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Supreme Court 31 October 2003

Regina v M.A; Regina v DIAB

[2003] NSWSC 978

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW SENTENCE MURDER YOUNG VICTIM YOUNG OFFENDER STRONG PROSPECTS FOR REHABILITATION

Citation: Regina v M.A; Regina v DIAB [2003] NSWSC 978
Court: NSW Supreme Court, Common Law Division
Date: 31 October 2003
Judge(s): Shaw J

Background

In the early hours of 26 April 2001, following a verbal and physical altercation near Hurlstone Park in Sydney, a young man (referred to as M.A.) shot Jai Jago once in the chest, fatally wounding him. M.A. and his co-offender, Kadr Diab, had been driving when they became involved in a street confrontation with the deceased and a companion. There was no evidence of premeditation; the altercation escalated suddenly and with fatal consequences.

M.A. pleaded guilty to murder. Diab, who had purchased the firearm, was aware it was in the car and loaded, but maintained he did not know M.A. would fire it. The Crown accepted Diab's plea of guilty to manslaughter by an unlawful and dangerous act. Both offenders subsequently left Australia for Lebanon before returning and being taken into custody.

Both offenders were young at the time of the offence, and the victim was also young. Shaw J described the case as particularly disturbing, noting that the events led to the effective destruction of three young lives.

  • What head sentence and non-parole period were appropriate for M.A.'s murder conviction, having regard to his youth, plea of guilty, contrition, and prospects for rehabilitation?
  • What sentence was appropriate for Diab's manslaughter conviction, taking into account the objective seriousness of the offence and the additional Form 1 matters (firearm-related offences and affray)?
  • Whether special circumstances existed for both offenders justifying a departure from the standard ratio between non-parole period and head sentence under the Crimes (Sentencing Procedure) Act 1999.
  • Whether M.A. should be ordered to serve his sentence in a juvenile detention facility rather than an adult prison, and until what age.
  • Whether the intoxication of the deceased and his conduct immediately before the shooting constituted mitigating factors.

Decision

Shaw J acknowledged that while M.A.'s guilty plea to murder, his youth, contrition, and strong prospects for rehabilitation were significant mitigating factors, the gravity of the offence demanded a substantial custodial term. The conduct of the deceased (who was intoxicated and had attempted to punch M.A.) was considered in context, though the court emphasised that carrying a loaded firearm fundamentally transformed what might otherwise have been a minor street dispute into a fatal encounter. The head sentence of 13 years and 6 months was imposed as punishment, with a non-parole period of 8 years and 6 months. Special circumstances were found by reason of M.A.'s age and the consequent need for an extended supervisory period on parole.

For Diab, the court assessed the manslaughter as objectively serious. Diab had purchased the firearm, knew it was in the car loaded, and was present throughout the confrontation. The Form 1 matters, which included a separate incident in which Diab brandished a loaded pistol at a service station and threatened bystanders, led the court to take a graver view of the overall objective seriousness. Diab received a sentence of 9 years with a non-parole period of 6 years, with special circumstances also found given his age and rehabilitation prospects.

A central issue in M.A.'s sentence was where it should be served. Shaw J accepted submissions that M.A. should remain in a juvenile detention facility until he turned 21. The court accepted evidence from a psychologist (Dr Lennings), noted M.A.'s status as a model detainee, his participation in educational and rehabilitation programs, his vulnerability in adult gaols, and the fact that this was his first offence and first period in custody.

The court concluded by acknowledging that no sentence could undo the harm visited upon the family of the deceased, and recognised the impact of the offending on those left behind.

Orders Made

  • M.A. sentenced to imprisonment for 13 years and 6 months, commencing 18 April 2002 and expiring 17 October 2015.
  • Non-parole period of 8 years and 6 months found, commencing 19 April 2002 and expiring 17 October 2010, with parole eligibility from that date.
  • Special circumstances found in relation to M.A.'s age; order that M.A. serve his sentence in a children's detention facility until he turns 21, after which the remainder is to be served in an adult facility.
  • Kadr Diab sentenced to imprisonment for 9 years, commencing 24 April 2002 and expiring 23 April 2011, with three Form 1 matters taken into account under s 33 of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period of 6 years for Diab, commencing 24 April 2002 and expiring 23 April 2008, with parole eligibility from that date.

Key Takeaways

  • The sentencing court treated youth, a guilty plea, demonstrated contrition, and strong rehabilitation prospects as significant mitigating factors, but held that the gravity of a fatal shooting in a public place required substantial custodial sentences.
  • Under the Children (Criminal Proceedings) Act 1986, a court retains discretion to order that a young offender serve a sentence in a juvenile detention facility rather than an adult prison, informed by considerations of rehabilitation, vulnerability, and progress in custody.
  • Form 1 matters involving separate firearm incidents were taken into account not by adding discrete sentences, but by leading the court to view the objective seriousness of the principal offence (manslaughter) more gravely, consistent with established sentencing practice.
  • Special circumstances were found for both offenders on the basis of their age, justifying a departure from the standard proportion between the non-parole period and the overall sentence, so as to allow for a longer period of supervised parole.
  • Carrying a loaded firearm into a street confrontation dramatically escalates the potential for fatal outcomes; Shaw J emphasised that courts must respond firmly to such conduct, even where the shooting itself was unpremeditated.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1986 (NSW), ss 3, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(c), 22, 30A, 33, 44
- Victims Legislation Amendment Act 2003 (NSW)

Cases:
- AEM (Snr); KEM and MM [2002] NSWCCA 58
- Blackman and Waters [2001] NSWCCA 121
- Cameron v The Queen (2002) 209 CLR 339
- Olbrich v The Queen (1999) 199 CLR 270
- R v AO [2003] NSWCCA 43
- R v Bollen (1998) 99 A Crim R 510
- R v Bryant [1999] NSWCCA 181
- R v Jenkins [1999] NSWCCA 110
- R v Lattout (Unreported, NSWCCA, 12 December 1996)
- R v Privitera (1997) 94 A Crim R 76
- R v Sharma (2002) 54 NSWLR 300
- R v Simpson (2001) 53 NSWLR 704
- R v Thomson (2000) 49 NSWLR 383
- R v Voss [2003] NSWCCA 182
- Ryan v The Queen (2001) 206 CLR 267
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Yardley v Betts (1979) 22 SASR 108