DPP v Yucel
[2019] VSCA 53
•14 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0202
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| KAMIL YUCEL | Respondent |
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| JUDGES: | KAYE, NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 March 2019 |
| DATE OF JUDGMENT: | 14 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 53 |
| JUDGMENT APPEALED FROM: | R v Yucel [2018] VSC 506 (Taylor J) |
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CRIMINAL LAW – Sentence – Prosecution appeal – Plea of guilty to unlawful and dangerous act manslaughter – Respondent shot victim in belief that he was in imminent danger of being shot himself – Respondent’s state of mind one of ongoing, genuine and reasonable fear – Case a ‘notch’ above self-defence – Early plea – Genuine remorse – Delay – Good prospects of rehabilitation – Sentence of five years’ imprisonment not manifestly inadequate in unusual circumstances of case – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Ms F L Dalziel SC with Mr D B B Lewis | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent: | Mr P Morrissey SC with Ms G Morgan | Stephen Andrianakis and Associates |
KAYE JA:
NIALL JA:
WEINBERG JA:
On 10 August 2018, the respondent pleaded guilty to the manslaughter by unlawful and dangerous act of Rahat Khan at Dallas in Melbourne. He was sentenced to 5 years’ imprisonment with a non-parole period of 3 years.
The Director of Public Prosecutions has appealed against that sentence on the following ground:
The sentence imposed by the learned sentencing judge was manifestly inadequate.
Particulars:
In sentencing the respondent the learned sentencing judge:
(a)Failed to give sufficient weight to the nature and objective gravity of the offending;
(b)Failed to have sufficient regard to the maximum penalty and current sentencing practices for the offence of manslaughter;
(c)Failed to give sufficient weight to the principles of general deterrence, just punishment and denunciation;
(d) Gave too much weight to factors in mitigation.
Circumstances surrounding the offending
The respondent committed this offence outside his brother’s home in Broadmeadows. He shot the victim, Khan, twice with a small .25 calibre handgun, hitting him in the leg and in the body.
The background to this shooting may be briefly stated. It arose out of a series of events which the sentencing judge, appropriately, described as being ‘as complex as they are tragic’.[1]
[1]R v Yucel [2016] VSC 506 (‘Reasons’) [3].
For a little more than twelve months before the day in question, the respondent had been living in fear of a man named Farshad Rasooli. Khan was known to be an associate of Rasooli.
In May 2015, Rasooli and the respondent were involved in a public confrontation at the Hume Islamic Youth Centre. The dispute concerned a debt which Rasooli claimed was owed to him by the respondent. In the course of that confrontation, a friend of the respondent shot Rasooli in the leg. Rasooli declined to involve the police, but he made it known that he sought to visit revenge upon the respondent, and to obtain financial compensation from him.
Documents that were in the possession of Victoria Police demonstrated their knowledge of Rasooli’s threatening behaviour. They also recorded concern on the part of police that Rasooli or his associates might have the respondent shot. This concern was also expressed to the respondent’s Imam, Moustapha Sarakibi, who gave evidence to that effect in what was essentially a voir dire hearing.
On 22 May 2015, police informed the respondent of their concerns for his safety. Friends and acquaintances of the respondent, including his Imam, were aware that the respondent had a fear of being shot by Rasooli, or one of his associates. On the material before the Court, the sentencing judge found that the respondent’s fear of Rasooli was ‘ongoing, genuine and reasonable’.[2]
[2]Reasons [5].
In her sentencing remarks, the judge made it perfectly clear that she regarded this offence as being just a ‘notch’ above self-defence.[3] In particular, she described the respondent’s fear of Rasooli as ‘ongoing, genuine and reasonable’.[4] She found that people within his circle had noted that his subsisting fear had been, at the core ‘a specific fear of being shot’.[5] His brother had been the subject of threats. Her Honour accepted that both the decision to arm himself with a gun, and his decision to use it on the day in question had to be understood through the prism of his belief that he himself ‘faced a genuine, significant threat of being shot by Mr Rasooli and/or one of his associates’.[6]
[3]The term ‘notch’ is ours, but reflects the general sense of her Honour’s reasons for sentence.
[4]Reasons [5].
[5]Reasons [6].
[6]Reasons [31].
The judge went on to express her deprecation of the respondent’s decision to conduct himself without regard to the law with respect to the issues between himself and Rasooli. Importantly, she added that she accepted that ‘it was a genuine, ongoing and reasonable fear that led [the respondent] to make that choice’.[7]
[7]Reasons [36].
