AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 20 December 2024

R v Diallo & Ors (No 17) (Sentence)

[2024] NSWSC 1650

Assault & violenceHomicide
CRIMINAL LAW SENTENCING OFFENCES OF VIOLENCE VIOLENT MELEE IN A SUBURBAN STREET SIX PEOPLE STABBED ONE CHILD KILLED

Citation: R v Diallo & Ors (No 17) (Sentence) [2024] NSWSC 1650
Court: Supreme Court of New South Wales
Date: 20 December 2024
Judge(s): Hamill J

Background

On 1 September 2021, a violent melee erupted between two groups of young men across three suburban streets in Blacktown. Five members of a group known as "MOB" (Money Over Bitches) attended the home of men associated with rival groups ("QSB", "RFA", and "Murda60"), most arriving armed with knives. Members of both groups ultimately wielded knives, machetes, and golf clubs. Six men were stabbed (three from each group), and one young man, Darcy Moore, was killed by a single stab wound. His brother (EC) and a friend (EO) also suffered serious injuries; EO would have died but for the prompt intervention of paramedics.

The five MOB members (AD, Panashe Karise, Ibrahima Diallo, AG, and YA) were arrested in February 2022. Four stood joint trial at Parramatta, while YA was tried separately. The jury convicted all four of manslaughter (acquitting on murder), attempted murder of EO, and wounding EC with intent to inflict grievous bodily harm (acquitting on the attempted murder of EC). YA subsequently pleaded guilty to manslaughter, wounding EO with intent to cause grievous bodily harm, and wounding EC with intent to cause grievous bodily harm. Three of the five offenders (AD, AG, and YA) were under 18 at the time of the offences.

The case raised complex sentencing questions about joint criminal enterprise, self-defence findings on sentence, the role of "drill rap" music culture as context for the animosity between groups, parity among co-offenders with differing roles, and the treatment of juvenile offenders under the Children (Criminal Proceedings) Act 1987 (NSW).

  • Fact-finding on sentence: What factual findings were consistent with the jury's verdicts, particularly regarding the scope of the joint criminal enterprise and whether it was abandoned?
  • Self-defence on sentence: To what extent did the partial applicability of self-defence (subjective component established but objective component rejected) affect the assessment of moral culpability for each offence?
  • Assessment of objective gravity: How should the Court differentiate the objective criminality of each offender given their varying roles in the melee?
  • Juvenile offender directions: Should three offenders (AD, AG, and YA), who were under 18 at the time of the offences, serve their sentences as juvenile offenders under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), despite Crown opposition?
  • Parity and proportionality: How should the Court balance individualised justice with parity among five co-offenders with differing culpability, ages, and subjective circumstances?
  • Moral culpability and subjective factors: Whether one offender's submission that subjective disadvantage should reduce the assessment of moral culpability (as distinct from mitigation) should be accepted.
  • Standard non-parole periods: Application of the standard non-parole period regime to the adult offenders (Karise and Diallo) and its inapplicability to the juvenile offenders.

Decision

Hamill J approached the sentencing by first making detailed findings of fact consistent with the jury's verdicts. His Honour found that the MOB group initiated the violence by attending with knives, but that the rival group emerged from the house and attacked with weapons including a "zombie knife" and golf clubs. The jury's rejection of murder (but conviction for manslaughter) indicated the jury accepted that the joint criminal enterprise did not extend to killing but was not abandoned. On self-defence, His Honour found that the subjective component (genuine belief that defensive force was necessary) was established in relation to some offences, but the objective component (that the force used was reasonable) was not. The extent to which the conduct exceeded what was reasonable varied across the individual offences and offenders, requiring differentiated findings.

His Honour rejected the submission by one offender that subjective disadvantage (such as background deprivation, consistent with Bugmy v The Queen) should feed directly into the assessment of moral culpability at the objective seriousness stage. While acknowledging the moving personal histories of each young offender, Hamill J held that those matters operated in mitigation but did not reduce the objective gravity of the offending itself. This approach followed established authority.

The Court made a direction under s 19 of the Children (Criminal Proceedings) Act 1987 that the three offenders who were under 18 at the time of the offences (AD, AG, and YA) serve their sentences as juvenile offenders, notwithstanding the Crown's opposition. His Honour considered the purposes of the provision and the individual circumstances of each young person. Hamill J also acknowledged the devastating victim impact evidence, particularly the statement of the deceased's father, Peter Moore, who described enduring guilt and anguish compounded by his own peripheral involvement on the night.

Aggregate sentences were imposed on each offender, with indicative sentences for each count. The Court found special circumstances warranting adjustment of the non-parole period ratio. His Honour emphasised the need for stern punishment given the objective gravity of the offences while recognising "a place for leniency" in the circumstances of these young offenders.

Orders Made

  • Each of the five offenders was sentenced by way of an aggregate sentence of imprisonment for multiple offences (manslaughter, attempted murder or wounding with intent to cause grievous bodily harm of EO, and wounding with intent to cause grievous bodily harm of EC).
  • Indicative sentences were announced for each offender for each offence, reflecting their individual roles and culpability.
  • AD, AG, and YA were directed to serve their sentences as juvenile offenders under s 19 of the Children (Criminal Proceedings) Act 1987.
  • Special circumstances were found in each case, adjusting the balance between the non-parole period and the balance of the term.
  • Sentences were backdated by agreement to account for pre-sentence custody.
  • YA's bail was continued on existing conditions pending the commencement of his sentence.

(Note: The full text of the judgment was truncated in the source material provided. The specific sentence lengths for each offender are not reproduced here.)

Key Takeaways

  • Section 19 directions were granted for all three eligible juvenile offenders despite active Crown opposition, with Hamill J closely scrutinising individual circumstances rather than defaulting to adult custody for grave offences. The Supreme Court noted that delays in obtaining Youth Justice background reports and subjective evidence had caused logistical difficulties in the proceedings.

  • A clear distinction between moral culpability and objective seriousness was maintained, as Hamill J rejected the argument that Bugmy-type subjective disadvantage reduces the objective gravity of offending. Background deprivation operates as a mitigating factor rather than as a consideration relevant to assessing the objective seriousness of the offences themselves.

  • In reconciling jury verdicts across a joint criminal enterprise case, the Supreme Court undertook differentiated fact-finding on sentence. The verdicts (not guilty of murder but guilty of manslaughter, and not guilty of attempted murder of one victim but guilty of attempted murder of another) required careful determination of the scope of the enterprise for each offence and each offender.

  • Self-defence at sentencing was confirmed not to be an all-or-nothing proposition, with the Court accepting the subjective component of the defence but rejecting the objective component, then calibrating the relevance of excess force differently across each offence and each offender. Both limbs of the defence may be assessed separately with different outcomes.

  • Particular attention was given to the parity principle in the context of a multi-offender case where co-offenders had been tried separately, different evidence had been received in each proceeding, and different verdicts or pleas applied. The Supreme Court was explicit about compartmentalising the evidence, including disregarding one offender's statement when sentencing co-offenders who had no opportunity to cross-examine on it.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 22B
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 19, 25
- Crimes Act 1900