Abbas v R

[2014] NSWCCA 188

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

1. HOEBEN CJ at CL: I agree with Adamson J.

1. FULLERTON J: I agree with Adamson J.

1. 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.

1. 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 years/ 3 years	Fixed term of 3 months commencing 20 September 2013
TOTAL	11 years commencing 15 August 2011 with non-parole period of 8 years

1. The sentencing judge allowed a discount of 25% for the plea of guilty.

1. The applicant, by notice of application for leave to appeal filed on 23 June 2014, proposed the following grounds of appeal:

(1)   His Honour erred in his assessment of the seriousness of the offending conduct.

(2)   His Honour erred in failing to have proper regard to the totality principle in his accumulation of the sentences.

(3)   His Honour erred in limiting his consideration of special circumstances to the question of whether or not the applicant required a longer period of supervision.

(4)   The overall sentence was manifestly excessive.

1. At the hearing of the application, the third ground was no longer pressed.

Facts

1. Jui Wei Huang, who was both a drug dealer and a drug addict, owed the applicant $500 for drugs. He was avoiding the applicant, who was trying to recover the debt. Erin Cincotta, who owed Huang money, told the applicant that Huang would be visiting her on 6 August 2011 for the purpose of collecting at least part of the debt. The applicant, who was angry that Huang had not paid him, told Cincotta that he was going to "slap him over the head" when he saw him.

1. That afternoon the applicant asked two friends, Aydin Taycan Dogan and Hassan Saleh (the deceased), to accompany him to Cincotta's home.

1. Later that afternoon, Huang telephoned the applicant and told him that he would be in a position to repay some of the money he owed, because he expected to be paid (by Cincotta). When Huang arrived at Cincotta's house, carrying drugs and scales, she led him into the lounge room. Shortly afterwards the deceased and, later, Dogan arrived. When the applicant arrived he went into the lounge room. At this point, the deceased grabbed Huang by the feet and Dogan held him around his neck. The applicant asked Huang if he had the money. Huang replied that he did not.

1. The applicant started to hit Huang on his face with both hands. He then pulled a pouch out of his pocket and used it to hit Huang, who sustained a large bruise and significant swelling to his head and face.

1. The applicant subsequently retrieved a pistol from the pouch and pointed it in the direction of Huang's legs. He ordered Huang to get up from floor, where he was lying. Dogan released his grip on Huang's neck. The deceased helped Huang up. The applicant walked behind Huang, who was facing the deceased. The applicant was still holding the gun.

1. Without the applicant expecting it to do so, the gun discharged. It was no more than two feet from the deceased's face. The bullet passed through the deceased's left cheek and lodged in his brain. He died in hospital the following day, having been maintained on a ventilator in the interim.

1. The applicant left the scene with the gun, which has not been recovered.

The Remarks on Sentence

Findings of objective seriousness of the offences

1. His Honour recorded that the agreed basis for the entry of the plea of guilty to manslaughter was an unlawful and dangerous act: brandishing a firearm in a dangerous and threatening manner at close range, causing death. The sentencing judge noted accordingly that the applicant was not to be sentenced on the basis that he intended to cause death or grievous bodily harm.

1. The sentencing judge was not satisfied to the requisite standard either that the applicant knew either that the gun was loaded, or believed that it was not.

1. His Honour described the manslaughter as "undoubtedly a very serious example of manslaughter by unlawful and dangerous act" although not in the "worst category". The sentencing judge said further, in assessing the objective seriousness of manslaughter, at [30]:

"In this case, the offender recruited two associates, including the deceased, to help him severely beat someone to recover a drug debt. While doing so he brandished a pistol to induce the victim of the beating to believe he would or might be shot. If it is sensible to speak of a range of manslaughters, then this offence is at the high end of the range."

1. His Honour also considered that the assault on Huang was at the upper end of the range of seriousness since it was planned, undertaken for the purpose of recovering a drug debt and involved substantial bruising and the infliction of significant pain. The sentencing judge considered the firearms offence was in the higher range of objective seriousness but imposed a "heavily reduced" sentence to avoid the offender being "doubly punished".

1. His Honour addressed the applicant's subjective circumstances, including his drug use from the age of 14 and his recent fatherhood. He had a limited criminal record. His Honour considered that he had good prospects of rehabilitation.

