R v Abbas

[2013] NSWSC 1379

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

1. On 23 July 2013 the offender, Khaldoun Abbas, was arraigned in this Court on an indictment that contained three counts. He pleaded guilty to all three charges. The first count charged him with the manslaughter of Hassan Saleh on 6 August 2011. The second count charged him with assaulting Jui Wei Huang ("Huang") on 6 August 2011 while in company and occasioning him actual bodily harm contrary to s 59(2) of the Crimes Act 1900. The third count charged him with possessing a prohibited pistol on 6 August 2011 without a licence or permit contrary to s 7(1) of the Firearms Act 1996.

1. The maximum penalty for manslaughter is imprisonment for 25 years (Crimes Act, s 24). The maximum penalty for the offence under s 59(2) of the Crimes Act is seven years imprisonment. The maximum penalty for the firearms offence is fourteen years imprisonment.

1. Of these offences only the firearms offence carries a standard non parole period prescribed by s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act"), being three years. In sentencing Mr Abbas for that offence, I am required to be mindful of the two legislative guideposts constituted by the maximum sentence and the standard non-parole period (Muldrock v R [2011] HCA 39; 244 CLR 120 at [27]).

1. However, the Sentencing Act does not require me to undertake that exercise by treating the non-parole period as the necessary starting point or the only important end point in fixing the sentence (Muldrock at [17]). Nor am I required to commence by asking whether there are reasons for not imposing the standard non-parole period in this case (Muldrock at [25]). Instead, I am required to bear in mind those two legislative guideposts. I am required to identify all the factors relevant to the sentence, discuss their significance and then assess the appropriate sentence (Muldrock at [26], citing McHugh J in Markarian v R [2005] HCA 25; 228 CLR 357 at [51]). As I will explain, in this case one matter that significantly affects the punishment imposed for the firearms offence is the need to avoid double punishment for the elements of that offence that are common to the other two offences on the indictment. This consideration significantly reduces the significance of the non-parole period in this case.

1. In addition to the three charges on the indictment, Mr Abbas has requested that in sentencing him for the offence of manslaughter the Court take into account a Form 1 offence in the manner provided for in s 33(1) of the Sentencing Act, namely an offence of possessing ammunition without being the holder of an appropriate licence or permit, or being authorised to possess it, contrary to s 65(3) of the Firearms Act.

1. The manner in which Form 1 offences are to be taken into account was discussed in Re Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. A Form 1 offence can be taken into account as part of the process of instinctive synthesis by demonstrating a greater need for personal deterrence and retribution for the principal offence (Abbas at [22] to [23] per Bathurst CJ).

The agreed facts

1. The circumstances surrounding the offences were set out in an agreed statement of facts. The agreed statement was the outcome of discussions between the very experienced counsel who appeared on behalf of the Crown and the offender. The following is taken from those facts.

1. The victim of the second count, Huang, was a drug dealer and drug addict. Sometime prior to 6 August 2011 he purchased drugs from the offender. He owed the offender $500 from that purchase. He avoided contact with the offender who was seeking recovery of the amount owing.

1. On 6 August 2011, Erin Cincotta ("Cincotta") contacted Huang and told him that she was able to pay him some money she owed. Huang arranged to go to her home in Rockdale later that day to collect the money. At around 10:00am that day the offender visited Cincotta at her home looking for Huang. She told him that she was due to meet Huang. The offender asked her to let him know when she saw Huang.

1. Later that afternoon, Cincotta again spoke to the offender. She told him that Huang was coming to her house later that day. The agreed facts describe the offender as being angry that Huang had not paid him. He said words to the effect of: "I'm going to slap him over the head when I see him". He motioned with his hand as he said this, indicating a slapping gesture.

1. Some time in the afternoon the offender made contact with his friend Aydin Taycan Dogan ("Dogan"). The offender told Dogan that Huang owed him $500 and that they were going to collect this money. They looked for Huang in the Rockdale area.

1. The deceased, Hassan Saleh, was a friend of the offender, Dogan and Cincotta. Shortly before 4:00pm, he arrived at Cincotta's home. Although it was not expressly stated in the agreed facts, the inference is overwhelming that the offender had contacted the deceased and he was looking for Huang. He stayed for a short period and left. The offender also visited Cincotta's home that afternoon enquiring as to the whereabouts of Huang. He left when he was told that Huang was not there but would be arriving later.

