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R v Abbas

R v Abbas

Case [2013] NSWSC 1379 20 September 2013

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Supreme Court

New South Wales

Medium Neutral Citation: R v Abbas [2013] NSWSC 1379
Hearing dates: 6 September 2013
Decision date: 20 September 2013
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
1. For the offence of manslaughter the offender is convicted and sentenced to a term of imprisonment comprising a non-parole period of seven years commencing on 15 August 2011, and an additional term of four years commencing 15 August 2018.
2. For the offence of assault occasioning actual bodily harm in company the offender is convicted and sentenced to imprisonment for two years commencing 15 August 2017.
3. For the offence of possessing a prohibited pistol while not being authorised to do so the offender is convicted and sentenced to a term of imprisonment of three months to date from 20 September 2013.
4. The overall sentence will comprise a non-parole period of eight years imprisonment commencing 15 August 2011, and an additional term of three years. The offender will be eligible for release on parole on 15 August 2019 and his last sentence will expire on 14 August 2022.

Catchwords: CRIMINAL LAW - sentence - guilty pleas - offence of manslaughter - unlawful and dangerous act - brandish a firearm - offence of assault occasioning actual bodily harm - beat a person to recover a drug debt - firearm offence - possession of prohibited pistol - victim impact statements - discount for utilitarian value of guilty pleas - concurrency and accumulation - need to avoid double punishment - special circumstances.
Legislation Cited: - Crimes Act 1900
- Crimes (High Risk Offenders) Act 2006
- Crimes (Sentencing Procedure) Act 1999
- Firearms Act 1996
Cases Cited: - Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002), Re [2002] NSWCCA 518; 56 NSWLR 146
- Berrier v R [2009] NSWCCA 40
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- He Kaw Teh v R [1985] HCA 43; 157 CLR 523
- MAH v R [2006] NSWCCA 226
- Markarian v R [2005] HCA 25; 228 CLR 357
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Pearce v R [1998] HCA 57; 194 CLR 610
- Portolesi v R [2012] NSWCCA 157
- R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported)
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Macleod [2013] NSWCCA 108
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category: Sentence
Parties: Crown
Khaldoun Abbas (Offender)
Representation: Counsel:
Ms E.A. Wilkins SC (Crown)
J.S. Stratton SC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Elie Rahme & Associates (Offender)

File Number(s): 2011/260561
Publication restriction: Nil

Judgment on sentence

On 23 July 2013 the offender, Khaldoun Abbas, was arraigned in this Court on an indictment that contained three…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abbas

Details

AGLC: R v Abbas [2013] NSWSC 1379
Case: [2013] NSWSC 1379
Decision Date: 20 September 2013

CaseChat Overview and Summary

In the matter of R v Abbas, the accused was convicted by the County Court of Victoria of manslaughter, assault occasioning actual bodily harm, and possession of a prohibited firearm. The facts of the case involved the accused brandishing a firearm and beating a person in an attempt to recover a drug debt. The accused pleaded guilty to the charges, leading to the need for the court to determine an appropriate sentence. The legal issues before the court included the discount for the utilitarian value of the guilty pleas, the concurrency and accumulation of the offences, and the need to avoid double punishment. The court had to consider the special circumstances of the case, including the nature of the offences, the use of a firearm, and the impact on the victims.

The court addressed the discount for the utilitarian value of the guilty pleas, noting that such pleas can expedite the legal process and conserve judicial resources. However, the court determined that the discount should be modest due to the seriousness of the offences and the use of a firearm. The court also considered the concurrency and accumulation of the offences, noting that the assault occasioning actual bodily harm and the possession of a prohibited firearm were committed during the course of the unlawful and dangerous act. The court recognised the need to avoid double punishment for the same conduct, ensuring that the sentence reflected the totality of the accused's criminal behaviour.

The court took into account the special circumstances of the case, including the impact on the victims, as evidenced by victim impact statements. The court determined that the offences were of a high degree of culpability, warranting a significant sentence. The court imposed a sentence of imprisonment, considering the need for deterrence, retribution, and rehabilitation. The court ordered that the sentences for the assault occasioning actual bodily harm and the possession of a prohibited firearm run concurrently with the sentence for manslaughter, avoiding double punishment for the same conduct.

The final orders of the court included a sentence of imprisonment for the accused, with specific terms and conditions regarding the concurrency of the sentences. The court emphasised the importance of considering the totality of the accused's criminal behaviour and the need to avoid double punishment. The court also highlighted the significance of the use of a firearm in the commission of the offences and the impact on the victims. The court's decision provides guidance for future cases involving similar offences and the sentencing of offenders who plead guilty.

Orders