El Ali v R

1. [1]

   BASTEN JA: On 5 July 2016 Khoder El Ali was arraigned before a jury panel on an indictment containing three counts. The first count alleged a conspiracy to import “firearms parts and firearms magazines” contrary to s 233BAB(5) of the Customs Act 1901 (Cth) and s 11.5(1) of the Criminal Code (Cth). He entered a plea of guilty with respect to this count.

2. [2]

   Count 2 alleged a conspiracy to possess more than three firearms, at least one of which was a pistol, contrary to s 51D(2) of the Firearms Act 1996 (NSW). Count 3 alleged that the appellant did sell or knowingly take part in the sale of a pistol to another person on three or more occasions in a 12 month period between 10 November 2011 and 9 November 2012, contrary to s 51B(1) of the Firearms Act. With respect to counts 2 and 3, the appellant entered pleas of not guilty. There was a trial before Whitford SC DCJ, which ran for some 40 days between 4 July and 9 September 2016.

3. [3]

   On 9 September 2016 the jury returned verdicts of guilty on counts 2 and 3. The appellant was later sentenced with respect to the federal offence to which he had entered a plea of guilty, the two counts on which he was convicted and 15 further counts on a separate indictment (to which he had also entered pleas of guilty) involving the provision of false or misleading information on applications for permits to acquire hand guns, contrary to s 70 of the Firearms Act.

4. [4]

   On 17 March 2017 Whitford DCJ sentenced the offender to an effective non-parole period of 13 years commencing on 13 March 2012 and expiring on 12 March 2025. The total effective sentence was 17 years, 3 months. The composite parts of that sentence will be considered in relation to the appeal against the sentence.

5. [5]

   Mr El Ali sought to appeal from his convictions and sentences. The length of the period of imprisonment, the complexity of the prosecution case and the nature of the challenges, primarily to jury directions, warrant a grant of leave to appeal from the convictions, so far as necessary. It will be convenient to refer to Mr El Ali as the appellant, or the accused in relation to the trial.

Background circumstances

1. [6]

   In outline, the evidence at trial demonstrated that, between 20 June 2011 and 6 February 2012 there had been 22 separate consignments of Glock pistols, either complete or in parts, sufficient to provide 129 complete pistols, and a further 14 incomplete pistols, together with 80 magazines. In most cases, overseas suppliers were asked to provide complete pistols, disassembled into parts, which were then misdescribed on the accompanying shipping documentation.

2. [7]

   The prosecution case involved a degree of reconstruction after the events, as the consignments up until February 2012 had not been intercepted. Further, although the appellant admitted in entering a plea to the federal offence that he had engaged in email communications with overseas gun suppliers in his own name, the prosecution case alleged that he also used at least three false identities, two of which were “Tony Ibbotson” and “Greg Richardson”, who were associated with a fictional Australian company “Secure Training Pty Ltd”. The third name was “George Koulakiti” of “Safari Arms Australia”. At one stage, a German supplier was instructed to apply funds received from Secure Training to stock ordered by Safari Arms Australia, and vice versa. When export permits had not been issued to George Koulakiti, a request was made that the guns be shipped to Tony Ibbotson.

3. [8]

   The appellant was charged with two named co-conspirators in Australia, Ahmed Karnib and Andrew Botros.

4. [9]

   In entering a plea to the first count on the indictment, the appellant admitted that he had engaged in communications with a Swiss gun supplier, placing orders in his own name for firearms, firearm parts and magazines contained in three consignments which were designated S1, S3 and S6. He also admitted to paying for them in his own name and having them delivered to his parents’ address. There were also complementary consignments, S2, S4 and S5, which were intercepted by customs authorities on arrival in Australia.

5. [10]

   The evidence linking the appellant to particular importations was complex. The written submissions for the Director of Public Prosecutions explained part of the process by reference to a particular Glock pistol recovered by police from a hidden compartment in a motor vehicle on 26 November 2014. Although the serial numbers had been obliterated, the police were later able to identify it as having been assembled from three main components (slide, barrel and receiver) with identifiable serial numbers.

6. [11]

   The slide and barrel were traced to a pistol ordered by the appellant in his own name from a Swiss firearms dealer, being part of an order of 12 complete Glocks made in June-July 2011. The consignment was approved for export by Swiss authorities after receiving from the appellant a falsified New South Wales police firearms form. The slides and barrels were imported in consignment S6 on 11 August 2011; the corresponding receivers and trigger mechanisms and other small parts were contained in consignments S4 and S5 seized after their importation in early August 2011. Consignments S1, S3 and S6 were delivered to the appellant’s parents’ address and he acknowledged receipt of them.

