District Court New South Wales Medium Neutral Citation: R v Mirad [2016] NSWDC 336 Hearing dates: 21 November 2016 Date of orders: 02 December 2016 Decision date: 02 December 2016 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: (1) The offender is convicted and sentenced to an overall term of imprisonment of three years. (2) The non-parole period to be served is two years, to commence from 24 March 2016; (3) The non-parole period expires on 23 March 2018, and thereafter, the offender is to be released on parole to serve an additional term of one year imprisonment from 24 March 2018 to 23 March 2019 under supervision of Community Corrections. Catchwords: CRIMINAL LAW – possess unauthorised pistol - possess ammunition – not keep firearm safely – use, supply, acquire or possess defaced firearm – rationale behind s 7(1) of the Firearms Act 1996 (NSW) SENTENCE – aggravating factors – previous convictions – mitigating factors – likelihood of reoffending Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 32, 21A(2), 21A(3), 44(2), 47(3) Crimes Act 1900 (NSW) s 61 Firearms Act 1996 (NSW) s 7(1) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 R v Mirad [2004] NSWSC 701 R v Najem [2008] NSWCCA 32 Thalari v R [2009] NSWCCA 170 Category: Sentence Parties: Regina (Crown) Mr Sandro Mirad (Offender) Representation: Counsel: Mr G Harrison (Offender) Solicitors: Ms C Kirkpatrick (Solicitor for the Office of the Director of Public Prosecutions) File Number(s): 2016/91784 Publication restriction: Nil Judgment 1. Mr Sandro Mirad appeared before me for sentence on 21 November 2016 having pleaded guilty to an offence of being in possession on 24 March 2016 at Bonnyrigg of a prohibited firearm being a .38 calibre Smith and Wesson revolver, not being authorised to do so by licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW). [1] 2. The facts were that on 2 March 2016 police executed a search at the offender's premises located at Bonnyrigg. Upon arrival, police knocked on the front door and introduced themselves and served a Weapons Prohibition Order and Firearms Prohibition Order on the offender. Upon arrival, police asked the offender whether he wanted to declare any firearms which he had in his possession. The offender said: "Yeah, there is one here you know that." 3. The offender then escorted police to his bedroom and pointed to a Louis Vuitton bag on the top shelf of his wardrobe. Police opened the bag and located a Smith and Wesson .38 calibre revolver, along with 26 loose .38 calibre rounds. This was wrapped in a black cloth. A search of the firearm revealed it to be loaded with 6 unfired rounds, as well as having the identifying serial number ground off. 4. The offender was placed under arrest and cautioned. He was conveyed to Fairfield Police Station where he participated in an electronically recorded interview. The offender made full admissions to the possession of the firearm and told police he came into possess of the firearm two years ago. He told the police that he had a friend that went missing and that: "… as soon as we found out he went missing, we went looking for him, and then we got in the house and found it there, took it out of the house and it's been with me since." The offender then told police that he needed the firearm for self-defence. 1. The offender has never held a firearms licence. 2. The offender was further charged with offences of:- 1. Possess ammunition without holding a licence/permit/authority; 2. Not keep firearm safely – pistol; and 3. Use, supply, acquire or possess defaced firearm. 1. These other matters have been listed in a Form 1, which I have been requested to take into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). [2] 2. Before me, the offender sought to rely on a report of Dr Amanda White, forensic psychologist and clinical neuropsychologist dated 31 October 2016. Dr White obtains a history which she records as follows:- "In regard to the current charges, Mr Mirad made frank admissions. He recounted that 2 – 3 years ago, he had found his friend's firearm in his premise when looking for him. His friend was missing, suspected murdered by a rival group. Mr Mirad said that he did not want his friend's family, whom he was close too [sic], to find the weapon. He stated that he did not know of a safe way to dispose of the weapon and hence had decided to keep it stored at his premise. He said that he had initially handled the gun, ascertained that it was loaded but didn't want to 'play around with it' and so he left it as it was. He said that [sic] had forgotten about the weapon until a few months ago. He said that the Police had started coming around to his home on a daily basis, making him nervous. He said that he had asked the Police why and if they were worried and they apparently responded 'if we didn't think anything, we wouldn't be here.' Mr Mirad reportedly interpreted this to mean that his life was in danger. He lived with his parents at the time and worried for their safety also. He admitted that in the past few months prior to his arrest he had consciously viewed the gun as a source of protection. He said that when the Police had approached his family home with a warrant he openly declared the weapon and handed this over to the Police." [3] 1. In evidence before me, the offender repeated the account given to Dr White. 