1. The sentencing judge addressed what his Honour described as the "significant potential for overlap between the facts and circumstances surrounding each of the three offences". His Honour referred to Pearce v R [1998] HCA 57; 194 CLR 610 at [40]- [49] where the High Court said that it is appropriate to fix an appropriate sentence for each offence and then proceed to consider questions of totality, cumulation and concurrence, while taking care not to subject the offender to double punishment.

1. His Honour's reasons for the structure of the sentences appears from [61] of the remarks on sentence:

"I consider that the sentences for the manslaughter offence and the assault occasioning actual bodily harm offence should be partially accumulated. They were logically distinct crimes with no overlapping elements. There were separate victims. However they arose out of the one criminal escapade and occurred within minutes of each other."

1. The sentencing judge adjusted the sentence to maintain the statutory ratio in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Reasons

1. There are three grounds of appeal and substantial overlap between them. I propose to address the first two grounds separately although there is some artificiality in dividing them in this way since the principal gravamen of the applicant's complaint is that the sentence was manifestly excessive by reason of the sentencing judge's assessment of the objective seriousness of the manslaughter.

Ground 1: alleged error in assessment of objective seriousness of offending conduct

1. The plea involved an acceptance of the following elements of involuntary manslaughter by unlawful and dangerous act:

(1)   the intentional commission of an act contrary to the criminal law that carries an appreciable risk of serious injury (brandishing a firearm in close range of others) and which caused the death of the deceased; and

(2)   a reasonable person in the position of the applicant, performing the act that he performed (brandishing a firearm in close range of others) would have realised that he or she was exposing another and others to an appreciable risk.

1. The applicant submitted that the first sentence in the passage from [30] of the remarks on sentence set out above showed that the sentencing judge took into account the severe beating inflicted on Huang (which was the subject of the second count) in assessing the objective seriousness of the manslaughter and therefore double-counted the assault.

1. I do not accept this submission. His Honour was entitled to take into account the circumstance that the accidental shooting occurred in circumstances where the purpose of the encounter between the applicant and Huang was to threaten Huang with physical violence and, indeed, to inflict it, with a view to making him repay the debt to the applicant. The applicant carried the gun to threaten Huang. It was brandished in the course of a physical assault on Huang which was carried out by the applicant, the deceased and Dogan. The physical assault was the subject of the second count but it also formed part of the background against which the seriousness of the manslaughter is to be adjudged.

1. I do not discern in his Honour's reasons any elision of the distinction between the first and second counts or any reason to conclude that the assault was double-counted in the sentences for the first and second counts.

1. Although the applicant accepted that the surrounding circumstances were unquestionably serious, he contended that the objective seriousness of the manslaughter was significantly reduced by the following:

(a)   The discharge of the weapon was accidental.

(b)   The Crown was not able to establish that the applicant knew that the pistol was loaded.

(c)   The applicant did not wish the deceased any harm.

1. I consider that factor (a) can be put to one side since the offence to which the applicant pleaded was involuntary manslaughter by unlawful and dangerous act, which would have been inapplicable if the applicant had discharged the gun deliberately. Factor (c) is not to the point. One of the dangers of brandishing a gun is that it can discharge and injure or kill those in the vicinity, whether or not the holder of the gun bears the victim any ill-will.

1. As to factor (b), the applicant submitted as follows:

"The criminality involved in brandishing a pistol in circumstances where it was not established that the applicant knew it was loaded was significantly less than the criminality involved in deliberately taking a weapon to a confrontation with the intent of using it and actually using it."

1. I do not accept that the distinction between the two scenarios postulated is as clear as the applicant contended. The applicant deliberately took a weapon (the gun) to a confrontation with the intention of using it (to threaten harm) and, while using it for the purpose for which he had brought it to the scene, he accidentally used it for another purpose (to kill his friend). In my view, the significance of factor (b) is diminished by the circumstance that his Honour was not satisfied that the applicant did not know that the gun was loaded. In other words, his Honour sentenced the applicant on the basis that the applicant's state of mind (whether ignorance, belief or knowledge) whether the pistol was loaded had not been established.

1. For someone to brandish a gun at close range of others in those circumstances is fraught with danger. If a gun discharges, with or without warning, the risk, which ensued in the present case, of someone being killed or seriously wounded is substantial. Other weapons, including implements such as knives which are commonly available for other purposes, or fists, may be used with fatal consequences. In such circumstances, those who use them may be guilty of involuntary manslaughter, where there is neither an intention to harm nor to kill. However, neither the wielding of a knife nor the shaking of a fist is as fraught with risk to human life and limb as the brandishing of a gun. Nor do other weapons tend to be as effective at inducing fear and compliance as a gun.

