El Samman v R

1. [1]

   As to ground 2:

   1. (1)

      The sentencing Crown accepted that the absence of prior convictions was a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). In her remarks, the sentencing judge noted that the applicant had no criminal history. While her Honour did not go on to state how she had had regard to the absence of a prior criminal history as a mitigating factor, nothing more was required when the remarks were considered overall: [133]-[134] (N Adams CJ at CL, Hamill J at [151] and Muston J at [152] agreeing).

   2. (2)

      The sentencing judge also failed to address the applicant’s submission that his good character was a mitigating factor under s 21A(3)(f) of the Sentencing Act, which was contested by the sentencing Crown. While it would have been reasonably open to her Honour not to make this finding, her Honour was required to make a finding either way to resolve the issue in contention between the parties: [135]-[139] (N Adams CJ at CL, Hamill J at [151] and Muston J at [152] agreeing).

2. [2]

   As to re-sentence:

   1. (1)

      The applicant’s sentence was mitigated on account of his previous good character but only to a limited extent. His prospects of rehabilitation were found to be good given recent evidence of his progress in custody. However, the applicant engaged in a very serious course of conduct, gave an “inherently implausible” account of his offending and had “extremely qualified” remorse: [144]-[148] (N Adams CJ at CL, Hamill J at [151] and Muston J at [152] agreeing).

3. [1]

   N ADAMS CJ at CL: By notice of appeal filed on 28 October 2025, the applicant, Khalil El Samman, seeks leave to appeal against the sentence imposed on him by her Honour Acting Judge Latham in the District Court of New South Wales on 17 November 2023. The applicant pleaded guilty to seven firearms and weapons related offences, with a further nine offences taken into account on two Forms 1: Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 (“Sentencing Act”).

4. [2]

   After applying discounts of 5% to the indicative sentences for his late plea of guilty, the applicant was sentenced to an aggregate term of 14 years’ imprisonment with a non-parole period of 9 years. The sentence commenced on 2 June 2021. The non-parole period will expire on 1 June 2030, and the head sentence will expire on 1 June 2035.

5. [3]

   The applicant seeks leave to appeal against the aggregate sentence on the following three grounds:

6. [4]

   The applicant filed a Notice of Intention to Appeal on 21 November 2023. The Notice of Appeal was not filed until 28 October 2025, which is out of time pursuant to r 3.5(2)(a) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The applicant has applied for leave to file the notice of appeal out of time. In support of this application, the applicant relied on the affidavit of his solicitor, Ali Hallani, sworn on 28 October 2025. The delay was partially explained by difficulties in obtaining legal aid funding after failing to obtain private funding.

The offences

1. [5]

   The applicant was sentenced for the following seven offences:

   1. (1)

      One offence of supply explosives for an unlawful purpose contrary to s 93FA(2) Crimes Act 1900 (NSW) (count 1): Maximum penalty of 3 years’ imprisonment or 50 penalty units;

   2. (2)

      One offence of supply prohibited firearm on three or more occasions within a 12-month period contrary to s 51B(1) Firearms Act 1996 (NSW) (count 2): Maximum penalty of 20 years’ imprisonment and Standard Non-Parole Period (“SNPP”) of 10 years;

   3. (3)

      Four offences of sell prohibited weapon to a person without a permit contrary to s 23A(1) Weapons Prohibition Act 1998 (NSW) (counts 3, 4, 5 and 6): Maximum penalty of 14 years’ imprisonment; and

   4. (4)

      One offence of possess prohibited firearm contrary to s 7(1) Firearms Act (count 7): Maximum penalty of 14 years’ imprisonment and SNPP of 4 years.

2. [6]

   Nine further offences were taken into account on two Form 1 documents:

   1. (1)

      In relation to count 2, four offences of supply ammunition to an unauthorised person contrary to s 65(1) Firearms Act: Maximum penalty of 50 penalty units;

   2. (2)

      In relation to count 7:

Agreed Facts

1. [7]

   Agreed Facts were placed before the sentencing court. In her Honour’s remarks on sentence, the sentencing judge noted that the Agreed Facts were “lengthy and detailed”. The manner in which her Honour summarised the Agreed Facts is the subject of the applicant’s first ground of appeal.

2. [8]

   The following summary is based on the Agreed Facts.

3. [9]

   The applicant’s offences were committed during a controlled operation by police that was carried out between February and May 2021. An undercover operative contacted the applicant through an encrypted mobile phone application “Ciphr” to arrange the purchase of firearms, ammunition and explosives. The applicant conducted the purchase negotiations and agreed upon a time and place for the exchange. On four separate occasions, the applicant personally attended the exchange and supplied the firearms. On one occasion (1 March 2021), the applicant arranged for a driver to attend in his stead.

4. [10]

   In summary, on 1 March 2021, the applicant supplied Undercover Operative 613 (“UCO613”) with 28 explosive sticks and ignitors through an intermediary.

5. [11]

   On 7 February 2021, UCO613 initiated contact with the applicant over Ciphr. He used the username “Fiend” and the applicant used “K-Union”. UCO613 asked the applicant whether he wanted to “get rid of some goodies”. The applicant replied that for $100,000 he could supply 70 explosive sticks and ignitors. He sent photographs of these items.

6. [12]

   UCO613 told the applicant he was not willing to pay $100,000 for the explosive sticks and ignitors and tried to negotiate the price down. The applicant was not receptive.

