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Abbas v R

Abbas v R

Case [2014] NSWCCA 188 25 September 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Abbas v R [2014] NSWCCA 188
Hearing dates: 15 September 2014
Decision date: 25 September 2014
Before: Hoeben CJ at CL at [1]
Fullerton J at [2]
Adamson J at [3]
Decision:
1.Leave to appeal granted
2.Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - sentence for manslaughter, assault occasioning actual bodily harm and possession of firearm - trial judge's assessment of the objective seriousness of manslaughter by unlawful and dangerous act not erroneous - applicant deliberately brandished a gun intending to threaten harm in close range of others - no error in sentencing judge's discretion to accumulate sentences - counts one and two involved different victims - sentence imposed by trial judge not manifestly excessive - wide variety of circumstances in which manslaughter can be committed makes identification of "comparables" particularly unhelpful
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 59
Criminal Appeal Act 1912 (NSW), s 5
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Firearms Act 1996 (NSW), ss 7, 65
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Hili v The Queen [2010] HCA 45; 242 CLR 520
Lane v R [2013] NSWCCA 317
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v R [1998] HCA 57; 194 CLR 610
R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
R v Dally [2000] NSWCCA 162; 115 A Crim R 582
R v Isaacs (1997) 41 NSWLR 374
R v Lavender [2005] HCA 37; 222 CLR 67
R v Wood [2014] NSWCCA 184
Category: Principal judgment
Parties: Khaldoun Abbas (Applicant)
Regina (Respondent)
Representation: Counsel:
D O'Neil (Applicant)
N Adams SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/260561
Publication restriction: Nil
Decision under appeal

Citation:

[2013] NSWSC 1379

Date of Decision:

2013-09-20 00:00:00

Before:

Beech-Jones J

File Number(s):

2011/260561

Judgment

HOEBEN CJ at CL: I agree with Adamson J.

FULLERTON J: I agree with Adamson J.

ADAMSON J: The applicant seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed by Beech-Jones J on 20 September 2013.

The offences to which the applicant pleaded guilty and the sentences in respect of each are as follows:

Offence
Maximum penalty/ Standard Non-Parole Period
Sentence
Count 1
(Crimes Act 1900
s 18(1)(b))
Manslaughter
25 years imprisonment
Total of 11 years, with non-parole period of 7 years. commencing 15 August 2011
Form 1: Unauthorised possession of ammunition (s 65(3) of the Firearms Act 1996- maximum penalty of 50 penalty units ($5,500))
Count 2
(Crimes Act 1900
s 59(2))
Assault occasioning actual bodily harm in company
7 years imprisonment
Fixed term of 2 years commencing 15 August 2017
Count 3
(s 7(1) Firearms Act 1996)
Possess prohibited pistol
14…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbas v R

Details

AGLC: Abbas v R [2014] NSWCCA 188
Case: [2014] NSWCCA 188
Decision Date: 25 September 2014

CaseChat Overview and Summary

The case of Abbas v R involved an appeal against a sentence for manslaughter, assault occasioning actual bodily harm, and possession of a firearm. The applicant, Abbas, had been convicted of these offences and was appealing the sentence imposed by the trial judge. The legal issues before the court were whether the trial judge had erred in assessing the objective seriousness of the manslaughter, whether there was an error in the sentencing judge's decision to accumulate the sentences, and whether the sentence imposed was manifestly excessive.

The court found that the trial judge's assessment of the objective seriousness of the manslaughter was not erroneous. The court noted that Abbas had deliberately brandished a gun intending to threaten harm in close proximity to others. This conduct demonstrated a high degree of culpability, which warranted a serious sentence. The court also found that there was no error in the sentencing judge's decision to accumulate the sentences. The court noted that counts one and two involved different victims, and therefore it was appropriate to accumulate the sentences. Finally, the court found that the sentence imposed by the trial judge was not manifestly excessive. The court noted that the wide variety of circumstances in which manslaughter can be committed makes identification of "comparables" particularly unhelpful.

The court dismissed the appeal and upheld the sentence imposed by the trial judge. The court found that the trial judge had appropriately considered the relevant factors in determining the sentence, and that the sentence imposed was not manifestly excessive. The court also found that there was no error in the sentencing judge's decision to accumulate the sentences. The court noted that the applicant had a significant criminal history, which warranted a sentence that reflected the seriousness of his offending. The court found that the sentence imposed achieved this objective.

Orders