New South Wales Court of Criminal Appeal CITATION : Regina v Goktas [2004] NSWCCA 296 HEARING DATE(S) : Wednesday 25 August 2004 JUDGMENT DATE : 25 August 2004 JUDGMENT OF : Grove J at 1; Sully J at 30; Kirby J at 31 DECISION : APPEAL ALLOWED CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - PROHIBITED FIREARM - JOINT POSSESSION FOR PERIOD WITH ANOTHER OFFENDER - THAT OTHER OFFENDER BUT NOT THE APPLICANT INVOLVED IN SALE - WHETHER SENTENCE EXCESSIVE LEGISLATION CITED : Firearms Act 1996 PARTIES : Regina v Harkan Goktas FILE NUMBER(S) : CCA 2004/1910 (formerly 60175/04) COUNSEL : B. Knox SC (Crown) I. McClintock (Applicant) SOLICITORS : S. Kavanagh (Crown) Macquarie Lawyers (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0733 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1910 (60175/04) GROVE J SULLY J KIRBY J Wednesday 25 August 2004 REGINA v HARKAN GOKTAS Judgment 1 GROVE J: The court is in a position to give its judgments and we will proceed to do so. 2 This is an application for leave to appeal against severity of sentence imposed by Hock DCJ on 15 October 2003 in the Sydney District Court. The applicant pleaded guilty to one count of possession of a prohibited firearm for which the maximum prescribed penalty is imprisonment for fourteen years. Despite that prescription, such an offence is capable of being dealt with in the Local Court where a penalty ceiling (subject to exception) of two years' imprisonment would apply. The offence may be prosecuted upon indictment upon election by the Director of Public Prosecutions. That happened in this case. 3 The applicant had been in custody awaiting sentence since 7 May 2003 and her Honour imposed a sentence of imprisonment for four years with a non-parole period of two years and six months both commencing on that date. Thus his first date of eligibility for parole became 6 November 2005. 4 The prosecution evidence was presented by way of an agreed statement of facts together with transcripts of three intercepted telephone calls. The statement of facts revealed that during 2002-2003 a combined operation of the Australian Crime Commission and the New South Wales Police Force investigated the supply of illegal firearms in this State. Consequently an undercover operative, whom I will refer to as "Constable Doe" negotiated the purchase of two Cobray sub-machine guns from a man named Kucuk. On 23 January 2003, while these two men were at Kucuk's residence, one such weapon was delivered there by a third man named Elrich. After that delivery Elrich left the premises. The participation of the applicant was detailed in the statement of facts as follows: "A short time later Elrich returned to Kucuk's residence accompanied by Harkan Goktas. Goktas and Elrich arrived in a silver coloured Daewoo motorcar, New South Wales registration AND 46R registered to Goktas's mother. A black and orange coloured toolbox was removed from the car and taken into Kucuk's house. Following introductions with the operative, the toolbox was opened and a 'Cobray' sub-machine gun was removed. This weapon was given to the operative. Goktas told the operative he could supply multiple ammunition magazines for the weapon if the operative desired." 5 The applicant gave evidence in the sentencing proceedings. In a written submission to this court the Crown Prosecutor stated that there was a dispute on the facts as to whether the applicant had carried the toolbox containing the weapon into the house. There is no such allegation in the statement of facts. Nor was such a proposition advanced to the applicant when he was cross examined. The written submissions refer to such an allegation being made in separate proceedings against Elrich but there is neither evidence nor suggestion in the present case that the applicant had handled the box containing the weapon. Nor is there any suggestion that the applicant was involved in the delivery of the first weapon. 6 The Cobray sub-machine gun is a small, readily concealable weapon with a magazine capacity of thirty rounds which can be discharged in less than two seconds. It is a prohibited firearm in this State. Constable Doe paid $35,000 for the two weapons. The applicant was not charged with being involved in the sale of either weapon (in distinction from Elrich and Kucuk who have been so charged), and it is expressly submitted that "the Crown did not, and does not, rely on the fact of the sale as constituting an aggravating factor" (in the case of the applicant). 7 The applicant gave evidence that he had known Elrich since they had been in kindergarten. On the day in question he received a telephone call from him saying that his car had broken down and that he "needed a ride". The applicant brought the car to Elrich's house and Elrich loaded the toolbox into it and drove to Kucuk's house. The applicant said that he permitted Elrich to drive his car because he complained about his driving. It might be observed that the applicant was charged on 10 December 2002 with two counts of driving whilst suspended. On 3 February 2003 he received fines for those offences and was disqualified for a total of three years. 8 The applicant testified that the toolbox was not open and that he did not know what was inside it when Elrich brought it to the vehicle. He was not cross-examined about these assertions. Once inside the house, however, the toolbox was opened and the weapon produced and he saw it taken out and handed out to Constable Doe. He testified that he heard some discussion about that and other weapons and he continued: "Then I jumped aboard, jumped on the bandwagon and said 'Yeah, I could get you magazines if you need something'." 