7. [13]

   On 18 February 2021, UCO613 contacted the applicant again over Ciphr. He asked whether the explosive sticks and ignitors were still available, and after some back and forth, the applicant replied on 22 February 2021 that he had 28 remaining and would accept $50,000 in exchange. UCO613 agreed. On 26 February 2021, the applicant advised that Monday 1 March 2021 would be most suitable for the exchange. He further advised that, “Diamonds driver will have it bro” and that he would let UCO613 know where to meet shortly.

8. [14]

   On 1 March 2021, the applicant advised UCO613 that his driver was coming from the “coast” so somewhere around the Hills District would be best. UCO613 suggested the Bunnings car park at Castle Hill at 4:00pm to which the applicant agreed.

9. [15]

   At about 4:30pm, UCO613 sent a message to the applicant over Ciphr advising that he had arrived and gave his location in the Bunnings car park. Shortly after, a white Toyota Camry parked next to UCO613. The co-accused, Thomas Rosewarn, got out of the front passenger seat with green and blue coloured shopping bags. He placed them in UCO613’s back seat.

10. [16]

    UCO613 asked Mr Rosewarn, “You K-Union’s mate?” and he replied, “Yeah, yeah”. UCO613 handed Mr Rosewarn $50,000 and said, “Do I just go through old mate?” and Mr Rosewarn said, “Yes”. Mr Rosewarn then got back into the white Toyota Camry and left the scene. The entire exchange was surveilled by police and subject to video and audio recording.

11. [17]

    UCO613 messaged the applicant over Ciphr saying, “Hey bro hope ur boys got home all good. I’m sweet” and, “Thanks for sorting it mate. I feel bad u didn’t make a earn. Next time something comes up I will make sure it sorted”. The applicant replied, “no problems”.

12. [18]

    Over the next few days, the applicant messaged UCO613 to try and arrange the on-sale of eight of the explosive sticks and ignitors. However, UCO613 advised that he was going to keep them “for rainy day if u know what I mean”.

13. [19]

    Police seized the 28 explosive sticks, which were confirmed to be an explosive known as a “Rockracker”, and ignitors. This gave rise to count 1 (supply explosive).

14. [20]

    In summary, on 25 April 2021, the applicant supplied Undercover Operative 675 (“UCO675”) with a Norinco model SKS self-loading rifle, a 30-round magazine for the SKS rifle, and 19 rounds of ammunition.

15. [21]

    On Saturday 18 April 2021, the applicant sent a photograph of a firearm to UCO675 over Ciphr. UCO675 used the username “Z€€K” and the applicant used “K-Union”.

16. [22]

    The applicant advised that he was waiting for the firearm to arrive from his supplier in Melbourne and that it would sell for about $30,000. UCO675 asked how many rounds came with it and the applicant replied, “2 magazine. I have plenty rounds here bro”. UCO675 agreed to buy the firearm and asked the applicant to let him know when he was ready to do the exchange.

17. [23]

    On 20 April 2021, UCO675 contacted the applicant over Ciphr and asked him how much longer until the firearm was ready to be picked up. The applicant sent five photographs including of two additional firearms.

18. [24]

    The applicant told UCO675 that the black firearm was a “mashin gun hand made from Russia”. UCO675 told the applicant he was interested and asked him to “Give me ur best price for all 3”. The applicant told UCO675 that the rifle would be “20k on me”.

19. [25]

    The sentencing judge found that:

20. [26]

    The following day the applicant contacted UCO675 to arrange the exchange details. The applicant told UCO675 to meet at the post office in Bankstown. UCO675 agreed and asked the applicant to meet him on the rooftop level of the West Terrace car park. At about 8:57pm, police observed a silver Range Rover SUV enter the rooftop level of the car park and stop directly behind UCO675’s grey utility. The applicant got out and spoke with UCO675.

21. [27]

    UCO675 asked the applicant if he was “K-Union” and he nodded his head to indicate yes. The applicant agreed to return to his shop “Big Brands Big Names” (a business operated by the applicant) to collect the firearm. Police observed the applicant drive away and pull up at the rear lane entry of his shop. He entered the premises and re-emerged about 10 minutes later. He then drove back to meet UCO675.

22. [28]

    At about 9:15pm the applicant pulled up next to UCO675’s grey utility. The applicant opened the rear tailgate of the silver Range Rover SUV and showed UCO675 a black bag which contained a white hessian bag that was wrapped around the firearm. The bag also contained 19 bullets, a magazine, and other accessories related to the firearm. UCO675 took the items and placed them in his grey utility. UCO675 gave the applicant $25,000 and they parted ways. The entire exchange was surveilled by police and subject to video and audio recordings.

23. [29]

    The items seized gave rise to the following counts:

    1. (1)

       Norinco model SKS self-loading rifle – “Supply 1” in count 2 (supply prohibited firearm);

    2. (2)

       30-round magazine attached to the SKS rifle – count 3 (sell prohibited weapon); and

    3. (3)

       19 rounds of ammunition – Form 1 for count 2 (supply ammunition).

24. [30]

    In summary, on 4 May 2021, the applicant supplied UCO675 with an SKS self-loading rifle which had a 30-round magazine and silencer fitted to it as well as a second 30-round magazine and 437 rounds of ammunition. The applicant also supplied a shortened .22 self-loading rifle with a 13-round magazine fitted to it and 21 rounds of ammunition. The subject of the first ground of this appeal relates to the sentencing judge’s summary of this transaction.

25. [31]

    On 25 April 2021, the applicant contacted UCO675 over Ciphr. The applicant sent four photographs of several firearms.

26. [32]

    The following day, UCO675 asked for the price of the firearms. The applicant sent another two photographs of multiple firearms and replied that he would sell two for $40,000. UCO675 asked about the specifications of the two the applicant was offering to sell and said, “Look after me on the price brother”.