1. At around 6:30pm Huang was walking towards Cincotta's house. As he approached, he telephoned the offender and told him that he was obtaining some money. He offered to pay part of what he owed immediately and the rest later. He arranged to meet the offender at the home of Huang's ex-girlfriend in an hour. Huang arrived at Cincotta's home at about 6.50pm. He was carrying some packages of drugs and a set of scales. Cincotta let Huang into the house through the front door and then locked it. Huang sat down on the couch in the lounge.

1. A short time later, the deceased arrived at the back door of the house. Cincotta answered the door. The deceased asked her if Huang was inside. Cincotta said he was and let the deceased into the house. The deceased went into the lounge room and sat to the right of Huang on a separate chair. Huang did not know the deceased. He assumed that he was a friend of Cincotta who had come to pay her a visit. About five minutes later Dogan arrived at the house. He went into the lounge room as well.

1. Soon after, the offender arrived at the house and went to the lounge room. Huang got up to shake his hand but, before he could do so, Dogan grabbed him around the neck and the deceased grabbed him around the feet. They put him down onto the floor on his back. As he was lying on the floor, Huang was restrained by Dogan, who was behind him with his arm held tightly around Huang's neck, and by the deceased, who was holding him down by his feet. The offender asked Huang if he had the money. Huang replied: "No".

1. The offender then started hitting Huang on his face using his left and right hands. He then pulled out a pouch from the pocket of his clothing and started to hit Huang with the pouch. The pouch contained some form of hard object which I infer was the pistol the subject of the third count. As a result of this assault, Huang sustained a large bruise and significant swelling to his head and facial area. The outer layer of skin on his forehead was broken. Huang suffered redness and swelling around the area of his left eye.

1. The offender then reached into the pouch and pulled out a pistol. He pointed it in the direction of Huang's legs while Huang was lying on the floor. He told Huang to get up. Dogan then released his grip on Huang's neck. The deceased was trying to help Huang get up. At this time, the deceased was facing Huang and lifting him up with his hands on Huang's hips. The offender then walked behind Huang and the gun discharged. Huang did not see how the gun discharged. Dogan's evidence at the committal hearing was that he did not see the gun discharge on the first occasion and that he did not see the gun at all until it discharged for a second time on the ground. Huang was standing facing the deceased when the gun discharged.

1. The bullet passed through the deceased's left cheek and lodged in his brain. The deceased fell down. The offender dropped the gun onto the floor. When he went to pick it up it discharged again. The agreed facts record that the police crime scene officer located a bullet hole in the skirting board and the bullet from the second discharge which had ricocheted off the skirting board into the carpet. It appeared that this second shot had travelled parallel to the floor into the skirting board, consistent with a misfire at the time the offender was retrieving the gun from the floor.

1. The offender left the scene, taking the pistol with him. The pistol has never been recovered. One fired cartridge case was recovered in the area where the deceased fell down. An analysis of that cartridge case indicates that the pistol was a semi-automatic firearm (ie it did not require manual ejection of the spent cartridge and manual reloading for it to fire for a second time). Both bullets were later recovered and it was determined that they were .22 calibre ammunition. The description of the firearm and the offender's plea to the third count establishes that the gun was a prohibited pistol. The offender did not have a licence or permit to keep or possess any type of firearm, pistol or ammunition.

1. The deceased was taken from the scene by ambulance officers to the St George Hospital. He was maintained on a ventilator until he was declared dead at 3:00pm on 7 August 2011.

1. An autopsy confirmed the cause of death was a gunshot wound to the head. As stated, the entry point of the gunshot wound was the deceased's left cheek. No burning of the skin or soot on the surface of the skin was identified, however it was noted that there was a "faint stippling of the skin of the cheek" near the entry wound. "Stippling" refers to marks left on the skin by small fragments of metal coming out of the weapon when it is fired. This indicates that the gun discharged at close range to the deceased's face.

