Ahmad v R

[2006] NSWCCA 177

CITATION:	AHMAD v REGINA [2006] NSWCCA 177
HEARING DATE(S):	18 May 2006
JUDGMENT DATE:	5 June 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Hislop J at 48; Johnson J at 49
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – Appeal against sentence – manslaughter – malicious wounding – grievous bodily harm – assault in company – self-defence – agreed statement of facts – plea agreement – agreed non-parole period – agreed discount for plea – whether judge should have sentenced consistently with the plea agreement – whether judge made a finding contrary to the agreed statement of facts – whether sentence was appropriate having regard to objective criminality and subjective circumstances – whether sentences were manifestly excessive – whether the Crown on appeal is bound by the position of the crown at first instance
CASES CITED:	Australian Prudential Regulation Authority v Derstepanian & Anor [2005] FCA 1121 Australian Securities and Investment Commission v Elm Financial Services Ltd & Ors (2005) ACSR 411 Australian Securities and Investment Commission v Vizzard (2005) 219 ALR 714 GAS v The Queen (2004) 217 CLR 198 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 R v AEM Snr [2002] NSWCCA 58 R v Allpass (1993) 72 A Crim R 561 R v Dibb [2003] NSWCCA 117 R v Forbes [2005] NSWCCA 377 R v Holmes & Ratu [2003] NSWCCA 258 R v Nguyen [2005] NSWSC 600 R v Simpson (2001) 53 NSWLR 704 R v Thomson; R v Houlton (2000) 49 NSWLR 383
PARTIES:	Walid Mohamad Ahmad (Appl) The Crown
FILE NUMBER(S):	CCA 2006/348
COUNSEL:	I Barker QC (Appl) D Arnott SC (Crown)
SOLICITORS:	Adam Houda, LawyersCorp Pty Ltd (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2004/2345
LOWER COURT JUDICIAL OFFICER:	Howie J
LOWER COURT DATE OF DECISION:	9 September 2005

2006/348

McCLELLAN CJ at CL
HISLOP J
JOHNSON J

MONDAY 5 JUNE 2006

AHMAD, Walid Mohamad v REGINA

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to a total of four offences contained on two indictments:

2 Indictment One - Manslaughter

Crimes Act 1900: s 18(1)(b): maximum penalty 25 years imprisonment.

The applicant pleaded guilty to this charge on 4 July 2005. The offence having occurred on 11 June 2002.

3 Indictment Two:

Count One: maliciously inflict grievous bodily harm;
Crimes Act 1900: s 35(1)(a): maximum penalty 7 years:

Count Two: maliciously wounding;
Crimes Act 1900: s 35(1)(a): maximum penalty 7 years;

Count Three: assault in company occasioning actual bodily harm;
Crimes Act 1900: s 59(2): maximum penalty 7 years.

4 The first count alleged on the second indictment occurred on 9 June 2002 and the second and third counts on 11 June 2002. The applicant pleaded guilty to these counts when arraigned on 23 August 2005.

5 The applicant was sentenced to an effective total term of imprisonment of ten years four months with a non-parole period of seven years. The sentence for the first count of maliciously inflicting grievous bodily harm commenced on 3 December 2002. The commencement date for the remaining sentences was delayed by one year and made concurrent with each other. Accordingly, the sentence imposed for the manslaughter count was nine years four months with a non-parole period of six years and subsumed the remaining sentences.

6 Before the sentencing hearing the representatives of the applicant and the Crown had conferred. The applicant offered to plead guilty to the manslaughter charge. An agreed statement of facts was prepared. They also reached agreement that the Crown and defence would submit that the judge should sentence upon the basis that a discount of 25% should be allowed for the plea of guilty. It was also agreed that the Crown and defence would submit that the non-parole period should be between 4 and 5 years. The sentencing judge was made aware of these agreements.

Facts

7 It is convenient to adopt the facts from the remarks on sentence where his Honour said:

“The factual basis upon which the parties ask me to sentence the offender is contained in an agreed statement of facts signed on behalf of the Crown and the offender. The facts can be summarised as follows. All of the offences for which the offender is before the Court and is to be sentenced arose from a course of conduct that commenced with an incident on 9 June 2002. On that day the offender was a security guard employed at a nightclub at Oxford Street. The nightclub was owned by relations of a person known as Hassan Ibrahim.

At about 4.30 am that morning Khaled Hammoud, who was a nephew of the deceased, tried to enter the nightclub along with two other persons. They were forbidden entry and, during a dispute that occurred at the time, one of these persons head butted the manager of the nightclub. The manager retaliated by punching this person and knocked him out. This person was conveyed to hospital but the dispute between the persons seeking entry to the nightclub and the staff continued. During the course of this argument the offender punched Hammoud once to the left side of his face knocking him out and breaking his jaw. The assault by the offender upon Hammoud, which the offender later explained as being to “discipline him”, gives rise to the charge of maliciously inflict grievous bodily harm on the second indictment. Hammoud suffered a serious injury to his jaw requiring the insertion of wires.

The deceased was on a trip to Cooma when he learnt of this assault upon his nephew by the offender. There were telephone calls between the deceased and Ibrahim in which threats were made, including a threat by the deceased that he would close down the nightclub. It was agreed that the dispute between the men would be resolved after the deceased returned to Sydney. There is evidence that the deceased was intending to seek reprisal for the assault upon Hammoud and apparently he was known to carry a firearm with him when in public.