9 The applicant described himself as "big noting" and asserted that he could not in fact fulfil any such request. Again, he was not cross-examined about these assertions. The Crown presented no elaboration of what I have recorded being said to Constable Doe. 10 The applicant was not a participant in any of the telephone conversations which were intercepted. The intercepted service was a mobile phone operated by Kucuk. On two of the occasions Kucuk was speaking to Elrich and the conversation supports the proposition that Elrich was waiting for someone to give him a lift to Kucuk's house. This is consistent with the evidence of the applicant. The third conversation was between Kucuk and Constable Doe. 11 The proceedings including the evidence of the applicant were heard on 10 October 2003 and the applicant was remanded for sentence to 15 October. On that occasion the learned presiding judge pointed out that she had overlooked formally asking the applicant whether he adhered to the plea of guilty which he had tendered in the Local Court, but she raised with counsel a proposition that, if she accepted the evidence given on oath, the applicant would not be in possession of the weapon. Counsel responded that the basis of making the plea was: "His oral participation in the sale which inferred joint possession with Bassam Elrich in order for the sale to proceed." 12 Her Honour indicated that it was her view that the applicant was in joint possession of the weapon from the time Mr Elrich picked him up. She explained that she did not believe that he did not know that the gun was in the toolbox and she gave the applicant the opportunity to consider his position. The applicant then adhered to his plea as he does before this court. 13 Her Honour dealt with the relevant circumstances in these terms in her remarks on sentence: "The offender gave evidence during which he denied that he knew of the presence of the gun until he was inside the house, and that he then big noted himself by saying he could get ammunition for it. I do not accept his explanation in the light of his plea of guilty. I am satisfied that the offender was in possession of the weapon with Elrich from the time he picked the latter up. He must have known that the gun was to be supplied to the undercover officer as evidenced by his offering to supply ammunition for the weapon. He was prepared to involve himself in possession of a weapon for which there is absolutely no legitimate purpose. The possession of such a weapon, even for the short period of time encompassed by this offence, represents criminal conduct of a very high order." 14 I note in passing that the statement of facts refers to ammunition magazines, as distinct from supplying ammunition as her Honour found. 15 The evidence was that the journey from Elrich's house to Kucuk's house took only a few minutes. Her Honour made no finding as to whether the applicant could have in fact fulfilled any offer to supply ammunition (or magazines) for the weapon, and it is not clear to me why it should follow that an offer to supply ammunition (or magazines) made when the weapon was produced in Kucuk's house demonstrates that the applicant must have known that there was a weapon in the toolbox earlier when Elrich brought it into the vehicle. 16 At the time when the applicant appeared for sentence neither Elrich nor Kucuk had been dealt with but, as I have mentioned, they were both charged with offences including participation in the sale of weapons. Elrich has since been dealt with on two counts of knowingly taking part in the sale of prohibited firearms, for which maximum penalty of twenty years' imprisonment is prescribed. He was sentenced to a total of six years' imprisonment with a non-parole period of three and a half years. Elrich had a prior conviction for carrying an unlicensed firearm and for using a firearm with disregard for public safety. He also had convictions for robbery and assault. 17 The applicant's evidence was that he had substantially engaged himself in conversation about boxing with Constable Doe whilst at Kucuk's house. The applicant is a boxer who has appeared in bouts broadcast on a cable television network. He had recently fought such a bout at the time. It was in the course of this conversation that he conceded he made the "big noting" statement about capacity to supply ammunition magazines. 18 Her Honour noted that the applicant had been born on 5 July 1972 and that his record could effectively be compartmentalised. He was dealt with for offences in the Children's Court and thereafter between 1991 and 1993 he was convicted of a number of assaults for some of which he served imprisonment. In 1993 his convictions ceased. There was no further conviction except the driving matters which I have mentioned. The period of ten years without offending would seem to coincide with a marriage which ended in divorce. At the time he appeared for sentence he had commenced a new relationship and there was a child due to be born the month after he appeared for sentence. 19 Senior counsel for the applicant has argued a number of grounds. Having regard to the conclusion which I have reached, it will suffice to make only brief reference to some of them. 20 On behalf of the applicant it was submitted that the sentencing process miscarried because a Probation and Parole report tendered to her Honour had recorded that the applicant was ineligible for periodic detention but this would seem to be inaccurate. In my view this is an irrelevant matter as some full time custodial sentence was inevitable. 21 It was further submitted that there was no proper medical or other evidence before the sentencing judge concerning the applicant's mental condition. The Probation and Parole report made reference to depression suffered by the applicant in the past and some treatment that he had had years ago in a psychiatric centre. This argument is not now pressed except in the sense a report of Dr Westmore has been tendered to be taken into account in the event the court comes to the question of re-sentence. The report indicates that any condition which the applicant has is now in remission and his prospects of rehabilitation generally look promising. 