Ibrahim v Regina

[2009] NSWCCA 15

New South Wales
Court of Criminal Appeal

CITATION:	Ibrahim v Regina [2009] NSWCCA 15
HEARING DATE(S):	5/2/09
JUDGMENT DATE:	13 February 2009
JUDGMENT OF:	Grove J at 1; Blanch J at 2; Kirby J at 3
DECISION:	Leave to appeal granted, but the appeal dismissed.
CATCHWORDS:	Criminal Law - sentence appeal - manslaughter - extended joint criminal enterprise - whether inference of planning open - whether sentence manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Ibrahim [2008] NSWSC 268 R v Hung Duc Dang [2001] NSWCCA 321 R v Cardoso [001] NSWSC 775 R v Nicholas Hampton [2004] NSWSC 1215 R v Walsh, R v Sharp [2004] NSWSC 111; (2004) 142 A Crim R 140 R v Diab [2007] NSWSC 577 R v Taiseni, Motuapuaka, Leota, Tuifua [2007] NSWSC 1090 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 Hill (1981) 3 A Crim R 397 Taber & Styman v R [2007] NSWCCA 116; (2007) 170 A Crim R 427
PARTIES:	Michael Ibrahim (Appl) Regina (Resp/Crown)
FILE NUMBER(S):	CCA 2006/4050
COUNSEL:	P Boulten SC (Appl) D Frearson SC (Resp/Crown)
SOLICITORS:	Alexanders Lawyers (Appl) S Kavanagh (Resp/Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2006/2811
LOWER COURT JUDICIAL OFFICER:	Price J
LOWER COURT DATE OF DECISION:	21/4/08
LOWER COURT MEDIUM NEUTRAL CITATION:	[2008] NSWSC 268

2006/4050

GROVE J
BLANCH J
KIRBY J

Friday 13 February 2009

Michael IBRAHIM v REGINA

Judgment

1 GROVE J: I agree with Kirby J.

2 BLANCH J: I agree with Kirby J.

3 KIRBY J: On 8 October 2007, Michael Ibrahim (the applicant) pleaded guilty to having, on 2 January 2006, unlawfully killed Robin Nassour (manslaughter s 18(1)(b) Crimes Act 1900: maximum penalty 25 years imprisonment). On 21 April 2008, Price J sentenced Mr Ibrahim to imprisonment with a non parole period of 6 years and 6 months (16.9.06 to 15.3.13), with a balance of term of 2 years and 10 months (16.3.13 to 15.1.16), an aggregate term of 9 years and 4 months (R v Ibrahim [2008] NSWSC 268). Mr Ibrahim seeks leave to appeal against that sentence.

4 I will shortly set out the grounds of appeal. They involve a challenge to a factual finding made by the sentencing Judge and an assertion that the sentence imposed was excessive. However, I should first describe the circumstances in which the offence was committed.

The incident.

5 It was the Crown case that four persons, including Mr Ibrahim, were responsible for the death of Robin Nassour. The original indictment charged murder, with a second count of wounding the deceased’s brother, George Nassour. Two of the others charged, “KR” and “PR”, were Mr Ibrahim’s cousins. The fourth man, Faouzi Abou-Jibal, died some time after the incident for reasons unconnected with the incident.

6 The matter proceeded before his Honour upon the basis of an agreed statement of facts. Mr Ibrahim did not give evidence. The statement identified an incident the evening before the murder. It took place at the UN Nightclub, 33 Oxford Street, Sydney, where Mr Michael Ibrahim was the doorman. The incident furnished the background to the offence and the asserted motive for what happened the following evening. The agreed statement was as follows:

“1. On the evening of 31 December 2005 or the early hours of 1 January 2006 the deceased Robin Nassour ( ... aged 34) and his brother George Nassour ( ... 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 that time working as a doorman at the nightclub. His brother John operated the nightclub. The accused presently before the Court (KR and PR) 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.”

