Mariam v The Queen; R v Mariam

[2013] NSWCCA 338

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mariam v R; R v Mariam [2013] NSWCCA 338

Hearing dates:

2 August 2013

Decision date:

20 December 2013

Before:

Simpson J at [1]; Price J at [67]; R A Hulme J at [68]

Decision:

Mariam v R

(i) Leave to appeal against sentence granted;

(ii) Appeal dismissed.

R v Mariam

(i) Director's appeal against sentence allowed;

(ii) Each sentence set aside and in lieu thereof Mahmoud Mariam sentenced as follows:

 with respect to the conviction for affray, Mahmoud Mariam is sentenced to imprisonment for a fixed term of 4 years, commencing on 24 April 2010, and expiring on 23 April 2014;

 with respect to the conviction for manslaughter, Mahmoud Mariam is sentenced to imprisonment comprising a non-parole period of 8 years 9 months commencing on 24 April 2011 with a balance of the term of the sentence of 3 years 3 months expiring on 23 April 2023. The earliest date the offender will be eligible for release on parole will be on the expiration of the non-parole period on 23 January 2020.

Catchwords:

CRIMINAL LAW - appeal - offender on trial for murder and affray - acquittal on murder charge - guilty of alternative count of manslaughter - application for leave to appeal against sentence - severity - whether sentencing judge erred in determining facts - no error found - leave to appeal granted - appeal dismissed
CRIMINAL LAW - Crown appeal - s 5D Criminal Appeal Act 1912 - whether sentencing judge erred by failing to accumulate the sentences sufficiently - accumulation failed adequately to reflect criminality - whether sentencing judge erred by finding specific deterrence had limited significance - error found - whether sentences manifestly inadequate - error found - appeal allowed - each sentence set aside - offender re-sentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited:

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Collier v R [2012] NSWCCA 213
House v The King [1936] HCA 40; 55 CLR 499
R v Edwards [1996] 90 A Crim R 510
R v Previtera [1997] 94 A Crim R 76
TDP v R; R v TDP [2013] NSWCCA 303
The Queen v Pemble [1971] HCA 20; 124 CLR 107

Category:

Principal judgment

Parties:

Mahmoud Mariam (Applicant/Respondent)
Regina (Respondent/Applicant)

Representation:

Counsel:
S Odgers SC (Applicant/Respondent)
J Pickering SC (Respondent/Applicant)
Solicitors:
Matouk Joyner Lawyers (Applicant/Respondent)
S Kavanagh - Solicitor for Public Prosecutions (Respondent/Applicant)

File Number(s):

2010/97926

 Decision under appeal 

Citation:

R v Mariam [2012] NSWSC 1023

Date of Decision:

2012-08-30 00:00:00

Before:

Latham J

File Number(s):

2010/97926

Judgment

1. SIMPSON J: On 28 February 2012 Mahmoud Mariam was arraigned, jointly with two others (a juvenile known as HEK, and Adel Elkobaili), in the Supreme Court on an indictment that charged one count of murder, and one count of affray. HEK was also charged with one count of arson. All accused entered pleas of not guilty to all counts, a jury was empanelled and a trial commenced.

1. On 28 May 2012, the jury returned its verdicts. It found Mariam not guilty of murder, but guilty of the alternative count of manslaughter and guilty of the affray charge. It found HEK not guilty of murder, not guilty of manslaughter, but guilty of affray and guilty of the further count of arson. It found Adel Elkobaili not guilty of murder, not guilty of manslaughter, and not guilty of affray. Elkobaili's acquittals were the consequence of a successful defence of self-defence.

1. By s 24 of the Crimes Act 1900, the maximum penalty for an offence of manslaughter is imprisonment for 25 years. By s 93C(1) of the Crimes Act, the maximum penalty for an offence of affray is imprisonment for 10 years.