7. [12]

   The receiver (or hand grip) for the recovered Glock was not part of those deliveries. Rather, it was part of an order sent to a German dealer by a person using the identities of Tony Ibbotson and Greg Richardson, as part of a consignment of 20 Glock receivers and internal parts. Payment was made through a bank account in the appellant’s name and on one occasion from a branch near the appellant’s workplace on a day when he was at work. German authorities authorised the exports on receipt of two false Australian Department of Defence import permits for a person identified as Tony Ibbotson or Greg Richardson from Secure Training Pty Ltd. Arrangements for shipping were made by Ahmed Karnib after email correspondence from Tony Ibbotson. They were first shipped with a waybill, invoice and packing slip correctly describing the contents of the consignment as 20 Glock grip frames with identified serial numbers. However, when Karnib received pre-alert documents indicating that the contents were accurately identified, he arranged for false documents purportedly from an Australian customs officer requiring that the accompanying shipping documents describe the goods as “20 black plastic frames”. They were cleared for entry to Transitainer NSW, a freight forwarding company in Sylvania Waters where Karnib was employed.

8. [13]

   The web of communications allowed the prosecution to demonstrate with a degree of certainty that Tony Ibbotson was a name used by the appellant. By way of example, communications by Tony Ibbotson with the German supplier continued correspondence which had been originated by the appellant in his own name. He admitted sending the emails in his own name to the German supplier. Tony Ibbotson used similar vocabulary to that which the appellant had previously used.

9. [14]

   The appellant had obtained two genuine export permits which were said to be substantially similar to the false permits forwarded to the German supplier for provision to German authorities. The emails sent by the user of the identities in question were despatched in the middle of the night in Australia, at times consistent with the nightshifts worked by the appellant at Singtel Optus. Further, log records from his user account at Singtel Optus were consistent with him having visited numerous websites relating to firearms, including the websites of the Swiss and US suppliers.

10. [15]

    The user of three false identities said to be associated with the appellant requested the German supplier to disassemble complete pistols and package and misdescribe parts in a similar manner to that which the appellant had requested of the Swiss supplier in email correspondence sent in his own name. On the basis that there was a common element to the orders sent in the false names, the orders were complementary and would, when combined, permit the assembly of complete and fully operable Glock pistols, the various orders were linked to the appellant.

11. [16]

    The contents of a US consignment ordered under the name Simon Saltan were detected by a freight forwarder in Illinois. Alternative shipping arrangements were made by Tony Ibbotson, a person whose earlier activities had been limited to importations from the German supplier. Mr Karnib then arranged for a consignment to be shipped from Transitainer’s US office to himself in Australia. The arrangements were discussed in the course of an intercepted telecommunication on 17 February 2012 between the appellant and Karnib in the course of which Karnib indicated that he had undertaken the activity for the appellant.

12. [17]

    Payments for certain consignments from Germany were paid using PayPal accounts in the names of Greg Richardson and Michael Holm. The US supplier had been informed that Michael Holm was a friend of Simon Saltan. Michael Holm made orders and arranged shipments within the USA.

13. [18]

    A MyUS.com account used by Simon Saltan was billed to the appellant’s older sister. The telephone service used in connection with that account was one used by the appellant in corresponding with the NSW Police Firearms Registry, Australian Customs and Border Protection and the Department of Defence in his own name. Calls made to the German supplier from two different telephone numbers corresponded with services located at Singtel Optus in the room in which the appellant worked and occurred at times when he was rostered on. The calls were made in the names of Tony Ibbotson and Greg Richardson.

14. [19]

    Safari Firearms was a genuine Australian company with whom the appellant had had extensive dealings. George and Koulla were the parents of a person working for Safari Firearms, suggesting that the appellant had constructed the false identity George Koulakiti using their names. The telephone numbers provided to the German supplier by George Koulakiti were the same as, or substantially similar to, telephone numbers at the appellant’s workplace. (One eight digit number listed on the letterhead of Safari Arms Australia was only one digit different from appellant’s allocated work telephone number.)

15. [20]

    The prosecution sought to demonstrate not merely that the appellant was the moving party behind the importation of parts in complementary consignments which, when put together, could provide complete Glock pistols, but that he was responsible for the assembly of the parts in Australia into particular models.

16. [21]

    The complementarity of the parts in various consignments allowed an inference that they were to be reconstructed in Australia. Broadly speaking, the inference that the appellant was to undertake the reassembly of the pistols followed from a number of steps, including the following, as summarised in prosecution submissions to the following effect:

17. [22]

    The prosecution case supporting the appellant’s knowing involvement in the sale of pistols built upon the combination of circumstances with respect to their importation and reassembly. That included, for example, the price paid by the appellant for the importations. Further, there were escalating orders made progressively, consistent with funds being available from the profits of previously imported consignments. That inference was supported by the recovered firearms being constructed from parts of a single order. Further, the appellant had applied in mid-2011 for a firearms’ dealer licence which was a necessary requirement to sell firearms lawfully in the State.

