Citation: R v Aljubouri; R v YA; R v Shaker [2019] NSWSC 180
Court: Supreme Court of New South Wales
Date: 1 March 2019
Judge: Wilson J
Background
On the night of 1 May 2014, Zulfukar Aljubouri attended a Bankstown apartment used by the deceased, Phuoc Monh Nguyen, as a base for drug manufacture and supply. The two men were connected through the methylamphetamine trade: the deceased supplied the drug and Aljubouri acted as a courier. An argument broke out when the deceased accused Aljubouri of compromising the operation by bringing associates to the apartment.
The deceased entered the room carrying a machete and told Aljubouri he could not leave. A struggle followed. Aljubouri grabbed the machete and stabbed the deceased in the ribs. The deceased died from that wound on 2 May 2014. Aljubouri pleaded guilty to manslaughter on the basis of excessive self-defence, rather than murder, and the Crown accepted that plea.
After the killing, the body was concealed and the crime scene was cleaned. The deceased's skeletal remains were not found until 24 July 2018, at Cordeaux, when Aljubouri led police to the location. Two other offenders, YA (who was 17 at the time) and Rafat Shaker, played supporting roles in the cover-up and also appeared for sentencing.
Legal Issues
- The appropriate sentence for Aljubouri for manslaughter by excessive self-defence and the separate common law offence of knowingly concealing a corpse, including whether an aggregate sentence was appropriate.
- The appropriate sentence for YA for being an accessory after the fact to manslaughter, including recognition of his youth at the time of the offence.
- The appropriate sentence for Shaker for concealing a serious offence under s 316(1) of the Crimes Act 1900 (NSW), with a further larceny offence taken into account.
- The weight to be given to mitigating factors across all three offenders, including guilty pleas, subjective circumstances, and limited criminal histories.
- Whether special circumstances warranting a departure from the standard non-parole period ratio existed for any of the offenders.
Decision
Wilson J sentenced Aljubouri to an aggregate term of 7 years and 6 months imprisonment, with a non-parole period of 5 years and 7 months. The indicative sentence for manslaughter alone was 6 years and 6 months, and for concealing a corpse 2 years and 5 months. The sentence reflected the gravity of the concealment, which denied the deceased's family any knowledge of his fate for over four years, while also accounting for the fact that the confrontation was initiated by the deceased and the weapon was introduced by him.
YA, who was 17 at the time of the offending, was sentenced to a community correction order for 12 months with 84 hours of community service. His youth, the nature of his involvement as an accessory rather than a principal, and positive signs of rehabilitation all weighed in his favour.
Shaker received a conditional release order for 12 months, with a larceny offence taken into account under s 33 of the Crimes (Sentencing Procedure) Act 1999. His role was limited to concealing the serious offence. The court found no utility in making a finding of special circumstances for any of the three offenders.
The court gave weight to all three offenders' early guilty pleas, entered under the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017. It noted that general deterrence played a lesser role given the circumstances in which the killing arose, though the prolonged concealment of the body remained a seriously aggravating feature.
Orders Made
- Aljubouri: Convicted of manslaughter and knowingly concealing a corpse. Aggregate imprisonment of 7 years and 6 months, commencing 13 May 2015 and expiring 12 November 2022, with a non-parole period of 5 years and 7 months expiring 12 December 2020.
- YA: Convicted of accessory after the fact to manslaughter. Community correction order for 12 months from 1 March 2019, with conditions including no offending, 84 hours community service, and reporting to Liverpool Community Corrections Office on 8 March 2019.
- Shaker: Convicted of concealing a serious offence. Conditional release order for 12 months from 1 March 2019, with conditions including no offending and to appear before the court if called upon.
Key Takeaways
- Manslaughter by excessive self-defence carries significant sentencing weight even where the deceased was the aggressor and introduced the weapon, particularly where the offender thereafter concealed the body and obstructed any prospect of lawful inquiry for years.
- The prolonged concealment of a victim's remains, denying family members knowledge of the death, is treated as a seriously aggravating matter separate from the killing itself and attracted an indicative sentence of nearly 2 years and 5 months on its own.
- Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence can encompass both the principal offence and associated common law offences arising from the same episode.
- Youth at the time of offending, limited involvement as an accessory rather than a principal, and demonstrated rehabilitation can together support a non-custodial outcome even for an offence connected to a homicide.
- Special circumstances justifying a departure from the statutory non-parole period ratio were not established for any of the three offenders, notwithstanding claims of drug abstinence and family support.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 316(1), 350
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A
- Coroners Act 2009 (NSW)
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- R v Pennisi [2001] NSWCCA 326