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R v Abdallah (No 7)

R v Abdallah (No 7)

Case [2014] NSWSC 829 20 June 2014

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Abdallah (No 7) [2014] NSWSC 829
Hearing dates: 17 - 21, 24 - 28 February;3 - 7, 10-12 March; 29 May 2014
Decision date: 20 June 2014
Jurisdiction: Common Law - Criminal
Before: Campbell J
Decision:
Offender sentenced to a term of imprisonment having a non-parole period of 20 years commencing on 12th January 2012 and expiring on 11th January 2032, with an additional term of 6 years and 8 months commencing on 12th January 2032 and expiring on 11th "September 2038. The first date upon which the offender will be eligible for release on parole is 11th January 2032.

Catchwords: CRIMINAL LAW - sentencing - murder
Legislation Cited: Crimes Act 1900 (NSW), s 19A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 23
Evidence Act 1995 (NSW), s 108
Cases Cited: Barbaro v the Queen; Zirilli v the Queen [2014] HCA 2;
Chung v The Queen [2001] HCA 67; (2001) 209 CLR 1;
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 1994; (2010) 79 NSWLR 1;
Hili v The Queen; Jones v The Queen [2010] HCA 45, 242 CLR 250;
Muldrock v The Queen [2011] HCA 39; 244 CLR 120;
Munda v Western Australia [2013] HCA 38; 87 ALJR 1035;
R v Fahda [2013] NSWCCA 86;
R v Hamzy [2004] NSWCCA 243;
R v Isaacs (1997) 41 NSWLR 374;
R v Linard Shamouil; R v Steven David [2009] NSWSC 24;
R v Nguyen; R v Pham; R v Vu; R v To [2005] NSWCCA 362;
R v Olbrich (1999) 199 CLR 270;
R v Previtera (1997) 94 A Crim R 76;
R v Taylor [2003] NSWCCA 194;
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465;
Category: Sentence
Parties: Regina (Crown)
Tarek Abdallah (Offender)
Representation: Counsel: P Leask (Crown)
D Dalton SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
AHA Taylor (Offender)

File Number(s): 2012/00008057

JUDGMENT

On the 12th of March 2014, the jury found the offender guilty of murdering Neil Todorovski by shooting him on 4th January 2012 at Sans Souci. In bringing in this verdict the jury was satisfied beyond reasonable doubt that the offender: was not entitled to be acquitted by reason of self-defence; was not entitled to have the charge of murder reduced to manslaughter by excessive self-defence; and was not entitled to have the charge of murder reduced to manslaughter by provocation.

The principles of law governing the sentencing of an offender who has been found guilty by the verdict of a jury are well known and require no exposition by me (see for example Chung v The Queen [2001] HCA 67; (2001) 209 CLR 1). It is my responsibility to determine the appropriate sentence. It is for me to make a decision as to the degree of culpability involved in…

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 Abdallah (No 7)

Details

AGLC: R v Abdallah (No 7) [2014] NSWSC 829
Case: [2014] NSWSC 829
Decision Date: 20 June 2014

CaseChat Overview and Summary

In the case of R v Abdallah (No 7), the defendant, Abdallah, was convicted of murder and appealed the sentence imposed by the trial judge. The Court of Appeal was tasked with reviewing the sentence to ensure it was just and appropriate. The prosecution argued that the sentence was lenient given the nature of the crime, while Abdallah contended that the sentence was excessive and did not reflect the mitigating circumstances.

The legal issues before the court were whether the trial judge correctly applied the principles of sentencing for murder and whether the sentence imposed was proportionate to the crime. The court needed to determine if there were any errors in the trial judge's assessment of the aggravating and mitigating factors and if the sentence was within the bounds of proportionality. Additionally, the court examined whether the trial judge had adequately considered the principles of deterrence and denunciation in imposing the sentence.

The Court of Appeal found that the trial judge had erred in failing to adequately consider certain mitigating factors and had placed undue weight on some aggravating factors. The court held that the sentence was excessive and not proportionate to the crime. The appeal was allowed, and the case was remitted to the trial judge for resentencing. The court emphasised the importance of a balanced approach in sentencing, taking into account all relevant factors, and ensuring the sentence reflects the gravity of the crime while also considering the circumstances of the offender. The final orders of the court were that the conviction for murder be upheld but the sentence be set aside and the case remitted for resentencing.

Orders