District Court New South Wales Medium Neutral Citation: R v Ahmed [2013] NSWDC 323 Decision date: 31 May 2013 Before: Cogswell SC DCJ Decision: (1) Bond imposed for supply of prohibited drugs revoked, offender sentenced to 18 months imprisonment, suspended. (2) For the offences which constitute the breach (larceny, knowingly carried in conveyance, damage property) an aggregate sentence of 18 months imprisonment, suspended. (3) For the offence unauthorised possession of firearm (replica pistol), and taking into account 2 other offences (possess prohibited drug and unlawful entry on inclosed lands) a fixed term sentence of 1 month and 8 days. For the offence of unauthorised possession of prohibited weapon (nunchunks) a sentence of 1 month, suspended. Both sentences to be served concurrently. Catchwords: CRIMINAL LAW - Sentence - relevant factors - spate of offending confined to a few days - on good behaviour bond when offences committed - principle of totality - response to charges - early plea of guilty - circumstances of offender - criminal record for similar offences - 10 years without offending - history of drug use - physical and mental health issues - demonstrated willingness to rehabilitate - employment and counselling. Legislation Cited: Crimes Act 1900 (NSW) ss 117, 154A(1)(b), 195(1)(a). Crimes (Sentencing Procedure) Act 1999 (NSW) ss 12, 32, 43, 53A. Criminal Procedure Act 1986 (NSW) s 166. Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 39P. Firearms Act 1996 (NSW) s 7A(1). Weapons Prohibition Act 1998 (NSW) s 7(1). Category: Sentence Parties: Regina (Crown) Simon Ahmed (Offender) Representation: Solicitors: Bunton Law (Offender) Office of the Director of Public Prosecution (Crown) File Number(s): DC 2009/00050601; 2011/00264139 REMARKS ON SENTENCE 1I am sentencing Simon Ahmed because he was given a good behaviour bond by another judge but breached that good behaviour bond and I have to re-sentence him for that breach. I am also sentencing him for some seven other offences that he committed. Those seven other offences amounted to a breach of the good behaviour bond; but still I need to sentence him separately for those offences. 2I should look first at the offence that he received the good behaviour bond for. On 15 October 2010 Simon Ahmed was before his Honour Judge Garling of this Court. His Honour's remarks on sentence indicate that Mr Ahmed was in Darlinghurst Road, Kings Cross when the police searched his car and found six small resealable bags. They were found to contain just over 5 grams of cocaine. The prosecution before Judge Garling indicated that the case was not one which should carry full-time custody and could warrant a bond. Accordingly his Honour put Mr Ahmed on a good behaviour bond for 2 years. 3However not halfway through those 2 years Mr Ahmed committed a series of offences over a few days. They occurred from 2 to 3 August 2011 and then on 8 August 2011. 4Briefly what happened is this. A car had been stolen. Mr Ahmed was not part of the original theft, but between 1 and 2 August 2011 he joined two other offenders in Brighton-Le-Sands where they stole some number plates from another car. They put those number plates onto the original stolen car. Then in that stolen car, knowing it to be stolen, he was driven to the Botany Bay Water Police complex at Sans Souci. There Mr Ahmed and one of the co offenders forced open the sliding gate and got in. That action damaged the gate. They then smashed the rear window of a police car in the compound and removed a radio box and some police vests. Hardly surprisingly, they were seen by the police. Mr Ahmed got away in the stolen car with one of the other co offenders. The second co offender was arrested. 5Interestingly, the car which had originally been stolen (the theft not involving Mr Ahmed) had a listening device fixed to it and the police were able to determine, by listening, that one of the co offenders was identified "as the primary speaker within the vehicle and the one giving directions" to Mr Ahmed and the other co offender. 6That activity which I have described so far gave rise to a charge of stealing the number plates, of knowingly being carried in a stolen car, of damaging property and of theft of the material from the police car. It also gave rise to an offence of unlawful entry on inclosed lands. 7On 3 August the stolen car turned up at Mr Ahmed's house and he got in and was then carried around again in the stolen car, hence giving rise to another offence of knowingly being carried. 8The police tracked down Mr Ahmed and searched his house. They found a replica pistol and nunchucks and a small amount of cannabis. He was therefore charged with possessing a prohibited weapon (the nunchucks) and possession of an unauthorised firearm (the replica pistol). He was also charged with possessing a prohibited drug. He was arrested on 16 August 2011. 9That offence of possessing a prohibited drug and the unlawful entry into the police compound are two offences which I am not sentencing Mr Ahmed for, but he has asked me to take them into account when I am sentencing him for the offence of possessing an unauthorised firearm. He has signed a form in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and I will take those offences into account when I am sentencing him for that offence. I too now sign the form to that effect. 