Citation: El Ali v R [2019] NSWCCA 207
Court: NSW Court of Criminal Appeal
Date: 30 August 2019
Judges: Basten JA; Simpson AJA; N Adams J
Background
The appellant was charged in connection with a sophisticated firearms importation scheme operating between mid-2011 and early 2012. The prosecution case established that 22 separate consignments of Glock pistols (either complete or in parts) had been shipped from overseas suppliers to Australia, sufficient to assemble at least 129 complete pistols. The appellant had used at least three false identities and a fictional company to obtain and import the weapons, with payments traceable to his bank accounts and communications consistent with his work schedules and online activity.
The appellant pleaded guilty to one count of conspiracy to import firearms parts and magazines under the Customs Act 1901 (Cth). He contested two further counts: conspiracy to possess more than three firearms (at least one being a pistol) under the Firearms Act 1996 (NSW), and knowingly taking part in the sale of a pistol on three or more occasions in a 12-month period under the same Act. After a trial of approximately 40 days in the District Court, a jury found him guilty on both contested counts.
At sentence, the District Court imposed an effective non-parole period of 13 years and a total effective sentence of 17 years and 3 months, covering the federal plea, the two jury verdicts, and 15 further counts relating to false permit applications. The appellant sought leave to appeal both his convictions and his sentence.
Legal Issues
- Whether the trial judge's directions on the meaning of "firearm" and "possession" under the Firearms Act 1996 (NSW) were adequate and accurate
- Whether the evidence supported a single conspiracy or multiple distinct conspiracies, and whether the jury was correctly directed on this question
- Whether the convictions for conspiracy to possess and for sale were impermissibly based on the same underlying conduct
- Whether the trial judge's directions on the meaning of "sale" were correct, and whether any error arising from the absence of an objection at trial caused actual prejudice
- Whether the sentencing judge accurately assessed the scope of the conspiracy
- Whether the offender's subjective circumstances were adequately taken into account at sentence
- Whether the overall sentence was manifestly excessive
Decision
The Court dismissed the appeal against conviction on all grounds. On the jury direction challenges, the Court found that the directions given regarding "firearm" and "possession" were sufficiently accurate in the context of the trial as a whole. The argument that multiple discrete conspiracies existed, rather than a single overarching one, was not made out on the evidence, and the directions adequately addressed the relevant considerations.
On the argument that the possession and sale convictions rested on the same conduct, the Court drew a clear distinction between conspiracy to possess (which concerned the broader scheme of accumulating firearms) and the specific acts constituting the sale offence. These were legally and factually separable, and no double-counting arose. On the directions regarding the meaning of "sale," the Court noted that no objection had been raised at trial, and found that even if any error existed, no actual prejudice to the appellant had been demonstrated.
The appeal against sentence was also dismissed. The Court found that the sentencing judge had accurately assessed the scope of the conspiracy and had adequately engaged with the appellant's subjective case, including his personal circumstances and background. The submission that the aggregate sentence was manifestly excessive was not accepted. A specific argument that a "flow-on" direction under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was required when accumulating a State sentence onto the federal sentence was rejected, as the effect on the overall non-parole period ratio was less than one percent and required no adjustment.
Orders Made
- Leave to appeal from the convictions on counts 2 and 3 granted to the extent necessary; appeal against convictions dismissed
- Leave to appeal against the aggregate sentence imposed for the State offences granted; appeal against sentence dismissed
Key Takeaways
- A conviction for conspiracy to possess firearms and a separate conviction for the sale of firearms on multiple occasions are not impermissibly duplicitous where the two offences are legally and factually distinct, even if they arise from related conduct.
- Where trial counsel does not object to a jury direction at the time, an appellate court will scrutinise whether any resulting error caused actual prejudice before granting relief; the absence of demonstrated prejudice is fatal to such a ground.
- Under the Firearms Act 1996 (NSW), the concepts of "possession" and "sale" carry distinct legal meanings that can sustain separate charges arising from a connected firearms scheme.
- In dismissing the sentence appeal, the Court confirmed that a minimal impact on the non-parole period ratio (below one percent) from the accumulation of State and federal sentences does not, of itself, require a s 44 adjustment direction.
- No error was established in the sentencing judge's assessment of conspiracy scope or treatment of the offender's subjective case, reinforcing that appellate intervention on manifest excess grounds requires a clear departure from the proper range.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233BAB
- Criminal Code (Cth), s 11.5
- Firearms Act 1996 (NSW), ss 4, 7, 8, 36, 43, 50, 50AA, 51, 51A, 51B, 51D, 70; Pts 1, 2, 3, 5, 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Weapons Prohibition Act 1998 (NSW), ss 4, 23B
- Criminal Appeal Rules, r 4
Cases:
- Director of Public Prosecutions (NSW) v Morgan [2013] NSWSC 1474; 235 A Crim R 491
- Jacob v R [2014] NSWCCA 65; 240 A Crim R 239
- R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85
- R v Ongley (1940) 57 WN(NSW) 116
- Regina v BD [2001] NSWCCA 184; 122 A Crim R 28
- Regina v Marchione [2002] NSWCCA 131