Ahmad v R

[2021] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Ahmad v R [2021] NSWCCA 30

Hearing dates:

24 February 2021

Decision date:

12 March 2021

Before:

Leeming JA; Harrison J; Adamson J

Decision:

1. Grant leave to appeal, confined to ground 1 of the notice of appeal, and otherwise refuse leave to appeal.

2. Appeal allowed.

3. Quash the sentence imposed on 3 September 2020, and in lieu thereof sentence Mahmoud Ahmad to a total sentence of 6 years, comprising a non-parole period of 4 years and 6 months, commencing 20 March 2017 and expiring 19 September 2021, with a balance of term of 1 year and 6 months commencing 20 September 2021 and expiring 19 March 2023.

4. The first date on which the applicant will be eligible for parole will be 20 September 2021.

5. In accordance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), it is noted that the offence for which the applicant is sentenced is one to which the statute applies, with the possibility that the applicant will be detained in custody after the expiry of the sentence in accordance with that statute.

Catchwords:

CRIMINAL LAW – sentence – appeal against sentence – guilty plea to manslaughter – applicant sentenced on basis of agreed facts concerning applicant’s involvement in gunfight – no error in failing to give sufficient weight to remorse – no error in failing to find special circumstances – sentencing judge accepted offender had provided assistance by explaining his involvement in the gunfight but declined to discount sentence – reasons did not comply with Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 – offender resentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 44

Cases Cited:

Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61

Buckley v R [2021] NSWCCA 6

Burrows v R [2017] NSWCCA 45

Casey v R [2015] NSWCCA 142

Cioban v R [2003] NSWCCA 304; 139 A Crim R 265

CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

JBM v The Queen [2013] VSCA 69

Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73

R v AA [2017] NSWCCA 84

R v Ahmad [2020] NSWSC 1195

R v Burke [2002] NSWCCA 353

R v Ellis (1986) 6 NSWLR 603

R v Forbes [2011] NSWSC 1547

R v Lulham [2016] NSWCCA 287; 263 A Crim R 287

R v Nguyen [2002] NSWSC 536

R v Sara [2020] NSWCCA 119

Raad v R [2011] NSWCCA 138; 220 A Crim R 471

SZ v R [2007] NSWCCA 19; 168 A Crim R 249

Thach v R [2018] NSWCCA 252

Category:

Principal judgment

Parties:

Mahmoud Ahmad (Applicant)
Crown (Respondent)

Representation:

Counsel:
D Dalton SC (Applicant)
M Kumar (Respondent)
Solicitors:
Lawyers Corp Pty Ltd (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/132271

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2020] NSWSC 1195

Date of Decision:

03 September 2020

Before:

Button J

File Number(s):

2016/132271

Judgment

1. THE COURT: Mr Mahmoud Ahmad seeks leave to appeal from a sentence of imprisonment for 7 years with a non-parole period of 5 years and 3 months imposed following his plea of guilty to the manslaughter of Mr Safwan Charbaji, who was fatally shot in the course of a gunfight which occurred on a public street in Condell Park, Sydney on Saturday 9 April 2016, around 1pm, outside premises of a business owned by the applicant’s brother. No fewer than 14 fired cartridge cases were recovered from the scene. The gunfight occurred after an affray between two groups of men, referred to in the statement of agreed facts as the “Ahmad group” and the “Elmirs”.

2. The procedural background is most unusual, and is central to the principal ground argued on appeal. The affray and the shooting were partially captured on CCTV. The applicant was an active participant, although originally he did not possess a firearm. He took a semi-automatic revolver from a wounded associate. It is not clear from the footage, but the applicant accepted that he fired one warning shot after there had been an exchange of shots between the two groups. The sentencing hearing, and the appeal in this Court, proceeded on the basis that the applicant did not fire the shot which killed the victim. The sentencing judge proceeded on the basis that the man who did, who was the applicant’s brother, was killed, violently, three weeks later. (The sentencing judge was told that no prosecution has been brought in relation to that offence.)

3. The applicant fled Australia to Lebanon, but returned and was arrested on 20 March 2017 and charged with murder. He was refused bail. The sentencing judge recorded that for many months the Crown case was that the applicant had been the man who shot and killed Mr Charbaji. The Crown conceded that that was not so. His Honour also recorded that it was the applicant who first broached the topic of a plea to manslaughter, to which in due course the Crown agreed. In that way, what the primary judge described as a “difficult sentencing exercise” proceeded on the basis of very short written and oral submissions and a short statement of agreed facts.

4. The latter are best reproduced in their entirety:

“At about 1pm on Saturday 9 April 2016 there was an affray which included gunfire between two groups of men outside the A Team Bodyworks business at 19 Ilma Street Condell Park. That business is the southern side of the street, and was then owned by Walid AHMAD, the brother of the offender. For ease of reference, that person will be referred to as Walid, and those generally associated with Walid AHMAD as “the Ahmad group.”

