Supreme Court New South Wales Medium Neutral Citation: R v Mahmoud Mariam [2012] NSWSC 1023 Hearing dates: 28, 29 February; 1-30 March; 2-29 April; 2-27 May; 6 July; 17 August 2012 Decision date: 30 August 2012 Before: Latham J Decision: Convicted of the offence of manslaughter. Sentenced to a non parole period of 5 years and 9 months, to date from 24 July 2010, expiring 23 April 2016, with an additional term of 2 years, expiring 23 April 2018. Further convicted of the offence of affray. Sentenced to a fixed term of 3 years imprisonment, to date from 24 April 2010, expiring 23 April 2013. Eligible for release on 24 April 2016 Catchwords: CRIMINAL LAW - sentence - conviction by jury - manslaughter - affray - each offence considered high Cases Cited: R v Oinonen [1999] NSWCCA 310 R v Johnson [2003] NSWCCA 129 Category: Sentence Parties: Regina - (Crown) Mahmoud Mariam - (Offender) Representation: Counsel P Barrett - (Crown) T Hughes - (Offender) Solicitors S Kavanagh - Solicitor of Public Prosecutions - (Crown) William O'Brien & Ross Hudson (Offender) File Number(s): 2009/191638 2010/97926 SENTENCE 1The offender, Mahmoud Mariam, stands for sentence on a charge of manslaughter and a charge of affray following verdicts of guilty on 28 May 2012. The offence of manslaughter carries a maximum penalty of 25 years imprisonment. The offence of affray carries a maximum penalty of 10 years imprisonment. 2The following represents a summary of the events giving rise to the offences that were the subject of a three-month trial. 3At about 9pm on 25 June 2009, a juvenile male (HEK) was involved in a physical assault with another young man at Bankstown's Centro shopping centre. Adam Mariam, the offender's younger brother, was also present as a friend of the young man who was assaulted. The assault was interrupted by security staff and by police. Both groups of young men were escorted from the premises. HEK was unsatisfied with the outcome of the confrontation. 4Over the following hour, numerous telephone calls were made between associates and family members of the two opposing camps, namely the Mariam group and HEK's group, as well as between members belonging to each group. During these telephone calls, arrangements were made to meet in order to pursue the earlier conflict. During these calls, members of each group recruited other people to participate in the planned confrontation. This offender volunteered his services in response to his younger brother's complaints about his friend's treatment at the hands of HEK. 5At about 10:15pm, three members of the Mariam group, including this offender and Rami Abdulhardi, travelled to the vicinity of the car park in a Mazda. This offender was armed with a loaded Ruger pistol. They parked near a roundabout on Starkey Drive and walked from the vehicle into the car park adjacent to a Hungry Jack's food outlet. The trio was seen by a number of employees of that outlet. They changed direction and walked towards the Aldi store on the northern edge of the car park. They remained in view of the Hungry Jack's employees until those employees left the parking lot shortly thereafter. 6Shortly afterwards, a Honda car occupied by the offender's two younger brothers, pulled into the car park and parked between KFC and Hungry Jack's. Those persons remained in the car. 7A short time later, at about 10:25pm, a white van carrying HEK's group entered the car park and parked alongside the Honda. At this point in time, the high beam of the Honda was activated, whereupon this offender and Mr Abdulhardi started walking towards the white van. 8Almost immediately, the offender began shooting at the opposing group. He repeatedly discharged his firearm in a generally southerly direction. As many as 10 cartridges were fired indiscriminately in a matter of minutes. One of them travelled across the carpark, through a border of foliage and trees, across Milperra road, ultimately striking a truck driver, Mr Knight in the right side of the head, killing him instantly. Another projectile appears to have injured the offender's younger brother, who was shot in the arm adjacent to the Honda. Mr Abdulhardi received gunshot wounds to the stomach, most probably from the return of fire by Adel Elkobaili, who had emerged from the van. Other occupants of the van, who had commenced to assault the occupants of the Honda before they realised they were under fire, took cover. 9Very shortly after these events, the van left the scene. The offender initially went to the assistance of his brother, who was taken to hospital. Mr Abdulhardi was left lying on the ground in the carpark where the police found him a short time later. The offender fled the scene at high speed, pursued by two police vehicles. It was the Crown case, which the jury accepted, that he threw the Ruger from the car as it sped away. The gun was later recovered with an empty magazine. Ultimately, the offender was arrested at his home and remained in custody until 14 July 2009 when he was released to bail. He re-entered custody on 15 February 2010 following the imposition of a three month term for a driving offence. That term expired on 14 May 2010. 10It is relevant to note that the jury acquitted Adel Elkobaili of all offences, including affray, and that the only way in which those verdicts can be reconciled with the guilty verdicts returned against this offender is on the basis that the jury was not satisfied beyond reasonable doubt that Adel Elkobaili was not acting in self-defence. The corollary of that proposition is that the jury found as a fact that Mahmoud Mariam was the first to discharge a firearm. That finding appears to me to be consistent with an acceptance by the jury that the combined actions of the Mariam group constituted a form of ambush, to which Adel Elkobaili responded. The offender, through his counsel, accepts that he is to be sentenced on the basis that he was responsible for the death of Mr Knight by the unlawful and dangerous discharge of the pistol in the circumstances I have outlined. 11The objective gravity of the manslaughter is, in my view, high. The Crown submission that the offence involved the deliberate and repeated firing of a firearm in a public place with a view to furthering a conflict between two groups of young men in which the offender played no part is well founded. This was not a manslaughter that arose in circumstances where a physical altercation results in the unintentional death of one of the participants. I am satisfied beyond reasonable doubt that the offender took the loaded firearm with the intention of using it, albeit not necessarily with the intention of inflicting grievous bodily harm or death on any person. The fact remains however, that all of the offender's actions on the night in question were demonstrative of a premeditated plan to surprise the members of the opposing group with a pre-emptive show of force. 