7 The agreed statement described what happened the following day, where a co-offender, PR, confronted the deceased’s brother, George Nassour. The statement said this:

“2. In the early hours of 2 January 2006, George Nassour, Robin Nassour and another friend went to McDonalds at Kings Cross. The accused PR ( ... aged 22) and the co-accused KR ( ... aged 25) were across the road and beckoned George Nassour across. PR 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 PR. George, his brother and their friend immediately left the area.”

8 On the evening of the same day (2 January 2006), arrangements were made for a meeting to be attended by George and Robin Nassour at an apartment block in Chiswick. The deceased died within a short time of attending the Chiswick address. The agreed statement said this:

“3. At about 8.20 pm on 2 January 2006, George Nassour received a phone call from a co-offender Faouzi Abou-Jibal ( ... 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 R 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 PR, KR 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 KR, PR 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 this attack, George Nassour believes he saw something silver being held by one of the accused, which was subsequently thrown at him. He believes this 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.”

9 The injuries to the deceased were described in these terms:

“6. The deceased suffered other blunt force injuries during the attack upon him. These included 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.”

10 The matter having been called on for trial, there were discussions between the Crown and counsel for each accused. A fresh indictment was then presented against each offender, including Mr Ibrahim. The indictment charged manslaughter by an unlawful and dangerous act. The agreed statement then set out the basis upon which Mr Ibrahim was to be sentenced:

“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 PR, KR 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.”

The Notice of Appeal.

11 The notice of appeal raised two grounds, which were as follows:

Ground 1: His Honour erred in finding, contrary to the evidence, that the applicant had agreed with his co-offenders to assault the deceased prior to his arrival at the car park.

Ground 2: The sentence is manifestly excessive.

12 I will deal with each ground in turn.

Ground 1: His Honour’s inference that the assault was planned.

13 It was said before the sentencing Judge, on behalf of the applicant, that the intention to assault the deceased had not been formed “until George Nassour (kicked) up a fuss”, asserting that the meeting was a “set up” (ROS 6, [12]). It was submitted that the Crown could not establish that the assault upon the deceased was planned. Rather, the Court would be satisfied that the offence was spontaneous. Accordingly, the applicant’s culpability was at the lower end of the scale of objective seriousness (ROS 5, [7]). The Crown said, on the contrary, there was planning. Those, including Mr Ibrahim, who went to the car park intended to assault the deceased, Robin Nassour. According to the Crown, the deceased and his brother were taken to the car park so there would be no witnesses (ROS 6, [11]).

14 Price J, in his remarks, identified the issue to be determined in these words: (ROS 7)

“[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. ...“

15 Addressing that issue, his Honour said this: (ROS 7)

“[14] ... 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.”

16 His Honour continued: (ROS 7/8)

“[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. ... ”

17 His Honour found that, whilst the offence could not be regarded as “part of a planned criminal activity” in the sense envisaged by s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, the crime should be viewed in the following light: (ROS 8)

“[15] ... 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.”

18 Price J therefore rejected the suggestion that the crime was at the lower end of the scale of objective seriousness. His Honour said this: (ROS 8)

“[16] ... 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.”

19 On this appeal, the applicant submitted that such a finding was not open. His Honour was obliged to sentence Mr Ibrahim upon the basis of the agreed statement of facts and inferences properly open on those facts. According to the applicant, the inference that the assault was planned, rather than spontaneous, could not be drawn beyond reasonable doubt. First, the description provided by the agreed statement as to the purpose of the meeting was in these terms:

“3. At about 8.20 pm on 2 January 2006, George Nassour received a phone call from a co-offender Faouzi Abou-Jibal ( ... 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. ... ”
(emphasis added)

20 Secondly, the first act of violence was the stabbing of George Nassour by Abou-Jibal. In that context, counsel for the applicant, in written submissions, said this: (Applicant’s Subs 5)

“[13] ... The applicant was not charged with the wounding of George Nassour. His Honour could not vest the applicant with criminal liability for that incident. It seems improbable that the applicant would have already been a party to a planned assault on Robin Nassour but not a party to an attack on George Nassour. If, then, the prosecution could not prove that the applicant was criminally responsible for the attack on George Nassour, the wounding of George Nassour by Abou-Jibal was an unforeseen frolic of Abou-Jibal’s.”