18. [23]

    George Koulakiti, representing himself as a firearms dealer, indicated to a supplier that he had information from Greg Richardson as to the price paid to the German dealer and sought a similar price for his own company. In doing so, he noted the high demand for Glock products in Australia and the willingness to do further business.

19. [24]

    Overall, the correspondence to the German supplier inescapably supported the inference that the purchasers in Australia were in the business of dealing in firearms and sought the imported Glock pistols for sale in such businesses.

Issues on appeal

1. [25]

   The appellant’s notice of appeal identified seven grounds relating to the convictions. They were expressed as follows:

   1. (1)

      The trial miscarried due to the application of the decision in Director of Public Prosecutions (NSW) v Morgan. [1]

   2. (2)

      The trial judge erred in refusing a pre-trial application by the defence that count 2 be stayed.

   3. (3)

      The trial judge erred in not requiring the Crown to confine the way in which the charge of conspiracy to possess firearms was left to the jury due to latent duplicity.

   4. (4)

      The trial judge erred in directing the jury in relation to the possession of firearm parts.

   5. (5)

      The trial judge erred in allowing the full extended definition of sale to be considered by the jury in relation to an offence under s 51 and s 51B of the Firearms Act 1996 (NSW).

   6. (6)

      The trial judge erred in the directions to the jury on knowingly take part in sale.

2. [26]

   In substance, the first four grounds related to count 2 in the indictment and grounds 5 and 6 to count 3.

3. [27]

   Despite referring to the refusal of a stay of count 2, ground 2 will be dealt with in considering the challenges to count 3. That is because the basis of the stay was that count 3 allowed the jury to be satisfied as to selling or knowingly taking part in sale of a pistol, on the basis of having a pistol in possession for sale; count 3 was therefore said to be an aggravated form of possession, so that the jury could convict with respect to count 3 on the basis of their findings with respect to count 2.

4. [28]

   Grounds 1, 3 and 4 will be addressed together. Ground 1 is curiously formulated, but, as dealt with in submissions, involved a challenge to the directions given by the trial judge with respect to the relationship between a complete firearm and a disassembled firearm. The same issue underlay ground 4, relating to the directions with respect to possession of firearm parts.

5. [29]

   Ground 3 addressed the same issue in a different way, as explained in the written submissions: [2]

6. [30]

   Accordingly it is convenient to deal with grounds 1, 3 and 4 together.

Grounds 1, 3 and 4: Firearms and firearm parts

1. [31]

   In order to explain the thrust of the appellant’s case, it is necessary to have regard, first, to the legal principles on which the prosecution relied and, secondly, the judge’s directions to the jury. It is convenient to start with the legal principles.

2. [32]

   The relevant legal principles relate to three aspects of the prosecution case, as outlined above, namely (i) there was a conspiracy to unlawfully possess firearms, which involved the appellant and at least two other named persons; (ii) the firearms were to be disassembled before importation, and (iii) the firearm parts were to be reassembled in Australia. The appellant having pleaded to the counts under federal law of conspiracy to import firearm parts and firearm magazines, the fact of importation was not in issue. However, as explained above, the appellant’s involvement in the importations, and the manner in which the disassembled firearms were imported was an important aspect of the prosecution case in relation to possession in New South Wales. Such possession was a primary evidential basis for establishing the State conspiracy charge.

3. [33]

   Count 2 involved a conspiracy to engage in conduct contrary to s 51D(2) of the Firearms Act. That provision read at the time of the offending:

4. [34]

   Section 7, which appears in Pt 2 of the Firearms Act, prohibits possession or use of a “prohibited firearm or pistol” without a licence or permit. Because the present case was concerned entirely with pistols, it is not necessary to address “prohibited firearms”. Part 2, Div 2 provides for a licensing scheme; s 8 identifies the nature of the licences available under the Division, including relevantly category H licences with respect to pistols.

5. [35]

   Part 3 of the Act establishes a scheme for the registration of firearms. It is an offence to sell, purchase, possess or use a firearm that it not registered: s 36(1).

6. [36]

   Part 5 of the Act requires that persons may not carry on activities as a “firearms dealer” or possess a firearm in that capacity, unless authorised to do so by a firearms dealer licence: s 43.

7. [37]

   Part 6 is headed “Miscellaneous offences”. It includes prohibitions on purchasing a firearm unless the purchaser is authorised to possess the firearm (s 50) and prohibits purchase of a “firearm part” unless the purchaser is the holder of a licence for the kind of firearm to which the firearm part relates (s 50AA).

