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 accused presently before the Court are brothers. They are also cousins of the co-accused Michael IBRAHIM. On the night in question, Michael IBRAHIM refused entry to the nightclub to the two friends of the NASSOUR brothers. Robin NASSOUR waited downstairs for a short time with the two friends while George Nassour tried to get them into the nightclub. He was unsuccessful and Robin NASSOUR left with their two friends and went elsewhere. George NASSOUR left and returned later to the nightclub without Robin and the two friends. On returning to the nightclub an acquaintance of George NASSOUR named Ali pestered him to get him (Ali) into the club for nothing, saying he had no money. George told him he was unable to do so, but told Ali to pretend his hand had already been stamped. Michael IBRAHIM overheard this and became angry with George NASSOUR, telling him to get upstairs. George only remained for a short time at the nightclub before leaving. He remained outside for a period of time. At one stage, Robin NASSOUR drove past the club and made a rude gesture with his finger in the direction of George, who was outside the club, Michael IBRAHIM thought that gesture was intended for him.

2. In the early hours of 2 January 2006, George NASSOUR, Robin NASSOUR and another friend went to McDonalds at Kings Cross. The accused Mohamed (sic) TAJJOUR (date of birth 16 January 1984, aged 22) and the co-accused Sleiman TAJJOUR (date of birth 27 July 1980, aged 25) were across the road and beckoned George NASSOUR across. Mohamed TAJJOUR demanded that he call Robin NASSOUR across the road. He then punched George NASSOUR in the head. This incident is the subject of the offence of assault to be taken into account on the sentence of Mohamed (sic) TAJJOUR. George, his brother and their friend immediately left the area.

3. At about 8.20pm on 2 January 2006, George NASSOUR received a phone call from a co-offender Faouzi ABOU –JIBAL (date of birth 10 January 1977, aged 29) asking George and Robin NASSOUR to attend the Meriton Apartments situated at 3 The Promenade, Chiswick, in an attempt to settle the dispute now perceived to exist between the NASSOUR brothers and Michael IBRAHIM (Faouzi ABOU – JIBAL has since died). George and Robin NASSOUR both attended the complex at about 9.20pm on 2 January 2006, picking up ABOU-JIBAL in their car near the entrance to the complex, where ABOU-JIBAL lived and where he was having a party attended by about twenty people including the three co-accused (IBRAHIM and the two TAJJOUR brothers). ABOU-JIBAL took the NASSOUR brothers to the basement car park of the building in a lift.

4. As the three men left the lift, Robin NASSOUR led the way

followed closely behind by Faouzi ABOU-JIBAL, with George NASSOUR following closely behind him. The three men started walking up the ramp in the car park. As that occurred the co-accused Mouhamed TAJJOUR, Sleiman TAJJOUR and Michael IBRAHIM walked towards the point where the top of the ramp meets a flat area between ramps. George NASSOUR became upset on seeing the three accused and started calling out words to the effect that this was a set up. At around this time, Faouzi ABOU-JIBAL produced a knife that he had previously kept concealed on his person and stabbed George NASSOUR to his upper rear right leg. He then went to stab George NASSOUR a second time, but George NASSOUR managed to pull him away. The knife was described by George NASSOUR as a fancy knife with a silver handle and shiny blade about thirty centimetres in length. A knife matching this description was subsequently recovered from the Bay near the Meriton apartment complex by police divers. Occupants of the units had seen a man throwing something into the water shortly after the events the subject of the present manslaughter charges. A former fiancée of ABOU-JIBAL, by the name of Shayda BASTANI RAD has identified this knife as one she bought him from the internet site Ebay and gave to him on 22nd or 23rd December 2005.