As a result of that fear, the respondent took a number of steps to avoid Rasooli and his associates, and to protect himself and his family from the danger that Rasooli posed. After being warned by police of their concerns, the respondent fled to Turkey where he remained for about four months.
Following the respondent’s return, he sought to make himself difficult to find. He lived at different addresses, and avoided parking his car anywhere immediately proximate to any house in which he happened to be staying.
Shortly after the respondent’s return to Melbourne in September 2015, Rasooli, together with a group of about 40 associates, attended the Hume Islamic Youth Centre searching for him.
It was at about that time that the respondent acquired the firearm with which he fatally wounded Khan.
In early 2016, the respondent’s brother was, as was made clear on the plea, the subject of telephone threats directed to him from associates of Rasooli. As a result, the respondent again travelled to Turkey in February 2016. After his return to Melbourne, he once again travelled to Turkey in April 2016 for the same reason.
Before Khan was shot on 12 July 2016, the respondent had made plans to travel once again to Turkey. He purchased an airline ticket on 2 July 2016 for departure on 20 July 2016.
In 2016, the month of Ramadan fell between early June and early July. During that period the respondent attempted, unsuccessfully, to resolve his differences with Rasooli with the assistance of his Imam. He feared that when Ramadan ended, Rasooli might reactivate his desire to seek revenge against him.
In July 2016 the respondent was living in a bungalow at the rear of his brother’s property in Broadmeadows. On 12 July 2016, Khan, with another man, Masihullah Rawani, drove together from Dandenong to Broadmeadows. They first visited ‘MyCentre’, a mosque that the respondent frequented. They then went to a kebab shop which was close to the respondent’s brother’s home.
At 5.06 pm on 12 July 2016, a telephone call was made from a number linked to Rasooli to Khan’s phone. Shortly after that call, Khan and Rawani left the kebab shop, and drove to the street in which the respondent’s brother lived. They parked their vehicle about fifty metres from the respondent’s brother’s house. Khan and Rawani then walked towards that house, along the opposite side of the street.
At that moment, the respondent arrived in the street in his car. He parked in the driveway of a neighbouring house, which was his custom at the time. After getting out of his car, he was approached by Khan and Rawani as they crossed the street and walked towards him. He recognised Khan as a person he knew as ‘Hamza’. A heated exchange then ensued between them.
The respondent was heard to say words to the effect of ‘get away from here’, ‘I don’t have any’, ‘get lost’, ‘don’t make me angry just walk away’, and ‘I’ll shoot you’. He then produced the handgun that he had acquired.
Rawani attempted to pull Khan away. The respondent fired two shots in rapid succession. As he did so, Khan moved forward. The shots were angled in a downwards trajectory. The first hit Khan’s leg. The second struck him in the chest. It appeared that at that moment Khan was bending forward, either lunging or lurching.
At that stage there was nothing to indicate to the respondent that Khan had been seriously injured. Both Khan and Rawani fled on foot to their parked car before they drove away. It was only moments later that Rawani realised that Khan had been shot. Rawani drove around trying to find a hospital. Ultimately, after some delay, an ambulance was called. When it arrived, Khan was already deceased.
Back at the scene, the respondent said to a neighbour, who had witnessed the incident, ‘don’t tell the police’. He then entered his brother’s house. A short time later, the respondent’s brother and his family left their home in their car. The respondent drove away. As he did so, he again told the neighbour not to tell the police.
On the next day, 13 July 2016, the respondent and two friends entered the reception area of the Quest Melbourne Airport Hotel. They booked a single room for a period of a week, until 20 July 2016. That was the date upon which the respondent was scheduled to fly out to Turkey. However, he was arrested in that room on 15 July.
An autopsy conducted on Khan established the cause of death to be acute internal blood loss as a result of the gunshot wound to the chest. A .25 calibre round was extracted from his left leg, and a second such round was removed from the lower right abdominal wall. The first bullet had entered the left knee and split the bone. The second had traversed the chest and abdomen, perforating the heart, lung, stomach and small bowel.
The respondent’s background and previous convictions
The respondent was born on 24 April 1988, and he was 28 years of age at the time of the offending. Between 2009 and 2014 he was convicted on a number of occasions at the Magistrates’ Court, primarily for offences involving damage to property, unlawful assault, affray, recklessly and intentionally causing injury.