There were in Greenacre at the time two motor repair businesses. One called Just Vans was operated by Hammoud and his brother, Abdul. The other was called Automobile Wreckers and was owned by the wife of the offender. These premises were close to one another in Claremont Avenue, Greenacre. On the morning of 11 June there was a meeting at the Just Vans premises between the offender and the deceased. It appears that they reached a truce and deferred until a later time the resolution of the differences arising from the assault upon Hammoud. There was evidence that the meeting ended in both the offender and the deceased embracing.

However, shortly after the deceased’s departure, the brother of Hammoud arrived in Claremont Avenue and verbally abused the offender. The confrontation almost came to blows until bystanders intervened to separate the two men. By this time a large number of men had gathered in the area and were exchanging insults with each other depending upon which faction they happened to support.

At about midday Mr Khalifa, a nephew of the deceased and cousin to the Hammoud brothers, was working on a van in the premises of Just Vans. He was summoned to the rear of the van where he met with a group of about 15 men, one of whom was the offender. He questioned Khalifa as to the whereabouts of the Hammoud brothers. At some stage, when his back was turned to the group, Khalifa was struck by a heavy blow to the back of his head and rendered unconscious. As a result of this attack he suffered a blackened left eye and fractures of a number of facial bones.

The assault upon this person gave rise to the charge of malicious wounding which is the second count in the second indictment. It is alleged that the offender was involved in a joint enterprise with the group of persons who confronted Khalifa and the offender’s plea of guilty acknowledges that, while he was not the person who struck the blow, he was at least a principal in the second degree to the wounding of that victim by encouraging those with him who were, according to the facts, “a group of hostile men adversely disposed to certain Just Van employees”.

The owner of the van upon which Mr Khalifa had been working at the time of his assault was also confronted by one or more of the group of men and without any provocation was struck to the ground and beaten. He suffered bruising to both eyes, lacerations to his face and a bruised wrist. The assault upon this man gives rise to the third count in the second indictment and again the Crown alleges that the offender was part of a joint criminal enterprise to assault this man and was at least a principal in the second degree to the member or members of the group who assaulted him.

At about 1 o’clock the offender rang Ibrahim and complained about the behaviour of Abdul Hammoud, blaming him for in effect disturbing the truce earlier established between himself and the deceased. The call concluded with Ibrahim agreeing to come to the repair shop to meet with the offender. There were arrangements made between various members of the two factions agreeing to meet at the Automobile Wreckers shop. Ibrahim spoke to a person named Hijazi indicating that he should come to the shop and bring the deceased. Hijazi exhorted Ibrahim to calm the situation.

At about 1.40 pm there was a heated argument between the deceased and the offender in Claremont Avenue. The deceased entered the premises of Just Vans and saw the two injured men who had been assaulted by the group accompanying the offender. The argument continued when the two men met up again a short time later as the deceased was approaching the Automobile Wreckers premises. The agreed facts contain the following account of what then happened:


‘… As he stood with his back to a red car, [the deceased] was ‘bear-hugged’ by Mahmoud Hussein an uncle of [the offender], who felt a need to restrain and calm [the deceased] after he noticed [he] appear[ed] to reach towards the waistband of his pants.

While holding [the deceased] in a ‘bear-hug’ face-to-face, Hussein was shot in the top part of his left thigh. The bullet emerged from the lower rear part of that leg. Witnesses reported hearing two loud gun shots about the time Hussein was seen to collapse to the ground. Gunshot powder residue was found on [the deceased’s] hands and the inner waistband of his pants. Four unspent .44 calibre cartridges, one of which bore a firing-pin strike mark on the rear, were found at the scene. The gun had dropped to the ground. Its cylinder might have jarred open on impact and spilled forth the unspent cartridges……..No spent cartridges have ever been recovered.’

I interrupt to note that a person named Hamze removed that weapon from the scene. He was charged with hindering police and I have sentenced him for that offence. The fact sheet states that the Crown accepts that, on the balance of probabilities the deceased possessed a firearm that he fired wounding Hussein in the leg.
The agreed statement of facts continues:

Immediately after Hussein had fallen to the ground, [the offender] produced a self-loading .38 calibre pistol from somewhere on his person and fired five rounds at [the deceased]. Five spent .38 cartridges were found at the scene. All were fired from the same gun, which has never been recovered, nor its whereabouts identified to police. [The deceased] was mortally wounded by [the offender’s] gunfire and later died in hospital from those injuries.

The offender immediately fled from the scene and evaded police until his arrest on 3 December 2002.

Dr Duflou carried out an autopsy on the deceased and observed six gunshot wounds to the chest area of the deceased, his left arm and hand. He formed the opinion that the wounds were caused by five gunshots. There were no signs of gunpowder burns, powdering or tattooing on the deceased’s wounds indicating that the shots were probably fired a short distance from the deceased.”

