Citation: R v ALLOUCHE, Bilal; R v EL CHAMI, Mohammed [2017] NSWDC 283
Court: District Court of New South Wales
Date: 18 August 2017
Judge: Judge S Norrish QC
Background
Two offenders were sentenced for possessing unlicensed pistols and related ammunition offences under the Firearms Act 1996 (NSW). The offences came to light in October 2015 when police searched each man's residence during a murder investigation. Neither man was ultimately sentenced for any offence involving responsibility for the death in question.
Both offenders had already been sentenced by Justice Fullerton in separate proceedings arising from the same period of events. One offender was convicted of being an accessory after the fact to murder and received six months imprisonment. The other was convicted of concealing a serious offence and received three months imprisonment. Each had served significant pre-sentence custody.
The central complication at sentence was determining how the firearms penalties should interact with the time each man had already spent in custody, given that custody arose from the same period of offending and police operations.
Legal Issues
- How should the totality principle apply when offenders have already served custody for offences arising from the same factual circumstances?
- What weight should be given to pre-sentence custody not already accounted for by earlier sentences?
- What discount applied for early guilty pleas?
- How should the court treat the related ammunition offences on the s 166 certificate alongside the principal firearms charges?
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
Decision
The court applied the totality principle as its primary structuring tool. Drawing on Mill v R, Postiglione v R, and R v Gordon, the judge reasoned that sentencing must account for the total criminality across all related offending, including time already served. This required backdating the sentence and avoiding a wholly accumulative outcome.
For the offender Allouche, the court identified 280 days of pre-sentence custody attributable to this matter but not referable to any prior sentence. Despite submissions that the sentence be backdated further, the court backdated it to 18 August 2016, concluding this gave sufficient effect to totality. A 15% discount was applied for the early guilty plea, reducing a head sentence from four years to three years and four months. The court found special circumstances, warranting an extended parole period to assist with the offender's transition into community life, noting this was effectively his first term of imprisonment when considered in full context.
For El Chami, the court found the relevant firearm was incapable of firing projectiles, which significantly reduced the objective seriousness of the offence. Taking into account the minimal unaccounted custody, his lack of significant criminal history, good prospects of rehabilitation, and early plea, the court determined that a s 5 threshold for imprisonment was not satisfied. A two-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 was imposed instead, which the court preferred over a suspended sentence because it permitted a longer supervisory period.
The ammunition offences on the s 166 certificate were treated as so intertwined with the principal offences that separate significant penalties were not warranted. El Chami received a $100 fine, and Allouche received a conviction only under s 10A with no further penalty.
Orders Made
El Chami:
- Convicted of possessing a pistol without licence or permit
- Two-year good behaviour bond from 18 August 2017, with conditions to: appear before court if called; be of good behaviour; notify the District Court registry of any change of address; accept supervision and guidance of NSW Community Corrections; report to the Bankstown Community Corrections office within seven days
- Convicted of possessing ammunition without a licence (s 166 certificate); fined $100, with 28 days to pay
Allouche:
- Convicted of possessing a pistol without licence or permit
- Sentenced to imprisonment with a non-parole period of one year and six months, commencing 18 August 2016 and expiring 17 February 2018; balance of sentence of one year and ten months, expiring 17 December 2019 (total sentence: three years and four months, reflecting a 15% discount for early guilty plea)
- Special circumstances found; extended supervision period ordered on release
- Convicted of possessing ammunition without a licence (s 166 certificate); convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999 with no further penalty
Key Takeaways
- The totality principle requires a sentencing court to assess the overall criminality across all related offending, including offences already dealt with, and to avoid a combined sentence that is disproportionate to the total conduct.
- Where an offender has served substantial pre-sentence custody connected to the same period of offending, that custody must be meaningfully reflected in the new sentence, including through backdating where appropriate.
- The operability of a firearm is a material factor in assessing objective seriousness: the court treated El Chami's inoperable pistol as significantly less serious than Allouche's functioning weapon, contributing to the markedly different sentencing outcomes.
- A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 may be supported where an offender has not previously served a full sentence of imprisonment and requires structured supervision to reintegrate, even where prior custody has been served on remand.
- Under s 9 of the Crimes (Sentencing Procedure) Act 1999, a good behaviour bond may be preferred over a suspended sentence where a longer supervisory period better serves the offender's rehabilitation needs.
Legislation and Cases Referenced
Legislation:
- Firearms Act 1996 (NSW), ss 7(1), 65(3)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9, 10A
Cases:
- Mill v R (1988) 166 CLR 55
- Postiglione v R (1997) 189 CLR 295
- R v Gordon (1994) 71 A Crim R 459
- Muldrock v The Queen (2011) 244 CLR 120
- R v Thomson; R v Houlton [2000] NSWCCA 309
- R v Bloomfield (1998) 44 NSWLR 734
- R v Najem [2008] NSWCCA 32
- R v Krstic [2005] NSWCCA 391
- Laspina v Regina [2016] NSWCCA 181
- R v Rajab & Ors [2017] NSWSC 975