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11
Court of Criminal Appeal 11 August 2021

Chandab v R

[2021] NSWCCA 186

DrugsFirearms & weapons
CRIME APPEAL AGAINST SENTENCE DRUG AND FIREARMS OFFENCES POSSESS PROHIBITED FIREARM LOADED PROHIBITED PISTOL APPLICANT A MEMBER OF A CRIMINAL GANG

Citation: Chandab v R [2021] NSWCCA 186
Court: Court of Criminal Appeal, New South Wales
Date: 11 August 2021
Judges: Leeming JA, Wilson J, Ierace J

Background

The applicant, a senior member of the Comancheros outlaw motorcycle gang, was sentenced in the District Court to 6 years and 3 months imprisonment, with a non-parole period of 4 years and 2 months, for drug and firearm offences. He had pleaded guilty on the day fixed for trial to possessing a prohibited pistol and knowingly taking part in the commercial supply of cocaine.

Police discovered the offending when executing a firearms prohibition order (FPO) compliance search at premises associated with the applicant's brother. Inside the applicant's Toyota Hilux, officers found a concealed compartment beneath the centre console, triggered by the rear demister control. The compartment contained 634.7 grams of cocaine at 83.5% purity (estimated street value around $184,000) and a fully loaded, defaced .357 Magnum Smith and Wesson revolver. DNA consistent with the applicant was recovered from the trigger.

The applicant sought leave to appeal against the sentence, contending that the sentencing judge's assessment of the firearms offence as above mid-range in objective seriousness was not reasonably open, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge's finding that the firearms offence was above mid-range in objective seriousness was reasonably open on the facts.
  • Whether the overall sentence was manifestly excessive.
  • Whether the absence of a proven connection between the firearm and the drug supply offence affected the objective seriousness of the firearms charge.

Decision

The Court of Criminal Appeal granted leave to appeal on both grounds but dismissed the appeal. All three judges agreed that the sentencing judge's finding of above mid-range objective seriousness for the firearms offence was open on the facts.

Wilson J identified several features that weighed heavily on the objective seriousness of the possession charge. The applicant was subject to an FPO at the time of the offence, which meant he was prohibited from acquiring, possessing or using any firearm. Although contravening an FPO is a separate offence and was not charged, the existence of the FPO rendered the possession offence significantly more serious: the court followed Alameddine v R [2020] NSWCCA 232 on this point. Additionally, the revolver was fully loaded with six rounds, was in working order, had its serial number obliterated, and was secreted in a reasonably sophisticated hidden compartment readily accessible from the driver's seat.

While the sentencing judge had not found a direct connection between the firearm and the drug supply offence, Wilson J held that this did not preclude the above mid-range finding. The combination of the FPO breach, the loaded and functional weapon, its defaced state, and the manner of concealment was sufficient to support that assessment without any aggravating connection to the drug count.

Leeming JA noted that, to the extent Wilson J and Ierace J differed in their precise approach to reviewing the objective seriousness finding, it was unnecessary to resolve that difference given both conclusions supported dismissing the appeal. His Honour also observed the sentencing task facing the primary judge was an artificial one, a point on which all members of the Court agreed.

Orders Made

• Leave to appeal on ground 1 and ground 2 granted
• Appeal dismissed

Key Takeaways

  • A firearms possession offence under s 7(1) of the Firearms Act 1996 (NSW) is rendered significantly more objectively serious when the offender is subject to a Firearms Prohibition Order at the time, even though contravening the FPO is a separate offence: following Alameddine v R [2020] NSWCCA 232.

  • The absence of a proven connection between a firearm and a co-charged drug supply offence does not automatically preclude an above mid-range finding for the firearms offence. Other aggravating circumstances can independently support that assessment.

  • Factors contributing to above mid-range seriousness in this case included: the weapon being fully loaded and functional, its serial number obliterated, its concealment in a purpose-built hidden compartment in a vehicle, and the ready accessibility of that compartment to the driver.

  • In dismissing both grounds of appeal, the Court of Criminal Appeal confirmed that an appellate court will not interfere with a sentencing judge's assessment of objective seriousness unless the finding falls outside the range reasonably open on the facts: applying House v The King (1936) 55 CLR 499.

  • Membership of a criminal organisation and the holding of a senior position within that organisation formed part of the factual matrix the sentencing court was entitled to consider when assessing the circumstances of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), ss 4(1), 4C, 7(1), 66(1)(b), 73(1), 74(1)

Cases:
- Alameddine v R [2020] NSWCCA 232
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Sumrein v R [2019] NSWCCA 83
- Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170
- Various other cases cited in the metadata above