21 Thirdly, it was only at the time of the assault upon George Nassour, or immediately thereafter, that Michael Ibrahim (and his co-offenders) foresaw the possibility that Abou-Jibal might use the knife to again stab the deceased. That being the context, the applicant’s counsel made the following submission: (Applicant’s Subs 5)

“[15] Thus, a reasonable hypothesis exists, namely, that the applicant only became a party to the joint criminal enterprise to assault the deceased at or immediately after the time that Abou-Jibal stabbed George Nassour. If so, it was not open to his Honour to conclude beyond reasonable doubt that the applicant and his co-accused had agreed to assault the deceased prior to the deceased’s arrival in the car park. Yet his Honour rejected this argument and aggravated the sentence in the face of the evidence.”

22 The Crown submitted that his Honour, conscious of the onus, identified the correct test. He provided his reasons for rejecting, as a reasonable possibility, that the assault upon the deceased was spontaneous. According to the Crown, his reasons were compelling. The inference drawn by his Honour was therefore open to him.

23 I accept the Crown’s argument. It was open to his Honour to infer beyond reasonable doubt that the assault upon the deceased was planned. Indeed, that was the obvious inference. First, there were differences between the position of each brother. It was Robin Nassour (the deceased) who had made the original gesture which had so insulted Michael Ibrahim. His brother’s “crime” was that he supported him. The continuing importance of the original insult is apparent from the events a day or so later, in the early hours of 2 January 2006. It will be remembered that, on that day, the R brothers summoned George Nassour across the road at Kings Cross, whereupon PR “demanded that he call Robin Nassour across the road”. There was no suggestion in the agreed facts that he did so. In that context, George Nassour was then punched by PR and the brothers left.

24 Secondly, the invitation to the apartment, extended by Abou-Jibal, was to “settle the dispute now perceived to exist between the Nassour brothers and Michael Ibrahim” (agreed statement [3]). On the agreed facts, there was no suggestion that anyone other than Michael Ibrahim, and perhaps Abou-Jibal, would attend. Having driven to the apartment and, having met Abou-Jibal near the entrance to the complex, the following then occurred, according to the agreed facts:

“3. ... 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 PR, KR 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 . ...”
(emphasis added)

25 George Nassour drew the obvious inference. The agreed facts do not suggest that Abou-Jibal, whilst in the car park, summoned the three men. Their appearance had obviously been prearranged. The companions of Michael Ibrahim, moreover, were not anonymous bystanders, unknown to the Nassour brothers. They were the R brothers who had intervened in the dispute shortly after midnight the same day (2 January 2006), calling George Nassour across the road and demanding that he call his brother.

26 Thirdly, his Honour plainly attached importance to the location of the assault. The applicant and his co-offenders had been at a crowded party at Abou-Jibal’s apartment immediately beforehand. They left the party and made their way to the ramp of the basement car park. Counsel for the applicant argued that it would not have been appropriate to conduct the proposed “meeting” where the party was being held. Whilst that may be so, there were no doubt many locations where the meeting might have been held out of earshot of party guests, but in the open. The isolation of the car park was plainly unsettling to the Nassour brothers, for reasons which one can readily understand. One would infer that they expected some other location. The agreed facts state that the deceased and his brother (with Abou-Jibal following) were walking up the ramp, out of the car park, when the applicant and his companions appeared.

27 Finally, it was, as the Crown suggested, open to his Honour to attach importance to the sequence and timing of these events. At about the time that George Nassour protested that it was a “set up”, Abou-Jibal stabbed him. Immediately thereafter Michael Ibrahim and the R brothers surrounded Robin Nassour, who was still standing. George Nassour, meanwhile, ran up the ramp. When he returned, he could see his brother lying on the ground with each of the four men around him punching and kicking him (agreed statement [5]).

28 Whilst it is true, as argued by the applicant, that violence may incite violence, especially with young males, the inference is certainly open that, in this context, this sequence suggested rather more than that. Immediately after the stabbing, Michael Ibrahim and his companions turned their attention to the person whose gesture had set these events in train.