2. The offender conceded in evidence before me that the police were involved in the search of the premises, where he located the gun, but stated that he did not raise it with the police, and that it was his stupidity to take and keep it. Both parties accepted that maintaining the firearm for self-defence was not a mitigating factor. 3. The Crown drew attention to the fact that because police were attending on the offender, his belief about being under threat and needing to keep the firearm was illusory and not real. 4. Overall, it was submitted that the offence fell within the mid-range of objective seriousness. 5. The offender's counsel conceded that the possession of a loaded firearm for the offender's own protection was not a matter of significance or mitigation, since the policy of the legislature evinced by the enactment of the offence under s 7(1) of the 1996 Act, was to act as a deterrent and to punish possession. [4] 6. I do not accept the offender's submissions that he did not know a safe way to dispose of the weapon. Overall his limited explanation for having the weapon in question is plainly not a matter of mitigation. 7. Matters which elevate the objective seriousness is the possession of the firearm over such an extended period in an urban residential area. 8. Overall I accept the Crown submission that the circumstances of this offence to fall within the medium range of objective seriousness. AGGRAVATING FACTORS 1. The offender has a record of previous convictions. Of particular significance is the fact that he was convicted and sentenced in relation to an offence of being an accessory after the fact to murder, in respect of which he was sentenced to a period of two years and six months imprisonment commencing on 11 March 2003. The judgment of Barr J reveals that Mr Mirad at the time was a member of what was known as the De Baz group which was in conflict with another group. Two co-offenders fired on members of the other group, killing the deceased, and then returned to an awaiting car. The principal component of the offender's criminality in that matter was waiting for the murderers and providing them with an effective means of escape. In fixing a non-parole period of one year and six months, Barr J stated:- "[24] I think that what I take to be the desire of the offender to lead a more useful life, together with the facts that this will be his first custodial sentence and that he will need assistance in obtaining suitable work and avoiding contact with persons of bad character combine to require a parole period exceeding one quarter of the head sentence." [5] 1. Of relatively lesser significance to the offence of being an accessory after the fact to murder, the offender also has convictions that in March 1995, and in May 1996 he committed the offence of violent disorder, in respect of which he was respectively ordered to pay a fine and perform 100 hours of community service. A conviction for an assault under s 61 of the Crimes Act 1900 (NSW) as a juvenile is also noted in respect of which, the offender was placed on a six-month recognisance bond to be of good behaviour. 2. These are matters I take into account to the extent required by s 21A(2)(d) of the 1999 Act. MITIGATING FACTORS Remorse 1. Both in Dr White's report and before me, the offender expressed remorse for his actions. 2. Dr White specifically records: "Mr Mirad said that he had spent much of his time in custody reflecting on his past actions and behaviours. He commented that he was "disappointed" in himself and upset that he had let his family down and felt bad for the distress he had caused them. He vowed not to put himself in situations in future which may result in legal difficulties." [6] 1. Before me, the offender stated that he felt ashamed and humiliated and can't believe that he put his family through this. He stated that he thought the "last time was it and now this." 2. In the pre-sentence report it is recorded that the offender reflected upon the offence that in attempting to minimise one family's suffering he had returned to custody and subsequently pained his own family. He acknowledged his wrongdoing in obtaining the weapon saying: "I shouldn't have had it" and considered his incarceration to be justified. 