Citation: R v Moustafa Mariam [2012] NSWSC 1496
Court: Supreme Court of New South Wales
Date: 29 November 2012
Judge(s): Latham J
Background
The offender pleaded guilty to affray arising from events on 25 June 2009 at a carpark in Milperra. Two opposing groups of young men had gathered late at night to settle a dispute that had begun at a Bankstown shopping centre earlier that evening. Eleven participants were involved.
The offender drove members of his group to the carpark and engaged in a physical altercation with a member of the opposing group. Crucially, the agreed statement of facts did not attribute to him any knowledge that firearms would be present. His older brother, already sentenced separately, discharged a semi-automatic pistol during the confrontation, fatally wounding an innocent truck driver on an adjacent road.
The sentencing required careful attention to parity, given that several co-offenders had already been sentenced for their roles in the same affray.
Legal Issues
- What objective gravity should be attributed to the affray, given that firearms were discharged and an innocent bystander died, even though the offender was not charged with and could not be punished for the manslaughter?
- How should the court account for planning and premeditation, the presence of bystanders, and the offender's relatively limited individual role?
- What discount applied to reflect the utilitarian value of the guilty plea, given a lengthy history of the Crown rejecting earlier offers?
- What sentence was appropriate having regard to parity with co-offenders and the offender's prospects of rehabilitation?
Decision
Objective gravity of the offence. Latham J confirmed the principle, drawn from Stevens v R and Khanwaiz v R, that an offender sentenced for affray cannot be punished for a separate offence committed by a co-offender. However, the discharge of loaded firearms remained directly relevant to assessing the seriousness of the affray itself, because it demonstrated the extent to which members of the public were put in genuine fear for their safety. The death of Mr Knight was the materialisation of a risk that was objectively present throughout the incident.
Role of the offender and planning. The offender's participation was characterised as more limited than some co-offenders. He drove to the carpark, remained in the vehicle initially, and fought with one member of the opposing group. The offence nonetheless involved a measure of planning and premeditation, participants were variously armed, and members of the public in and around the carpark were exposed to serious risk of injury. The court noted the fast food outlet staff were still present in the carpark and a nearby service station was trading at the time. These factors elevated the objective seriousness despite the offence not falling into the worst category.
Discount for the guilty plea. The offender had offered to plead guilty to affray in full satisfaction of the indictment on multiple occasions from as early as 2010, but the Crown repeatedly declined those offers. Latham J found that, had the plea been accepted at the earliest opportunity, it would have had significant utilitarian value. A discount of 25% was applied to the sentence that would otherwise have been appropriate.
Sentence. Having regard to the offender's limited role, parity with co-offenders including the juvenile HEK (whose sentence had been discounted for age, a consideration not available here), and the reasonable prospects of rehabilitation, the baseline sentence before discount was three years imprisonment. After applying the 25% discount, the head sentence became two years and three months. A modest adjustment was made to the non-parole proportion to account for the fact that this was the offender's first custodial experience and the need for ongoing medical and psychological treatment.
Orders Made
- The offender was convicted of affray.
- A non-parole period equal to the pre-sentence custody of one year, six months and 22 days was imposed, dating from 7 May 2011 and expiring 28 November 2012.
- The balance of term was set at eight months and nine days, expiring 6 August 2013.
Key Takeaways
- In sentencing for affray, a court cannot punish an offender for a co-offender's separate offence, but the discharge of loaded firearms during the affray remains a directly relevant factor in assessing the affray's objective seriousness, because it reflects the real risk of harm to bystanders.
- A significant discount for a guilty plea may still be available where the Crown repeatedly declined earlier offers, provided the court is satisfied the plea would have had genuine utilitarian value had it been accepted earlier.
- Parity with co-offenders is a live consideration even where individual roles differ significantly; differences in personal circumstances (such as juvenile status) can legitimately produce different outcomes within the same affray.
- Planning and premeditation, the presence of vulnerable bystanders, and the use of weapons (even by others in the group) are objective factors that elevate the seriousness of an affray, regardless of the duration of the incident.
- Latham J reiterated an earlier observation that there has been no discernible upward movement in the sentencing range for affray since the maximum penalty was doubled to ten years in December 2005, a point of potential significance when appellate review is considered.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93C (affray, maximum penalty 10 years imprisonment)
Cases
- Khanwaiz & Ors v R [2012] NSWCCA 168
- Stevens v R [2007] NSWCCA 152
- R v Mariam [2012] NSWSC 1023
- R v Abdulhardi NSWSC, 20 April 2012
- R v Huynh [2000] NSWCCA 18
- R v Eleter [2003] NSWCCA 130
- R v Fajka [2004] NSWCCA 166