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Supreme Court 29 November 2012

R v Elbadar

[2012] NSWSC 1492

Assault & violencePublic order & justice offences

Citation: R v Elbadar [2012] NSWSC 1492
Court: Supreme Court of NSW
Date: 29 November 2012
Judge(s): Latham J

Background

The offender pleaded guilty to affray arising from events on the night of 25 June 2009, when two opposing groups of young men gathered in a carpark at Milperra to resolve a dispute that had started earlier that evening at a shopping centre. The offender drove two members of one group to the carpark and walked with them toward the opposing group when the confrontation erupted. Firearms were discharged during the affray, resulting in the death of a passing truck driver and serious injuries to two participants. The offender was not attributed with any knowledge that firearms would be present.

The offender also pleaded guilty to two counts of giving false evidence to the NSW Crime Commission. When called before the Commission in April 2010, he had been warned that false evidence could result in prosecution. He nonetheless told the Commission he had driven to the scene alone to meet girls, had not left his vehicle, and had not seen the key participants. Each false evidence offence carried a maximum penalty of five years imprisonment.

Sentencing was complicated by the need to maintain parity with several co-offenders already sentenced in related proceedings, including R v Mariam [2012] NSWSC 1023 and R v Abdulhardi.

  • How should the discharge of loaded firearms, and the resulting death of a bystander, factor into the objective gravity of the affray offence, where the offender himself did not carry or fire a weapon?
  • What weight should be given to evidence of planning and premeditation in assessing the seriousness of the affray?
  • How should the offender's limited individual role, psychological vulnerability, and early guilty pleas affect the sentence?
  • What degree of accumulation was appropriate for the Crime Commission offences, and were suspended sentences available?

Decision

Objective gravity of the affray. Latham J confirmed that while the offender could not be punished for the manslaughter of the truck driver, the fact that loaded firearms were discharged was a relevant feature of the affray itself. It demonstrated the extent to which members of the public were put in fear for their safety. Although the carpark's retail outlets were closed, staff members were present waiting for transport, and a nearby service station and convenience store were open to the public. All of those people were potentially at risk, and that risk ultimately materialised.

Planning, premeditation, and role. The affray showed a meaningful degree of planning: the groups coordinated by telephone over roughly an hour, and participants attended armed with firearms, timber, and other implements. However, the offender's role was limited. He drove the car and walked toward the opposing group but did not carry or discharge a weapon. Latham J found the offence was not in the worst category.

Subjective matters and psychological condition. The offender was a young man with no prior criminal history and good prospects of rehabilitation. A psychological report indicated he had an impaired ability to withstand peer pressure, which was relevant to moral culpability and general deterrence. The court noted this vulnerability would make a gaol term harder for him than for others, but did not regard it as sufficient, on its own, to avoid a custodial sentence. Specific deterrence was treated as essentially irrelevant given the offender's profile.

Guilty pleas and suspended sentences. The early pleas, entered at the outset of what would have been a lengthy trial, warranted a 15 percent discount. For the affray, the court fixed a head sentence of one year and eight months, reduced from a notional two years. For each Crime Commission count, the sentence was ten months, with four months accumulated on the affray sentence to mark the distinct criminality of lying to the Commission. Given pre-sentence custody and rehabilitation prospects, all sentences were suspended.

Orders Made

  • Offender convicted of affray; sentence of one year and eight months imprisonment, suspended, with release on a good behaviour bond for an equal period.
  • Offender convicted of two counts of giving false evidence to the NSW Crime Commission; sentence of ten months imprisonment on each count, each suspended, with release on a good behaviour bond of ten months.
  • Each Crime Commission sentence accumulated on the affray sentence by four months.

Key Takeaways

  • A sentencing court assessing affray can take into account the discharge of loaded firearms as a feature of the offence bearing on objective gravity, even where the individual offender did not carry or fire a weapon, and even where a co-offender's use of a firearm resulted in a separate fatal outcome.
  • The public order rationale underlying the affray offence (found in Part 3A of the Crimes Act) extends beyond direct victims: the effect of the conduct on bystanders and the public's confidence in personal safety are legitimate sentencing considerations, as confirmed in Khanwaiz & Ors v R [2012] NSWCCA 168.
  • Psychological vulnerability affecting an offender's ability to resist peer pressure may reduce moral culpability and diminish the weight given to general deterrence, though it will not automatically displace a custodial sentence.
  • Where Crime Commission perjury offences are temporally and factually bound up with a related substantive offence, fully concurrent sentences may be appropriate as between the perjury counts, but modest accumulation on the head sentence for the primary offence may still be required to reflect the distinct criminality involved.
  • Early guilty pleas at the commencement of what would have been a lengthy trial can attract a utilitarian discount; here the court applied 15 percent to reflect the utility of the pleas.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93C (affray, maximum 10 years)
- NSW Crime Commission Act (false evidence, maximum 5 years)

Cases
- Khanwaiz & Ors v R [2012] NSWCCA 168
- R v Abdulhardi (NSWSC, 20 April 2012)
- R v Mariam [2012] NSWSC 1023
- Stevens v R [2007] NSWCCA 152
- R v Huynh [2000] NSWCCA 18 (cited in Stevens v R)
- R v Eleter [2003] NSWCCA 130 (cited in Stevens v R)
- R v Fajka [2004] NSWCCA 166 (cited in Stevens v R)