Citation: R v Abou-Chabake [2003] NSWSC 125
Court: Supreme Court of New South Wales
Date: 28 February 2003
Judge(s): Howie J
Background
The offender, a young man from the Lebanese community in the Campsie area, was convicted by jury of the murder of Romeo Nasr on 6 May 2001. On that evening, the deceased was driving along Frederick Street, Campsie, with his uncle in the passenger seat, when a person approached the vehicle and fired seven shots from a handgun. Three shots entered the vehicle; one penetrated the deceased's back, passing through his heart, aorta and right lung, and he died shortly afterwards.
The shooting followed an earlier incident that afternoon in which the offender had ambushed the deceased at his home, attacking him without warning. During that confrontation, a handgun was produced to force the deceased from the property. The deceased spent the evening expressing his intention to have a "fair fight" to settle the matter.
The jury convicted the offender of murder but acquitted him of the related charge of shooting at the deceased's uncle with intent to murder. Howie J found this outcome unremarkable, as the evidence disclosed no motive to harm the uncle and the jury were plainly not satisfied the offender intended to kill him.
Legal Issues
- What sentence was appropriate for the murder conviction, having regard to the objective seriousness of the offence and the offender's personal circumstances?
- Whether the offender's claimed fear of the deceased could be treated as a mitigating factor affecting culpability, even though self-defence had been conceded as unavailable.
- What weight, if any, should be given to victim impact material in the sentencing exercise?
- Whether any discount applied for a plea of guilty or other mitigating features under the relevant sentencing legislation.
Decision
Howie J rejected the submission that the offender acted out of genuine fear of the deceased. The suggestion relied heavily on evidence from Bek Hadid, a witness the judge had specifically warned the jury was unreliable. Even accepting that the offender had expressed some fear, the evidence provided no proper basis for it: the deceased had no weapon when he attended the offender's premises, was unarmed at the time of the shooting, and had expressed only an intention to engage in a fistfight. Any apprehension on the offender's part amounted, at most, to concern about losing a fair fight and suffering damage to his standing in the community.
The judge found the offence to be of high objective seriousness. The offender had armed himself and deliberately shot at the deceased's moving vehicle at close range with a clear intent to kill. The use of an unlicensed handgun in a suburban street at night was treated as a serious aggravating feature, and Howie J noted the broader concern about the presence of illegal firearms within the community. The offender's father was identified as bearing significant moral responsibility for the events, having been party to the use of the weapon earlier in the day.
Howie J acknowledged mitigating factors personal to the offender, including his youth and the apparent isolated nature of the offending. The court made clear that the sentencing exercise required balancing punishment, general deterrence, and the prospect of rehabilitation, and that the sentence could not and should not attempt to redress the grief suffered by the deceased's family.
Victim impact material was received to allow the family to participate in the proceedings and to underscore the human tragedy involved, but Howie J stated expressly that it was not used to aggravate the sentence.
Orders Made
- The offender was sentenced to 20 years imprisonment with a non-parole period of 15 years.
- The sentence commenced on 18 November 2002.
- The non-parole period expires on 17 November 2017, the date on which the offender becomes eligible for release to parole.
Key Takeaways
- A claimed fear of the victim will not serve as a mitigating factor in sentencing if the evidence provides no proper foundation for that fear, particularly where the victim was unarmed and had expressed only an intention to engage in a fair fight.
- Where a key witness has been identified as unreliable at trial and the jury was warned against relying on that evidence, a sentencing judge is entitled to treat the same witness's account with significant caution in the sentencing proceedings.
- Victim impact statements were received for the purpose of allowing the deceased's family to participate in proceedings and to remind the court of the human consequences of the offence; Howie J made clear that such material was not used to increase the severity of the penalty imposed.
- The presence of an unlicensed handgun in a suburban domestic setting, and its use in a deliberate killing, were treated as features of high objective seriousness warranting a substantial sentence.
- In sentencing a young offender for an apparently isolated act of violence, the Supreme Court acknowledged the concurrent need to punish, deter, and promote rehabilitation, rather than treating punishment as the sole objective.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A
- Criminal Procedure Act 1986 (NSW), Division 2A, Part 3
Cases:
- Sigatano v The Queen (1998) 194 CLR 656