8. [38]

   There are restrictions on the sale of firearms to a purchaser who does not have a relevant licence or permit (s 51); on purchasing from a seller who is not authorised to possess the firearm (s 51A). Count 3 alleged a contravention of s 51B(1) of the Firearms Act which at the time of the offending provided:

9. [39]

   The bases of the charged contravention of s 51B(1), were multiple contraventions of s 51, which at the time of the offending provided:

10. [40]

    Part 1 of the Firearms Act contains a number of definitions relevant to the offences the subject of the charges, including the following:

11. [41]

    There were two other provisions which bore upon the issues raised on appeal. Thus, s 4 further provided, following the definitions:

Grounds 1, 3 and 4: directions to jury on conspiracy count

1. [42]

   The jury was provided with a document entitled “Elements directions”, formulated by the judge, with input from counsel. Counsel were asked to review the document on 30 August 2016; the prosecutor made minor suggestions on 1 September; defence counsel took no objection, nor did he draft alternative directions. The document was provided to the jury on 2 September. It adverted to the relevant definitions in the Firearms Act, to which reference has been made above. The judge took the jury through the elements in his summing up, without repeating all of the contents of the document. With respect to the definitions of firearm and pistol he stated: [3]

2. [43]

   The judge spent a little more time on the definition of “possession”, ending with the following passage: [4]

3. [44]

   The reference in appeal ground 1 to the judgment in Director of Public Prosecutions (NSW) v Morgan was misconceived. Mr Morgan had been charged with possession of a prohibited firearm, namely an AR-15 self-loading assault rifle. He advertised it for sale. Police recovered the rifle from Mr Morgan’s house, where it was dismantled and in parts. The lower receiver housing was missing. Without the housing the firearm could not operate. A magistrate dismissed the charge; the Director appealed to the Supreme Court. Applying s 4(2), Barr AJ concluded that the absence of a part required to make the weapon operable, did not prevent it being a “firearm” for the purposes of the Act.

4. [45]

   Although there was discussion of Morgan between the judge and counsel, the issue for present purposes is not whether Morgan bound the judge to adopt a certain construction of the definitions in the Firearms Act, nor whether Morgan was distinguishable from the present case, but whether the jury were correctly directed as to the meaning of the relevant provisions.

5. [46]

   On the appeal, counsel for the appellant relied upon the decision of this Court in Jacob v R. [5] Jacob was concerned with possession of a crossbow in breach of s 23B of the Weapons Prohibition Act 1998 (NSW). The defendant had a disassembled crossbow in a box. The conviction of the defendant was overturned by this Court. Of present relevance was the reasoning based on s 4(2)(a) of the Weapons Prohibition Act which, replacing “firearm” with “prohibited weapon”, reflected s 4(2)(a) of the Firearms Act. The principal judgment for the majority was given by R S Hulme AJ, with whom Ward JA agreed. Ward JA accepted a submission that “possession of part of a crossbow is not an offence under the Act and s 4(2)(a) should not be construed as turning a single part into the whole by a process of accumulation or accretion.” [6] However, the issue in that case was whether possession of all of the parts of a disassembled crossbow constituted possession of the crossbow. Ward JA continued:

6. [47]

   Ward JA rejected the second basis for upholding the appeal, on the basis that the definition contained no temporal element, but agreed with the first alternative, concluding that “I read s 4(2)(a) as contemplating that the ‘something missing’ is a component part of the whole item but not the main or principal part of the item.” A disassembled weapon was assumed to have a part (or perhaps all parts) “missing”.

7. [48]

   Johnson J dissented, noting: [7]

8. [49]

   Johnson J then stated:

9. [50]

   It is not easy to identify a ratio from the reasoning of the majority. This was not a case where any part was “missing”; rather, the whole of the weapon was present. As Johnson J noted, s 4(2)(c) of the Weapons Prohibition Act, which reflected s 4(3)(a) of the Firearms Act, contemplated that a weapon could be in parts and in the possession of two or more persons, in which case each person was to be regarded as possessing the weapon. In that statutory scheme, it is difficult to comprehend how, if all the parts were possessed by one person, that person would not possess the weapon. If it were necessary to do so, I would not apply the reasoning of the majority in Jacob to the equivalent provisions in the Firearms Act. However, it is sufficient for present purposes to note that the directions given by the trial judge to the jury faithfully replicated the language of the Firearms Act.

