R v Elsamad [2020] NSWSC 1372

Supreme Court New South Wales

Medium Neutral Citation: R v Elsamad [2020] NSWSC 1372 Hearing dates: 11 September 2020 Decision date: 09 October 2020 Jurisdiction: Common Law Before: Hidden AJ Decision: Sentence of imprisonment for 10 years, NPP 7 years from 19 November 2018 Catchwords: CRIMINAL LAW – sentence – trial for murder – plea of guilty to manslaughter not accepted by Crown – offender found guilty of manslaughter – use of firearm – unlawful and dangerous act Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(c), s 21A(2)(i), s 21A(2)(j) Cases Cited: Abbas v R [2014] NSWCCA 188 Magro v R [2020] NSWCCA 25 R v Forbes [2005] NSWCCA 377, 160 A Crim R 1 Smith v R [2015] NSWCCA 193 Category: Principal judgment Parties: Regina (Crown) Youssef Elsamad (Defendant) Representation: Counsel: A Robertson (Crown) C Davenport SC (Defendant)

Solicitors: Office of the Director of Public Prosecutions (Crown) Allied Lawyers (Defendant) File Number(s): 2018/20965 Publication restriction: Nil

REASONS FOR SENTENCE 1. The offender, Youssef Elsamad, was tried before me and a jury for the murder of Mohammed Salihy at Merrylands on 19 January 2018. He was alleged to have used a shotgun to shoot Mr Salihy. At the outset of the trial he pleaded not guilty to murder but guilty of manslaughter, but the Crown prosecutor did not accept that plea in discharge of the indictment. The trial proceeded and, in the event, he was found guilty of manslaughter. Manslaughter had been left to the jury on two bases: a killing either in excessive self defence or by an unlawful and dangerous act. The basis upon which he should be sentenced is a matter of dispute between the parties.