Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Abdulrahman v R [2015] NSWCCA 238 Hearing dates: 30 July 2015 Date of orders: 30 July 2015 Decision date: 02 September 2015 Before: Hoeben CJ at CL at [1] Price J at [1] Fagan J at [1] Decision: The release application is refused. Catchwords: CRIMINAL LAW – bail – release application – whether applicant is an unacceptable risk if released from custody – strength of Crown case – seriousness of offending and protection of community important considerations – need to balance those considerations against personal matters affecting applicant – unacceptable risk found to exist – release application refused. Legislation Cited: Bail Act 2013 – s 49, ss 17(2)(a), 17(2)(b) and 17(2)(c) Firearms Act 1996 – s 4A, s 51D(2) Category: Principal judgment Parties: Hussein Abdulrahman – Applicant Regina – Respondent Crown Representation: Counsel: Mr E Havas – Applicant Mr H Baker for the Respondent Crown Solicitors: Eidan Havas & Associates Lawyers – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2015/193504 Judgment 1. THE COURT: The applicant brought a release application pursuant to s 49 of the Bail Act 2013 (the Act). The release application was heard by the Court of Criminal Appeal on 30 July 2015 and was refused. The Court advised that it would hand down reasons at a later date. These are the reasons. 2. The applicant is charged with a number of firearm possession and related offences. The charges arise from the execution of a search warrant at the applicant's home on 15 January 2015. Police found eight firearms, ammunition, ammunition magazines, a silencer and a telescopic sight. 3. The applicant has been charged with the following 27 firearms offences: OFFENCE ACT AND SECTION MAXIMUM PENALTY 1. Possess > 3 unregistered firearms Firearms Act 1996 s.51D(1) 10 years imprisonment 2. Possess unauthorised prohibited firearms (Ruger 10/22 carbine semi-automatic rifle) Firearms Act 1996 s. 7(1) 14 years imprisonment / SNPP 3 years 3. Not keep firearm safely- prohibited (Ruger 10/22 carbine semi-automatic rifle) Firearms Act 1996 s. 39(1)(a) 2 years imprisonment 4. Possess unauthorised prohibited firearms (Armijager brand assault rifle AR15) Firearms Act 1996 s. 7(1) 14 years imprisonment / SNPP 3 years 5. Not keep firearm safely-prohibited (Armijager brand assault rifle AR15) Firearms Act 1996 s. 39(1)(a) 2 years imprisonment 6. Possess unauthorised firearm (Remington 760 pump action rifle) Firearms Act 1996 s. 7A(1) 5 years imprisonment 7. Not keep firearms safely– not prohibited (Remington 760 pump action rifle) Firearms Act 1996 s. 39(1)(a) 2 years imprisonment 8. Possess unregistered firearm/pistol (Remington 760 pump action rifle) Firearms Act 1996 s.36(1) 5 years imprisonment 9. Possess unauthorised firearm (Remington 7615 pump action rifle) Firearms Act 1996 s. 39(1)(a) 5 years imprisonment 10. Not keep firearm safely- not prohibited (Remington 7615 pump action rifle) Firearms Act 1996 s. 39(1)(a) 2 years imprisonment 11. Possess unregistered firearm (Remington 7615 pump action rifle) Firearms Act 1996 s. 7A(1) 5 years imprisonment 12. Possess unauthorised firearm (Savage Mark 2 .22 bolt action rifle) Firearms Act 1996 s. 7A(1) 5 years imprisonment 13. Not keep firearm safely (Savage Mark 2 .22 bolt action rifle) Firearms Act 1996 s. 39(1)(a) 2 years imprisonment 14. Possess unregistered firearm (Savage Mark 2 .22 bolt action rifle) Firearms Act 1996 s. 36(1) 5 years imprisonment 15. Possess unauthorised firearm (Anschultz bolt action rifle) Firearms Act 1996 s. 7A(1) 5 years imprisonment 16. Not keep firearm safely (Anschultz bolt action rifle) Firearms Act 1996 s. 39(1)(a) 2 years imprisonment 17. Possess unregistered firearm (Anschultz bolt action rifle) Firearms Act 1996 s. 36(1) 5 years imprisonment 18. Possess unauthorised firearm (Sniper rifle with scope) Firearms Act 1996 s. 7A(1) 5 years imprisonment 19. Not keep firearm safely- not prohibited (Sniper rifle with scope) Firearms Act 1996 s. 39(1)(a) 2 years imprisonment 20. Possess unregistered firearm (Sniper rifle with scope) Firearms Act 1996 s. 36(1) 5 years imprisonment 21. Possess unauthorised firearm (Bruno model 12 gauge shot gun) Firearms Act 1996 s. 7A(1) 5 years imprisonment 22. Not keep firearm safely (Bruno model 12 gauge shot gun) Firearms Act 1996 s. 39(1)(a) 2 years imprisonment 23. Possess unregistered firearm (Bruno model 12 gauge shot gun) Firearms Act 1996 s. 36(1) 5 years imprisonment 24. Possess or use a prohibited weapon without permit (.22 banana clip firearm magazine) Weapons Prohibition Act 1998 s. 7(1) 14 years imprisonment / SNPP 3 years 25. Possess or use a prohibited weapon without permit (silencer/suppressor) Weapons Prohibition Act 1998 s. 7(1) 14 years imprisonment / SNPP 3 years 26. Possess ammunition without holding a licence Firearms Act 1996 s. 65(3) 50 penalty units 27. Possess > 3 unregistered firearms, including one prohibited pistol Firearms Act 1996 s.51D(2) 20 years imprisonment / SNPP 10 years Factual background 1. The applicant is aged 37 and is one of seven children (one sister and six brothers). The sister is a solicitor in a law firm in the Sydney CBD. The applicant completed year 12 at Granville Boys Senior High School and after four years of study, obtained a TAFE hairdressing diploma. 