R v Abdul Zahed - [2024] NSWSC 695

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdul Zahed [2024] NSWSC 695
Hearing dates: 2, 17 May 2024
Date of orders: 7 June 2024
Decision date: 07 June 2024
Jurisdiction: Common Law
Before: Button J
Decision:
(1)   Abdul Kadir Zahed, you are convicted of the offence of being an accessory after the fact to murder.
(2)   I sentence you to a non-parole period of 2 years 6 months, to commence on 15 January 2023, and to expire on 14 July 2025.
(3)   That will be followed by a parole period of 1 year 3 months, to expire on 14 October 2026.

Catchwords:
CRIME – sentencing – accessory after the fact to murder – guilty plea – relevant factors on sentence – objectively less serious example of a serious offence – where no persons convicted of homicide of deceased – extensive criminal history – where much of the offender’s adult life has been spent in custody – offence committed whilst offender on parole – remorse not established on balance – deprived background – difficult childhood and upbringing – history of illicit substance abuse – some evidence of steps taken towards rehabilitation in custody– special circumstances not found – discussion of parity – sentence backdated to reflect measure of concurrence with previously imposed aggregate sentence

Legislation Cited:
Crimes Act 1900 (NSW) s 349

Category: Sentence
Parties: Rex
Abdul Kadir Zahed (Offender)
Representation:
Counsel:
K McKay SC with T Lumsden (Crown)
M Thangaraj SC with J Trevallion (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Zahr Partners (Offender)

File Number(s): 2022/265635
Publication restriction: Nil

REMARKS ON SENTENCE

Introduction

On 6 February 2024, Mr Abdul Zahed (the offender) pleaded guilty to one count on indictment in this Court. It alleged that between 11 December 2014 and 6 February 2024, knowing that the murder of Mr Yousef Assoum (the deceased) had been committed by certain persons on or about 11 December 2014, he afterwards maintained and assisted those persons. From now on I shall refer to the offence concisely as being an accessory after the fact to murder. The matter was stood over for proceedings on sentence on 2 May and 17 May 2024, and it falls to me to sentence the offender for that offence today.
A number of aspects of the count can be noted immediately. The first is that it carries a maximum penalty of imprisonment for 25 years, and no standard non-parole period. The second is that the Crown conceded that, despite the temporal breadth of the indictment, the offence was only committed within the much more limited period of 11 December 2014 to 2 January 2015, a period of about three weeks. The third is that the joint position of the parties, which I accept, is that it is an element of the offence that the act or acts in question must have a tendency to assist the murderer to escape justice, not that it or they actually do so to any degree.
Aggravating features on sentence, above…

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 Abdul Zahed

Details

AGLC: R v Abdul Zahed [2024] NSWSC 695
Case: [2024] NSWSC 695
Decision Date: 07 June 2024

CaseChat Overview and Summary

In the case of R v Abdul Zahed, the defendant pleaded guilty to being an accessory after the fact to the murder of a deceased person. The court was required to determine the appropriate sentence for Zahed, taking into account a range of mitigating and aggravating factors. The legal issues before the court included the relevance of Zahed's criminal history, the nature of the offence committed while on parole, and the extent of any remorse demonstrated by the offender. The court also had to consider the deprived background and difficult upbringing of Zahed, as well as the limited evidence of rehabilitation efforts while in custody.

The court noted that Zahed had an extensive criminal history, with much of his adult life spent in custody. The offence in question was committed while he was on parole, and while there was some evidence of steps taken towards rehabilitation in custody, the court found that Zahed had not established remorse on the balance of probabilities. The court rejected the argument that the case was an objectively less serious example of a serious offence, as no persons had been convicted of the homicide of the deceased. The court also considered the relevance of parity in determining the sentence, ultimately finding that the special circumstances did not warrant a reduction in sentence. The court imposed a sentence, backdated to reflect the measure of concurrence with the previously imposed aggregate sentence.

The final orders of the court included the imposition of a sentence for Zahed, with the sentence backdated to reflect the court's concurrence with the previously imposed aggregate sentence. The court considered the range of factors relevant to sentencing, including the offender's criminal history, the nature of the offence, and the extent of any remorse demonstrated. The court rejected the argument that the case was an objectively less serious example of a serious offence, and found that the special circumstances did not warrant a reduction in sentence. The court also noted the deprived background and difficult upbringing of Zahed, as well as the limited evidence of rehabilitation efforts while in custody.

Orders