27. [33]

    The applicant then sent another photograph of a firearm which he said was worth $85,000.

28. [34]

    On 27 April 2021, UCO675 advised the applicant that he wanted to buy the two smaller firearms and the larger firearm. The applicant advised, “The big one sold for 80k yesterday” and “Bro he going to sell the skk!”. The following day, UCO675 confirmed that he will buy the two smaller firearms for $45,000.

29. [35]

    After a few failed attempts to meet, on 30 April 2021, the applicant advised UCO675 that he was arranging a driver to pick up the firearms from Melbourne along with a few other “pieces” for himself. The applicant reassured UCO675 that he will put aside the two firearms for him. He also advised that his supplier now wanted $50,000 for both firearms. The applicant confirmed that he would also require his cut to be put on top of that because, “U know every one want to make money”.

30. [36]

    Between 1 and 3 May 2021, the applicant and UCO675 confirmed the deal and planned to meet on 4 May 2021. At about 2:10pm on that day, UCO675 drove to the laneway adjacent to the applicant’s shop “Big Brands, Big Names”. He contacted the applicant over Ciphr and asked him to open the black gate. The applicant replied that he would meet him in the laneway. At about 2:24pm, UCO675 walked towards the applicant who was standing next to a black Mercedes Benz G-Wagon.

31. [37]

    The applicant opened the rear tailgate of the Mercedes Benz G-Wagon and UCO675 observed a black rifle bag which contained the relevant items. UCO675 transferred these items to his grey utility. UCO675 gave the applicant a black plastic bag which contained $55,000 in cash. They discussed the future supply of firearms before UCO675 returned to his car and drove away. The entire exchange was surveilled by police and subject to video and audio recordings.

32. [38]

    The items seized gave rise to the following counts:

    1. (1)

       SKS self-loading rifle – “Supply 2” in count 2 (supply prohibited firearm);

    2. (2)

       30-round magazine and silencer attached to the SKS rifle and second 30-round magazine – part of count 4 (sell prohibited weapon);

    3. (3)

       437 rounds of 7.29 x 39 calibre ammunition – Form 1 for count 2 (supply ammunition);

    4. (4)

       Shortened .22 self-loading rifle – also “Supply 2” in count 2 (supply prohibited firearm);

    5. (5)

       13-round magazine attached to the shortened rifle – part of count 4 (sell prohibited weapon); and

    6. (6)

       21 rounds of .22 calibre ammunition – Form 1 for count 2 (supply ammunition).

33. [39]

    In the Agreed Facts, the SKS self-loading rifle supplied on 4 May 2021 as part of “Supply 2” in count 2 is described variously as “UNKNOWN manufacture” and “NORICO Model”.

34. [40]

    In summary, on 9 May 2021, the applicant supplied UCO675 with a 9-millimetre parabellum calibre FGC-9 self-loading firearm with a 25-round magazine.

35. [41]

    On Saturday 8 May 2021, the applicant contacted UCO675 over Ciphr. The applicant advised that a “SMG” firearm had arrived in Sydney from Melbourne. The applicant warned UCO675 that there was a bullet loaded in the chamber that could only be removed by discharging the firearm. UCO675 told the applicant he wanted to buy it and asked for the price. The applicant sent a voice message stating that he had another buyer who was willing to pay $35,000 for the firearm as it was “very rare” to get. UCO675 wanted to pay $10,000 less for the firearm and the applicant replied, “be in my position with someone offer you 10 grand. What do you do?”

36. [42]

    UCO675 told the applicant he would buy the firearm and arranged to meet with the applicant at about 7:30pm that night. The applicant sent through two photographs of two firearms and asked UCO675 which one he wanted to buy.

37. [43]

    UCO675 asked if he could buy them both, but the applicant replied that one was already sold. UCO675 asked what calibre bullets they took and told the applicant to give him whichever one he thought was better. The applicant sent a voice message saying, “They look like 9 mil. I’ve got plenty of them. I’ll give you some later”. The applicant further stated that both firearms are essentially the same, but one is loaded. He ultimately said that he would supply the “full black one” because it was “more sexy”.

38. [44]

    The applicant told UCO675 to meet him at the Summerland restaurant car park in Bankstown. At about 7:42pm, UCO675 parked his car. About 10 minutes later, police observed the applicant approach UCO675’s grey utility carrying a large green duffle bag over his shoulder. UCO675 exited his car and spoke with the applicant.

39. [45]

    UCO675 placed the duffle bag in the rear of his car and opened it. The applicant warned UCO675 again that the firearm was loaded. The duffle bag contained a blue and white shopping bag which contained a white towel. Wrapped inside the white towel was the firearm that the applicant had earlier sent a photograph of to UCO675 over Ciphr. UCO675 handed the applicant a black plastic garbage bag which contained $30,000. The applicant and UCO675 spoke about the future supply of firearms and then parted ways. The entire exchange was surveilled by police and subject to audio recordings.

40. [46]

    The items seized gave rise to the following counts:

    1. (1)

       9mm parabellum calibre FGC-9 self-loading firearm – “Supply 3” in count 2 (supply prohibited firearm); and

    2. (2)

       25-round magazine – count 5 (sell prohibited weapon).

41. [47]

    In summary, on 18 May 2021, the applicant supplied UCO675 with another 9-millimetre parabellum calibre FGC-9 self-loading firearm which had a 25-round magazine.