8 In relation to subjective matters his Honour said:

“The offender was born in Lebanon and is aged 30. He has one prior conviction in respect of possessing a prohibited drug in 2002 but that is a matter that can be disregarded for present purposes. He is married with 3 children aged 6, 4 and 2 years. I sentenced his wife for an offence of hindering police by providing them with misleading information about the whereabouts of the offender and by otherwise assisting him to avoid apprehension. Other than the offences arising from these incidents, both the offender and his wife have been worthwhile citizens in the community and there are a large number of testimonials as to the offender’s good reputation in the community. They speak highly of his work ethic, his loyalty and diligence and suggest that the conduct giving rise to the present offences is out of character.

There is a psychiatric report prepared by Dr Nielssen in evidence. The offender has never suffered any serious psychiatric illness or mental disorder. However, he has experienced a number of traumatic incidents arising from the involvement of members of his family in conflicts occurring in Lebanon before the offender migrated to Australia and he suffered some loss of hearing as a result of heavy shelling of the neighbourhood in which he lived. As a result it appears that the offender’s intellectual abilities have been diminished. He came to Australia at around the age of 16 years in 1990 and at that time was unable to speak English. Eventually he found a job as a panel beater. Apart from some minor involvement with cocaine, the offender had no problem with alcohol or drugs.

The psychiatrist believed that a head injury suffered by the offender in his childhood might have resulted in some impairment of frontal lobe function resulting in diminution of impulse control. He also thought that the exposure to trauma during childhood was likely to have resulted in an increased startle response. The psychiatrist believed that an increased level of arousal in response to gunshots was another factor contributing to the offender’s behaviour at the time of the shooting. The psychiatrist assessed the offender as having good prospects of rehabilitation.

There was also a psychological report in evidence. Tests indicated that the offender’s IQ falls in the bottom 2 per cent of the population. He was found to lie in the borderline range. The psychologist formed the opinion that the offender had difficulty in thought planning and conceptualising issues resulting in a diminished capacity to fully think through problem situations free from emotional bias, particularly in times of emotional duress. The psychologist thought this would indicate that the offender would tend to act on the spur of the moment without thinking fully through the consequence of his behaviour.”

The discount for the plea

9 As I have stated, senior counsel for the applicant submitted at the hearing that the applicant should be sentenced on the basis that he entered his plea of guilty at the earliest reasonable opportunity warranting a discount in the range of 25%. The Crown Prosecutor supported this submission. The Crown Prosecutor indicated that until he was briefed in the matter, the clear view of those then prosecuting the applicant was that no charge less than murder would be accepted in respect of the shooting of the deceased. However, after counsel became involved there were discussions about the prospect of a plea to manslaughter and the prosecutor decided to accept that plea because of what he apparently perceived to be a difficulty in the Crown negativing self-defence.

10 His Honour did not accept that submission. In so finding his Honour indicated that it was always open to the applicant to indicate that he was prepared to plead guilty to manslaughter on the basis of excessive self-defence even in committal proceedings. His Honour was of the opinion that the fact that the Crown might not have accepted the plea is not to the point. His Honour said:

“Until relatively recently the offender has done nothing to indicate that he was willing to facilitate the administration of justice and, notwithstanding that his plea has avoided a relatively lengthy trial, its utilitarian value is not of the order justifying the maximum discount: see R v Dibb [2003] NSWCCA 117. With respect I do not accept that the Crown concession was a proper one. I believe that an appropriate discount is one of 15% for each of the pleas of guilty.”

The applicant’s criminality

11 Having determined the appropriate discount for the plea his Honour considered the objective criminality and subjective circumstances of the applicant. His Honour said:

“As I have already indicated it is clear from the number of shots fired by the offender and the locations where the deceased was struck by the bullets that the offender acted with intent to kill. True it is that, before the offender shot him, the deceased had already shot and wounded the person who was trying to restrain him from acting violently against the offender. But at the time the shots were fired it seems that the deceased was disarmed by the weapon falling to the ground and spilling its rounds. I take the plea of excessive self-defence to acknowledge that, before the offender fired at the deceased, he was aware that the deceased was unarmed, otherwise it is hard to see how the self-defence would be excessive if the offender believed that the deceased would be able to fire the weapon at him. Further, the shooting has to be seen in the context of the offender’s involvement in serious criminal acts of violence against other members of the Lebanese community as part of a dispute arising between factions in that community and immediately prior to his confrontation with the deceased.

This type of conduct, particularly when it involves the use of weapons, is a scandalous breach of the peace of the community and has no part in civilised society in any country let alone in suburban Sydney. When people come to this country fleeing civil unrest or warfare in some other country, they come here to live as law-abiding members of this community and abide by the standards that this society requires of its citizens. I am prepared to accept that there are aspects of the offender’s personality that might indicate impulsiveness in his reaction to the danger he believed that the deceased posed to him and to the shooting of his uncle. But as I have indicated, the shooting of the deceased cannot be viewed in isolation but as part of a violent conflict that was developing between factions of this section of the community. Although I know little about the offender’s possession of the weapon, I assume he at least became armed with it prior to the second confrontation with the deceased as according to the facts he produced the weapon from his person before firing it.