In February 2013, he was sentenced by the Broadmeadows Magistrates’ Court on one charge of affray to six months’ imprisonment. That sentence was wholly suspended for a period of eighteen months. In December of that same year, he was further sentenced by the Broadmeadows Magistrates’ Court, on one charge of intentionally cause injury, to four months’ imprisonment. Once again, that sentence was wholly suspended, this time for a period of twelve months.
The respondent was raised and educated in the northern suburbs. He attended Upfield Primary School. When he was ten years of age, his father died as a result of a motor vehicle accident. After the loss of his father, the respondent’s education deteriorated. He attended secondary school until Year 10, but did not complete his studies that year.
After leaving school, the respondent commenced employment as a bricklayer’s labourer with his brother, who was also then employed as a bricklayer. After about a year, his brother opened his own business, and the respondent continued working with him until he was about 21 years of age.
The respondent then travelled to Turkey to stay with relatives for a period of 18 months. When he returned, at the age of 23, he resumed his employment with his brother as a bricklayer. After the incident in May 2015, in which Rasooli was shot, the respondent ceased to work, being preoccupied with travelling overseas, and taking other steps, for his own safety. He commenced but did not complete a course in personal training at the TAFE when he was about 25 years of age.
From the age of about 15, the respondent had had an extensive involvement in the sport of kickboxing. He participated in his first amateur fight when he was 18 years old, and fought in four professional bouts thereafter. In 2014, he held the Victorian Championship in that sport. As a result of his involvement in kickboxing, he commenced to conduct fitness and training classes at the Hume Islamic Youth Centre.
During his late teens and early 20s, the respondent drank heavily, and on several occasions used cannabis. It was in that context that he incurred the previous convictions to which we have referred. However, from the age of 25, he had largely abstained from drinking alcohol, and had ceased to use drugs. He had one serious relationship with a Turkish woman when he was between 20 and 23 years of age.
The proceeding
After his arrest the respondent was held in custody. During the first twelve months of that period, he was kept in protective custody, by reason of the threat that he faced of retribution from Rasooli and his associates.
The respondent was initially charged with murder. The pre-trial processes, in respect of that charge, were prolonged. That was because a series of claims of public interest immunity were made in relation to a number of relevant documents that were sought by the defence. Those claims were the subject of various rulings by a different judge in the Trial Division, and by this Court. As a consequence, and through no fault of the respondent, the trial was significantly delayed.
Ultimately, the prosecution and defence reached a resolution of the charges. The compromise resulted in the withdrawal of the charge of murder, it was replaced by a charge of manslaughter. As indicated, he pleaded guilty to that charge. By that plea, he admitted each element of the offence of manslaughter, and gave up any chance that he may have had of running what, on one view, might have been a viable defence of self-defence. That of itself was a matter that had to be given some weight in his favour by way of mitigation.
The plea
On the plea, counsel for the respondent emphasised that at the time of the offence, and for the previous twelve months, the respondent had experienced genuine and ongoing fear for his own safety, and that of his family. During that period he had taken a number of steps in order to prevent a confrontation between himself and Rasooli.
In that context, it was submitted, it was understandable that when the respondent was confronted by Khan outside his brother’s home, he felt immediate concern for his own safety, and that of his brother’s family. Counsel pointed to the evidence that the first shot fired by the respondent was directed towards the ground, and, when the second shot was fired, Khan was bending forward. Accordingly it was contended that the second shot had not been intended to injure Khan seriously, but rather to deter him from attacking the respondent.
Counsel further submitted that while the possession and use of the firearm would normally constitute an aggravating feature, in the present case the respondent had obtained and possessed the firearm for genuinely defensive purposes. Moreover, when the respondent told the neighbour not to tell the police, and fled the scene, he was not to know that Khan, at that time, was fatally wounded. It was rather that the respondent was concerned that police involvement might create complications for his family, as Rasooli had made threats in the past that the police were not be involved in the dispute between them.
Counsel for the respondent also placed weight on the plea of guilty, which, he contended, facilitated the course of justice, and was evidence of remorse. In that connection, counsel tendered a handwritten letter of apology prepared by the respondent and addressed to the family of Khan. Counsel also relied on the delay in the pre-trial proceedings that had been brought about through no fault of the respondent.
Finally, counsel tendered a number of character testimonials prepared by family and friends. These spoke of the respondent’s selfless and generous nature, and described him as a reliable, trustworthy and caring person. A number of the testimonials noted that, during the period of twelve months leading up to the commission of the offence, the respondent had evidenced genuine concerns for the safety of himself and of people around him. Some of the persons, who prepared the testimonials, had visited the respondent in prison, and had found him to be sincerely remorseful.