12In these circumstances, there is very little additional criminality represented by the commission of the affray. I recognize that the affray brings with it the additional element of placing members of the public in fear for their personal safety. As I observed when sentencing Mr Abdulhardi, one only has to relate the circumstances surrounding the commission of the affray to appreciate its objective gravity. The level of violence meted out in the course of these events and the premeditated assembly of 11 young men in a public place, adjacent to a major arterial road in western Sydney, at about 10:30pm on a week night, for the sole purpose of settling a score that seems to have arisen during a petty assault earlier that day, marks this affray as a particularly serious example of the offence. 13Notwithstanding that the events outlined above took place over a relatively short period of time (including the discharge of firearms over a matter of minutes), it bore all the hallmarks of a complete disregard for, indeed a contempt for, the rule of law. It was an abhorrent and despicable display of male aggression. That said, any appreciable accumulation of the sentence for the affray on the sentence for the manslaughter risks an element of double punishment. 14The Court acknowledges the very moving and profound expression of grief expressed by Mr Knight's son and daughter at the senseless death of a treasured father, grandfather and husband. It is understandable that they desire punishment of a far greater order than it is within the power and discretion of the Court to impose. Despite an eloquent and heartfelt expression of condolence on the part of the offender's counsel during the sentencing proceedings, it remains true to say that the offender himself has at no stage expressed the slightest remorse for the death of Mr Knight. He chose to place evidence of his personal circumstances before the Court in the form of an affidavit, as was his right, yet nowhere did he address the consequences of his offending, other than the impact it had on himself and his family. 15The offender offered through his then legal representatives on 16 May 2011 a plea to manslaughter in full discharge of the indictment. That offer was rejected by the Director of Public Prosecutions. The offender's legal representatives at trial made a further offer on 20 February 2012 to plead to manslaughter in full discharge of the indictment. That offer was also rejected by the Director. In those circumstances, notwithstanding the offender's vigorous defence at trial, he is entitled to a discount on the sentence that would otherwise be imposed for the manslaughter in accordance with the principles established in R v Oinonen [1999] NSWCCA 310 and R v Johnson [2003] NSWCCA 129. I would assess the discount at 15%. 16The offender will turn 29 on 14 September 2012. His parents came to Australia from Lebanon in 1978. The offender's father has owned and operated a car repair business in Bankstown for the past 24 years. His mother also works in the family business from time to time. The offender has four brothers, one older, and three younger. 17The offender undertook secondary schooling at the Sydney Adventist College in Strathfield. He completed his HSC in 2001. He married his wife on 10 September 2004. They have two children, aged six and two. The offender commenced working with his father in the panel beating business in late 2004. In 2009 they purchased a property from the offender's father in which they lived. The offender's wife sold the family home after the offender was taken into custody. The offender's wife and his two children currently live in rented accommodation in Bankstown. 18The offender's wife provided a letter to the Court (Exhibit 4) which outlines the hardship and depression she has suffered since her husband went into custody. It was not submitted that her hardship, such as it is, qualifies as exceptional circumstances for the purposes of mitigating the sentence that is otherwise appropriate to the objective and subjective criminality. 19The offender has undertaken an apprenticeship through TAFE in automotive panel beating. The offender also undertook a part-time course in business management at TAFE and a travel agency course. On his release, the offender has available to him full-time employment in his father's business. He has expressed a wish to undertake employment in the travel and tourism industry. 20The offender's criminal history consists of two counts of robbery in company in 2001, for which the offender received a community service order and a two-year bond. He was called up in relation to a breach of the bond in June 2003. He received a 12 month suspended sentence of imprisonment. In 2009 he came before the court for an offence of drive vehicle recklessly or furiously or speed/manner dangerous. He initially received a sentence of six months imprisonment which was reduced on appeal to a sentence of three months imprisonment. Those driving offences were referable to the offender's flight from the scene and his pursuit by police after the commission of the instant offence. 21The circumstances of these offences demand considerable emphasis on the principle of general deterrence. Specific deterrence also has some limited significance, in view of the offender's criminal history and the absence of any evidence of his capacity for insight into his behaviour. To my observation, he wears his contempt for the law as a badge of honour. I therefore regard his prospects of rehabilitation as moderate at best. The aggregate punishment to be imposed for the offences of manslaughter and affray must, in my view, reflect the fact that the offender was a mature adult who consciously and arrogantly engaged in the most mindless display of violence in the presence of a number of much younger men and vulnerable members of the public. I see no sound basis for a finding of special circumstances. 22In all of these circumstances, and taking into account the 19 days the offender was bail refused on these offences, I propose to sentence the offender as follows :- 23Mahmoud Mariam, you are convicted of the offence of manslaughter. I sentence you to a non parole period of 5 years and 9 months, to date from 24 July 2010, expiring 23 April 2016, with an additional term of 2 years, expiring 23 April 2018. 24You are further convicted of the offence of affray. I sentence you to a fixed term of 3 years imprisonment, to date from 24 April 2010, expiring 23 April 2013. 25You are eligible for release on 24 April 2016. 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: 31 August 2012