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Court of Criminal Appeal 20 December 2013

Mariam v R; R v Mariam

[2013] NSWCCA 338

Assault & violenceHomicideFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL OFFENDER ON TRIAL FOR MURDER AND AFFRAY ACQUITTAL ON MURDER CHARGE SEVERITY NO ERROR FOUND

Citation: Mariam v R; R v Mariam [2013] NSWCCA 338
Court: NSW Court of Criminal Appeal
Date: 20 December 2013
Judges: Simpson J (with Price J and R A Hulme J agreeing)

Background

In June 2009, the offender drove to a car park in Milperra armed with a loaded pistol to participate in a planned group confrontation. He fired at least ten shots toward the opposing group. One bullet travelled onto the adjacent road and struck an entirely uninvolved truck driver in the head, killing him instantly.

The offender was tried jointly with two co-accused on charges of murder and affray. The jury acquitted him of murder but convicted him of the alternative count of manslaughter (by unlawful and dangerous act) and of affray. One co-accused was acquitted on the basis of self-defence.

At sentencing, the judge imposed a fixed term of 3 years for affray and 7 years and 9 months for manslaughter (with a non-parole period of 5 years and 9 months), accumulated by only 3 months. A 15 per cent discount was applied to the manslaughter sentence to reflect the offender's two earlier offers to plead guilty to that charge, which the Crown had declined. The aggregate sentence was 8 years with a non-parole period of 6 years. The offender sought leave to appeal against severity; the Crown appealed alleging manifest inadequacy.

  • Whether the sentencing judge erred in her findings of fact, as raised by the offender's application for leave to appeal
  • Whether the sentencing judge erred in failing to accumulate the sentences sufficiently to reflect the total criminality
  • Whether the sentencing judge erred in finding that specific deterrence had limited significance in the circumstances
  • Whether the sentences, individually and in total, were manifestly inadequate

Decision

Offender's application: The Court found no error in the sentencing judge's factual findings. The offender had not given evidence at trial, had denied involvement altogether, and had not raised self-defence. The jury verdicts and surrounding circumstances supported the findings made. Leave to appeal was granted but the appeal was dismissed.

Accumulation: The Court of Criminal Appeal found the 3-month accumulation between the affray and manslaughter sentences was insufficient to reflect the distinct and serious criminality involved in each offence. The affray involved firing a loaded weapon repeatedly toward a group of men in a public car park; the manslaughter involved killing an innocent bystander with one of those same shots. These were separate acts of serious criminality that warranted more meaningful accumulation.

Specific deterrence: The sentencing judge had found specific deterrence to be of limited significance, partly on the basis that the offending appeared situational and unlikely to be repeated. The Court of Criminal Appeal found this was an error. The offender had armed himself, orchestrated his attendance at the confrontation, and fired repeatedly. His criminal history and the circumstances of the offending did not support a reduced emphasis on specific deterrence.

Manifest inadequacy: Having found error on both the accumulation and specific deterrence grounds, the Court was required to resentence. It also rejected the offender's expressions of remorse as genuine. The Court declined to exercise its residual discretion to refrain from intervening, no argument having been advanced in favour of doing so.

Orders Made

  • The offender's leave to appeal against sentence was granted; the appeal was dismissed.
  • The Crown's appeal was allowed; each sentence was set aside.
  • On resentencing:
  • Affray: Fixed term of 4 years, commencing 24 April 2010, expiring 23 April 2014.
  • Manslaughter: Non-parole period of 8 years and 9 months commencing 24 April 2011, with a balance of term of 3 years and 3 months, expiring 23 April 2023. Earliest eligible parole date: 23 January 2020.

Key Takeaways

  • A Crown appeal under s 5D of the Criminal Appeal Act 1912 may succeed where a sentencing judge fails to accumulate sentences in a manner that adequately reflects the distinct criminality of each offence, even where some accumulation was applied.
  • Reducing the weight given to specific deterrence requires a proper factual foundation. Where an offender armed himself, orchestrated a confrontation, and discharged a firearm repeatedly, the circumstances do not ordinarily support a finding that specific deterrence has limited significance.
  • Under established principles, the Court of Criminal Appeal retains a discretion to decline to intervene even after error is established on a Crown appeal, but that discretion must be argued and supported by evidence.
  • Remorse may be relevant as a mitigating factor, but the Court confirmed its value lies principally in what it indicates about the likelihood of reoffending. Where expressions of remorse are not accepted as genuine, they carry no meaningful mitigating weight.
  • An offender's pre-trial offer to plead guilty to the charge of which he is ultimately convicted may still attract a sentencing discount, even where the offer was declined by the Crown, provided the sentencing judge determines an appropriate reduction. Here, a 15 per cent discount survived scrutiny on that basis.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 24, 93C(1), 418, 419
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Collier v R [2012] NSWCCA 213
- House v The King [1936] HCA 40; 55 CLR 499
- R v Edwards [1996] 90 A Crim R 510
- R v Previtera [1997] 94 A Crim R 76
- TDP v R; R v TDP [2013] NSWCCA 303
- The Queen v Pemble [1971] HCA 20; 124 CLR 107