R v Ah-Keni [2019] NSWDC 237

District Court New South Wales

Medium Neutral Citation: R v Ah-Keni [2019] NSWDC 237 Hearing dates: 17 April 2019 Decision date: 17 April 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Full time imprisonment of 5 years 3 months for the offence of, using an unauthorised pistol; and 3 years for firing a firearm in a public place. Catchwords: CRIME - SENTENCE - using an unathorised pistol - firing a firearm in a public place Legislation Cited: Firearms Act 1996 (NSW) s7; Crimes Act 1990 (NSW) s.93G(1)(b) Cases Cited: R v GWM [2012] NSWCCA 240 Category: Sentence Parties: Regina (Crown)

Offender: Raymond Ah-Keni Representation: Mr Clayton (ODPP)

Mr Jiang (Counsel for the offender) File Number(s): 2018/229300 Publication restriction: Nil

Judgment 1. Raymond Ah-Keni, you appear for sentence today in relation to two offences. 2. The first offence is using an unauthorised pistol. This involves a contravention of s 7 of the Firearms Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 4 years imprisonment. 3. The second offence is firing a firearm in a public place. This involves a contravention of s 93G(1)( b) of the Crimes Act. The maximum penalty for that offence is 10 imprisonment and there is no standard non-parole period. 4. The facts surrounding these offences are substantially contained in an agreed statement of facts, which slightly recast by me as to style but not substance, are as follows. 5. As at July 2018, you were on bail in connection with alleged offences of resisting and hindering police and assaulting police. 6. Whilst on bail, you and Mr Inoke Leo decided (whilst you were on, what is described as, a bender of illicit drugs) it would be a good idea to play a prank on a taxi driver by holding a gun to the driver's head in order to scare him. (That intention is agreed to by the Crown although there were circumstances I shall refer to in a moment which could have led the Crown to come to a different conclusion; but that is what the Crown has agreed to.). 7. In the early hours of the morning of 22 July 2018, Mr El Masri was working as a taxi driver. He was studying to better himself. And to assist him in his studies and to assist his young family, which included his wife who was pregnant with their third child, he was working as a taxi driver. 8. Using your mobile phone, you and your co-offender booked a taxi. It was unfortunate for Mr El Masri that he was allocated the task of answering that booking. 9. You gave a pick up address at Yagoona and a drop off address in Burwood when you booked the cab. The pick up address was about 160 metres from where you lived. 10. Mr El Masri went to the pick up point but no one was there. He left but he was soon required to return to the pick up area. Shortly before 5am, you and your co-offender approached that taxi and you and your co-offender got in it. 11. Your co-offender sat in the front. You sat in the rear. Both of you smelt of alcohol - and therefore the "bender" that you had been on was not limited to illicit drugs. 12. When the taxi arrived in Guildford, the taxi pulled over and stopped. This was at about 5.13am. 13. You then produced a pistol from the jumper you had been wearing. The agreed facts do not tell me where you got that pistol from. 14. The agreed facts do tell me that you then racked that pistol in the passenger seat. Although the agreed facts do not state this, the only rational inference in the circumstances is that you had some familiarity with the operation of a pistol in order for you to be able to rack it. 15. As a consequence of you racking that pistol, an unfired round fell onto the floor. Although the agreed facts do not tell me this, the only rational inference in the circumstances is that you were aware that that unfired round had fallen from that gun and that you were therefore aware of the potential of the gun still being loaded. You then placed the barrel of the pistol to the neck of Mr El Masri. 16. Instinctively, out of fear and out of the need for self-preservation, he managed to grab your forearm. There was a struggle and the gun went off, because there was at least one other round in that pistol. 17. Fortunately for everybody, Mr El Masri was not shot, your co-offender was not shot, you were not shot, and any member of the public who might have been in the vicinity was not shot. What happened was that only the windscreen was damaged. 18. You and your co-offender then ran from the scene, as did your victim. 19. You were arrested in relation to this offence on 25 July 2018, that is three days later, when you reported to police in answer to your bail - which was then revoked. 20. The Court is required to make a finding of the objective seriousness of each of these offences for offences of their kind. 21. In relation to the first offence, it is above and into the upper range. In relation to the second offence, it is a mid-range offence. 22. The Court has been given a victim impact statement by Mr El Masri, as well as a report from his treating psychologist. He also has a treating psychiatrist. What you did to that man, that night, has been to profoundly shatter his life - not only his life, but the life of his wife and his three children. 23. The severity of the post-traumatic stress disorder suffered by your victim exceeds what might be expected for victims of a crime of this type and therefore that is one additional aggravating factor of your offending. 24. A second additional aggravating factor was the grave risk of death to another person. 