Supreme Court New South Wales Medium Neutral Citation: R v Ahmad [2020] NSWSC 1195 Hearing dates: 31 July 2020 Decision date: 03 September 2020 Jurisdiction: Common Law Before: Button J Decision: 1. Convicted of the offence of manslaughter. 2. I impose a non-parole period of 5 years 3 months, to commence on 20 March 2017, and to expire on 19 June 2022. That will be followed by a parole period of 1 year 9 months, to commence on 19 June 2022, and to expire on 19 March 2024. 3. To express the sentence another way, I have imposed a head sentence of 7 years, with a non-parole period of 5 years 3 months, with a full backdate. Catchwords: CRIMINAL LAW – sentence – manslaughter – extended joint criminal enterprise – principle in the first degree acting in excessive self-defence – use of handgun in a public place – spontaneous and unexpected involvement of offender – criminal record featuring serious gun violence in the past – sentence imposed Category: Sentence Parties: Regina Mahmoud Ahmad Representation: Counsel: S Hughes (Crown) D Dalton SC & M Robinson (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Lawyers Corp (Offender) File Number(s): 2016/132271 REMARKS ON SENTENCE Introduction 1. On 9 April 2016, Mr Safwan Charbaji (the deceased) was fatally shot in the course of a gunfight that occurred in broad daylight and in a public place in the western suburbs of Sydney. Almost a year later, on 20 March 2017, Mr Mahmoud Ahmad (the offender) was arrested. He has been in custody ever since. 2. The offender was originally charged with murder. He was committed for trial on that charge to this Court on 23 April 2019. The matter was set down for trial before me, but it was unable to proceed because of the public health crisis that this country is currently enduring. 3. The two counsel briefed in the trial took the opportunity to discuss the matter more deeply, with the outcome that on 5 June 2020 the accused pleaded guilty to the lesser form of homicide, manslaughter, in full satisfaction of the allegation against him. 4. The proceedings on sentence took place before me on 31 July 2020. After a period of reflection, it falls to me to impose sentence for that single offence today. Objective features 1. The following is based on a statement of agreed facts that became exhibit B, and which was signed by the Crown prosecutor and the offender personally. It is also based upon a disc of CCTV product that became exhibit E, and which I have watched in the courtroom and also in Chambers. 2. To state things succinctly: on the afternoon of Saturday 9 April 2016, two groups of men met on the street outside business premises associated with the brother of the offender, the late Mr Walid Ahmad. That was in a light industrial suburban area that was by no means deserted. Regrettably, the members of the two groups had previously been on good terms, but some sort of dispute had developed. Pushing and shoving developed into an affray, which in turn developed into a gunfight, which in turn led to more than one person being shot, the deceased fatally. 3. Although the offender had driven to the scene before any of that developed, and had entered the business premises of his brother, there was no evidence placed before me that he had done so in order to be involved in any dispute. Having said that, when the dispute became somewhat physical in the form of jostling, both the deceased and the offender were involved in it. 4. The physical interaction only lasted for a matter of minutes, after which the group of which the offender was a member separated themselves from the fracas by retreating to the other side of the street. Immediately, an exchange of gunfire occurred, and obviously men in both groups had arrived at the scene armed with handguns. The deceased handed an associate of his, Mr Fawaz Elmir, such a weapon, which the latter used to fire a number of shots towards the business premises. The late brother of the offender returned fire more than once. At a later stage, Mr Abdullah El-Masri, a member of the group with which the family of the offender was associated, was shot and fell to the ground. 5. The Crown case on sentence did not suggest that the offender knew of the presence of the concealed firearms, until they were brought into play. 6. During the gunfight, the deceased and his associate Mr Elmir entered a motor vehicle. At the same time, the offender approached Mr El-Masri, who as I have said was lying wounded on the street. The offender took from Mr El-Masri a revolver that he had been holding, and walked quickly towards his own car, with the intention of leaving the scene. 7. In taking possession of that weapon, the offender was continuing his participation in the affray. And he was doing so aware not only that his brother was armed at the time with a semiautomatic pistol, and that he had discharged it shortly beforehand, but also aware that there was a possibility that a person could subsequently be unlawfully killed. 8. The offender observed Mr Elmir produce a pistol from the driver's side window of the vehicle in which he was sitting, and that it was pointed in the general direction of the offender. In response, he fired a warning shot above the vehicle from the revolver that he had obtained. At the same time, the brother of the offender fired three shots from the semiautomatic pistol, two of which pierced the windscreen of the motor vehicle. Tragically, the deceased was fatally wounded as a result. 9. The offender fled the scene, at which 14 fired cartridge cases were later retrieved, demonstrating that at the least that number of shots had been fired during the armed melee. Basis of liability 1. As can be seen from my brief statement of the objective features of this offence, the Crown case accepts that the offender was not the principal in the first degree; to put that in plain language, he was not the shooter. 