R v Mansaray [2020] NSWDC 114

District Court New South Wales

Medium Neutral Citation: R v Mansaray [2020] NSWDC 114 Hearing dates: 3 April 2020 Decision date: 16 April 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [59] Catchwords: Possession of prohibited pistol without licence Legislation Cited: Firearms Act 1996 Cases Cited: Callaghan v R [2006] NSWCCA 58 Zreika v R [2012] NSWCCA 44 Category: Sentence Parties: Director of Public Prosecutions (Crown) Kassim Mansaray (Offender) Representation: Counsel: Mr Pickin (Offender)

Solicitors: Ms I Maxwell-Williams (Crown) File Number(s): 19/172076 Publication restriction: Nil

REMARKS ON SENTENCE 1. The offender is to be sentenced in respect of one charge of possess prohibited pistol without licence, to which he has pleaded guilty. The offence is pursuant to s 7(1) of the Firearms Act 1996 and it carries a maximum penalty of 14 years imprisonment and a Standard Non-Parole Period of 4 years imprisonment. 2. The offence occurred on 1 June 2019 and the offender has been in custody since his arrest on that day. At the time of the offending the offender was on parole, which was revoked on 1 June 2019 on the basis of the commission of the index offence, and previous failures to report and engage with any treatment, as well as use of an illicit drug.

The sentence hearing 1. The sentence hearing took place on 3 April 2020. The Crown Sentence Summary became Ex A. It included a Statement of Agreed Facts which may be summarised as follows. About 10pm on Saturday 1 June 2019, the police attended premises at Bankstown, responding to a report of a disturbance at the address which was occupied by the offender's brother. As police approached the front door of the premises, they saw the offender outside in a hallway and spoke to him. They searched a shopping trolley which was two to three metres away from the offender, and had two items of clothing in it, including tracksuit pants. Inside the pocket was a bankcard in the name of the offender's girlfriend. The offender indicated that the tracksuit pants were his. Also in the trolley was a jacket with a packet of cigarettes in one pocket. The offender indicated they were his. Police then located a black pistol with a wooden brown handle in another pocket of the jacket. The offender denied ownership of the pistol. He was then arrested. 2. Following examination by a ballistics expert, the pistol was found to be an "Edison Giocattoli" brand cap gun. It displayed similar external features in terms of form, size and appearance, of a revolver-style pistol. There was no evidence that the pistol was loaded, or that it was capable of firing a projectile of any kind. Rather, it was accepted that the pistol was an "imitation firearm that is an imitation of a pistol" for the purposes of s 4D(2)(a) of the Firearms Act 1996. 3. The offender was not authorised in any way or at any time to possess such a pistol. 4. Exhibit A included a photograph of the pistol, together with the criminal antecedents of the offender. They included an offence of goods in personal custody suspected being stolen in 2011; drug possession offences in 2014; traffic offences in 2014 and 2015, for which the offender received a fine; and in 2015 an offence of specially aggravated break and enter and commit serious indictable offence, for which he was sentenced to a term of imprisonment of 5 years and 9 months with a non-parole period of 3 years and 5 months commencing on 22 April 2015. An appeal to the Court of Criminal Appeal was dismissed. On 19 March 2019 he was convicted of two offences that occurred on 31 December 2018 of drive vehicle with illicit drug present in blood, and unlicensed driving, for which he was fined. 5. Exhibit A also included the offender's custodial history. It also included the facts on which the offender was sentenced by Judge Frearson SC on 30 November 2016, together with his Honour's remarks on sentence. 6. Exhibit A also included the order revoking the offender's parole and the breach of parole report dated 3 June 2019. 7. Exhibit B was a Sentencing Assessment Report under the hand of Ms H Whitley dated 1 April 2020. The author recorded that the offender had been staying with a cousin for approximately one week prior to the index offence. Problems arose between the pair of them during this stay which ultimately led to the index offence. The author further noted the offender's criminal history consisted of offences relating to violence, driving and illicit substances. Since being released from custody in September 2018, he had been convicted of three offences of driving under the influence of illicit substances. 8. Under the heading "Attitudes", the author noted that the offender had taken responsibility for the offence. She also noted that he claimed that his cousin had "set him up" for the offence, knowing this would involve breach of his parole order, however, he disavowed this at the sentence hearing. 9. Under the heading "Mental Health", the author noted that the offender had been diagnosed with Chronic Depressive illness including Post-Traumatic Stress Disorder ("PTSD") due to his exposure of the volatile environment in his home country of Sierra Leone when he was younger. He still suffers from recurring nightmares and has often turned to illicit substances as a means of coping. Whilst he had undertaken previous treatment to address his mental health issues, he was now reluctant to engage with further counselling. 10. Under the heading "Insight into impact of offending", the offender offered little insight into his offending and deflected blame onto others. The author noted that the offender claimed that he often makes impulsive decisions and acknowledged the need for him to stop and think things through prior to acting in the future. He stated that he was now willing to undertake interventions to address his criminogenic needs, and would engage with his GP for ongoing management and monitoring of his mental health. 11. The offender was assessed as a medium/high risk of re-offending and the author set out a supervision plan to prepare him for his return to the community.