42. [48]

    On Wednesday 12 May 2021, the applicant contacted UCO675 over Ciphr. The applicant asked UCO675 how much he would pay for a “pen” firearm and then sent some photographs. The applicant advised UCO675 that he paid $15,000 for the firearm.

43. [49]

    The applicant also asked whether UCO675 was interested in the “Russian” firearm. UCO675 said he had a buyer lined up for the “Russian” one. On 17 May 2021, UCO675 contacted the applicant and advised that he could get $35,000 for the “Russian and 1500 for the pen”. The applicant advised UCO675 over voice message that the “pen” firearm was:

44. [50]

    The applicant said he could not sell the “pen” firearm for $1,500 and confirmed he would sell it for $15,000. UCO675 said he would not buy it for that price but would “100% grab the Russian”.

45. [51]

    On 18 May 2021, UCO675 and the applicant arranged to meet at about 5:30pm that afternoon in the car park of the Summerland restaurant in Bankstown. At about 6:00pm, UCO675 arrived at the car park. About five minutes later, police observed the applicant get into the front passenger seat of UCO675’s grey utility with a navy-blue duffle bag. The duffle bag contained a white plastic duffle bag and a white towel. Inside the white towel, UCO675 saw the “Russian” firearm the applicant had earlier sent photographs of over Ciphr. UCO675 handed the applicant a black plastic garbage bag containing $35,000. The applicant and UCO675 discussed the future supply of firearms and then parted ways. The entire exchange was surveilled by police and subject to video and audio recording.

46. [52]

    The items seized gave rise to the following counts:

    1. (1)

       9mm parabellum calibre FGC-9 self-loading firearm – “Supply 4” in count 2 (supply prohibited firearm);

    2. (2)

       25-round magazine attached to the firearm – count 6 (sell prohibited weapon); and

    3. (3)

       One ammunition located in the chamber of the firearm – Form 1 to count 2 (supply ammunition).

47. [53]

    While the “pen” firearm was not purchased by UCO675, it was later seized from a safe in the applicant’s house, as set out below.

48. [54]

    At about 6:15am on 1 June 2021, police executed a search warrant at the applicant’s primary residence in Brighton-Le-Sands.

49. [55]

    Police seized the following items:

    1. (1)

       The pen gun – count 7 (possession of firearm);

    2. (2)

       An extendable baton – Form 1 (possess prohibited weapon);

    3. (3)

       Handcuffs – Form 1 (possess prohibited weapon);

    4. (4)

       $20,000 in cash – Form 1 (deal with property proceeds of crime); and

    5. (5)

       107 rounds of 9mm ammunition and 11 rounds of .22 ammunition – Form 1 (possess ammunition).

50. [56]

    None of the money (totalling $195,000) paid by UCO613 and UCO675 was recovered.

51. [57]

    At about 6:00am on Tuesday, 1 June 2021, police arrested the applicant at his ex-wife’s home in Georges Hall.

52. [58]

    The applicant was conveyed to Bankstown Police Station where he was cautioned and participated in an electronically recorded interview. He repeatedly denied any knowledge of the ongoing supply of firearms, and denied having the Ciphr application on any of his mobile phones. He claimed he had received $30,000 in an insurance payout, had $50,000 in savings and had recently sold a Porsche. He said he owned one registered handgun and held a firearms licence. He had never seen the photos of the firearms and did not know an undercover police operative. When the applicant was told that the firearms were supplied to police he responded, “That’s even better, that means it’s going in safe hands. If I done it it’s good”.

Proceedings on sentence

1. [59]

   The proceedings on sentence took place on 26 October 2023. In addition to the s 166 Certificate and Forms 1, the Crown tendered the Agreed Facts, the applicant’s criminal and custodial history, and a Sentencing Assessment Report. The Crown also provided material relevant to the sentencing of the applicant’s co-offender, Mr Rosewarn, but it was accepted that no issues of parity arose.

2. [60]

   The applicant gave evidence during the sentencing proceedings. He also relied on the following documents to establish mitigating factors on sentence:

   1. (1)

      Psychological report of Michelle Pal dated 14 August 2023;

   2. (2)

      Four character references from the applicant’s ex-wife, former and current employer and a friend;

   3. (3)

      Two affidavits sworn on 6 July 2021 by an employee of the applicant’s business and his solicitor concerning financial issues experienced by the business; and

   4. (4)

      The Corrective Services file and certificates of programs completed in custody.

3. [61]

   The Crown relied on written submissions on sentence. The applicant did not.

4. [62]

   The applicant confirmed that he had no previous convictions.

5. [63]

   The applicant gave evidence about financial difficulties faced by his business leading up to the offence. He also gave evidence about his long-term cocaine use since 2010 which started as weekly use and then became more frequent. He also admitted that this cocaine use contributed to his offending, but that it will no longer be a problem for him again in future.

6. [64]

   The contentious part of the applicant’s evidence that was subject to cross-examination was his explanation for why he became involved in the offending. The sentencing judge summarised this evidence as follows:

7. [65]

   In the Crown’s written submissions, the objective seriousness of the offences was submitted to be slightly below mid-range for count 1, slightly above mid-range for count 2, low range for count 3, high range for count 4, low range for count 5, low range for count 6 and above mid-range for count 7. The Crown submitted that count 2 was slightly above mid-range given:

8. [66]

   During the sentence proceedings, defence counsel submitted that count 4 was not high range but rather in the middle of the range. The following exchange took place:

9. [67]

   In its written submissions, the Crown conceded that the applicant’s lack of prior convictions was a mitigating factor. However, the Crown submitted that:

10. [68]

    The Crown clearly challenged a finding of good character being made. These written submissions were not supplemented by oral submissions.