2. As for that person, the Crown accepts that the late Mr Walid Ahmad believed that it was necessary to fire his pistol in order to defend himself. On the other hand, senior counsel for the offender accepts that that belief was not objectively reasonable. In other words, I was jointly asked to sentence the offender on the basis that the shooter himself was guilty of manslaughter, not murder, on the basis of excessive self-defence. 3. It can also be seen from my sketch of events that the offender took part in an affray as a principal in the first degree, albeit spontaneously. And it was during the course of the affray – in particular, once he had armed himself with, and discharged, the revolver that he had taken from his wounded associate – that the accused foresaw the possibility of someone being unlawfully killed. 4. In other words, the accused is guilty of manslaughter based on the doctrine –well known for its breadth – of extended joint criminal enterprise, arising from a state of mind of his that arose spontaneously, and that existed for only a matter of minutes at most. Objective gravity 1. Manslaughter is an offence that carries a maximum penalty of imprisonment for 25 years. It possesses no standard non-parole period, in all likelihood because of its notorious variability, legally and factually. In my opinion, it must always be an inherently grave offence, encompassing as it does the unlawful taking of a human life in circumstances that, whilst falling short of murder, nevertheless are reflective of serious criminal liability. 2. Here, the deplorable fact is that a gunfight broke out in broad daylight in a Sydney suburb, with the result that the life of a fellow human being was snuffed out. No doubt, events such as that cause all members of the community to feel unsettled, anxious, afraid. Some, especially those who may have been present or close by, may react with despair and terror at the thought that persons other than members of the security forces are unlawfully armed with such weapons, and are prepared to use them if they see fit. Those aspects of what occurred are, in my opinion, extremely serious. 3. Nor is it to be forgotten that, far from immediately cowering or fleeing in fear, the eventual response of the offender was to divest a wounded associate of a handgun, and to proceed to fire it, even if harmlessly into the air, and in an effort to depart. 4. To be balanced against those aspects are the facts that the offender was not the shooter; that the shooter himself is to be thought of as guilty of manslaughter, not murder, and was acting in excessive self-defence; that the offence in which the offender actively took part personally was little more than a public pushing and shoving; that his criminal liability is based upon foresight of a possible outcome, not an intention or desire that it occur; and that the involvement of the offender in this tragedy was spontaneous and unplanned. 5. Seeking to balance up those undoubtedly competing factors, even so the measure of criminal responsibility accepted by the offender for an egregious act of public and fatal gun violence in a suburban street means that this manifestation of the lesser form of homicide must be assessed as a serious example of the offence of manslaughter. Subjective features Discounts 1. I turn from a discussion of the offence to the offender. 2. As I have said, the offender pleaded guilty in this Court to manslaughter, having been charged with, and committed for trial on the offence of, murder. I was assured by both counsel – each of them most experienced in criminal law – that the statutory regime of mandatory utilitarian discounts does not apply to these proceedings. The parties were in agreement about the topic in any event: there should be a discount of between 15 and 20% for utilitarian purposes. 3. In my opinion, whether the tribunal of fact had been a jury or a judge alone, this trial would have taken quite some time, and called for a significant deal of oral and other evidence. It was also not disputed before me that the murder charge was maintained by the Crown for many months, on the basis that the offender was indeed the shooter, when it is now conceded that he was not. Finally, it seems that it was the offender who first broached the topic of a plea to manslaughter, and in due course the Crown agreed with the proposition. In my opinion, the utilitarian discount should be 20%. 4. Senior counsel for the offender spoke of a further discount, in the sense of the accused having ultimately admitted to an offence that, at the least, would have been very difficult for the Crown to prove on the evidence available to it. I accept that that is the case, but do not propose to provide a further specific discount in that regard. Rather, I have reflected upon the proposition with regard to the question of remorse, a topic to which I shall return later. Extra-curial punishment? 1. Some further parts of the narrative need to be recounted now. After the events of that afternoon, the offender believed that his life was in immediate danger. He fled overseas, and was thereby separated for many months from his wife and children, no doubt to the distress of all of them. Eventually, and to his credit, he returned voluntarily to this country, well aware that he would be charged with murder. 2. Not only that, but, after the shooting that both parties accept had been committed by the offender's brother, he himself was brazenly shot to death three weeks later, again in broad daylight. Senior counsel for the offender did not submit that I could be satisfied on the balance of probabilities that that further tragedy was a direct result of what had happened on 29 April 2016. Nevertheless, I think that the death of Mr Walid Ahmad, and the perceived need of the offender to leave Australia for his own safety, can be thought of in a general sense as significant mitigating aspects of the subjective case for the offender. Background 1. On the day of the offence, the offender was aged 33. He is now aged 37, having spent approaching 3 years 6 months in custody bail refused. A great deal of evidence was placed before me from many family members and friends. Because that evidence is all one way, is undisputed, and I accept it, it need not be analysed in detail. In a nutshell, that evidence certainly shows that the offender is a loving husband to his wife; a devoted father to his four children; and a dutiful son to his parents, who are elderly and unwell. It has also been said by many that he is well known as a person of charity, commitment to community, faith, courtesy, and diligence. 