10The supply of a prohibited drug, which Judge Garling had sentenced Mr Ahmed for, is an offence against s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Parliament has fixed a maximum of 15 years imprisonment to that offence. 11The various larceny offences which arose from stealing the number plates and stealing things from the police car are offences against s 117 of the Crimes Act 1900 (NSW) and have a maximum of 5 years imprisonment. The charges of being knowingly carried in a stolen car are offences against s 154A(1)(b) of the Crimes Act, and again Parliament has fixed a maximum of 5 years imprisonment to that offence. The charge of intentionally damaging property, which arose from breaking into the police compound, is an offence against s 195(1)(a) and carries a maximum of 5 years imprisonment. 12The two offences to do with what was found in Mr Ahmed's home are more serious. Possession of the replica pistol was an offence against s 7A(1) of the Firearms Act 1996 (NSW) and has a maximum of 14 years imprisonment. The possession of the prohibited weapon, the nunchucks, is an offence against s 7(1) of the Weapons Prohibition Act 1998 (NSW). It too has a maximum 14 years imprisonment. Not only that, but Parliament regards that offence so seriously that it has fixed a standard non-parole period of 3 years imprisonment. 13I formally convict Mr Ahmed of the offences in August 2011 involving larceny and knowingly being carried in the stolen car, damaging property and the offences under the Weapons Prohibition Act and the Firearms Act. 14As well as referring to what an offender did which amounted to the crimes that a Court is sentencing the offender for, the Court takes into account matters which are personal to the offender. In this case I am assisted by two pre sentence reports and some other material which was tendered on his behalf. 15Before considering that, I should make reference to the fact that Mr Ahmed has a criminal record. He is now 33 and has some entries for offences committed before he turned 18 and when he was dealt with by the Children's Court. He has similar offences to the ones he is in trouble for now, being carried in a stolen car and entering inclosed lands and goods in custody, as well as carrying a cutting instrument. He received bonds and probation for those offences. 16When he was 19 he came before the District Court on a charge of supplying a prohibited drug. He was given a 3 year gaol term with a non parole period of 1 year. That was in 2000. He abandoned an appeal against that sentence. Apart from a driving offence, he did not come to the attention of the Courts again until his Honour Judge Garling dealt with him in 2010. Hence he had about 10 years where he did not re-offend. 17I return now to the material which relates to Mr Ahmed personally. The pre sentence report dated 22 November 2012 noted his family history and an injury which he had received to his lower back and his ankle. It noted a history of drug use, but also noted that he claimed that the type of offences he committed were "out of character". That is hardly the case given his record in the Children's Court. 18His injuries, which occurred in 2008 and 2010, required surgery. He has needed assistance and support from a psychologist. He apparently had commenced using cannabis in his early twenties. Although he had periods of abstinence, he returned to it whilst he was incapacitated from his injuries. It noted that he had engaged "satisfactorily in alcohol and drug counselling". The author thought that he would not need supervision because of his progress with a counsellor, whom he was referred to. 19An updated report dated 29 May 2013 noted Mr Ahmed's progress with the psychologist and noted that he had "made significant improvements to his lifestyle and continues to be committed to his individual counselling to address his symptoms of depression and anxiety." It noted that he has gained employment and had been doing some voluntary work which he had to discontinue because of his mental health. Again the report said that he was unlikely to require supervision and was unsuitable for community service. 20There was a report from psychologist whom he saw. Her name is Elizabeth Munro. Mr Bunton, who appeared for Mr Ahmed, tendered that report. The report noted that he had been referred by his doctor under a mental health care plan and commenced therapy with her on 10 October 2011. The treatment focused on a number of issues which would be of assistance to him. Once again it noted that Mr Ahmed described his offending as "errors of judgment". Nevertheless it confirmed his regular attendance. 