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District Court 12 September 2025

R v ElKerdi; R v Scicluna

[2025] NSWDC 513

Assault & violenceFirearms & weapons
CRIME SENTENCE AFTER TRIAL BOTH CO OFFENDERS: F IRE FIREARM AT DWELLING HOUSE WITH DISREGARD FOR SAFETY “A DANGEROUS ANTISOCIAL ACT”

Citation: R v ElKerdi; R v Scicluna [2025] NSWDC 513
Court: District Court of New South Wales
Date: 12 September 2025
Judge: King SC DCJ

Background

Two offenders, who had known each other for approximately ten years, were sentenced following jury verdicts of guilty handed down on 17 March 2025. The offences arose from events on 27 May 2023, when both men travelled from the Campbelltown area to South Coogee carrying a military-style Norinco SKS self-loading rifle. Their destination was a specific unit at 25 Gregory Street, South Coogee.

Between six and seven shots were fired into the unit from the street. The resident was home and asleep in bed at the time. Police subsequently recovered the rifle, two magazines, and approximately 400 unused cartridges from a linen cupboard at a Campbelltown premises. DNA testing linked one offender directly to the rifle, and ballistics confirmed the weapon as the source of the cartridge cases found outside the unit.

The two offenders faced different charge profiles. Both were convicted of firing a firearm at a dwelling house with reckless disregard for the safety of another person under s 93GA(1) of the Crimes Act 1900. One offender (Scicluna) faced three additional charges: possession of an unauthorised prohibited firearm, possessing ammunition while subject to a firearms prohibition order, and failing to disclose the identity of the driver or passenger of his vehicle when required to do so by police.

  • The objective seriousness of the s 93GA(1) offence and the appropriate weight to give the standard non-parole period of five years
  • How to apportion culpability between two offenders acting in a joint criminal enterprise where it could not be determined which of them actually fired the shots
  • The weight of aggravating circumstances for each offender, including prior criminal history, commission of offences while on conditional liberty, and the presence of a firearms prohibition order
  • Whether special circumstances existed to justify a variation from the standard ratio between the non-parole period and the total sentence
  • The appropriate aggregate sentence for Scicluna given four separate offences, and how to account for time already served in custody

Decision

His Honour characterised the s 93GA(1) offence as a "dangerous antisocial act" of considerable objective seriousness. The court found beyond reasonable doubt that both offenders attended the Gregory Street unit as part of a joint criminal enterprise, intending to fire into it, even though the evidence could not establish which individual actually discharged the rifle. The pre-planning was evident from approximately 20 phone contacts between the two men in the days before the shooting and their deliberate reconnaissance of the area.

In sentencing Elkerdi on the single count, the court identified his criminal history and, critically, the fact that he was serving a Community Corrections Order for possession or use of a weapon without a permit at the time of the offending. That prior order was treated as a statutory aggravating feature. His Honour noted some subjective matters in Elkerdi's favour but did not find special circumstances warranting a departure from the standard non-parole period ratio. The court imposed a sentence of eight years with a five-year non-parole period, backdated by 18 days to account for pre-sentence custody.

Scicluna's sentence reflected a significantly more serious overall criminality. His aggravating features included an extensive prior criminal history, the fact that he was on parole at the time of the offences, and that he was subject to a firearms prohibition order that expressly prohibited him from possessing firearms or ammunition. The court also noted that he gave evidence at trial which His Honour described as "a litany of lies." Scicluna's false testimony, while not directly used as an aggravating factor in sentencing, informed the court's overall assessment of his character and prospects of rehabilitation. No special circumstances were found in his case.

The court proceeded by way of an aggregate sentence for Scicluna across all four matters. The indicative sentences were: eight years (non-parole six years) for the dwelling shooting; four years (non-parole three years) for possessing the prohibited firearm; two years for possessing ammunition subject to a prohibition order; and six months for failing to identify the driver. The aggregate sentence, with a two-year backdate to account for all prior custody and loss of potential parole, was set at ten years with a non-parole period of seven years and six months.

Orders Made

Elkerdi (one count: s 93GA(1) Crimes Act 1900):
- Sentenced to 8 years imprisonment with a 5-year non-parole period
- Sentence backdated 18 days; commences 27 February 2025
- First eligible for parole: 26 February 2030
- Balance of term expires: 26 February 2033

Scicluna (four counts, aggregate sentence):
- Aggregate sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months
- Indicative sentences: 8 years (NPP 6 years) for s 93GA(1); 4 years (NPP 3 years) for possessing unauthorised prohibited firearm; 2 years for possessing ammunition subject to prohibition order; 6 months for failing to identify driver
- Sentence backdated 2 years; commences 18 March 2023
- First eligible for parole: 17 September 2030
- Balance of term expires: 17 March 2033

Key Takeaways

  • Where two offenders act in a joint criminal enterprise to fire a weapon at an occupied dwelling, each can be held equally criminally responsible for the principal offence even where the evidence cannot establish which individual physically discharged the firearm.
  • Offending while on conditional liberty, whether a Community Corrections Order or parole, constitutes a statutory aggravating factor that courts will weigh meaningfully in sentencing, particularly where the prior offending is of a related kind.
  • Being subject to a firearms prohibition order at the time of firearms and ammunition offences significantly elevates the seriousness of those offences and attracts substantial indicative sentences, as demonstrated by the indicative four-year term for possessing a prohibited firearm.
  • Under s 93GA(1) of the Crimes Act 1900, the District Court treated the five-year standard non-parole period as a meaningful benchmark, declining to find special circumstances in either case and applying or exceeding it based on the objective gravity of the conduct.
  • When sentencing an offender for multiple offences by way of an aggregate sentence, the court is required to state indicative sentences for each individual matter, allowing the aggregate to be tested against the totality principle and the time already spent in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93GA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW), ss 7(1), 74(3)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 14, 17(1)

Cases:
- Chandab v The Queen [2021] NSWCCA 186
- Powell v The Queen [2014] NSWCCA 69
- Rickaby v Regina [2007] NSWCCA 288