Citation: Regina v Kanaan, Mawas, El Assaad [2002] NSWSC 774 revised – 30/08/2002
Court: NSW Supreme Court, Common Law Division
Date: 29 August 2002
Judge(s): Wood CJ at CL
Background
Three men were convicted by jury of the murder of Danny Karam, a prominent figure in Sydney's Kings Cross criminal underworld. Karam had operated a protection racket, extracting payments from drug dealers in exchange for allowing them to operate in the area, and had organised the supply and distribution of cocaine and heroin across the city. The three offenders, together with other associates, had been active participants in this criminal enterprise as drug dealers and enforcers operating under Karam's authority.
The murder arose from a plot hatched by the offenders at a Surry Hills safe house during the months before December 1998. The primary motivation, according to a key witness who was an inner member of Karam's gang, was dissatisfaction with their share of the criminal proceeds and resentment at Karam's treatment of them. After several plans were abandoned, the group resolved to shoot Karam when he next visited the safe house. He was shot there on 13 December 1998.
The case proceeded to trial before a jury, with each offender pleading not guilty. The jury returned guilty verdicts on 6 June 2002, and the matter then came before Wood CJ at CL for sentencing.
Legal Issues
- Whether any of the three offenders should receive a life sentence pursuant to s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (reserved for cases where no lesser sentence could adequately protect the community)
- What sentence was appropriate for Mawas and El Assaad, having regard to their individual roles, prior records, and prospects for rehabilitation
- Whether special circumstances existed justifying a variation from the standard ratio between the non-parole period and the total sentence
Decision
Wood CJ at CL sentenced the principal offender, Kanaan, to life imprisonment. The court found that Kanaan was the instigator and organiser of the murder plot, and that his character and conduct demonstrated he posed an ongoing danger to the community of a kind that could not be adequately addressed by any determinate sentence. His involvement extended from conceiving the plan to actively participating in the shooting itself.
For Mawas and El Assaad, the court declined to impose life sentences. Although both were active participants in a premeditated killing, the court found that neither satisfied the statutory threshold for an indeterminate term. The court noted that both men had been drawn into criminal activity through immaturity and early exposure to violence and disorder, and that each showed some capacity for rehabilitation. Mawas had initially expressed reluctance about the plan when it was first raised, and had spent part of the planning period overseas. El Assaad's role, while integral, was somewhat less direct than those who discharged their weapons.
The court found no special circumstances in either case that would justify departing from the standard non-parole period ratio. Both men's periods of parole supervision were considered sufficient to support their reintegration into the community upon release.
Orders Made
- Michael Kanaan: Imprisonment for life
- Rabeeh Mawas: Imprisonment for 25 years, commencing 17 September 1999 and expiring 16 September 2024; non-parole period of 19 years, expiring 16 September 2018
- Wassim El Assaad: Imprisonment for 24 years, commencing 17 September 1999 and expiring 16 September 2023; non-parole period of 18 years, expiring 16 September 2017
Key Takeaways
- The Supreme Court imposed a life sentence on the principal offender on the basis that he conceived, organised, and led a premeditated murder for personal gain, and that no determinate term could adequately protect the community from the danger he represented.
- A life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 requires a finding that no lesser sentence would be adequate to protect the community; this threshold was not met for co-offenders whose roles, though serious, were less central and whose rehabilitation prospects were considered reasonable.
- Where co-offenders played active but less direct roles in a joint criminal enterprise involving murder, the sentencing court calibrated their sentences by reference to individual culpability, prior record, and signs of rehabilitation rather than applying a uniform result.
- Immaturity and exposure to a criminal environment from a young age were accepted as mitigating factors relevant to the length of a determinate sentence, though they did not excuse participation in a planned killing.
- No special circumstances were found in either determinate sentence case, reflecting the court's view that the standard parole periods were sufficient to manage the offenders' reintegration.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)
Cases Cited:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wilson v The Queen (1992) 174 CLR 313
- R v Boyd (1995) 81 A Crim R 260
- R v Glasby (2000) 115 A Crim R 465
- R v Harris (2000) 50 NSWLR 409
- R v Ngo [2001] NSWSC 1021
- Regina v Hearne [2001] NSWCCA 37
- Regina v Mastronardi [2000] NSWCCA 12
- Regina v Pham (1991) 55 A Crim R 128
- R v Fernando (1999) NSWCCA 66
- R v Milat NSWSC 27 July 1996
- R v Glover NSWSC 29 November 1991
- R v Baker NSWCCA 20 September 1995
- R v Cribb NSWCCA 4 November 1994
- R v Garforth NSWCCA 23 May 1994
- R v Heatley NSWSC 27 February 1998
- R v Leonard NSWCCA 7 December 1998
- R v Rose (1999) NSWCCA 327
- R v Street NSWCCA 17 December 1996
- R v Suckling (1999) NSWCCA 36
- R v Verney NSWCCA 23 March 1993
- Regina v Townsend and Cooper NSWCCA 14 February 1995