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Supreme Court 3 September 2020

R v Ahmad

[2020] NSWSC 1195

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW SENTENCE MANSLAUGHTER EXTENDED JOINT CRIMINAL ENTERPRISE DEFENCE USE OF HANDGUN IN A PUBLIC PLACE

Citation: R v Ahmad [2020] NSWSC 1195
Court: Supreme Court of New South Wales
Date: 3 September 2020
Judge: Button J

Background

On the afternoon of 9 April 2016, two groups of men met outside business premises in a western Sydney light industrial suburb. A dispute between them escalated from pushing and shoving into a gunfight in broad daylight. Multiple people were shot, and one man, referred to here as the deceased, was fatally wounded.

The offender had driven to the scene to visit premises associated with his brother, with no evidence that he came intending to participate in any dispute. When gunfire broke out, the offender picked up a revolver from a wounded associate lying on the ground. He then fired a single warning shot into the air in response to a pistol being pointed in his direction from a nearby vehicle. It was the offender's brother who fired the shots that fatally wounded the deceased.

The offender was originally charged with murder on the basis that he was the shooter, a position the Crown maintained for some time before conceding he was not. After the murder trial could not proceed due to the COVID-19 public health crisis, the offender pleaded guilty to manslaughter on 5 June 2020 in full satisfaction of the charge against him.

  • What was the appropriate basis of criminal liability for a participant in a fatal gunfight who was not the person who fired the fatal shots?
  • How should the objective gravity of this particular manslaughter be assessed, given the attenuated and spontaneous nature of the offender's involvement?
  • What utilitarian discount was appropriate for the guilty plea, given the statutory regime for mandatory discounts was said by both parties not to apply?
  • How should the offender's prior criminal history, including prior serious gun violence offences, be weighed against mitigating factors including his spontaneous involvement and character evidence?

Decision

Basis of liability: Button J sentenced the offender on the agreed basis that liability arose through the doctrine of extended joint criminal enterprise. The Crown accepted the offender was not the shooter, and that the shooter, the offender's brother, was himself guilty of manslaughter rather than murder, having fired in excessive self-defence (meaning he held a genuine but objectively unreasonable belief that firing was necessary for self-defence). The offender's own liability was founded on his foresight, once he had armed himself and discharged the revolver, that someone might be unlawfully killed. That foresight arose spontaneously and existed for only a matter of minutes.

Objective gravity: Despite the attenuated basis of liability, Button J assessed this as a serious example of manslaughter. The public nature of the offence, the use of firearms in a suburban street in broad daylight, and the fatal outcome all weighed heavily. The court acknowledged the countervailing factors: the offender was not the shooter; the shooter acted in excessive self-defence (placing his own conduct closer to manslaughter than murder); the offender's direct personal involvement was little more than a public affray; and his criminal liability rested on foresight of a possible outcome, not any intention or desire that death occur.

Subjective features and discount: Both experienced counsel agreed that mandatory utilitarian discount provisions did not apply. The court accepted a 20% utilitarian discount, reflecting that the trial would have been lengthy and complex, that the Crown had for some time incorrectly pursued the offender as the shooter, and that it appeared to have been the offender who first raised with his lawyers that he was not responsible for the fatal shots. The offender's significant prior criminal history, which included serious gun violence and prior imprisonment, was a substantial aggravating factor. The court also considered character evidence from a large and diverse group of people who spoke highly of him, and noted that aspects of his life had been progressing positively before these events.

Sentence: Button J adopted a starting point (before discount) of nine years imprisonment, describing this as an unusually short starting point for a fatal firearms offence while declining to go as low as defence counsel had contended. After applying the 20% discount, this produced a head sentence of seven years, with a non-parole period set at 75% of that term.

Orders Made

  • The offender was convicted of manslaughter.
  • Head sentence of 7 years imprisonment, fully backdated to the date of arrest on 20 March 2017.
  • Non-parole period of 5 years and 3 months, commencing 20 March 2017 and expiring 19 June 2022.
  • Parole period of 1 year and 9 months, commencing 19 June 2022 and expiring 19 March 2024.

Key Takeaways

  • Extended joint criminal enterprise can found manslaughter liability even where an offender's participation was entirely spontaneous, unplanned, and short-lived, provided the requisite foresight of unlawful killing arose during that participation.
  • The shooter's own liability for manslaughter on the basis of excessive self-defence (genuine but objectively unreasonable belief in the necessity of force) formed part of the agreed factual basis on which the secondary participant was sentenced.
  • A sentence for manslaughter involving fatal gun violence in a public place was assessed as serious even where the offender was not the shooter, had no advance knowledge of the firearms, and fired only a single harmless warning shot.
  • Spontaneity of involvement, an attenuated causal role, and positive character evidence can all moderate sentence, but do not displace the inherent gravity of unlawful fatal gun violence in a public place.
  • Where both parties agreed that mandatory utilitarian discount provisions did not apply, the court exercised its discretion and applied a 20% discount for the plea of guilty, informed in part by the Crown having incorrectly attributed the fatal shooting to the offender for a substantial period.

Legislation and Cases Referenced

The judgment did not cite specific legislation or cases in the portions provided. The following legal principles and concepts were applied or discussed:

  • Manslaughter (maximum penalty: 25 years imprisonment; no standard non-parole period)
  • Extended joint criminal enterprise doctrine
  • Excessive self-defence as a basis for manslaughter rather than murder
  • Utilitarian discount for guilty plea
  • Instinctive synthesis sentencing methodology