Sentencing judge’s reasons
In her reasons for sentence, the judge accepted that for the period of twelve months preceding the offence, and at the time of the offence, the respondent’s fear of Rasooli was ‘ongoing, genuine and reasonable’.[8] The judge noted that the respondent was ‘keenly aware’ that Rasooli blamed him for his having been shot, and was insistent also that the respondent owed him money.[9]
[8]Reasons [27].
[9]Reasons [28].
Her Honour accepted that the respondent’s response to the threat that he perceived could generally be characterised as one of taking evasive action. He had not sought any confrontation, and had spent a substantial amount of time absent from Melbourne and moving from home to home.
On the other hand, as the judge noted, the respondent had armed himself with a gun. We have already noted some of her Honour’s observations regarding the objective gravity of this offence, and her assessment of the respondent’s moral culpability. At the risk of repetition, we would emphasise the following passage:
While that action may be ‘defensive in nature’ … it was nonetheless illegal. By so doing, you made a choice that should you face a confrontation or situation engineered by Mr Rasooli, you could engage on the terms established by him. That is, you chose to act outside the law and not within it.
Having said that, I accept that both that decision and your decision to use the gun on 12 July 2016 must be understood through the prism of your belief that you yourself faced a genuine, significant threat of being shot by Mr Rasooli and/or one of his associates.[10]
[10]Reasons [30]–[31].
The judge then turned to the incident on 12 July 2016. Her Honour noted that although there was no suggestion that either Khan or Rawani was armed, the respondent’s ‘… perception of immediate threat at that instant was steeped in the atmosphere of the preceding twelve months’.[11] The judge accepted that the evidence demonstrated that the heated altercation was initially verbal, with the respondent telling the two men to leave. The evidence also demonstrated that at the moment that the respondent fired the gun, Khan was moving towards him. The judge further accepted that when he fired the weapon, the respondent was aiming ‘at the ground’.[12]
[11]Reasons [33].
[12]Reasons [33].
The judge accepted that the respondent had not known that he had seriously injured Kahn, so that his instruction to his neighbour not to involve the police was not an attempt to minimise what he had done. Her Honour also noted that the respondent’s planned departure for Turkey on 20 July 2016 had been organised well before the 12 July incident. The judge stated:
This is a most unusual case. I find that the circumstances outlined dictate that both the objective gravity of your offending and your moral culpability for it are reduced.[13]
[13]Reasons [39].
The judge accepted that in the circumstances the respondent’s plea of guilty should be construed as being an early plea. She accepted that the plea had great utilitarian value, and that the plea was ‘hugely demonstrative’ of the respondent’s remorse and his prospects for rehabilitation.[14] She accepted that the respondent was genuinely remorseful for his actions, and found that his prospects for rehabilitation were good.
[14]Reasons [56].
Submissions
The Director submitted that, notwithstanding the finding by the judge that the respondent had aimed at the ground when he fired the shot, nevertheless that act was extremely dangerous in the context in which it occurred. The fact that the respondent had the firearm on his person, and was prepared to use it, indicated a level of moral culpability which, it was submitted, was not reflected in the sentence imposed. In the circumstances, the respondent’s acquisition of the firearm was a serious example of an individual taking the law into his own hands rather than relying on the police. Further, his instruction to the neighbour not to contact the police demonstrated an ongoing willingness by the respondent to engage with Rasooli outside the law. Accordingly that conduct aggravated the gravity of the offending.
The Director further noted that the term of imprisonment imposed on the respondent represented only 25 percent of the maximum sentence prescribed for the offence of manslaughter. Counsel submitted that, of the manslaughter cases dealt with by this Court since 2013, only one offender had received a sentence of less than 8 years’ imprisonment. In that context, it was submitted, the sentence imposed in this case was ‘incongruous’ and inconsistent with current sentencing practices. It did not vindicate the role of general deterrence, which was a significant consideration in cases involving the use of dangerous weapons such as firearms.
In the course of oral submissions, senior counsel for the Director emphasised the gravity of this offence, arising from the use of a firearm by way of what she loosely described as ‘self-help’. Of course, she was correct to point out just how serious a matter it is for anyone to arm themselves with a gun, and then to use it, particularly in circumstances where the very possession of such a weapon, without lawful excuse, is itself a serious offence.
