R v Abdulrahman - [2020] NSWDC 731

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Abdulrahman [2020] NSWDC 731
Hearing dates: 25 September 2020
Date of orders: 25 September 2020
Decision date: 25 September 2020
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of 6 years, 10 months with a non-parole period of 4 years, 6 months: [48].

Catchwords:
CRIME — Driving offences — Dangerous driving occasioning death
SENTENCING — Aggravating factors — Breach of conditional liberty
SENTENCING — Plea of guilty
SENTENCING — Relevant factors on sentence — Circumstances of offence — Form 1 offences — General principles — Maximum penalty — Objective seriousness — Purposes of sentencing
SENTENCING — Subjective considerations on sentence — Mental illness — Drug addiction

Legislation Cited:
Children (Criminal Proceeding) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Poisons and Thearpeutic Goods Act 1966

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Cahyadi v R (2007) 168 A Crim R 41
Elkassir v The Queen [2013] NSWCCA 181
R v Jurasic (1998) 101 A Crim R 259
R v Whyte (2002)134 A Crim R 53
Smith v The Queen [2020] NSWCCA 181
Woodbridge v The Queen [2010] NSWCCA 185

Texts Cited:
Nil

Category: Sentence
Parties:
Regina (Crown)
Rabih Abdulrahman (Offender)
Representation:
Ms K Nightingale (Crown Prosecutor)
Mr P Lange (Counsel for the Offender)

File Number(s): 2019/279139
Publication restriction: STATUTORY NON PUBLICATION APPLIES
Pursuant to s 15A of Children (Criminal Proceeding) Act 1987, statutory non-publication applies to this matter in relation to the identity of the victim and any minor witnesses.

Judgment

At about 8.30am on the morning of 6 September 2019, a 12 year old boy was walking to school at Hurstville. He was a Year 7 student at Sydney Technical High School. He was crossing a pedestrian crossing with the lights in his favour. The offender Rabih Abdulrahman, then aged 36, was driving a car which collided with him. He was a disqualified driver. He was driving at about 65km/h in a 40km/h zone. He drove through a red light and he drove with a number of illicit and non-prescribed substances in his blood, including methylamphetamine, which would have substantially impaired his driving ability.
This leads to the offender pleading guilty to one count of manslaughter, contrary to s 18(1)(b) of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment with no standard non-parole period, and one count of driving while disqualified which carries a maximum penalty of six months imprisonment.
He pleaded guilty in circumstances justifying a 25% discount on a term of imprisonment. Mr Lange of counsel for the offender, concedes that there is no alternative to full-time custody. He was arrested on the day of the accident. An intensive corrections order was revoked leading to him being in custody for two months and 27 days. As a result of…

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 Abdulrahman

Details

AGLC: R v Abdulrahman [2020] NSWDC 731
Case: [2020] NSWDC 731
Decision Date: 25 September 2020

CaseChat Overview and Summary

In the case of R v Abdulrahman, the defendant was charged with dangerous driving occasioning death. The dispute was heard in a court of criminal jurisdiction in Australia. The central issue revolved around the appropriate sentence for the defendant, considering the aggravating factors, the breach of conditional liberty, and the plea of guilty. The court had to balance the objective seriousness of the offence with the subjective considerations, including the defendant's mental illness and drug addiction.

The legal issues before the court included determining the relevance of the defendant's breach of conditional liberty as an aggravating factor and assessing how the defendant's mental illness and drug addiction should influence the sentencing decision. The court also had to consider the maximum penalty for the offence and the purposes of sentencing, including deterrence, rehabilitation, and punishment. The plea of guilty was acknowledged as a mitigating factor, but the court had to weigh it against the aggravating factors to arrive at an appropriate sentence.

The court found that the breach of conditional liberty and the objective seriousness of the offence warranted a substantial sentence. However, the defendant's mental illness and drug addiction were significant mitigating factors. The court concluded that an aggregate term of imprisonment of 6 years and 10 months, with a non-parole period of 4 years and 6 months, was appropriate. This sentence aimed to balance the need for punishment and deterrence with the opportunity for rehabilitation.

The court ordered the defendant to serve an aggregate term of imprisonment of 6 years and 10 months, with a non-parole period of 4 years and 6 months. This decision reflected the court's consideration of both the aggravating and mitigating factors in the case.

Orders

Orders of the court

An aggregate term of imprisonment of 6 years, 10 months with a non-parole period of 4 years, 6 months: [48].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Abdulrahman [2020] NSWDC 731
Hearing dates:	25 September 2020
Date of orders:	25 September 2020
Decision date:	25 September 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 6 years, 10 months with a non-parole period of 4 years, 6 months: [48].
Catchwords:	CRIME — Driving offences — Dangerous driving occasioning death SENTENCING — Aggravating factors — Breach of conditional liberty SENTENCING — Plea of guilty SENTENCING — Relevant factors on sentence — Circumstances of offence — Form 1 offences — General principles — Maximum penalty — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Mental illness — Drug addiction
Legislation Cited:	Children (Criminal Proceeding) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Poisons and Thearpeutic Goods Act 1966
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Cahyadi v R (2007) 168 A Crim R 41 Elkassir v The Queen [2013] NSWCCA 181 R v Jurasic (1998) 101 A Crim R 259 R v Whyte (2002)134 A Crim R 53 Smith v The Queen [2020] NSWCCA 181 Woodbridge v The Queen [2010] NSWCCA 185
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Rabih Abdulrahman (Offender)
Representation:	Ms K Nightingale (Crown Prosecutor) Mr P Lange (Counsel for the Offender)
File Number(s):	2019/279139
Publication restriction:	STATUTORY NON PUBLICATION APPLIES Pursuant to s 15A of Children (Criminal Proceeding) Act 1987, statutory non-publication applies to this matter in relation to the identity of the victim and any minor witnesses.