1. On 30 August 2012 Latham J sentenced Mariam. On the conviction for affray, she imposed a fixed term of imprisonment of 3 years, commencing on 24 April 2010 and expiring on 23 April 2013. In respect of the manslaughter conviction, she imposed a sentence of 7 years and 9 months, made up of a non-parole period of 5 years and 9 months with a balance of term of 2 years, commencing on 24 July 2010, and therefore accumulated by 3 months on the sentence for affray. The aggregate sentence was therefore one of imprisonment for 8 years with a non-parole period of 6 years. In sentencing as she did, Latham J took into account that, on two earlier occasions (16 May 2011 and 20 February 2012) Mariam had, through his legal representatives, offered a plea of guilty to manslaughter in full satisfaction of the indictment. The Crown declined to accept the plea on that basis. Having regard to the jury verdict, and Mariam's offer of a plea of guilty to the offence of which he was ultimately convicted, Latham J reduced the sentence she would otherwise have imposed on the count of manslaughter by 15 per cent. The starting point for that sentence may therefore be taken to have been 9 years. A non-parole period in the statutory ratio (s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act")) would have been 6 years and 9 months. Latham J found no special circumstances that would justify departure from the statutory ratio. The aggregate sentence reflects that conclusion.

1. On 17 September 2012, pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions ("the Director"), filed and served notice of appeal against the sentences, asserting that they were manifestly inadequate. On 3 June 2013 Mariam filed a notice of application for leave to appeal against what he asserted was the manifestly excessive severity of the sentences. Given the timing of the application, Mariam needed an extension of time to make the application. That extension was granted at the commencement of the hearing of the appeal. On 26 June 2013 the Director filed an amended notice of appeal, pleading three specific grounds (set out below). Mariam has not appealed against the convictions. Having regard to the separate proceedings, it will be convenient to continue to refer to him by his surname.

The grounds

1. By his amended of notice of appeal, the Director asserts three grounds:

"Ground 1: Her Honour erred by failing to accumulate the sentences sufficiently.

Ground 2: Her Honour erred by finding that specific deterrence had limited significance.

Ground 3: The sentences, individually and in total, are manifestly inadequate."

1. Mariam pleads one ground only, framed as follows:

"1. The sentencing judge erred in determining the facts."

1. Since the Director's appeal can only be decided when the facts are fully known, it will be convenient to deal first with Mariam's application for leave to appeal against sentence.

Background

1. The charges arise out of an event that took place in Milperra on 25 June 2009. On that evening, HEK was involved in a physical altercation with another young man at a Bankstown shopping centre. Also present was Adam Mariam, Mariam's younger brother. As a result, plans were made, by telephone, for retaliation. A group supporting HEK, and a group that included Mariam, his two brothers, and others, arranged to meet to pursue the conflict. Later that evening, in company with two others, Mariam drove in a Mazda motor vehicle to the car park of a fast food outlet and a supermarket. He was armed with a loaded Ruger pistol. Also present, in a Honda sedan, were his two younger brothers. The specific purpose of their presence was to confront the other group, of whom the two co-accused (HEK and Adel Elkobaili) were members.

1. HEK's party of six men arrived at about 10.25pm in a white van. There appears to have been evidence (to which this Court was not directly referred) that the HEK group were in possession of a variety of weapons, including a rifle, a rock, a spanner and a piece of timber. In all, as many as eleven men gathered in the car park for the express purpose of a confrontation.

1. On a signal (activating the high beam of the headlights of the Honda containing Mariam's brothers), Mariam and one of his companions, Rani Abdulhardi, began walking towards the white van. Mariam began shooting at HEK's group. Over a short period of time he discharged his firearm in their direction at least ten times. One of the bullets struck Mariam's younger brother in the arm. At some point, the rifle in the possession of the HEK group was fired by Adel Elkobaili, injuring Abdulhardi in the stomach. These events gave rise to the charges of affray.

1. The car park borders a busy main road, Milperra Road. Mr Robert Knight was a truck driver, who was driving his truck on Milperra Road. He had nothing to do with the events in the car park. One of the bullets fired by Mariam entered the window of his truck, and struck him on the right side of the head. It killed him instantly. That gave rise to the charge of murder, in respect of which the jury found Mariam guilty of the alternative offence of manslaughter.

1. The van which had brought HEK's group to the car park left the scene. It was later found burned out. That gave rise to the charge of arson against HEK.

1. Mariam went to the assistance of his injured brother and then left the scene at high speed in the Honda. By this time police had been called, and were on the scene. Two police vehicles pursued the Honda. Mariam threw the Ruger from the vehicle. It was later recovered, its magazine empty. The Honda was recovered from an address near Mariam's home. The rear window and rear passenger window were broken. This damage was not caused by gunshots, but by blunt or straight edged implements. Implements meeting that description - a piece of timber and a Stillson wrench - were found in the white van. It was an obvious inference, as proposed by the Crown, that members of the HEK group had used those weapons to attack the Honda. What is not clear is at what point that attack occurred.

