AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 19 May 2022

R v Sabbouh

[2022] NSWDC 281

Firearms & weapons

Citation: R v Sabbouh [2022] NSWDC 281
Court: District Court of New South Wales
Date: 19 May 2022
Judge: Bennett SC DCJ

Background

On 9 August 2020, one brother discharged multiple shots from a firearm on a suburban street in Chester Hill, NSW, near the home of his brother. The shooter was subject to a Firearms Prohibition Order at the time and was separately charged with acquiring a firearm in contravention of that order and firing a firearm with disregard for another person's safety. Those proceedings were adjourned for further hearing.

This decision concerned the sentencing of the second brother, who faced two charges arising from the same events. The first charge was unlawfully acquiring a firearm part without authority (on 10 August 2020). The second was being an accessory after the fact to his brother's offence of firing a firearm with disregard for the safety of two people, by assisting the shooter knowing he had committed a serious indictable offence.

Both brothers appeared for sentencing at the same time, though the court noted the significant disparity between their respective situations. The parties conceded that parity between the two sentences was not a matter of significant concern given those differences.

  • Whether the offender's bail conditions, imposed from August 2020 to November 2021, were sufficiently restrictive to constitute "quasi-custody" and thereby warrant a reduction in sentence or an earlier commencement date
  • What aggregate sentence was appropriate for the two offences, taking into account the guilty pleas, pre-sentence custody, and the constrained period on bail
  • Whether the sentence should be served by way of an Intensive Corrections Order (ICO) rather than full-time custody, having regard to community safety as the paramount consideration

Decision

Plea discount: The offender pleaded guilty at committal proceedings in the Local Court and maintained those pleas in the District Court. The court applied a 25% discount to each sentence under Part 3 Division 1A of the Crimes (Sentencing Procedure) Act 1999, reflecting the utility of early guilty pleas.

Pre-sentence custody and quasi-custody: The offender was held in custody from 10 August 2020 until bail was granted on 29 October 2020, a period of approximately two months and 20 days. He was then subject to highly restrictive bail conditions, including a nightly curfew, daily police reporting, single-phone monitoring with police access, non-association with his co-accused brother, and restrictions on travel. The court accepted that these conditions imposed significant constraint on the offender's liberty for just over a year. However, it declined to treat them as reaching the level of "quasi-custody" that would require backdating or reducing the sentence. The court distinguished the offender's circumstances from those in R v Quinlin [2021] NSWCCA 284, where the sentencing judge's decision to allow for quasi-custody was not disturbed on appeal. Rather than quantifying the period as notional incarceration, the court brought the impact of the bail conditions into account as part of the overall synthesis of sentencing factors.

Form of sentence: Although the court was satisfied that no penalty other than imprisonment was appropriate, it accepted that the sentence could be served by way of an ICO. Under section 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when determining whether an ICO is suitable. The court was satisfied, on the material before it, that an ICO was more likely to address any risk of reoffending than full-time custody. A Community Corrections Order, which was urged by the defence, was rejected as insufficient.

Accountability and denunciation: The court emphasised that the offender had to be held accountable for assisting his brother to escape consequences. It noted the need to denounce the conduct and to recognise the harm done to the victim and the community. These considerations weighed against a more lenient non-custodial option.

Orders Made

  • The offender was convicted of both offences to which he pleaded guilty.
  • For the offence of acquiring a firearm part without authority (sequence 3): sentence of 1 year and 3 months (after a 25% plea discount).
  • For the offence of accessory after the fact (sequence 4): sentence of 2 years and 3 months (after a 25% plea discount).
  • An aggregate sentence of 2 years and 4 months was imposed, commencing 19 May 2022 and expiring 18 September 2024.
  • The aggregate sentence is to be served by way of an Intensive Corrections Order under section 7 of the Crimes (Sentencing Procedure) Act 1999.
  • Standard conditions apply: the offender must not commit any offence and must submit to supervision.
  • The offender is to perform 50 hours of community service under section 73A(2)(d).
  • The offender was directed to contact the Community Corrections office at Bankstown to make arrangements.

Key Takeaways

  • Restrictive bail conditions may be brought into account as part of the overall sentencing synthesis without being formally categorised as "quasi-custody": the District Court here treated the constraints as a form of punishment already suffered, rather than backdating or reducing the sentence by a specific period.
  • The threshold for quasi-custody treatment is a question of fact, and the onus rests on the offender to establish on the balance of probabilities that bail conditions were sufficiently harsh or restrictive to warrant that classification.
  • Where bail conditions fall short of the quasi-custody threshold established in cases such as R v Quinlin, a sentencing court retains discretion to acknowledge the impact of those conditions in a less formal way within the broader sentencing exercise.
  • An Intensive Corrections Order remains available as a form of imprisonment in serious firearms matters, provided the court is satisfied on available material that community safety is addressed and the order is more likely to reduce reoffending than full-time custody.
  • Under the statutory plea discount framework in the Crimes (Sentencing Procedure) Act 1999, a 25% discount applied where the offender entered guilty pleas at committal proceedings and maintained them in the District Court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93G(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 25D(2)(a), 66, 73, 73A(2)(d), Part 3 Div 1A, Part 4 Div 1A
- Firearms Act 1996 (NSW), ss 50AA(1), 74(1)

Cases:
- Bonett v R [2013] NSWCCA 234
- Imbornone v R [2017] NSWCCA 144
- Muldrock v The Queen [2011] HCA 39
- Munda v State of Western Australia [2013] HCA 38
- R v Cartwright (1989) 17 NSWLR 243
- R v Quinlin [2021] NSWCCA 284
- R v Qutami [2001] NSWCCA 353
- R v Serratore [2000] NSWSC 696
- R v Ward [2004] NSWSC 420
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen [1988] HCA 14