R v ABBAS [2009] NSWSC 127

New South Wales Supreme Court

CITATION : R v ABBAS [2009] NSWSC 127

HEARING DATE(S) : 10 - 11 November 2008 18 December 2008

JUDGMENT DATE : 6 March 2009

JUDGMENT OF : Mathews AJ

DECISION : Sentenced to a non-parole period of three years and nine months, commencing 11 December 2006 and expiring on 10 September 2010, together with an additional term of three years, commencing on 11 September 2010 and expiring on 10 September 2013.

CATCHWORDS : CRIMINAL LAW - sentence - plea of not guilty to charge of murder - jury trial commenced - re-arraignment - plea of not guilty of murder but guilty of manslaughter - plea accepted in full discharge of indictment - stab wounds - excessive self-defence - use of weapon an aggravating factor - episode initiated by deceased - remorse - plea of guilty to manslaughter offered earlier but declined by Crown - special circumstances

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

CATEGORY : Sentence

PARTIES : Regina (Crown) Mohamed Khoder Abbas (Offender)

FILE NUMBER(S) : SC 2008/5766

COUNSEL : M Barr/ T Bailey (Crown) J Dailly SC/ D Timmins (Offender)

SOLICITORS : S Kavanagh (Solicitor for Director of Public Prosecutions) (Crown) Allied Lawyers (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

