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 when firing at the motor vehicle. That finding is understandable in the particular facts of this matter, because, whatever may have motivated the offender to kill the deceased, there was no evidence that the offender wished to harm the uncle.

5 The facts and circumstances leading up to the shooting were not really in dispute. The offender and the deceased were acquaintances within the Lebanese community in the Campsie area. They shared a number of mutual friends and acquaintances. At about 5 pm on 6 May 2001 the deceased received a telephone call from the offender and as a result he drove to the offender’s premises in Frederick Street. As the deceased walked up the driveway, the offender suddenly appeared and attacked him delivering what was later described as a “king hit”. A fight ensued between the deceased and the offender. The deceased was apparently getting the upper hand when the fight was broken up by the arrival on the scene of Bek Hadid, a friend of both men, and the offender’s father. They had been in the premises at the time the fight commenced.

6 Exactly what occurred at that point is not clear and, in particular, there was conflicting evidence as to who produced a handgun at the time the fight was interrupted. Accounts given by the deceased to various persons later that evening indicated that it was Hadid who first produced the weapon. Hadid has given conflicting accounts as to whether it was the offender or his father who had the gun at the time the offender ordered the deceased to leave the property.

7 It is probably not of importance to determine who it was that produced the gun on this occasion but I am satisfied that the firearm belonged to the offender or a member of his family and that it was used to threaten the deceased after the fight broke up and before he left the property. I do not know why the deceased went to the offender’s home on this afternoon or why the offender attacked him. Nor do I understand why it was thought necessary to brandish a firearm at the deceased in order to have him leave the property. There was no evidence of any previous or existing enmity between the deceased and the offender or their families. Neither the offender nor his father gave evidence before the jury or before me on the sentencing proceedings. Hadid was an unreliable witness who changed his version depending upon what he thought best suited his own interests. Therefore, I am left without any real understanding of the relationship between the deceased and the offender at the time immediately before the shooting nor do I have any appreciation of the significance of the incident that took place at the offender’s home.

8 I do know, however, that the deceased left the offender’s premises unhappy with what had occurred and making it clear to him that he should not consider that the incident was over and forgotten. The deceased had apparently been slightly injured in the assault upon him as he was later seen to have a black eye and a swollen cheek.

9 Throughout the evening following the incident there were a number of conversations involving the deceased and his friends during which the deceased recounted what had occurred at the offender’s home and expressed his indignation about his treatment there. The deceased expressed his intention to meet with the offender for what was to be a “ fair fight” in order to salve his injured pride and reputation. At one point the deceased issued a challenge to the offender through a mutual friend, but it was declined. Bek Hadid gave evidence that the offender, when hearing of the challenge, had expressed his fear that the deceased might stab him.

10 Mr Steirn S.C., in his address on behalf of the offender in the sentencing proceedings, placed considerable weight on this piece of evidence in order to explain the offender’s conduct in shooting the deceased. Although he accepted that self-defence was not open on any view of the evidence, Mr Steirn submitted that I should find that the offender acted out of fear of what the deceased would do when he was forced to confront him on the deceased’s return. However, I have very serious misgiving about the reliability of any evidence given by Bek Hadid and I warned the jury that they should not place any weight upon his account. The fact that they convicted the accused of murder does not mean that they accepted his evidence.

11 But even if the offender did express that fear on hearing of the challenge, he had no basis for it on the evidence before me. There was no suggestion that the deceased was armed when he attended the offender’s premises in the afternoon prior to the shooting and was there attacked and threatened with a firearm by the offender or his father. There was no evidence that the deceased was armed at the time of the shooting. There was no weapon of any sort found in his motor vehicle. There was nothing before the jury to suggest that the deceased was generally regarded as a violent person and there was no evidence that, prior to the incident at the offender’s home, the deceased had threatened violence to the offender or his family. There was no evidence at all to indicate that the offender could have had any reason to fear that the deceased would do other than engage in a fistfight with him in order to settle the score as a result of the earlier incident. Quite the contrary, the deceased was expressing his intention of having a fair fight in front of his uncle, a young man not much older than him, but apparently with some standing amongst the young men in the community. Although the offender might have had some fear of coming off the worse in such a fight, there was nothing to suggest that he would have suffered any serious injury except to his pride and his standing in the community.