The offender arrived near noon before the affray and gun battle. He came in a white Toyota Hilux ute (YCH37F) which was double-parked on the southern side of the street outside the A Team Bodyworks. The accused arrived and shortly after walked into A Team Bodyworks. There is no evidence that he arrived so as to be involved in a dispute.

The deceased Safwan CHARBAJI, aged 32 years, was associated with another group of men who attended the scene in a silver Camry AZ26CO just shortly before the affray broke out. All of the men who attended the scene had otherwise previously been known to be friends before the fight broke out spontaneously at the scene. The other group, who for ease of reference will be referred to as the “Elmirs” and included the deceased, arrived armed with guns. The ensuing argument involved variously 8 to 9 men in a group on the northern side of the street. It was, for the most, jostling as between various men. The offender was actively involved in that interaction, at times being restrained by another man present. The deceased was also an active party in it. This interaction continued for about 2 and a half minutes, before the Ahmad group crossed the road back to the southern side.

Immediately after this, a gun battle ensued. The offender played no part in the gun battle. During this, the deceased Safwan CHARBAJI (in a white T shirt), took cover with an associate, Fawaz ELMIR behind a Holden Astra AN15SV on the northern side of the street. The deceased handed ELMIR a pistol. ELMIR then fired a number of shots over the roof of the Holden Astra in a generally southern direction towards number 19 The A Team Bodyworks. Walid also fired several shots in the direction of the ELMIRs. Then gun battle appeared to come to an end when Abdullah EL MASRI, a member of the Ahmad group, was shot and fell to the ground on the southern side of the street outside number 17 Ilma Street. It is not suggested that the offender knew of the presence of firearms until they were produced, as described.

The deceased and ELMIR stood up from where they were taking cover behind the Holden Astra and walked west to the silver Toyota Camry AZ26CO which was parked at the kerb on the northern side of Ilma Street, opposite number 19 The A Team Bodyworks. The deceased sat in the front passenger seat of the Toyota Camry, whilst ELMIR got into the driver's seat. As these events took place, the offender approached Abdullah EL-MASRI who lay wounded from a gunshot wound, on the southern kerb of Ilma Street. He took a revolver EL-MASRI had been holding and walked briskly towards his car to leave the scene. In taking possession of the revolver, the offender continued to participate in an affray with Walid AHMAD. He did so knowing that Walid was at that time armed with a Glock pistol and he had fired shots previously. He was then aware of the possibility that a person could be unlawfully killed. He saw ELMIR point a pistol out of the driver's window of the Camry, in the general direction of the offender. As a result of that threat, the offender fired a “warning shot” above the Camry. At this time, Walid fired three shots, two of which entered the Camry through the front window, killing the deceased, who was sitting in the front seat. Walid did so believing this was necessary in self-defence. Objectively, it was not.

The offender immediately got into the driver side of the white Toyota Hilux ute and drove away west and out of the western end of Ilma Street.

Almost immediately after these shots into the windscreen, the Toyota Camry was driven to Bankstown hospital with the deceased Safwan CHARBAJI in the front passenger seat with a “bullet” in his head. He was pronounced dead shortly after.

Ilma Street Condell Park is a light industrial area. As can be seen in CCTV footage, one person affiliated with a nearby business ran inside upon hearing gunfire.

A few seconds before the deceased was killed, a man unconnected with the parties, drove his car containing his wife and two young children through the street. The man saw a firearm and heard the shots fired. A total of 14 fired cartridge cases were found at the scene, having been ejected through the exchange of fire.”

The reasons of the primary judge

5. The sentencing judge reserved his decision and published written reasons on 3 September 2020: R v Ahmad [2020] NSWSC 1195. In what follows in this section, we shall only summarise those portions of his Honour’s reasons as are sufficient to explain the grounds of appeal.

6. His Honour summarised what emerged from the agreed facts and the procedural history mentioned above, and articulated the (agreed) basis on which the applicant pleaded guilty to manslaughter. That basis had two components. First, Mr Walid Ahmad had believed that it was necessary to fire his pistol in order to defend himself, but that belief was not objectively reasonable. Secondly, the applicant when taking part in an affray as a principal in the first degree, including after he had armed himself with and discharged a revolver taken from his wounded associate, was likewise guilty of manslaughter based on the doctrine of an extended joint criminal enterprise. Although the affray arose spontaneously, it was accepted that the applicant foresaw the possibility of someone being unlawfully killed.