Notwithstanding the difficulties that the offender suffered in his youth in Lebanon and the material in the psychiatric and psychological report, it is appropriate to visit upon the offender a condign sentence denouncing this type of conduct and reflecting general deterrence to a very significant degree so as to send the message to others in this society that this type of criminally violent behaviour within community groups will not be tolerated for whatever reason, and particularly when it involves the use of firearms. There is nothing in my view in the material contained in the reports placed before me that could possibly excuse or even explain this conduct. The offender, in an atmosphere of developing violence for which his faction was clearly responsible, was involved in a confrontation with a person he knew to be able to resort to violence, and I have no doubt the offender was prepared to respond in kind if necessary. Simply put the offender was shortly before the killing involved with a group of thugs seeking to establish their importance in the community by acts of violence against members of their rival faction and who were spoiling for a showdown as the tension increased.”

The non-parole period

12 His Honour then turned to consider the concession by the Crown Prosecutor that an appropriate non-parole period should be 4 to 5 years. His Honour assumed that this was on the basis of a concession that the offender should receive a discount of 25%. His Honour said of the submission:

“Quite frankly I do not understand why the Crown should be making such a concession in respect of a charge of manslaughter where it is difficult to determine the appropriate range of sentences for any given factual situation and in a case of multiple offences where there is a real question as to the assessment of the overall criminality. I made it clear to [counsel for the defendant] that I did not consider myself bound in any way by that concession and he accepted that this was so. The cases to which I was referred during the course of submissions did not indicate to me that the concession of the Crown was an obviously appropriate one to make.
But in any event I have simply approached the task in accordance with normal sentencing principles and determined for myself what I believe the overall head sentence and non-parole period should be, based upon my finding of whether there are special circumstances and what effect that finding should have upon the minimum period of custody that the offender is to serve. Having differed from the Crown’s concession to a marked degree, I have taken that fact into account but I am not persuaded that the sentence I intend to impose is outside the appropriate range although I concede it is a high one.”

13 His Honour then turned to consider the relevant provisions of s 21A(3) of the Crimes (Sentencing Procedure) Act and said:

“Because the offences were committed prior to 1 February 2003 the now repealed s 44 of the Crimes (Sentencing Procedure) Act applies. There are in respect of each of the offences the mitigating factors listed in s 21A(3) encompassed by his prior good character, lack of relevant record, and his remorse. His prospects of rehabilitation and the likelihood of re-offending depend largely upon his further relationships with persons within the community. If the factional strife flares up again, there is a possibility that he will re-offend if he chooses to become involved in it. It is not irrelevant that the factions seemed to revolve around the two car-repair businesses, one of which is owned by his wife. However, I am prepared to sentence the offender on the basis that given the time that has passed there is little likelihood of the strife leading up to the shooting still continuing and that he will avoid again becoming violently involved in factional strife in the community if it arises again. Therefore, his prospects of rehabilitation are probably good. It may be that, if necessary, he will be able to benefit from some form of treatment as suggested by the psychologist.

The first offence for which the offender is to be sentenced is the malicious infliction of grievous bodily harm on 9 June. That was an offence that was provoked but was an intentional striking of the victim in order to discipline him. This is the most serious of the offences on the second indictment because of the injury inflicted. It was the incident that gave rise to the series of events that resulted in the shooting of the deceased. There are no aggravating features listed under s 21A(2) present. I make it clear that I have not taken into account that the offence was in company because it is an element of a more serious offence.

The other offences on the second indictment are of no great seriousness in themselves although they are unprovoked acts of gratuitous violence. But they are part of a course of conduct leading up to the shooting and set the atmosphere for the confrontation between the offender and the deceased. It was inevitable because of those offences that there would be further and escalating violence between the two factions and, in particular, the offender and the deceased. Again there is none of the aggravating factors present in s 21A(2) that should impact on the sentence that are not elements of the offences charged or an element of a more serious offence. The applicant was not the person who struck the blows in either case but he was part of the violent group who were largely acting in his cause. They were at the premises of Just Vans so that the offender could find out where Hammoud’s brother had gone.

The manslaughter is in my opinion a serious example of the offence notwithstanding the threat of violence exhibited by the deceased. As I have already indicated, the offender himself was taking an active and, I believe, leading role in the escalation of animosity and violence leading up to the shooting. The plea of guilty to manslaughter accepts that there was no immediate danger to the offender at the time of the killing justifying the repeated shooting of the deceased although I accept that his over-reaction was in part due to the matters referred to in the reports before me. But I have no doubt that it was also to a greater extent the result simply of the aggressive attitude of the offender and those supporting him to the deceased and those associated with him leading up to their final confrontation. It would clearly have been foreseen that there was a real risk that the deceased would draw his weapon and I believe that the offender had prepared himself for that contingency.

The offence is one that carries a maximum penalty of imprisonment for 25 years. Because the offence embraces a range of conduct that happens to result in the death of a person, it is difficult to discern an appropriate range to apply to any particular case. It is not particularly helpful to try to categorise the type of manslaughter to obtain some guidance as to what the sentence might be. However, the sentence imposed in this case must reflect the fact that the offence involved the unlawful taking of human life and must recognise that the offender acted with an intention to kill. There was only one aggravating feature in the commission of the offence being the use of the firearm, but that is one of grave seriousness. As I have already noted, there must be a significant degree of general deterrence because of the use of a firearm and because the shooting occurred in circumstances of escalating violence between factions in the community in which the offender had a very significant role. The non-parole period must reflect that fact and denounce such conduct.

