Citation: R v Elsamad [2020] NSWSC 1372
Court: Supreme Court of New South Wales
Date: 9 October 2020
Judge(s): Hidden AJ
Background
The offender was tried for the murder of a 22-year-old man at Merrylands on the evening of 19 January 2018. The offender, who was 19 at the time, retrieved a loaded shotgun from his bedroom unit and walked back outside to confront the deceased, who had arrived aggressively at the property demanding to speak with him. The shotgun discharged at close range, causing fatal injuries.
At the outset of the trial, the offender pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept that plea in discharge of the indictment, and the trial proceeded. The jury returned a verdict of guilty of manslaughter, with the offence left to the jury on two alternative bases: killing in excessive self-defence, or killing by an unlawful and dangerous act.
Following the verdict, the court was required to determine the appropriate basis for sentence, the weight to be given to the guilty plea and other factors, and the length of the sentence. A separate robbery in company offence, for which the offender had already been sentenced, required consideration of totality.
Legal Issues
- On which basis, excessive self-defence or unlawful and dangerous act, should the offender be sentenced for manslaughter?
- What weight should be given to the offender's guilty plea to manslaughter at the outset of trial, bearing in mind the Crown did not accept it?
- What objective seriousness did the offending represent, having regard to the use of a firearm and the circumstances of the killing?
- How should the sentence account for relevant subjective factors, including youth, drug use, post-offence conduct, and other personal circumstances?
- What sentence length and non-parole period were appropriate, including the operation of totality with the existing robbery sentence?
Decision
Hidden AJ resolved the factual dispute about the basis of manslaughter in favour of the defence. His Honour was not satisfied that the Crown had established beyond reasonable doubt that the offender deliberately fired the shotgun. The preferred factual finding was that the offender presented the loaded firearm at the deceased and the discharge occurred during a struggle for the weapon, without the offender deliberately pulling the trigger. The appropriate basis for sentence was therefore manslaughter by an unlawful and dangerous act, namely the presentation of a loaded shotgun at the deceased in circumstances that exposed him to an appreciable risk of serious injury.
The objective seriousness of the offending was treated as significant. The offender had armed himself with a loaded firearm, walked back out to confront an aggressive but unarmed man, and pointed the weapon at his chest at close range. The court found several aggravating features under the Crimes (Sentencing Procedure) Act 1999 (NSW), including that the offence involved the use of a firearm, was committed in company, and was motivated in part by the offender's involvement in the drug trade.
On subjective matters, the court noted the offender's youth, his absence of prior relevant criminal history, and evidence of prospects for rehabilitation. However, his post-offence conduct weighed against him: he fled the scene, disposed of the weapon, and told elaborate lies to police, fabricating a detailed account of a fictional unknown shooter. He only abandoned those lies when he gave evidence at trial.
A discount of 15% was applied for the guilty plea to manslaughter at the outset of trial. That discount was agreed between the parties and accepted by the court as appropriate in the circumstances. Special circumstances were found to justify a departure from the standard proportion between sentence and non-parole period, but the non-parole period was kept at a level adequate to reflect the offender's criminality. To give effect to totality with the existing robbery sentence, the manslaughter sentence was ordered to commence on 19 November 2018, a date well after the offender's arrest but before the expiry of the non-parole period for the robbery.
Orders Made
- The offender was sentenced to a non-parole period of 7 years commencing 19 November 2018 and expiring 18 November 2025.
- The balance of term was 3 years, commencing 19 November 2025 and expiring 18 November 2028.
- The offender was made eligible for release on parole on 19 November 2025.
Key Takeaways
- Where a manslaughter verdict is returned on two alternative bases and the jury does not specify which applied, the sentencing court must determine the factual basis on the criminal standard of proof before imposing sentence.
- The unlawful and dangerous act formulation of manslaughter can encompass the presentation of a loaded firearm, even where the discharge was not deliberate, provided the act exposed the deceased to an appreciable risk of serious injury.
- A guilty plea entered at the outset of trial attracts a sentencing discount even where the Crown declines to accept it in discharge of the indictment; here the discount was 15%, reflecting some utilitarian value but limitations on the timing and context of the plea.
- Post-offence conduct, including fleeing the scene, disposing of a weapon, and fabricating a detailed false account to police, constitutes relevant aggravation at sentencing even where the offender ultimately gave truthful evidence at trial.
- Totality requires a sentencing court to adjust the commencement date of a new sentence to avoid a combined sentence that is disproportionate to the overall criminality, particularly where a pre-existing non-parole period is already being served.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(i), 21A(2)(j)
Cases
- R v Forbes [2005] NSWCCA 377, 160 A Crim R 1
- Abbas v R [2014] NSWCCA 188
- Smith v R [2015] NSWCCA 193
- Magro v R [2020] NSWCCA 25