2. The applicant married at the age of 24 and has four children. He and his wife have experienced difficulties in having children and there have been a number of miscarriages. The ages of the children range from 6 weeks to 8 years. 3. The applicant has strong communal ties with all of his family living in Sydney. He has only one matter by way of criminal history. He was convicted of common assault seven years ago. The origin of that incident was the applicant's belief that the person he assaulted had broken into his parents' home. Otherwise the applicant has no history of violence. The applicant's family background is Lebanese. 4. The applicant is the sole financial provider for his family and since his incarceration, his wife has had difficulty in coping. She is said to be currently depressed and receiving psychiatric treatment. A diagnosis of post natal depression has been made. The applicant's wife does not speak English and requires family members to make medical appointments for her. 5. The circumstances leading to the applicant being charged were as follows. On Tuesday, 13 January 2015 a search warrant was granted in the Parramatta Local Court in respect of premises at 37 Wilkes Crescent, Tregear. At the rear of those premises is a garage. The applicant arranged for the fitting out of the garage as a barber shop and has conducted that business from those premises ever since. At the front of the property is a single storey dwelling where the applicant resides with his family. 6. At about 9.50am on Thursday, 15 January 2015 the applicant was stopped by police and advised that they were in possession of a search warrant and proposed to search 37 Wilkes Crescent. He was escorted to that location. Shortly thereafter Tactical Police, as well as police attached to the State Crime Command Firearms Squad entered the premises where the applicant was served with an occupier's notice. 7. The inside of the rear garage consisted of barber chairs, basins, mirrors and a number of lounges along the back wall. The inside of the garage was set up as a typical barber shop. Documentation identified the applicant as operating his business from the garage. 8. As police commenced searching the barber shop, they immediately sighted a six metre PVC pipe, which was approximately 100mm in diameter. The pipe was located on the floor behind a lounge with its end protruding. It was only partially concealed by the lounge and could be easily observed by police without moving the lounge. The placement of the pipe in the barber shop aroused the suspicion of police. A closer inspection revealed that both ends of the pipe were blocked with pieces of cloth material. 9. When police removed that material, they located the following items within the pipe. 10. 1 x box ammunition 11. 1 x small firearm magazine containing no rounds 12. 1 x Ruger model 10/22 carbine semi automatic rifle, serial number 240-72896 13. 1 x Remington 7600 Police pump action rifle serial number B8568943 14. 1 x Remington 7615 Model Pump action rifle serial number B561800 15. 1 x Savage Mk 2, .22 bolt action rifle, serial number 1502949 16. 1 x Anschutz bolt action rifle, serial number 31 16919 17. 1 x Ten shot .223 calibre magazine containing 10 rounds 18. 2 x .22 calibre banana clip firearm magazines 19. 1 x Silencer/Suppressor 20. The police also found two other PVC pipes, approximately 2 metres in length. Both pipes were sealed at each end, utilising screw fittings. There was nothing found in either pipe. There was evidence that pipes of this kind were commonly used by criminal groups to store firearms for periods of time underground to avoid detection and to prevent deterioration. 21. When these weapons were discovered police arrested the applicant, who was conveyed to Mount Druitt Police Station. 22. The exercise of the search warrant continued in the presence of a family member. A search of the laundry area at the rear of the barber shop, revealed two rifles in a white cupboard and one in cupboards under the sink. The following weapons were seized: 23. 1 x Armijager brand rifle model 1AR15 serial number 2043 24. 1 x Bolt action sniper rifle with scope, serial number unknown 25. 1 x Bruno Super model 5717, 12 gauge shotgun in parts, serial number 2571700265 26. 1 x plastic bag containing an amount of ammunition. 27. Investigations by police of the serial numbers assigned to the firearms so located, indicated that four of the firearms were stolen from two break enter and steal incidents occurring in West Hoxton in 2010 and Umina in 2012. Other firearms, stolen during these incidents, are still outstanding. 28. The applicant participated in an electronically recorded interview but declined to answer any questions in relation to the weapons or the charges which have been brought against him. The applicant is not a holder of a firearms permit and has never held a firearms permit. 