In response, senior counsel for the respondent noted that the judge had accepted that the respondent’s fear of Rasooli was both real and understandable, and that in the year preceding 12 July 2016, he had taken a number of steps to avoid Rasooli and his associates. Senior counsel noted that the immediate context to the events on the day in question were the threatening call made to his brother, and threats made on social media in June and July of 2016.
The judge accepted that the respondent had repeatedly told friends, and his Imam, that he feared being shot. It was because that was his genuine state of mind that, during the period leading up to the incident, the respondent had spent large amounts of time in Turkey and had regularly moved from home to home.
Counsel also noted that the judge accepted that when the respondent was confronted outside his brother’s house by two men, he knew them to be associates of Rasooli. It was also relevant, he submitted, that at that time Khan was aggressive, and that in the verbal altercation the respondent was heard to tell the men to leave. Further, while use of the gun was unlawful and dangerous, the judge accepted that the respondent was aiming at the ground, and that he did so at the very moment that Khan was moving towards him.
In these circumstances, it was submitted that the judge was correct to find that the objective gravity and moral culpability of the respondent for the offending was reduced.
In terms of current sentencing practices, senior counsel referred to two recent cases of manslaughter in which sentences of less than 8 years of imprisonment had been imposed.[15] In addition it was submitted that the circumstances of this case involved a unique factual situation, which placed the gravity of the offending at a level substantially lower than in a number of the cases relied on by the prosecution.
[15]In DPP v Tracy Kerr [2014] VSC 374 at [47] Hollingworth J imposed a sentence of 7 years’ imprisonment with a non-parole period of 4 years and 6 months on a charge of manslaughter. In R v Hudson [2013] VSC 184 at [39] King J imposed a sentence of 6 years’ imprisonment with a non-parole period of 3 years for the same offence.
Finally, senior counsel relied, in mitigation, on the early plea of guilty, the respondent’s genuine remorse, his work history, his family support, and his good prospects for rehabilitation. In those circumstances, it was submitted that the sentence imposed on the respondent could not be described as being wholly outside the range reasonably open to the sentencing judge.
Analysis
It is well established that a Director’s appeal against inadequacy of sentence must face the same degree of careful scrutiny as an appeal brought by an applicant who contends that his or her sentence was manifestly excessive.[16] The ground of manifest inadequacy is, and ought to be, difficult to make good.
[16]DPP v Karazisis (2010) 31 VR 634 para [1], [119]-[123], [127].
There is no suggestion in the present case that the judge’s sentencing remarks reveal specific error. As has often been said, an appeal against inadequacy should not be brought by the Director unless the sentence under challenge reveals some ‘error of principle’. An egregiously inadequate sentence can, in some cases, indicate such an error, without being able specifically to identify the precise point at which the judge went wrong.
The offence of manslaughter can be committed in a variety of different ways. It can also involve significantly different levels of moral culpability. Accordingly, more than most other offences, there is a wide range of sentencing options available to sentencing judges.
The Director’s submission largely reduces to a claim that any unlawful and dangerous act of manslaughter, which involves the shooting of an unarmed victim, must result in a head sentence that is far greater than five years’ imprisonment. That submission fails to recognise that sentencing for manslaughter will always be fact specific. It also fails to take into account the careful findings made by the judge both as to objective gravity and moral culpability, and as to matters of mitigation in the highly unusual circumstances of this case.
In that regard, the present case seems to us not to present a suitable vehicle by which to lay down general principles regarding sentencing for unlawful and dangerous manslaughter, even when the killing involves the use of a firearm. The facts of this case are, as we have said, unusual. Indeed, they are so unusual as to almost be characterised as unique.
The compromise reached between the prosecution and the defence, whereby the respondent agreed to plead guilty to manslaughter in exchange for the withdrawal of the charge of murder, resulted from the Crown’s inability to make full disclosure to the defence of material that may well have been exculpatory. Certainly, the Court of Appeal, when it dealt with an interlocutory appeal from the trial judge’s decision regarding public interest immunity, concluded that the documents in question could have been of substantial assistance to the defence in this case. The claim of public interest immunity, and the inability therefore to make the documents available was not the fault of the prosecution. It was the consequence of there being an arguable claim for public interest immunity that may have been perfectly justifiable.
Had that claim for public interest immunity claim been accepted, there would at least have been a chance that the respondent could have secured a permanent stay of the charge of murder brought against him. Certainly, that scenario has played out on a number of occasions in England.
