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Court of Criminal Appeal 1 March 2005

Regina v Diab

[2005] NSWCCA 64

HomicideFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE MANSLAUGHTER CONDUCT OF FIRST INSTANCE PROCEEDINGS DECISION REPUDIATED ON APPEAL WHETHER MISCARRIAGE

Citation: Regina v Diab [2005] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 1 March 2005
Judges: Grove J, Bell J, Buddin J

Background

The applicant was sentenced in the Supreme Court for manslaughter following the fatal shooting of an 18-year-old victim at Hurlstone Park in the early hours of 26 April 2001. The applicant had been driving the vehicle in which the murder weapon was carried. His juvenile co-offender, referred to as MA, fired the single shot that killed the victim after an altercation that escalated from a verbal exchange during a late-night encounter.

The agreed facts established that the applicant had purchased the firearm himself and was aware it was in the vehicle and loaded. He was not aware, however, that MA would use it to shoot rather than merely threaten. Two days earlier, at Brookvale, the applicant had personally brandished the same loaded pistol to threaten a group of young men. Those three earlier offences (affray, possessing a loaded firearm in a public place, and possessing an unauthorised firearm) were taken into account on a Form 1 at sentencing (meaning the sentencing court considered them as additional matters when determining the overall sentence, without recording separate convictions).

Shaw J sentenced the applicant to nine years imprisonment with a non-parole period of six years. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to treat the applicant's involvement as limited to only the brief moment between seeing the gun presented and the shot being fired.
  • Whether trial counsel's decision not to advance provocation by the victim as a mitigating factor at first instance caused a miscarriage of justice when that argument was raised for the first time on appeal.
  • Whether the sentence of nine years with a six-year non-parole period was manifestly excessive in all the circumstances, including the Form 1 matters.

Decision

The Court refused to accept the argument, raised for the first time on appeal, that the applicant's criminal responsibility was confined to the few seconds between seeing the gun and the fatal discharge. This characterisation directly contradicted the way the case had been conducted at first instance. Senior counsel at sentencing had not advanced that narrow framing, and the Court found no miscarriage arose simply because a different counsel later wished to take a different approach.

On the question of the mitigating effect of the victim's alleged conduct, the Court observed that experienced senior counsel at the original sentencing made a deliberate decision not to raise provocation as mitigation. The Court cited the principle that a tactical decision made by competent counsel during proceedings does not ordinarily constitute a miscarriage of justice merely because the decision is later regretted or repudiated on appeal.

Regarding the Form 1 matters, the Court affirmed the sentencing judge's approach of taking a graver view of the objective seriousness of the manslaughter in light of the Brookvale incident two days prior. The earlier episode involved the applicant personally pointing the same loaded pistol at approximately fifteen people. The Court rejected the submission that those prior matters were of only "limited" significance, noting that presenting a loaded weapon carries the risk of lethal consequence regardless of the user's intention.

The Court concluded that manslaughter sentences vary widely depending on circumstances and that the present offence, involving a contemplated use of a loaded pistol to threaten unarmed people with fatal consequence, warranted serious punishment. No error in the exercise of sentencing discretion was established, and the sentence was not manifestly excessive.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A deliberate tactical decision by competent senior counsel at sentencing will not ordinarily give rise to a miscarriage of justice simply because different counsel on appeal would have run the case differently.
  • Where a new argument on appeal directly contradicts the way proceedings were conducted below, the Court of Criminal Appeal will be reluctant to accept that recharacterisation, even where it does not involve resiling from a guilty plea.
  • The Form 1 procedure carries real sentencing weight. Taking prior offences into account under Form 1 requires a "significant and not merely nominal enhancement" to the sentence for the substantive offence, not merely a nominal acknowledgment.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the applicant's purchase of the weapon and his awareness of its loaded presence in the vehicle were properly treated as features of his culpability, even though he did not fire the shot.
  • Sentencing for manslaughter is highly fact-specific. The Court reaffirmed the established principle that appropriate penalties for manslaughter vary more than for any other serious offence under the Crimes Act, making comparison with other manslaughter cases of limited utility.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)

Cases:
- R v Abou-Chabake [2004] NSWCCA 356
- Ratten v The Queen (1974) 131 CLR 510
- Regina v Elliott (unreported, NSWCCA, 14 February 1991)
- Regina v Goodwin (1990) 51 A Crim R 328
- Regina v Hill (1981) 3 A Crim R 397
- Regina v MA [2004] NSWCCA 92