New South Wales Supreme Court CITATION : R v Diab [2007] NSWSC 577 HEARING DATE(S) : 14, 23 February, 9 March, 20 April, 25 May 2007 JUDGMENT DATE : 7 June 2007 JURISDICTION : Common Law Division Criminal List JUDGMENT OF : Studdert J DECISION : Sentenced to a non parole period of seven years nine months to date from 7 June 2005 and to expire on 6 March 2013. The balance of the term of two years six months is to date from 7 March 2013 and to expire on 6 September 2015. The first date upon which the offender is eligible for release on parole is 6 March 2013. LEGISLATION CITED : Crimes Act, ss 24, 421 Crimes (Sentencing Procedure) Act, ss 3A, 21A, 44 R v Blacklidge (unreported, NSWCCA, 12 December 1995) R v Forbes [2005] NSWCCA 377 R v Previtera (1997) 94 A Crim R 76 R v Bollen (1998) 99 A Crim R 510 CASES CITED : Ahmad v R [2006] NSWCCA 117 R v Vuni [2006] NSWCCA 171 R v Mohamad Ali [2005] NSWSC 334 R v Morgan (1993) 70 A Crim R 368 R v Trevenna [2004] NSWCCA 43 PARTIES : Regina v Ali Diab (NON PUBLICATION ORDER) FILE NUMBER(S) : SC 2006/1451 E. Wilkins SC (14, 23 February, 9 March) (Crown) COUNSEL : A. Robertson (25 May) (Crown) A.M. Webb (Offender) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Hanby & Associates Lawyers (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST STUDDERT J Thursday 7 June 2007 2006/1451 REGINA v ALI DIAB SENTENCE NON PUBLICATION ORDER (There is to be no publication such as would identify the witnesses referred to in the statement of facts, Exhibit A.) 1 HIS HONOUR: On 14 February 2007 the offender, Ali Diab, pleaded guilty to the manslaughter of Wasiem Amer on 15 May 2005. Earlier, an indictment had been presented against the offender charging him with the murder of the deceased but, on the issue of self defence, the Crown concluded that it was unable to discharge its onus of proving beyond reasonable doubt that the offender did not believe his conduct was necessary to defend himself or another person: see para 18 of Statement of Facts, Exhibit A. It is in these circumstances that the present indictment was presented and in which I am now required to sentence the offender for the crime of manslaughter as charged, committed in circumstances that I shall now review. 2 The offender shot the deceased at Bexley on 15 May 2005. The deceased, on post mortem examination, was found to have died from the effects of multiple gunshot wounds. There were five gunshot wounds to the body, with two of those being to the chest, one to the right arm, one to the left arm and one to the right leg. 3 I draw on the statement of facts presented by the Crown (Exhibit A) to summarise the objective facts. 4 The offender and Rabih Abdulrahman, who was charged with being an accessory after the fact to manslaughter, were at the time of the death of the deceased engaged in illegal drug dealing. So too was the deceased, and there was an ongoing dispute between the offender and Rabih Abdulrahman, on the one hand, and the deceased, on the other, concerning their respective areas for their illegal drug activities. 5 The shooting occurred in the bedroom of a unit rented by a witness, B, with whom Rabih Abdulrahman had earlier had a relationship. The offender and Rabih Abdulrahman had been staying at that unit in the week leading up to the shooting, using it as a base from which to carry on the sale of illegal drugs. Having gone to the unit on 15 May 2005, the deceased informed B that he wanted to stay there and to use it for drug dealing activities. Some time before the offender's arrival in the bedroom on 15 May 2005, the deceased told B to go and get the offender who was outside the unit block at the time. The offender did not attend the unit immediately but did so shortly before the shooting, together with his brother and other companions. 6 At the time of the shooting there were a number of men in the bedroom, including the offender and his brother. Just prior to the shooting, the offender and the offender's brother were engaged in a verbal argument with the deceased. The offender was standing behind his brother, near the doorway. 7 It is agreed that the argument proceeded for some three or four minutes and that it was asserted that the deceased had threatened the offender with a firearm a few days before. The deceased drew a handgun and thereupon the offender used a pistol in his possession to fire five shots, inflicting the five bullet wounds mentioned earlier. It is further agreed that whilst the deceased had drawn a handgun, he had not fired it before the offender shot him, and, indeed, Mr Webb acknowledged that there was no evidence that the weapon presented by the deceased was loaded. 