It is not for us to comment upon the wisdom, or otherwise, of the compromise that was struck. All that we need say is that the circumstances surrounding the commission of this offence were so extraordinary, as to make it impossible to say that this sentence, carefully constructed and well-articulated, was wholly outside the range reasonably available.
Her Honour described the events leading up to this incident as being ‘as complex as they are tragic’.[17] She added that the circumstances outlined dictated that both the objective gravity of the respondent’s offending and his moral culpability for it were reduced. [18] In our view that was an entirely apt observation.
[17]Reasons [3].
[18]Reasons [39].
Without seeking to categorise the circumstances of this offence as being at any particular point on the spectrum of culpability, it is at least clear that this was far from being at the higher end of unlawful and dangerous act manslaughter. We are by no means persuaded that this sentence of five years’ imprisonment was manifestly inadequate. Nor are we persuaded that any of the particulars set out in relation to the ground of appeal have been made out.
More specifically, and at the risk of repetition, the evidence that was before the sentencing judge clearly established that at the time of the incident in which Khan was killed, the respondent had a genuine fear that his life, and perhaps that of his immediate family, were in real danger. Further, there was a body of evidence that demonstrated that that apprehension, by the respondent, was well founded, and therefore reasonable. Relevantly, the respondent understood (as was objectively the case) that the manner in which Rasooli intended to visit revenge on him was by having him shot. While the respondent was skilled in self-defence, that skill would have been of no avail to him if that threat had come to pass.
Further, as we have discussed, during the twelve months preceding the incident, the respondent did all that he could to evade any confrontation with Rasooli and his associates. Accordingly, when Khan and Rawani arrived outside his brother’s home on the evening of the incident, the respondent was well justified in apprehending that his life was then and there in imminent danger. Relevantly, he endeavoured to dissuade Khan and Rawani from violence, and urged them to leave. The respondent fired the shots at Khan when the latter was moving towards him. Importantly, the judge concluded, on the evidence before her, that when he fired those shots, the respondent was aiming at the ground.
Finally, it should also not be forgotten that the respondent’s fears, at the time he acquired the gun, and when he fired it, were not just for his own safety, but also for the safety of his family. On the evidence, that fear was well-founded.
Of course, her Honour also had regard to the mitigating factors that were present in this case, separate from the objective gravity of the offending, and the respondent’s moral culpability. In particular, there was the plea of guilty to the charge of manslaughter, which had considerable utilitarian value, and also was accompanied by genuine remorse, as her Honour found.
There were also the respondent’s good prospects of rehabilitation. Indeed, during the course of oral argument before this Court, senior counsel for the appellant eschewed any reliance upon the need for specific deterrence as a factor that may have been given insufficient weight by the sentencing judge.
Another matter which should not be overlooked was the delay that resulted from claims of public interest immunity being made that had to be resolved, through no fault of the respondent. The very fact of having a charge of murder hanging over one’s head for a lengthy period must be accorded some weight by way of mitigation, and the sentence imposed had to reflect that fact.
There was ample evidence before the judge as to strong family support, and we note that a great many character references were tendered on the respondent’s behalf on the plea. They spoke of his generosity and kindness, and indicated a willingness on the part of many people in his community to support him upon his release.
In broad terms, we accept as correct the respondent’s submissions as set out in the written case filed before this Court. It seems clear to us that the respondent genuinely feared, on reasonable grounds, that he was in imminent danger of being shot by, or on behalf of Rasooli.
As the written case correctly observes, the respondent’s perception of immediate threat at the instant that he fired his weapon was ‘steeped in the atmosphere of the preceding twelve months’.[19] While the acquisition and use of the firearm was to be wholly deprecated, and clearly constituted an unlawful and dangerous act, nevertheless, in light of the particular and most unusual circumstances of this case the sentence imposed was within range for offending of this nature.
[19]Reasons [33].
To state what should be obvious, nothing in our reasons for judgment should cast any doubt upon the correctness of the sentencing judge’s fully justified criticism of the respondent for having, ultimately, conducted himself without regard to the law. The courts must, when sentencing offenders, have regard to the need to do everything possible to deter young people, in particular, from having recourse to firearms, which are so dangerous, and cause so much devastation in our community.
There is nothing to indicate that her Honour failed to appreciate the seriousness of the offence of manslaughter, either in general, or in the case of someone using a firearm in circumstances such as these. Nor is there anything to suggest that she failed to give appropriate weight to the maximum penalty for manslaughter. A sentence of five years’ imprisonment is not to be viewed as a ‘slap on the wrist’.
In these circumstances, we would dismiss the appeal.
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