11. [69]

    In response to these submissions, counsel for the applicant submitted that the applicant:

12. [70]

    Further submissions were made in relation to the applicant’s subjective case, including his good character as follows:

13. [72]

    Thus, the parties joined issue as to whether her Honour would find that the applicant was of “good character” for the purposes of s 21A(3)(f) of the Sentencing Act.

Remarks on sentence

1. [73]

   The sentencing judge reserved her decision and delivered her remarks on sentence on 17 November 2023.

2. [74]

   The sentencing judge rejected the applicant’s account of the offending, set out above, finding that it was:

3. [75]

   The sentencing judge was satisfied beyond reasonable doubt that the applicant was trading in firearms for profit. Her Honour also found that the applicant “must have known or at least reasonably suspected that the firearms would be used in connection with criminal activity”.

4. [76]

   Her Honour found that the motive of financial gain and the nature and quantity of firearms supplied were important factors in assessing the objective gravity of the offences.

5. [77]

   The following factors were relevant to the sentencing judge’s assessment of objective seriousness:

   1. (1)

      Some of the weapons supplied were for military purposes;

   2. (2)

      Some weapons were self-loading and two were homemade, namely, without serial numbers;

   3. (3)

      The shortened firearm is capable of being concealed during criminal offences;

   4. (4)

      All but two of the firearms were in working order;

   5. (5)

      The applicant was able to source a variety of firearms and took steps to avoid detection by using the Ciphr application; and

   6. (6)

      The applicant’s relationship with his suppliers in Melbourne was “obviously a well established one”.

6. [78]

   Her Honour assessed the objective seriousness of the offences as follows:

   1. (1)

      Counts 1, 2 and 7: about the mid-range;

   2. (2)

      Counts 3, 5 and 6: in the low range; and

   3. (3)

      Count 4: well above the mid-range.

7. [79]

   The sentencing judge also noted that the sentences on counts 2 and 7 must take into account the SNPP and the offences on the Forms 1.

8. [80]

   The applicant was 41 years old at the time of sentencing.

9. [81]

   The applicant is the fourth of ten children born in Lebanon. He experienced a degree of poverty in childhood, although his family was close and loving. He was exposed to war as a combatant in adolescence. He emigrated to Australia in 2005 at 22 years of age.

10. [82]

    Throughout his life in Australia, the applicant had undertaken to financially support his large extended family in Lebanon. He had three significant relationships, one of which resulted in marriage and the birth of two children whom the applicant cared for after the separation from his wife. He continued to receive visits from his children in custody.

11. [83]

    The applicant completed his education in Lebanon and commenced but did not finish a degree in nursing. He had been employed as a painter and a security guard. He purchased a fashion store in Bankstown in 2014. The business was successful until the COVID-19 pandemic forced its closure.

12. [84]

    Ms Pal, a clinical psychologist, diagnosed the applicant with post-traumatic stress disorder (“PTSD”), generalised anxiety disorder, a single episode of severe major depression and mild stimulant use disorder in remission relating to the applicant’s recreational use of cocaine in the past.

13. [85]

    The sentencing judge extracted Ms Pal’s conclusion in her report regarding the applicant as follows:

14. [86]

    Her Honour went on to note that the motor vehicle accident to which Ms Pal attributes the applicant’s PTSD was in 2015 when the Armaguard van in which the applicant was a passenger rolled and hit a tree. The applicant was hospitalised for two nights. The remarks on sentence then continue in these terms:

15. [87]

    Her Honour then addressed the defence submission that there was a causal connection between the applicant’s psychological presentation and the commission of the offence and made the following findings:

16. [88]

    The sentencing judge accepted that the applicant was “at low risk of re-offending”. Her Honour accepted that the applicant had made efforts to obtain appropriate services whilst in custody and enjoyed the support of his immediate family, “who are shocked by his offending and who will struggle financially without his support”.

17. [89]

    However, her Honour found that his remorse was “extremely qualified” in light of his attempt to “construct an excuse for his offending” and his plea of guilty coming “at the eleventh hour in the face of an overwhelming Crown case”.

18. [90]

    The sentencing judge concluded that, “[h]is prospects of rehabilitation seem sound”.

19. [91]

    The sentencing judge found special circumstances within the meaning of s 44(2B) of the Sentencing Act on the following basis:

20. [92]

    After applying a discount of 5% for the applicant’s plea of guilty, the sentencing judge imposed the following indicative sentences:

21. [93]

    As to totality, her Honour observed:

22. [94]

    As set out above, the sentencing judge imposed an aggregate sentence of 14 years’ imprisonment with a non-parole period of 9 years.

Ground 1

1. [95]

   Ground 1 asserts that the sentencing judge made a material error of fact with respect to count 2 by misstating the number of firearms the subject of that count.

2. [96]

   While summarising the Agreed Facts, her Honour stated the following about the third controlled operation on 4 May 2021:

3. [97]

   That the applicant supplied three firearms (two SKS rifles and a shortened rifle) on 4 May 2021 is the impugned factual finding the subject of this ground of appeal.

4. [98]

   It is uncontroversial that her Honour did misstate the Agreed Facts in that they record that the applicant supplied only two firearms on 4 May 2021: one SKS rifle and one shortened rifle, referred to in the Agreed Facts as “Supply 2”. What is controversial is whether her Honour consequently mistook the total number of firearms the subject of count 2 as being six as opposed to five. The Crown submitted that her Honour did not and simply mis-stated the dates on which the supply of firearms occurred. The applicant contests this reading of her Honour’s remarks.

