Tabbah v R [2019] NSWCCA 324

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tabbah v R [2019] NSWCCA 324 Hearing dates: 2 October 2019 Date of orders: 30 December 2019 Decision date: 30 December 2019 Before: Bathurst CJ at [1] Johnson J at [2] Fullerton J at [146] Decision: 1. Time for the Applicant to apply for leave to appeal against sentence extended to 25 June 2019. 2. Grant the Applicant leave to appeal against sentence. 3. Appeal against sentence imposed on 10 December 2014 is allowed and the sentence is quashed. 4. For the offence of manslaughter, the Applicant is sentenced to imprisonment for 13 years comprising a non-parole period of eight years and six months commencing on 6 March 2012 and expiring on 5 September 2020 with a balance of term of four years and six months commencing on 6 September 2020 and expiring on 5 March 2025. 5. Pursuant to s.59 Crimes (Sentencing Procedure) Act 1999, the sentence imposed at the Sydney District Court on 22 May 2015 for an offence under s.60A(3) Crimes Act 1900 is varied to a sentence of imprisonment for three years, comprising a non-parole period of two years commencing on 6 March 2020 and expiring on 5 March 2022 with a balance of term of one year commencing on 6 March 2022 and expiring on 5 March 2023. 6. The earliest date upon which the Applicant will be eligible for release on parole is 6 March 2022. Catchwords: APPEAL – SENTENCE – offender convicted of manslaughter following trial for murder – offender requires an extension of time – offender was party to a joint criminal enterprise – whether sentencing Judge took into consideration a factor which was inconsistent with verdict of the jury – where fair reading of sentencing remarks demonstrated no error – where change in language was a slip – claims of errors in finding aggravating factors in s.21A(3) Crimes (Sentencing Procedure) Act 1999 – whether offence was a "part of a planned or organised criminal activity" – error established – whether offence aggravating because of substantial injury, emotional harm, loss or damage – where finding made by sentencing Judge open in circumstances where family of victim were physically present at time of offence – whether sentencing Judge impermissibly double counted offender's previous criminal history – no double counting demonstrated – whether offence aggravated because it was committed "in company" – where being in company was an integral component of the offence – error established – interests of justice warranted grant of an extension of time – later sentence imposed for offence of recklessly wounding a law enforcement officer – assault on correctional officer while offender on remand – issue of totality to be considered on resentencing for manslaughter – special circumstances – offender resentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Carroll v R [2019] NSWCCA 243 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Gore v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 Hope v R [2018] VSCA 230 House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 Jinnette v R [2012] NSWCCA 217 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Makarov v R (No. 4) [2008] NSWCCA 341 Mariam v R; R v Mariam [2013] NSWCCA 338 Moore v R [2016] NSWCCA 185 R v Davis (Court of Criminal Appeal, Gleeson CJ, Meagher JA and Wood J, 4 February 1994) R v Diab [2005] NSWCCA 64 R v Forbes [2010] NSWSC 1547 R v Fraser and Spencer [2007] NSWSC 1449 R v Hamzy [2018] NSWCCA 53 R v Kari and Others [2008] NSWSC 993 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v O'Brien and Others [2012] NSWSC 1503 R v Schneidas (No 1) (1980) 4 A Crim R 96 R v Shedden [2013] NSWCCA 225 R v Smith [2015] NSWCCA 193 R v Tabbah; R v Tiriaki (No. 6) [2014] NSWSC 1764 Taufahema v R [2007] NSWSC 1460 v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 Texts Cited: --- Category: Principal judgment Parties: Salim Tabbah (Applicant) Regina (Respondent) Representation: Counsel: Mr T Game SC; Mr D Barrow (Applicant) Mr D Patch (Respondent)