2. I accept all of that on the balance of probabilities, even despite the aspects of the criminal record of the offender to which I shall shortly turn. I do so because I agree with the submission of the Crown prosecutor that human beings are complex, they are to be thought of in shades of grey, not in extremes of black-and-white, and even a person who has intersected more than once with the criminal justice system in serious ways can nevertheless have his or her very positive attributes. 3. As well as that, psychological and psychiatric evidence suggests that the offender had a physically tough upbringing as a result of the strict discipline of his father, and enjoyed few material privileges as a child and teenager. The family was more generally damaged by the consequences of the civil war in Lebanon. Chronic anxiety arising from those factors made effective education very difficult, and the offender left school at an early stage with very limited literacy. He was first prescribed calming medication many years ago, but he has as well illegally abused cannabis and unprescribed medication over the years, at least partly in order to alleviate that chronic anxiety condition. For a long time he could not settle to regular employment, for various reasons. 4. Having said that, in the years before the offence, it seems that the offender was working in a family-owned recycling business, abstaining from significant drug abuse, enjoying life with his family, and generally making sound progress. Mental conditions 1. In the same recently obtained psychological and psychiatric reports, it is said that the offender is suffering from anxiety, depression, and a substance use disorder. I accept those findings, and also accept that the anxiety and the abuse of substances are long-standing. The depression, I think, may have something to do with the turn of events over the past three and a half years. And, as can be seen from my thumbnail sketch of the offence, it can hardly be said that any of those conditions played a causative role in its commission. Having said that, I think there is force in the proposition of senior counsel that much that has gone wrong in the life of the offender as an adult can be traced back to things that started to go wrong, through no fault of his own, when he was a child. Criminal record and incarceration 1. Turning now to things that have indeed gone wrong, the offender has intersected with the criminal justice system for almost precisely 20 years. That began when he was a child, and it is noteworthy that one of his first offences was an offence of violence, assault occasioning actual bodily harm. He has repeatedly refused to comply with the rules of the road, but I disregard that for present purposes. And it is noteworthy that, in 2003, while still a very young man, he was imprisoned for an affray, albeit for only one month. 2. More troubling is the fact that on 3 September 2005, when he was in his early 20s, the offender committed two offences of firing an unauthorised firearm in a manner likely to injure persons or property. I was told by senior counsel from the Bar table that the weapon was in truth an air rifle. I accept that, and also accept that the disposition of the matters in the Local Court and the imposition of a sentence of only six months suggests that the incident was not overly serious. Nevertheless, in light of the matter before me now, it gives one pause for thought that 15 years ago the offender was first imprisoned for an offence to do with firearms. 3. Even more significant is the fact that, eight days later on 11 September 2005, the offender compendiously committed the following offences: possessing a loaded firearm in a public place, firing a firearm at a dwelling house with disregard for safety, and firing a firearm in a manner likely to injure persons or property. Serious offences of a similar kind were also taken into account on sentence. The facts of those matters were not placed before me by either party, but the gravity of the offences speaks for itself, as does the period of incarceration ultimately imposed. 4. The outcome of that sentence was that the offender went into custody on 17 February 2006, and was released to parole exactly 5 years later, on 15 February 2011. He was returned to custody by the State Parole Authority on 17 February 2012, presumably for breaching parole, and was released again on 16 February 2013, by that stage having served six full years. Thereafter he served his parole period in the community without trouble, and it had expired on 15 August 2014, 18 months before the commission of this new offence. 5. As I have said, I accept all the positive things that have been said by very many people about the offender, and what I have just recited does not directly contradict those things. Even so, the other side of the coin is that the offender has committed serious offences to do with firearms in the past, and has been sentenced to imprisonment for them, on one occasion for a lengthy period. And now he has accepted his indirect criminal liability for a fatality committed by way of a semiautomatic pistol at the conclusion of a gunfight in which many shots had been fired. 6. It is true that the earlier firearm offences were committed as a much younger man, at a time, I accept, when his life was in disarray. Still and all, all of that must be taken into account by me in an adverse way, not in order to punish the offender for his past, but in simply coming to an informed assessment of the appropriate sentence to be imposed today, including recognition of denunciation and deterrence in both of its forms. The future? 