12 On the evening of the shooting there was a telecast of an interstate football match that the deceased and his friends intended to watch. For this purpose, the deceased went to the premises of his uncle, Fadi Nasr. He had earlier spoken to him on the telephone and recounted the incident that had occurred that afternoon at the offender’s home. His uncle had contacted various persons in order to speak to Hadid so that he could remonstrate with him for having produced the pistol during the course of the fight. After the deceased arrived at the uncle’s home, they commenced to watch the football match together but the deceased was too distracted by the earlier incident and made and received a number of telephone calls to friends and acquaintances in connection with it.

13 Ultimately, just after the telecast of the football game had come to an end at about 10 pm, the deceased determined to travel to Campsie to find the offender and to confront him about the earlier incident, intending no doubt to fight him if the opportunity arose. The deceased’s uncle went with him in order to ensure that the fight would be a fair one. They travelled in the deceased’s vehicle to Frederick Street, Campsie and stopped outside the offender’s premises. A neighbour of the offender gave evidence of hearing a motor vehicle stop and a person calling out, “Come out Andrew, (a name that the witness could not recognise) is looking for you. I know you are in there, I will come back for you”. The neighbour said that, after hearing these words, she looked out the window and saw a vehicle matching the description of the deceased’s vehicle driving down Frederick Street. A short time later “about 2 to 10 minutes”, on her estimation, the neighbour heard sounds that were the shots fired at the deceased’s vehicle.

14 The deceased’s uncle gave evidence that, when they stopped outside the offender’s premises, he saw the lights in the house extinguished and believed that he saw somebody looking out through the curtains. He said the deceased called out “Andrew, come out you dog, come out and fucking finish what you started”. He told the deceased to leave and they travelled a short distance to the premises of an acquaintance. However, on arriving there it appeared that there was nobody awake and so the deceased turned the vehicle around and travelled back to Frederick Street where the shooting took place.

15 The offender did not give evidence before the jury and did not participate in any interview with the police. However, he did tell the police officer that he was working on the evening of the shooting. The evidence before the jury that implicated him as the shooter was the identification of him by the deceased’s uncle and the circumstances leading up to, and surrounding, the shooting. In my view the Crown’s circumstantial case was overwhelming. Clearly the jury was of the view that the shooting of the deceased was connected to the incident between the offender and the deceased earlier that evening, although the evidence before them did not disclose the circumstances surrounding that incident.

16 I have little doubt that the Court has not been told the full story about the shooting of the deceased. But I cannot speculate about matters of which there is no evidence and I have to sentence the offender on the basis that he shot the deceased in the circumstances that I have recounted. I find it difficult if not impossible to understand how a young man, such as the offender, could possibly have laid in wait for the deceased in effect to ambush and kill just to avoid the consequences of a fistfight. Yet on the available evidence this is what the offender did. He decided to take that course while completely sober and apparently rational. There is nothing in the evidence before me that could possibly explain his actions such as to significantly mitigate the seriousness of what he did.

17 Although Mr Steirn with his usual skill has submitted that, in all the circumstances, this was a murder at the lowest end of the scale of such offences, I cannot accept that it was. I acknowledge that there was a degree of provocation in the challenge issued by the deceased and his promise to return, but I find it impossible to understand how the offender could have reacted to that provocation by forming the view that he should arm himself, await the deceased’s return in a public street, and, without any warning, shoot at him with the intention of killing him. I acknowledge that unfortunately among some sectors of the community, particularly among some groups of young people, the law of the gun is replacing the law of the land. But there is nothing before me to indicate that this attitude was prevalent amongst the Lebanese community in Campsie or in particular amongst the persons with whom both the deceased and the offender associated. Nor can I overlook that the deceased was threatened with a gun at the offender’s premises earlier that day.