7. The sentencing judge was acutely conscious of the difficulties of sentencing for manslaughter, an offence covering a wide range of offending conduct, and in particular the difficulties when extended joint criminal enterprise principles were applied to that offence. None of those aspects of his Honour’s reasons was the subject of challenge in this Court.

8. It had been agreed that a discount of between 15 and 20% for the utilitarian value of the applicant’s guilty plea should be given, and his Honour determined to give a discount of 20%. The first ground of appeal concerned a further discount, described in submissions before the sentencing judge as an “Ellis discount”. This was introduced in the first paragraph of senior counsel’s written submissions as follows:

“It is submitted that the offender had very real prospects of being acquitted if he went to trial. At first on a murder charge he was alleged to have been the shooter who fired the lethal shot and it was only after submissions were made to the Director that it has been accepted that it was his brother, Walid, who in fact fired the fatal shot. Also he has volunteered in his submissions to the Crown that he deliberately fired a warning shot above the vehicle because the driver was pointing a gun at him out of the driver's side window as he was driving towards him. This was unknown to the prosecution and has formed the basis of his liability in joining in the affray in self-defence which he has accepted was objectively excessive on his brother's behalf. There is accordingly a significant Ellis component to his plea of guilty.”

9. The sentencing judge dealt with this at [26]:

“Senior counsel for the offender spoke of a further discount, in the sense of the accused having ultimately admitted to an offence that, at the least, would have been very difficult for the Crown to prove on the evidence available to it. I accept that that is the case, but do not propose to provide a further specific discount in that regard. Rather, I have reflected upon the proposition with regard to the question of remorse, a topic to which I shall return later.”

10. Ground one of the appeal was that the sentencing judge had “failed to attribute a specific discount in accordance with the principles of assistance to the authorities with respect to the subject offence as dealt with” in R v Ellis (1986) 6 NSWLR 603 at 604 and s 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

11. As developed in oral submissions, senior counsel for the applicant embraced the proposition that if his Honour were to decline to give a discount for assistance, he was obliged pursuant to s 23(2) of the Crimes (Sentencing Procedure) Act to have regard to factors in that subsection.

12. Having indicated that he would return to the topic when dealing with remorse, his Honour addressed remorse at [42]-[43] as follows:

“[42] In similar vein, as for remorse, the plea of guilty to manslaughter is undoubtedly a public acceptance of responsibility for a fatality, in circumstances where a custodial sentence is inevitable, and the offender must have been made aware that more time in custody was a distinct probability.

[43] I also accept that, in light of everything that has happened, including to himself and his own family, the offender bitterly regrets involving himself in the events that unfolded on the street near the business of his brother that afternoon four years ago. In all of the circumstances that I have recounted however, in particular not having heard from the offender himself, I do not go further than that.”

13. Ground two complained that “his Honour has failed to attribute sufficient weight to the Applicant’s remorse in all the circumstance”.

14. The sentencing judge declined to find special circumstances, for the purposes of s 44 of the Crimes (Sentencing Procedure) Act, on the basis that he did not consider that “he is in need of an extended period of supervision, above and beyond that derived from statute”: at [46]. His Honour added that in any event, he regarded the non-parole period as “the minimum appropriate for this example of the offence of homicide”.

15. Ground three maintained that there was error in failing to find special circumstances.

16. His Honour concluded as follows:

“[50] In short, this matter has constituted a difficult sentencing exercise, because of its sharply countervailing features.

[51] On the one hand, a man who has previously been imprisoned for many years for gun violence is to be sentenced again for his role in that kind of offending, this time with fatal consequences. I do not doubt that the general public abhors such offending, and calls upon the criminal courts to do what they can to stamp it out. And without having heard from any member of the family of the deceased, I proceed on the basis that his sudden death has had devastating consequences.

[52] On the other hand, the offence is manslaughter, not murder; the role of the offender was attenuated, indirect, unexpected, and spontaneous; he has accepted his responsibility when able; he is highly thought of by a large and diverse group of people; and things seemed to be proceeding well in his life, perhaps for the first time, when events tragically intervened.

[53] The starting point that I have adopted is, I am well aware, an unusually short one for an offence of manslaughter committed by way of a semiautomatic pistol, though not, with respect, as short as that for which senior counsel for the offender contended. That is because, despite all that has been said on behalf of the offender, I cannot accept that any lesser sentence would adequately reflect the objective gravity and catastrophic consequences of the events of that Saturday afternoon.

[54] My starting point is a head sentence of imprisonment for nine years. I apply a 20% utilitarian discount to that, arriving (after some rounding down) at a head sentence of imprisonment for 7 years. 75% of that period leads to a non-parole period of 5 years 3 months, all of which is to be subject to a full backdate.”