3. Further, it was submitted that the offender had shown remorse by cooperating with police and making full admissions and recognising the consequences of his actions. 4. In all I am satisfied that the offender has provided evidence of remorse in accordance with s 21A(3)(i) of the 1999 Act. Plea of guilty 1. It is accepted that the fact that the offender pleaded guilty at the earliest opportunity he was entitled to a discount of 25%. Likelihood of reoffending 1. The offender was born in Iraq and migrated to Australia when he was four years old. He is the second eldest of six children and he has no extended family in Australia. He attended Fairfield High School until the completion of Year 10, when he was 16 years of age. Thereafter he pursued a mechanics course through TAFE NSW and has since worked as a subcontractor for a phone company, in a trolley collection role and for his brother's pizza restaurant. 2. According to Dr White's report, the offender described growing up in a poor neighbourhood and that he and his friends "didn't have anything." He said that he had "wanted to be part of something" and consequently had fallen into some "wrong crowds." He stated that he did not want to be perceived as a "victim" and felt pressured to engage in antisocial activities. His life changed when he was gaoled in 2004 and commented that gaol "opened [his] eyes." 3. He stated that since his release from gaol in 2005, he tried to distance himself from his former associates and kept them at "arm's length," although he remained cordial and polite so as to keep up appearances. He told Dr White that he had made a conscious attempt to change his lifestyle. The offender said that he retained a few close friends, some of whom he admitted he had been in trouble with in the past. [7] 4. The offender separated from his wife and has no dependents. The pre-sentence report reveals that he is acting as his parents' carer and assisting in the family business. Contact with the offender's sister has revealed that she has offered steadfast support in spite of his incarceration. 5. The pre-sentence report noted that following his last period in custody, the offender took part in eight sessions of the 'Life Skills Transition Program.' However, his sessions expired on 10 September 2005. It was noted that the offender did all that was required of him and his circumstances regarding his home and work life appeared to be stable. 6. The pre-sentence report also notes that whilst the offender did have a history of associating with the organised criminal network 'Dlasthr'. The offender denies being involved with the gang since his previous exit from custody. However, the offender acknowledged that the gun belonged to a previous gang associate and that he clearly continued to interact with previous associates as confirmed in Dr White's report to the point that he says he required the gun for self-defence. 7. According to the pre-sentence report, the offender has expressed an intention to once again return to familial supports and avoid negative associations. He has additionally indicated a willingness to comply with any community intervention deemed necessary to avoid re-offence. Before me, the offender confirmed these intentions. 8. The offender has been assessed as someone who would not benefit from developmental programs due to his low/medium LSI-R [8] rating. However Community Corrections has stated that the offender would benefit from case management strategies including referral to psychological services if deemed necessary and monitoring of association. [9] 9. According to Dr White's report, the offender enjoys engaging in a literacy program and recognised the need to increase his literacy and technology skills in order to increase his employment prospects in the future. Dr White reported that he had good people and sales skills and hoped to secure stable employment upon his release, and once his parents' health improved. He was eager to engage in work related programs whilst in custody. Dr White stated the results of her assessment suggested that the offender was in a high – moderate risk of re-offending and identified several issues which the offender could address to reduce his risk of re-offending. Dr White noted that although the offender had already distanced himself from many of his anti-social peers, he remained somewhat connected and within the same community. [10] 10. Dr White opined that the offender was still vulnerable to peer pressures and that changing his environment would decrease such influences. Dr White stated that:- "Mr Mirad is likely to benefit from formal supports in the community post release as it appears he lacks prosocial supports. He is likely to be somewhat resistant to significant change in the community partially due to his personality