18 In determining the appropriate sentence I have had regard to s 21A of the Crimes (Sentencing) Procedure Act. That section sets out a number of matters which either aggravate or mitigate the severity of an offence and which must be taken into account in determining the severity of the sentence to be imposed. The offence is aggravated by the fact that it involved the use of a weapon, in this case a fully-loaded handgun. The sentence to be imposed must reflect general deterrence in relation to the use of firearms in the community, even though as I have indicated there is no evidence of the prevalence of such weapons amongst the particular community in which the offender lived. There is also the aggravating feature that the offence was committed in a public street, even though there was no other person other than the accused’s uncle in the vicinity. There was an element of planning or premeditation in the commission of the offence at least in the period between the arrival of the deceased and his uncle at the premises and the return of the vehicle into Frederick Street. It was not as if the offender acted instinctively to the challenge without time for thought or reflection.

19 The accused is aged 26 years and has no relevant prior convictions. He is married, and was living with his wife and parents at the time of the killing and up until he was returned to custody upon being convicted by the jury. His background, or what I know of it, is unremarkable. He has generally been employed since the age of 14 years in unskilled positions. He was self-employed at the time of the shooting, operating what appears to have been a pool-hall. There is nothing in the very limited material before me that would suggest that his behaviour on this night was other than an aberration.

20 As I have already indicated there was a degree of provocation by the deceased in coming to the home late in the evening and issuing his challenge but the response was so greatly disproportionate to that provocative conduct that it does little to explain, let alone mitigate, the offence. Although Mr Steirn submitted that I should find that the offender was acting under some form of emotional duress caused by his anxiety about the return of the deceased, I am not prepared to find that he was. I simply cannot comprehend the offender’s reaction to the challenge of the deceased, and as I have already indicated I do not believe that I am apprised of all the relevant facts to explain what he did.

21 The offender has denied the offence and continues to do so. He is not to be punished for taking that stand, as he is entitled to put the Crown to proof of the offence. But his failure to acknowledge his guilt or to show any remorse for the killing, and the nature of the killing itself raises questions in my mind about his prospects for rehabilitation and whether he is likely to offend in the future. As I have indicated, the killing was grossly disproportionate to the situation in which the offender found himself and is unexplained by any circumstance that might go any way to account for that reaction. I cannot conclude otherwise than that there was some motivation unknown to me that caused the offender to behave as he did or his conduct reflects a complete lack of regard for human life. If the former be the case, I cannot make any judgment about his prospects for rehabilitation without understanding that motivation and whether it is likely to arise again in the future. If it is the latter, then I doubt that any sentence I impose upon him is going to change that attitude except by his gaining maturity over many years in custody.

22 My attention was drawn by Mr Steirn to s 22A of the Act. That section is as follows:

22A(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment, having regard to the degree to which the defence has made pre-trial disclosures for the purposes of the trial.

2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

23 Mr Steirn conceded that the section had no application to his client. He accepted, in my view properly so, that the section relates to the system of pre-trial disclosure contained in Division 2A of Part 3 of the Criminal Procedure Act. To that extent the section tends to discriminate in favour of those persons who have been charged with a more complicated offence where disclosure by the defence can facilitate the administration of justice by limiting the issues in dispute and hence limiting the length and complexity of the trial. But in the vast majority of cases, the present being one, there is no necessity to order disclosure and there is nothing that the defence could usefully disclose even if wished to do so.

24 To some extent the section is inconsistent with the common law view that the manner in which the trial is conducted is irrelevant to the sentence to be imposed on conviction. If a court cannot impose a harsher sentence because of the manner in which the trial was conducted, see Sigatano v The Queen (1998) 194 CLR 656 at 663, I have difficulty in seeing how it can use, as mitigation, the fact that the trial was conducted in a manner that was less complicated or less time-consuming or less stressful for the witnesses than might otherwise have been the case. It is unnecessary and probably inappropriate in what are sentencing remarks to consider the implications of the section or the history of its introduction further. The only reason I have referred to it at all is because of Mr Steirn’s submission that I should take into account in mitigation the manner in which the defence of the offender was conducted.