1. As for the future, I accept that there were positive signs developing in the life of the offender before the calamitous events of 9 April 2016. I also accept that his custodial record, whilst hardly exemplary, can be explained in part by the difficulties of a nicotine addict being called upon to give up smoking in gaol, the general pressure of being in maximum security, and the extreme stress of having a murder charge hanging over one's head. I have also reflected in this context, and more generally, on the delay experienced by the offender in the resolution of this matter by the criminal justice system. More recently, of course, custody has become even more onerous than usual, due to the current public health emergency, and I proceed on the basis that its extra restrictions on contact with loved ones and the outside world generally will continue into the future. 2. Even so, despite all that has been on behalf of the offender, I think that on any optimism about the future should be guarded and measured, rather than confident and unbounded. Remorse? 1. In similar vein, as for remorse, the plea of guilty to manslaughter is undoubtedly a public acceptance of responsibility for a fatality, in circumstances where a custodial sentence is inevitable, and the offender must have been made aware that more time in custody was a distinct probability. 2. I also accept that, in light of everything that has happened, including to himself and his own family, the offender bitterly regrets involving himself in the events that unfolded on the street near the business of his brother that afternoon four years ago. In all of the circumstances that I have recounted however, in particular not having heard from the offender himself, I do not go further than that. Various aspects 1. Dealing now with some discrete matters, the offender will be given a full backdate to his date of arrest and continuous incarceration, 20 March 2017. 2. Secondly, these remarks capture all of the objective and subjective features upon which my sentence is based, and I shall not list them again in a mechanistic way. 3. Thirdly, the offender has served time in custody more than once, and is a mature man. On his own case, he was proceeding in the community very well before the events in question. I do not believe that he is in need of an extended period of supervision, above and beyond that derived from statute. It follows that there will be no finding of special circumstances. And in any event, I regard the non-parole period that I shall shortly impose as the minimum appropriate for this example of the offence of homicide. 4. Fourthly, I was helpfully provided with a number of sentencing judgments, both at first instance and on appeal, pertaining specifically to manslaughters committed by way of the use of a handgun and motivated by excessive self-defence. I have reflected on those, but because each case must turn on its own facts, I shall not pause now to discuss their details. 5. Having said that, the point is soundly made by both counsel that this matter has its unusual features, and must be thought of as objectively less serious than many other examples of an offence of this particular kind. 6. Fifthly, the offender should be aware that it is possible that he will be detained in custody, not only after the complete expiry of his non-parole period, but even after the expiry of his entire head sentence, if it is established at that stage that he constitutes a danger to the community. Ultimate instinctive synthesis 1. In short, this matter has constituted a difficult sentencing exercise, because of its sharply countervailing features. 2. On the one hand, a man who has previously been imprisoned for many years for gun violence is to be sentenced again for his role in that kind of offending, this time with fatal consequences. I do not doubt that the general public abhors such offending, and calls upon the criminal courts to do what they can to stamp it out. And without having heard from any member of the family of the deceased, I proceed on the basis that his sudden death has had devastating consequences. 3. On the other hand, the offence is manslaughter, not murder; the role of the offender was attenuated, indirect, unexpected, and spontaneous; he has accepted his responsibility when able; he is highly thought of by a large and diverse group of people; and things seemed to be proceeding well in his life, perhaps for the first time, when events tragically intervened. 4. The starting point that I have adopted is, I am well aware, an unusually short one for an offence of manslaughter committed by way of a semiautomatic pistol, though not, with respect, as short as that for which senior counsel for the offender contended. That is because, despite all that has been said on behalf of the offender, I cannot accept that any lesser sentence would adequately reflect the objective gravity and catastrophic consequences of the events of that Saturday afternoon. 5. My starting point is a head sentence of imprisonment for nine years. I apply a 20% utilitarian discount to that, arriving (after some rounding down) at a head sentence of imprisonment for 7 years. 75% of that period leads to a non-parole period of 5 years 3 months, all of which is to be subject to a full backdate. Orders 1. Mahmoud Ahmad, you are convicted of the offence of manslaughter. 2. I impose a non-parole period of 5 years 3 months, to commence on 20 March 2017, and to expire on 19 June 2022. That will be followed by a parole period of 1 year 9 months, to commence on 19 June 2022, and to expire on 19 March 2024. 3. To express the sentence another way, I have imposed a head sentence of 7 years, with a non-parole period of 5 years 3 months, with a full backdate. ******************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2020