5. [99]

   During the hearing of this appeal, counsel for the applicant submitted that her Honour’s remarks show that she was summarising the Agreed Facts in a chronological order. Her Honour first stated that “Count 2 relates to the sale of a Norinco model SKS self-loading rifle”. The applicant submitted that this was referrable to the first supply on 25 April 2021 because that firearm is described in the Agreed Facts as a “1 x 7.62 x 39mm calibre NORINCO Model SKS self-loading rifle”. Therefore, it was submitted that her Honour described a distinct rifle that was supplied on 25 April 2021 in addition to the three firearms she identified as being supplied on 4 May 2021, leading to a factual error about the total number of firearms supplied.

6. [100]

   The applicant submitted that this error as to the number of firearms the subject of count 2 was material because it would have “erroneously aggravated the objective seriousness” of this offence and placed upwards pressure on the sentence. In support of this submission, the applicant pointed to the following factors:

   1. (1)

      First, count 2 was the most objectively serious of the matters for which the applicant was sentenced, receiving an indicative sentence of 9 years’ imprisonment with a non-parole period of 6 years.

   2. (2)

      Secondly, the offence contrary to s 51B(1) Firearms Act is made out upon an offender supplying prohibited firearms on three or more occasions within a 12-month period. This was said to make the number of firearms supplied a highly relevant factor.

   3. (3)

      Thirdly, the additional firearm her Honour erroneously considered to have been supplied on 4 May 2021 was an operational military grade SKS self-loading rifle. This means that her Honour sentenced the applicant on the basis of supplying four operational firearms as opposed to three.

7. [101]

   Counsel for the applicant conceded that if this Court adopted the Crown’s reading of her Honour’s remarks and concluded that it was simply an error about the dates of supply, this would not be a material error.

8. [102]

   The Crown’s key contention was that while the sentencing judge did misstate the number of firearms supplied on 4 May 2021, her Honour did not misstate the number of firearms that were supplied overall as the subject of count 2.

Consideration – ground 1

1. [103]

   The determination of this ground turns on whether looking at all of the facts summarised by the sentencing judge in relation to count 2, her Honour described five firearms (as the Crown contended) or six firearms (as the applicant contended). If, as the applicant contends, her Honour mistook the facts and sentenced the applicant on the basis of supplying six firearms rather than five, then the sentencing discretion can be said to have miscarried: Hancock v R [2025] NSWCCA 213 at [80]. The Crown accepted that if her Honour mistook the facts as contended, the error would be material.

2. [104]

   It should be observed at the outset that the Agreed Facts were lengthy, very dense, and somewhat difficult to follow. It is unsurprising that her Honour sought to summarise and simplify them for the purpose of her reasons. I have considered them carefully but am not satisfied that her Honour mistook the facts as the applicant contends for the following reasons.

3. [105]

   On the first page of her Honour’s reasons, she lists all of the counts upon which the applicant stood for sentence. Count 2 was described as “one count of unlawfully supplying firearms three times or more within a 12 month period pursuant to s 51B(1) of The Firearms Act …” Her Honour was thus aware count 2 was concerned with more than one firearm.

4. [106]

   Her Honour next turned to consider the Agreed Facts which she described, accurately, as “lengthy and detailed”. It was noted that the offences were committed during a controlled operation between February and May 2021. Her Honour then described counts 1, 2 and 3 as follows:

5. [107]

   Her Honour noted that “one week prior” (presumably to 25 April 2021) the applicant had sent photographs of a firearm to the operative and on 20 April he had sent five photos including additional firearms. Her Honour then went on, chronologically, to state:

6. [108]

   Her Honour then recorded what occurred on 27 April 2021 before going on to describe what occurred on 4 May 2021 in the terms extracted above at [95].

7. [109]

   The Agreed Facts disclose that two SKS rifles were supplied as part of count 2; one on 25 April 2021 and the second on 4 May 2021. Despite the Agreed Facts noting that on 25 April 2021 a “7.62 x 39mm calibre NORINCO model SKS self-loading rifle” was supplied, her Honour did not refer to any firearms being supplied on that date.

8. [110]

   After omitting to refer to the sale of the SKS rifle on 25 April 2021 (that formed part of the facts for count 2), her Honour went on to state that on 4 May 2021 the applicant supplied, inter alia, two SKS self-loading rifles when in fact only one was sold on that date.

9. [111]

   It is to be accepted that the Agreed Facts were somewhat confusing in that the SKS rifle supplied on 4 May 2021 was not described consistently throughout; at paragraphs [31] and [35] it is described as being an SKS self-loading rifle of “UNKNOWN manufacture” whereas at [32] the same weapon was described as being a “NORICO Model SKS self-loading rifle”.

10. [112]

    Her Honour’s description of the first sale taking place on 4 May rather than 25 April may also be explained by the fact that two events occurred on 25 April 2021; the Agreed Facts note that it was on that date that the applicant supplied the first SKS self-loading firearm and that the negotiations commenced for the supply of the second SKS self-loading firearm.

11. [113]

    There was nothing put before the court to suggest that count 2 relied on three rather than two SKS rifles. In the Crown written submissions on sentence the number of SKS rifles the subject of count 2 was accurately described as “two”.

12. [114]

    The only aspect of her Honour’s reasons consistent with the applicant’s contention is her reference to counts 1, 2 and 3 at the outset of her summary of the Agreed Facts before describing what occurred, chronologically, from about a week before 25 April 2021. Although it is somewhat unclear why her Honour mentioned one of the five weapons in support of count 2 at the outset as she did, the applicant has not established on the balance of probabilities that her Honour was at that stage describing what occurred on 25 April 2021.

