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District Court 6 July 2018

R v Khosravi

[2018] NSWDC 363

DrugsFirearms & weapons
SENTENCING — MULTIPLE OFFENCES FIREARMS ACT 1996 DRUG MISUSE AND TRAFFICKING ACT SUPPLY OF PROHIBITED DRUG

Citation: R v Khosravi [2018] NSWDC 363
Court: District Court of New South Wales
Date: 6 July 2018
Judge: M L Williams SC DCJ

Background

The offender, born in 1986, appeared for sentence after pleading guilty to multiple serious offences. Police executed a search of his Gladesville premises on 1 December 2016 and found five firearms (several in various states of disrepair), a ballistic plate, a magazine capable of use in a semi-automatic rifle, a home-made silencer, body armour, and various quantities of prohibited drugs including cocaine, butanediol, methylamphetamine, and gamma butyrolactone.

The principal and most serious charge was unauthorised possession of firearms in aggravated circumstances under s 51D(2) of the Firearms Act 1996 (NSW), which carries a maximum of 20 years imprisonment and a standard non-parole period of ten years. Additional principal charges included possession of a prohibited weapon and two supply offences under the Drug Misuse and Trafficking Act 1985. A number of related firearms and drug offences were listed on Form 1 schedules to be taken into account on sentence.

The offender had a prior criminal record that included a serious 2006 conviction for maliciously inflicting grievous bodily harm, for which he received a sentence of six years and nine months. After his release in 2011 he operated a carpentry business for several years before, by his account, falling into drug use and becoming involved with firearms. He did not give evidence at the sentencing hearing, which the judge noted left the court without a tested explanation for why the firearms were in his possession.

  • What aggregate sentence was appropriate across multiple serious firearms and drug offences, having regard to totality and the need for partial accumulation?
  • What discount applied to the sentence, given an early guilty plea and additional assistance under s 23 of the Crimes (Sentencing Procedure) Act 1999?
  • How should Form 1 matters be treated in calculating the overall penalty?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio?
  • Whether the offender's untested account of a delusional fear (said to explain firearm possession) could be accepted as a mitigating factor?

Decision

The court imposed an aggregate sentence of four years and three months, commencing 2 December 2017, with a non-parole period of two years and six months. The commencement date was fixed by discretion, having regard to the offender's custodial history on separate matters and the principle that the combined period should not exceed what was warranted by the totality of the offending.

A total discount of 35 per cent was applied to all terms. Twenty-five per cent reflected the utilitarian value of the early guilty plea. A further 10 per cent was applied following a closed-court hearing under s 23 of the Crimes (Sentencing Procedure) Act 1999, dealing with assistance to authorities. Neither party challenged the combined discount figure.

Form 1 matters were addressed in accordance with established guideline principles: the court treated them as increasing the penalty that would otherwise have been appropriate on the principal offences, giving greater weight to personal deterrence and the community's entitlement to retribution for serious offending.

The court declined to accept the untested psychiatric history suggesting the offender's firearm possession was driven by a delusional fear arising from drug use. Because the offender did not give evidence, that account could not be tested, and the court declined to act on it as a mitigating explanation. Special circumstances were found, however, having regard to the need for accumulation across sentences and the offender's apparent need for extended supervision and ongoing counselling.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of four years and three months imposed, commencing 2 December 2017 and expiring 1 March 2022.
  • Non-parole period of two years and six months, expiring 1 June 2020.
  • Special circumstances found.
  • Drugs, firearms, and other articles ordered to be destroyed.

Indicative sentences (after the 35% discount):
- Sequence 9 (principal firearms charge, including Form 1): three years and seven months, non-parole period two years and one month.
- Sequence 13: one year, non-parole period six months.
- Sequence 14: ten months, non-parole period five months.
- Sequence 16: nine months, non-parole period four months.
- Sequence 24: 12 months.
- Sequence 25 (principal drug charge, including Form 1): 15 months.

Key Takeaways

  • The District Court confirmed that s 51D(2) of the Firearms Act 1996 targets the warehousing of multiple firearms for use by others in serious violence, and that sentences for such offences must operate as real disincentives, consistent with the Court of Criminal Appeal's approach in R v Lachlan [2015] NSWCCA 178.

  • A combined sentencing discount of 35 per cent was available where both an early guilty plea (25%) and assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (10%) applied, with no challenge from either party.

  • Where an offender declines to give evidence at sentence, courts may decline to accept an untested mitigating account, even where it is supported by a psychiatric report based on history provided by the offender.

  • Under the totality principle drawn from Pearce v The Queen (1998) 194 CLR 610, accumulated sentences across multiple offences must be structured so the combined custodial term does not exceed what the totality of the offending warranted.

  • Form 1 matters do not generate separate sentences but are taken into account by increasing the penalty on the principal offence, with the court giving greater weight to personal deterrence and retributive purposes of sentencing.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 7(1), 7A(1), 51D(2), 65(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 23

Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Mack v R; Mack v R [2009] NSWCCA 216
- Muldrock v The Queen (2011) 244 CLR 120
- Pearce v The Queen (1998) 194 CLR 610
- R v Brown [2006] NSWCCA 249
- R v Lachlan [2015] NSWCCA 178
- R v Mahmud [2010] NSWCCA 219
- R v XX [2009] NSWCCA 115