1. Mariam was arrested at his home the following day.

1. That defence of self-defence having been raised by Elkobaili, by s 419 of the Crimes Act 1900, an onus was cast upon the Crown to prove, beyond reasonable doubt, that Elkobaili did not believe that his conduct was necessary to defend himself or another person (see s 418(2)(a) of the Crimes Act). The verdicts establish that the Crown failed to discharge that onus. The implication of these verdicts is part of the matters raised in Mariam's application for leave to appeal against the sentence.

1. Mariam did not participate in any interview with police after his arrest. He did not provide any statement or other information. He did not give evidence in the trial. Accordingly, his response to the Crown case may only be discerned from the manner in which prosecution witnesses were cross-examined, and what was put to the jury by his counsel in final address. That response was (notwithstanding his earlier offers of a plea of guilty to manslaughter) that Mariam was not involved in the incident, did not have possession of a firearm, and did not fire the shots. In those circumstances, he did not seek a direction on manslaughter as an alternative verdict. No question of self-defence (or defence of another) was ever raised on Mariam's behalf.

1. In accordance with the decision of the High Court in The Queen v Pemble [1971] HCA 20; 124 CLR 107, Latham J left the alternative of manslaughter to the jury. The basis of the direction was death caused by an unlawful and dangerous act, carried out with an appreciable risk of serious injury. (It may be that other bases for the alternative verdict were left, but it was accepted, for the purposes of sentencing, that manslaughter by unlawful and dangerous act was the basis for the verdict.) It was accepted, for the purpose of sentencing, that it was Mariam who fired the shot that killed Mr Knight.

The Remarks on Sentence

1. For the purposes of sentencing, it was necessary that Latham J determine the relevant facts. In doing so, she was entitled to have regard to the whole of the evidence in the trial. She was, of course, confined to finding facts not inconsistent with the jury's verdict. Given that three accused were on trial, and given the disparate verdicts, that involved an exercise of some complexity.

1. In particular, her Honour was constrained by Mariam's acquittal of the murder charge to proceed on the basis that, in discharging the pistol on the occasion that he fired the shot that killed Mr Knight, Mariam did not intend either to kill or to occasion grievous bodily harm to anybody. Although it may be thought that this entailed an exercise in mental gymnastics, and although there are difficulties with reconciling that verdict with the now uncontested facts, Latham J did precisely that, and this Court must do the same.

1. Her Honour recounted the events as I have set them out above. At a point in the Remarks on Sentence where her Honour had noted the arrival of the white van containing the HEK group, and the high beam headlights signal from the Honda, her Honour said:

"8 Almost immediately, [Mariam] began shooting at the opposing group. He repeatedly discharged his firearm in a generally southerly direction. As many as ten cartridges were fired indiscriminately in a matter of minutes ... Other occupants of the van, who had commenced to assault the occupants of the Honda before they realised they were under fire, took cover." (italics added)

1. Her Honour then considered the implications of the acquittal of Elkobaili, saying:

"10 It is relevant to note that the jury acquitted Adel Elkobaili of all offences, including affray, and that the only way in which those verdicts can be reconciled with the guilty verdicts returned against [Mariam] is on the basis that the jury was not satisfied beyond reasonable doubt that Adel Elkobaili was not acting in self defence. The corollary of that proposition is that the jury found as a fact that Mahmoud Mariam was the first to discharge a firearm. That finding appears to me to be consistent with an acceptance by the jury that the combined actions of the Mariam group constituted a form of ambush, to which Adel Elkobaili responded. [Mariam], through his counsel, accepts that he is to be sentenced on the basis that he was responsible for the death of Mr Knight by the unlawful and dangerous discharge of the pistol in the circumstances I have outlined." (italics added)

Her Honour was satisfied beyond reasonable doubt that:

"11 ... the deliberate and repeated firing of a firearm in a public place with a view to furthering a conflict between two groups of young men in which [Mariam] played no part ... [Mariam] took the loaded firearm with the intention of using it, albeit not necessarily with the intention of inflicting grievous bodily harm or death on any person. The fact remains however, that all of [Mariam's] actions on the night in question were demonstrative of a premeditated plan to surprise the members of the opposing group with a pre-emptive show of force."

