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17
Court of Criminal Appeal 12 March 2021

Ahmad v R

[2021] NSWCCA 30

Homicide
CRIMINAL LAW SENTENCE APPEAL AGAINST SENTENCE GUILTY PLEA TO MANSLAUGHTER OFFENDER RESENTENCED

Citation: Ahmad v R [2021] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 12 March 2021
Judges: Leeming JA; Harrison J; Adamson J

Background

The applicant pleaded guilty to the manslaughter of a man fatally shot during a gunfight on a public street in Condell Park, Sydney, in April 2016. The shooting arose from an affray between two groups. The applicant was not the person who fired the fatal shot; that was his brother, who was himself killed three weeks later. The applicant's liability rested on the doctrine of extended joint criminal enterprise, because he had armed himself during the affray and fired a warning shot, at which point he foresaw the possibility that someone could be unlawfully killed.

The applicant had originally been charged with murder, with the Crown asserting he was the shooter. The Crown later conceded that was not so. The applicant himself initiated the negotiations that led to a guilty plea to manslaughter on agreed facts.

At first instance, the sentencing judge imposed a total sentence of 7 years with a non-parole period of 5 years and 3 months. The applicant sought leave to appeal on several grounds, but the Court of Criminal Appeal confined its grant of leave to one: the judge's treatment of whether a discount should be given for assistance provided to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing judge erred in failing to give sufficient weight to the applicant's remorse
  • Whether the sentencing judge erred in declining to find special circumstances warranting an adjustment to the standard non-parole period ratio
  • Whether the sentencing judge complied with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when declining to apply a discount for assistance provided to authorities, and if not, what sentence the Court of Criminal Appeal should impose on resentencing

Decision

The Court rejected the remorse ground. The sentencing judge had accepted the applicant's remorse as genuine, and no appellate error was demonstrated in the weight given to that factor.

The Court also rejected the special circumstances ground. No principled basis was established to depart from the standard statutory ratio between the non-parole period and the balance of term.

The central issue was the assistance discount. The sentencing judge had accepted that the applicant provided assistance by explaining his involvement in the gunfight, but declined to discount the sentence. Section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires a court, when it declines to reduce a sentence in light of assistance provided, to say so and to provide reasons. The sentencing judge's reasons did not comply with that requirement. This constituted an error of law justifying resentencing.

On resentencing, the Court of Criminal Appeal nominated a starting point of 8 years, applied a 20 percent discount for the utilitarian value of the guilty plea, and a further 5 percent for the assistance provided. The Court accepted that the applicant's account of his involvement was truthful, complete and reliable, and that his assistance was material to the Crown's case. It declined to make a finding of special circumstances. The resulting head sentence was 6 years, with a non-parole period of 4 years and 6 months, backdated to the date of first incarceration in March 2017.

Orders Made

  • Leave to appeal granted, confined to ground 1 (the assistance discount ground); leave otherwise refused
  • Appeal allowed
  • Sentence of 3 September 2020 quashed and replaced with a total sentence of 6 years, comprising:
  • Non-parole period of 4 years and 6 months, commencing 20 March 2017 and expiring 19 September 2021
  • Balance of term of 1 year and 6 months, commencing 20 September 2021 and expiring 19 March 2023
  • First eligible parole date: 20 September 2021
  • Note recorded under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) that the offence is one to which that statute applies

Key Takeaways

  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), where a sentencing court declines to reduce a sentence in recognition of assistance provided by an offender to authorities, it must state that decision and give reasons. Failure to do so constitutes a legal error.

  • The Court of Criminal Appeal confirmed that accepting an offender's assistance as genuine and material does not automatically require a particular quantum of discount; however, the decision to give no discount at all requires transparent reasoning that complies with the statutory obligation.

  • A 5 percent sentence reduction was applied where the applicant had provided an account of his involvement in the offence that was accepted as truthful, complete and reliable, and that was material to a Crown case that was otherwise not strong.

  • No error was established in the sentencing judge's treatment of remorse or special circumstances, illustrating the difficulty of successfully challenging discretionary sentencing evaluations on appeal absent identifiable legal error.

  • Manslaughter based on extended joint criminal enterprise occupies a wide sentencing range, and the Court of Criminal Appeal reiterated that comparing sentences across manslaughter cases offers limited guidance given the markedly different circumstances in which the offence can be committed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 44
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- R v Ahmad [2020] NSWSC 1195 (decision under appeal)
- R v Ellis (1986) 6 NSWLR 603
- House v The King (1936) 55 CLR 499
- CMB v Attorney General for New South Wales (2015) 256 CLR 346
- Hili v The Queen (2010) 242 CLR 520
- Khalid v R (2020) 102 NSWLR 160
- Buckley v R [2021] NSWCCA 6
- R v Sara [2020] NSWCCA 119
- R v Lulham [2016] NSWCCA 287
- Burrows v R [2017] NSWCCA 45
- Casey v R [2015] NSWCCA 142
- SZ v R [2007] NSWCCA 19
- Raad v R [2011] NSWCCA 138
- Cioban v R [2003] NSWCCA 304
- R v Burke [2002] NSWCCA 353
- R v AA [2017] NSWCCA 84
- JBM v The Queen [2013] VSCA 69
- Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419