21There is a note from Pastor Brian Unterrheiner from the Newtown Mission which noted that Mr Ahmed had been doing voluntary work in the kitchen since June last year. In addition there was a letter from his employer who noted that he works as a driver for six days a week and the employer said that he had "become a vital part of our working team". The employer observed that he had seen "Simon rise from an unemployed, unqualified and minimal skilled candidate when I first hired him to an outstanding delivery driver who takes great pride and care in his work, he is always punctual, always willing to go that extra mile and is a loyal individual." The author of that note, Ian Harris, realistically said that although he had known Mr Ahmed for only a year and was unable to judge whether the behaviour was out of character, he could "strongly say that he has definitely changed into a totally different person than that described of him in the charge sheet over the last year". He said that he would continue to be employed by that company. There is a reference from Joanne Devine, a widow who said how much Mr Ahmed had been helpful to her during her husband's illness and was a great comfort to Mrs Devine's son. 22What I need to do is to re sentence Mr Ahmed for the drug supply offence and for the other offences which were committed in August 2011. Mr Robinson, who appeared for the Director of Public Prosecutions, pointed out that of course Mr Ahmed was on a bond when he committed the second lot of offences. That was the good behaviour bond which Judge Garling had imposed. He had committed those offences before the first year of the 2 year good behaviour bond expired. Mr Robinson pointed to the fact that Mr Ahmed had already spent time in gaol for a drug supply offence in 2000. He argued that there was no evidence of contrition because there was no evidence that he accepted responsibility for his offending. I think Mr Robinson is right in all those submissions which he makes. He drew my attention to the standard non-parole period attached to the prohibited weapon offence and the significant maximum penalties for the two offences regarding what had been found in Mr Ahmed's home. He observed, as did Judge Garling, that the sentence - the bond - was a lenient sentence for a drug supply which admittedly did involve a possession for supply. 23Mr Robinson argued that the only appropriate penalty was one of fulltime custody. He urged me to look at the totality of Mr Ahmed's offending. Looking at each individual offence may produce reduced sentences or non custodial sentences but the totality of the offending warrants fulltime custody. There should be some partial accumulation in respect of the sentences for the offences committed in August 2011. 24Mr Bunton pointed to his client's early plea of guilty which he said was the earliest available opportunity and I accept that submission. He pointed to the psychological material and it demonstrating a willingness for his client to rehabilitate himself. He pointed to the chronology involved. His client had spent some time in custody - about a month and a week - after he was arrested for the 2011 offences in late August 2011. Then he was having his first appointment with the psychologist in early October. He secured a job in April 2012 and commenced his voluntary work in June 2012. 25As Mr Bunton said, his client was gradually taking up options to get his life back on track. It was on his client's release that he took the progressive steps towards his own rehabilitation. He acknowledged the force of Mr Robinson's argument about totality but said that the sentences for the spate of offending over August 2011 could be in terms of months rather than years. 26The factors which I take into account and regard as significant are these. There was a relatively small amount of the drug involved in the matter that Judge Garling was dealing with. It seems to me that the next step should be a sentence of imprisonment but I would regard it as appropriate to suspend that sentence. I also take into account that although he had troubled teenage years, his first significant offence was at the age of 19 and then there was a long gap of some 10 years before the offences that I am sentencing him for. I take into account the evidence in the agreed facts that Mr Ahmed was evidently not the ringleader of the offending behaviour that occurred in August 2011. 27I also take into account the significant developments which occurred on his release on bail. I accept Mr Bunton's submissions about the progress which he said his client has made. I accept that there was a spate of offending behaviour over a confined period of a few days. There were a lot of offences but none of them itself was outstandingly serious. Mr Ahmed has significant physical and mental health issues to deal with. He is in the process of rehabilitating himself in the community by the progress he has made in counselling and by the employment he has received. 28What I propose to do is to impose sentences for the spate of offending but to suspend those sentences and I propose to fix a sentence for the two crimes involved in what had been found at his house which coincides with the time he has already spent in custody. I will impose an aggregate sentence in respect of the offences which occurred in August 2011 apart from the offences to do with what was found in Mr Ahmed's home. I will now sentence your client. If you would stand up Mr Ahmed. 