1. In the opinion of the doctor who performed the autopsy, the gun discharged somewhere between a matter of a few inches to one or two feet from the deceased's face. The angle of the bullet was approximately 45 degrees to the transverse plane.

The offences

1. The agreed basis for the entry of a plea of guilty to manslaughter was the commission by the offender of an unlawful and dangerous act causing death, namely the act of brandishing a firearm in a dangerous and threatening manner at close range to the persons present at the scene. The offender is not being sentenced on the basis that he intentionally discharged a firearm or that he intended to cause death or inflict grievous bodily harm via the use of a pistol on anyone present at the scene. If that had been established then the offender would have been guilty of murder, even if the person he intended to harm or kill was Huang and not the deceased. As I understand the position, it was the inability of the Crown to prove the intentional discharge of the pistol that led to it accepting the plea to manslaughter.

1. As noted by Senior Counsel for the offender, Mr Stratton SC, the accidental discharge of the gun is supported by the fact that the victim was the offender's friend. The Crown Prosecutor fairly conceded that the angle of discharge of the pistol does not support any suggestion that the victim found himself in the path of a shot fired intentionally by the offender at Huang. The accidental nature of the discharge is also supported by the gun discharging when the offender sought to retrieve it from the floor.

1. The offender did not give evidence before me and therefore there is no direct evidence as to the precise manner of the discharge of the weapon. However a report from a psychiatrist, Dr Olav Nielssen, that was tendered on his behalf records the following:

"[The offender] confirmed that he and [the deceased] were attempting to collect money owed to them by [Huang]. He said that he was holding the gun pointing towards [Huang's] leg, and slapping him with the other hand. He said there was a struggle, and his coaccused Dogan bumped him over and as he was falling the gun went off."

1. Ordinarily I would afford little weight to such hearsay in resolving contested matters of fact. However this version is entirely consistent with the agreed facts. It neither lessens nor increases the seriousness of the offender's conduct. I accept this description of how the gun discharged.

1. A more controversial aspect of the history as recorded in Dr Nielssen's report was the following:

"[The offender] said that it was a 'tiny gun', which he confirmed was a .22 calibre pistol, and he did not know if it had a safety catch. He said 'I didn't even know that it was loaded'. He said 'when we took it we used to take turns ... I never really held it with me much'." (emphasis added)

1. The Crown took issue with the assertions in this account that the offender did not know that the pistol was loaded (or had a safety catch). It submitted that the admission by the offender of the offence of possessing ammunition as listed on the "Form 1" was inconsistent with this assertion. The definitions of "possession" found in ss 4 and 4A of the Firearms Act only relate to firearms and not ammunition, so that the common law concept of possession is apposite. It requires knowledge of the presence of the item by the possessor (He Kaw Teh v R [1985] HCA 43; 157 CLR 523).

1. The agreed facts are silent on whether the offender knew the gun was loaded. They do not identify what precise acts constitute the offence listed on the Form 1, so that it is not clear whether the ammunition the subject of that offence was that contained in the pistol or was on the offender's person. In the absence of that being made clear, I will not proceed on the basis that it has been established that he knew the pistol was loaded, but equally I will not accept the positive assertion of an absence of knowledge either. Further, I will not proceed upon an acceptance of the other matters suggested by the above extract from the psychiatrist's report, namely that the pistol was something passed around between the offender and others or that the offender did not carry it with him often.

1. For the purposes of characterising the seriousness of this manslaughter, these matters are of little moment. Irrespective of them, and while I would not place this offence into the worst category, it is undoubtedly a very serious example of manslaughter by an unlawful and dangerous act. Of all crimes, manslaughter is said to "thro[w] up the greatest variety of circumstances affecting culpability" (R v Blacklidge, Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported). Even within the categories of manslaughter, such as unlawful and dangerous act or excessive self defence, the range of circumstances is "notoriously wide" and an offence in one category is not necessarily better or worse than one in another (Berrier v R [2009] NSWCCA 40 at [25]). Nevertheless the starting point is that manslaughter involves the unlawful taking of a human life and there must be an assessment of the gravity of the objective circumstances of the offence (Blacklidge id). In this case, the offender recruited two associates, including the deceased, to help him severely beat someone to recover a drug debt. While doing so he brandished a pistol to induce the victim of the beating to believe he would or might be shot. If it is sensible to speak of a range of manslaughters, then this offence is at the high end of that range.