10. [51]

    The gravamen of the appellant’s complaints with respect to these directions is that the prosecution could have relied upon a case which it undoubtedly ran, namely possession of complete firearms constituted from the imported parts, and did not need to rely on provisions which supported an alternative possibility, against the event that the jury were not satisfied that the parts had been reassembled into firearms by the co-conspirators before they divested themselves of possession of those parts. That was the gravamen of ground 3. That issue was the source of an application for a direction that the judge should require the prosecutor to confine his case by reference to one or other of two propositions. In submissions on that motion, defence counsel identified the alleged duplicity in the following manner: [8]

11. [52]

    In response, the prosecutor submitted: [9]

12. [53]

    As explained by Spigelman CJ in R v B, [10] duplicity refers to the possibility of conviction on one of a number of distinct offences. With respect to conspiracy, it requires that the charge cover more than one conspiracy. In this case, as the Director submitted, there was but one conspiracy, namely an agreement to possess a number of firearms. The firearms were to be obtained in a disassembled state. The agreement relied upon may have involved the reassembly of the weapons before they were sold, but an illegal conspiracy was established without that further step being taken.

13. [54]

    In R v B, the conspiracy was to commit acts preparatory to the commission of a terrorist act. As Spigelman CJ observed:

14. [55]

    On the present charge, there was no issue about the ultimate acts, namely the sale of the pistols, because that was not an element of a conspiracy to possess. On the other hand, the fact that possession could take different forms did not mean that there was more than one agreement as to possession. In R v B, the Court approved the reasoning of Jordan CJ in R v Ongley: [11]

15. [56]

    There were broadly speaking, two steps in the conduct charged: the first step was to obtain the disassembled parts; the second was to reassemble complete weapons. The fact that the conspiracy might be effected by the first step did not mean that there were two separate conspiracies. The submission to the contrary appears to confuse the offence of conspiracy with the substantive offence of possession.

16. [57]

    In the course of argument on the appeal, counsel for the appellant stated: [12]

17. [58]

    It is apparent that the focus of the submission was upon the nature of the possession which in fact occurred, rather than the charge of conspiracy which depended upon evidence of possession.

18. [59]

    Grounds 1, 3 and 4 must be rejected.

Grounds 2, 5 and 6 – count 3

1. [60]

   Submissions with respect to ground 2 on the appeal were brief. The complaint was that “prosecution of the offence in count 2 was oppressive because the accused could be convicted three times on the same conduct which was in effect obtaining possession of firearm parts.” The submissions continued:

2. [61]

   The submission further noted that a lack of discrimination between the two counts was reflected in a jury note in the following terms: [13]

3. [62]

   After reading out the note to counsel, the judge immediately observed:

4. [63]

   The direction given by the judge, after an extended discussion with counsel, was, pertinently, in the following terms: [14]

5. [64]

   At the end of the directions, the judge again turned to counsel asking if there were anything he had overlooked; neither counsel required anything further to be said, nor that anything said be corrected.

6. [65]

   The written submissions with respect to ground 6 asserted three errors: [15]

7. [66]

   There were, as counsel for the Director pointed out, a number of difficulties with these submissions. First, although counsel raised issues at trial as to the meaning of “takes part in” a sale he did not raise the particular objections now sought to be relied upon. Written submissions relating to the definition of when a person “takes part in” the sale of a firearm were made by reference to s 51(3)(a) and (b). Subsection (c) was deliberately omitted and was omitted from the directions given by the trial judge. There was no submission that reference to providing or arranging finance for any step in the process should be omitted on the same basis, namely that it did not arise. The submissions did, however, make the point that steps which were taken prior to the reassembly of the firearms could not be treated as steps in the process of sale. By implication, that might have been understood as an indication that financing of purchases of the pistols for importation did not involve financing for sale.

8. [67]

   The submissions referred to similar reasoning in relation to the manufacture of drugs in Regina v BD. [16] In that case, Bell J (Stein JA and Greg James J agreeing) concluded that the obtaining and transporting of ingredients to be used in the manufacture of methylamphetamine could not constitute taking a step in the process of manufacture of that drug. On this reasoning, purchasing an item for resale would not be seen as a step in the process of resale; further, by parity of reasoning, financing the purchase of an item for resale would not be a step in the process of resale.

9. [68]

   In the course of further argument immediately prior to the prosecutor commencing to address the jury, counsel for the accused made lengthy submissions as to count 3, focusing on two points, first that a “sale” needed to be a completed transaction and, secondly, that there needed to be a disposal for “financial or material reward”. Although there was no express reference to the language of s 51(3)(b), it was no doubt consistent with counsel’s view that there needed to be a completed financial transaction that he was content to include in the jury directions reference to a person providing or arranging finance for any step in the process.

10. [69]

    His complaint now is that without further direction, the jury may have concluded that the appellant knowingly took part in the requisite number of sales on the basis that he provided finance for the importations.

11. [70]

    There was no discussion of this potential for misuse of the evidence before the jury; in the absence of an express request for a specific direction, this is a paradigm case for the operation of r 4 of the Criminal Appeal Rules. That is, the appellant should not be entitled to rely upon this aspect of ground 6 given the absence of request for a further or different direction.