17. Ground four of the appeal was that the sentence was manifestly excessive.

Leave should be refused in relation to proposed grounds two and three

18. It is trite that review of the exercise of the sentencing discretion is confined to the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40. It is well established that merely claiming that insufficient weight has been given to a factor is not a proper ground of appeal: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16]. Criticisms of grounds of appeal formulated in this manner are numerous and longstanding; see for example the authorities in Burrows v R [2017] NSWCCA 45 at [51]-[52]. As was said in R v Sara [2020] NSWCCA 119 at [114], such a ground “subverts the fact that the assessment of the significance or importance of various pieces of evidence is both a matter for the particular sentencing judge to consider as well as something about which informed minds might reasonably differ”. Indeed, when pressed about this, Mr Dalton SC came close to conceding, if he did not concede, that this ground in substance was a particular of why the sentence was said to be manifestly excessive. We would not grant leave to appeal on ground two.

19. Similarly, a failure to find special circumstances, without more, does not give rise to reviewable error. It was open to the primary judge to conclude that the one year and nine months during which the applicant might be released upon parole was adequate in order for his rehabilitation to be supervised. The applicant submitted that “his Honour has erred in not allowing a longer-than-usual period of supervision to ensure the Applicant receives ongoing counselling to maintain his pre-offence progress towards rehabilitation”, so as not to allow himself to become involved in poor decision making “that may result in involvement in spontaneously violent confrontations”. In oral submissions attention was placed upon earlier breaches of parole as a further reason supporting a finding of special circumstances. We do not agree. The applicant also relied upon the more limited contact between the applicant and his family by reason of the COVID-19 pandemic, and the reasoning of Adams J in Raad v R [2011] NSWCCA 138; 220 A Crim R 471 at [56]-[57]. The latter was in dissent, and on this point. The majority of the Court saw no error in declining to find special circumstances, and in a case where the subjective case was described at [82] as “very powerful”.

20. The decision whether or not to find special circumstances is peculiarly for the sentencing judge. It is not enough merely to point to factual matters which are capable of constituting special circumstances, a point which was made in Casey v R [2015] NSWCCA 142 at [37]. That in substance is the sole point made by the applicant’s submissions.

18. The ultimate constraint is that the non-parole period must itself appropriately reflect the criminality involved in the offence: see R v Lulham [2016] NSWCCA 287; 263 A Crim R 287 at [55]; Thach v R [2018] NSWCCA 252 at [43]. That principle was applied, expressly, by the sentencing judge.

19. No reasonably arguable appellable error is shown. We would not grant leave to appeal in relation to ground three.

Proposed ground one

23. The majority of the submissions in this Court were directed to ground one. In Ellis at 604, Street CJ referred to “the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence”. His Honour said:

“The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”

24. The principles in Ellis are now embodied in s 23 of the Crimes (Sentencing Procedure) Act: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [41] and [71]. Sections 23(1) and (2) provide as follows:

“(1)  A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2)  In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters—

(a)    (Repealed)

(b)  the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c)  the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d)  the nature and extent of the offender’s assistance or promised assistance,

(e)  the timeliness of the assistance or undertaking to assist,

(f)  any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g)  whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h)  any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i)  whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j)  (Repealed).”

25. If the power conferred by s 23(1) to impose a lesser penalty is exercised, then s 23(3) requires that the lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. This is the “bottom line beneath which a sentence cannot legitimately be set” to which Howie J referred tin SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [4]; see also Buckley v R [2021] NSWCCA 6 at [85]-[87]. Further, s 23(4) requires the extent of the reduction to be stated. As was noted in R v AA [2017] NSWCCA 84 at [43], that was a change from the position previously adopted by this Court.

26. The present case is far removed from the paradigm example of a person who confesses to offending which is entirely unknown to authorities. Images of the applicant participating in an affray and wielding a firearm were captured on CCTV and he had been charged with murder.

27. The present case was also unusual, and gives rise to a substantial difficulty in resolving this appeal, insofar as there is an evidentiary vacuum. The applicant did not provide a statement of his assistance. The Court was told that the applicant made admissions on a without prejudice basis in the course of agreeing to the facts on which he would be sentenced for an offence of manslaughter following his guilty plea. But there was no evidence of what precisely those admissions were, as opposed to what could be established on the Crown case. There was nothing resembling a letter from investigating authorities identifying the nature of the assistance provided or its value to ongoing investigations and prosecutions. Indeed, save for one matter, there is no evidence before this Court (or before the sentencing judge) as to the strength of the Crown case.

28. Perhaps for this reason, the aspect of the agreed facts which attracted greatest attention in this aspect of the applicant’s case was the proposition that he himself fired a warning shot above the Camry, at around the time his brother shot the deceased through its windscreen.