29 Accordingly, on this material, it was open to his Honour to infer beyond reasonable doubt that the assault of Robin Nassour was planned.

30 I would dismiss Ground 1.

Ground 2: The sentence was manifestly excessive.

31 Although the written submissions by the applicant may be read as suggesting that Ground 2 was dependent upon success in respect to Ground 1, senior counsel appearing for Mr Ibrahim made it clear that Ground 2 was pressed independently of Ground 1. It was submitted that, even recognising the protean nature of manslaughter, the sentence was outside the available range, not by months, but by years.

32 Let me briefly refer to the findings of Price J before dealing with the arguments advanced by each party. As mentioned, counsel appearing for Mr Ibrahim at the sentencing hearing suggested that the criminality of the applicant (and his co-offenders) was “at the lower end of the scale of objective seriousness” (ROS 5, [7]). Price J acknowledged that there was no intention to kill or inflict grievous bodily harm, and that none of the offenders that he was called upon to sentence was armed. Nonetheless, each was aware of the stabbing of George Nassour and that Abou-Jibal had a knife. In that context, his Honour said this: (ROS 5)

“[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 KR 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.”
(emphasis added)

33 His Honour added: (ROS 5/6)

“[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.”

34 His Honour thereafter considered the issue of whether the crime had been planned. He determined that the foundational crime, that is the assault upon Robin Nassour (the deceased), was planned, although the manslaughter was not (ROS 7/8, [15]). He concluded as follows: (ROS 8)

“[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.”

35 Price J then examined what may be termed “the subjective case” of Mr Ibrahim (ROS 9-17, [20]-[47]). Mr Ibrahim did not give evidence. His sister was called and gave evidence relevant to remorse. A number of references were tendered, as well as a report from Mr Watson-Munro, psychologist.

36 Mr Ibrahim was born in April 1978 in Sydney. He was 27 years old at the time of the offence. His parents had come to this country from Lebanon with a number of children. Mr Ibrahim was part of a large family. He left school, having completed Year 9, and thereafter was employed in a number of labouring jobs. However, as he acknowledged to Mr Watson-Munro, he fell in with “bad company” in his teenage years. He spent much of his time in snooker parlours, abusing drugs, mainly cannabis. He also spent some time in gaol. Having been released from gaol, he assisted one of his brothers in the promotion of a number of family nightclubs. It will be remembered that he was working at one such nightclub as a doorman when he witnessed the deceased making a gesture, which gave rise to the events which have been described.

37 Mr Watson-Munro obtained a history from the applicant of longstanding symptoms of depression and anxiety which appeared to have developed in childhood. When he was three years old his father “disappeared”, returning to Lebanon in order to claim a second wife. When he returned there was tension within the family, made worse by his father’s chronic gambling. As a consequence, Mr Ibrahim had, according to the history he provided to Mr Watson-Munro, become “exceptionally protective of his mother”. More recently his anxiety had been exacerbated by his sorrow at the death of the deceased. In that context, his Honour said this: (ROS 11)

“[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.”

38 His Honour dealt with the issue of remorse at some length. He noted that counsel for Mr Ibrahim had made suggestions which implied that the victim may have contributed to the assault, a submission incompatible with genuine remorse. Nonetheless, on balance, his Honour appeared to have accepted that there was remorse (ROS 12, [30]).

39 The remarks included the following summary of the applicant’s criminal history: (ROS 12/13)

“[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.”

40 Price J concluded that, whilst that history deprived Mr Ibrahim of leniency, it was not a matter of aggravation (ROS 13, [32]). However, Mr Ibrahim was on bail pending appeal in respect to the charge of hinder investigation of a serious indictable offence when the offence of manslaughter was committed. That was a serious aggravating factor (s 21A(2)(j) of the Crimes (Sentencing Procedure) Act) (“the Act”) (ROS 13, [33]).

