Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mohamed v R [2012] NSWCCA 173 Hearing dates: 18 July 2012 Decision date: 16 August 2012 Before: Allsop P at [1] Latham J at [1] Davies J at [1] Decision: 1. Extend time for the filing of leave to appeal up to and including 26 March 2012. 2. Application for leave to appeal refused. Catchwords: CRIMINAL LAW - sentencing - application for leave to appeal on ground of manifest excess - drug and weapon offences - no operative error - sentence within appropriate range - no question of principle arising Legislation Cited: Weapons Prohibition Act 1998 (NSW) Cases Cited: Tran v R [2010] NSWCCA 183 Category: Principal judgment Parties: Ahmed Mohamed (Applicant) Regina (Respondent) Representation: J Cohen (Applicant) T Smith (Respondent) Elliot Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/49124 2009/250074 Decision under appeal Citation: [2010] NSWDC 322 Date of Decision: 2010-11-26 00:00:00 Before: Berman SC DCJ File Number(s): 2009/49124 2009/250074 Judgment 1THE COURT: On 18 July 2012, the Court made orders extending time for the filing of an application for leave to appeal up to and including 26 March 2012 and refusing leave to appeal. These are the reasons for those orders. 2The reasons are to be read against the background of the submissions of the parties, in particular their written submissions. 3The background was summarised accurately in the Crown's submissions, as follows: "The applicant pleaded guilty to two counts of supply prohibited drug (cannabis and 1-benzylpiperazine), possess prohibited weapon (taser), conduct drug premises, ongoing supply of prohibited drug (methylamphetamine) and possession of shortened firearm without authority. There were a number of other matters to be taken into account on four different Form ones. All the charges other than the ongoing supply of prohibited drug and possession of the shortened firearm arose from a search by police of the applicant's premises on 3 June 2009. The other two charges were committed whilst the offender was on bail for the first set of drug and weapon offences. They related to the offender's involvement in supplying an undercover operative on four occasions with methylamphetamine and police locating a loaded sawn off shotgun when they searched the applicant's premises following his arrest on 12 November 2009." 4The individual sentences imposed were as follows: Offence Maximum Penalty Sentence Conduct drug premises 12 months imprisonment and/or fine $5,500 Fixed term of six months (11.11.09 - 10.05.10) Supply prohibited drug (13 grams 1-benzylipiperazine - 40 tablets) 15 years imprisonment and/or fine $220,000 Fixed term of 18 months (11.2.10 - 10.08.11) Supply prohibited drug (448.2 grams cannabis) 10 years imprisonment and/or fine $220,000 Fixed term of 18 months (11.2.10 - 10.08.11) Form 1: Deal with property proceeds of crime ($4320 cash) Possess prohibited drug (1 gram located in pocket) Possess prohibited drug (5.4 grams located in bedroom) Possession of prohibited weapon (operating taser stun gun) 14 years imprisonment Non-parole period 18 months (11.2.11 - 10.8.12) Form 1: Possession of prohibited weapon (non-working taser) Balance of 12 months (11.8.12 - 10.08.13) (A standard non-parole period of three years applied) Possession of shortened firearm 10 years imprisonment Fixed term of two years (11.11.11 - 10.11.13) Form 1: Possession of unregistered firearm (same shortened firearm) Possession of ammunition Ongoing supply prohibited drug (4 supplies methylamphetamine) 20 years imprisonment and/or fine $385,000 Non-parole period two years (11.11.12 - 10.11.14) Form 1: Supply 6.8 grams of cannabis Balance of two years (11.11.14 - 10.11.16) Supply 3.5 grams of cannabis Deal with property suspected to be proceeds of crime ($1800) Deal with property suspected to be proceeds of crime ($300) 5The sentencing judge incorrectly identified the maximum penalty for the cannabis offence (the third offence in the above list) as 15 years imprisonment. That was wrong. It was 10 years. The sentences for it and the second offence were entirely concurrent and no coherent argument that such error was operative was put forward. 6The overall effective sentence was seven years with a non-parole period of five years. 7Our view is that there was no prospect of success of the arguments propounded in furtherance of the essential ground of manifest excess. 8It was first said that the sentence offended the principles of totality and proportionality. We reject this. The structure of the sentence and the remarks on sentence revealed careful regard that was paid to the overlap of the sentences by the sentencing judge. His Honour's remarks on sentence reveal an attendance to the need for proportionality. For instance, the penalty for the first offence of conducting drug premises was effectively reduced from six months to three months by the degree of concurrence fixed. We see no ground for considering that any of the sentences was disproportionate or that the accumulation and consequent totality was in any way unjust. 9It was next said that the sentence imposed did not reflect sufficient parity with the co-offender. The co-offender was the applicant's girlfriend who was earlier sentenced by the same judge. The only real difference in the sentence was that the applicant received an additional six months in relation to the on-going supply offence. There was also a difference in the roles the two played. The sentencing judge expressly directed himself to the question of equivalence of the two groups of sentences. There is no basis whatsoever to argue that there is any ground for a legitimate sense of grievance by reference to the co-offender's sentence. 10It was next asserted that the judge erred by failing to characterise a taser weapon as not being in the lower range of offences under the Weapons Prohibition Act 1998 (NSW), s 7. The characterisation of the degree of objective seriousness of an offence is an evaluation of the sentencing judge. In Tran v R [2010] NSWCCA 183, Hislop J referred to a taser (in the circumstances of that case) as significantly below the mid-range. The sentencing judge entirely correctly did not view the factual evaluation in Tran in those circumstances as binding on him. The circumstances here, in particular having such a weapon in connection with a drug supply business, no doubt affected the evaluation. In any event the sentence for the offence was one that was significantly below the standard non-parole period. There are no reasonable prospects of success of demonstrating error in this regard. 11It was also submitted that the sentence for the loaded shotgun was excessive. We reject that as lacking merit. Given the concurrency with the taser offence and the ongoing supply, very little of this sentence was not concurrent. Again, in the context of the conduct of a drug supply business the offence was a serious one and the sentence plainly just and proportionate. 12The sentence overall was clearly within the appropriate range. 13There are no reasonable prospects of success on any of the grounds put forward. 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. Decision last updated: 16 August 2012