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Court of Criminal Appeal 25 September 2014

Abbas v R

[2014] NSWCCA 188

Assault & violenceHomicideDrugsFirearms & weapons
CRIMINAL LAW APPEAL

Citation: Abbas v R [2014] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 25 September 2014
Judge(s): Hoeben CJ at CL, Fullerton J, Adamson J (reasons by Adamson J)

Background

The applicant pleaded guilty to manslaughter, assault occasioning actual bodily harm in company, and possessing a prohibited pistol. The offences arose from a confrontation arranged to recover a $500 drug debt. The applicant recruited two associates, including the person who would become the deceased, to accompany him to a house where the debtor was expected to attend.

At the house, the applicant and his associates physically assaulted the debtor. During the assault, the applicant produced a pistol from a pouch and pointed it at the debtor. The gun discharged accidentally at close range, the bullet striking the deceased in the face. The deceased died in hospital the following day.

The sentencing judge (Beech-Jones J) imposed a total sentence of 11 years with a non-parole period of 8 years, incorporating a 25% discount for guilty pleas. The applicant sought leave to appeal on the grounds that the sentencing judge had misassessed objective seriousness, failed to apply the totality principle correctly, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge erred in assessing the objective seriousness of the manslaughter, specifically whether the assault on the debtor (Count 2) was impermissibly double-counted
  • Whether the decision to partially accumulate sentences for manslaughter and assault occasioning actual bodily harm was in error, given the principle of totality
  • Whether the overall sentence was manifestly excessive

Decision

On the first ground, the Court rejected the submission that the sentencing judge had double-counted the assault when assessing the seriousness of the manslaughter. The Court held that the sentencing judge was entitled to consider the circumstances of the assault as relevant background: the applicant had brought the gun to threaten the debtor, and the shooting occurred in the course of a physical assault the applicant had organised. The context of the assault was part of the backdrop against which the manslaughter's seriousness was properly assessed, even though the assault itself was separately sentenced.

On the second ground, the Court found no error in the partial accumulation of sentences for Counts 1 and 2. The two counts involved different victims, and the sentencing judge had correctly applied the principles in Pearce v R, addressing each offence individually before considering totality and concurrence. The Court noted that the accumulation added only one year to the applicant's effective custodial time, and that the firearms sentence had no practical effect on the overall result.

Regarding the comparison with other manslaughter sentences, the Court affirmed that such comparisons are of limited utility given the wide variety of circumstances in which manslaughter can arise. The Court reiterated that sentencing statistics for manslaughter offences are of such limited assistance that they should generally be avoided. Finding no identifiable error in the sentencing process, and not being persuaded the result was manifestly excessive, the Court dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge assessing objective seriousness for manslaughter by unlawful and dangerous act may take into account the broader criminal circumstances in which the death occurred, including a concurrent assault, without that constituting impermissible double-counting.
  • Partial accumulation of sentences for offences arising from the same criminal episode is not erroneous where the counts involve distinct crimes with separate victims, provided the sentencing judge correctly applies totality principles as set out in Pearce v R.
  • A finding of manifest excess requires identification of error, whether in the sentencing process or in the result itself; the Court confirmed it was not persuaded of either here.
  • The Court reinforced the view, consistent with R v Wood [2014] NSWCCA 184, that sentencing statistics and "comparable" cases are of such limited assistance in manslaughter sentencing that their use should generally be avoided, given the exceptional variety of circumstances in which the offence can be committed.
  • Where manslaughter arises from an unlawful and dangerous act rather than from an intention to cause death or grievous bodily harm, comparisons with manslaughter convictions carrying a partial defence (such as provocation or substantial impairment) are unlikely to be fruitful.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 59
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Firearms Act 1996 (NSW), ss 7, 65

Cases:
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Lane v R [2013] NSWCCA 317
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
- R v Dally [2000] NSWCCA 162; 115 A Crim R 582
- R v Isaacs (1997) 41 NSWLR 374
- R v Lavender [2005] HCA 37; 222 CLR 67
- R v Wood [2014] NSWCCA 184