25. A third additional aggravating factor is that this offence was committed whilst you were on conditional liberty. 26. A fourth additional aggravating factor is that your victim was vulnerable. 27. You did not give evidence in the sentencing hearing. Your subjective circumstances (that is, things personal to your background and factors connected with the offending) have come through the report of Dr Chew, who is a consultant psychiatrist. 28. You are now 23 years old. 29. You were born in New Zealand and came to this country when you were 11. You have one brother and one sister. It would seem that your father was an alcoholic and that there was some physical abuse in the household when you were growing up. 30. You had an unremarkable schooling. You left school at Year 12 and you have undertaken an apprenticeship as a carpenter. 31. You have abused alcohol and cannabis since you were 12. You have also abused ecstasy, cocaine and ice since you were 16. In fact in the period leading up to your offending behaviour, you were consuming 3 to 4 grams of cocaine a day, as well as using 5 to 15 Zanax tablets and Oxycontin. 32. It would seem that you were earlier involved in a motor vehicle accident and that the injuries that you received in that accident have been exacerbated by your illicit drug use. 33. There is, however, no causal connection between your drug taking, your mental issues, the motor vehicle accident and your offending behaviour. 34. I have been given some evidence today that suggests that, as a result of the motor vehicle accident, you have commenced proceedings for damages. No doubt the Crown will inform the victim of your offending conduct of your claim in order that he may take legal advice as to whether he, in turn, has a claim for damages against you. 35. At the time that you committed these offences you had a minimal criminal history - that is, apart from your long term illegal consumption of drugs. 36. You have the support of your mother and siblings and you have a trade to go to when you are released from prison. They are positive factors in assessing your prospects of rehabilitation. 37. You have, however, not given sworn evidence of any remorse. You have purported to express remorse to Dr Chew and in the document which is exhibit 2, but I treat those unsworn expressions of remorse with considerable caution. 38. Since you have been in custody, you have been a less than model inmate. You have been found guilty on two occasions of possessing prohibited drugs, being in possession of an offensive weapon, and receiving an unauthorised article from a visitor. 39. Your prospects of rehabilitation in my view are guarded. 40. No sentence other than one of full time custody is appropriate for these offences. 41. Considerations of general deterrence (that is, imposing a sentence that will discourage others from similar offending), specific deterrence (that is, imposing a sentence that will discourage you from further offending), and the protection of the community are all fully engaged - as, of course, is the need to encourage your rehabilitation. 42. You are entitled to a 25% discount because you entered a plea of guilty whilst the proceedings were in the Local Court. 43. I decline to make a finding of special circumstances. No persuasive reason for making such a finding has been advanced; and I note that the Court of Criminal Appeal has made it clear that Judges of this Court too easily make findings of special circumstances – e.g. R v GWM [2012] NSWCCA 240. 44. It has been submitted by the Crown that there may be some room for partially accumulating each of these sentences. But I have concluded that as they are, in effect, one continuous act of criminality. The sentences should be totally concurrent. 45. You were sentenced in relation to the matters that you were on bail for in the Local Court on 25 July 2018. You were sentenced to a period of imprisonment of 8 months, with a non-parole period of 3 months which expired on 24 October 2018. 46. By having regard to totality, the sentences which I shall impose upon you today will be backdated to date from 24 October 2018, when that non-parole period expired. You have been held in custody since that time, solely referable to these current charges. 47. What you did on this night was not only foolish, it was highly irresponsible and extremely dangerous criminal conduct for which you must pay a serious price. You are very fortunate that the Crown has agreed that the circumstances commenced out of some need to play a practical joke. 48. So far as the offence of use unauthorised pistol is concerned, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 7 years. But, because of the plea of guilty, the term of imprisonment is 5 years and 3 months. The non-parole period is 3 years and 11 months to date from 24 October 2018 and which will expire on 23 September, 2022. I fix a balance of 1 year and 4 months, to date from 24 September 2022 and which will expire on 23 January 2024. 49. In relation to the firing of the firearm in a public place, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years. Because of the discount of 25 per cent, the term of imprisonment is 3 years. That is to be served as a fixed term of imprisonment, to date from 24 October 2018 and which will expire on 23 October 2021. 50. Whether you are admitted to parole, Mr Ah-Keni, is largely in your hands. It will be up to the parole authority but if you continue to misconduct yourself in gaol, the way you have misconducted yourself to date, your possibility of parole is in peril. You will now go downstairs with the officers, thank you.