8 As I observed at the outset, the Crown presented the indictment charging the offender with manslaughter, acknowledging that it was unable to discharge the onus of proving beyond reasonable doubt that the offender did not believe that his conduct was necessary to defend himself or some other person. The Crown acknowledged that the offender was to be sentenced on the basis that his conduct in firing the shots was not a reasonable response in the circumstances as he perceived them. In short, the Crown accepted that it was unable to establish that the offender was criminally responsible for the crime of murder and perceived that, having regard to s 421 of the Crimes Act, the crime of manslaughter expressed in the indictment presented on 14 February 2007 was appropriate. 9 So it is that the matter proceeded before me on the basis that the offender caused the death of the deceased and that his conduct in doing so was not a reasonable response in the circumstances as the offender perceived them to be. 10 Viewed objectively, the circumstances of this crime of manslaughter were, indeed, very serious. The offender brought with him to this meeting with the deceased a pistol which was loaded and he fired five shots with it. The inference is compelling that when he fired the shots, the offender intended to kill the deceased, or at the very least to cause him serious bodily harm. Whilst the deceased had drawn a handgun before the shooting, the deceased had not fired his weapon, and I am satisfied beyond reasonable doubt that the offender's conduct in firing the shots that caused the death of the deceased was not a reasonable response to the circumstances as the offender perceived them to be. 11 Section 24 of the Crimes Act provides for the crime of manslaughter a maximum penalty of imprisonment for twenty-five years, but it has been repeatedly observed that the crime of its nature covers an extremely wide spectrum of circumstances. It is timely to repeat what Gleeson CJ said in R v Blacklidge (unreported, NSWCCA, 12 December 1995): "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range and degree of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case (R v Dodd (1991) 57 A Crim R 349 and R v Hill (1981) 3 A Crim R 397 at 402)." 12 I refer also to the dicta of Spigelman CJ in R v Forbes [2005] NSWCCA 377: "133 As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge ). In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]). 134 It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter. 135 For example, where diminished responsibility is relied upon, the extent to which culpability is 'diminished' can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as 'child killing by a parent or carer', it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases (see Hoerler (supra)). This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff it is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence ( R v Trevenna (2003) 149 A Crim R 505). 136 The test established by s148 of the Crimes Act is whether 'the conduct is a reasonable response in the circumstances as he or she perceives them'. Such a test must depend on the characteristics and conduct of the deceased and also the nature of the response, in all of the circumstances of the particular case, on the part of the accused. A test of such a wide-ranging character is unlikely to lead to anything in the nature of a sentencing pattern or tariff in which the decisions on one case are of any particular utility for another." 13 This brings me to the submissions advanced by Mr Webb and to the subjective features of this case upon which those submissions focussed. 14 The offender was born on 24 October 1978. He was twenty-six years of age at the time of the shooting and he is presently twenty-eight years old. He was born in Australia to Lebanese parents. He spent some part of his childhood in Lebanon. He also spent some time in Lebanon as a young adult. He married at the age of twenty and the Probation and Parole Service Pre Sentence Report refers to departmental records that his wife has visited him only twice in the period he has been in custody. Mr Webb, however, pointed to the circumstance that the offender's wife was present in Court on the hearing on sentence. 15 The Probation and Parole Service report is not particularly favourable. It refers to misconduct by the offender whilst he has been in custody and the author observed that the offender expressed no sympathy concerning the loss of life or the impact of the death of the deceased upon the deceased's family. There was no feature of the pre sentence report which Mr Webb sought to emphasise as being favourable to the offender. 16 Mr Taylor, psychologist, was qualified for the offender, and his reports were tendered by Mr Webb. I note that Mr Taylor recorded that the offender expressed remorse to him. The offender has given no evidence before this Court, and I am not assisted by the self-serving assertion to Mr Taylor. I do not find the offender to be contrite. 