Citation: R v Rajab; R v El Chami; R v B Allouche; R v E Allouche [2017] NSWSC 975
Court: Supreme Court of New South Wales
Date: 21 July 2017
Judge: Fullerton J
Background
On 29 June 2015, Hedi Ayoub was fatally shot four times in Salmon Park, Punchbowl. CCTV footage captured four men arriving at the park with the deceased shortly before the shooting. Omar Rajab arrived separately in a third vehicle, produced a firearm, and shot the deceased through the passenger window and then at close range as he approached on foot. The fatal shot struck the deceased in the neck.
The three other men present, Bilal Allouche, Ebrahim Allouche, and Mohammed El Chami, fled the scene after the shooting. All four were initially charged with murder. However, before trial, the Crown presented fresh indictments against the three non-shooters. The Allouche brothers were each charged as accessories after the fact to murder, and El Chami was charged with concealing a serious indictable offence (the murder). All three pleaded guilty to the fresh charges on arraignment, and Rajab pleaded guilty to murder on the same date.
The sentence proceedings were conducted as a joint hearing. The Crown's use of the evidence differed significantly between the four offenders: the presence of the three non-shooters at the park was relied upon only to establish their knowledge that a murder had occurred, which was an element of the offences to which each had pleaded guilty.
Legal Issues
- What were the appropriate sentences for Rajab's murder plea, taking into account the late timing of the plea, provocation advanced in mitigation, and mental health considerations?
- What weight should be given to subjective circumstances, including personal history, character references, and post-offence conduct, for each offender?
- What guilty plea discount applied to each offender, given the differing timing of their pleas?
- How should pre-sentence custody be calculated and applied for each of the three non-shooting offenders?
- What role did the Crown's obligation in sentence proceedings play, including its obligation to make submissions about the objective seriousness of the offending?
Decision
Omar Rajab (murder)
Rajab was sentenced for murder, which carries a standard non-parole period of 20 years and a maximum of life imprisonment. The court took into account that Rajab arrived at the park armed and discharged the weapon multiple times, including the fatal shot fired at close range while the deceased lay on the ground. While provocation and mental health were raised in mitigation, the court's sentence reflected the gravity of the offending alongside a 15 per cent discount for the guilty plea, which was entered late but accepted by the Crown as warranting some reduction.
Bilal Allouche and Ebrahim Allouche (accessory after the fact to murder)
Both men pleaded guilty at the earliest opportunity to the fresh charges and received a 25 per cent discount. Their sentences were fixed terms of six months and four months respectively, each backdated to periods of pre-sentence custody already served. Both had been held in custody on the original murder charge before bail was granted. Because the fixed terms were calculated to align with their pre-sentence custody, neither man was required to return to custody.
Mohammed El Chami (concealing a serious indictable offence)
El Chami pleaded guilty to concealing a murder, an offence carrying a maximum of two years' imprisonment. The court noted his strong subjective circumstances, including character evidence and the observable psychological toll his knowledge of the killing had on him prior to his arrest. The Crown accepted that his offending fell in the low range and did not submit otherwise. El Chami received a fixed term of three months, backdated to his period of pre-sentence custody, meaning he too did not return to custody.
Orders Made
- Omar Rajab: Sentenced to 21 years' imprisonment for murder, comprising a non-parole period of 15 years and 6 months commencing 12 August 2015 (expiring 11 February 2031) and a balance of term of 5 years and 6 months expiring 10 August 2036. Eligible for parole consideration from 11 February 2031.
- Bilal Allouche: Fixed term of 6 months' imprisonment for accessory after the fact to murder, commencing 21 December 2016; sentence expired 20 June 2017; no return to custody required.
- Ebrahim Allouche: Fixed term of 4 months' imprisonment for accessory after the fact to murder, commencing 29 October 2015; sentence expired 28 February 2016; no return to custody required.
- Mohammed El Chami: Fixed term of 3 months' imprisonment for concealing a serious indictable offence, commencing 28 October 2015; sentence expired 27 January 2016; no return to custody required.
Key Takeaways
- A guilty plea to murder entered on the day of arraignment for a fresh indictment, even where a prior murder charge had been pending, attracted a 25 per cent discount for the non-shooting offenders; the late-pleading shooter received only 15 per cent.
- Pre-sentence custody served under an original charge (here, murder) can be credited against a sentence imposed for a lesser offence arising from the same facts, even where the original charge is ultimately not proceeded with.
- The Crown's conduct in sentence proceedings carries weight: where the Crown made no submission, written or oral, that an offender's conduct fell above the low range, the sentencing court treated that silence as acceptance of the lower characterisation of objective seriousness.
- Under sections 349 and 316(1) of the Crimes Act 1900 (NSW), mere presence at the scene of a murder, combined with knowledge of the killing and subsequent flight, can be sufficient to ground liability as accessory after the fact or for concealment, even where the individual took no part in the shooting itself.
- Character and subjective circumstances, including post-offence psychological effects and community support, remain relevant mitigating factors even for serious offences involving violent death.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 316(1) (concealing a serious indictable offence), 319, 349 (accessory after the fact to murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases
- Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2
- Connolly v R [2009] NSWCCA 293
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Elturk v R [2014] NSWCCA 613
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18
- Williams v R [2012] NSWCCA 172
- Wilson v Director of Public Prosecutions (NSW) [2017] NSWCA 128
- Zammit v R [2010] NSWCCA 29