I have been referred to a number of decisions of this Court concerned with sentencing for manslaughter as a result of excessive self-defence. As Mr Barker appropriately noted, they offer only limited assistance because of the differing circumstances of the offences. However, I have had particular regard to the decisions of the Court of Criminal Appeal in Cioban v R [2003] NSWCCA 304 and R v Trevenna [2004] NSWCCA 43. I consider that the present offence is considerably more serious objectively than the offences considered in either of those two cases because of the circumstances in which the shooting occurred.

In Cioban only one shot was fired after the offender had retreated and was pursued by his attacker. The shot was fired with reckless indifference to human life when the offender was actually being attacked by a younger, fitter man although he was unarmed. The Court allowed the appeal and sentenced the appellant to imprisonment for 6 years 6 months with a non-parole period of 4 years. That was a sentence imposed after trial.

In Trevenna a sentence of 7 years 6 months with a non-parole period of 4 years 6 months was imposed upon an offender who shot her husband after a fight during which the deceased had attempted to strangle her and threatened her with a cricket bat. The offender had obtained the firearm from under a bed during the course of the attack. The sentence was imposed after a late plea of guilty.

I have reviewed the other cases provided to me but they have little relevance because of their varying facts. They certainly do not provide some sort of tariff for manslaughter by excessive self-defence, nor do they suggest that the concession made by the Crown was justified or appropriate.

I have been referred to the factors identified by Santow JA in Trevenna and taken them into account insofar as they indicate the seriousness of any particular offence although the weight to be given to such factors will depend upon the particular case. There were other factors in the present case to which I have referred that show the present offence to be a serious one.

There has been a delay in sentencing of a little over three years. I take into account that the offender has over that period been in some uncertainty as to his fate and was for much of that time facing a charge of murder. This is not a case, however, of sentencing for a stale crime. Had there not been this delay the sentence would have been longer.

For the offence of maliciously inflicting grievous bodily harm I intend to impose upon the offender a fixed term sentence by reason of the severity of sentence for the offence of manslaughter. It will be the equivalent of the non-parole period I would have imposed for that offence calculated by taking into account a head sentence after discount of about 2 years 6 months.

For the offences in the second and third counts on the second indictment the offender will for the same reason be sentenced to fixed terms again being the equivalent of the non-parole period that I would have imposed on sentences of about 15 months. They will be concurrent with each other and with the sentence for the offence of manslaughter. That is because I see them as substantially part of the events leading to the manslaughter offence, occurring as they did on the same day and being part of the reason for the violent confrontation between the offender and the deceased. However, these sentences will be cumulative upon the first offence on the second indictment because I believe that to be a separate and distinct act of criminality even though it led to the events giving rise to the other offences.

I find that there are special circumstances by reason of the material contained in the psychological report. But there can only be a minor adjustment of the ratio between the head sentence and the non-parole period because of the need of the latter to reflect the seriousness of the offence and the importance of general deterrence. I do not believe that there is any need for a lengthy period on parole because, as I have indicated, there is little likelihood of re-offending unless the offender becomes involved again in factional strife within the community in which he lives. He will either have learned his lesson from these offences or not and there is little need for extensive supervision. The minimum period is in my opinion the very least that could be imposed. At one point I was minded not to find special circumstances given the length of the parole period that would arise from an application of the statutory ratio between the head sentence and the non-parole period but I did so to some degree in recognition of the disappointment that the offender might feel due to the Crown’s concession not being adopted by the Court.”

The appeal

14 There are three grounds of appeal, ground 3 having 8 elements. The grounds are as follows:

1. The sentence is manifestly excessive.

2. The sentencing judge failed to take adequate account of sentences in other cases and sentencing trends.

3. The sentencing judge erred in the following respects:

(i) in finding the appellant did not offer a plea of guilty to manslaughter at the earliest reasonable opportunity and in rejecting the submissions of both the Crown and appellant in this regard;
(ii) in finding that 4 to 5 years was not an appropriate non-parole period and in rejecting the submissions of both the Crown and appellant in this regard;
(iii) in failing to accord adequate significance to the Crown Prosecutor’s submissions as to the appropriate discount and the appropriate non-parole period;
(iv) in failing to restrict his fact finding to the statement of facts agreed upon by the Crown and the solicitor for the appellant;
(v) in finding that ‘but at the time the shots were fired it seems that the deceased was disarmed by the weapon falling to the ground and spilling its rounds;’
(vi) in finding that ‘I take the plea of excessive self-defence to acknowledge that, before the appellant fired at the deceased, he was aware that the deceased was unarmed, otherwise it is hard to see how the self defence would be excessive if the appellant believed that the deceased would be able to fire the weapon at him;’
(vii) in finding ‘there is nothing in my view in the material contained in the reports placed before me that could possibly excuse or even explain this conduct;’
(viii) in failing to accord adequate significance to the special circumstances including the personal testimonials, the report of Mr Watson-Munro and the report of Dr Nielssen.

15 It is convenient to consider ground three before the other grounds.

Ground Three

16 3.(i) The discount for a plea of guilty was comprehensively considered by this Court in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The decision is a discretionary one for the sentencing judge which will be significantly informed by consideration of the time at which the plea was given.