1. The second count on the indictment concerns the beating administered to Huang by the offender in company with Dogan and the deceased. The offender was the organiser of the beating and the one who administered the blows. He used his fist and a weapon, namely the pistol. Again this was a very serious form of assault occasioning actual bodily harm and falls in the upper end of the range of objective seriousness encompassed by this offence. It was premeditated. It was undertaken for the purpose of recovering a drug debt. The bruising suffered by Huang to his face was substantial and must have involved significant pain.

1. Similarly the circumstances surrounding the firearms offence place it in the higher range of objective seriousness for this category of offence. To possess and take a prohibited pistol to an organised beating to recover a drug debt is very serious criminal conduct. The social evil of possessing a prohibited pistol is recognised by the offence created by s 7(1) of the Firearms Act and is reinforced by the prescription of a substantial standard non-parole period for the offence. As explained below, a heavily reduced sentence for this offence is warranted in this case, but only in order to avoid the offender being doubly punished. This consequence does not flow from any assessment that the firearms offence was not serious.

Victim impact

1. At the time of his death Hassan Saleh was eighteen years of age. He was the youngest in a family of eight children. Victim impact statements were provided to the Court by a number of his siblings, including Jihad, Mohammad, Ibtisam, Houda, Zeinab and Saleh. With the consent of the offender, a statement was also provided by Hassan's niece, Mariam Saleh. She is close to him in age. Both Zeinab and Saleh Saleh read their victim impact statements. Their impact was powerful and their emotions were raw.

1. All of the statements speak fondly of a young man for whom family appears to have been everything and who, as a consequence, had much to live for. His niece described him as great fun. Saleh Saleh described his younger brother as a hard worker. Some of the authors express regret that they did not do something that would have prevented him being where he was on the evening of 6 August 2011. Such regrets are understandable but of course the fault for his death does not lie with them but with the offender.

1. In his statement Jihad Saleh explains that he invited all his brothers and sisters to his house on the evening of 6 August 2011 for a feast for Ramadan and to celebrate his son's birthday. Instead the evening ended with the siblings assembling at St George Hospital with their brother on life support. To them fell the task of telephoning their parents, who were overseas in Lebanon on holidays. They flew home urgently. If their return journey was not enough of an ordeal, on their arrival what must they have felt when they saw their son at the hospital and discussed his fate with the doctors?

1. All of the statements reveal the ongoing regret, grief and anxiety suffered by the family. Hassan's brother, Saleh Saleh, did not strike me as a particularly emotional man, yet his ongoing pain was evident when he delivered his statement. Many of Hassan's siblings now have families of their own. It is clear that whenever this large but close family assembles their thoughts will soon turn to the brother who is missing, the son who never had a family of his own.

1. The significance of victim impact statements was discussed in MAH v R [2006] NSWCCA 226 at [61] to [63] per Grove J, with Hidden and Kirby JJ agreeing. I am not to treat them as evidence which I can act on, or material which operates in aggravation of the offence, or as otherwise adverse to the offender. Nevertheless, the Court acknowledges the profound loss to Hassan Saleh's family caused by his death at the hands of the offender.

Offender's personal history

1. The offender was born in September 1992. As at the date of the offence he was eighteen years of age. He is now twenty-one.

1. Tendered on the offender's behalf was a statement from his mother, Naziha Arab. The offender is the second oldest of her four children. She explained that she left the offender's father when he was three years old to escape domestic violence. She struggled to raise her children while working in part time jobs. She said that the offender had difficulties at school and left at the end of year 9. He tried to find work as a labourer but was unsuccessful.

1. Since 2009 the offender has been in a relationship with Ms Elle Xippas. She describes herself and the offender as married in the Muslim faith and says they will formalise their marriage "at law" when he is released from gaol. She states that the offender has never been violent or aggressive towards her. The offender and Ms Xippas have a daughter who is now aged nineteen months. She was born after the offender was taken into custody.