On the basis of these findings, she considered the objective gravity of the manslaughter offence to be "high".

1. In the light of these findings, her Honour considered that, although the affray offence was "a particularly serious example" of offences of its kind, there was very little additional criminality represented by the commission of that offence, notwithstanding that the circumstances of the affray presented considerable risk to members of the public. (In coming to this view, her Honour undoubtedly had in mind the high degree of commonality in the facts that gave rise to the manslaughter offence, and the facts that constituted the affray offence.)

1. She noted Victim Impact Statements presented by Mr Knight's son and daughter and the limitations placed on the use of such material for sentencing purposes: R v Previtera [1997] 94 A Crim R 76.

1. Of the offence itself, her Honour said:

"13 Notwithstanding that the events outlined above took place over a relatively short period of time (including the discharge of firearms over a matter of minutes), it bore all the hallmarks of a complete disregard for, indeed a contempt for, the rule of law.",

and, of Mariam:

"14 ... it remains true to say that [Mariam] himself has at no stage expressed the slightest remorse for the death of Mr Knight. He chose to place evidence of his personal circumstances before the Court in the form of an affidavit, as was his right, yet nowhere did he address the consequences of his offending, other than the impact it had on himself and his family."

1. She noted Mariam's personal circumstances. He was born in Lebanon in 1983. He was 26 years of age at the time of the offences, almost 29 at sentencing. His parents came to Australia in 1978, and have operated a car repair business in Bankstown. Mariam is the second of five sons in the family. He is married with two children. He had worked in his father's panel beating business. Although Latham J noted a letter to the Court written by Mariam's wife detailing hardship caused to her and her children by the incarceration of her husband, it was not suggested that the hardship was such as to justify any mitigation in sentence for that reason: see R v Edwards [1996] 90 A Crim R 510.

1. Her Honour noted Mariam's criminal history, which was of relatively minor significance, although it did include two counts of armed robbery (committed as a juvenile, in respect of which he was given the benefit of non-custodial dispositions) and a driving offence committed during his flight from the scene of the offences presently under consideration.

1. Her Honour then turned her attention to relevant sentencing principles, saying:

"21 The circumstances of these offences demand considerable emphasis on the principle of general deterrence. Specific deterrence also has some limited significance, in view of [Mariam's] criminal history and the absence of any evidence of his capacity for insight into his behaviour. To my observation, he wears his contempt for the law as a badge of honour. I therefore regard his prospects of rehabilitation as moderate at best. The aggregate punishment to be imposed for the offences of manslaughter and affray must, in my view, reflect the fact that [Mariam] was a mature adult who consciously and arrogantly engaged in the most mindless display of violence in the presence of a number of much younger men and vulnerable members of the public." (italics added)

She then imposed the sentences set out above.

The severity appeal

1. As mentioned above, only one ground was advanced in support of the proposed severity appeal. It asserts error in the sentencing judge's determination of the facts. So to frame as a ground of appeal is hardly enlightening or informative.

1. Written submissions filed in support of the application purport to identify two aspects of the fact finding that are challenged. They are stated as:

"(a) The findings made by the sentencing judge with respect to the events occurring at the time that [Mariam] fired his gun (see [8]) and

(b) [Mariam's] state of mind in taking the loaded firearm to the location where it was discharged (see [10])."

1. These cast little more light on Mariam's case than the pleaded ground. The first appears to be directed to the finding in para [8] of the Remarks on Sentence (extracted above) that the shooting by Mariam began "almost immediately" on the signal from the Honda. From this, it was suggested that her Honour found as a fact that Mariam fired before any assault had been made by the HEK group. The written submissions filed on behalf of Mariam characterised that as the "critical" question. It is important to note that, in oral submissions, senior counsel for Mariam accepted that Mariam had been the first to discharge a firearm. What he urged was a finding of fact that he did so only after the occupants of the van, the HEK group, had begun an armed attack on the Honda containing his two brothers.