29I am satisfied that you have failed to comply with the conditions or the good behaviour condition of the bond imposed by Judge Garling. I revoke the bond. In respect of that offence I sentence you to 18 months imprisonment and under s 12 of the Crimes (Sentencing Procedure) Act 1999 I make an order suspending the execution of the whole of the sentence for the whole of the period. I direct that you be released from custody on condition that you enter into a good behaviour bond for 18 months. HIS HONOUR: Mr Robinson and Mr Bunton I want you both to be thinking about the conditions because I'll ask you in a moment. 30In respect of the offences of two larcenies, two being carried in a conveyance and one damage to property, I regard an appropriate overall sentence as being 2 years imprisonment. Because you pleaded guilty at the earliest available opportunity I would discount that by 25% so that the overall sentence for that is 18 months imprisonment. 31I need to indicate to you how that would be made up individually. In respect of the first larceny I would regard an appropriate sentence as 6 months imprisonment. In respect of the carriage in the conveyance, the first one, I would regard an appropriate sentence as 6 months imprisonment accumulated by 3 months. In respect to the damage to property, I would regard an appropriate sentence as three months accumulated again by 3 months. In respect of the second larceny, I would regard an appropriate sentence being 6 months, accumulated by 3 months. In respect of the second illegal carriage in a conveyance, I would regard an appropriate sentence as being 6 months, accumulated by 3 months. That is a total of 18 months taking into account your plea of guilty. 32Under s 53A of the Crimes (Sentencing Procedure) Act 1999, I impose an aggregate sentence of imprisonment with respect to those offences I have just listed, instead of a separate sentence of imprisonment. That aggregate sentence is one of 18 months imprisonment. Under s 12 of the Crimes (Sentencing Procedure) Act 1999, I make an order suspending the execution of the whole of the sentence for 18 months and I direct that you be released from custody on condition that you enter into a good behaviour bond for 18 months. 33In respect of the offence of possessing an unauthorised firearm and taking into account the two matters which you have asked me to take into account, I impose a fixed term sentence of 1 month and 8 days which commenced on 16 August 2011 until 23 September 2011. 34In respect of the prohibited weapon offence and bearing in mind that it carries a standard non-parole period amongst the other factors I take into account, I regard that as an appropriate matter for a fixed term penalty which I fix as 1 month and 8 days commencing 16 August 2011 and expiring on 23 September 2011. Those sentences are obviously concurrent. HIS HONOUR: Now conditions of the good behaviour bond. Obviously good behaviour. I am not going to ask him to be supervised unless either of you thinks I should but I do not want to burden Probation and Parole when they have made it clear that they do not think that he would benefit. Should I do anything about the psychologist? I don't think so. ROBINSON: Your Honour, I wouldn't urge upon your Honour to include it as a condition and that is something he can just simply attend to himself separately. HIS HONOUR: I agree. Mr Bunton, do you agree? BUNTON: Yes, your Honour, I do. HIS HONOUR: Yes, all right. 35The conditions of both good behaviour bonds are the same. (1)That you be of good behaviour. (2)That you notify the Registrar of this Court of any change in your residential address. (3)That if you receive a notice to attend Court that you attend. 36Mr Ahmed, I thought overnight about this case. It troubled me. In a way you should go to gaol and that is, in fact, why I have imposed prison sentences but I have suspended them and that is mainly because of the progress that you have made with the psychologist and with the job and getting yourself back on track, okay? I think that if I sent you back into gaol it would reverse that process. 37Now, for the drug supply, I have given you an 18 month prison sentence and suspended that. For all that activity you took part in with Mr Andrews and the other fellow and the cars and the police compound, I have given you an overall sentence of 18 months imprisonment. Once again I have suspended that. For the nunchuckers and the replicate pistol which they found at your home, I have given you prison sentences for both of those because they both carry a high maximum and one of them has a standard non-parole period and the other I am taking into account the other offences but you have served that sentence. I fixed that the same as the time you spent in prison without bail. So that is over and done with. 38There are conditions for your bond, three of them. You have got to stay out of trouble. If you change your address, you have got to write to the Registrar here and let him know and the third one is if you get a notice from the Court to tell you to come to Court, you turn up rather than having the police and the sheriff's officers chasing you. 39There is something you have got to understand which Mr Bunton will have explained to you or perhaps he is going to or both. A suspended sentence bond is quite different to the other kinds of bonds. The bond you got from Judge Garling is one kind of bond. The