1. Ms Xippas records that after she and the offender had been seeing each other for a few months she learnt about the offender's "drug problem". His mother states that she did not become aware of it until after he was arrested. The offender's drug usage was addressed in Dr Nielssen's report. Dr Nielssen reports the offender stating that he commenced smoking cannabis at age fourteen and methylamphetamines from age sixteen. He also recorded him as having taken ecstasy, heroin and benzodiazepine medication. Dr Nielssen reported him as having been drug free since he was incarcerated. Dr Nielssen diagnosed the offender as having "substance use disorder", based on his past drug usage and disrupted personal history. This was said to be in remission. He also diagnosed him as having "dysthymic disorder" which is said to be based on his "history of chronic low grade depressive illness" that was not so severe that he was unable to perform "usual social roles or [meant that he was] brought ... to the attention of mental health services in prison".

1. At this point I note the following concerning the offender's personal circumstances.

1. First, prior to these offences the only previous convictions of the offender were in July 2010 for producing a licence altered in a manner calculated to deceive (ie a "fake I.D."), and possession of a prohibited drug. He received small fines for these offences. Ordinarily this record would result in him being sentenced on the basis that he was a person of prior good character. That said, the circumstances of this offence suggest that little significance can be attached to that record. They do not suggest his presence at the scene on 6 August 2011 was accidental or out of character. To the contrary, the offender orchestrated a beating designed to obtain repayment of a drug debt. One incident has been recorded on his prison record since he was arrested, but otherwise his behaviour in prison is a matter in his favour.

1. Second, the offender's reported history of drug usage casts little light on the circumstances surrounding the offences. I accept the evidence that I have summarised concerning the offender's drug habit and his drug free status since he was arrested. There is a brief comment in Dr Nielssen's report that the offender may have been mildly affected by drugs on 6 August 2011, but I attach little weight to that statement. Even if I had accepted it, it would not be a mitigating circumstance (R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [206]). In any event, the offender's conduct as revealed by the agreed facts relates to his status as a drug dealer, not as a drug user, albeit most likely on a small scale. Nevertheless his continuing drug free status is a matter that warrants greater confidence in his prospects of rehabilitation.

1. Third, Dr Nielssen's description of him suffering a low grade depressive illness is not particularly surprising given that he is facing a significant period in custody. It is also consistent with his ongoing grief over his role in his friend's death, a matter I will address.

1. Fourth, one matter to note is the impact of the offender's incarceration on his daughter and his partner. I am bound by authority to only take into account the hardship occasioned to them from his incarceration if exceptional circumstances can be demonstrated (see R v Macleod [2013] NSWCCA 108 at [43]). The enforced separation of a father from a young mother and their daughter is a circumstance of significant hardship, but it does not rise to the level of exceptional circumstances. His daughter has never known a father who is out of gaol. The offender will miss out on some important years of her development, however he will be released in time to still play a significant role in her upbringing. Leaving aside hardship, his ongoing connection to his partner and daughter is a factor that operates in his favour in assessing his prospects of rehabilitation.

1. Fifth, I assess the offender as having good prospects of rehabilitation. I have already described the seriousness of the offences. However it must be remembered that he was eighteen at the time they were committed. It has led to him being incarcerated for the first time and for what will be a relatively lengthy period. As discussed next, I accept that his grief and remorse are genuine. He embarked upon an escapade of gangsterism and ended up killing his friend. He will watch his daughter grow up without him. I expect that these matters more than anything else will give him insight.

Plea and remorse

1. The offence was committed on 6 August 2011. The offender was arrested on 15 August 2011. He was not committed for trial until 11 October 2012. It was agreed that, by a letter to the prosecution dated 6 December 2011, his solicitor stated that he was prepared to plead guilty to manslaughter. Thus this offer was made four months after he was arrested and over nine months before he was committed for trial. The offer to plead guilty to the offence of manslaughter was initially rejected by the Crown and that rejection was maintained until just prior to his entry of a plea on 23 July 2013.

1. Allowing for a proper opportunity to review the Crown brief and obtaining considered legal advice, in my view this represents the proffer of a plea at the earliest opportunity that was reasonably available. I consider that it warrants a discount to reflect the utilitarian value of the plea of 25% (R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383).

