R v Khosravi [2018] NSWDC 363

District Court New South Wales

Medium Neutral Citation: R v Khosravi [2018] NSWDC 363 Hearing dates: 06 July 2018 Date of orders: 06 July 2018 Decision date: 06 July 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Aggregate sentence of imprisonment of four years, three months, with a non-parole period of two years and six months. See [30]. Catchwords: SENTENCING — Multiple offences – Firearms Act – 1996 – unauthorised possession in aggravated circumstances – unauthorised possession of prohibited firearms – unauthorised possession of firearms generally – Drug Misuse and Trafficking Act – supply of prohibited drug – multiple Form 1 matters taken into account Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Mack v R; Mack v R [2009] NSWCCA 216 Muldrock v The Queen (2011) 244 CLR 120 Pearce v The Queen (1998) 194 CLR 610 R v Brown [2006] NSWCCA 249 R v Lachlan [2015] NSWCCA 178 R v Mahmud [2010] NSWCCA 219 R v XX [2009] NSWCCA 115 Texts Cited: None Category: Sentence Parties: Regina (Crown)

Alex Khosravi (Offender) Representation: Mr I Lloyd QC (Offender)

Mr Walkowiak (Crown) File Number(s): 2016/360975

Judgment 1. An offence under section 51D (2) of the Firearms Act 1996 of unauthorised possession of firearms, is an aggravated offence carrying a maximum penalty of 20 years imprisonment which reflects the seriousness with which the legislature regards possession of multiple firearms. The rationale behind the section was explained by Spigelman CJ in R v Brown [2006] NSWCCA 249 at [21] - [22]; When s 51D was introduced by the Firearms Amendment (Public Safety) Act 2002, the Minister said: Firearm related crime is a major concern for both police and the community." The offence, in a series of offences relating to firearms in the Firearms Act 1996, is directed to persons who are engaged in the warehousing of firearms for sale. A person so engaged plays a critical role in the perpetration by other criminals of the worst crimes of violence in this community. The maximum sentence reflects the important role that such conduct plays in the injuries inflicted upon members of the community by deadly weapons. 1. As the Courts have said on many occasions and recently in R v Lachlan [2015] NSWCCA 178, as cited by Mr Lloyd QC who appears for the offender today, sentences imposed for such offences must operate as real disincentives to those otherwise attracted to the illegal possession of firearms. 2. Alex Khosravi, who was born in 1986, appears for sentence having pleaded guilty to a number of matters the most serious of which is an offence under s 51D(2) of the Firearms Act. As I have indicated it carries a maximum penalty of 20 years imprisonment and a standard non parole period of ten years. He also appears for sentence in relation an offence s 7(1) of possessing and using a prohibited weapon without a permit, a ballistic plate. The offence carries a maximum penalty of 14 years imprisonment with five years standard non-parole period. 3. The items which are the subject of the s 15D(2) count are, as numbered one to five in the statement of agreed facts: 1. a shortened 12 gauge Bentley pump action shotgun, which was inoperable due to a damaged firing pin; 2. a shortened Norinco self-loading rifle, which was not in working order, due to a missing recoil spring bolt carrier, bolt and rear housing; 3. a .375 Holland Dinoland bolt action repeating rifle; 4. a .38 automatic self-loading pistol; and 5. .045 revolver Callan of Belgium manufacture five chamber revolver, not in working order due to poor condition, missing part of the trigger mechanism and a hammer spring. 1. The second s 7(1) offence relates to a magazine capable of use in a semi-automatic rifle, and the third s 7(1) offence relates to a home-made silencer. All these items were found during a search of the offender's premises at Gladesville on 1 December 2016. 2. To be taken into account on Form 1 attached to the s 51D offence are a number of other firearms matters; one, a possess an unauthorised firearm s 7A(1) being an imitation AKMS rifle; the second count in relation to soft body armour vests; the third count, under the same section, in relation to solid body armour vests; the fourth count in relation to a box magazine; a count under s 65(3) of possess ammunition without holding a licence, being seven cartridges of .38 calibre; and a second count under 65(3) relating to 26, 7.62 millimetre cartridges. 3. Two further principal counts that are to be dealt with, first, under s 25(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 15 years and no standard non-parole period, relating to 8.66 grams of cocaine which was found in a wardrobe in what is described as a fortified room at the premises, and second, a count under the same section relating to 127.2 grams of butanediol also found in the same wardrobe. To be taken into account on Form 1 under that second drug offence are two further counts under s 25(1) relating to 4.94 grams of methylamphetamine found and 40.8 grams of gamma butyrolactone, both amounts also found in the wardrobe. 4. The Form 1 matters will be dealt with in the way suggested by the Chief Justice in the guideline judgment, by taking them into account with a view to increasing the penalty that would otherwise be appropriate on the principal offences giving greater weight to the need for a personal deterrence and the community's entitlement to extract retribution for serious offences. 5. The offender pleaded guilty at an early stage and it is common ground that he is entitled to a 25% discount on a term of imprisonment for the utilitarian value of the plea. Mr Lloyd concedes that a term of full time custody is appropriate and mandated by the circumstances of this case and it is unnecessary for me to consider any alternatives under s 5 of the Crimes (Sentencing Procedure) Act 1999. 