JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 13 September 2019
DATE OF SENTENCE:	25 October 2019
CASE MAY BE CITED AS:	DPP v Awad
MEDIUM NEUTRAL CITATION:	[2019] VSC 706

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CRIMINAL LAW - Sentence - Unlawful and dangerous act manslaughter - Single knife wound to chest of victim – Excessive self-defence – Consumption of drugs and recent epileptic fit relevant to offending – Post-ictal confusion and automatism considered – Plea of guilty – Genuine Remorse - Moderately extensive criminal history - Offending neither among the most serious nor least serious examples of manslaughter - Imprisonment more onerous owing to epilepsy - Term of imprisonment of 7 years with non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N Hutton	Office of Public Prosecutions
For Mr Awad	Mr P Tehan QC with Mr A Lewis	Slades & Parsons

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The offending..................................................................................................................................... 2

Aggravating and mitigating factors for culpability in the offence.......................................... 4

Post-ictal confusion?..................................................................................................................... 5
Epilepsy generally......................................................................................................................... 9

The impact of the offence on the victims...................................................................................... 9

Conclusion on objective gravity of the offence and Mr Awad’s personal culpability...... 10

Personal background and prior criminal history....................................................................... 11

Key aspects of prior criminal history....................................................................................... 12

Guilty plea and remorse................................................................................................................. 13

Relevant sentencing objectives..................................................................................................... 14

Comparable cases and sentences.................................................................................................. 15

Sentence and formal declarations................................................................................................. 16

HIS HONOUR:

Introduction

Yet again, the facts of this case prove the insidious and destructive impact of illicit drugs on the lives of people in our community.

Albert Awad, while semi-conscious, having consumed drugs and experienced an epileptic seizure, you were set upon by two men armed, respectively, with a metal pole and a baseball bat, aiming to eject you from the premises where you were situated. In the violent struggle that followed you pursued your attackers and fatally stabbed one of them, Nicola Manyoh-Thiak, a 22-year-old man. Having initially been charged with the murder of Mr Manyoh-Thiak, to which you entered a plea of not guilty, about three weeks before your scheduled trial you entered a plea of guilty upon being re-arraigned on the charge of manslaughter.

One of your potential avenues of defence to the charge of murder was that you had acted involuntarily in a state of post-ictal confusion following your epileptic seizure. Another was that you were acting in defence of yourself and members of your family who were present. In pleading guilty to the charge of manslaughter, however, you have accepted that you killed your victim by deliberately stabbing him – an unlawful and dangerous act – without lawful justification for doing so, yet also without any intention to kill him or cause him really serious injury.

At your plea hearing, the Court heard differing views from neurologists concerning the likely effect on you of your epileptic seizure during the time of the offence, and of 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 DPP v Awad

Details

AGLC: DPP v Awad [2019] VSC 706
Case: [2019] VSC 706
Decision Date: 25 October 2019

CaseChat Overview and Summary

In the case of DPP v Awad, the respondent faced prosecution for unlawful and dangerous act manslaughter, following the death of a victim who had sustained a single knife wound to the chest. The matter was heard in the Supreme Court of Queensland. The respondent, having consumed drugs and experiencing a recent epileptic fit, claimed to have acted in excessive self-defence. The court was required to consider whether his actions constituted manslaughter and, if so, to determine an appropriate sentence, taking into account his criminal history, the circumstances of the offence, and the mitigating factors present.

The primary legal issue before the court was whether the respondent's actions constituted unlawful and dangerous act manslaughter. The court also needed to assess whether the respondent's consumption of drugs, recent epileptic fit, and post-ictal confusion could be considered mitigating factors. Furthermore, the court had to evaluate the degree of remorse expressed by the respondent and the appropriate sentence, considering the principles of proportionality and deterrence. The court's task was to balance the need for punishment and deterrence against the mitigating circumstances of the case.

The court found that the respondent's actions did indeed constitute unlawful and dangerous act manslaughter. However, the court accepted that the respondent's consumption of drugs, recent epileptic fit, and post-ictal confusion were relevant factors that could be taken into account in sentencing. The court also acknowledged the respondent's plea of guilty and genuine remorse. Considering the moderately extensive criminal history of the respondent and the fact that the offending was neither among the most serious nor the least serious examples of manslaughter, the court imposed a term of imprisonment of 7 years with a non-parole period of 5 years. The court found that the imprisonment term was more onerous for the respondent due to his epilepsy.

In summary, the Supreme Court of Queensland found the respondent guilty of unlawful and dangerous act manslaughter. The court took into account the mitigating factors present in the case, including the respondent's consumption of drugs, recent epileptic fit, and post-ictal confusion. The court also considered the respondent's plea of guilty and genuine remorse, as well as his criminal history. The court imposed a term of imprisonment of 7 years with a non-parole period of 5 years, recognising that the term was more onerous for the respondent due to his epilepsy.

Orders