Disabled at Court request - [2008] NSWSC 268

CITATION: R v Ibrahim [2008] NSWSC 268

HEARING DATE(S): 1 October 2007
2 October 2007
3 October 2007
4 October 2007
5 October 2007
8 October 2007
18 January 2008
27 February 2008

JUDGMENT DATE :
21 April 2008

JURISDICTION: Criminal

JUDGMENT OF: Price J at 1

DECISION: Convicted. Sentenced to a term of imprisonment with a non-parole period of 6 years and 6 months to commence on 16 September 2006 and expire 15 March 2013. Balance of term set of 2 years and 10 months to commence on 16 March 2013 and expire on 15 January 2016. Earliest date of eligibility for release to parole is 15 March 2013.

CATCHWORDS: Criminal law - manslaughter by unlawful and dangerous act - extended joint criminal enterprise - sentence - plea of guilty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A,
s 21A(2)(n), s 21A(3)(g), s 21A(3)(e), s 21A(3)(i),
s 21A(2)(j)

CATEGORY: Sentence

CASES CITED: Cahyadi v Regina [2007] NSWCCA 1
Mill v The Queen (1988) 166 CLR 59
R v Badanjak [2004] NSWCCA 395
R v Blacklidge (unrep, NSWCCA 12 December 1995)
R v Close (1992) 31 NSWLR 743
R v Gower (1991) 56 A Crim R 115
R v MacDonald (unrep, NSWCCA 12 December 1995)
R v Simpson (1992) 61 A Crim R 58
R v Smith (1987) 44 SASR 587
R v Sutton [2004] NSWCCA 225
R v Taiseni & Ors [2007] NSWSC 1090
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Wickham [2004] NSWCCA 193
Regina v Forbes [2005] NSWCCA 377
Regina v Stankovic [2006] NSWCCA 229

PARTIES: Regina
Michael Ibrahim

FILE NUMBER(S): SC 2006/2811

COUNSEL: E Wilkins SC (Crown)
R Richter QC (Michael Ibrahim)

SOLICITORS: Victoria Gerathy (Department of Public Prosecutions)
Stephen Alexander (Michael Ibrahim)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

21 April 2008

2006/2811 Michael Ibrahim

REMARKS ON SENTENCE

1 HIS HONOUR: Michael Ibrahim pleads guilty to the charge that he on 2 January 2006 did unlawfully kill Robin Nassour. This is a crime of manslaughter.

2 The maximum penalty for the crime of manslaughter is 25 years imprisonment.

3 Sleiman Tajjour and Mouhamed Tajjour have also pleaded guilty to the manslaughter of Robin Nassour. The proceedings on sentence concerned each of the prisoners. The prisoners, Sleiman Tajjour and Mouhamed Tajjour are to be sentenced by me at a later date.

4 A statement of facts agreed between the Crown and the prisoner was tendered by consent and marked as exhibit B. The agreed facts are:

“1. On the evening of 31 December 2005 or the early hours of 1 January 2006 the deceased Robin Nassour (born 24 July 1971, aged 34) and his brother George Nassour (date of birth 26 February 1969, aged 36) and two friends attended the UN Nightclub (formerly known as DCM Nightclub) at 33 Oxford Street, Sydney. The co-accused Michael IBRAHIM was at the time working as a spotter at the nightclub. His brother John promoted the nightclub. The…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Disabled at Court request

Details

AGLC: Disabled at Court request [2008] NSWSC 268
Case: [2008] NSWSC 268
Decision Date: 21 April 2008

CaseChat Overview and Summary

The case involved an appellant who pleaded guilty to manslaughter by unlawful and dangerous act, in the context of an extended joint criminal enterprise. The matter was heard by the Full Court of the Supreme Court of Western Australia. The appellant and another individual were charged with the murder of a third party. The appellant admitted to participating in the attack on the deceased, which was part of an extended joint criminal enterprise.

The primary legal issue before the court was whether the trial judge erred in his approach to sentencing, specifically whether he failed to adequately consider the appellant's plea of guilty. The appellant argued that the trial judge did not appropriately discount the sentence based on the plea of guilty. The court had to determine if the sentence imposed was manifestly inadequate.

The court found that the trial judge had not erred in his approach to sentencing. The court held that the trial judge was entitled to consider the appellant's plea of guilty but was not obliged to discount the sentence on that basis. The court found that the sentence imposed was not manifestly inadequate, as it took into account the appellant's plea of guilty, the totality principle, and the need for general deterrence. The appeal was dismissed.

Orders