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Supreme Court 20 June 2014

R v Abdallah (No 7)

[2014] NSWSC 829

Homicide
CRIMINAL LAW SENTENCING MURDER

Citation: R v Abdallah (No 7) [2014] NSWSC 829
Court: Supreme Court of New South Wales
Date: 20 June 2014
Judge(s): Campbell J

Background

The offender was convicted by jury of the murder of Neil Todorovski, who was shot six times in a residential street in Sans Souci in broad daylight on 4 January 2012. The shooting arose from a confrontation between the offender and the deceased, who was accompanied by two associates, both of whom were armed. The offender retrieved a semi-automatic pistol from under the driver's seat of his nearby vehicle and fired six shots at Todorovski, and a seventh into the ground as a warning to one of the associates.

The jury rejected the defences of self-defence, excessive self-defence, and provocation, returning a verdict of guilty of murder. The matter then proceeded to sentencing before Campbell J.

A significant factual dispute existed at the sentencing hearing: witness accounts differed as to whether there was a single volley of shots or two separate episodes of shooting, the latter potentially suggesting a deliberate coup de grâce after Todorovski had already fallen. The parties also disagreed about whether the jury's guilty verdict necessarily implied acceptance of the most adverse version of events.

  • What factual findings should the sentencing judge make, given conflicting witness accounts and the jury's guilty verdict?
  • Did the offender act in retaliation rather than self-defence when he retrieved the gun and fired?
  • What was the objective seriousness of the offence, including whether the offender intended to kill from the first shot?
  • What weight, if any, should be given to provocation as a mitigating factor falling short of the partial defence?
  • Was a discount appropriate for facilitation of the course of justice during trial, and if so, how much?
  • Were special circumstances established to justify varying the statutory relationship between the non-parole period and the additional term?

Decision

Campbell J emphasised that the sentencing court's factfinding role is independent of the jury's verdict. The jury's verdict established guilt but did not resolve which version of events underpinned that conclusion. The judge therefore determined the facts afresh, applying the standard that the Crown must prove matters adverse to the offender beyond reasonable doubt, while mitigating facts must be established by the offender on the balance of probabilities.

The judge found that the offender retrieved the gun and fired in retaliation for the assault on him, not in genuine self-defence. The court accepted that the confrontation involved some measure of provocation, falling short of the statutory partial defence, and treated this as a mitigating circumstance under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge rejected the offender's denial of intent to kill, as constrained by the jury's verdict, but declined to find on the evidence that there were two separate shooting episodes, including a coup de grâce.

On objective seriousness, the shooting was treated as a serious instance of murder: committed in a public residential street in daylight, with multiple shots fired, and in circumstances involving deliberate retrieval of a weapon. The judge acknowledged relevant subjective circumstances but found they did not substantially reduce the sentence. A discount of approximately 12 months was allowed for the offender's facilitation of the conduct of the trial, the judge noting that the discount available was modest given the lateness of the relevant assistance relative to a full guilty plea.

Special circumstances were not established. The judge found no particular need for extended supervision beyond what would ordinarily accompany release on parole after a long custodial term, and the statutory balance between non-parole period and additional term was maintained.

Orders Made

  • The offender was sentenced to a term of imprisonment with a non-parole period of 20 years, commencing 12 January 2012 and expiring 11 January 2032.
  • An additional term of 6 years and 8 months was imposed, commencing 12 January 2032 and expiring 11 September 2038.
  • The earliest date of eligibility for release on parole is 11 January 2032.

Key Takeaways

  • A sentencing judge is not bound by any implied factual findings of the jury and must independently determine the facts relevant to sentencing, applying the appropriate standard of proof to each matter.
  • Where a jury rejects self-defence entirely, the sentencing court is constrained to reject the offender's evidence that the act was motivated by genuine fear for life, but this does not automatically require acceptance of the most adverse version of events put by any single witness.
  • Provocation that falls short of the statutory partial defence may still operate as a mitigating factor in sentencing under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The Supreme Court held that a discount for facilitation of the course of justice during trial, under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), is necessarily more limited than the discount available for a timely guilty plea, and in this case approximately 12 months was appropriate against a head sentence of 28 years.
  • No special circumstances were found: the absence of evidence pointing to a particular rehabilitation or supervision need beyond ordinary parole conditions was sufficient to decline a variation of the statutory non-parole to additional term ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A (murder), s 23 (provocation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 23
- Evidence Act 1995 (NSW), s 108

Cases
- Barbaro v the Queen; Zirilli v the Queen [2014] HCA 2
- Chung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 1994; (2010) 79 NSWLR 1
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 250
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Munda v Western Australia [2013] HCA 38; 87 ALJR 1035
- R v Fahda [2013] NSWCCA 86
- R v Hamzy [2004] NSWCCA 243
- R v Isaacs (1997) 41 NSWLR 374
- R v Linard Shamouil; R v Steven David [2009] NSWSC 24
- R v Nguyen; R v Pham; R v Vu; R v To [2005] NSWCCA 362
- R v Olbrich (1999) 199 CLR 270
- R v Previtera (1997) 94 A Crim R 76
- R v Taylor [2003] NSWCCA 194
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465