22 I would reject the submission that there was error in her Honour's failing to approach the matter as if the maximum sentence in the Local Court was notionally applicable. An appropriate sentence in this case, whether below or over that notional maximum, will be determined by assessment in accordance with appropriate principle, not by reference to that maximum. 23 I am, however, of the view that the evidence did not support her Honour's finding that the applicant was in possession of the weapon before the toolbox was opened inside Kucuk's house. That was when the evidence shows he acquired what would be the necessary knowledge. I have already made reference to the difficulty of reasoning to a conclusion of earlier possession from the statement at a later time that ammunition magazines could be supplied in the future. It was specifically put to her Honour that there was no evidence to support the view that the applicant knew that there was a gun until he got inside the house and, in an exchange, her Honour had indicated that she "understood" that. However, she said that she disbelieved the evidence that "when he suddenly sees the gun he then offers to provide ammunition" and counsel indicated that he could not "argue with you". I have already cited the relevant passage of her Honour's remarks. 24 On the facts asserted in the statement tendered by the Crown, the applicant was in joint possession of the weapon, without being involved in the sale, for a period which extended only for a matter of minutes. Constable Doe had a taxi waiting and left the premises with the weapons shortly after taking delivery. Even if one were to hypothesise the joint possession commencing at Elrich's house, as her Honour did, it adds little to the span of time. 25 The statistics available from the Judicial Commission show that in respect of offenders dealt with other than in the Local Court forty-eight per cent were sentenced to imprisonment, sixty-three per cent received a sentence of two years or less, thirteen per cent received a sentence of more than three years and the longest non-parole period was eighteen months. The survey involved twenty-three offenders. 26 Paying particular regard to the very short period of the applicant's possession, its joint nature, the circumstances of his participation and guided by those available statistics, I have reached the conclusion that this sentence is excessive to the level that this court should intervene. 27 The sentence imposed at first instance had been reached after her Honour applied a "discount" of twenty-five per cent to reflect the applicant's plea of guilty which the Crown expressly conceded had been offered at the earliest opportunity. Her Honour assigned this to the "utilitarian" value of the plea and added that there was "little other evidence of remorse". Her language suggests that she may have injected consideration of the latter into the former but as, in my opinion, there should be re-sentence, the matter need not be explored. 28 The applicant has been in custody for over fifteen months to the present time. In my view a sentence of two years' imprisonment should be substituted and, for reasons coordinate with those found by her Honour, I would vary the proportion specified in the statute in the applicant's favour when setting a non-parole period. Having regard to the time served, I would regard the point of release on parole to have been effectively reached. Some evidence has been tendered today which, as I have said, in addition to the evidence of Dr Westmore, gives promise of progress towards rehabilitation. 29 I would propose the following orders: (1) Application for leave to appeal against sentence granted. (2) Appeal allowed. (3) Sentence imposed in the District Court quashed and in lieu thereof the applicant sentenced to two years' imprisonment to date from 7 May 2003 with a non-parole period of fifteen months twenty days commencing on 7 May 2003 and expiring on 26 August 2004. (4) Order the applicant to be released to parole on Thursday 26 August 2004. 30 SULLY J: I agree with Mr Justice Grove. 31 KIRBY J: Whilst I agree with the order proposed, I differ to some degree in my analysis of the facts. 32 Mr Justice Grove has set out the agreed statement of facts which was tendered by the Crown. That statement of facts was to be understood in the context of the definition of "possession" of a firearm, and proof of possession, which appears in s 4A of the Firearms Act 1996. 33 In the proceedings on sentence the applicant gave evidence. He described the arrangement he made with Bassam Elrich. He suggested that Elrich was the source of the weapon. According to his testimony Elrich carried the toolbox (which he later learned contained the weapon) to the vehicle. He said that he had no knowledge of the presence of that weapon in the toolbox until he arrived at the premises and the toolbox was opened. 34 Her Honour rejected that account, at least so far as the time at which he became aware of the weapon. She did so even though it had not been the subject of cross-examination by the Crown. It was open for her to do so. Having rejected that version, it is not, in my view, appropriate to limit the time span of Mr Goktas's possession. Her Honour simply knew, in terms of his criminality, that he had pleaded guilty to the offence. He had acknowledged being in possession of the prohibited weapon in the circumstances described in the statement of facts. His criminality was to be judged accordingly, neither enlarged by adverse assumptions as to his role, or the length of time he was in possession before the events described in the statement of facts, nor confined by favourable assumptions which had not been established to her Honour's satisfaction on the balance of probabilities. 35 With that qualification, I agree with the orders proposed. 36 GROVE J: The orders, therefore, will be as I have proposed. ********** Last Modified: 09/02/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.