5. Immediately after he was stabbed, George NASSOUR saw the accused Sleiman TAJJOUR, Mouhamed TAJJOUR and Michael IBRAHIM surrounding Robin NASSOUR, who was still standing up at this point. George NASSOUR then ran away down the ramp, but returned to see all four men around Robin NASSOUR punching and kicking him. Robin NASSOUR was lying on the ground at this stage. During the attack, George NASSOUR believes he saw something silver being held by one of the accused, which was subsequently thrown at him. He believes that object was a knife. However police subsequently recovered the silver casing of a mobile telephone on the stairway in the area where George NASSOUR had been standing. Subsequent expert fingerprint examination located a palm print belonging to the accused Michael IBRAHIM on this phone casing. The deceased was found to have suffered blunt force injuries to his head consistent with being hit with an object such as a mobile telephone during the attack on him. During the attack on the deceased Robin NASSOUR, he was stabbed by Faouzi ABOU – JIBAL in the left thigh. This stab wound damaged the deceased’s left femoral artery and vein causing loss of blood which led to his death anywhere up to fifteen minutes after the injury was inflicted. There is no evidence of precisely when this fatal stab wound was inflicted during the course of the attack. The deceased also suffered a stab wound to his left shoulder, being a slash type injury. It measured approximately 75mm (3 inches) in length. Again, there is no evidence of precisely when and how this wound was inflicted during the attack.

6. The deceased suffered other blunt force injuries during the

attack upon him. These incuded lacerations to the head and above his left eye. He also suffered abrasions to his forehead, above his right eyebrow, at the tip of his left elbow, on his right arm and bruising to his left wrist and right legs (sic). These abrasions and bruises are consistent with being inflicted by kicks and punches. The blunt force injuries are consistent with being inflicted by a hard object such as a mobile phone or handle of a knife.

7. The accused stands to be sentenced for the offence of manslaughter by unlawful and dangerous act on the basis of an extended joint criminal enterprise. He was a party to a joint criminal enterprise with Mouhamed TAJJOUR, Sleiman TAJJOUR and Faouzi ABOU–JIBAL to unlawfully assault Robin NASSOUR in such a way as to cause him physical injury falling short of grievous bodily harm and was equally culpable in terms of his role in the offence with the other accused presently before the court in respect of the same offence. He first became aware of the knife at, or immediately after, the time ABOU–JIBAL stabbed George NASSOUR. At this time he foresaw the possibility that Faouzi ABOU–JIBAL might use the knife again to stab Robin NASSOUR and to cause him some harm falling short of grievous bodily harm.”

5 I make findings of fact in accordance with the agreed facts for the purpose of sentencing the prisoner.

6 Paragraph 7 of the agreed facts discloses that the prisoner stands to be sentenced for the offence of manslaughter by unlawful and dangerous act on the basis of an extended joint criminal enterprise with Mouhamed Tajjour, Sleiman Tajjour and Faouzi Abou-Jibal to unlawfully assault Robin Nassour in such a way as to cause him physical injury falling short of grievous bodily harm. As it is an agreed fact that each of the prisoners is equally culpable in terms of his role in the offence, I will refer in these remarks on sentence to submissions made as to the objective facts by counsel for the prisoners.

7 Counsel for the prisoners contend that the offence of manslaughter to which their clients have entered pleas of guilty is at the lower end of the scale of objective seriousness.

8 The prisoners’ offending did not involve an intention to kill or to inflict grievous bodily harm upon the deceased or reckless indifference to human life. There is no suggestion that any of the prisoners stabbed the deceased. It was their intention that they and Faouzi Abou-Jibal (Abou-Jibal) would assault Robin Nassour in such a way as to cause him physical injury falling short of grievous bodily harm. None of the prisoners was armed with a weapon. However, each of the prisoners had become aware of the knife in Abou-Jibal’s possession at, or immediately after, the time Abou-Jibal stabbed George Nassour to his upper rear right leg and then went to stab him again. The knife was described by George Nassour as having a silver handle and shiny blade about 30 centimetres in length.