29. The police estimate that the current value of these firearms on the illicit market would be in excess of $140,000. It was noted that the Armijager brand rifle found in the laundry was a military style assault rifle with an automatic capacity. 30. An application for bail by the applicant at Penrith Local Court on 1 May 2015 was successful and he was granted conditional bail. The Crown subsequently made a detention application, pursuant to s 50 of the Act in the Supreme Court. The application was heard on 28 May 2015 by Davies J and bail was revoked. The Release Application 1. The applicant submitted that on close examination this was not a strong Crown case. He submitted that at the time the weapons were discovered, he was suffering from back problems and his attendance at the barber shop was not regular and he had been advised by his doctor to give up work for a while and rest. He submitted that any member of his family could have placed the weapons in the garage without his knowledge. He specifically referred to a letter from the detective in charge of the investigation, which was addressed to the Court and which contained the following paragraph: "In relation to the accused person's stance on having strong community ties, the NSW Police holdings indicate the brother of the accused, Ali Abdulrahman, has links to the Comanchero Outlaw Motor Cycle Gang. During the initial stages of the search warrant on 15 January 2015, Ali Abdulrahman attended the scene and entered the driveway in his utility in an antagonistic manner. He was extremely aggressive towards police and had obvious intentions to disrupt the search warrant and the locating of the said firearms. Additionally, NSW Police intelligence indicates Ali Abdulrahman is known for matters relating to drugs, firearms and has a history of being unco-operative towards police." 1. The applicant submitted that when the matter came to a committal hearing or to trial it would be his case that he knew nothing about the firearms and their presence in the garage and that some other person, perhaps a member of his family, was responsible for placing them there. 2. The applicant submitted that pursuant to s 17(2)(a) of the Act, there was little risk of him not appearing at court as and when required. He submitted that as a married man with four children, whose youngest child was suffering from medical complications, he was unlikely to remove himself from the jurisdiction. He submitted that he had resided at 37 Wilkes Crescent for 12 years and owed $50,000 on the mortgage. He submitted that he had six brothers and sisters, who all resided in Sydney, and had no family in Lebanon or outside Australia. 3. The applicant submitted that between when he was granted bail on 1 May 2015 and when bail was revoked, he was aware of the detention application, but still fulfilled his bail conditions and attended the hearing in the Supreme Court. He proposed that a suitable person would forfeit $60,000 if he failed to appear at court as required and that he would consent to electronic monitoring if necessary. 4. In relation to s 17(2)(b) (risk of commission of a serious offence), the applicant submitted that no such risk existed. He relied upon his previous good record and the absence of any serious criminal convictions. He submitted that there was no evidence of him having any connections with criminal gangs or persons known or likely to be using firearms. He submitted that to the extent that there was any risk, it could be properly managed by bail conditions, e.g. daily reporting, a curfew, electronic monitoring and compliance with any enforcement conditions. 5. In relation to s 17(2)(c) (risk of danger to the victim, individuals, the community) the applicant submitted that he had never committed an offence on bail, or contravened any orders of a court. He had only one matter on his criminal record and that was many years ago. To the extent that there was any unacceptable risk, this could be met by appropriate conditions such as previously indicated. Consideration 1. It was common ground between the parties that none of the offences charged is a "show cause" offence. Accordingly, the decision for this Court is whether the applicant is an unacceptable risk in terms of failure to appear at court, the commission of further serious offences and a danger to the community and if so, whether that unacceptable risk can be appropriately met by bail conditions. 2. Although the offences with which the applicant has been charged are extremely serious, were the only concern whether the applicant would fail to appear at Court, the Court is satisfied on the basis of the submissions made on his behalf, he is not a flight risk. The Court is satisfied that he does have strong ties to the community and that the surety and other financial proposals are such that his family would suffer significant financial hardship if he did not attend court. That concern could be met with appropriate bail conditions. 