12. [71]

    There are three underlying reasons for that conclusion. First, in the absence of any direction to that effect, it is quite unlikely that the jury reasoned in an impermissible way. It is far more likely that they took into account the financial involvement of the appellant in acquiring pistols as an indication that his possession of those pistols was for the purposes of sale. That reasoning, based on the commercial nature of the enterprise, would have been legitimate.

13. [72]

    Secondly, because the jury could have legitimately used the expenditure of moneys to acquire the pistols as evidence of the purpose of his intended possession, very careful attention would need to have been given to the formulation of any additional direction. Forensically, a further direction would not necessarily have been in the interests of the accused.

14. [73]

    Thirdly, in these circumstances, this was not a case in which the absence of a direction caused any readily identifiable unfairness to the accused, of a kind which would warrant disregarding the purpose of r 4.

15. [74]

    The second objection taken under ground 6 was to the second example given by the trial judge in his final directions to the jury on this issue. The appellant said that both examples relied upon the concept of “possession for sale” and were therefore unhelpful as examples of “taking part in the sale of a firearm.” [17] However, the first example was a person who “although they were not possessing it for sale themselves, they might have just been possessing for safekeeping, their provision of it to somebody who they knew was going to sell it is taking part in the process of a sale”. The same was true of the second example. The criticism is misguided.

16. [75]

    It appears from the written submissions that the real basis of the challenge was a rerunning of a dispute in submissions made to the trial judge. Thus the appellant stated that the examples came from a written submission made by the prosecutor to the trial judge (dated 29 August 2016) which described the situation as “analogous to the provision of precursors in a charge of taking part in the manufacture of a prohibited drug (see Regina v Marchione [2002] NSWCCA 131]).”

17. [76]

    The appellant said the analogy was false. That may be so, but the trial judge did not use that analogy in addressing the jury. Nor was it implicit in the direction that he did give. The challenge must be dismissed.

18. [77]

    The third basis of challenge under ground 6 was that the trial judge failed to give sufficient guidance as to the limits of conduct which might fall within the language of “causing or allowing a sale.” [18] The submissions quoted the last passage in the direction, which has been set out at [63] above. However, as appears from the last sentence, the judge was repeating something he had said earlier, in relation to “possession for sale”, namely that the definition included “causing or allowing any of those other means of being involved in a sale to occur.” As explained by counsel for the Director, the effect of the directions was as follows: [19]

19. [78]

    If some further guidance or instruction were required as to what might be involved in “causing or allowing” others to take the identified steps, then, in the absence of any evidence directed to such matters, careful consideration would need to be given to the formulation of further examples, beyond those already provided. In the abstract, it is not apparent that a further example would have been helpful; none was sought. There should not be a grant of leave pursuant to r 4 to challenge the absence of directions on this basis.

Conclusions as to convictions appeal

1. [79]

   None of the grounds of challenge to the convictions on counts 2 and 3 having been made good, the appeal against conviction must be dismissed.

Sentence appeal

1. [80]

   With respect to the federal offence of conspiracy to import firearm parts, to which the appellant pleaded guilty, the judge imposed a sentence of imprisonment for 8 years with a non-parole period of 5 years 6 months. The sentence was fixed to commence on 13 March 2012, being the date of the appellant’s arrest.

2. [81]

   The judge then imposed an aggregate sentence with respect to the State offences, other than the breach of bond, for which he imposed no sentence. The aggregate sentence was 16 years 9 months, with a non-parole period of 12 years 6 months. The State sentence was fixed to commence on 13 September 2012, thus accumulating it on 6 months of the federal sentence. The overall sentence period was therefore 17 years 3 months with an effective non-parole period of 13 years.

3. [82]

   With respect to the State offences, the judge indicated individual sentences which would have been imposed, if not imposing an aggregate sentence. First, in dealing with the 15 separate offences of providing false information with respect to applications under the Firearms Act, the judge broke the offences into four groups: two offences took place in April 2009, five in April-May 2009, three in May 2010 and five in March 2011. The judge indicated an increasing level of sentencing, commencing with 1 year 4 months with respect to the first two offences and concluding with 2 years with respect to the last five. The total of the indicative sentences for these offences, after taking account of the pleas, was 25 years 5 months. Clearly, had they been imposed individually, there would have been a high degree of accumulation.

4. [83]

   Secondly, with respect to the charge of conspiring to possess three or more firearms, the judge indicated an individual sentence of 15 years imprisonment would have been imposed.

5. [84]

   Thirdly, with respect to the offence of selling or knowingly taking part in the sale of a pistol on three or more separate occasions in a 12 month period, the judge indicated a sentence of 9 years imprisonment would have been imposed. As the offence carried a standard non-parole period of 10 years, he indicated a non-parole period, namely 6 years 9 months, for that offence.

