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District Court 17 March 2017

R v Khoder El Ali

[2017] NSWDC 46

Firearms & weapons
CRIMINAL LAW SENTENCE FIREARMS CONSPIRACY TO IMPORT CONSPIRACY TO POSSESS KNOWINGLY TAKE PART IN SALE.

Citation: R v Khoder El Ali [2017] NSWDC 46
Court: District Court of New South Wales
Date: 17 March 2017
Judge: Whitford SC DCJ

Background

The offender was sentenced on 18 firearms-related offences arising from two separate indictments. The offending centred on a large-scale, commercially motivated criminal enterprise to smuggle disassembled pistol parts into Australia and sell the reconstructed firearms on the black market.

Between June 2011 and February 2012, 22 consignments of firearm parts were successfully imported from suppliers in Switzerland, Germany, and the United States. Those parts corresponded to 129 complete and 14 partial semi-automatic Glock pistols of various models, together with substantial quantities of magazines. A further 140 magazines were detected and seized by Australian Customs. Steps had also been taken, including part-payment, toward importing over 120 additional pistols and at least 470 further magazines. More than AUD$100,000 was spent in furtherance of the scheme.

Suppliers disassembled the firearms and misdescribed the contents of shipments at the direction of the enterprise's participants, in order to evade detection by Australian and foreign border control authorities. The offender had been in custody since his arrest on 13 March 2012, a period of just over five years by the time of sentencing.

  • What sentence was appropriate for conspiracy to import tier 2 goods (firearm parts) contrary to Commonwealth law, to which the offender pleaded guilty?
  • What sentences were appropriate for the State offences, including conspiracy to unlawfully possess more than three firearms, knowingly taking part in the sale of pistols on multiple occasions, and 15 counts of providing false information in firearm licence applications?
  • How should the totality principle apply across 18 offences arising from a single overarching criminal enterprise?
  • Whether a standard non-parole period applied to the common law conspiracy charges, given that the applicable penalty for common law conspiracy is "at large."
  • How to deal with a breach of an existing good behaviour bond imposed for a prior drug offence.

Decision

His Honour Whitford SC DCJ characterised the conspiracy to import as a serious commercial enterprise, noting that the firearm parts were inevitably intended for black market sale and, accordingly, for use by criminals. The court was satisfied beyond reasonable doubt that the conspiracy was ongoing at the time of the authorities' intervention, that it involved multiple participants within a discernible hierarchy, and that all imported parts were intended to be reassembled into high-powered, readily concealable semi-automatic pistols.

On the question of standard non-parole periods, the court followed Diesing v R [2007] NSWCCA 326, holding that because the conspiracy charges were common law offences, no standard non-parole period applied, leaving the penalty at large. The court took the view that the three counts on the Second Indictment, though addressing discrete steps in the enterprise, were inevitably linked by the common purpose of profit from black market firearms sales, which required a high degree of concurrence in sentencing to give proper effect to the totality principle.

Guilty pleas to the conspiracy to import charge and to the 15 false information counts attracted a 10 per cent discount on each of those sentences. The court found no special circumstances warranting a departure from the standard proportion between non-parole period and head sentence. For the prior drug offence bond breach, the court revoked the bond and convicted the offender but imposed no further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

  • Commonwealth offence (conspiracy to import): Convicted; 8 years imprisonment; non-parole period of 5 years and 6 months commencing 13 March 2012 and expiring 12 September 2017.
  • State offences (15 counts of providing false information, conspiracy to possess, and taking part in sale): Convicted on all counts; aggregate sentence with a non-parole period of 12 years and 6 months commencing 13 September 2012 and expiring 12 March 2025, plus a balance of term of 4 years and 3 months expiring 12 June 2029.
  • Total effective sentence: 17 years and 3 months; total effective non-parole period of 13 years; eligible for parole on 12 March 2025.
  • Indicative individual sentences within the aggregate (State offences):
  • Conspiracy to possess: 15 years
  • Taking part in sale: non-parole period of 6 years 9 months; head sentence of 9 years
  • Counts 1 and 2 (First Indictment): 1 year 4 months each (after 10% guilty plea discount)
  • Counts 3 to 7 (First Indictment): 1 year 6 months each (after 10% discount)
  • Counts 8 to 10 (First Indictment): 1 year 9 months each (after 10% discount)
  • Counts 11 to 15 (First Indictment): 2 years each (after 10% discount)
  • Bond breach (prior cocaine possession): Bond revoked; offender convicted; proceedings otherwise disposed of under section 10A without further penalty.

Key Takeaways

  • The District Court confirmed that where a conspiracy charge is framed as a common law offence, no standard non-parole period applies and the penalty is at large, following Diesing v R [2007] NSWCCA 326.
  • Where multiple charges on the same indictment address discrete steps in a single overarching criminal enterprise, the totality principle requires a high degree of concurrence in the sentences imposed so that the combined effect is not disproportionate to the overall criminality.
  • A guilty plea entered immediately before trial, in circumstances where the trial proceeded on related contested counts, attracted only a limited discount of 10 per cent, reflecting the limited utilitarian value of the plea.
  • Importing disassembled firearm parts by disguising their nature in shipping documentation, and at commercial scale, was treated by the court as offending of serious objective gravity given the inevitable destination of the weapons in the criminal black market.
  • Under section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court dealing with a breach of a good behaviour bond may revoke the bond and record a conviction without imposing any additional sentence where the circumstances warrant it.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(b), 10A, 98
- Criminal Code (Cth), s 11.5(1)
- Customs Act 1901 (Cth), s 233BAB(5)
- Firearms Act 1996 (NSW), ss 51B(1), 51D(2), 70
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases:
- R v Brown [2006] NSWCCA 249
- Diesing v R [2007] NSWCCA 326
- Kilic [2016] HCA 48
- R v Lachlan [2015] NSWCCA 178
- R v Mahmud [2010] NSWCCA 219