3. The matters which are of concern, however, are those referred to in ss 17(2)(b) and 17(2)(c) of the Act. Contrary to the applicant's submissions, the Court is of the opinion that this is a strong Crown case. There is no issue that the applicant was the owner of the premises where the weapons were found. Section 4A of the Firearms Act 1996 provides: "4A (1) Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that: (a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or (b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or (c) on the evidence before it, the person was not in possession of the firearm. (2) In this section, premises means any place, vehicle, vessel or aircraft." 1. It follows that the applicant was in possession of the firearms. The suggestion that someone else may have secreted the firearms in the garage is no more than speculation. The same can be said about the suggested part played by the applicant's brother Ali. There is no evidence that Ali, or any other person other than the applicant, had any control of the garage premises before the execution of the search warrant took place. 2. The circumstances relating to the finding of the weapons are also important. There appears to have been little attempt to hide the 6 metre PVC pipe. From that it can be inferred that if it were not the applicant who was responsible for the placing of the weapons in that location, the person who was so responsible had no concern that the applicant or any other person who might be expected to use the barber shop would be suspicious or might take some action concerning the pipe. The same can be said about the three weapons found in the laundry. There appears to have been no attempt to conceal them which allows the same inference to be drawn. 3. The nature and seriousness of the offences are also significant matters. It is now notorious that shootings in Western Sydney are relatively common place. The unexplained cache of weapons discovered by the police at the applicant's premises had the potential to be used in a wide array of crimes, including those intended to cause loss of life such as drive by shootings. Of particular concern is that one of the weapons was a military style assault rifle of a similar kind to that used by Martin Bryant in the Port Arthur massacre. An automatic rifle of that kind has the capacity to deliver a substantial rate of fire with one press of the trigger with the commensurate capacity to cause significant harm if aimed at a crowd of people. 4. Assuming in the applicant's favour that he was not the person who placed in the weapons in the garage, the person or persons who did so were clearly planning significant criminality. The apparent acquiescence by the applicant in the storage of these weapons would inevitably involve him in that criminality. It is for that reason that the penalties provided by s 51D(2) of the Firearms Act 1996 are so substantial, i.e. imprisonment for 20 years with a non-parole period of 10 years. 5. There is a suggestion in the material provided by the Crown that the applicant has in the past had an affiliation with the Assyrian Criminal Network (The Last Hour). Members of that group have in the past been responsible for public place shootings. It is the advice of police that high profile organised crime groups utilise people with a limited criminal history to conduct activities on their behalf in order to avoid detection by law enforcement agencies. As has been previously been noted, police intelligence also indicated that the applicant's brother Ali has links to a motorcycle gang. 6. While these matters rise no higher than possibilities, and of themselves would be of low probative value because we do not know the basis for police suspicions, they cannot be ignored. This is particularly so in circumstances where a substantial arsenal of weapons has been found in premises owned and controlled by the applicant. 7. Given the seriousness of the offences with which the applicant has been charged and the implicit criminality associated with such a collection of weapons and the potential unlawful purposes for which they could be used, the Court is satisfied that to release the applicant on bail would constitute an unacceptable risk and that such a risk could not adequately be met by bail conditions. 8. In reaching that conclusion the Court is mindful that the applicant has already been in custody for 5½ months and that his trial is unlikely to come on for hearing until the first part of 2016 at the earliest. The Court is also mindful of the state of health of his wife and the difficulties which she will experience if he remains in custody. 9. When carrying out the balancing exercise which is required in a release application such as this, the Court is not satisfied that those considerations outweigh the protection of the public. 10. The release application is refused. ********** 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: 02 September 2015