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Supreme Court 20 September 2013

R v Abbas

[2013] NSWSC 1379

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW SENTENCE GUILTY PLEAS OFFENCE OF MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT BRANDISH A FIREARM

Citation: R v Abbas [2013] NSWSC 1379
Court: Supreme Court of New South Wales
Date: 20 September 2013
Judge(s): Beech-Jones J

Background

The offender pleaded guilty to three counts arising from events on 6 August 2011 in Rockdale, New South Wales. He had arranged, together with two associates, to confront a drug debtor who owed him $500. The confrontation took place at a residential address, where the offender and his associates physically restrained the debtor, and the offender assaulted him repeatedly, including with a pouch containing a concealed pistol.

The offender then produced the pistol and, in circumstances described as unlawful and dangerous, it discharged. The bullet struck the offender's own friend, Hassan Saleh, who had been present as part of the group. The wound was fatal. When the offender went to retrieve the dropped pistol from the floor, it discharged a second time.

The three charges were: manslaughter of Hassan Saleh; assault occasioning actual bodily harm in company against the drug debtor; and possession of a prohibited pistol. A further Form 1 offence of possessing ammunition without a licence was also taken into account during sentencing.

  • What sentences were appropriate for each of the three counts, taking into account the objective seriousness of the offences, the offender's personal circumstances, and his utilitarian guilty pleas?
  • How should the sentences be structured (concurrent or accumulated) to achieve proportionality across the overall sentence while avoiding double punishment for conduct common to multiple counts?
  • How should the standard non-parole period for the firearms offence interact with the need to avoid punishing the offender twice for the same conduct that underpinned the other two offences?
  • Whether special circumstances existed to justify a variation from the statutory ratio between the non-parole period and the additional term under the Crimes (Sentencing Procedure) Act 1999.

Decision

Beech-Jones J sentenced the offender to a total effective sentence of 11 years, comprising a non-parole period of eight years and an additional term of three years. His Honour approached sentencing on the manslaughter count as the principal offence and structured the remaining sentences around it.

For manslaughter, the offender received a non-parole period of seven years with an additional term of four years. His Honour noted the offence fell in the lower to mid range of manslaughter, given that it arose from a reckless unlawful and dangerous act rather than an intention to cause harm, and that the death of a friend was an unintended consequence of a confrontation organised to recover a debt. The Form 1 ammunition offence was taken into account, as it bore on the need for personal deterrence and retribution.

For the assault occasioning actual bodily harm in company, the offender received two years imprisonment, commencing partway through the manslaughter sentence to achieve partial accumulation. His Honour declined to set a non-parole period for that count, given the overlap with the manslaughter sentence and the length of the additional term already imposed.

For the firearms offence, his Honour imposed only three months imprisonment, to be served concurrently. This was because the possession of the pistol was central to the facts of both the manslaughter and assault counts, and punishing it more heavily would have resulted in impermissible double punishment for the same conduct. His Honour found this consideration significantly diminished the relevance of the standard non-parole period for that offence. Special circumstances were found to exist, warranting a longer additional term to facilitate supervised reintegration into the community.

Orders Made

  • Manslaughter: convicted and sentenced to imprisonment with a non-parole period of seven years commencing 15 August 2011, and an additional term of four years commencing 15 August 2018 and ending 14 August 2022.
  • Assault occasioning actual bodily harm in company: convicted and sentenced to two years imprisonment commencing 15 August 2017; no non-parole period set.
  • Possessing a prohibited pistol without authorisation: convicted and sentenced to three months imprisonment commencing 20 September 2013.
  • Overall sentence: non-parole period of eight years, additional term of three years, commencing 15 August 2011; eligible for parole on 15 August 2019; sentence to expire 14 August 2022.
  • The offender was advised of the existence and application of the Crimes (High Risk Offenders) Act 2006, the manslaughter count being a "serious violence offence" under that Act.

Key Takeaways

  • Where multiple counts in an indictment share common factual elements, the principle against double punishment can substantially reduce the sentence imposed for a lesser count, even where a standard non-parole period ordinarily applies to that offence.
  • Under the framework in Muldrock v R (2011) 244 CLR 120, the standard non-parole period for the firearms offence served as one of two legislative guideposts rather than a mandatory starting point, and its significance was reduced by the overlap with conduct already punished under the other counts.
  • Partial accumulation of sentences, rather than full concurrence or full accumulation, can appropriately reflect the distinct criminality of separate offences arising from the same event.
  • A Form 1 offence does not add directly to the sentence for the principal count but may be taken into account through instinctive synthesis to demonstrate a heightened need for personal deterrence and retribution, as confirmed in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115.
  • Special circumstances justifying a departure from the standard non-parole period ratio may be found where the structure of an overall sentence, including partial accumulation across counts, warrants a longer period of supervised release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 24, 59(2)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33(1), 44(1), 44(2), 45(1), 54A(1)
- Firearms Act 1996 (NSW), ss 7(1), 65(3)

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002), Re [2002] NSWCCA 518; 56 NSWLR 146
- Berrier v R [2009] NSWCCA 40
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- He Kaw Teh v R [1985] HCA 43; 157 CLR 523
- MAH v R [2006] NSWCCA 226
- Markarian v R [2005] HCA 25; 228 CLR 357
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Pearce v R [1998] HCA 57; 194 CLR 610
- Portolesi v R [2012] NSWCCA 157
- R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported)
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Macleod [2013] NSWCCA 108
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383