Citation: R v Hassan Kalache [2002] NSWSC 507
Court: Supreme Court of New South Wales
Date: 31 May 2002
Judge(s): Dowd J
Background
The offender was tried before a jury on one count of murder arising from the shooting death of Wassim Chehade at Mona Park, Auburn, on 1 July 2000. The deceased and offender had known each other for many years, having grown up in the same community and attended school together.
On the evening of the killing, the offender contacted the deceased by phone and arranged for the deceased to be picked up at a park. When the deceased arrived by car with two brothers and a friend, the offender approached the vehicle with two other men. One of those men punched the deceased, and the offender then produced a handgun and fired five bullets into the left side of the deceased's body. The deceased was driven to Auburn Hospital but died during surgery that evening.
The offender pleaded not guilty and gave evidence that the deceased had acted aggressively toward him and that he had consumed heroin, Rohypnol, and LSD that day. A jury rejected his account and returned a guilty verdict on 1 March 2002. The matter then proceeded to a sentencing hearing.
Legal Issues
- What sentence was appropriate for the murder, having regard to the nature and circumstances of the offence?
- What weight should be given to the offender's youth at the time of the offence and at the time of sentencing?
- What weight should be given to the offender's dysfunctional family background, cultural context, and diagnosed anti-social personality disorder?
- Whether any "special circumstances" existed under the Crimes (Sentencing Procedure) Act 1999 that would justify extending the non-parole period beyond the standard ratio.
Decision
Dowd J characterised the killing as cold, callous, and premeditated. The offender had lured the deceased to an isolated location, arrived with supporters, and shot him five times with the clear intention of killing him. Medical evidence described two of the five wounds as almost certainly fatal given the damage caused to major blood vessels and vital organs. The court found that a severe sentence was required to denounce this type of conduct.
The court took mitigating factors into account, including the offender's youth (he was a teenager at the time of the offence), his seriously dysfunctional family background, his cultural context, and his diagnosed anti-social personality disorder. Dowd J also noted that the offender had been held in more secure custody than ordinary remand prisoners, which meant his time on remand had been harder than usual. These matters together led the court to reduce the sentence it would otherwise have imposed by two years, from a starting point of twenty-four years down to twenty-two years.
On the question of special circumstances, the court found none that would justify extending the period of post-release supervision beyond five years. Dowd J considered that a five-year parole tail was sufficient to allow assessment of whether the offender had adjusted to life outside custody and freed himself from the drug-related and dysfunctional associations that had contributed to the offence.
The sentence was backdated to the date of the offender's arrest on 13 July 2000, on the basis that the principal reason for his custody had been the present proceedings.
Orders Made
- Convicted of murder and sentenced to 22 years imprisonment, commencing 13 July 2000 and expiring 12 July 2022.
- Non-parole period of 17 years fixed, commencing 13 July 2000 and expiring 12 July 2017.
Key Takeaways
- The Supreme Court treated the luring of the deceased to a remote location, in the presence of the offender's associates, as a significant aggravating feature that called for a severe and condign sentence.
- Youth at the time of both the offence and sentencing was accepted as a mitigating factor, as was a dysfunctional family background, cultural context, and a diagnosed personality disorder, though these matters together warranted only a modest reduction from the starting-point sentence.
- Harsher-than-normal remand conditions can be taken into account in arriving at a final sentence, where the court is satisfied the offender's custody was more onerous than that of ordinary prisoners.
- No special circumstances existed to extend the non-parole period beyond the standard five-year supervision tail, even where rehabilitation from drug-related associations was identified as a sentencing objective.
- A claimed intoxication by multiple substances at the time of the offence did not displace the jury's finding of intent to kill, and the court's sentencing remarks proceeded on the basis of a deliberate and intentional killing.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Crump (unreported, NSWCCA, 30 May 1994)
- R v Dodd (1991) 57 A Crim R 349
- R v Ibbs (1987) 163 CLR 447
- R v Poskart [2001] NSWSC
- R v Privett [2001] NSWCCA 518
- R v Purdey (1993) 65 A Crim R 441
- R v Rushby [1977] 1 NSWLR 594
- R v Twala (unreported, NSWCCA, 4 November 1994)
- The Queen v Veen (No 2) (1987/88) 164 CLR 465
- R v Zamagias [2002] NSWCCA