29. Before the sentencing judge, the transcript records the following submission:

“DALTON: ... I note that the portion of the agreed facts, which demonstrates that ... the offender not only picked up a firearm from the then shot Mr El Masri, who had been shot by Mr Elmir, whose firearm had been provided by the deceased, but that he actually fired a warning shot above the Camry, because the driver was pointing a firearm at him, was provided by the offender No one else. He is seen with the firearm in his hand raised, but there were no shells found from that firearm. ... That firearm was originally, it would appear from vision available, was fired a number of times by El Masri before he was shot and no shells were found, because it was a revolver. It retained the spent shell. Accordingly, the Crown could not establish that he entered the affray, insofar as he was prepared to fire a shot without his admission.”

30. The tenor of the submission was not merely that the Crown case was misconceived, but also that without the applicant’s admission of firing a warning shot, the Crown case would fail. This was elaborated orally in this Court.

31. The shots fired by the applicant and his brother are not shown on the CCTV footage. We agree that this Court can infer that that aspect of the agreed facts was sourced to information provided by the applicant, which the Crown otherwise would have been hard pressed to establish. But we do not accept the submission that the admission that the applicant discharged a warning shot from the firearm in his hand was a critical element in the applicant’s guilt.

32. The CCTV footage shows that the applicant was an active participant in the affray, which, after two or three minutes, escalated into an exchange of gunshots. Even after shots began to be exchanged, the applicant did not leave the scene. To the contrary, he armed himself with a firearm and remained on the scene, continuing to participate in a criminal enterprise. The Crown submitted that he could be seen, gun held in outstretched arm, at 4:51 on CCTV. That appears to be the case, and no contrary submission was made by the applicant. We do not regard the fact that discharging the firearm he had armed himself with was necessary for the principles of extended joint criminal enterprise to be engaged. That is not to deny that other aspects of the Crown case might prove problematic.

33. Voluntary disclosure of information not available to the Crown may constitute assistance for the purposes of s 23, even if the Crown is already aware of the offence and even if the offender has been charged. It is clear from the terms of s 23(2)(i) itself that the assistance to which s 23 refers extends to assistance concerning the very offence for which the offender is being sentenced. The applicant relied on the reasoning in R v AA at [37]-[51], but it was there considered that partial admissions given to investigating police of sexual offending, which were about to be reported in any event, did not warrant any lesser penalty: see at [50]. R v AA may usefully be contrasted with JBM v The Queen [2013] VSCA 69, where Nettle JA with whom Priest JA agreed said at [42]-[43]:

“It is true, in one sense, that the appellant’s offences were already ‘known to police’. As a matter of reality, however, they were ‘known’ only from a theoretical perspective. What the police had been told could not possibly have formed the basis of any prosecution. It was likely that the appellant would have appreciated that fact.

It may be correct that the appellant did not, in this case, tell the police anything that they did not already suspect. However, it is one thing to have been told by a child of three about something that may have happened. It is altogether another to be able to make any forensic use of such information. The appellant completed the picture. Indeed, he drew it. He did so voluntarily, and without any prevarication on his part. That, of itself, entitled him to a significant discount, greater than that which would normally be accorded to a plea of guilty.”

34. In JBM, the issue arose upon as an aspect of a ground of appeal that a sentence of 7 years imprisonment with a non-parole period of 4 years and 6 months was manifestly excessive for two representative counts of sexual offending upon the offender’s three year old niece. The offender was resentenced to a term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and six months. But in JBM, after the niece had participated in a recorded interview, the appellant admitted the offending at a police interview, at a time when “he must have been well aware of the fact that the complainant would hardly have been able to put together a coherent account of anything that had been done to her” (at [8]).

35. In a sense every guilty plea provides assistance to the Crown. If a guilty plea is accepted, the Crown will secure a guilty verdict, without the risks attendant upon a criminal trial. But that is not sufficient to engage s 23. As was said in R v Burke [2002] NSWCCA 353 at [32], “A full confession and co-operation with the investigating authorities from the start does not entitle an offender to a discount over and above the discount for a plea of guilty.”

36. If an offender seeks to obtain a discount for assistance over and above the utilitarian discount for a guilty plea, then s 23 will apply and it will be incumbent to establish precisely what information or assistance the offender has provided and its value, truthfulness, completeness, reliability, timeliness and the various other matters to which the Court must have regard in s 23(2). The difficulty in the present case is that there is very little by way of evidence to establish what the applicant actually provided, as opposed to what was already within the Crown case. There are substantial difficulties in making the findings required by s 23(2).

