appellate court applies the principles in House v The King (1936) and will not interfere unless identifiable error is shown.
  • In dismissing the manifest excess ground, the Court reaffirmed that the bar is high: the sentence must be "manifestly wrong" or "plainly unjust," not simply on the higher end of the range.
  • Where an applicant has a prior criminal history and was convicted after trial (rather than pleading guilty), neither good character nor a plea discount is available to reduce the sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 53A (aggregate sentencing)
- Firearms Act 1996 (NSW)
- Criminal Procedure Act (s 166 certificate)

Cases
- Dinsdale v R (2000) 202 CLR 321
- House v The King (1936) 55 CLR 499
- Kaminic v R [2014] NSWCCA 116
- Markarian v R (2006) 228 CLR 357
- Mulato v R [2006] NSWCCA 282
- Olbrich v The Queen (1999) 199 CLR 270
- R v Cramp [2004] NSWCCA 264
- R v Farrell [2015] NSWCCA 68
- R v McNaughton (2006) 66 NSWLR 566
- R v Moustafa Mariam [2012] NSWSC 1496
- R v Wickham [2004] NSWCCA 193
- Ruge and Cormack v R [2015] NSWCCA 153
- Sabongi v R [2015] NSWCCA 25