13. [115]

    I am satisfied that when the Agreed Facts are compared with her Honour’s summary of them, her Honour understood that there were two SKS firearm sales referable to count 2; her Honour simply erred in stating that both of them were supplied on 4 May.

14. [116]

    For these reasons, I would not uphold ground 1.

Ground 2

1. [117]

   Ground 2 asserts that the sentencing judge erred in the consideration of the applicant’s lack of prior record and his contention of good character.

2. [118]

   The applicant relied on the following four particulars:

   1. (1)

      Her Honour’s reasons with respect to the applicant’s prior record and character were inadequate;

   2. (2)

      Her Honour failed to address the applicant’s submission that the court should find that the applicant’s good character was a mitigating factor;

   3. (3)

      Her Honour failed to consider the applicant’s evidence of good character; and

   4. (4)

      Her Honour failed to find that the applicant’s good character and lack of prior record was a mitigating factor.

3. [119]

   It was contended that the reasons were inadequate because her Honour failed to consider both the relevance of the absence of criminal antecedents to the sentencing exercise and the applicant’s contention of good character. While her Honour did note that the applicant had no criminal history, her Honour did not identify whether she considered the absence of criminal antecedents to be a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act, despite this being conceded by the Crown in its written submissions.

4. [120]

   It was further submitted that her Honour did not deal with the parties’ competing submissions about good character nor did she consider whether the applicant’s good character was a mitigating factor: s 21A(3)(f) of the Sentencing Act. Rather, it was submitted that the remarks on sentence suggest that the applicant’s contention of good character was “completely overlooked”.

5. [121]

   The applicant submitted that he was entitled to a finding that he was a person of good character prior to the offending and that this was a mitigating factor. While accepting that he was sentenced for a course of conduct over a period of months and that he had admitted ongoing drug use, the applicant submitted that the offending arose from a discrete period in the life of a mature offender who otherwise lived a law-abiding life. Further, it was submitted, even if it was reasonably open to her Honour to find that good character was not a mitigating factor, her Honour was still required to deal with the parties’ competing submissions and explain her reasons for the finding.

6. [122]

   The Crown submitted that the applicant’s contention of good character was qualified by two factors accepted by the applicant during the proceedings on sentence: first, that he was a long-term and regular user of cocaine; and secondly, that his offending was not isolated but an ongoing course of conduct over several months. The Crown also pointed to the Agreed Facts which included an assertion that the applicant had conducted other uncharged supplies of explosives and military firearms to other purchasers.

7. [123]

   In that context, the Crown submitted that the applicant’s reliance on good character was, in essence, limited to the absence of any criminal convictions rather than positive evidence of good acts and qualities. Therefore, her Honour’s reference to the absence of criminal convictions was said to have effectively dealt with both issues raised by the applicant.

8. [124]

   The Crown submitted that the applicant’s good character submission was not one made with clarity because defence counsel couched it with significant concessions about the applicant’s drug use and the extended duration of offending and stated that her Honour “can find” and not “should find” good character was a mitigating factor.

9. [125]

   The Crown also relied on the fact that her Honour made favourable findings that the applicant was unlikely to reoffend and had good prospects of rehabilitation. This was said to be significant where the applicant’s submissions in the sentence proceedings in relation to good character were combined with submissions about re-offending and rehabilitation.

Consideration – ground 2

1. [126]

   Section 21A(3) lists the mitigating factors “to be taken into account in determining the appropriate sentence for an offence”. Section 21A(3)(e) and (f) are as follows:

2. [127]

   It is to be noted that although a bill to remove good character as a mitigating factor for all offences was passed by the Legislative Assembly on 10 February 2026, it was amended in the Legislative Council to only apply to sexual offences and was passed by both Houses on 12 May 2026: Crimes (Sentencing Procedure) Amendment (Good Character at Sentencing) Bill 2026 (NSW).

3. [128]

   It is clear that not having a record, or any significant record, of prior convictions is a separate mitigating factor to being a person of good character. Despite this, it would be unusual for an offender with no prior convictions to not be found to be a person of previous good character unless material was before the court precluding a finding under s 21A(3)(f) from being made.

4. [129]

   In Ryan v The Queen (2001) 206 CLR 267 (at 275); [2001] HCA 21, McHugh J set out the two stages of considering good character in the sentencing process at [23]-[25]:

5. [130]

   The question of what weight to give to an offender’s good character is pre-eminently one for the sentencing judge in the exercise of his or her discretion. In GE v R [2025] NSWCCA 168 Adamson JA, with whom Ward P and Weinstein J agreed, observed the following at [43]:

6. [131]

   In Warton v R [2025] NSWCCA 5, Adamson JA (with whom Ball JA and Fagan J agreed) observed at [66]-[67] that the expression “good character” has both a negative and positive aspect. What this means in practical terms is that good character can refer in the positive sense to “a history of previous good works and contribution to the community” or in the negative sense to an absence of prior convictions or previous engagement in criminal conduct.

7. [132]

   In the applicant’s case the Crown before the sentencing judge accepted that it was a mitigating factor that the applicant had no prior convictions but submitted that her Honour would not find the applicant to be of good character because of his involvement in serious criminal conduct over an extended period rather than the offending involving an isolated criminal act by way of a mere error of judgment. On the other hand, whilst accepting that the applicant had been using cocaine at the time of the offending it was submitted on behalf of the applicant that her Honour could find that “good character is a significant factor in these sentence proceedings”.

