Diab v Regina

[2009] NSWCCA 58

New South Wales
Court of Criminal Appeal

CITATION:	Diab v Regina [2009] NSWCCA 58
HEARING DATE(S):	5 March, 2009
JUDGMENT DATE:	11 March 2009
JUDGMENT OF:	Beazley JA at 1; Blanch J at 2; Howie J at 18
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal law - manslaughter
LEGISLATION CITED:	Crimes Act, 1900, s18(1)(b)
CATEGORY:	Principal judgment
CASES CITED:	R v Forbes (2005) 160 A Crim R 1
PARTIES:	Ali Diab (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/3149
COUNSEL:	I McClintock SC/M Coroneos (Applicant) D Arnott SC (Respondent)
SOLICITORS:	Justin Hanby, Hanby & Associates (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2006/1451
LOWER COURT JUDICIAL OFFICER:	Studdert J
LOWER COURT DATE OF DECISION:	7 June, 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Ali Diab

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/3149

BEAZLEY JA
BLANCH J
HOWIE J

11 March, 2009

Ali DIAB v Regina

JUDGMENT

1 BEAZLEY JA: I agree with Blanch J.

2 BLANCH J: This is an application for leave to appeal against a sentence imposed in the Supreme Court on 7 June, 2007. The applicant had entered a plea of guilty to a charge of manslaughter contrary to s18(1)(b) of the Crimes Act, 1900 and he was sentenced to imprisonment for a non-parole period of 7 years and 9 months to date from 7 June, 2005 with a balance of term of 2 years and 6 months. The maximum penalty for the offence is 25 years imprisonment.

3 The applicant had been committed for trial on a charge of murder but the Crown subsequently presented an indictment for manslaughter accepting it could not discharge its onus of proving beyond reasonable doubt the applicant did not believe his conduct was necessary to defend himself.

4 The offence occurred on 15 May, 2005. The applicant and Rabih Abdulrahman were engaged in illegal drug dealing. There was a dispute between them and the deceased, who was also their competitor in drug dealing. At the relevant time the applicant and Abdulrahman were staying in a unit rented by a witness who had earlier had a relationship with Abdulrahman and they were conducting their drug dealing operations from there.

5 On 15 May the deceased went to that unit and informed Abdulrahman’s friend he wanted to stay there and use it for his drug activities. The applicant, with his brother and companions, came to the unit and there was a meeting in the bedroom. There was an argument between the applicant and his brother on one side and the deceased on the other side. The deceased drew a handgun and the applicant used a pistol in his possession to fire five shots at the deceased causing his death. The deceased had not fired any shots and there was no evidence his weapon was loaded.

6 It was common ground the applicant was to be sentenced on the basis that his conduct was not a reasonable response in the circumstances as he perceived them.

Ground of Appeal One
“The learned sentencing judge apparently failed to take specific account of an important part of the statement of facts relating to the threatening conduct of the deceased immediately before the confrontation in which he was killed by the applicant.”

7 The part of the agreed statement of facts which was tendered and said to disclose an event not considered by the judge was a part of the statement which indicated when the deceased sent Abdulrahman’s former girlfriend out to get the applicant he said to her that if she did not get him someone was to get seriously hurt. She apparently went downstairs and according to the facts “… told the accused Ali Diab that the deceased wanted him.” Apparently immediately after he was told this, he was picked up in a motor vehicle and driven away. The submission is made that because the sentencing judge did not mention this incident, he did not fully understand the level of aggression on the part of the deceased at the time of the confrontation.

8 I cannot see that this is so. The sentencing judge had the statement of facts and he summarised it including the relevant details. There can be no doubt the judge appreciated the two men were arch rivals, that the deceased had provocatively tried to take over premises used by the applicant, that there was an argument between them and that the deceased threatened the applicant with a handgun. It is quite clear the judge appreciated the full level of tension and threat which existed at the time of the shooting. Moreover, the facts do not disclose that when Abdulrahman’s friend spoke to the applicant, she told him of the threat which had been made. The facts simply say she “… went downstairs and told the accused Abdulrahman that the deceased wanted him. The accused Diab did not appear to be listening to her.”

9 I would dismiss this ground of appeal.

Ground of Appeal Two
“The learned sentencing judge made an important finding of fact adverse to the applicant, namely as to the circumstances in which the gun used by the applicant came to be in his possession on the night of the shooting, a finding which was not reasonably open on the whole of the material available in the sentence proceedings.”

10 This ground argues that there was no evidence about where the gun used by the applicant came from. In the light of that, it is said the judge erred when he said “The offender brought with him to a meeting with the accused a pistol which was loaded and he fired five shots with it.” It is also said the judge erred when he said “The offender could have avoided the summons to enter the bedroom where the deceased was. He chose, however, to enter the bedroom and to argue with the deceased in circumstances where they were in dispute over their illegal drug activities. The offender had with him during the confrontation a loaded pistol.”

11 The argument advanced by the applicant is that the gun could have been given to the applicant by someone else in the flat or that it could have been already in the flat. However, there is no doubt at all that the applicant had the gun in his hand and that he fired the five shots. It is accepted he did so after he was threatened with a gun held by the deceased. It does not appear to me to have any impact on an assessment of his culpability whether the gun was brought into the flat by him, given to him in the flat by someone else or picked up by him in the flat. It would be unrealistic to find that when he entered the flat he did not know a gun could be available to him from whatever source and these considerations can have no effect on an assessment of the appropriate penalty.

12 It should be noted that the words used by the judge about the gun were in one case it was “brought with him to this meeting” and in another part of his remarks on sentence “had with him during the confrontation”. Neither of these statements asserts that the gun was brought into the flat by the applicant. Moreover in the statement of facts tendered to the Court it was said:

“The accused Ali DIAB showed SMIT (“Witness “B”) a silver hand gun and said he was carrying it because of the incident on 13 May 2005.”

13 I would dismiss this ground of appeal.

14 No other ground of appeal is argued. In R v Forbes (2005) 160 A Crim R 1 Spigelman CJ said at page 27, paragraph 133:

“As has frequently been stated, manslaughter is almost unique in its protean character an an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, NSW, No. 60510 of 1995, 12 December 1995), esp at 2-3.) 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]).”

15 In the same case Hall J surveyed a number of authorities dealing with sentences for manslaughter, all of which indicate that the sentence imposed in this case was well within the range of appropriate sentences for an offence with the characteristics of this offence and taking into account the subjective circumstances peculiar to the applicant. No argument has been advanced that the non-parole period should have been reduced because of special circumstances, no doubt because it was seen that such a submission was without merit.

16 This was a serious case of manslaughter against a background of feuding drug dealers and an offender being prepared to take the law into his own hands. It is clearly a case where the sentence should strongly reflect the principles of general deterrence and in my view, no lesser penalty than that imposed could be justified.

17 I propose the following orders:

1. Leave to appeal be granted;
2. The appeal be dismissed.

18 HOWIE J: I agree with Blanch J.