Rami Mohamad v Regina [2005] NSWCCA 406

New South Wales Court of Criminal Appeal

CITATION: Rami Mohamad v Regina [2005] NSWCCA 406

HEARING DATE(S): 23 August 2005

JUDGMENT DATE: 28 November 2005

JUDGMENT OF: Sully J at 1; Hidden J at 2; Hall J at 24

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW: - application for leave to appeal against sentence - attempt to commit offence under s51A(2) of the Firearms Act - challenge to findings of fact by sentencing judge - one finding contrary to Crown concession - whether sentence should have been suspended

LEGISLATION CITED: Firearms Act 1996

GAS & SJK v The Queen (2004) 217 CLR 198 R v Ryan (2003) 141 A Crim R 403 CASES CITED: The Queen v Olbrich (1999) 199 CLR 270 The Queen v De Simoni (1981) 147 CLR 383 R v Zamagias [2002] NSWCCA 17

Rami Mohamad (applicant) PARTIES: Regina (respondent)

FILE NUMBER(S): CCA 2005/1002

S J Odgers SC (applicant) COUNSEL: Ms J Dwyer (Crown)

S Kavanagh - Solicitor for Public Prosecutions SOLICITORS: Galloways Solicitors & Attorneys (applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3061

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1002

SULLY J HIDDEN J HALL J

Monday 28 November 2005 Rami Mohamad v Regina Judgment 1 SULLY J: I agree with Hidden J. 2 HIDDEN J: The applicant, Rami Mohamad, pleaded guilty in the District Court to a charge that, not being a licensed firearms dealer, he attempted to purchase eighteen firearms from other persons who were themselves not licensed firearms dealers. Provision for the completed offence is to be found in s51A(2) of the Firearms Act 1996, and it carries a maximum sentence of five years imprisonment. The sentencing judge treated the attempt, to which the applicant had pleaded guilty, as carrying the same maximum term. He was sentenced to imprisonment for two years, with a non-parole period of fifteen months, dating from 20 December 2004. He seeks leave to appeal against that sentence. 3 Before his Honour was an agreed statement of facts, as follows: On 23 September 2001 Jack James Dunn, Guy Shannon Robson and Scott Thomas Archer were arrested by police and charged with trafficking offences under the Firearms Act 1996. These offenders, together with Rami Mohamad, Bellal El Saadi and Patrick Sheehan, participated in an enterprise to sell firearms to unauthorised persons. Between 15 September and 23 September 2001 police covertly monitored telephone calls between the offenders. Telephone calls reveal that Dunn had indicated to Mohamad that he could sell Mohamad firearms. Other telephone calls between Mohamad and El Saadi indicate that Mohamad and El Saadi were willing to purchase the firearms. Robson assisted Dunn at certain material times. Archer held a firearms licence but not of the type which permitted commercial dealings with the weapons. On the evening of 23 September 2001, police attached to Organised Crime Firearms Trafficking monitored a gathering of the offenders in the south-western suburbs of Sydney. The offenders Archer, Sheehan, Dunn and Robson met in the car park of the McDonald's Restaurant at Narellan. Dunn and Robson arrived at the car park in a silver Ford sedan. Archer arrived in a blue Holden Commodore. Sheehan arrived in a red Holden utility. After a short meeting, Archer left in the Ford that had been driven by Dunn and Sheehan left in the Commodore. About one hour later, Sheehan returned in the Commodore and left in his utility. Five minutes later, Archer returned in the silver Ford. He had further discussions with Dunn and Robson. Dunn and Robson then left in the Ford. Mohamad was nearby when the exchange between Archer, Dunn and Robson occurred. El Saadi was at the cinema at the time these incidents occurred at Narellan. There is no evidence that El Saadi ever met with any of the other participants in the enterprise, apart from Mohamad. Telephone calls reveal agreement to purchase 18 unregistered and assorted firearms from amongst a total of 42, including 21 pistols, found by police in the boot of the Ford. Other telephone calls reveal the firearms were being sold for $2700 each or between $40,000 and $50,000 for the lot. No such large sum of money was ever recovered. There is no evidence that El Saadi paid any money towards the purchase. Police attempted to arrest Archer, Dunn and Robson but they escaped in cars driven at high speed. Archer was a passenger in the Commodore. Dunn and Robson, travelling together in the Ford, were arrested after a pursuit. Archer made good his escape. The Commodore was abandoned and a person or persons hid a few additional firearms removed from it in the surrounding area. Archer surrendered himself to police 2 hours later. At all material times, Archer was employed as a Corrective Services officer at Silverwater Gaol. His participation in this offence was active to the extent that telephone call interceptions display his coercive attempts at settlement with both Sheehan and Dunn. 4 Of the other men referred to in the statement of facts, all but Sheehan have pleaded guilty to the same or a similar offence under the Firearms Act and have been dealt with. It is not necessary to set out the sentences imposed upon them. At the time of the hearing of the application, Sheehan was facing trial in the District Court. The agreed statement of facts was somewhat laconic about the applicant's role in the enterprise, but his Honour made certain findings about his involvement which were challenged in the application. 5 The applicant was twenty-one years old at the time of the offence and is now twenty-five. His only prior conviction is for receiving a large number of mobile phones, for which a suspended sentence of two years was imposed in the District Court in September 2003. However, that offence had been committed in May 2001, some five months before the present offence. 6 He is the son of Lebanese migrants to this country, and enjoyed a close and stable family life. At the time of sentence he had been in a relationship with a young woman, who remained supportive of him. He left school in year eleven to work in his father's electrical business, and had undertaken a TAFE apprenticeship. It seems that he had been a competent and responsible worker. He was a social drinker and did not use illicit drugs. 7 There were before his Honour a pre-sentence report, a psychological report and a number of character references. The pre-sentence report assessed him as a person who required no more than "a low level of intervention". The psychologist concluded from the history that his commission of the offence was due to "immaturity and peer group influences at the time". He continued to benefit from the support of his family (included his extended family) and the opportunity for on-going employment in his father's business. His Honour accepted that he was remorseful and that his prospects of rehabilitation were "positive".