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Supreme Court 25 February 2005

R v DEHAYBI; R v JD

[2005] NSWSC 128

Assault & violenceHomicideTheft & propertyFirearms & weapons
D1: MURDER MALICIOUS WOUNDING WITH INTENT ARMED ROBBERY D2: MANSLAUGHTER ARMED ROBBERY

Citation: R v Dehaybi; R v JD [2005] NSWSC 128
Court: Supreme Court of New South Wales, Common Law Division
Date: 25 February 2005
Judge(s): Levine J

Background

On 21 March 2003, two offenders committed an armed robbery against Rosalie Taylor at Glebe. During the incident, Simon Taylor was murdered and Robert Taylor was maliciously wounded. The offenders were Feras Dehaybi, aged twenty at the time of the offences, and JD, a juvenile aged seventeen years and ten months.

Dehaybi stood trial before a jury and was found guilty of armed robbery (using a knife), malicious wounding with intent to cause grievous bodily harm, and murder. JD also stood trial; the jury found him guilty of armed robbery while armed with an offensive weapon (a replica pistol, rather than the more serious "dangerous weapon" charged) and guilty of the alternative verdict of manslaughter rather than murder.

Both offenders were sentenced under the regime established by the Crimes (Sentencing Procedure) Act 1999. A non-publication order applied to the name and identifying details of JD, who was a juvenile at the time of the offences.

  • What sentences were appropriate for Dehaybi across three counts, including two "Table Offences" carrying standard non-parole periods under the Crimes (Sentencing Procedure) Act?
  • How should the standard non-parole periods for murder and malicious wounding with intent apply to Dehaybi's overall sentence structure?
  • What discount, if any, was available to JD for his pre-trial and mid-trial offer to plead guilty to manslaughter?
  • How did JD's status as a juvenile at the time of the offences affect the structure and conditions of his sentence, including the application of s 19 of the Children (Criminal Proceedings) Act 1987?
  • What weight should be given to victim impact statements, sentencing statistics, and comparable cases in fixing the sentences?

Decision

Levine J found that imprisonment was the only appropriate penalty for both offenders across all counts. No alternative sentencing option was considered viable given the nature and seriousness of the offences.

In sentencing Dehaybi, the court had to navigate a structural constraint arising from two of his offences being "Table Offences" under the Crimes (Sentencing Procedure) Act, which precluded fixed-term sentences for those counts. The robbery count was accordingly sentenced as a fixed term. The malicious wounding sentence commenced from the date of arrest, and the murder sentence was structured to commence two years later, producing a substantial period of cumulative imprisonment with an overall non-parole period effectively running to 2023.

For JD, the court accepted that he had offered to plead guilty to manslaughter before and during the trial. Relying on the Court of Criminal Appeal decisions in R v Oinonen and R v Cardoso, Levine J applied a 25 per cent discount to both the robbery and manslaughter sentences to reflect that offer. The court found special circumstances under s 19(3) of the Children (Criminal Proceedings) Act, directing that the non-parole period be served in a juvenile detention centre (with Cobham recommended) and imposing conditions on parole relating to health, psychological treatment, and continuing education.

Levine J had regard to victim impact statements, sentencing statistics from the Judicial Commission, and a range of comparable cases. The statistics were noted to be of limited assistance, providing only a general sense of sentencing ranges rather than determinative guidance.

Orders Made

JD:
- Armed robbery (offensive weapon, replica pistol): non-parole period of 3 years commencing 25 March 2003, expiring 24 March 2006; parole period of 1 year and 1 month expiring 24 April 2007
- Manslaughter: non-parole period of 3 years commencing 25 March 2003, expiring 24 March 2006; parole period of 2 years and 3 months expiring 24 June 2008
- Non-parole period to be served in a juvenile detention centre (Cobham recommended); parole conditions imposed relating to health, psychological treatment, and continuing education

Feras Dehaybi:
- Armed robbery (knife, count 1): fixed term of 6 years commencing 23 March 2003, expiring 22 March 2009
- Malicious wounding with intent (count 2): non-parole period of 9 years commencing 23 March 2003, expiring 22 March 2012; parole period of 3 years expiring 22 March 2015
- Murder (count 3): non-parole period of 18 years commencing 23 March 2005, expiring 22 March 2023; parole period of 6 years expiring 22 March 2029

Key Takeaways

  • Where an offender is convicted of multiple "Table Offences" carrying mandatory non-parole periods alongside other counts, the sentencing court must carefully structure the overall regime to comply with the prohibition on fixed-term sentences for those Table Offences, while still achieving overall proportionality.
  • A pre-trial or mid-trial offer to plead guilty to a lesser charge can attract a sentencing discount even where the offender ultimately contested the more serious charge, provided the offer is established to the court's satisfaction. Here, a 25 per cent discount was applied to JD's sentences on that basis.
  • Under s 19(3) of the Children (Criminal Proceedings) Act 1987, a finding of special circumstances can justify directing that a juvenile offender serve their non-parole period in a juvenile detention centre, with tailored parole conditions addressing rehabilitation needs such as health, psychological treatment, and education.
  • Judicial Commission sentencing statistics, while considered, were described by Levine J as providing only a "fairly vague" indication of ranges and not determinative of the appropriate sentence in a given case.
  • Victim impact statements were received and considered in accordance with established authority, including the framework set out in R v Previtera and subsequent Court of Criminal Appeal decisions, without those statements operating to impermissibly increase the sentences beyond what the offences warranted.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes Act 1900 (NSW), ss 33, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 45(1), 54B(2)

Cases:
- R v Berg [2004] NSWCCA 300
- R v Cakovski [2002] NSWSC 1252
- R v Cardoso [2003] NSWCCA 15
- R v Dang [2001] NSWCCA 321
- R v Dickinson [2004] NSWCCA 457
- R v Henry & Ors (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v King [2004] NSWCCA 444
- R v Lew, Ng [2003] NSWSC 781
- R v Lo [2003] NSWSC 582
- R v Masson, Symss [2001] NSWSC 1037
- R v Oinonen [1999] NSWCA 310
- R v Previtera (1997) 94 A Crim R 76
- R v Privett & Anor [1999] NSWSC 1076
- R v Robinson [2001] NSWCCA 180
- R v Ton [2000] NSWSC 1023
- R v VDN [2004] NSWSC 426
- R v Way (2004) 60 NSWLR 168