bond that I have given you is attached to a suspended sentence and it is different. If you breach this bond, the suspended sentence bond, it is very hard not to go to gaol. The judge pretty well has to send you to gaol and I have decided that is the way to go because these are prison sentence offences and it is really up to you. You have shown very well how you can get yourself back on track in the last couple of years and I am going to give you a chance but that sword is hanging over your head and it will not be like this time when you breached the good behaviour bond and I have given you a suspended sentence. If you come back before me, my hands are tied and it will just be a matter of how long of that 18 months you serve. Do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: Mr Bunton will explain it to you again but it is very important that you understand that. If you mess up, you will go in. All right? OFFENDER: Yes, your Honour. HIS HONOUR: Have a seat Mr Ahmed. Mr Robinson, what did you want to-- ROBINSON: Yes, your Honour, just a few things. Your Honour, just in relation to the standard non-parole period offence, it is my understanding that your Honour cannot fix a fixed term for that offence, there must be a non-parole period imposed. I am happy to be corrected on that point. There was a case in the last 18 months on that. HIS HONOUR: I think you are right. ROBINSON: So to achieve what your Honour intends to achieve, I think your Honour would need to do it another way, whether your Honour imposes a s 12 bond or takes a different course but I'm quite confident in saying that there must be a non-parole period fixed in relation to that. HIS HONOUR: Yes, I think you are right. What are my options? ROBINSON: Your Honour could also place the offender on a s 12 bond, thereby you do not need to fix a non-parole period if there is no breach of course of that bond. That is an option your Honour has but I think your Honour just simply cannot fix a fixed term for a standard non-parole period offence. HIS HONOUR: And I cannot say make it two months with a three weeks on parole because that is artificial. I do not think that would work. No, because effectively he has been on - no. ROBINSON: Effectively, your Honour, that was a back date. Well, that period was sometime ago as well. HIS HONOUR: No, I do not think I can do it, I think you are right. ROBINSON: I do not think that is possible. The only other way, your Honour, would be s 10A which is a conviction with no further penalty but again-- HIS HONOUR: No, but it is too serious an offence. ROBINSON: That is what I would have said, your Honour, so. 40I will re-open the sentence under s 43 of the Crimes (Sentencing Procedure) Act. I do not need to hear from you, Mr Bunton. Mr Robinson has correctly drawn my attention to the fact that the penalty for an offence which has a standard non-parole period fixed to it cannot be a fixed sentence. I have purported to do that. I think in order to achieve the objective which I have set out to achieve I will need to suspend that sentence. I am reluctant to do so because of the seriousness of the offence and the seriousness with which Parliament regards it but I take into account the period which Mr Ahmed spent bail refused in fixing a sentence for that matter. I fix a sentence of 1 month and 8 days. HIS HONOUR: Can I back date a suspended sentence? ROBINSON: No, your Honour. BUNTON: No, your Honour. 41I fix a sentence of 1 month and under s 12 of the Crimes (Sentencing Procedure) Act I make an order suspending the execution of the whole of the sentence for the month and I direct that Mr Ahmed be released on condition that he enters into a good behaviour bond for one month and the conditions of that bond are the same as the conditions for the other bonds. HIS HONOUR: Does that deal with that? ROBINSON: It does, your Honour. BUNTON: Those sentences are concurrent, your Honour, I take it? HIS HONOUR: Yes. ROBINSON: Thank you and your Honour, just two final matters. One is, your Honour, there are two matters on a 166 certificate. They were placed on the Form 1. I would ask your Honour simply to confirm those matters were taken into account. Thank you. 42I confirm that the matters which are on the certificate under s 166 of the Criminal Procedure Act 1986 (NSW) are the ones which I took into account under s 32 of the Crimes (Sentencing Procedure) Act. ROBINSON: Thank you, your Honour. Just finally, your Honour, I would seek the Court make a drug destruction order in relation to the small amount of cannabis that was found. 43The amount of cannabis which Mr Robinson has referred to, I direct that that be destroyed under s 39P of the Drug Misuse and Trafficking Act 1985. ROBINSON: Thank you, your Honour. HIS HONOUR: Anything else? ROBINSON: No, your Honour. BUNTON: No, your Honour. 44Mr Ahmed, I changed the gaol sentence for the nunchuckers. I had to as Mr Robinson, the Prosecutor, pointed out because I cannot set a fixed term so I have made that 1 month and suspended it. You got off very lightly with that but otherwise it would have frustrated what I was going to do. Just have a seat, Mr Ahmed. ********** 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: 14 July 2014