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District Court 5 August 2022

R v Sabbouh

[2022] NSWDC 497

Assault & violenceFirearms & weapons

Citation: R v Sabbouh [2022] NSWDC 497
Court: District Court of New South Wales
Date: 5 August 2022
Judge: Bennett SC DCJ

Background

Two brothers, referred to here as the elder brother (Nadim) and the younger brother (Nashat), appeared for sentencing arising from events on the night of 9 August 2020 in Chester Hill, a suburban area of western Sydney. The elder brother, who was subject to a firearms prohibition order, discharged a semi-automatic pistol six times at a vehicle driven by the victim on a public street, with three projectiles striking the vehicle.

The shooting arose from a dispute about a road collision. The court found that the elder brother had attended to dissuade the victim and his nephew from reporting the collision to police, and that he discharged the weapon in response to those circumstances rather than out of any genuine fear. The younger brother assisted his sibling after the fact and separately acquired a firearm part without authority.

The proceedings against the elder brother were significantly delayed by challenges to a Community Corrections report, the illness of defence counsel mid-hearing, and the elder brother testing positive for COVID-19 on a scheduled sentencing date.

  • What sentences were appropriate for the elder brother's offences of acquiring a firearm in contravention of a firearms prohibition order and firing a firearm with disregard for the safety of another person?
  • What discount applied for early guilty pleas entered at the committal stage?
  • How should the sentence commence, given complex pre-sentence custody spanning multiple sets of offending, an earlier intensive corrections order, its revocation and subsequent imprisonment, and a pending unrelated prosecution?
  • What weight should be given to unsworn, untested representations in an affidavit and to explanations attributed to the offender by a psychologist but not replicated in that affidavit?
  • Whether parity between the two brothers' sentences was a significant concern.

Decision

The court rejected the elder brother's claim that he fired the weapon out of fear when the victim drove away. The court found no evidential connection between the victim and any events referenced in the elder brother's affidavit, and rejected the psychological explanation for the shooting accordingly. The court accepted that the discharge of the weapon was directed at a departing vehicle along a roadway, which moderated the risk to bystanders to some degree, but the objective seriousness of the offending remained significant: the weapon was a loaded 9mm semi-automatic pistol, fired six times in a suburban street.

The court assessed the acquire-firearm offence as falling within the mid-range of objective seriousness. The firearms prohibition order had been in force for only three months before the offending, which aggravated that charge. The court identified distinct and separate criminality warranting some accumulation of sentences, while also recognising appropriate concurrence given the overlap between possessing and then discharging the same weapon.

On the question of pre-sentence custody, the court exercised its discretion to backdate the aggregate sentence to 16 March 2021 to address the principle of totality. The court followed the approach in Callahan v R [2006] NSWCCA 58, treating custody across multiple periods as warranting a commencement date that fairly reflected the totality of time spent in custody referable to the present matters.

The court noted that parity between the brothers' outcomes was not a significant concern, as the parties in both proceedings accepted that the differences in their respective cases were substantial. The elder brother had faced far more serious charges, was subject to a firearms prohibition order, and had a more substantial criminal history including a prior revoked intensive corrections order.

Orders Made

  • The elder brother convicted of acquiring a firearm in contravention of a firearms prohibition order (s 74(1) Firearms Act 1996) and firing a firearm with disregard for safety (s 93G(1)(c) Crimes Act 1900).
  • Individual sentences identified: 3 years for the acquire-firearm offence and 4 years and 6 months for the discharge offence (each reduced by 25% for the early guilty plea).
  • An aggregate sentence of 5 years and 6 months imposed, with a non-parole period of 3 years and 3 months.
  • The aggregate sentence taken to have commenced on 16 March 2021.
  • Non-parole period expires 15 June 2024; head sentence expires 15 September 2026.
  • The younger brother had previously been sentenced on 19 May 2022 to an aggregate term of 2 years and 4 months, served by way of an intensive corrections order, with 50 hours of community service.

Key Takeaways

  • Where an offender declines to be cross-examined on an affidavit filed in sentencing proceedings, the court may afford reduced weight to unsworn representations, particularly those relied upon to explain or mitigate the offending, consistent with the approach in R v Qutami and Imbornone v R.
  • Explanations attributed to an offender in a psychologist's report but not replicated in the offender's own affidavit may be rejected, especially where there is no independent evidentiary foundation for the claimed state of mind.
  • A sentencing court may backdate an aggregate sentence to an earlier date of custody to address the principle of totality, even where that custody arose across multiple sets of distinct offending, provided the discretion is exercised consistently with authority such as Callahan v R.
  • Under s 74(1) of the Firearms Act 1996, the existence of a recent firearms prohibition order is a factor that elevates the objective seriousness of an acquire-firearm offence.
  • Parity between co-offenders is not automatically a significant consideration where the nature of the respective charges, the roles played, and the criminal histories involved differ substantially.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93G(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 7, 25D(2)(a), 53A, 73, 73A(2)(d)
- Firearms Act 1996 (NSW), ss 50A(1), 74(1)

Cases:
- Ah-Keni v R [2020] NSWCCA 122
- Callahan v R [2006] NSWCCA 58
- Imbornone v R [2017] NSWCCA 144
- R v Haidar [2007] NSWCCA 95
- R v Olbrich (1999) 199 CLR 270
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247