9 The prisoners were then aware that Abou-Jibal would participate with them in the assault upon the deceased whilst he was armed with this knife. Furthermore they foresaw the possibility that Abou-Jibal might use the knife again to cause the deceased some harm falling short of grievous bodily harm. They did not desist but with this knowledge each of them participated in a brutal and cowardly attack upon the deceased. This carries with it, in my opinion, a very significant degree of criminality. It is not in these circumstances a mitigating factor as Mr Dunn QC for the prisoner Sleiman Simon Tajjour submits that the prisoners were unarmed and the blow that was struck by Abou-Jibal was to a “non-vital” part of the body of George Nassour.

10 The prisoners surrounded the deceased. They with Abou-Jibal punched and kicked him whilst he lay on the ground. The blunt force injuries, lacerations, abrasions and bruising suffered by the deceased make evident the violence to which he was subjected. As a consequence of being confronted by four attackers, the deceased was in the position that he could not defend himself against being stabbed with a knife. The deceased was stabbed twice by Abou-Jibal. It was the stab wound to the left thigh which damaged the left femoral artery and vein causing loss of blood which led to his death.

11 The Crown invites me to find that an aggravating factor was that “the offence was part of a planned or organised criminal activity”: s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (Crimes (SP) Act). Whilst the prisoners did not plan the use of a knife, the Crown contends that the unlawful and dangerous act was pre-planned involving as it did Abou-Jibal taking the deceased and his brother to a car park area away from witnesses where the prisoners were waiting. Counsel for each of the prisoners submit that the Court ought not be satisfied that this aggravating factor exists in this case. Each contend that the assault upon the deceased was spontaneous.

12 Mr Richter QC for Michael Ibrahim submits in particular that there is no sufficient evidence of the formation of an intent to assault anyone prior to George Nassour kicking up a fuss in a situation in which there was a meeting to resolve a perceived conflict. He says so far as the deceased is concerned “we know that he kept walking up to the ramp whilst George is calling out because the assault takes place at the top of the ramp and Robin is walking up there. Now, as to why or how, perhaps he had Dutch courage; I know not, we know not”. Mr Richter referred to a cocktail of some drugs in the blood of the deceased “that might give some Dutch courage at the time of his death”. (POS 18/1/08 p 54 L1-17). He argues that the proposition that his client was there to receive an apology could not be rejected.

13 There is no evidence that the prisoner Ibrahim was in the car park to receive an apology. It is an agreed fact that Abou-Jibal had asked the Nassour brothers to attend the Meriton Apartments to attempt to settle the dispute perceived to exist between them and Ibrahim. There is no evidence that the deceased continued to walk towards the prisoners after his brother had been stabbed. Furthermore, there is no evidence from which it may be inferred that the deceased did anything to provoke the attack upon him by the prisoners. There is no evidence in the proceedings on sentence that there was a cocktail of drugs in the blood of the deceased nor is there evidence of the affect that drugs might have had upon him. In any event the suggestion that the deceased provoked the attack upon him by the prisoners after his brother was stabbed is plainly implausible.

14 The Crown must prove beyond reasonable doubt that the prisoners had agreed with Abou-Jibal that he would bring the Nassour brothers into the basement car park where Robin Nassour would be unlawfully assaulted in such a way as to cause him physical injury falling short of grievous bodily harm. The Crown must exclude as a reasonable possibility that the assault by them upon the deceased was spontaneous. The only rational inference to be drawn from the combination of the taking of the Nassour brothers to the basement car park, the three prisoners walking towards the point where the top of the ramp meets a flat area between the two ramps, George Nassour’s upset on seeing the prisoners, the failure by the prisoners to desist after they became aware of the knife, the lack of provocation by the deceased, the immediacy of the prisoners surrounding the deceased after George Nassour had been stabbed and the violent attack with Abou-Jibal upon the deceased which then followed is that it had been previously agreed that Robin Nassour was to be unlawfully assaulted and it was part of the plan to assault him that he was to be brought down into the basement car park. It is not a reasonable possibility that the agreement to unlawfully assault Robin Nassour was spontaneously formed after George Nassour was stabbed by Abou-Jibal.