1. In may be true that the last sentence of para [8] of the Remarks on Sentence could be interpreted as implying that the HEK group were "under fire" at a point before they had commenced their assault on the Honda. Counsel who appeared for Mariam at trial expressly accepted that proposition when it was put to him by her Honour during the sentencing proceedings. Senior counsel on appeal now contends that that concession was "inappropriate" and an "error of law". I pause to note that, if it is an error at all, it is an error of fact. Nor was it an "inappropriate" concession. All of the evidence pointed to the conclusions, explicitly reached by her Honour, that "the combined actions of the Mariam group constituted a form of ambush ...", and that Mariam's own actions on the night "were demonstrative of a premeditated plan to surprise the members of the opposing group with a pre-emptive show of force".

1. Although not conceding that Mariam fired the pistol before the HEK group began an assault on the Honda, during the hearing in this Court, senior counsel accepted that the evidence established that he was the first to discharge a firearm. Senior counsel submitted that the factual finding that should have been made was that, by the time Mariam discharged the firearm:

"... there had been a forcible assault with weapons on the vehicle [in] which [Mariam's] two younger brothers were sitting."

This Court was referred to no evidence to support such a finding. Indeed, to the very limited extent to which this Court was referred to any evidence, it is consistent with the proposition that the gunshots began as soon as the occupants of the van alighted from it. The most obvious conclusion is that the attacks began virtually simultaneously, although it was Mariam who first fired a shot.

1. The now uncontested facts are that Mariam attended the scene armed with a loaded firearm; that, on a signal from the Honda, he walked towards the HEK van; and that he fired the pistol no fewer than ten times. He was present, in possession of a loaded firearm, for the purpose of a violent confrontation. That constitutes the affray. The consequence of one of those shots fired by him was the death of Mr Knight. That constitutes the manslaughter. Mariam did not seek, in the slightest way, to make a case that his discharge of the pistol was a response to an assault on the Honda. A conclusion that it was would be pure speculation.

1. The second aspect of the fact finding that was challenged was said to be Mariam's "state of mind" in taking the loaded firearm to the place where the confrontation was to take place. The submissions were directed to the findings that:

"... the combined actions of the Mariam group constituted a form of ambush"

and that Mariam took the loaded firearm with him with the intention of using it in a "pre-emptive show of force".

1. These conclusions, it was argued, were not open, and were based on the same (said to be erroneous) conclusion that Mariam fired the pistol before the assault on the Honda had begun. For the reasons given above, the conclusion that Mariam was, with his cohorts, present to "ambush" the HEK group was one that was well open to her Honour.

1. A separate proposition, not reflective of anything in the grounds of appeal, found its way into the written and oral submissions. It was that (presumably as a matter of law):

"... it was an error to place any reliance at all on the jury's verdict in respect of Elkobaili, for the simple reason that the jury's verdict was in respect of him, not [Mariam], and because it was in circumstances where he was to receive the benefit of any reasonable doubt." (Mariam's written submissions)

In oral submissions, it was put that Latham J failed to make appropriate factual findings because she felt constrained by Elkobaili's acquittal, which was "a misconception of the law".

1. As I have mentioned, no such error as is now asserted was the subject of any ground of application for leave to appeal. The proposition amounts to assertion of significant legal error. If accepted, it may have far-reaching consequences. To the best of my knowledge, it has not previously been put to this Court that, in the necessary fact finding exercise following a joint trial, a judge is required to disregard the implications of divergent jury verdicts.

1. No authority was cited for the proposition. Although it had a passing mention in the written submissions, no proper or adequate notice was given to the Director that it was to be advanced. This Court is in no position to make a definitive ruling on the validity of the proposition.

1. Notwithstanding the absence of any cogent argument to support the proposition, it seems to me to be untenable. A joint trial is precisely that - a joint trial. The evidence, in general, was evidence against all three accused: to the extent (if any, and none has been identified) that any evidence was admissible against only one (or more) accused, no complaint is made that appropriate directions were not given. The acquittal of Elkobaili had obvious implications for the fact finding exercise with respect to Mariam. The inferences drawn by her Honour were open and appropriate.

1. I would reject the challenge to the sentencing judge's findings of fact. Although I would grant leave to appeal, I would therefore dismiss the appeal against sentence.

The Crown appeal

1. I have set out above the three grounds raised on behalf of the Director. They concern:

• the accumulation of the sentences;

• the weight given to specific deterrence;

• manifest inadequacy.

(i) Accumulation

1. As set out above, the sentence for manslaughter was accumulated by only 3 months on the sentence for affray. It is the Director's submission that this degree of accumulation was inadequate to reflect the objective gravity of the two offences.

