Author: Dennis MiralisCriminal Defence Lawyer Dennis Miralis at our Sydney Office

Facts:

NSW Police Force engaged the assistance of the NSW Crime Commission to investigate the criminal activities of a man whom they suspected of being involved in supply prohibited drugs and supply prohibited firearms. Part of the investigative process involved the use of telephone intercepts, surveillance devices, listening devices and a Controlled Operation using undercover police officers (UCOs).

Contact was established between a UCO and the main target (Offender 1), during which the target offered the sale of a key-ring pistol. Offender 1 sent an SMS to another person (Offender 2) requesting a couple of “key-rings”.

Later that day, the UCO, wearing a listening device, went to the home of Offender 1 whereupon Offender 2 turned up with a gold coloured .32 calibre key-ring pistol who gave it to Offender 1 who sold it to the UCO for $3,000. About a week later, Offender 1 rang the UCO requesting a deposit be paid into a TAB betting account, for prohibited drugs and firearms. SMS messages were exchanged between the Offender 1 and Offender 2.

A couple of days later they went to a motel to meet with the UCO. A surveillance device was set up in the motel room to record a visual image of the meeting. The UCO wore a listening device. Offender 2 produced two key-ring pistols and gave them to the UCO who paid the Offender 1 $5,000. Other police then conducted surveillance tracking the two offenders back to the target’s premises using visual and photographic surveillance. The UCO solicited via SMS to Offender 1 the supply of a further four key ring pistols. He telephoned Offender 2 and placed the order, unaware that the phone call was being recorded lawfully.

Offender 2 then rang Offender 3 to order the key-ring pistols. The conversation included the following:

Offender 2: Listen.

Offender 3: Yeah.

Offender 2: The one that was polished? Do you have another five of the same?

Offender 3: Yeah.

Offender 2: Ask him I want five for him, by Thursday.

Offender 3: Yeah, yeah he’s got it now.

This phone call therefore alerted the police to the fact that Offender 2 was not the source of the firearms, but was in contact with at least two other persons (Offender 3 and Offender 4) in the chain of supply of the key-ring pistols. Further SMS messages and phone calls were intercepted. During one of the calls, Offender 2 mentioned the first name of Offender 4. Although the phone calls and text messages generally avoided reference to drugs and firearms, occasionally words such as ‘bullets’, ‘the $38 one’ (meaning a .38 calibre weapon) were used.

Offender 2 met with Offender 3 and was supplied five key-ring pistols. An arranged meeting took place with the UCO, Offender 1 and Offender 2. Offender 2 brought a new player, Offender 5 with him. The UCO paid $10,000 for the pistols and in a separate transaction paid Offender 1 more than $50,000 for over 100 grams of methylamphetamine commonly known as ICE. Offender 5 supplied a sub-machine gun to the UCO. The meeting was recorded on listening device and the subject of visual surveillance.

All of the key-ring pistols were examined by a forensic ballistics investigator who concluded, “They are capable of propelling, by means of an explosive, a projectile that could inflict a lethal wound upon a human being. They are each reasonably capable of being raised and fired by one hand and do not exceed the prescribed dimension of 65cm in length. Each double barrel key ring pistol has the capacity to hold two. 32 automatic calibre cartridges. Each of the key ring pistols are a prohibited firearm within the meaning provided for in the Firearms Act 1986.”

During the conversations involving Offenders 1 and 2 and the UCO, the discussion turned to whether the offenders knew anyone who could get access to police database to obtain information. Offender 2 told the UCO that he could obtain information from a member of the NSW Police Force, including police operations, intelligence, criminal records, addresses etc. The UCO provided a fictitious name and date of birth to both Offenders, and at a later time negotiated a price. In the meantime, the UCO had arranged with officers from Professional Standards (previously known as Internal Affairs) to set up a false database concerning the fictitious name.

A member of the NSW Police Force (Offender 6) searched and printed a copy of the profile of the fictitious name and supplied it to yet another offender. All offenders including the police officer who accessed the computer, were arrested and charged. The police officer was sentenced to full time imprisonment.