15 The agreement to assault the deceased in such a way as to cause him physical injury falling short of grievous bodily harm was pre-planned. The agreement to continue to participate in the assault upon the deceased although Abou-Jibal was armed with a knife was not. It was spontaneously formed after the prisoners became aware of the knife at, or immediately after, the time Abou-Jibal stabbed George Nassour. At this time they foresaw the possibility that Abou-Jibal might use the knife again to stab the deceased and to cause him some harm falling short of grievous bodily harm. In R v Wickham [2004] NSWCCA 193 the importance of making findings under s 21A in accordance with the words of the provision was stressed. Although the assault was pre-planned, I am not satisfied that the offence of manslaughter was part of a planned criminal activity in the sense envisaged in s 21A(2)(n) of the Crimes (SP) Act. However, the fact that it had been previously agreed that the deceased was to be assaulted in such a way as to cause him physical injury falling short of grievous bodily harm and as part of the plan to assault him he was brought down into the basement car park increases the objective seriousness of the offence.

16 I do not agree with the contention that the prisoners’ offending is at the lower end of the scale of objective seriousness. In my opinion, this is an objectively serious offence of manslaughter by unlawful and dangerous act. It is, as I have recounted, an agreed fact that each of the prisoners is equally culpable in the terms of his role in the offence.

17 The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v MacDonald (unrep, NSWCCA 12 December 1995). The starting point in the present sentencing exercise as in all offences of manslaughter is that the life of Robin Nassour aged 34 years has been unlawfully taken: R v Blacklidge (unrep, NSWCCA 12 December 1995).

18 Various cases imposing sentences for manslaughter by unlawful and dangerous act were cited by counsel during submissions. It is contended by counsel for the prisoners that the closest comparable case is R v Taiseni & Ors [2007] NSWSC 1090. With that contention I disagree. One of the distinguishing features of the present case is, as I have stated at paragraph 9 (supra), that the prisoners participated in the assault upon the deceased in circumstances where they knew that Abou-Jibal was armed with a knife which he might use again to cause the deceased some harm falling short of grievous bodily harm. To participate in a joint act of violence in these circumstances carries with it, as I have said, a very significant degree of criminality.

19 In Regina v Forbes [2005] NSWCCA 377 Hall J analysed sentences which had been more recently imposed for manslaughter. His Honour’s consideration included offences of manslaughter by unlawful and dangerous act. Hall J recognised [at 191] there is no obvious trend or range discernible in terms of any particular sub-set of manslaughter offences. However, his Honour’s review and the cases cited by counsel have been of assistance in determining the appropriate sentence. Each case depends on its own facts.

20 I turn to the subjective case of the prisoner.

21 Michael Ibrahim was born in Sydney on 30 April 1978 and was 27 years old at the time of the offence. His subjective circumstances are mainly taken from the history provided to Mr Tim Watson-Munro (exhibit MI 4). The prisoner did not give evidence during the proceedings on sentence.

22 He attended Merrylands Primary and High Schools before leaving during year 9. He then worked as a builder’s labourer for about seven months before taking on a job as a mechanic for about six months. The prisoner told the psychologist that at about that time he started drifting with the wrong company and spending a lot of his time playing snooker. This coincided, Mr Watson-Munro states, with the commencement of substance abuse problems involving primarily cannabis. Subsequent to his release from custody, Mr Watson-Munro recounts that the prisoner was working with one of his brothers assisting in the promotion of a number of family nightclubs. This is confirmed by David Freedman, the manager of the UN/DCM nightclub who states in his reference (exhibit MI 2) that the prisoner was working as a door host at the nightclub which position the prisoner took very seriously and was very reliable. Mario Sande and Mick Gulasi also refer most favourably to the prisoner in their testimonials. (exhibits MI 1 and MI 3).

