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Court of Criminal Appeal 20 May 2026

El Samman v R

[2026] NSWCCA 60

Firearms & weapons
SENTENCED

Citation: El Samman v R [2026] NSWCCA 60
Court: Court of Criminal Appeal (NSW)
Date: 20 May 2026
Judge(s): N Adams CJ at CL; Hamill J; Muston J

Background

The applicant pleaded guilty to seven firearms and weapons-related offences, with a further nine offences taken into account on two Form 1 documents. The offences arose from a controlled police operation between February and May 2021 in which the applicant supplied firearms, ammunition, and explosives to undercover operatives on five occasions. He was sentenced in the District Court to an aggregate term of 14 years' imprisonment with a non-parole period of 9 years.

The applicant filed a notice of intention to appeal shortly after sentencing but did not file the formal notice of appeal until approximately two years later, in October 2025. The delay was partially attributed to difficulties in obtaining legal aid funding. The applicant sought leave to appeal on three grounds: a material error of fact regarding the number of firearms supplied, error in the treatment of his lack of prior record and good character, and that the sentence was manifestly excessive.

  • Whether the sentencing judge made a material error of fact by misstating the number of firearms the subject of the principal supply count (count 2), thereby affecting the assessment of objective seriousness.
  • Whether the sentencing judge erred in failing to properly consider the applicant's lack of prior criminal record (s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999) and his claim of good character (s 21A(3)(f)) as mitigating factors.
  • Whether the aggregate sentence imposed was manifestly excessive.

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge had merely mistaken the dates on which particular firearms were supplied when summarising the Agreed Facts. Her Honour did not mistake the total number of firearms the subject of count 2. Because the overall quantity of firearms was correctly understood, there was no material error of fact and no miscarriage of the sentencing discretion.

On the second ground, the Court held that the sentencing judge's treatment of the applicant's absence of prior convictions under s 21A(3)(e) was adequate. Her Honour noted the applicant had no criminal history, and when the sentencing remarks were read as a whole, nothing further was required. However, the sentencing judge erred by failing to make any finding on the separate and contested question of whether the applicant was of good character under s 21A(3)(f). The sentencing Crown had accepted the absence of prior convictions as mitigating but contested the claim of good character. Because the issue was in contention between the parties, the sentencing judge was required to resolve it by making a finding one way or the other. The failure to do so constituted error.

Having found error on the second ground, the Court re-sentenced the applicant. The Court accepted that the applicant's sentence should be mitigated on account of previous good character, but only to a limited extent. The Court noted that the applicant had good prospects of rehabilitation based on recent evidence of his progress in custody. However, the offending was very serious in nature, the applicant had given an "inherently implausible" account of his offending, and his remorse was "extremely qualified." Given these considerations, the Court proceeded to re-sentence accordingly. The third ground (manifest excess) was not separately determined, as the re-sentencing addressed the applicant's complaints.

Orders Made

  • Leave to appeal was granted.
  • The appeal was allowed on the second ground.
  • The applicant was re-sentenced by the Court of Criminal Appeal.

Key Takeaways

  • A sentencing judge's misstatement of dates on which offending occurred, without a misstatement of the total quantity of offending conduct, did not amount to a material error of fact capable of affecting the sentencing discretion.
  • Under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, absence of prior convictions (s 21A(3)(e)) and good character (s 21A(3)(f)) are distinct mitigating factors. A sentencing court may note one without being taken to have dealt with the other.
  • Where a mitigating factor is raised by one party and contested by the other, the sentencing judge is required to make a finding resolving that dispute. Silence on the contested issue constitutes appellate error, even where it might have been open to decline to make the finding.
  • Previous good character, when established, may mitigate sentence only to a limited extent in cases involving very serious offending, an implausible account of the circumstances, and qualified remorse.
  • In re-sentencing, the Court of Criminal Appeal gave weight to evidence of the applicant's progress in custody as relevant to rehabilitation prospects.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 25D(2), 33, 44(2B), 53A(2)
- Crimes Act 1900 (NSW), ss 93FA(2), 193C(2)
- Firearms Act 1996 (NSW), ss 7(1), 51B(1), 65
- Weapons Prohibition Act 1998 (NSW), ss 7(1), 23A(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(2)(a)

Cases:
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- GE v R [2025] NSWCCA 168
- Warton v R [2025] NSWCCA 5
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hancock v R [2025] NSWCCA 213
- Sampson v R [2025] NSWCCA 25