37. The qualification to the absence of evidence as to the strength of the Crown case and the value of the assistance provided by the applicant is what flows from the submissions made to the sentencing judge by the Crown. It is on the basis of those submissions that it may be accepted that the applicant’s plea was to an offence which would be difficult for the Crown to establish. The Crown made a written submission to the sentencing judge to that effect:

“It is accepted by the Crown that the case for Manslaughter was not a particularly strong one. It takes little imagination to see how the offender might have conducted his case in the context of a trial, should he have chosen to do so.”

38. In oral submissions, the Crown reiterated that “he did plead guilty in circumstances which [are] to be contrasted with simply a plea which is a recognition of the inevitable”. We shall return to the significance of these submissions below.

39. Responding to the ground as formulated, the Crown’s written submissions maintained that it was open to the sentencing judge to decline to find that the admission that the applicant had fired a warning shot amounted to assistance within the meaning of s 23. The Crown also maintained that, even if error were disclosed, no lesser sentence should have been imposed given the matters contained in s 23(2). This was because, so it was asserted, the assistance was only given long after he had been charged, in “without prejudice” communications in the context of a guilty plea, rather than in a recorded or signed statement, such that its truth and reliability could not be tested. Although we did not understand these matters to be in dispute, there was no evidence of them, a point to which we shall return.

40. We do not accept that s 23(1) was not engaged. In fairness to the sentencing judge, it should be emphasised that neither in the written nor oral submissions was any mention made of the obligation incumbent upon the Court to have regard to the matters in s 23(2), although s 21A(3)(m) was invoked, which in turn refers to s 23. The issue was whether the applicant had “assisted ... in proceedings relating to the offence concerned”. The sentencing judge expressly accepted that the applicant had admitted to an offence that would, at the least, have been very difficult for the Crown to prove. That reflected a written submission that had been made by the Crown at trial. It follows that the applicant had provided assistance. That conclusion does not stand in the way of a sentencing judge taking the view that no additional discount, over and above the mitigating factors in s 21A, should be allowed following a plea.

41. The primary judge recognised that a submission had been made that a separate discount, over and above the discount for the early plea, should be ordered. His Honour rejected the submission. But in circumstances where such a submission is made, and a finding is made that assistance is in fact given, more needed to be done. If a court is to reduce the sentence it would otherwise impose by reason of an offender’s assistance, regard must be paid to the mandatory considerations in s 23(2), and the court must specify what that discount is. It may be less obvious, but if a court chooses not to impose a lesser penalty for assistance given, it remains necessary to have regard to the matters identified in s 23(2). The sentencing judge did not do this. The point was made in R v AA at [45]:

“The end result is that, if sentencing judges are considering imposing a lesser sentence on account of the conduct of an offender in disclosing previously unknown offences, then they must consider the factors in s 23(2) in determining whether to proffer the discount (Williamson v R [2015] NSWCCA 250 at [68]) and, if so, its level. They also must ensure that the penalty imposed is not disproportionate (s 23(3)) and they must specify the level of discount in accordance with s 23(4).”

42. We do not accept the Crown’s fallback submission that, in effect, such assistance as was provided was so slight that no discount was warranted.

43. In this respect, there is the difficulty earlier flagged, which was raised during the hearing, affecting both applicant and Crown. There was no evidence indicating how valuable the assistance by the applicant was. Indeed, there was little to indicate what the Crown could establish independently of the agreed facts. The applicants’ more general point was that the facts he admitted for the purpose of sentencing, or many of them, could not have been established by the Crown if he had contested them at trial. That presents an obstacle to the Crown’s fallback submission in answer to the first ground, and it also presents difficulties for this Court in resentencing.

44. This was raised with both counsel during the hearing. Both accepted that this Court would treat the written and oral submissions of the Crown before the sentencing judge in effect as admissions. We proceed on the basis that there was a relatively weak Crown case, the weakness extending to difficulties in negativing self-defence on the part of the applicant’s brother when he shot the deceased.

45. It follows that the assistance provided by the applicant was not so negligible as to be disregarded. This ground is made out.

Proposed ground four

46. This Court did not receive full submissions on ground four. The sentencing judge stated at [53] that the starting point of nine years was “unusually short” for manslaughter committed by way of semi-automatic pistol. Senior counsel for the applicant submitted that was simply wrong, as indeed is implicit in a submission that the sentence was manifestly excessive. That may or may not be so, but it is not demonstrated by pointing to three authorities on manslaughters involving the use of firearms in which lesser sentences have been imposed. The conclusion that a sentence is manifestly excessive “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

47. The applicant must be resentenced by reason of the first ground of appeal. While we would start with a somewhat lower undiscounted starting point, it does not follow that the sentence imposed by the sentencing judge warrants the conclusion that there must have been some error. The maximum penalty was imprisonment for 25 years. The range of circumstances which can lead to a sentence for manslaughter is very broad, and the fact that the applicant’s guilt derives from a joint criminal enterprise makes a conclusion of manifest excess all the more problematic.