1. It is appropriate at this point to address the evidence of the offender's remorse. Dr Nielssen's report records the offender's desire to "try to apologise" to the deceased' s family. Tendered at the hearing was a letter addressed to the Court written by the offender. In his letter he described his feelings of pain and depression "at losing my childhood best friend Hassan Saleh". He states that he "can[not] imagine what his family are going through". He states that he has tried to make contact with the deceased's family through his own family and friends, but he has not been successful. He also states that he has made attempts to apologise to Huang "as [I am] sure my actions have caused him a lifetime of painful memories which [I am] sure will [affect] him as they are [affecting] me". Also tendered on behalf of the offender were various prison records that contained observations made by prison staff that he was experiencing significant grief at the loss of his friend. Both the offender's mother and Ms Xippas testify to the offender's grief and remorse at the loss of his friend as a result of his conduct.

1. I accept that the offender grieves for the loss of his friend and is remorseful over his role in his death. There is no doubt that they were friends. The discharge of the gun was accidental and every circumstance of the offence overwhelmingly points against him wishing the deceased any harm. However, I am not convinced that he feels any remorse towards Huang. He planned to beat him to extract a drug debt and carried through with his intention. His reflections on the offence and his conduct towards Huang are most likely coloured by the knowledge that his actions resulted in the death of his friend rather than their adverse effect upon Huang.

Aggravating and mitigating factors

1. Sub-section 21A(2) of the Sentencing Act lists a series of aggravating factors that the Court is to take into account in determining the appropriate sentence. These factors cannot be considered as aggravating the offence if they are elements of the offence. Sub-section 21A(3) lists a series of mitigating factors.

1. The Crown Prosecutor submitted that a number of aggravating factors were present. The first was that the manslaughter and assault offences involved the use of a weapon (s 21(2)(c)). I accept that this is so. Both the Crown Prosecutor and Mr Stratton SC accepted that the preferable approach was to identify the use of the weapon as an aggravating factor, but then ensure that double punishment was not imposed in relation to the firearms offence. I address below the potential for overlap between the reliance on this aggravating factor and the imposition of a separate sentence for the firearms offence.

1. Second, it was submitted that the offence(s) were committed in the home of the "victim or any other person", presumably being Cincotta (s 21(2)(eb)). I accept that this is so although I afford this factor little weight. The agreed facts do not state that Cincotta was unaware that her home was to be used as a location to extort money from Mr Huang by force. To the contrary, some of the matters stated in the agreed facts suggest that she may have been aware.

1. A number of mitigating factors are also present which I have already discussed, namely the absence of any significant record of previous convictions and his character (ss 21(3)(e) and (f)), the offender's likelihood of re-offending and prospects of rehabilitation (ss 21(3)(g) and (h)), his remorse over the death of the deceased which has been established by evidence and acknowledgement of the loss he has caused (s 21(3)(i)), and his plea of guilty (s 21(3)(k)).

Concurrency and accumulation

1. It is apparent from the above analysis of the three offences that there is a significant potential for overlap between the facts and circumstances surrounding each of the three offences.

1. The starting point for the imposition of an appropriate sentence is the necessity to "fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as totality" (Pearce v R [1998] HCA 57; 194 CLR 610 at [45]). However, the decision in Pearce illustrates that, even at the first stage of considering the appropriate penalty for each individual offence, care must be taken to ensure that an offender is not subject to double punishment for some element common to two or more offences and that is not overcome by making the sentences concurrent (Pearce at [49]; Portolesi v R [2012] NSWCCA 157 at [45]).

1. Thus in Pearce the offender was charged with two offences each of which had as an element the infliction of grievous bodily harm upon the same victim. Significant sentences were imposed for each of the offences. The High Court found that each of these sentences contained a portion of punishment for the infliction of grievous bodily harm upon the victim and this constituted a form of double punishment (at [40] to [43] and [49] per McHugh, Hayne and Callinan JJ, Gummow J agreeing at [69], contra Kirby J at [132]).

