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2
District Court 9 March 2022

R v Rifai

[2022] NSWDC 74

Firearms & weapons
CRIME T AKING INTO A CCOUNT PRE S ENTENCE C USTODY AND Q UASI CUSTODY

Citation: R v Rifai [2022] NSWDC 74
Court: District Court of New South Wales
Date: 9 March 2022
Judge: Yehia SC DCJ

Background

The offender pleaded guilty to three firearms offences: giving possession of a prohibited firearm to an unauthorised person (Count 1, carrying a maximum of 14 years); possessing a prohibited firearm without a licence or permit (Count 2, maximum 14 years, standard non-parole period of 4 years); and unauthorised possession of a firearm (Count 3, maximum 5 years). Four further offences, including possession of a homemade ballistic vest and cannabis, were taken into account on a Form 1 when sentencing on Count 2.

Count 1 arose from conduct on 30 June 2020, while Counts 2 and 3 related to a separate incident on 15 December 2020. The plea to Count 1 was entered on an ex officio indictment (a charge presented directly by the prosecution, bypassing the committal proceedings), while pleas to Counts 2 and 3 were entered at the Sydney Super Call Over on 16 February 2022, well before the trial date of 4 July 2022.

The central dispute at sentencing was the appropriate guilty plea discount for each count and, subsequently, whether an Intensive Correction Order (ICO) was available given the nature of the offending.

  • Whether a 25% or 10% utilitarian plea discount applied to Count 1, given it was a "new count offence" presented on an ex officio indictment under s 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether a 25% or 10% discount applied to Counts 2 and 3, where the offender had offered conditional pleas in the Local Court that were refused, but subsequently pleaded guilty more than 14 days before trial
  • How to calculate and apply pre-sentence custody and quasi-custody when determining the final sentence
  • Whether an ICO was an appropriate sentencing disposition for these offences

Decision

Count 1 plea discount: The Court applied a 10% discount. Count 1 was a "new count offence" under s 25B of the Crimes (Sentencing Procedure) Act 1999, replacing two more serious supply charges. Under s 25D(4)(a), the discount is capped at 10% where the facts and evidence establishing the new offence are substantially the same as those in the original brief. The Court found this test was satisfied because the essential conduct, handing the two firearms to the co-offender, was always known to the offender from the original brief, even without the brief being formally produced before the Court.

Counts 2 and 3 plea discount: The Court applied a 25% discount to both counts. Although the earlier offer to plead guilty in the Local Court had been conditional on the Crown withdrawing the supply charges, the Crown ultimately did withdraw those charges. The offender then entered immediate pleas to Counts 2 and 3, and pleaded guilty to the ex officio Count 1 at the first available opportunity. Taking that sequence of events together, the Court was satisfied the higher discount was warranted.

Pre-sentence custody: The Court credited 10 months and 17 days of pre-sentence custody pursuant to s 68 of the Crimes (Sentencing Procedure) Act 1999, reducing the aggregate sentence accordingly.

ICO: The Court concluded that an ICO was appropriate. The offender had significant physical health issues, strong family support, and was engaged in legitimate employment through his own business. The Court also took into account the conditions of custody during the COVID-19 pandemic. It was satisfied that community-based supervision, including nine months of electronic monitoring, was the best mechanism to protect community safety and reduce the risk of reoffending.

Orders Made

  • Offender convicted on all three counts
  • Indicative sentence of 2 years for Count 1 (10% plea discount applied)
  • Indicative sentence of 2 years and 2 months for Count 2, with a non-parole period of 18 months (25% discount applied, Form 1 offences taken into account)
  • Indicative sentence of 12 months for Count 3 (25% discount applied)
  • Aggregate sentence of 2 years, 1 month and 13 days, after crediting 10 months and 17 days of pre-sentence custody
  • Sentence served by way of an Intensive Correction Order, commencing 9 March 2022
  • Standard ICO conditions imposed (no offending; appear before court if called; submit to Community Corrections supervision)
  • Additional conditions: attend GP within 7 days for referral to psychologist or psychiatrist; comply with treating clinician's directions; subject to electronic monitoring for the first 9 months
  • Offender directed to report to Bankstown Community Corrections within 7 days

Key Takeaways

  • Under s 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999, a plea discount for a "new count offence" on an ex officio indictment is capped at 10% where the facts and evidence establishing that offence are substantially the same as those in the original brief, even if the formal brief is not produced before the sentencing court.
  • A conditional offer to plead guilty in the Local Court does not automatically preclude a higher discount at a later stage; where the condition was effectively satisfied by the Crown's subsequent withdrawal of more serious charges, the sentencing court may still apply a 25% discount.
  • The sentencing court is not required to receive the brief of evidence in evidence to determine whether the s 25D(4)(a) test is satisfied, provided the relevant facts are sufficiently apparent from the circumstances of the proceedings.
  • An ICO remains available for firearms offences of this kind; the availability of the order turns on the particular facts, including the offender's health, rehabilitation prospects, and risk to community safety, rather than the category of offence alone.
  • Pandemic-related conditions of custody, and the particular stress they place on offenders with physical health vulnerabilities, are a recognised mitigating factor under NSW sentencing principles, as affirmed in Taha v R [2022] NSWCCA 46.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 25B, 25D(2)(b), 25D(3)(b), 25D(4)(a), 25E(2), 66, 68, 71(1)
- Firearms Act 1996 (NSW): ss 7(1), 7A(1), 50B(1), 51(1A)(a)

Cases
- Black v R [2022] NSWCCA 17
- Cao v R [2013] NSWCCA 321
- Chenhall v R [2021] VSA 175
- Fangaloka [2019] NSWCCA 173
- Hoskins v R [2016] NSWCCA 157
- Mandranis v R (2021) 289 A Crim R 260
- McKinnon v R [2020] NSWCCA 106
- Mourtada v R [2021] NSWCCA 21
- Pulitano v R [2010] NSWCCA 45
- R v Blackman & Walters [2001] NSWCCA 121
- R v Carroll; Carroll v The Queen 77 NSWLR 45
- R v Doudar [2020] NSWSC 1262
- R v Farrell [2015] NSWCCA 68
- R v French [2021] NSWSC 1531
- R v Najem [2008] NSWCCA 32
- R v Newman (2004) 145 A Crim R 361
- R v Pogson and Ors [2012] NSWCCA 225
- R v Pullen [2018] NSWCCA 264
- R v Quinlin [2021] NSWCCA 284
- Taha v R [2022] N