17 The circumstances of the present case are not uncommon. The appellant maintained his plea of not guilty at committal and for a lengthy period thereafter, which required the Crown to marshal resources in the expectation of having to prosecute a defended trial. Shortly before that trial the accused bargained for a reduced charge in consideration for a plea. Because of the need for the Crown to prepare for the trial the utilitarian value of the plea was significantly diminished as against the circumstance where the appellant pleaded guilty at or before the committal.

18 In my opinion in these circumstances it will be a rare case where it is appropriate to make a finding which entitles the offender to a discount of 25%. A lesser discount will most likely be inevitable.

19 In the present case it was submitted that the applicant could not have offered a plea to a charge of manslaughter in circumstances where the Crown was seeking to maintain the murder charge. It was said to be of no utility because the applicant knew it would not be accepted. It was also submitted that, in some way the offer of a plea to manslaughter would have compromised the applicant’s capacity to defend the murder charge.

20 This submission must be rejected. If a plea had been offered and rejected the matter would have passed without comment and the trial would have been conducted without the jury being aware of the applicant’s preparedness to plead to a lesser charge. Such an offer is made on a “without prejudice” basis: (see Chapter 20, Prosecution Guidelines of Director of Public Prosecutions (NSW)). However, if it had been offered, the Crown would have had an early opportunity to avoid the necessity to apply significant resources to the preparation of the trial. If offered, but not accepted, the applicant would nevertheless be able to point to an offer which entitled him to the full benefit of the available discount: R v Dib [2003] NSWCCA 117; R v Nguyen [2005] NSWSC 600 at [52].

21 3.(ii) and (iii) The agreement between the prosecutor and the applicant was referred to as a plea agreement, the expression used to describe such an arrangement in GAS v The Queen (2004) 217 CLR 198. The limitations inherent in such an agreement were considered and explained in GAS. The relevant principles, as outlined by the Court at 210-11, should be restated:

“First, it is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person Barton v The Queen (1980) 147 CLR 75 at 94-95. The judge has no role to play in that decision. There is no suggestion, in the present case, that the judge was in any way a party to the "plea agreement" referred to. The appellants, through their counsel, evidently indicated to the prosecutor that, if a charge of manslaughter were to be substituted for the charge of murder, they would plead guilty, and the prosecutor filed a new presentment on that understanding. However, the charging of the appellants was a matter for the prosecutor.
Secondly, it is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely and, in this case, it was made with the benefit of legal advice. Once again, the judge is not, and in this case was not, involved in the decision. Such a decision is not made with any foreknowledge of the sentence that will be imposed. No doubt it will often be made in the light of professional advice as to what might reasonably be expected to happen, but that advice is the responsibility of the accused's legal representatives.
Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed R v Olbrich (1999) 199 CLR 270. For that purpose, the judge must find the relevant facts Cheung v The Queen (2001) 209 CLR 1 at 9. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case R v Olbrich (1999) 199 CLR 270 at 278. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor.
Fourthly, as a corollary to the third principle, there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found the relevant law and sentencing principles. It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel.
Fifthly, an erroneous submission of law may lead a judge into error and, if that occurs, the usual means of correcting the error is through the appeal process. It is the responsibility of the appeal court to apply the law. If a sentencing judge has been led into error by an erroneous legal submission by counsel, that may be a matter to be taken into account in the application of the statutory provisions and principles which govern the exercise of the appeal court's jurisdiction. “

22 From this statement of principles it is plain that any agreement in the nature of a plea agreement can have only limited practical effect. If it includes an agreement as to the facts which may be incorporated into an agreed statement of facts the capacity of the sentencing judge to decide the relevant facts will be affected and, if no other evidence is tendered, may be confined to the facts which have been agreed.

23 With respect to any aspect of the agreement which relates to the appropriateness of any particular sentence, or a component of it, the Crown’s agreement is confined to an undertaking to make a submission to the sentencing judge consistent with the terms of that agreement. The agreement can neither bind the judge nor be given any greater weight than is appropriate to a submission of counsel with knowledge of the facts relevant to the offence and the offender. It must of course be carefully considered but carries no greater weight than any other submission which the Crown may make in the sentencing process. If it were otherwise the fundamental assumption that it is for the judge to determine an appropriate sentence would be seriously compromised.

24 The role of an agreement between the prosecutor and an accused in the ultimate penalty has caused some difficulties in civil enforcement proceedings in the Federal Court. Notwithstanding an acknowledgement that it is for the Court to determine the appropriate penalty the approach has been taken that, if the agreed penalty is within the appropriate range, the court will accept it, even if the judge would have imposed a different penalty from within the permissible range: see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993. That approach is not without its critics who have sometimes expressed themselves in strong language: see Australian Prudential Regulation Authority v Derstepanian & Anor [2005] FCA 1121 and Australian Securities and Investment Commission v Vizard (2005) 219 ALR 714. The approach taken by Barrett J in the New South Wales Supreme Court in Australian Securities and Investments Commission v Elm Financial Services Ltd & Ors (2005) 55 ACSR 411 at 413 acknowledged the Full Federal Court’s position in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Mobil Oil but nevertheless his Honour stated that “the court is in no way constrained by the parties agreement.”

