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Court of Criminal Appeal 13 February 2009

Ibrahim v Regina

[2009] NSWCCA 15

Assault & violenceHomicide
CRIMINAL LAW SENTENCE APPEAL MANSLAUGHTER EXTENDED JOINT CRIMINAL ENTERPRISE WHETHER INFERENCE OF PLANNING OPEN WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Ibrahim v Regina [2009] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 13 February 2009
Judges: Grove J, Blanch J, Kirby J

Background

The appellant pleaded guilty to the manslaughter of Robin Nassour, who died on 2 January 2006 following a violent attack in a basement car park in Chiswick, Sydney. The killing arose from a dispute that had its origins at a nightclub on New Year's Eve, where the appellant worked as a doorman. The deceased and his brother had become involved in a confrontation with the appellant, and a meeting was later arranged under the pretence of settling the dispute.

The deceased attended that meeting and was assaulted by the appellant and two co-offenders. A fourth participant, who has since died, lured the deceased and his brother to the location and produced a concealed knife during the attack, stabbing the deceased in the thigh. The combined assault caused fatal injuries. The appellant did not give evidence at the sentencing hearing, and the matter proceeded on an agreed statement of facts.

At first instance, Price J in the Supreme Court sentenced the appellant to an aggregate term of 9 years and 4 months, with a non-parole period of 6 years and 6 months. The appellant sought leave to appeal on the grounds that the sentencing judge made an erroneous factual finding and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in drawing an inference that the offending involved an element of planning, including the planned use of a weapon
  • Whether the aggregate sentence of 9 years and 4 months for manslaughter by unlawful and dangerous act was manifestly excessive having regard to comparable cases and sentencing statistics

Decision

On the planning inference, the Court of Criminal Appeal found that the agreed facts plainly supported the conclusion that the attack was pre-arranged. The Nassour brothers had been lured to the location under false pretences of resolving a dispute, and multiple co-offenders were present at the scene. The knife used had been purchased and given to the co-offender shortly before the incident and was concealed on his person when he attended. The Court found the sentencing judge was entitled to infer that the participants knew a weapon might be deployed, and that this formed a legitimate and significant aggravating feature.

On manifest excess, the Court confirmed that manslaughter is notoriously protean in character, meaning the offence encompasses an exceptionally wide range of conduct and culpability. Drawing on established authority, the Court reiterated that comparisons between manslaughter sentences are of limited assistance because the circumstances of each case vary so greatly. The sentencing judge had explicitly considered comparable decisions and Judicial Commission statistics.

The Court concluded that the sentence was within the available range. The appellant's participation in a joint violent attack knowing a co-offender was armed with a knife he might use again was identified as a feature carrying a very significant degree of criminality. No error in the sentencing exercise was established on either ground.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an inference of planning and weapon use in a joint enterprise attack can be drawn from circumstantial facts, including a lured meeting, multiple co-offenders attending, and a concealed weapon carried to the scene.
  • Participation in a joint assault with knowledge that a co-offender is armed with a knife, even where the precise use of that knife was not fully anticipated, carries significant moral culpability and properly attracts substantial weight at sentencing.
  • Manslaughter by unlawful and dangerous act spans such a wide range of conduct that sentencing comparisons between cases are of limited utility; each case turns on its own facts.
  • No error arises merely because a sentence appears stern, provided it falls within the range available on the particular facts as found by the sentencing court.
  • The Court of Criminal Appeal reaffirmed principles from R v Forbes and Taber & Styman v R that there is no discernible trend or fixed range for any particular sub-category of manslaughter offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Ibrahim [2008] NSWSC 268
- R v Hung Duc Dang [2001] NSWCCA 321
- R v Cardoso [2001] NSWSC 775
- R v Nicholas Hampton [2004] NSWSC 1215
- R v Walsh, R v Sharp [2004] NSWSC 111; (2004) 142 A Crim R 140
- R v Diab [2007] NSWSC 577
- R v Taiseni, Motuapuaka, Leota, Tuifua [2007] NSWSC 1090
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- Hill (1981) 3 A Crim R 397
- Taber & Styman v R [2007] NSWCCA 116; (2007) 170 A Crim R 427