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District Court 16 July 2021

R v Hijazi

[2021] NSWDC 330

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW FIREARMS ACT 1996 (NSW) S 7(1) MULTIPLE FIREARMS & WEAPONS OFFENCES BREACH OF MULTIPLE PROHIBITION ORDERS SENTENCING GENERAL SENTENCING PRINCIPLES

Citation: R v Hijazi [2021] NSWDC 330
Court: District Court of New South Wales
Date: 16 July 2021
Judge: Coleman SC DCJ

Background

The offender was found in possession of three prohibited items at his residential premises following a police search on 1 November 2018. Those items were a Gonher cap gun (which qualifies as a firearm under s 4D(3) of the Firearms Act 1996 (NSW)), a Poelang Guillotine X crossbow, and a Min Sheng flick knife. Each item was found in a different location within the house.

The offender did not hold any firearms licence or permit, and was at all relevant times subject to both a Firearms Prohibition Order (FPO) and a Weapons Prohibition Order (WPO). His offending therefore involved not only unauthorised possession, but also direct breaches of those prohibition orders.

The sentencing proceedings followed a partial trial. The offender had earlier been acquitted by the same judge of three counts on the same indictment. He pleaded guilty to three principal counts and two related offences, while contesting a further four back-up charges that the parties asked the Court to determine under s 167 of the Criminal Procedure Act 1986 (NSW).

  • What sentence was appropriate for three offences of possessing a firearm and prohibited weapons without a licence or permit, each carrying a maximum of 14 years' imprisonment?
  • How should the breach of existing Firearms and Weapons Prohibition Orders be treated as an aggravating factor?
  • Whether the offender should be found guilty or not guilty of the four contested back-up charges (three drug possession counts and one number plate offence) dealt with under s 167 of the Criminal Procedure Act 1986 (NSW).
  • Whether the sentence, if a term of imprisonment, should be served by way of full-time custody or an Intensive Corrections Order (ICO).

Decision

The Court convicted the offender on the three principal counts and two related offences arising from guilty pleas. The contested back-up charges, including three counts of possessing prohibited drugs (testosterone, Nandrolone, and Trenbolone) and a number plate offence, were each resolved in the offender's favour after further oral and documentary evidence was received at the sentencing hearing.

In arriving at the appropriate sentence, the Court treated the active prohibition orders as a significant aggravating factor. The offending occurred while the offender was already on bail or subject to bonds for other offences, and he carried a significant prior criminal history. Those matters weighed heavily in the assessment of objective seriousness and the prospects of rehabilitation.

On the ICO question, the Court noted that community safety is the paramount consideration under s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and that the sentencing court must assess whether an ICO or full-time detention is more likely to address the risk of reoffending. Given the possession of the crossbow, the pattern of breaching prohibition orders, the offending on bail, and the criminal history, the Court was not satisfied that an ICO would adequately address that risk.

The Court sentenced the offender to 17 months' full-time imprisonment with a non-parole period of 13 months, backdated to 29 May 2021 to account for time already served.

Orders Made

  • The offender was found not guilty of the four contested back-up charges dealt with under s 167 of the Criminal Procedure Act 1986 (NSW): three counts of possessing prohibited drugs under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (Sequences 20, 21 and 22), and one count under reg 34(2) of the Road Transport (Vehicle Registration) Regulation 2017 (NSW) (Sequence 24).
  • The offender was convicted of Counts 3, 4 and 5 on the indictment dated 7 May 2021 (Sequences 1, 4 and 11), together with two related offences (Sequences 5 and 23).
  • The offender was sentenced to 17 months' full-time imprisonment with a non-parole period of 13 months.
  • The sentence was backdated to commence from 29 May 2021.
  • The head sentence expires 28 October 2022; the offender is eligible for parole on 28 June 2022.

Key Takeaways

  • A Gonher cap gun, despite being incapable of propelling a projectile by explosive means, falls within the definition of "firearm" under s 4D(3) of the Firearms Act 1996 (NSW) because it substantially imitates a pistol. This was treated as uncontroversial in these proceedings.
  • Breaching an active FPO or WPO at the time of a firearms or weapons offence constitutes a statutory aggravating factor and featured prominently in the Court's assessment of the overall seriousness of the offending.
  • Under s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), community safety is the paramount consideration when the court weighs an ICO against full-time detention. The absence of material demonstrating that an ICO would reduce the risk of reoffending supported a full-time custodial sentence here.
  • Offending committed while already on bail or subject to existing bonds aggravates the overall sentencing outcome, particularly when combined with a significant prior criminal history.
  • The District Court's dual role in these proceedings, as both the trial judge on the acquitted counts and the sentencing judge, meant that evidence from the earlier trial remained available and relevant to the contested s 167 matters determined at sentence.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 4D(3), 7, 7(1), 39(1)(a), 73(1), 74(6), 74A
- Weapons Prohibition Act 1998 (NSW), ss 7(1), 33(1), 34(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2)(d), 22, 25D(2)(c), 44(2), 53A, 66(1)
- Criminal Procedure Act 1986 (NSW), ss 166, 167
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Road Transport (Vehicle Registration) Regulation 2017 (NSW), reg 34(2)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
- Ibbotson (A pseudonym) v R [2020] NSWCCA 92
- Jacob v R [2014] NSWCCA 65
- Mandranis v R [2021] NSWCCA 97
- Mariam v R [2017] NSWCCA 292
- Pereira v DPP (1988) 35 A Crim R 382
- PG v R [2017] NSWCCA 179
- R v AZ [2011] NSWCCA 43
- R v Barnier [2001] NSWCCA 459
- R v Filippetti (1978) 13 A Crim R 335
- R v Hinton (NSWCCA, 19 March 1976, unreported)
- R v Krstic [2005] NSWCCA 391
- R v Paddison [2021] NSWDC 291
- R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170