Mathews AJ

Friday 6 March 2009

2008/5766 R v Mohamed ABBAS

REASONS FOR SENTENCE 1 HER HONOUR: On 10 November 2008 the offender, Mohamed Abbas, pleaded not guilty on arraignment to a charge that on 10 December 2006 he murdered Joseph Webber. A jury was duly empanelled and the trial commenced. Two witnesses had given evidence by the end of the first day. The next day the offender asked to be re-arraigned. On this occasion he pleaded not guilty of murder but guilty of manslaughter, a plea which was accepted by the Crown in full discharge of the indictment. The jury was accordingly discharged and the matter stood over for sentence. 2 The circumstances of the killing are as follows. At about 7.30 pm on Sunday 10 December 2006, the victim, Mr Webber, and two friends, Trinity Heng and Zaccariah Hough, went to a KFC restaurant at Wentworthville. They had spent much of the day on a pre-Christmas cruise, hosted by their employer, followed by a few hours of partying at the home of their employer's son. A considerable amount of alcohol had been consumed and Mr Webber was significantly intoxicated. 3 The three of them sat at a table in the outside seating area of the restaurant. One of them went inside for some food which the three of them then shared between them. Not long afterwards the offender and his companion, Mr Hanna Saade, arrived and sat at a table in the same outside area. Neither the offender nor Mr Saade had ever previously met Mr Webber or either of his companions. 4 I should say at this stage that almost everything that happened that evening was captured on CCTV. Accordingly, the Court was in the most unusual position of being able to observe at first hand many of the actual movements of the participants, together with the time at which all relevant events occurred. 5 At 7.56.17 pm Mr Webber got up and walked towards the table occupied by the offender and Mr Saade. He asked for a dollar. His demeanour was threatening and angry, and his friend Mr Heng, sensing impending trouble, went over and offered the deceased five dollars. Mr Webber threw it to the ground, and continued to walk towards the offender and Mr Saade demanding that they give him a dollar. Both Mr Heng and Mr Hough tried to restrain him and move him away. They told the offender and Mr Saade to ignore him as he was drunk. 6 At about this point – at 7.56.46 pm – the offender left the area, saying he was going to get change from his car. He went outside to his car where he was seen to take a knife from the glove box. While he was away, Mr Webber was trying to get to Mr Saade, but was held back by Mr Hough. Very shortly before the offender returned, Mr Webber broke away, lunged at Mr Saade and grabbed him by the neck of his shirt. He was in this position when the offender returned. The offender was momentarily held back by Mr Heng but broke free. He went up to Mr Webber, who was still holding Mr Saade, and stabbed him four times. 7 Shortly afterwards the offender and Mr Saade left. They went to the offender's car where the offender told Mr Saade that he had stabbed the deceased in the leg in order to immobilize him as "he looked like he was strangling you". 8 None of the onlookers had seen the knife in the offender's hand, and it was only when Mr Webber collapsed shortly afterwards that his companions realised the seriousness of the situation. A triple-0 call was made and an ambulance arrived almost immediately. However, Mr Webber died shortly after his arrival in hospital. 9 All this happened very quickly indeed. The actual stabbing took place at 7.57.41 pm, a mere one minute and 24 seconds after the confrontation had started with Mr Webber first approaching the offender and Mr Saade. 10 The next day, after learning through the media that Mr Webber had died, the offender voluntarily attended the Merrylands Police Station where he was arrested and charged with murder. He has been in custody ever since. 11 A post-mortem examination found that Mr Webber had sustained four stab wounds: three to the abdomen and one to the groin. One of the abdominal wounds had penetrated the aorta. This was the immediate cause of death. Even without it, one of the other abdominal wounds would have caused death without early medical intervention, as it had penetrated the gall bladder, the pancreas and the colon. The doctor performing the post-mortem was unable to determine the order in which the wounds had been inflicted. 12 Mr Webber had a blood alcohol reading of .238 per 100mls, a very high reading indeed. He was heavily intoxicated at the time of these events. This is confirmed by the CCTV images and by the evidence of his companions. 13 It is agreed that the plea of guilty to manslaughter is based on excessive self-defence (or more accurately, excessive defence of Mr Saade). 14 I turn to say something about the offender's background. This largely comes from evidence given during the sentencing proceedings by the offender himself and two of his siblings, and also from a report of Dr Olav Nielssen, which was tendered by the defence. 15 The offender is now 34 years old, having been born on 18 January 1975. He has a police record consisting of a number of driving offences and a few other relatively minor offences. The only offences involving violence were two convictions, in 1996 and 2003 respectively, for assaulting a police officer. Both of these were dealt with by way of bond. The offender has never been in gaol before. 16 The offender, who is of Lebanese extraction, is the oldest of seven children. His mother was 16 when she married his father, a much older man, in an arranged marriage. They came to Australia shortly afterwards and the offender was born the following year. His parents' marriage was never happy. The offender told Dr Nielssen that his father was a gambler who later became addicted to heroin. He was away from the home for long periods of time so that it was, in many respects, a single parent household. 