1. As noted, the "brandishing" of the pistol by the offender was the act that constituted the unlawful and dangerous act. The offender also used the pistol to assault Huang. It is accepted that it was an aggravating feature of each of those offences that a weapon was "used". All of these matters encompass the offender's conduct in "possessing" the pistol, which is an element of the offence under s 7(1) of the Firearms Act. If a separate and substantial penalty was to be imposed for that offence, then it would amount to a form of double punishment for the element of possessing a firearm and that cannot be addressed by making the sentence wholly concurrent (Pearce at [49]; Portolesi at [52]). Accordingly, consistent with Pearce, I propose to impose a significantly reduced penalty for that offence to accommodate the punishment for the other two offences which necessarily reflects the offender's conduct in possessing the pistol.

1. The second stage of the sentencing process noted in Pearce at [45] is to consider "questions of cumulation or concurrency, as well, of course, as totality". Thus care needs to be taken in imposing a penalty for each offence and structuring the overall sentence to ensure that the combined effect of all the sentences reflects the total criminality of the offender's conduct (see Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] per Howie J).

1. I consider that the sentences for the manslaughter offence and the assault occasioning actual bodily harm offence should be partly accumulated. They were logically distinct crimes with no overlapping elements. There were separate victims. However they arose out of the one criminal escapade and occurred within minutes of each other.

1. Otherwise in determining the sentence for the manslaughter offence I have taken into account the offence of possess ammunition listed on the Form 1. However, in the absence of any facts concerning the Form 1 offence, there is nothing before the Court to suggest that any additional punishment for the offence of manslaughter is warranted by that offence.

1. Finally, I note that no submissions were made concerning the need for parity between any sentence imposed on the offender for the assault charge and any sentence that may have been imposed on Dogan.

Special circumstances

1. Save for one matter, the issues that I have addressed in this judgment canvass the submissions made on behalf of the offender by Mr Stratton SC and the submissions of the Crown Prosecutor. The one matter of exception is that Mr Stratton SC submitted that it was appropriate to make a finding of special circumstances under s 44(2) of the Sentencing Act in relation to his client by reason of the combination of his subjective circumstances, especially his youth. I accept that his youth and other subjective circumstances are capable of justifying such a finding. It is clear that he will require supervision and support upon his release from custody. However the sentences that I will impose will provide a suitably long period for his supervision with the result that I do not consider that any further adjustment is required on that account. Nevertheless there will need to be a variation of the maximum ratio between the additional term and the non-parole period provided for in s 44(2) of the Sentencing Act to accommodate the partial accumulation of the sentence for assault occasioning actual bodily harm upon the sentence for manslaughter.

Conclusion and sentences

1. At a very young age the offender has embarked upon what appears to be a half-baked attempt at gangsterism. It has left his good friend dead, a family devastated, him incarcerated and his daughter effectively fatherless. He has time to contemplate his actions. Unlike his friend, he will have an opportunity to make a life for himself.

1. As the offender was taken into custody on 15 August 2011 it follows that his initial custodial sentence should commence from that date.

1. Mr Abbas, the offence of manslaughter is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006. I am obliged by s 25C of that Act to advise you of the existence of that legislation and of its application to the offence you have committed.

1. Khaldoun Abbas, for the manslaughter of Hassan Saleh you are convicted. You are sentenced to a term of imprisonment. Pursuant to ss 44(1) and (2) of the Sentencing Act I set a non-parole period of seven years commencing on 15 August 2011, and an additional term of four years commencing 15 August 2018 and ending on 14 August 2022.

1. Khaldoun Abbas, for the offence of assault occasioning actual bodily harm in company you are convicted. You are sentenced to imprisonment for two years commencing 15 August 2017. Pursuant to s 45(1) of the Sentencing Act I decline to set a non-parole period by reason of the overlap between this period of imprisonment and that imposed for the offence of manslaughter and the length of the additional term that I have set for the latter.

1. Khaldoun Abbas, for the offence of possessing a prohibited pistol while not being authorised to do so, you are convicted. You are sentenced to a term of imprisonment of three months to date from today.

1. The overall sentence will comprise a non-parole period of eight years imprisonment and an additional term of three years. The sentence is taken to have commenced on 15 August 2011. The offender will be eligible for release on parole on 15 August 2019 and his last sentence will expire on 14 August 2022.

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Decision last updated: 20 September 2013