DPP v El Nasher - [2023] VSC 694

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0218

DPP	Crown
v
ABDULLAH EL NASHER	Accused

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2023
DATE OF SENTENCE:	28 November 2023
CASE MAY BE CITED AS:	DPP v El Nasher
MEDIUM NEUTRAL CITATION:	[2023] VSC 694

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CRIMINAL LAW — Sentence — Murder — Intentionally causing serious injury (ICSI) — Prohibited person using firearm — Prohibited person possessing firearm — The offender (D) shot two victims (V1 & V2) outside a boxing venue after arguments between D’s group and the victims’ group inside the boxing venue — D ran a trial, arguing lack of intent and self-defence — D convicted by the jury of murder re V1 and ICSI re V2 but was acquitted of attempted murder re V2 — D pleaded guilty to the firearms charges, the latter relating to D’s brandishing of the gun earlier that day — Whether D’s intention when firing shots was an intention to kill or an intention to cause really serious injury — Whether D formed relevant intent just before shooting or at an earlier stage — Whether D fired shots in excessive defence of self or another — Standard sentence murder — D sentenced as serious violent offender re ICSI — DPP v Elliott & Fares (Sentence) [2022] VSC 554 — DPP v Gonzalez [2022] VSC 331 — R v Kilik (2016) 259 CLR 256 — Director of Public Prosecutions v Lee [2023] VSC 437 — Ahmed Mohamed v The Queen [2022] VSCA 136 — R v Pan [2021] VSC 703 — DPP v Rider & Ong [2023] VSC 466 — Surtees v The King [2023] VSCA 42 — R v Wilio [2022] VSC 86 — Crimes Act 1958, ss 16 and 321M — Firearms Act 1996, s 5 — Sentencing Act 1991, ss 5, 5B, 6AAA, 11A(1)(b) and 11(4).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Thomas with Ms A Haban-Beer	Office of Public Prosecutions
For Abdullah El Nasher	Mr D Sheales with Ms S Seoud	Stephen Andrianakis and Associates

HIS HONOUR:

CIRCUMSTANCES OF OFFENCES

Abdullah El Nasher, you stood trial on three charges: Charge 1, the murder of Benjamin Togiai; Charge 2 the attempted murder of Omar Bchinnati; and, in the alternative, Charge 3, intentionally causing serious injury (ICSI) to Mr Bchinnati. The jury found you guilty of Charges 1 and 3 and not guilty of Charge 2. The jury found your alleged co-offender, Osamma Allouche, not guilty on all charges. You subsequently pleaded guilty to the offences of prohibited person possessing a firearm and prohibited person using a firearm. The maximum penalties for these offences are as follows: life imprisonment for murder; 20 years’ imprisonment for ICSI; and 10 years’ imprisonment for both firearm offences. All these offences relate to events on 1 March 2019, to which I will now turn, in chronological order.

At approximately 8am on 1 March 2019, you attended at Epping…

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 El Nasher

Details

AGLC: Director of Public Prosecutions v El Nasher [2023] VSC 694
Case: [2023] VSC 694
Decision Date: 28 November 2023

CaseChat Overview and Summary

In the Supreme Court of Victoria, the Director of Public Prosecutions brought proceedings against El Nasher, the defendant, following an incident where he shot two victims outside a boxing venue. The case revolved around the defendant’s intent when firing the shots and the nature of the charges, including murder, intentionally causing serious injury, and firearm offences. The defendant claimed self-defence and argued against the intent to kill or cause really serious injury. The jury convicted the defendant of murder in relation to one victim and intentionally causing serious injury in relation to the other, acquitting him of attempted murder regarding the second victim. The defendant also pleaded guilty to the firearms charges.

The legal issues before the court included determining the defendant's intention at the time of the shooting, whether this intention was formed just before the shooting or earlier, and whether the defendant fired the shots in excessive self-defence. Additionally, the court had to assess the appropriate sentence for the defendant, considering the standard non-parole period for murder and the relevant sentencing principles for intentionally causing serious injury. The court referenced several precedent cases to guide its decision, including DPP v Elliott & Fares, DPP v Gonzalez, and R v Kilik, among others.

The court found that the defendant's actions were not in response to an immediate threat but rather an escalation of the pre-existing dispute. The evidence suggested that the defendant had the intent to cause serious injury or death when firing the shots. The court rejected the defendant’s self-defence claim, noting that the use of a firearm in such a manner was excessive. In sentencing, the court considered the defendant's background and the nature of the offences, ultimately sentencing him as a serious violent offender for the intentionally causing serious injury charge and applying the standard non-parole period for murder.

The final orders included a life sentence for the murder conviction, with a non-parole period of 23 years, and a concurrent sentence for the intentionally causing serious injury charge, reflecting the seriousness of the offences and the defendant's culpability.

Orders