25 I apprehend that the role of an agreement between the parties in civil penalty proceedings may be the subject of continuing discussion, if not debate, and the principles may not be finally settled. However, when sentencing for crimes in the criminal context the role of the court is fundamental and in my view cannot be displaced or qualified by any agreement of the parties. That agreement can only extend to an understanding of the facts to be placed before the Court and the submissions which will be made by the Crown. Whether the sentence which the Crown submits is appropriate happens to fall within or outside the appropriate range is irrelevant. The Court will consider that submission together with the submission on behalf of the offender but must then determine the appropriate sentence for itself.

26 In my opinion the sentencing judge was correct in rejecting the joint submission arising from the agreement between defence counsel and the Crown in relation to the non-parole period. Having regard to the objective criminality of the matters for which the applicant was sentenced, and in particular the circumstances of the manslaughter offence, a non-parole period of four to five years was entirely outside the available range. The non-parole period which his Honour determined was appropriate as was the discount for the plea of guilty. The difficulties arising from the present case would be avoided if prosecutors at first instance kept in mind the principles in GAS v The Queen, and followed the practice laid down in Chapter 28, Prosecution Guidelines of the Director of Public Prosecutions (NSW).

27 3.(iv), (v), (vi) These matters may be dealt with together. With respect to the matter raised by sub-ground (v) the relevant facts are contained in paragraphs 14 and 15 of the document incorporating the agreed facts. The essential elements may be restated as follows:

“14. While holding [the deceased] in a ‘bear hug’ face-to-face Hussein was shot in the top front part of his left thigh. … Witnesses reported hearing two loud gun shots about the time Hussein was seen to collapse to the ground. … The gun had dropped to the ground. … and spilled forth these unspent cartridges.
15. Immediately after Hussein had fallen to the ground, [applicant] produced a self-loading .38 calibre pistol from somewhere on his person and fired five rounds at [the deceased] ….”

28 It is true, as the applicant submitted, that the agreed facts do not expressly state the sequence in which the events occurred. However, the dropping of the gun by the victim is included in paragraph [14] and the facts in relation to the shooting follow in paragraph [15]. Neither party submitted to his Honour that this was not the sequence in which the events occurred and accordingly the finding which his Honour made that at the time the applicant fired the fatal shots the deceased was disarmed “by the weapon falling to the ground and spilling its rounds” was available.

29 The suggestion made in the appeal was that his Honour should have found that it was the shooting of the victim by the applicant which caused the victim to drop his gun and accordingly the applicant should have been sentenced on the basis that the victim was in a position to shoot at the applicant when the applicant fired. There are two difficulties with this proposition. Firstly, as I have indicated it was not advanced at the hearing. Secondly, it would be difficult to understand in those circumstances how the defence made by the applicant could be found to be excessive. It was submitted that the excessive defence was confined to the firing of five rounds when a lesser number may have sufficed. However, the events relating to the firing of successive shots was not explained and there was no evidence as to whether any one or more of the bullets was the cause of the victim’s death.

30 His Honour was required to reconcile the claim of excessive self-defence with the facts tendered, including the agreed facts. To my mind the only finding which his Honour could have made was that the applicant was aware that the deceased had dropped the gun, but that it might be retrieved and present a danger to him justifying the discharge of his own weapon. His Honour did not err in making this finding.

31 Unquestionably the findings his Honour made were open and no error is revealed.

32 3.(vii) The sentencing judge found that there were “aspects of the offender’s personality that might indicate impulsiveness in his reaction to the danger he believed that the deceased posed to him and to the shooting of his uncle.” This conclusion appears to have been based on the findings of Mr Watson-Munro, a psychologist and Dr Neilssen a psychiatrist. The opinions of both these persons were of course based upon the version of the events given to them by the applicant.

33 Mr Watson-Munro considered that the difficulties which the applicant had in his development gave rise to a state of “hypervigilance, significant anticipatory anxiety, sleep disturbance and a low threshold for frustration. The aggregate of these symptoms reflects a diagnosis of an adjustment disorder which I believe is of significant relevance to the dynamics surrounding the current offences … This appears to be very relevant to what allegedly occurred at the time of the shooting and the setting of Mr Ahmad holding a genuine fear that his life was about to end.”

34 Dr Nielssen considered that the applicant did not report any symptoms of anxiety disorder prior to the offences but that these symptoms came after. However, he reported that the applicant was, when a child, knocked out for a considerable time when he was hit on the forehead by a rock. Although he could find no evidence of impaired frontal lobe function he was prepared to give the applicant the benefit of the doubt in considering the “likely effect of the injury is subtle underlying impairment in the speed of information processing, particularly in the presence of multiple stimuli.”

35 Apart from the finding which I have referred to in relation to the applicant’s personality his Honour also found that “his over reaction was in part due to the matters referred to in the reports before me.” His Honour was referring to the evidence of Mr Watson-Munro and Dr Nielssen. Accordingly, his Honour had regard to the reports of these experts and in my opinion the sentences which his Honour imposed do not reflect any misuse of that material.

36 3.(viii) There was evidence before the sentencing judge of the regard in which the applicant was held by those in the community with whom he has had dealings. His Honour found that the applicant apart from this offence was a person of good character, had demonstrated remorse and may have good prospects of rehabilitation. His Honour expressly noted the large number of testimonials to the applicant’s good character and also referred to the material of Dr Nielssen and Mr Watson-Munro. His Honour also had regard to the delay, a little over three years, in sentencing and appropriately recognised the plea of guilty.

