Citation: R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764
Court: Supreme Court of New South Wales
Date: 10 December 2014
Judge: Schmidt J
Background
On New Year's Eve 2011, two offenders attended the home of the victim at Chester Hill, armed with a loaded firearm, a knife, masks, gloves and other materials, with a plan to rob him. A jury found that one offender fired a single shot through a lounge room window, striking the victim in the chest and killing him. Two teenage boys and the victim's girlfriend were present in or near the room at the time.
A jury convicted the shooter of murder and his co-offender of manslaughter. Both had denied any involvement at trial. The jury rejected those denials, relying in part on DNA evidence linking both men to items recovered from a bin at the shooter's brother's home the following day.
The sentencing judgment addressed the factual basis upon which each offender was to be sentenced, consistently with the jury's verdicts, before imposing terms of imprisonment.
Legal Issues
- Whether the evidence established beyond reasonable doubt that the shooter intended to kill the victim, or only to inflict grievous bodily harm, when he fired the fatal shot
- Whether the co-offender (convicted of manslaughter) had merely contemplated that the shooter would threaten the victim with the gun, or had contemplated the possibility that it would be discharged
- The appropriate sentences for both offenders, including considerations of totality, parity, aggravating and mitigating factors, and whether special circumstances existed to vary the standard non-parole period ratio
Decision
Schmidt J found that the evidence did not establish beyond reasonable doubt that the offenders had planned to kill the victim when they attended his home. However, the court was satisfied beyond reasonable doubt that the shooter did not act in panic when he fired the fatal shot, and that he intended the likely result of firing at close range, namely the victim's death. The court relied on the offenders' deliberate, unhurried conduct: they remained at the window even after disturbing two boys watching television, broke the window, waited while the boys fetched help, and did not flee until after the shot was fired.
In relation to the co-offender convicted of manslaughter, the court found that the evidence established beyond reasonable doubt that he had contemplated the possibility that the shooter would discharge the gun, going beyond mere contemplation of a threat. Both offenders had been part of a planned joint criminal enterprise to commit an armed robbery, and both knew the gun was loaded.
On the question of whether the shooter acted in panic, the court rejected that submission. The sequence of events, including the time spent waiting outside, the window being deliberately broken, and the shot being fired only when the victim approached, pointed to a deliberate act rather than a reactive one. The court found no basis to sentence on a lesser intent than an intention to kill.
Special circumstances were found in both cases, warranting a departure from the standard ratio between non-parole period and total sentence, on the basis that each offender would require an extended period of supervision upon release.
Orders Made
- Salim Tabbah convicted of manslaughter: sentenced to a total term of 14 years imprisonment, with a non-parole period of 10 years commencing 6 March 2012 and expiring 5 March 2022; balance of term of 4 years expiring 5 March 2026
- Wassim Tiriaki convicted of murder: sentenced to a total term of 28 years imprisonment, with a non-parole period of 20 years commencing 5 June 2012 and expiring 4 June 2032; balance of term of 8 years expiring 4 June 2040
Key Takeaways
- Sentencing facts must be determined consistently with the jury's verdicts: facts adverse to an offender must be proven beyond reasonable doubt, while facts favourable to an offender need only be established on the balance of probabilities (following R v Isaacs and The Queen v Olbrich).
- Where co-offenders are convicted of different offences arising from the same event, the sentencing court must identify the distinct factual basis for each conviction, including the precise mental element attributable to each offender.
- A submission that a fatal shot was fired in panic was rejected where the surrounding circumstances, including deliberate preparation, sustained presence at the scene, and calm retreat only after the shooting, pointed to a considered and intentional act.
- The distinction between an intention to kill and an intention to inflict grievous bodily harm remained a live issue on sentencing even after a murder verdict, because it bore directly on the objective gravity of the offence and the appropriate sentence.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) may be found where an offender's rehabilitation and risk profile indicates a need for extended supervision after release, justifying a lower non-parole period relative to the total sentence than the statutory norm.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Jimmy v R (2010) 77 NSWLR 540
- Josefski v R [2010] NSWCCA 41; 217 A Crim R 183
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- MAH v R [2006] NSWCCA 226
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- R v Abboud [2005] NSWCCA 251
- R v Dodd (1991) 57 A Crim R 349
- R v Doff [2005] NSWCCA 119
- R v Frazer [2007] NSWSC 1449
- R v Isaacs (1999) 41 NSWLR 374
- R v Lewis [2001] NSWCCA 448
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
- R v Previtera (1997) 94 A Crim R 76
- R v Rice [2004] NSWCCA 384; 150 A Crim R 37
- R v Scott [2005] NSWCCA 152
- R v Wright (1997) 93 A Crim R 48
- The Queen v Olbrich (1999) 199 CLR 270
- SBF v R [2009] NSWCCA 231; 198 A Crim R 219