Police charges: offenders 1,2, and 3 were charged with Selling Firearms on an Ongoing Basis contrary to section 51B(1) Firearms Act with a potential penalty of 20 years and a standard non-parole period of 10 years. Specifically, it must be demonstrated that the offender sold a firearm on 3 separate occasions within a 12 month period.

Offenders 1, 2, 3 and 5 were charged with Knowingly Participate in a Criminal Group pursuant to section 93T(1) Crimes Act 1900 which provides for a maximum penalty of 5 years imprisonment. The object of the criminal syndicate was to obtain financial reward through the supply of firearms.

Offender 1 was charged with Ongoing Supply of Prohibited Drug pursuant to section 25A Drug Misuse and Trafficking Act with a potential penalty of 20 years imprisonment and several counts of Supply Prohibited Drug pursuant to sections 25(1) and (2) of the Drug Misuse and Trafficking Act with potential penalties of up to 15 years imprisonment.

Offenders 1, 2, 3 and 5 were also charged with Knowingly Deal with Proceeds of Crime pursuant to section 193B(2) Crimes Act with a potential penalty of up to 15 years imprisonment. All of them received some financial gain for their involvement in the sale of the firearms, and offender 1 was paid for supplying drugs.

Offenders 1, 2, 3 and 6 were charged with Make Collusive Agreement with a Police Officer contrary to section 200(2)(b) Police Act, which carries a maximum penalty of 200 penalty units ($220,000 fine), or 7 years imprisonment, or both.

Sentencing Proceedings: We acted for Offender 2. A plea of guilty had been entered at a very early stage at Central Local Court to all charges with the exception of the Make Collusive Agreement allegation. Although Offender 2 had discussed the issue of obtaining information from a police officer, there was no evidence that this discussion resulted in the dissemination of information from the corrupt officer, though there was ample evidence that information was disseminated. Police had further evidence that Offender 1 negotiated a fee with the UCO for the information and arranged for the money to be deposited into a TAB account. There was no obvious connection between the corrupt officer and our client. That matter was listed for jury trial in the Sydney District Court. Ultimately, after protracted negotiations, the DPP accepted a guilty plea to Accessory Before the Fact to Make Collusive Agreement – ie. the initial conversation with the UCO.

After plea negotiation, Offender 2 was dealt with for the Firearms offence with the remaining matters taken into account on a Form 1. There was substantial utilitarian value in the guilty pleas which attracted a discount of 25 % on sentence. The guilty pleas could also be seen as evidence of remorse – see R v Borkowski (2009) 195 A Crim R at 32. Our client had no prior criminal record and had just turned 21 at the time of the offending behaviour. He had a difficult upbringing in a war torn country, coming to Australia as a refugee. Although he could not speak any English when he arrived in Australia, he was now fluent in English and had been employed up to the point of his arrest. He completed the Getting SMART Recovery drug and alcohol counselling program whilst in gaol and the prospects of rehabilitation were very good. The standard non parole period was indicative of the objective seriousness of the offence, though the matter proceeded by plea and not by way of trial and therefore it did not become a genuine consideration upon sentence – see Muldrock v The Queen (2011) 244 CLR 120. The issue of parity arose in the sentencing process, based on the role of the offender and the sentences imposed on Offenders 1 and 5. The client received an overall non-parole period of 2 years 9 months with a head sentence of 5 ½ years – which for him was a tremendous result.

Why Nyman Gibson Miralis?

The brief of evidence was both complex and voluminous and required painstaking preparation for the plea negotiations by forensically examining every aspect of the case, including the telephone intercept product, listening device material, surveillance device material, expert evidence, DNA evidence and the like. Through hard work and good communication with our client, we were able to obtain a great result. Our criminal defence solicitors and criminal law experts Sydney and Parramatta offices have the expertise to handle any type of police charges, whether in the Local Court or the District Court or Supreme Court.