6. I have had regard to confidential material relating to a submission concerning s 23 of the Crimes (Sentencing Procedure) Act and having dealt with the matter in closed court I need do no more than indicate that a further 10% discount on the term of imprisonment is appropriate in those circumstances, there having been no challenge by either counsel to that proposition when it was suggested during the course of submissions. So a total discount of 35% will be applied to the terms of imprisonment to be imposed. I must of course take into account the purposes of sentencing set out in s 3A of the Act and it is unnecessary to repeat them. 7. I propose to commence the term of imprisonment which will be imposed from 2 December 2017 in the exercise of my discretion, having regard to questions of totality and accumulation and bearing in mind the criminal record and the custodial history of the offender. It is agreed that he has been in custody on this matter only for a total of three months and 15 days. First, from his arrest on 1 December 2016 until he was granted bail by the Supreme Court on 10 February 2017. He was then in custody on another matter from 2 September 2017 until the expiration of the non-parole period on 1 June 2018, and there essentially being no application for bail made on the expiration of his parole, the further period from 1 June to 2018 to today constitutes the total of three months and 15 days in custody only in relation to these matters. 8. His record, as Mr Lloyd submits, does not contain any prior drug offences and in the light of that there was an argument that, if dealt with alone, those matters may have been dealt with by non-custodial sentence, but I make no firm finding on that submission because it is unnecessary to do so. There were offences in 2004 of possess instruments, larceny and affray and a serious offence in 2006 which I accept relate to an incident at a social function where he maliciously inflicted grievous bodily harm on a person with intent and was sentenced to six years and nine months, with a non-parole period of three years and nine months expiring on 13 March 2011. 9. He was, on the evidence that I accept, able to stay out of trouble for about five years and appears to have commenced what was initially a reasonably successful and prosperous carpentry business which fell upon hard times for reasons which are not completely explained by the evidence. After his arrest and subsequent release on bail in this matter, he was as I have said, returned to prison on 2 September 2017 for offences of police pursuits, driving recklessly, driving unregistered vehicle and driving while disqualified. It was against that background that I reached the conclusion that the imprisonment should commence on 2 December 2017. 10. The offender has not given evidence today and Mr Lloyd acknowledges the difficulties that that presents in making findings as to a number of matters. It also leaves the Court in somewhat of a vacuum as to the reasons as to why the offender was in possession of the numerous items to which I have referred. 11. I do take account of references that have been provided by Mr Saeedi, a Bankwest employee and a long-term friend of the offender who speaks favourably of him; of a Mr Shahidi, a pharmacist who has known him for a considerable time; and from Mr Di Nunzio who is the offender's brother-in-law. They all indicate, as I have said earlier, that for some years he was able to engage in a positive work after his release from custody in 2011, but due to a number of events, including the sale of the business property, relocation and other staff issues he appears to have fallen upon hard times. 12. Dr Nielssen, psychiatrist, prepared a report following a consultation in April 2018. He notes that one of the two people referred to in the agreed facts Ms Cool, who were co-residents of the premises at the time of the offending, is now his girlfriend and I have a reference from Ms Cool indicating her continued support and her desire to make a family with him on his ultimate release. 13. The history given to Dr Nielssen was that at some unspecified time, perhaps around 2015, he fell into drug use and through his association with drug dealers became involved in firearms. His family history appears to be uncontroversial. He is the youngest of three children whose family came to Australia from Iran and they were actually involved in the Baha'i faith and the activities of that faith at a temple on Mona Vale Road. 14. Dr Nielssen diagnosed a substance use disorder and a substance related psychosis, but Mr Lloyd prudently does not put that there is any DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 type discount or consideration operating in this case. I do accept Dr Nielssen's prediction that his prospects of rehabilitation are good on the basis of his performance after the previous imprisonment and his apparently considerable talent for carpentry and other forms of mechanical work as attested to by a number of the authors of the references. As Mr Lloyd submits he has demonstrated a capacity to rehabilitate himself and stay out of trouble and build a business. 15. I have been greatly assisted by helpful and comprehensive written submissions prepared by Mr Lloyd and by the Crown Prosecutor; this has enabled them to limit their oral submissions accordingly. The Crown reminds me of the statements by the High Court in Muldrock v The Queen (2011) 244 CLR 120, as to the significance of the standard non-parole period and the general principles in relation to firearms possession offences and, as Mr Lloyd puts, there is no contest with the jurisprudence set out in those submissions and they need not be repeated. 