17 The offender's mother was clearly a bitter and unhappy woman. She visited a degree of violence on all her children, but it was the offender who was singled out to bear the brunt of her abuse. The evidence on this matter came primarily from the offender's younger brother, Sam Abbas, who said that the offender was beaten severely on an almost daily basis. His mother made him solely responsible for the great majority of household chores. He washed the dishes, made the beds and cleaned the home. If he did not perform these tasks to his mother's satisfaction, he was severely beaten. He was a bed-wetter until the age of 14. His mother always checked his bed and beat him when she found that he had wet it. Sam Abbas said that he used to hear his brother crying in the middle of the night. He attempted suicide twice, when he was in his early teens. 18 The offender told Dr Nielssen that in the course of this abuse he sustained burns, a broken leg and was sometimes beaten unconscious. He was teased at school because of the bruises and other marks caused by his mother's abuse. From time to time his teachers brought him to the attention of child welfare services because of his obvious injuries, but he declined to inform them about the source of the injuries and no action was taken. He left home at age 15, and moved in with other relatives. 19 Probably because of this physical abuse, the offender did not do well at school. He left school without completing year 10 and has worked ever since as a bricklayer's labourer. A very favourable report was tendered on sentence from his previous employer who has continued to visit him in gaol. He expressed willingness to re-employ the offender upon his release from custody. 20 In March 2005 the offender was married and in February the following year his son was born. The offender's wife gave evidence on sentence in which she described him as a devoted father and a good husband. She and their son visit him regularly. 21 Dr Nielssen considered that the offender showed no features of psychotic illness or delusional or abnormal beliefs. He estimated his intelligence to be within the normal range. He considered it likely that the severe physical abuse suffered by the offender in early life pre-disposed him to developing a high level of arousal in response to threats of violence such as the threat he perceived to have been posed by Mr Webber. Dr Nielssen went on to say: "Despite the severe level of neglect and abuse he experienced in early life … Mr Abbas did not go on to develop adolescent conduct disorder or a pattern of anti-social conduct as an adult. Moreover, he does not have a substance abuse disorder, which is the other factor most strongly associated with criminal recidivism. He has a history of stable employment, stable family life and strong support from his siblings. I believe Mr Abbas has good prospects for rehabilitation and a low risk of further offences of any kind." 22 The offender does not drink alcohol or take any other form of recreational drug. 23 The maximum penalty for manslaughter is imprisonment for 25 years. As has been observed on many occasions, this offence covers a broader range of culpability than any other in the criminal calendar. It can range, at the lower end of the spectrum, from a practical joke gone wrong, to, at the other end, a killing which is little short of murder. Sentencing patterns in relation to particular categories of manslaughter can provide something of a useful guide, but ultimately each case will turn upon its own facts. It must never be forgotten that the offence involves the unlawful taking of a human life. 24 The starting point in the sentencing process is to assess the objective seriousness of the offence. The Crown relies upon the following aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999: first, pursuant to paragraph (2)(c), that the offence involved the actual use of a weapon; and second, under paragraph (2)(ea), that the offence was committed in the presence of a child under 18 years of age. In this respect a number of KFC employees under the age of 18 were in the vicinity. Only one of them, a 16 year-old, witnessed the actual incident. 25 I would not use this second factor, namely the presence of the 16 year-old, as a relevant matter in this case. As Mr Dailly SC pointed out on behalf of the offender, he did not choose this venue to commit the offence. He happened to be there with his friend Mr Saade when Mr Webber approached them and the altercation between them ensued, with tragic consequences. 26 The following mitigating factors are potentially relevant to the objective seriousness of the offence. First, pursuant to paragraph (3)(b), the offence was not part of a planned or organised criminal activity; second, pursuant to paragraph (3)(c), the offender was provoked by the victim. However, the Crown rightly submits that the deceased's provocation has already been taken into account in reducing the offence from murder to manslaughter. It should not be used again in mitigation of the manslaughter offence. 27 In addition to the matters under s 21A, the Crown submitted that the offender's action in going to the car and obtaining a knife was not a reasonable response in the circumstances. At that time neither the offender nor Mr Saade were in any danger. Mr Webber had not touched anyone, and his friends were trying to move him away. Nor was Mr Saade in any serious danger when the offender returned and, with no prior warning, proceeded to stab Mr Webber four times in quick succession. 28 On the other hand, as the defence points out, this episode was initiated entirely by Mr Webber. Before it started, the offender and Mr Saade were apparently oblivious to the presence of Mr Webber and his friends at another table in the area. The deceased's friend, Mr Heng, acknowledged that no provocative word or gesture at all had preceded Mr Webber getting up and going to the table where the two of them were sitting. 29 The offender said in evidence that, before he went out to his car and collected the knife, he tried to persuade Mr Saade to come with him. Had he succeeded, both of them would have left the area and nothing more would have happened. A tragedy would have been averted. Unfortunately Mr Saade refused to move, so the offender went and collected the knife. His intention at the time, he said, was to frighten Mr Webber. When he returned he saw Mr Webber with his hand at Mr Saade's neck. I should interpose here that Mr Webber was a large man, approximately 180 cm in height and 102 kg in weight. He was significantly larger than the offender, and larger (although less so) than Mr Saade. The offender first tried to push Mr Webber away with his left hand, but could not move him. He then stabbed him with his right hand. He said that he thought he had stabbed him only twice, and lower in the body. He was clearly wrong in this respect. 