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Supreme Court 20 April 2012

R v Abdulhadi

[2012] NSWSC 1658

Assault & violencePublic order & justice offences
SENTENCE GUILTY PLEA AFFRAY HIGH LEVEL OF OBJECTIVE GRAVITY SIGNIFICANT LEVEL OF GENERAL DETERRENCE NO EXPRESSION OF REMORSE

Citation: R v Abdulhadi [2012] NSWSC 1658
Court: Supreme Court of New South Wales
Date: 20 April 2012
Judge(s): Latham J

Background

The offender pleaded guilty to one count of affray under s 93C of the Crimes Act 1900, carrying a maximum penalty of 10 years imprisonment. The plea came two weeks after a jury had been empanelled for a murder trial, following the withdrawal of critical Crown evidence and a consequent acknowledgment by the offender that he was guilty of the alternative affray charge.

The offence arose from a premeditated group confrontation on 25 June 2009 in a western Sydney carpark. An earlier altercation at a Bankstown shopping centre prompted hours of telephone calls between two rival groups, during which members were recruited and arrangements made to meet and "settle the score." The offender was recruited by one group and attended the carpark with the stated intention of assisting in administering "a few slaps" to members of the opposing group.

The confrontation escalated dramatically when firearms were discharged by members of both sides. The offender was shot in the abdomen. A truck driver travelling on a nearby road was struck by a stray bullet and killed. The offender was not charged with, and was not found responsible for, that death.

  • What discount, if any, was warranted for a guilty plea entered at such a late stage of proceedings?
  • What was the appropriate assessment of the objective gravity of the affray?
  • What weight, if any, should be given to expressions of remorse attributed to the offender?
  • What role did the offender's criminal history play in sentencing?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • How the doubling of the maximum penalty for affray in 2005 should influence the sentencing range applied.

Decision

Latham J allowed only a 10% discount for the guilty plea, finding its utilitarian value to be very low. The Crown had completed all necessary trial preparation before the plea was entered, and the offender could always have admitted guilt of the affray charge regardless of what happened with the murder charge.

The court assessed the objective gravity of the offence as high. Eleven young men assembled in a public carpark adjacent to a major arterial road at night, solely to pursue revenge arising from a petty earlier dispute. The scale of premeditation, the presence and discharge of firearms, and the complete disregard for public safety all marked this as a particularly serious example of affray. Latham J rejected any suggestion that the offender genuinely expected the confrontation to involve no more than open-handed slaps, finding that inference offensive to common sense given the context.

No meaningful weight was given to any claimed remorse. The offender gave no evidence and expressed no remorse directly. An expert report's passing observation that the offender appeared sorry was unsupported by any actual statement attributed to him in that or any other report. The remorse implicit in the guilty plea itself was described as "almost negligible" given the circumstances of the plea.

The offender's criminal history, including prior drug supply offences, was not treated as a significant aggravating factor. Special circumstances were found to exist based on the offender's medical and psychological issues, justifying a non-parole period shorter than the standard ratio. A base sentence of 4 years was reduced by 10% to 3 years and 7 months, commencing 25 October 2010.

Orders Made

  • Total sentence of 3 years and 7 months imprisonment, commencing 25 October 2010 and expiring 24 May 2014.
  • Non-parole period of 2 years, expiring 24 October 2012.
  • The offender was eligible for release on parole on 25 October 2012.

Key Takeaways

  • A guilty plea entered only after critical Crown evidence was withdrawn, and two weeks into jury empanelment, attracted a discount of only 10%, reflecting its minimal utilitarian value.
  • High objective gravity in an affray is properly assessed by reference to the full scope and scale of the confrontation, including the conduct of co-offenders, without that approach amounting to punishing the individual for others' acts.
  • Claimed remorse carries no weight where it is attributed to the offender only in a bare assertion within an expert report, with no supporting statement from the offender himself.
  • The doubling of the maximum penalty for affray in December 2005 was intended by the NSW legislature to signal substantially greater seriousness, though Latham J observed that sentencing decisions had not adequately reflected that legislative intent.
  • Special circumstances, founded on an offender's medical and psychological condition, can justify a non-parole period that represents a smaller proportion of the total sentence than the standard ratio would otherwise require.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93C (affray)
- Law Enforcement Legislation Amendment (Public Safety) Act 2005 (NSW) (amending maximum penalties for riot and affray)

Cases:
- R v Barghachoun [2011] NSWSC 1534