23 The prisoner has five older siblings. Both parents are in a poor state of health. His mother has a very close bond with her son which was strengthened during the period that her husband left home to travel to Lebanon in order to take on a second wife. Mr Watson-Munro states that the prisoner was then about three years of age and his father disappeared for about three years before returning to cause further problems in the household. The prisoner’s sister, Fifi Ibrahim, confirmed with the psychologist that upon her father’s return there were ongoing tensions in the home with the siblings tending to take sides as to their parental loyalties. Their father, Miss Ibrahim said, has held a grudge against his children since that time. Her father had a chronic gambling problem which further stretched the family resources. She told Mr Watson-Munro that the prisoner has been exceptionally protective of his mother over the years and his incarceration has served as a source of immense distress for each of them.

24 Mr Watson-Munro opines that it is apparent that these difficulties impacted upon the prisoner’s self-esteem at an early age, which in turn offers some explanation as to him drifting in with inappropriate company during his late adolescence.

25 It is clear, Mr Watson-Munro states, that the prisoner is suffering a broad range of symptoms suggestive of an Adjustment Disorder, according to DSM-IV criteria. This has arisen as a consequence of unresolved early childhood trauma and more recently his confinement but more specifically, longstanding feelings of remorse and sadness concerning the death of Robin Nassour. It is apparent, the psychologist says, that the prisoner requires continuing treatment. Mr Watson-Munro states that the prisoner impresses as an individual with some potential in life. He says that advisedly on the basis of his expressions of remorse and more specifically the manner in which he provided considerable support and comfort to his mother and siblings over the years.

26 I accept that the prisoner’s circumstances as a child were difficult. I also take into account the psychologist’s assessment of an Adjustment Disorder.

27 A mitigating factor to be taken into account in determining an appropriate sentence is that “the offender has shown remorse for the offence…..in any other manner”: s 21A(3)(i) of the Crimes (SP) Act. The amendments made to s 21A(3)(i) by the Crime (Sentencing Procedure) Amendment Act 2007 do not apply as the pleas of guilty in the present proceedings were accepted before 1 January 2008 and have not been withdrawn. The prisoner has by his plea of guilty accepted responsibility for his actions and the plea is an indication of his remorse and contrition. The Crown case of manslaughter against each of the prisoners was, however, very strong. His plea of guilty was, in my opinion, a recognition of the inevitable. The strength of the Crown case, I emphasise, is relevant only to the evaluation of remorse: See R v Sutton [2004] NSWCCA 225 at [12].

28 During oral evidence Mr Watson-Munro said he did not have any reason to question the claimed remorse by the prisoner. On each occasion he had visited him at Long Bay the prisoner had “volunteered a great sense of regret regarding what has happened”: POS 30/11/07 p 29 L 7-8. The prisoner constantly ruminates about it, has sleep disturbance and wishes he could turn the clock back. The psychologist said that the prisoner “feels extremely sorry for the family of the deceased and wants to move forward with his life, but he feels that this is something that will never leave him. He said this on many occasions”: POS 30/11/07 p 29 L 13-17. Mr Watson-Munro had visited the prisoner on six occasions. His assessment of the genuineness of the prisoner’s sense of responsibility and remorse was, he said,: “As best I can tell”: POS 30/11/07 p 29 L 21.

29 Fifi Ibrahim during her evidence said that her brother feels “really sorry for the family of the deceased” and “just wishes he could turn back time when this happened, but he wants to take responsibility for what happened….” :POS 30/11/07 p 33 L 42-45.

30 I find it difficult to assess the extent of the prisoner’s remorse as he did not give evidence during the proceedings on sentence. It is troubling that Mr Ritcher QC in the submissions to which I have referred to at paragraph 12 (supra) suggests that the deceased in some way may have contributed to the prisoners’ assault upon him. These submissions, to my mind, are incompatible with genuine remorse and Mr Watson-Munro’s assessment. Nevertheless, I take into account the statements attributed to the prisoner by the psychologist and Fifi Ibrahim as demonstrating remorse for his offending.

