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Supreme Court 19 February 1999

R v Adam (Richard) and (Gilbert)

[1999] NSWSC 144

Assault & violenceHomicide
DECISION : GILBERT ADAM RICHARD ADAM REGINA V RICHARD ADAM) 70210 98 THAT HE HAD A CUT ON HIS HAND EXAMINATION AND IN RE 4522

Citation: R v Adam (Richard) and (Gilbert) [1999] NSWSC 144
Court: Supreme Court of New South Wales (Criminal Division)
Date: 19 February 1999
Judge(s): Wood CJ at CL

Background

Two brothers, Gilbert Adam and Richard Adam, stood for sentencing following jury verdicts returned on 24 December 1998. Both had been tried for the murder of Constable David Carty, who was fatally stabbed and beaten in a carpark at the Cambridge Tavern, Fairfield, in the early hours of 18 April 1997. The constable had been at the hotel after finishing his shift and was preparing to drive home when he was confronted by a group of men.

Gilbert Adam was found guilty of murder. Richard Adam was acquitted of murder and of the alternative count of inflicting grievous bodily harm with intent, but was convicted of the lesser alternative of maliciously inflicting grievous bodily harm under s 35 of the Crimes Act 1900. Several other accused remained to be tried separately, and the sentencing judge confined his factual findings to the two prisoners before him.

Both men were Iraqi-born Assyrian refugees who had suffered serious persecution under the regime of Saddam Hussein, including forced military service, family trauma, and dangerous escape from Iraq. The court accepted their involvement in the events was impulsive rather than premeditated, and that neither man had been a member of any organised gang.

  • Whether Gilbert Adam's culpability for murder was sufficiently extreme to attract a mandatory life sentence under s 431B(1) of the Crimes Act 1900 (the provision requiring life imprisonment where the community interests of retribution, punishment, community protection and deterrence could only be met by such a sentence).
  • What determinate sentence, including the appropriate minimum and additional terms, was warranted for Gilbert Adam's murder conviction given the aggravating and subjective circumstances.
  • What sentence was appropriate for Richard Adam's conviction of maliciously inflicting grievous bodily harm under s 35 of the Crimes Act 1900, given his more limited role.
  • Whether special circumstances existed under s 5(2) of the Sentencing Act to justify departing from the standard proportion between minimum and additional terms for either prisoner.
  • How victim impact statements tendered under s 23C of the Criminal Procedure Act 1986 could be used in the sentencing exercise.

Decision

Gilbert Adam (murder). Wood CJ at CL found Gilbert Adam's culpability to be extremely high. The court accepted he was centrally involved in the initial confrontation that led to the fatal stab wound, whether as the person who inflicted it or as a participant in a joint criminal enterprise with that person. The court was satisfied beyond reasonable doubt that those involved in the early phase of the attack shared an intention to kill Constable Carty, who had offered no provocation. Three circumstances aggravated the offending: the victim was a police officer and his identity as such elevated the level of violence applied; Gilbert Adam carried a knife, and such a weapon was used in an unprovoked public attack; and the assault was a cowardly group attack on an unarmed, outnumbered man.

Despite finding culpability to be extremely high, the court was not satisfied it reached the threshold of being "so extreme" as to require a mandatory life sentence under s 431B(1). A lengthy determinate sentence was imposed instead. Subjective factors acknowledged included the prisoner's traumatic refugee background, limited education, language difficulties, and the hardship imprisonment would cause his family. However, no special circumstances warranting a variation from the standard sentencing proportion were found.

Richard Adam (malicious grievous bodily harm). The court found Richard Adam's involvement was confined to the second phase of the attack, after Constable Carty had already been mortally wounded and was lying defenceless on the ground. There was no basis to find he carried a weapon, was aware of any planned attack, or knew the victim was a police officer. His culpability was assessed as encouraging and assisting those directly inflicting the assault, with an intention to cause some bodily harm falling short of grievous bodily harm. The only applicable aggravating circumstance was his participation in a group attack on a defenceless man. A shorter sentence reflecting his significantly lesser role was imposed, and the court directed his release on parole at the end of the minimum term.

Victim impact statements. The court noted that statements from Constable Carty's family were tendered in the proceedings relating to Gilbert Adam only. Consistent with the approach in Previtera (1997) 94 A Crim R 76, those statements were considered for a limited purpose and not as a determinant of the appropriate sentence length.

Orders Made

  • Gilbert Adam: minimum term of penal servitude of 21 years, commencing 17 July 1997 and expiring 16 July 2018, with an additional term of 7 years from 17 July 2018. Earliest parole eligibility: 17 July 2018.
  • Richard Adam: minimum term of penal servitude of 2 years, commencing 24 December 1998 and expiring 23 December 2000, with an additional term of 8 months from 24 December 2000. Direction for release on parole at the end of the minimum term.
  • Recommendation that both prisoners serve their sentences together and be provided with opportunities for language skills and vocational training.
  • Direction that a copy of the sentencing reasons be referred to the Commissioner of Police and the Director of Ambulance Services of New South Wales.

Key Takeaways

  • A mandatory life sentence under s 431B(1) of the Crimes Act 1900 requires culpability so extreme that no other sentence can meet the community interests of retribution, punishment, community protection and deterrence. Extremely high culpability does not automatically satisfy that threshold.

  • Where multiple accused are involved in a joint criminal enterprise, each participant's culpability is assessed individually against the evidence at their own trial. Factual findings concerning co-accused yet to be tried are deliberately withheld to avoid prejudicing those future proceedings.

  • Violence directed at an off-duty police officer can still attract the same sentencing gravity as violence against an officer performing duties, provided the victim's identity as a police officer was a factor in the selection of, or level of violence toward, the victim rather than being purely coincidental.

  • Carrying a knife to a public location and participating in a group attack on an unarmed victim are independent and cumulative aggravating factors in sentencing for violent offences.

  • Subjective mitigating factors, including serious refugee trauma, cultural background, family hardship, and limited education, remain relevant to sentence even where they do not reduce overall culpability to a level that attracts a lesser sentencing category.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 19A, 33, 35, 431B(1)
- Sentencing Act (NSW): s 5(2)
- Evidence Act (NSW): s 38
- Criminal Procedure Act 1986 (NSW): s 23C

Cases
- Isaacs (1997) 41 NSWLR 374
- Ibbs v The Queen (1987) 163 CLR 447
- Holder and Johnstone (1983) 3 NSWLR 245
- Veen (No 2) (1986) 164 CLR 465
- Kalajzich (1997) 94 A Crim R 41
- Fernando (1997) 95 A Crim R 533
- Twala (Court of Criminal Appeal NSW, 4 November 1994, unreported)
- Garforth (Court of Criminal Appeal NSW, 23 May 1994, unreported)
- O'Neill (1979) 2 NSWLR 582
- Rushby (1977) 1 NSWLR 594
- Previtera (1997) 94 A Crim R 76
- Crump, Myers, Nasif, Rees, Hamilton (1993) 66 A Crim R 575, Rothapfel, Watt, Bell, Henderson, Doridis, T (1990) 47 A Crim R 29, Edwards (1996) 90 A Crim R 510 (various Court of Criminal Appeal NSW decisions cited in sentencing)