48. Whether or not ground four is established will have no bearing upon the outcome of this appeal or the sentence imposed on the applicant. In those circumstances, it is not necessary to address it, which is an approach previously taken by this Court: see for a recent example Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 at [58]. We shall however have regard to the submissions made in support of this ground in the course of resentencing.

Resentencing

49. There is no occasion to depart from the following conclusions reached by the sentencing judge, and neither the applicant nor the Crown invited this Court to do so separately from what has been said above as to the grounds of appeal.

Objective seriousness

50. First, the circumstances of the affray and gunfight, and the applicant’s involvement, are reproduced above. As the sentencing judge recorded at [11]:

“In taking possession of that weapon, the offender was continuing his participation in the affray. And he was doing so aware not only that his brother was armed at the time with a semiautomatic pistol, and that he had discharged it shortly beforehand, but also aware that there was a possibility that a person could subsequently be unlawfully killed.”

51. Secondly, the applicant’s guilt for manslaughter arises from a state of mind that arose spontaneously, and existed for a matter of minutes at most (see at [17]).

52. Thirdly, the fact that a gunfight broke out in broad daylight in a Sydney suburb, between two groups both of whom were armed with firearms, is extremely serious, and is apt to cause all members of the community to feel unsettled, anxious and afraid (see at [19]). Further, as the sentencing judge put it at [20],

“[F]ar from immediately cowering or fleeing in fear, the eventual response of the offender was to divest a wounded associate of a handgun, and to proceed to fire it, even if harmlessly into the air, and in an effort to depart.”

53. Tending against the matters summarised in the previous paragraph, are the matters recorded by the sentencing judge at [21]: (a) the offender was not the shooter; (b) the shooter himself is to be thought of as guilty of manslaughter, not murder, and was acting in excessive self-defence; (c) the offence in which the offender actively took part personally was little more than a public pushing and shoving; (d) his criminal liability is based upon foresight of a possible outcome, not an intention or desire that it occur; and (e) the involvement of the offender in this tragedy was spontaneous and unplanned.

53. The sentencing judge regarded this as a serious example of the offence of manslaughter. We respectfully agree.

Subjective case

55. The subjective case was as follows, which is taken from the reasons of the sentencing judge at [29]-[43].

56. The applicant turned 38 a month ago. He has been imprisoned for almost 4 years, including some 3½ years bail refused. He has the benefit of a deal of evidence from family members and friends, the gravamen of which is his being a loving husband to his wife, a devoted father to his four children, and a dutiful son to his parents, who are elderly and unwell. He is described as having helped many people through charity work in his local mosque and community centres, and has spent many hours helping troubled youths. The sentencing judge summarised the evidence, fairly, to the effect that the applicant is “well known as a person of charity, commitment to community, faith, courtesy, and diligence”. All that should be accepted for the purpose of imposing sentence, notwithstanding his criminal record.

57. The psychological and psychiatric evidence was to the effect that the applicant had a physically tough upbringing as a result of the strict discipline of his father, and enjoyed few material privileges as a child and teenager, in the aftermath of the civil war in Lebanon. The applicant left school at an early stage, with very limited literacy. He was prescribed calming medication many years ago, but has illegally abused cannabis and prescribed medication over the years, at least partly in order to alleviate a chronic anxiety condition deriving from childhood hardships. He had difficulties for a long time in settling into regular employment. In the years before the offence, the applicant worked in a family-owned recycling business, abstaining from significant drug abuse, enjoying life with his family, and generally making sound progress.

58. The medical evidence was that the applicant suffered from anxiety, depression, and a substance use disorder. The sentencing judge acknowledged the force in the applicant’s counsel’s submission that much that has gone wrong in the life of the offender as an adult can be traced back to things that started to go wrong, through no fault of his own, when he was a child.

59. The applicant has offended over the last two decades. One of his first offences was an offence of violence, assault occasioning actual bodily harm. In 2003, while still a very young man, he was imprisoned for an affray, albeit for only one month. On 3 September 2005, aged 22, the offender committed two offences of firing an unauthorised firearm in a manner likely to injure persons or property. The sentencing judge proceeded on the basis of what he had been told by counsel from the Bar table that the weapon was an air rifle, and accepted that the imposition of a sentence by the Local Court of only six months suggested that the incident was not overly serious. Even so, the fact remains that some 15 years ago the applicant was first imprisoned for an offence to do with firearms.