and also his limited adaptive skills and hence he will likely require and benefit from external formal support sources and externally implemented structure to increase his chance of living a prosocial lifestyle in future. He will benefit from education and individual counselling to assist him in learning to respond to others in a positive and respectful manner and to teach him to be conscious of his pessimistic and antisocial thoughts and tendencies. Such educational programs may be able to commenced in custody. Mr Mirad has limited educational and vocational history of which he is fully cognisant and appears to be working to improve his future prospects, engaging in educational programs offered in custody. He will likely require and benefit from a case manager to assist him with employment post release. Gainful employment will provide Mr Mirad with a new focus and hopefully introduce him to more prosocial behaviours and individuals, further reducing his risk of reoffending." [11] 1. The offender stated before me that he had left his associates a long time ago and has nothing to do with them. That may be the position since his return to custody, however it was not the case at the time of the offence evidenced by the admissions referred to earlier and his statement that he needed to keep the gun in the last few months for self-defence. 2. Overall, I accept that the offender has a medium risk of reoffending and will require a longer period of supervision in the community once he is released from custody. DETERMINATION 1. The rationale behind s 7(1) of the Firearms Act 1996 (NSW) was described by Hulme J in R v Najem: "[40] … That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others rights." [12] 1. The factors as to the state of the firearm are encompassed in the charges the subject of the Form 1 which I have been requested to take into account pursuant to s 32 of the 1999 Act. I do so in accordance with the judgment of the Court delivered by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [13] noting the need for greater weight to personal deterrence and retribution in sentencing. 2. The offender acknowledged that the gun in question was loaded with ammunition, unsecured (accepted on the offender's own admission before me) and had the serial number defaced. 3. Within the terms of s 3A of the 1999 Act there is need for punishment personal and general deterrence. I bear in mind his previous offending. There is also a need to make the offender accountable and to denounce his conduct. In light of his expressions of remorse, the lengthy interval before his last offending and strong family support I regard his prospects of rehabilitation as reasonable. 4. The offender has been in custody since 24 March 2016. It is acknowledged that time is to be calculated from that date pursuant to s 47(3) of 1999 Act. 5. In looking at the maximum penalty for the offence, it is noted that it can cover a range of circumstances involving numbers and types of firearms Sentence 1. Bearing in mind the maximum penalty and standard non-parole period and considering his plea of guilty, I propose to sentence him as follows: 2. I find special circumstances by reason of the need for the offender to serve a longer period of parole and vary the statutory ratio pursuant to s 44(2) of the 1999 Act. 3. But for the plea of guilty, I would impose an overall sentence of four years. 4. In light of his plea, the offender is hereby convicted and sentenced to an overall term of three years imprisonment to commence on 24 March 2016 and to expire on 23 March 2019. 5. I set a non-parole period of two years imprisonment to be served from 24 March 2016 to 23 March 2018 6. The offender is thereafter to be released on parole to serve an additional term of one year imprisonment from 24 March 2018 to 23 March 2019 under supervision from Community Corrections. Endnotes 1. Hereinafter the "1996 Act" 2. Hereinafter the "1999 Act" 3. Exhibit 1, Report of Dr Amanda White dated 31 October 2016, pp 4 – 5 4. Thalari v R [2009] NSWCCA 170 at [88] (Johnson J with Young JA and Latham J agreeing) 5. R v Mirad [2004] NSWSC 701 at [24] (Barr J) 6. Exhibit 1, Report of Dr Amanda White dated 31 October 2016, p 5 7. Exhibit 1, Report of Dr Amanda White dated 31 October 2016, pp 2 – 3 8. Level of Service Inventory – Revised actual risk/needs assessment tool 9. Pre-Sentence Report, p 3 10. Exhibit 1, Report of Dr Amanda White dated 31 October 2016, p 7 11. Exhibit 1, Report of Dr Amanda White dated 31 October 2016, pp 7 – 8 12. [2008] NSWCCA 32 at [40] (Hulme J with Beazley JA and Latham J agreeing) 13. (2002) 56 NSWLR 146 Amendments 07 December 2016 - In paragraph [34], change "who not benefit" to "who would not benefit" 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: 07 December 2016