1. The maximum penalty of 25 years is a relevant guidepost: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The sentencing judge adopted a starting point of 14 years and 8 months for manslaughter, before discounting the sentence by 25% to take account of the plea of guilty.

1. I do not discern any basis for concluding that his Honour erred in assessing the manslaughter committed by the applicant as serious example of manslaughter by unlawful and dangerous act.

1. In these circumstances I am not persuaded that his Honour's assessment of the objective seriousness of the manslaughter was erroneous, or that the sentence imposed for that offence was excessive.

Ground 2: alleged failure to have regard to totality principle in accumulation of sentences

1. Because of the way his Honour structured the sentence, the effect of the sentences imposed for the second count was to extend the non-parole period by a year from an expiry on 14 August 2018 (the expiry of the non-parole period for manslaughter) to 14 August 2019 (the expiry of the fixed term for assault occasioning actual bodily harm). The sentence imposed for the third count was wholly concurrent and fell within the non-parole period for manslaughter and therefore did not require the applicant to serve any additional time.

1. Counts one and two involved different victims and had no overlapping elements, although they occurred in the course of the same offending conduct. It was therefore, in my view, appropriate that there be a degree of accumulation. The decision whether to accumulate sentences or to make them concurrent is one which is pre-eminently a matter of discretion for the sentencing judge: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]-[28] per Howie J. His Honour correctly identified the relevant principles. I am not persuaded that there was any error in his approach.

Ground 4: whether the overall sentence was manifestly excessive

1. The applicant cited instances where the sentences imposed for manslaughter offences were shorter, in some cases significantly so, than the sentence imposed on him in the present case. It is well recognised that, of all offences, manslaughter produces the greatest variety of circumstances affecting culpability. Consequently there is a substantial range in the sentences imposed for this offence: R v Lavender [2005] HCA 37; 222 CLR 67 (Gleeson CJ, McHugh, Gummow and Hayne JJ). For this reason, statistical analysis of sentences imposed for manslaughter is not helpful. Nor is citation of other instances said to be comparable a proper approach: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]-[55].

1. Manslaughter may be voluntary (because the mental element for murder has been established) or involuntary (because it has not been). Involuntary manslaughter may be committed by unlawful and dangerous act or by criminal negligence. For a detailed discussion of how unlawful homicide is divided into two mutually exclusive categories: murder, with the balance amounting to manslaughter see: Lane v R [2013] NSWCCA 317 at [44]-[65] per Bathurst CJ, Simpson and Adamson JJ. Comparisons between cases where the manslaughter includes the mental element for murder (but is not murder because there is provocation, excessive self-defence or substantial impairment) and those in which, as in the present case, it does not, tend not to be fruitful.

1. Further, the cases referred to by the applicant include convictions for manslaughter after trial. A jury is not required to specify on what basis a verdict of guilty of manslaughter is returned. It is unnecessary that the jurors be unanimous as to the type of manslaughter of which they are satisfied the offender is guilty: R v Cramp [1999] NSWCCA 324; 110 A Crim R 198; R v Dally [2000] NSWCCA 162; 115 A Crim R 582. It is generally inadvisable for a trial judge to question the jury as to the basis of a verdict of manslaughter, it being a matter for the sentencing judge to find the relevant facts consistently with the jury's verdict: R v Isaacs (1997) 41 NSWLR 374.

1. A search for "comparable" cases can serve to do no more than highlight the variety of circumstances in which manslaughter is committed. For these reasons this Court has found that sentencing statistics for manslaughter offences are of such limited assistance to sentencing judges that they should be avoided: R v Wood [2014] NSWCCA 184 at [55]- [59] per Price, Garling and Bellew JJ.

1. For the reasons given above, I am not persuaded that there has been any error in his Honour's approach, either in the assessment of the objective seriousness of the offences or in the structure of the sentence. The fourth ground is a conclusion which requires error to be shown in the result, even if an error cannot be identified in the process: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] per Gleeson CJ and Hayne J. As referred to above, the sentence for the second count added one year to the period that the applicant is to spend in custody; the sentence for the third count had no practical effect. I am not persuaded that the sentence is manifestly excessive or that the principle of totality has not been correctly applied.

Proposed orders

1. The orders I propose are:

(3)   Leave to appeal granted.

(4)   Appeal dismissed.

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Decision last updated: 25 September 2014