6. [85]

   Before turning the proposed grounds of appeal with respect to the sentencing, it is important to note the reason for the high level of accumulation on the federal sentence, which meant that less than 10% of the non-parole period was served solely with respect to that offending. A similar effect may be seen with the two major State offences. The aggregate sentence of 16 years 9 months demonstrated a very high degree of concurrence between the two major offences; similarly, the non-parole period of 12 years 6 months revealed a similar effect, the hypothetical non-parole period for the conspiracy to possess offence being in the order of 11 years 3 months and the identified non-parole period for the offence of taking part in sales being 6 years 9 months.

7. [86]

   This effect was anticipated and explained at the outset by the sentencing judge: [20]

8. [87]

   When dealing with the offence of knowingly taking part in the sale of firearms, the judge further noted:

9. [88]

   Finally, in dealing with totality, concurrence and accumulation, the judge stated:

10. [89]

    While it was entirely appropriate for the Director to formulate charges which covered the totality of the known offending, there might have been greater transparency achieved by formulation of charges which avoided the high degree of overlap correctly identified by the sentencing judge. However, while the sentencing task (and the management of the trial) were rendered unnecessarily difficult, the judge was alert to the difficulties at all stages; they gave rise to no error in the sentencing exercise.

11. [90]

    The reasons given by the sentencing judge in imposing sentence were detailed, comprehensive and persuasive. They are available online. There is no purpose in repeating what the judge said, except to the extent necessary to address the grounds of the proposed appeal. Although it is concluded below that the appeal must be dismissed, both the complexity of the exercise and the length of the sentence itself warrant a grant of leave to appeal.

Grounds of appeal

1. [91]

   The notice of appeal contained the following four grounds relating to the sentencing:

Grounds 8 and 9 – manifest excess

1. [92]

   The appellant’s submissions in support of ground 8 (manifest excess) focused on the indicative sentence on count 2 of 15 years, which counsel described as (i) 90% of the aggregate sentence for the State offences, and (ii) almost twice the length of the sentence fixed for the federal offence. One reason why it was so high, the submission continued, was that the conspiracy to sell took into account both the pistols which had been imported pursuant to the conspiracy to import, and the further steps to import pistols and magazines which had not in fact arrived in the country. Thus the judge had noted at [18]:

2. [93]

   There were three elements to the submission which may be addressed seriatim. First, while the proportions of the sentences identified above are arithmetically correct, they are of little relevance. Thus, with respect to the component parts of the aggregate sentence, it is unsurprising that the aggregate sentence was greater than the longest of the indicative sentences; the question for the sentencing judge was by how much, having regard to the length of all of the component parts of the sentences for the State offences, together with issues of appropriate concurrence and totality.

3. [94]

   Secondly, to identify, in the abstract, the relationship between a sentence for one offence and a sentence for another is apt to be misleading. It was arithmetically correct to say that the sentence for the State offence of conspiracy to unlawfully possess was almost twice the sentence imposed for the federal offence; but, significantly, the maximum penalty for the State offence, were it not a conspiracy, would have been twice the maximum penalty for the federal offence.

4. [95]

   The appellant also compared the sentences for the two State offences. Although the penalty for the conspiracy charge was theoretically at large, it is true that the respective penalties for the conspiracy to possess and knowingly taking part in sale were the same, namely 20 years. The significantly greater sentence imposed for the conspiracy charge, according to the appellant, demonstrated “disproportion”.

5. [96]

   The discrepancy was, however, readily explained. Following the comments as to the correspondence between the two offences in the passage at [50], set out above, the sentencing judge continued:

6. [97]

   The judge then explained that the scope of the conspiracy to possess was more extensive, both in the number of weapons and the steps taken. The charge involving knowingly taking part in sales, was to be assessed by reference to a lower number of pistols and to a more limited operation, over a specific period.

7. [98]

   As the judge explained in some detail, the appellant was “the architect and person primarily responsible for the prosecution of the objects not only of the conspiracy to import, but indeed of the entire broader illicit enterprise of which the conspiracy to import was merely the initiating step”. [21] As a result, heavy sentences were imposed, in the case of the federal offence, being 80% of the maximum penalty, and in the case of the State offence, being 75% of the maximum penalty for an individual offence of that kind.

8. [99]

   It is not necessarily relevant to identify disproportion between the various actual and indicative sentences for different offences; but if it were relevant, no such disproportion was demonstrated in the present matter. Where offences involve common elements of criminality, as well as disparate elements, that fact must be taken into account; precisely how it is taken into account will be a matter for the sentencing judge. There is no basis for concluding that the judge did not make proper allowance for the common elements of the separate offences in the sentencing exercise.