1. Since the sentence for affray expired on 23 April 2013, during the currency of the manslaughter sentence (the non-parole period of which expires on 23 April 2016), the effect of the commencement date of the manslaughter sentence is that Mariam will serve only three months in custody specifically referable to the affray offence. It is that that the Director, by this ground, contends is inadequate.

1. Two things are to be borne in mind in considering this issue. The first is that her Honour found that the affray offence was, of itself, a "particularly serious" instance of offences of its type. At the same time, having regard to the whole of the circumstances, her Honour said that the additional criminality represented by the commission of the affray was very limited. That was because there was a considerable degree of commonality in the circumstances appertaining to the two offences. Her Honour was accordingly careful to avoid any "double counting" in sentencing.

1. The degree of accumulation to be included in sentencing for multiple offences is, generally speaking, a discretionary matter. As with all discretionary decisions, such a decision is reviewable on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. Error may be identifiable by mistake of fact, failure to take into account some material consideration, or taking into account immaterial or extraneous considerations. Error may also be identifiable by inference - where the result is "unreasonable or plainly unjust".

1. I have concluded that there is merit in the Director's submission. Notwithstanding the degree of commonality in the circumstances of the two offences, they were, nevertheless, separate and distinct offences. As her Honour correctly observed, the affray was a particularly serious instance of the offence. It involved as many as eleven men, with violence as their predominant intention. That Mariam was armed as he was is highly indicative of the level of his personal involvement in the confrontation. That he discharged as many as ten shots from his firearm emphasises the level of that participation.

1. That Mr Knight's death was caused as an incident of the affray does not have the effect that the manslaughter is entirely entwined with the affray, such as to reduce the need for adequate criminal punishment of each offence. Mr Knight was not part of the affray. He was an entirely innocent, uninvolved, passer by.

1. In my opinion, the accumulation of three months failed adequately to meet the need for each sentence to reflect the criminality involved in the offence to which it relates. I am satisfied that error of the House kind has been established. The error is in failing to ensure that the overall sentence adequately recognised the totality of criminality involved: see, for example, Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 per Howie J at [27]. I propose that the manslaughter sentence commence on 24 April 2011, an accumulation of 12 months.

(ii) Specific deterrence

1. Although her Honour placed considerable emphasis on the need for the sentences to contain an element of general deterrence, she also considered that:

"21 ... specific deterrence also has some limited significance, in view of [Mariam's] criminal history and the absence of any evidence of his capacity for insight into his behaviour. To my observation, he wears his contempt for the law as a badge of honour. I therefore regard his prospects of rehabilitation as moderate at best."

1. In the light of those findings, it is difficult to see why the significance of specific deterrence was limited. I accept the Director's submission that this was a case that called for substantial weight to be placed on specific deterrence. Mariam was 26 years of age at the time of the offence, almost 29 at sentencing. It was at the time of sentencing that the judge found that he wore "his contempt for the law as a badge of honour", and had no capacity for insight into his behaviour. Those findings point to a very real and significant need for the sentences to incorporate specific deterrence.

(iii) Manifest inadequacy

1. The error identified above (inadequate weight given to specific deterrence) is sufficient to establish that the sentences were deficient in the failure to take into account an important element of sentencing.

1. The question remains whether, leaving that error aside, either sentence was, or the two in aggregate were, manifestly inadequate in the sense envisaged in the last of the House principles. In this consideration, it is necessary to look at the starting point of the manslaughter sentence before the reduction allowed in respect of the tendered plea of guilty - that is, a sentence of 9 years with a non-parole period of 6 years and 9 months. The Director does not take issue with the quantification of the reduction for the proffered plea of guilty. It does not appear that any reduction was allowed in respect of the sentence for the affray, and none would have been appropriate.

1. It is true that many of the circumstances that make the affray offence a serious example of its kind, and that render the objective gravity of the manslaughter as "high" are the same. There is overlap. But that does not mean that those circumstances can be disregarded in the assessment of the objective gravity of either offence.

1. Aggravating features applicable to both offences were that they involved the actual use of a weapon (s 21A(2)(c) of the Sentencing Procedure Act) and that they were committed without regard to public safety (s 21A(2)(i)). The affray was aggravated by the degree of planning and organisation (s 21A(2)(n)).

1. There could be no rational challenge (and there was none) to the categorisation of the objective gravity of each offence.