41 On the issue of rehabilitation, Price J somewhat charitably, said this: (ROS 13)

“[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 M14 p7). 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. ... 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.”
(emphasis in original)

42 That finding was charitable because Mr Ibrahim’s close relationship with his mother had not stopped him offending as a teenager and throughout his twenties, as described. His Honour, however, said he could not conclude that (as a matter of mitigation) Mr Ibrahim was unlikely to reoffend (s 21A(3)(g) of the Act) (ROS 13, [35]). His Honour allowed a discount for the plea of guilty of 15 percent (ROS 17, [46]).

43 Counsel for the applicant identified a number of cases which he suggested were comparable and which demonstrated that the starting point of 11 years was outside the range. The cases included R v Hung Duc Dang [2001] NSWCCA 321; R v Cardoso [2001] NSWSC 775; R v Nicholas Hampton [2004] NSWSC 1215; R v Walsh, R v Sharp [2004] NSWSC 111; (2004) 142 A Crim R 140; R v Diab [2007] NSWSC 577; R v Taiseni, Motuapuaka, Leota, Tuifua [2007] NSWSC 1090. In addition, reference was made to a schedule of cases considered by Hall J in R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [190ff]. Counsel also tendered statistics from the Judicial Commission.

44 The Crown responded by submitting that, especially in the context of manslaughter where the circumstances vary so widely, other cases and statistics are of limited assistance. In respect of the particular cases relied upon, each was, according to the Crown, distinguishable. The Crown said this: (Crown subs)

“[27] Three of the Supreme Court judgments relied on by the applicant are cases of manslaughter by excessive self-defence ( R v Diab [2007] NSWSC 577) or provocation ( R v Cardoso [2001] NSWSC 775 and R v Walsh (2004) 142 A Crim R 140). This reduces the already limited assistance that may be derived from sentences imposed in other manslaughter cases, bearing in mind however that manslaughter by unlawful and dangerous act is not necessarily a less serious form of manslaughter compared with other forms. As Smart AJ said in R v Dally (2000) 115 A Crim R 582 at [64], ‘It is not the variety of manslaughter but the facts which determine the objective gravity of the offence.’
[28] Significant distinguishing features in terms of subjective factors are also evident from an examination of these cases. In R v Dang [2001] NSWCCA 321, the offender was aged 19-20 years at the time of the offence and would be serving his sentence on protection; in R v Hampton [2004] NSWSC 1215, the offender was aged 18 years at the time of the offence and had ‘intellectual limitations’; and in R v Stelfox [2002] NSWCCA 331, the offender pleaded guilty at committal and received a combined discount of 45% for his plea and his assistance to authorities.”

45 His Honour, according to the Crown, was entitled to take into account that Mr Ibrahim, with three others, had enthusiastically and repeatedly punched and kicked a man who was on the ground and unable to defend himself. They had done so knowing that one of their companions, who had joined in the assault, had a knife which he had already used that evening and which he may use again. According to the Crown, his Honour was further entitled to attach some importance to the fact that this had occurred at a time when Mr Ibrahim was on conditional bail.

46 Again I accept the Crown submissions. In Hill (1981) 3 A Crim R 397, Street CJ said this: (at 402)

“It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. ... “

47 The Chief Justice added:

“ ... It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interests of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.”

48 In R v Forbes (supra), Spigelman CJ made comments along similar lines, when he said this:

“[133] As has frequently been stated, manslaughter is almost unique in its protean character as an offence ...
[134] It is also relevant to recognise that, although manslaughters can be categorised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.”

49 In Taber & Styman v R [2007] NSWCCA 116; (2007) 170 A Crim R 427, the Court (Hodgson JA, Howie and Price JJ) made the following statement: (at 450)

“[102] ... circumstances that may constitute the crime of manslaughter are so varied that little assistance is to be derived from sentences in other cases.”

50 The cases and the statistics of the Judicial Commission are of limited assistance. His Honour was conscious of them. In the context of those cases, his Honour said this: (ROS 8/9)

“[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 thast 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.”

51 It cannot be said, in my view, that the sentence was outside the available range. I would dismiss Ground 2.

Order.

52 The order I propose is that leave to appeal should be granted, but the appeal dismissed.

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