8. [133]

   What then were the findings made in relation to s 21A(3)(e) (no criminal convictions) and (f) (good character)?

9. [134]

   Turning first to the absence of any prior convictions, I have extracted the only references made by the sentencing judge to the applicant’s prior history in the remarks on sentence at [84] above. First, her Honour extracted a portion of the psychologist’s report that referred to a “complete absence of prior criminality”. Secondly, after setting out that paragraph, her Honour went on to note that the applicant had no criminal history (above at [85]).

10. [135]

    Although it is to be accepted that despite noting that fact, her Honour did not go on to state how she had had regard to the absence of a prior criminal history as a mitigating factor, the Crown accepted that this was a mitigating factor and I am not satisfied that any more was required by her Honour in relation to this mitigating factor when the remarks are considered overall.

11. [136]

    Regrettably, I am not able to make the same finding with respect to how her Honour addressed the applicant’s good character. The sentencing reasons do not disclose what finding her Honour made, if any, in relation to the contested issue of whether the applicant was otherwise of good character.

12. [137]

    It can be accepted, as the Crown submitted in this Court, that it would have been reasonably open to her Honour to have made a finding that the applicant was not otherwise of good character given his cocaine use and the time over which he committed these planned offences. But the difficulty is that the sentencing judge did not make any finding either way, despite it being an issue in contention.

13. [138]

    The applicant’s case as to good character went beyond simply an absence of prior convictions and also relied on the fact that he had always been employed.

14. [139]

    It is also to be accepted that the sentencing judge made favourable findings that the applicant was unlikely to reoffend and had good prospects of rehabilitation. But good character and an absence of prior convictions are separate mitigating factors to rehabilitation and risk of re-offending enumerated in s 21A(3) of the Sentencing Act.

15. [140]

    I am satisfied that the sentencing judge failed to address the applicant’s submission that the court should find that the applicant’s good character was a mitigating factor.

16. [141]

    Accordingly, I would uphold ground 2.

Re-sentence

1. [142]

   Error has been established. Accordingly, this Court is required to put the aggregate sentence imposed by the sentencing judge to one side and exercise its sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

2. [143]

   Given that I would uphold ground 2, it is not necessary for this Court to consider ground 3. I will, however, have regard to the submissions made under that ground for the purposes of re-sentencing.

3. [144]

   On re-sentence, the applicant relied on the affidavit of his solicitor, Ali Hallani, sworn on 18 March 2026 which annexed certificates for courses the applicant has completed whilst in custody. The applicant has received a Certificate III in Community Services, a Certificate III in Business, and a Certificate III in Animal Care Services.

4. [145]

   With the exception of good character, which the applicant submits is a mitigating factor and the Crown submits is not, it was not suggested that this Court would depart from any of the findings of the sentencing judges, including the assessment of the objective seriousness of count 2 as falling in the mid-range. Accordingly, I have adopted all of the findings of the sentencing judge, including the finding of special circumstances and a variation to the statutory ratio of about 64%. The sentencing judge was satisfied that the applicant’s prospects of rehabilitation were “sound”. I would go further and describe them as good given the recent affidavit evidence.

5. [146]

   As for the question of good character, it is to be accepted that this was a prolonged period of criminality in which the applicant relied on his own cocaine use to, in part, explain his poor judgment. On the other hand, he had always been gainfully employed and on that basis the assessment of his character went beyond simply his lack of criminal convictions. I would propose to mitigate the sentence on account of his previous good character but only to a limited extent for the reasons advanced by the Crown.

6. [147]

   The applicant was entitled to a discount of 5% for his late plea of guilty as provided for in s 25D(2)(c) of the Sentencing Act. Her Honour applied this discount to each of the indicative sentences as required by s 53A(2)(b) of the Sentencing Act. As Davies J, with whom Dhanji and Huggett JJ agreed, observed in Sampson v R [2025] NSWCCA 25, Division 1A of Part 3 of the Sentencing Act is a mandatory scheme subject only to exceptions not relevant in this case. This means that a sentencing judge is obliged to provide the discount stipulated in s 25D, “even if inconvenient because the discount involved part of a month” (at [43]). It is not apparent how the 5% was applied to the indicative sentences in this matter.

7. [148]

   The indicative sentences I would arrive at are similar to those arrived at by the sentencing judge. I would also allow a slightly greater degree of notional accumulation than did her Honour.

8. [149]

   The applicant engaged in a very serious course of conduct. The sentencing judge was correct to reject the applicant’s “inherently implausible” account as to how and why he became involved as she was to find that the applicant’s remorse was “extremely qualified” for the reasons provided by her Honour.

9. [150]

   I would propose the following indicative sentences (I have applied the 5% discount to them):

Orders

1. [151]

   Accordingly, I would propose the following orders:

   1. (1)

      Grant an extension of time to bring this appeal.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Allow the appeal.

   4. (4)

      Quash the sentence imposed by Acting Judge Latham on 17 November 2023 and in lieu thereof sentence the applicant to an aggregate term of 13 years’ imprisonment to commence on 2 June 2021 and expire on 1 June 2034 with a non-parole period of 8 years and 3 months to expire on 1 September 2029. The applicant will be eligible for release to parole on that date.

2. [152]

   HAMILL J: I agree with the orders proposed by N Adams CJ at CL and with her Honour’s reasons for favouring those orders.

3. [153]

   MUSTON J: I have had the considerable benefit of reading in draft the judgment of N Adams CJ at CL. I agree with the orders proposed by her Honour and with her Honour’s reasons.