1. Neither counsel identified any relevant comparable manslaughter sentences, or sentencing patterns. That was for the very valid reason that, as is well recognised, manslaughter offences are so variable as to make comparison difficult. Nor were any comparable sentences for affray provided. That may have been because of the high level of seriousness of this affray.

1. Her Honour did not say whether she set the period of the fixed term sentence for the affray at the level of what would otherwise have been the non-parole period or the total term. The predominant view has favoured the former but it is not a uniform approach and it has been questioned: Collier v R [2012] NSWCCA 213 at [56]-[62]; TDP v R; R v TDP [2013] NSWCCA 303 at [172]. Having regard to the sentence imposed upon some of the co-offenders in this matter for affray, it seems clear enough that her Honour had regard to a notional head sentence of 4 years before setting the fixed term at 3 years. In my opinion, adopting the approach that the fixed term in this case represents what would have been the non-parole period, the sentence should be one of 4 years. That would represent a head sentence of 5 years and 4 months.

1. Equally, against a maximum sentence allowable of 25 years for the manslaughter, a starting point of 9 years was manifestly inadequate. A starting point of 14 years is appropriate. That must be reduced by the 15 per cent allowed in recognition of the proffered pleas of guilty, yielding a sentence of 12 years. Application of the s 44(2) ratio gives a non-parole period of 9 years. Special circumstances should be found because of the partial accumulation of the sentence so that the non-parole component of the overall term will accord with the s 44(2) ratio. To achieve that, the non-parole period should be reduced to 8 years 9 months and the parole period increased by the same extent.

1. In my opinion, the Director has discharged the onus of establishing that each sentence was "unreasonable or plainly unjust".

1. Against that possibility, Mariam filed an affidavit sworn the day before the application was listed for hearing. He expressly accepted his responsibility for Mr Knight's death and said that this discovery had "horrified" him. He said "this was the worst possible thing", and that he "struggle[s] every day with this knowledge" of what he had done. The affidavit was no doubt provided with a view to countering the express observation by Latham J that Mariam had shown no evidence of remorse. It appears to have been drafted with the provision of s 21A(3)(i) in mind, to establish a mitigating circumstance.

1. Mariam was cross-examined. He said that he had accepted that he was responsible for the death, but that he had been instructed by his legal team not to communicate with Mr Knight's family in order to express his remorse or to apologise. He said that he remained "shattered" and "devastated" for Mr Knight's family, for his own family, and for everybody involved.

1. For my part, Mariam's expressions of remorse rang hollow. I do not accept them as genuine.

1. In any event, although it is well established that remorse may be taken into account as a mitigating factor in sentencing, some attention needs to be paid to the logic of doing so. Genuine remorse may be an indicator of the unlikelihood of further offending, in which case it may have significant relevance. If it is not indicative of that likelihood, I see little relevance in such evidence. There was nothing in Mariam's evidence, affidavit or oral, that persuaded me that his expressions of remorse should be taken as indicative that he is unlikely to re-offend. The findings of fact by Latham J point in the opposite direction. With respect to Mariam's personal circumstances, nothing additional to what was contained in Latham J's Remarks on Sentence was put.

1. This Court retains a discretion to decline to interfere following an appeal by the Director, even where the grounds are made out. No evidence relevant to the exercise of the discretion was adduced, and no argument advanced that the discretion ought to be exercised. I would decline to do so.

1. I propose the following orders:

(1)   (i) Leave to appeal against sentence granted;

(ii) Appeal dismissed;

(2)   (i) Director's appeal against sentence allowed;

(ii) Each sentence set aside and in lieu thereof Mahmoud Mariam sentenced as follows:

• with respect to the conviction for affray, Mahmoud Mariam is sentenced to imprisonment for a fixed term of 4 years, commencing on 24 April 2010, and expiring on 23 April 2014;

• with respect to the conviction for manslaughter, Mahmoud Mariam is sentenced to imprisonment comprising a non-parole period of 8 years 9 months commencing on 24 April 2011 with a balance of the term of the sentence of 3 years 3 months expiring on 23 April 2023. The earliest date the offender will be eligible for release on parole will be on the expiration of the non-parole period on 23 January 2020.

1. PRICE J: I agree with Simpson J.

1. R A HULME J: I agree with Simpson J.

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Decision last updated: 03 January 2014