16. I do need to consider the objective seriousness of at least those offences carrying the standard non-parole period and of all the offences in general. It has been indicated from both sides of the Bar table that their submissions as to objective seriousness are put properly and compendiously in a general fashion as to the overall offending without identifying particular categories of objective seriousness for any particular offence. 17. The matters that have to be taken into account, as authorities such as Mack v R; Mack v R [2009] NSWCCA 216 and R v Mahmud [2010] NSWCCA 219 indicate, are the number of firearms, the number which are prohibited or are pistols, and the self-loading pistol and the revolver fit into that category, the nature and type of the firearms and the purpose for possessing the firearms. The Crown's submission is that possession of the firearms and the drugs for the purpose of supply reflects the purpose for which the offender possessed the firearms. That is probably a common sense inference but in the absence of any evidence one way or the other, it is not a matter I could find beyond reasonable doubt against the offender. Another factor to consider is whether there is any evidence showing any relationship between the possession of the firearms with the drug industry. Again, although that inference is readily open, in the absence of further evidence, I am unable to be satisfied to the requisite standard. Another factor is the location of the property and the security under which they were kept. Against his interests the offender told Dr Nielssen that the fortified room was only capable of being locked from the inside and the room is in a residential premises occupied by two others. 18. Mr Lloyd's submission is that the overall offending is towards the low range, whereas the Crown submits that it falls towards the mid-range of objective seriousness. My finding is somewhere between those two points, so it is unnecessary to go any further beyond saying that it is below mid-range but, above the low-range. 19. The Crown points to the matters set out in relation to the drug supply offences but submits that his possession of the various prohibited drugs, in conjunction with firearms that are prohibited weapons, is indicative of the offender being significantly engaged in supply prohibited drugs and that is a fair conclusion in the light of the evidence and pleas of guilty. 20. Mr Lloyd notes that an aggravating factor is his record of previous convictions, but as the Crown properly concedes the practical effect of his prior record is to disentitle him to any leniency which a person of prior good character might have. 21. In terms of mitigating factors there was no harm or injury caused to the public thereby slightly diminishing the objective seriousness of the offending. He has reasonable prospects of rehabilitation and I think following some period of reflection while in custody he is unlikely to re-offend given the support that he has and his expressed wish to engage in counselling. 22. Although Mr Lloyd's written submissions suggested that a letter of apology from the offender would be forthcoming, his instructions to Mr Lloyd this morning were that he had said all that he could usefully say to the psychiatrist. Mr Lloyd's concessions recognise the extremely limited value of such an untested history. I am unable to accept in the light of the untested history that his reason for the possession of firearms was due to the development of a delusional fear following his drug use. 23. The Crown's submissions comprehensively deal with the question of assistance under s 23, the Form 1 matters and questions of totality. I need not refer to them any further beyond what has already been said. 24. The Crown does not challenge the finding of special circumstances, but reminds the Court not to double count by an overly generous finding of special circumstances. However as Mr Lloyd submits in the light of the questions of accumulation and his apparent need for ongoing counselling under an extended period of supervision it would be appropriate to make a finding of special circumstances. 25. I take into account as was said in Pearce v The Queen (1998) 194 CLR 610 and R v XX [2009] NSWCCA 115, in relation to questions of totality and accumulation so that the combined period in custody will not exceed that which was warranted to reflect the totality of the separate offences. The Crown concedes, as I have indicated, the need for some partial accumulation upon the current sentence. 26. I have also taken into account, as Mr Lloyd submitted, the numerous tables set out in the Public Defender's web site and the statistics to the limited extent to which they are of use 27. The orders that I make are: 1. The offender is convicted of each offence, 2. I impose an aggregate sentence of imprisonment of four years and three months, to commence on 2 December 2017 and expiring 1 March 2022. 3. I impose a non-parole period of two years and six months, expiring on 1 June 2020. 4. The indicative sentences (after the 35% discount) are: 1. Sequence 9, taking into account the Form 1 matters: three years and seven months, with a non-parole period of two years and one month. 2. Sequence 13: one year with a non-parole period of six months. 3. Sequence 14: ten months with five months non-parole period. 4. Sequence 16: nine months with four months non-parole period, 5. Sequence 24: 12 months; and 6. Sequence 25, taking into account the Form 1 matters: 15 months. 1. I find special circumstances 2. I order that the drugs, firearms and other articles be destroyed. Note – This ex-tempore judgment was revised without access to the court file.