31 The prisoner’s criminal history commences in 1996 and includes convictions as an adult for possession and supply of prohibited drugs, possession of an unauthorised firearm, assault occasioning actual bodily harm, hinder investigation of a serious indictable offence and two counts of make a false statement on oath (not perjury). Other than the offence of assault occasioning actual bodily harm for which he was convicted and fined in the Local Court on 5 May 2000, there is one offence involving violence namely, a charge of malicious wounding, when he was a young person, for which he was released on condition that he enter into a good behaviour bond for 12 months and was fined in the Children’s Court. He was sentenced in the Local Court on 27 July 2005 to terms of imprisonment for the possession and supply of prohibited drugs, driving whilst disqualified, driving recklessly, hinder investigation of a serious indictable offence and make false statement. He appealed to the District Court and at the time of the present offence these appeals had not been heard. It appears that on 16 June 2006 the convictions were confirmed in the District Court at Penrith and he was sentenced to three concurrent or partially concurrent terms of imprisonment. The longest sentence imposed was a term of imprisonment of two years commencing on 16 June 2004 and concluding on 15 June 2006.

32 That criminal history deprives the prisoner of the considerations of leniency to which he may have been entitled if the current offence was an isolated act of criminality. His record of previous convictions is not a factor of aggravation.

33 At the time of the commission of the crime of manslaughter the prisoner was on bail for the offences the subject of his appeal to the District Court. It is an aggravating factor that the prisoner was on conditional liberty when the offence was committed: s 21A(2)(j) of the Crimes (SP) Act. I take into account that he was not on bail for an offence involving violence. There is no merit in Mr Ritcher’s further submission that the seriousness of the prisoner’s commission of the offence whilst on conditional liberty is lessened as it was “appeal bail”: POS 18/01/08 p 59-60.

34 Mr Watson-Munro expressed the view that the prisoner “is highly motivated towards rehabilitation with a view to returning to community in order to take on employment and to care for his mother”:(exhibit MI 4 p 7). An uncritical acceptance of the psychologist’s favourable assessment of the prisoner’s prospects of rehabilitation is not assisted by the commission of the present offence whilst the prisoner was on bail awaiting the hearing of his appeal. Sentences of imprisonment had been imposed in the Local Court. Furthermore, it appears from the prisoner’s custodial records that the prisoner was in custody from 7 August 2003 until 18 May 2005 being bail refused on charges which were subsequently not proceeded with. It is a matter of concern that the present offence was committed about eight months after his release. I accept, however, that the prisoner who is now 29 years old will have the support of his family and employment upon his release. The prisoner has reasonable prospects of rehabilitation.

35 I am unable to conclude on the probabilities that the prisoner is unlikely to re-offend: s 21A(3)(g) Crimes (SP) Act.

36 The prisoner was arraigned with Sleiman Tajjour and Mouhamed Tajjour before Bell J when they each pleaded not guilty to a count of murder and a count of malicious wounding of George Nassour with intent to do grievous bodily harm to him. The prisoners’ trial on the counts upon which they had been arraigned had been listed to commence on Monday 2 October 2007. A jury panel, however, was not required on that day to enable preliminary matters to be raised. Ms Crown, on 2 October 2007, apprised the Court of ongoing discussions with counsel for the prisoners. On Friday 5 October 2007 Sleiman Tajjour and Mouhamed Tajjour entered pleas of guilty to an indictment specifying a single count of manslaughter.

37 Following these pleas of guilty an amended indictment was presented against Michael Ibrahim specifying a count of murder and a count of malicious wounding of George Nassour with intent to do grievous bodily harm to him. The prisoner pleaded not guilty to each count. Mr Richter then asked for George Nassour be made available for a Basha inquiry which was granted for the reasons set out in my judgment of 5 October 2007. Mr Nassour was called and cross-examined on the voire dire. The proceedings were adjourned to Monday 8 October 2007 when a jury was to be empanelled. On that day, Michael Ibrahim entered a plea of guilty to an indictment specifying a single count of manslaughter.