60. Eight days later, the applicant committed the offences of possessing a loaded firearm in a public place, firing a firearm at a dwelling house with disregard for safety, and firing a firearm in a manner likely to injure persons or property. Serious offences of a similar kind were also taken into account on sentence. The sentencing judge recorded that the applicant went into custody on 17 February 2006, and was released to parole exactly 5 years later, on 15 February 2011. He was returned to custody by the State Parole Authority on 17 February 2012, presumably for breaching parole, and was released again on 16 February 2013, by that stage having served six full years. Thereafter he served his parole period in the community without trouble, and it had expired on 15 August 2014, 18 months before the commission of the offence giving rise to this appeal.

61. The sentencing judge observed at [38], and we agree, that:

“[T]he offender has committed serious offences to do with firearms in the past, and has been sentenced to imprisonment for them, on one occasion for a lengthy period. And now he has accepted his indirect criminal liability for a fatality committed by way of a semiautomatic pistol at the conclusion of a gunfight in which many shots had been fired.”

62. The sentencing judge also acknowledged at [40] the positive aspects of the sentencing case, with which we agree, as follows:

“As for the future, I accept that there were positive signs developing in the life of the offender before the calamitous events of 9 April 2016. I also accept that his custodial record, whilst hardly exemplary, can be explained in part by the difficulties of a nicotine addict being called upon to give up smoking in gaol, the general pressure of being in maximum security, and the extreme stress of having a murder charge hanging over one’s head. I have also reflected in this context, and more generally, on the delay experienced by the offender in the resolution of this matter by the criminal justice system. More recently, of course, custody has become even more onerous than usual, due to the current public health emergency, and I proceed on the basis that its extra restrictions on contact with loved ones and the outside world generally will continue into the future.”

63. The conclusion was that “any optimism about the future should be guarded and measured, rather than confident and unbounded”. We agree.

64. The sentencing judge accepted that the applicant bitterly regretted involving himself in the events giving rise to the shooting, and that his guilty plea was a public acceptance of responsibility for a fatality, in circumstances where a custodial sentence was inevitable. His Honour did not receive evidence from the applicant. Nor did this Court. We see no reason to depart from his Honour’s cautious finding concerning remorse.

Imposition of sentence

65. We have derived limited assistance from the decisions to which the Court was referred: R v Forbes [2011] NSWSC 1547; R v Nguyen [2002] NSWSC 536; Cioban v R [2003] NSWCCA 304; 139 A Crim R 265. The first decision, which was the most prominent in the parties’ submissions, also turned on liability for manslaughter by reason of a joint criminal enterprise, but in circumstances where the offender had caused the group of men to gather with a view to causing actual bodily harm on the deceased. The offender was present when the firearm was discharged with fatal effect, but was not himself armed with, let alone did he discharge, a firearm. The offender was 18 at the time of the offence and had no prior criminal history of any sort. The undiscounted starting point was 6 years.

66. Cioban includes the observation at [71] that “the sentences for manslaughter vary greatly because of the markedly different circumstances in which the offence is committed. Little useful guidance can be obtained from analysing sentences where the circumstances differ”. The present appeal well illustrates the point.

67. Bearing all of the above in mind, we would nominate a starting point of 8 years. That should be reduced by 20% for the utilitarian value of the plea, and 5% for the assistance. We accept that the applicant provided assistance to the Crown, which otherwise did not have a strong case, and we shall proceed on the basis that what the applicant said as to his involvement was truthful and complete and reliable. None of the other elements of s 23(2) is material. It is not necessary to speculate to what extent the applicant’s assistance contributed to what the Crown could establish save that it was material, in accordance with the Crown’s written submission at first instance. It is not necessary to do so because this Court’s power to impose a lesser penalty is circumscribed by s 23(3), such that the lesser penalty must not be unreasonably disproportionate to the nature of the circumstances of the offence. We do not think any lower sentence would reflect the seriousness of the offending. The head sentence is therefore 6 years; but for the assistance, it would have been 6 years and 4 months. We would not make a finding of special circumstances. The sentence should be backdated to 20 March 2017, when the applicant was first incarcerated.

68. Accordingly, the Court’s orders are:

1. Grant leave to appeal, confined to ground 1 of the notice of appeal, and otherwise refuse leave to appeal.

2. Appeal allowed.

3. Quash the sentence imposed on 3 September 2020, and in lieu thereof sentence Mahmoud Ahmad to a total sentence of 6 years, comprising a non-parole period of 4 years and 6 months, commencing 20 March 2017 and expiring 19 September 2021, with a balance of term of 1 year and 6 months commencing 20 September 2021 and expiring 19 March 2023.

4. The first date on which the applicant will be eligible for parole will be 20 September 2021.

5. In accordance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), it is noted that the offence for which the applicant is sentenced is one to which the statute applies, with the possibility that the applicant will be detained in custody after the expiry of the sentence in accordance with that statute.

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Decision last updated: 12 March 2021