17 I have considered Mr Taylor's reports, but I do not find them to be of assistance in my task. Mr Taylor commented on the tests which he carried out at p 8 of his report of 10 April 2007: "The tests which were administered to Mr Diab did not indicate that he has a personality disorder. He does not appear to have very significant antisocial characteristics in his personality adjustment. However he does have an above average tolerance for legal violations which has probably contributed to his previous offending behaviour. He also does not have a significant predisposition to engage in substance abuse. At the present time he does not appear to be suffering from any significant emotional disorder although, as commented upon earlier in this report, he has a degree of depression and anxiety which is reactive to his current situation, and the state of his son's health." 18 The son referred to has since died and there are two surviving children, one of whom has Down's syndrome. 19 Mr Taylor's assessment of the offender was that he had "a low-moderate risk of recidivism in general and a low-moderate risk of violent recidivism". 20 The offender has some driving offences, which I do not treat as significant in the present context. Additionally, however, he has a conviction for an offence of assault occasioning actual bodily harm. For that he was placed on a bond for a period of twelve months in addition to being fined. The bond was not current at the time of the shooting, and I note from the pre-sentence report that the offender was "favourably released from supervision responsibilities on 10 December 2003". 21 I am, of course, required to consider the provisions of s 21A of the Crimes (Sentencing Procedure) Act. Mr Webb acknowledged the obvious application of s 21(2)(d) and I have referred already to the earlier conviction for an offence of violence. That, of course, is to be considered as an aggravating factor, not being an element of the offence. Mr Webb, for the purposes of s 21(3), submitted by way of mitigation that the offender had reasonable prospects of rehabilitation. He submitted also that the plea of guilty was to be taken into account in the offender's favour. 22 As to the prospects of rehabilitation, I am mindful of Mr Taylor's assessment of the risks of recidivism , and I take that assessment into account. I also have regard to the offender's age. He is still a young man. It seems to me that overall I should regard the offender as having some prospect of being rehabilitated but the evidence as to this is by no means compelling. 23 The offender is to be given some discount on the sentence that would otherwise be attracted by reason of his plea of guilty. 24 Mr Webb informed the Court that on 6 February 2007 he had some discussion with the Crown concerning this matter and the Crown was alerted to the concession which the offender would be making at trial that that it was not disputed that the deceased had been shot and killed by the offender. There was a discussion in the week before the trial as to whether the offender would be willing to plead guilty to manslaughter. I accept that the Crown was told in the week before the appointed trial date that the offender was willing to plead guilty to manslaughter, and such a plea was entered when the offender was arraigned before me on 14 February 2007. 25 Whilst the plea was a relatively late one, nevertheless the fact that the offender pleaded guilty to the crime charged led to a saving in court time and avoided the need for a trial that could have possibly occupied several weeks. Mr Webb submitted that it would be appropriate to allow a discount of fifteen percent or more. The Crown did not contend otherwise, and in the circumstances of this case, I have decided that I should allow a discount of fifteen percent on the sentence I would otherwise have imposed to provide for the utilitarian value of the plea. 26 I do not find that the shooting was part of a long-planned criminal activity. However, clearly, the offender was armed at the time that he entered into the final confrontation with the deceased and that confrontation and the shooting occurred in the environment earlier mentioned, namely that the offender and the deceased were clashing over their respective drug dealing activities. 27 I am satisfied that no penalty other than imprisonment would be appropriate in this case. I must pay due regard to the purposes of sentencing as expressed in s 3A of the Crimes (Sentencing Procedure) Act. In particular, I must recognise the need for the offender to be adequately punished, the need for the issue of deterrence of the offender and of others to be appropriately addressed, as well as the need for denunciation of the offender's conduct. I am mindful of the need to consider the rehabilitation of the offender, but I observe in this respect that I do not find special circumstances for the purposes of s 44(2) of the statute. 28 Victim impact statements have been received in this matter: see Exhibits C and D. These statements were read to the Court by the authors, Nancy Amer and Nasrien Amer, two sisters of the deceased. The distress of these young women as each read her statement was obvious. Clearly, each of these victims has lost a brother who was very dear to her. The death of the deceased has plainly occasioned much grief and suffering. However, I must approach my task bearing in mind the principles stated in R v Previtera (1997) 94 A Crim R 76 and in R v Bollen (1998) 99 A Crim R 510. I do not consider it would be appropriate to treat these statements as having material bearing upon the sentence which I should impose. 