38 Mr Richter contends that the prisoner’s plea to manslaughter was entered at the first available opportunity. He argues, in short, that “there was no way possible of saying to the original indictment not guilty of murder but guilty of manslaughter, and not guilty of joining in the malicious wounding of George Nassour” POS 18/1/08 p 45 L13-18. He submits that it was on the withdrawal of that charge that it became possible to talk “about manslaughter in a final way”: POS 18/1/08 p 48 L 21. Ms Crown argues that the plea was not entered at the earliest possible time and points out that the offer of a plea to manslaughter was open to Mr Ibrahim at the time the Tajjours pleaded guilty. It was only after the voir dire was conducted that the plea of guilty was entered on the following Monday: POS 18/1/08 p 45 L 45-58. The Crown submits that the plea is to be regarded as a “late plea”.

39 It is evident from the application for the Basha enquiry that a critical issue was whether Michael Ibrahim had used a knife to stab the deceased. Because of changes in the position of George Nassour, the prisoner was entitled to cross-examine him to ascertain what he would say on oath at trial. I do not find, as the Crown contends, that the application for the voir dire was “totally inconsistent” with a desire to plead guilty at an early stage to manslaughter: POS 18/1/08 p 46 L 1-7. On the other hand, it was open to the prisoner to offer to plead guilty at an earlier stage to manslaughter on the facts which are presently agreed. I reject Mr Richter’s contention that this could not be done because of the second count of malicious wounding. An offer to plead to manslaughter on the present facts would not have prejudiced a defence to the second count.

40 Mr Richter submits that there was no offer made on Michael Ibrahim’s behalf “because when Mr Galloway gave evidence it became clear that it was made clear to Michael Ibrahim’s people by him that it was a waste of time to make the offer. Pointless”: POS 18/1/08 p 48 L 50-56. Mr Richter was there referring to testimony of Mr Galloway that he had a conversation with senior counsel then representing Mr Ibrahim at the committal hearing and had communicated the views of Ms Dobbs to her.

41 There is conflicting evidence from Mr Galloway, the solicitor who then acted for the Tajjour brothers on the one hand and Ms Dobbs, a solicitor with the Office of the Director of Public Prosecutions who was then involved in this case on the other, as to whether an offer was made on behalf of the Tajjours to plead guilty to manslaughter at the time of the committal proceedings. Shortly stated, it was Mr Galloway’s evidence that he had a clear recollection of having a conversation with Ms Dobbs in her office at Burwood on the day of the committal in which he informed her he had instructions to put an offer of manslaughter. Ms Dobbs response was that she believed “they had a strong case for murder; that she would not recommend it”: POS 30/11/07 p 17 L 52-54. Mr Galloway then formed the view that he was wasting his time pressing it any further.

42 Ms Dobbs recalled, however, that Mr Galloway approached her and indicated “that his clients, Mouhamed and Sleiman Tajjour might be prepared to plead to manslaughter and did I think that the Crown would accept such a plea” to which she believed she said “not at this stage”. She believed she told him it was a matter for the Supreme Court arraignments prosecutor: POS 18/1/08 p 5 L 25-40. If a formal offer had been made to her, Ms Dobbs said, she would have briefed the Supreme Court arraignment Crown prosecutor with it which she did not do because she did not “regard it as a firm offer”: POS 18/1/08 p 9 L 22.