9. [100]

   Thirdly, while the statement at [18] of the sentencing judgment (set out at [92] above), referring to future importations, appeared to be at the heart of the appellant’s submissions, it occurred in a passage of the reasons dealing with the conspiracy to import. Relevantly, the judge further stated, with respect to the State offence (conspiracy to possess):

10. [101]

    The extent of the future importations may be gleaned from the summary of the matters, including [7(3)], which the judge identified as being established beyond reasonable doubt on the evidence:

11. [102]

    There was no error in identifying an extant conspiracy which extended to the commission of overt acts which had not yet occurred. That fact was material and was taken into account with respect to both the federal and State charges of conspiracy.

Ground 10 – subjective case of offender

1. [103]

   There was little that was open to objection in the judge’s consideration of the offender’s personal circumstances. They were dealt with in some detail over 21 paragraphs of the judgment on sentence. The appellant’s complaint was that the judge had given insufficient weight to certain facts, namely (i) that he had been on remand for 5 years prior to trial, (ii) his good custodial record, and (iii) his prior punishment for importation offences arising from the same conspiracy.

2. [104]

   With respect to the first matter, as the appellant acknowledged, the judge expressly dealt with the delay between the time of charging and the date of sentence. [22] The judge said that he would “give the attendant delay some weight in the offender’s favour, but in all the circumstances and for the reasons outlined in the Crown’s written submissions, it will be limited.”

3. [105]

   The written submissions on sentence provided by counsel for the Director included a detailed account of the steps taken in the proceedings. [23] In part, the delay was attributable to interlocutory proceedings which extended the contested committal hearing from 9 December 2013 to 20 August 2015. There was no suggestion of unwarranted delay on the part of the prosecution. Nor did the submissions in this Court identify any reason why the judge’s assessment of the “limited weight” to be given on account of the period between charging and determination of the proceedings was erroneous.

4. [106]

   As to the second matter, it was in the appellant’s favour that his custodial record was good. The written submissions for the offender on sentence merely referred to the lack of access to work and education opportunities as a prisoner on remand, but placed no weight on his custodial record. [24]

5. [107]

   Little was made of this ground in the hearing of the appeal and any submission would have needed to explain how that record could assist in relation to a conspiracy which was, the judge said, “prolonged, sophisticated and involved significant and repeated dishonest conduct”, and was motivated by a desire for personal financial gain. [25] Further, the judge noted, “[t]here was patently disregard for public safety attending every aspect of the pursuit of this broader criminal enterprise.” [26] Finally, the judge found:

6. [108]

   The judge’s conclusions with respect to the prospects of rehabilitation were assessed in the following passage:

7. [109]

   In some cases, a good custodial record may provide a basis for assessing prospects of rehabilitation. That was not this case. No reason has been shown to cast any doubt on the judge’s findings in this regard.

8. [110]

   The third matter relied upon was the failure of the judge to give weight to previous penalties imposed for offending which formed part of the conspiracy. How those offences were to be taken into account was not explained on the appeal. The judge noted the offences and the fact that the appellant had been convicted and fined $30,000. [27] It was a matter which he addressed in the context of considering prior good character and the absence of a recorded criminal history. There was no submission that this material was relied upon in some other way on sentence, which was disregarded. Nor was it explained how this material might have been deployed as a basis for leniency.

9. [111]

   Ground 10 should be rejected in each part, as without substance.

Ground 11 – special circumstances

1. [112]

   Ground 11 asserted that there were “relevant matters” which the sentencing judge disregarded in declining to make a finding of special circumstances so as to interfere with the statutory regime regarding the component parts of a sentence of imprisonment. [28] It is true that the judge did not make a finding of special circumstances: he stated: [29]

2. [113]

   In written submissions, counsel for the appellant contended:

3. [114]

   Counsel for the offender at sentence submitted that such a direction should be made, for the reasons identified above. However, none of them was persuasive. In particular, the accumulation of the State offence on 6 months of the federal offence raised the overall proportion of the total non-parole period to the total sentence by less than 1%. No adjustment was needed on that account. The ground is without substance.

Conclusion

1. [115]

   There should be a grant of leave to appeal from the aggregate sentence imposed for the State offences, but the appeal must be dismissed.

Orders

1. [116]

   The Court should make the following orders:

   1. (1)

      To the extent necessary, the appellant should have leave to appeal from his convictions following verdicts of guilty on counts 2 and 3 in the second indictment.

   2. (2)

      Dismiss the appeal against the convictions.

   3. (3)

      Grant the appellant leave to appeal against the aggregate sentence imposed for the State offences in the District Court on 17 March 2017.

   4. (4)

      Dismiss the appeal against the sentence.

2. [117]

   SIMPSON AJA: I agree with Basten JA.

3. [118]

   N ADAMS J: I have had the advantage of reading the judgment of Basten JA in draft. I agree with the orders his Honour proposes for the reasons provided by his Honour.