25 I acknowledge that at the end of the trial I complemented both counsel for the manner in which they conducted the trial, and that was no mere formality. The defence relied upon a single issue and to that extent did not require the Crown to call evidence on some matters as it might have done. The trial ended up being very much shorter than was expected when it was listed for hearing. Mr Steirn in effect submits that it is unfair that his client cannot have the benefit of a consideration of the conduct of the trial in this case, as is open under s 22A in more complicated matters. I can understand the force of that argument and I am not unsympathetic to it. But I do not believe that I can accede to the submission. I believe that I should ignore the manner in which a trial was conducted, either to mitigate the otherwise appropriate sentence or to increase it. The simple fact is that the accused went to trial and cannot expect, in the circumstances of this particular case, any consideration for remorse, contrition or a willingness to facilitate the course of justice.

26 But in any event it does not seem to me that on the facts of this particular matter that the sentence should be mitigated even if I were to accept Mr Steirn’s submission. The manner in which the trial was conducted was the only sensible way that the offender could have hoped to be acquitted. There was no other possible issue to be joined with the Crown other than the identity of the shooter. No verdict of manslaughter could have arisen because there was simply no basis for self-defence, provocation or the lack of an intent to kill. There was no point in contesting, for example, the medical evidence as to the cause of death or the ballistic evidence, and any attempt to do so might have alienated the jury. As I have indicated, the Crown’s circumstantial case as to the identity of the accused as the shooter was overwhelming, despite legitimate attempts made by Mr Steirn to raise other possible scenarios. My view is that competent and experienced defence counsel conducted the trial in the appropriate manner given the strength of the Crown case against their client. The fact that another counsel may have taken every point whether available or not, and whether it assisted the accused or not, does not justify a reduction in the otherwise appropriate sentence.

27 The sentence I am about to impose is concerned mainly with punishing the offender for what he did and to act as a severe deterrent to others against the use of firearms in public streets to settle disputes for whatever reason they may arise. There are, in my view, no special circumstances in the present case justifying a reduction in the non-parole period from that which would otherwise be imposed by operation of the provisions of the Act. I accept that the offender is a young man, with no record and that gaol will be as difficult for him as it would be for any young man in the same situation. I have already indicated that I am quite unable to form any view about his prospects for rehabilitation or what might be needed to aid him in that regard. Certainly there is nothing before me that suggests that there is any need for a longer period on parole or which would otherwise justify a reduction in the non-parole period. The length of the sentence must be such that the operation of s 44 will provide him with an appropriate parole period whatever might be the motivation or explanation for the killing.

28 This is yet another sad case where a young life has been needlessly lost in circumstances that should not have given rise to any serious injury to any person let alone the death of the deceased. It is another case of the enormous price paid as a result of the ready availability of firearms in the community, In this case what is represented as a law-abiding suburban family has custody of a handgun and ammunition. The offender’s father should take a great deal of responsibility for his son’s predicament. I have no doubt he was party to the use of the weapon earlier in the day.

29 I have received in evidence a victim impact statement written by the deceased’s sister on behalf of the family and medical reports relating to the devastating effects of the death of Romeo on his mother. I was able to observe for myself the severity of the impact of the death on the deceased’s mother and other family and friends during the trial particularly when his uncle movingly recounted the death of his nephew in his arms. I have not allowed that material to be used by me in any way to aggravate the severity of his crime. The reception of such evidence permits the family of Romeo to participate in the proceedings by expressing their grief and loss as a result of his death. It reminds the court, if it is necessary to do so, of the real human tragedy involved in matters that come before it. I understand that it is particularly difficult to come to grips with the death of a treasured family member when it occurs so pointlessly and unexpectedly. I take the opportunity to express the court’s sympathy and understanding to members of the deceased’s family.

30 But the deceased’s family and friends must understand that the criminal justice system in general and sentencing in particular is concerned with a balancing of interests including of course to punish the offender for taking the life of another human being but also to acknowledge that it is sentencing a young man for what appears to be an isolated criminal act and to do what it can to promote his rehabilitation. The Court cannot hope to redress the pain and suffering suffered by the family because of Romeo’s death by the sentence imposed and it does not attempt to do so.

31 The offender was on bail from shortly after his arrest until 2 December 2002 when he was convicted of murder. He was, however, in custody bail refused for a period of two weeks before his release to bail. I have backdated the sentence to take that period into account.

32 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.

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Last Modified: 03/10/2003