43 For present purposes it is unnecessary to resolve the conflict between Mr Galloway and Ms Dobbs.

44 I do not accept that a communication of Mr Galloway’s understanding of his conversation with Ms Dobbs would have persuaded senior counsel for Michael Ibrahim from making an offer to plead guilty to manslaughter if she had those instructions nor would it have deterred the prisoner’s legal representatives from exploring with the Director of Public Prosecutions the possibility of such a plea being accepted. Ms Dobbs deposed that she never had a discussion with anybody representing Michael Ibrahim about the possibility of a plea to manslaughter. There is no evidence that Michael Ibrahim had provided instructions at that stage to make an offer to plead to manslaughter.

45 There were, I am informed, informal discussions between Ms Crown and Mr Richter about the possibility of a plea to manslaughter for about “a month or two prior to the trial”: POS 18/1/08 p 45 L 35 – 36. It appears that the changes in George Nassour’s position and the second count complicated the possibility of an earlier resolution of the discussions. I do not accede to the Crown’s submission that this was a “late plea” nor do I find that the plea was entered at the first available opportunity. The entry of the plea saved the cost and inconvenience of the trial and in particular avoided George Nassour being required to give evidence once again.

46 Michael Ibrahim is entitled to a discount for the utilitarian effect of his plea which I assess at 15 per cent.

47 I have given careful consideration to the rehabilitation of the prisoner and the interests of the community in his rehabilitation. These matters, however, cannot outweigh the gravity of the offence. The importance of denunciation in sentencing for manslaughter has been stressed: see R v MacDonald at p8.

48 Victim impact statements of Amelia Nassour, the deceased’s mother, Lilian Nassour and Paula Nassour, the deceased’s sisters, and George Nassour were read to the Court. The contents of the statements cannot be used by me to increase the prisoner’s sentence: R v Previtera (1997) 97 A Crim R 76. I acknowledge the grief and distress of the deceased’s family and express on the community’s behalf its sympathy and compassion for them.

49 It is agreed that Michael Ibrahim has been in custody for the present offence alone since 16 September 2006. From his custodial records it appears that the prisoner went into custody on 2 March 2006. He was sentenced as has been recounted at paragraph 31 (supra) in the District Court on 16 June 2006. A term of imprisonment of 12 months for the offence of supply was backdated to commence on 16 June 2005. The prisoner was sentenced to two years imprisonment for the offence of hinder investigation of a serious indictable offence to commence 16 June 2004 and to expire on 15 June 2006. For an offence of make false statement on oath (not perjury) a sentence of 12 months imprisonment commencing on 16 September 2005 and expiring on 15 September 2006 was imposed.

50 As the prisoner has served these sentences since he went into custody, it is necessary to consider the principle of totality: see Mill v The Queen (1988) 166 CLR 59. The offences for which the prisoner was sentenced in the District Court and the offence of manslaughter plainly are discrete and independent acts of criminality. This fact does not, however, finally determine whether the present sentence ought to be imposed concurrently, partially concurrently or consecutively: see Cahyadi v Regina [2007] NSWCCA 1 per Howie J [at 27]. In the present case concurrency or partial concurrency would not adequately reflect the criminality of the offence of manslaughter. Accordingly, the date of the commencement of the sentence will be 16 September 2006.

51 The appropriate undiscounted starting point of the sentence for Michael Ibrahim, I conclude, is 11 years. The sentence is reduced by 15 per cent to 9 years 4 months.

52 I find special circumstances as the present sentence has been made cumulative upon the existing sentence: see R v Simpson (1992) 61 A Crim R 58; R v Close (1992) 31 NSWLR 743 and, in my opinion, the prisoner’s rehabilitation upon release will be assisted by a longer period of supervision. By reason of the finding of special circumstances, I have assessed a non-parole period of 6 years 6 months.

53 Michael Ibrahim for the manslaughter of Robin Nassour I convict you. I sentence you to a term of imprisonment with a non-parole period of 6 years 6 months which is to commence on 16 September 2006 and is to expire on 15 March 2013. I set a balance of term of 2 years 10 months which is to commence on 16 March 2013 and is to expire on 15 January 2016.

54 The earliest date of eligibility for your release to parole is 15 March 2013.

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