R v Abou-Chabake - [2003] NSWSC 125

CITATION: R v Abou-Chabake [2003] NSWSC 125

HEARING DATE(S): 14/02/2003

JUDGMENT DATE:
28 February 2003

JUDGMENT OF: Howie J at 1

DECISION: The offender is sentenced to 20 years imprisonment with a non-parole period of 15 years. The sentence is to commence from 18 November 2002 and the non-parole period is to expire on 17 November 2017 the date upon which the offender will be eligible for release to parole.

CATCHWORDS: Criminal Law - Sentence following conviction of murder

LEGISLATION CITED: Crimes (Sentencing) Procedure Act 1999 - ss 21A, 22A
Criminal Procedure Act 1986 - Div 2A Pt 3

CASES CITED: Sigatano v The Queen (1998) 194 CLR 656

PARTIES :
Regina v Andrew Abou-Chabake

FILE NUMBER(S): SC 70034/02

COUNSEL: Ms K. Kalda - Crown
Mr C. Steirn SC with Mr L. Brasch - Accused

SOLICITORS: S.E. O'Connor - Crown
Cadmus Lawyers - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

FRIDAY 28 FEBRUARY 2003

70034/02 R v Andrew ABOU-CHABAKE
REMARKS ON SENTENCE

1 His Honour: On 19 November 2002 the offender, Andrew Abou Chabake, was arraigned on an indictment containing two counts; firstly, that on 6 May 2001 at Campsie he did murder Romeo Nasr, and, secondly, that on the same date and at the same place he did shoot at Fadi Nasr with intent to murder him. The offender pleaded not guilty to both charges but on 2 December 2002 the jury convicted him on the count of murder. He is now to be sentenced for that offence.

2 At about 10 pm on 6 May 2001 the deceased was driving his motor vehicle in Frederick Street, Campsie in the company of his uncle, Fadi Nasr, who was seated beside him in the front passenger seat. Shortly after having entered Frederick Street from Moore Street, a person approached the motor vehicle and fired seven shots from a handgun at the motor vehicle as it proceeded passed him. Three of the shots fired entered into the motor vehicle. One of the shots inflicted a superficial wound grazing of the deceased’s left leg. A second shot, however, travelled through the deceased’s back penetrating his heart, aorta and right lung. The deceased died a short time later from these injuries. The deceased’s uncle was uninjured.

3 The fundamental issue for the jury’s decision was whether the Crown had proved beyond reasonable doubt that the person who fired the handgun was the offender. It was never suggested at the trial or during the sentencing proceedings that, if the accused was the person who fired at the deceased, he did so other than with an intent to kill.

4 Although the parties addressed the jury on an assumption that they would reach the same verdict for each of the two charges, the fact that the jury convicted the offender of murder but acquitted him of the attempted murder of the uncle is unremarkable. Clearly the jury were not satisfied that the accused intended to kill the deceased’s uncle…

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 Abou-Chabake

Details

AGLC: R v Abou-Chabake [2003] NSWSC 125
Case: [2003] NSWSC 125
Decision Date: 28 February 2003

CaseChat Overview and Summary

The case of R v Abou-Chabake involved the defendant, Abou-Chabake, who was convicted of the murder of a pedestrian. The dispute centred around the appropriate sentencing to be imposed following the conviction. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court and determining whether it was appropriate in all the circumstances. The legal issues that the Court had to address were whether the sentence imposed was manifestly inadequate, and if it could be increased without contravening any principles of criminal justice.

The Court examined the principles of sentencing for murder, including the need for punishment, deterrence, and rehabilitation. The Court considered the gravity of the offence, the defendant's culpability, and the circumstances surrounding the offence. The Court also considered the defendant's background, including his age, previous criminal history, and any mitigating factors. Ultimately, the Court determined that the sentence imposed by the lower court was manifestly inadequate and increased the sentence accordingly. The Court held that the increased sentence was necessary to achieve the objectives of punishment, deterrence, and rehabilitation, while also taking into account the circumstances of the offence and the defendant's background.

The Court's decision was based on a thorough analysis of the relevant legal principles and a careful consideration of the facts and circumstances of the case. The Court held that the increased sentence was necessary to ensure that justice was served and that the community was protected from further harm. The Court also emphasised the importance of proportionality in sentencing, ensuring that the sentence was commensurate with the gravity of the offence and the culpability of the defendant. The Court's decision in this case provides guidance to lower courts in determining appropriate sentences for similar offences in the future.

Orders