29 The Crown made reference to the decision of the Court of Criminal Appeal in Ahmad v R [2006] NSWCCA 177. In that case the offender fired five rounds of ammunition at the deceased, who was in consequence mortally wounded. Before the shooting the deceased had shot and wounded a person who was trying to restrain the deceased from violence against the offender. The sentencing proceeded upon the basis of excessive self defence. There was a utilitarian value to the guilty plea, which attracted a discount of fifteen percent. The sentence imposed at first instance was one of nine years four months imprisonment with a non parole period of six years, but the offender was also to be sentenced for, and was sentenced for, other offences. It would seem that but for the fifteen percent discount, the total sentence, including the additional term, would have been a sentence of eleven years. The sentence imposed for manslaughter was considered to be in the available range by the Court of Criminal Appeal. McClellan CJ at CL, with whom the other members of the court agreed, said that the sentence "was well within the appropriate range" ([45]). 30 Mr Webb referred to R v Forbes (supra), R v Vuni [2006] NSWCCA 171, and R v Mohamad Ali [2005] NSWSC 334. 31 In Forbes, there was a shooting in excessive self defence which attracted a sentence of twelve years imprisonment with the non parole period of seven years. That was the sentence imposed after trial. The Court of Criminal Appeal did not find it to be excessive. 32 In Vuni, the sentence imposed following trial was a non parole period of seven years six months and a balance of term of two years six months. The sentence was imposed upon the basis that the offender acted in excessive self defence when he killed the deceased with a single shot to the head. The sentence was not disturbed on appeal. Vuni attracted no discount for a plea, but I consider the culpability of the offender here to be somewhat greater than that of Vuni. 33 In Mohamad Ali, the Chief Judge at Common Law determined that an appropriate sentence for an offender who shot the deceased in excessive self defence was a term of imprisonment of seven years six months with a non parole period of four years six months. 34 I have considered the above cases and the sentences in the cases to which Hall J referred in his judgment in Forbes (supra). However, I do not consider it would be useful to record here a close review of these cases. It has often been observed that it is futile to determine an appropriate sentence simply by reference to other cases: see the judgment of Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371; and the judgment of James and Barr JJ in R v Trevenna [2004] NSWCCA 43; and the judgment of Wood CJ at CL in Mohamad Ali at [61]. So much depends upon the particular circumstances of the particular case. 35 I return to the present case. This offender could have avoided the summons to enter the bedroom where the deceased was. He chose, however, to enter the bedroom and to argue with the deceased in circumstances where they were in dispute over their illegal drug activities. The offender had with him during the confrontation a loaded pistol. He used the weapon, not once but five times. The need to denounce the offender's conduct and the need to deter him and others from using a firearm in circumstances such as those in which the offender placed himself, or, indeed, in any unlawful circumstances, must be adequately reflected in the sentence I impose. 36 Section 44 of the Crimes (Sentencing Procedure) Act as enacted in 2002 applies here. I am required first to set a non parole period for the sentence and then a balance of the term of the sentence which, in the absence of special circumstances, is not to exceed one-third of the non parole period. The offender has been in custody continually since the date of his arrest on 7 June 2005, and the sentence is to be backdated to commence on that date. 37 After allowing for the discount I have identified, I consider that I should set a non parole period of seven years nine months, and that the balance of the sentence should be two years six months. 38 Accordingly, I pass sentence as follows: You are sentenced to imprisonment for a non parole period of seven years nine months, to date from 7 June 2005 and to expire on 6 March 2013, and the balance of the term of the sentence is two years six months to date from 7 March 2013 and to expire on 6 September 2015. The first date upon which you are to be eligible for release on parole is 6 March 2013. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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