30 The Crown did not accept that the offender tried to pull Mr Saade away before going to his car. However, having viewed the video on several occasions, I accept that this did indeed take place. I also accept that the offender's purpose in getting the knife was to frighten Mr Webber. It was only when he saw Mr Webber holding Mr Saade in the neck area that he lunged at him with the knife in order to stop him. This was, on any view of the matter, a highly excessive response, given that no injury had at that stage been sustained by either the offender or Mr Saade. I accept that the offender had no intention to kill Mr Webber. However, as he himself conceded, in stabbing him with a knife he must have realised that really serious injury would virtually inevitably follow. I also accept, consistently with Dr Nielssen's findings, that the offender's childhood experiences of severe and unremitting abuse, meant that he was particularly prone to develop high levels of arousal when confronted with threats of physical violence. 31 The knife itself was a relatively small, opening knife, which the offender routinely kept in his car for use during his employment. 32 It follows that the most significant factor exacerbating the objective seriousness of this offence was the use of the knife in circumstances which clearly, in hindsight, did not merit a response of that nature. Further, as the medical evidence shows, the knife was used to inflict no less than four stab wounds, three of them to the abdomen. 33 On the other hand I accept the various matters referred to by Mr Dailly in mitigation of the objective seriousness of this offence. Amongst the more important of these is the fact that neither the offender nor his companion did anything whatsoever to provoke this episode. The fact that the offender sought to avoid the confrontation by pulling Mr Saade outside quite early in the piece is also a significant factor. Nor is there any doubt as to the genuineness of the offender's belief at the time that he needed to protect his friend Mr Saade, albeit that the means he used was grossly disproportionate to the threat posed by Mr Webber. 34 Objectively, the offence must be placed at the lower end of the spectrum of manslaughter offences, given the broad range of criminality encompassed by that offence. 35 I turn to discuss the effect upon sentence of the offender's subjective features. These are, without exception, favourable to the offender. The Crown sought to urge that, as the offence of assault police in 2003 involved the threatened use of a knife, greater weight should be given to personal deterrence in the sentence for this offence. However, without going into the detailed facts of that earlier offence, I do not regard it as relevant in this case. Accordingly I do not propose to treat the offender's criminal record, minor as it is, as an adverse factor in the sentencing process. 36 The offender has expressed extreme remorse for this offence and I accept that he is entirely genuine in this respect. In his evidence he expressed severe regret and said that he deserved to be punished for killing Mr Webber. He acknowledged that Mr Webber did not deserve to be stabbed. He wrote a handwritten note which was read in court, apologising to Mr Webber's family and seeking forgiveness for the pain and sorrow he had caused them, whilst acknowledging that it would be difficult for them to forgive him. 37 Given the offender's contrition and the various matters referred to by Dr Nielssen, I consider it most unlikely that the offender will re-offend in any serious manner in the future. This is a highly significant matter on sentence. A further highly significant matter is the offender's plea of guilty. Although this was only entered during the course of the trial, a letter was sent on the offender's behalf to the DPP in September 2007, requesting that the Crown accept a plea of guilty to manslaughter based on excessive self-defence. It was not until the second day of the trial, after Mr Webber's two companions gave evidence which supported the offender's version of events, that the Crown agreed to accept this plea. The offender should not be penalised for the Crown's delay in this regard. In all the circumstances I propose to apply a discount of 20% for his plea of guilty. 38 Mr Webber was the father of a daughter, Rakaia, born in 1991, and a son, Teiwa, born in 2003. Extremely moving victim impact statements were read in court on behalf of Mr Webber's widow, Christine Tumanako and his daughter Rakaia. A further statement, of Mr Webber's youngest sister, Briar London, was tendered by the Crown. I would like to convey my own and the Court's sincere condolences to Mr Webber's family and friends. Their lives have forever been changed by the events of 10 December 2006. I hope that they will understand that the extent of the grief and loss suffered by the family of a homicide victim cannot be used as a measure for the appropriate sentence to be imposed upon the perpetrator. 39 This is a most unusual case in a number of respects, particularly relating to the offender's background and his strong prospects of rehabilitation. The Crown has agreed that special circumstances exist which justify a departure from the statutory nexus between the non-parole period and the total term of imprisonment. 40 The offender has been in custody since 11 December 2006 and his sentence is to commence on that date. 41 Mohamed Abbas, for the manslaughter of Joseph Webber you are sentenced to a term of imprisonment with a non-parole period of three years and nine months, commencing on 11 December 2006 and expiring on 10 September 2010, together with an additional term of three years, commencing on 11 September 2010 and expiring on 10 September 2013; a total sentence of six years and nine months. The earliest date on which you will be eligible for release on parole is 10 September 2010. **********