37 The ultimate sentence reveals a non-parole period which is 68% of the head sentence. This, of course, is less than the statutory period and in my opinion was within the appropriate range having regard to the objective circumstances of the offences and the subjective features of the applicant. A finding of special circumstances which allows a variation from the statutory ratio is a discretionary matter: R v Simpson (2001) 53 NSWLR 704; R v AEM Snr [2002] NSWCCA 58 at [154]; R v Holmes & Ratu [2003] NSWCCA 258 at [28]. In my opinion the discretion available to his Honour did not miscarry.

Other matters

38 In his submissions in reply senior counsel for the applicant complained that the submissions advanced by the Crown in this appeal are at odds with the submissions made to the sentencing judge in relation, in particular, to factual matters and the concession in relation to the appropriate non-parole period. It was submitted that:

“It is a sad state of affairs when the Crown and defence amicably reach a specific agreement upon the basis on which a man pleads guilty to a serious crime and, on appeal, the Crown abandons the agreement and its concession and makes submissions entirely contrary to the concessions made to the court below. Whatever the precise legal principle involved, the Crown ought to honour its agreements and this Court should be slow to permit the Crown to abandon specific positions taken (and vigorously taken) on the hearing before the sentencing judge.”

39 The applicant accepted, correctly, that the Crown is not bound on an appeal by the position taken by a Crown Prosecutor in the court below. In R v Allpass (1993) 72 A Crim R 561 this Court held that the Crown is not debarred on an appeal from taking a different stance from that taken at first instance, but that the court in the exercise of its discretion is entitled to take into account the fact that the Crown had acquiesced in the course that was taken by the sentencing judge. The application of this principle commonly arises when a Crown appeal is advanced in circumstances where agreements or concessions have been made by the Crown before the sentencing judge. In those circumstances the court will be slow to quash a sentence which has been framed upon concessions made before the sentencing judge. This is a reflection of the significant inhibitions upon this Court intervening when the Crown complains that a sentence was inadequate.

40 Where a convicted person brings an appeal the administration of justice is aided by the Crown abiding by agreements or concessions made at the sentencing hearing, only departing from them where it has become apparent that an understanding of the relevant circumstances has changed or on further consideration the agreement or concessions were not reasonably open. In a case such as the present, where the sentencing judge did not accept the Crown submission and did not sentence on the basis of the concessions and agreements made by the parties, a change in the Crown’s position may be more likely than if the sentence imposed accords with the agreement.

41 Irrespective of any agreement by the Crown the role of the appellate court is to consider whether the sentencing judge has erred when determining the sentence. That consideration will be assisted by the submissions of both the appellant and the Crown. If, after proper consideration of the situation, the Crown has come to the view that the conclusion of the sentencing judge was correct, notwithstanding the position adopted at the original hearing, the Crown should not be inhibited in making its altered position known to the Court. However, if, after adequate reflection, the Crown maintains its original position that should also be made plain to the appellate court.

Ground One and Ground Two

42 It is convenient to deal with these two grounds together. It is submitted that the sentence imposed was out of line with those provided in a number of other cases to which his Honour was referred.

43 In R v Forbes [2005] NSWCCA 377 Spigelman CJ said:

“As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]).

It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.

For example where diminished responsibility is relied upon, the extent to which culpability is ‘diminished’ can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as “child-killing by a parent or carer”, it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases. (See Hoerler supra.) This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence (see R v Trevenna (2003) 149 A Crim R 505).

The test established by s418 of the Crimes Act is whether “the conduct is a reasonable response in the circumstances as he or she perceives them”. Such a test must depend on the characteristics and conduct of the deceased and also the nature of the response, in all of the circumstances of the particular case, on the part of the accused. A test of such a wide-ranging character is unlikely to lead to anything in the nature of a sentencing pattern or tariff in which the decisions on one case are of any particular utility for another.”

44 In the present case the sentencing judge found that the manslaughter was a “serious example of the offence notwithstanding the threat of violence exhibited by the deceased.” His Honour found that the applicant had taken a leading role in the escalation of animosity and violence between different groups of Lebanese people leading up to the shooting. His Honour found that the applicant accepted that there was no immediate danger at the time which justified shooting the deceased. Importantly, his Honour found that the applicant acted with an intention to kill and that the use of a firearm was an aggravating feature of “grave seriousness.” The circumstances of the offence warranted a significant degree of general deterrence.

45 In his reasons for judgment in Forbes Hall J included a detailed analysis of many of the sentences which have recently been imposed for the offence of manslaughter. A review of those decisions led his Honour to join with the Chief Justice in upholding an appeal in relation to the severity of a sentence for manslaughter imposed upon that appellant. A similar review of those cases in my opinion comfortably discloses that having regard to the findings which his Honour made as to the circumstances of the offence in the present case the sentence of nine years four months with a non-parole period of six years for the manslaughter was well within the appropriate range. Furthermore, having regard to the serious nature of the other offences for which the applicant was sentenced, the overall sentence and the manner of its structure were not excessive.

46 These grounds of appeal are not made out.

47 Although I would grant leave to appeal I would dismiss the appeal.

48 HISLOP J: I agree with McClellan CJ at CL.

49 JOHNSON J: I agree with McClellan CJ at CL.

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