R v Adam (Richard) and (Gilbert) - [1999] NSWSC 144

CITATION: R v Adam (Richard) and (Gilbert) [1999] NSWSC 144

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 70209/98; 70210/98

HEARING DATE(S): 6/10/98 to 24/12/98

JUDGMENT DATE:
19 February 1999

PARTIES :

Richard Adam
Gilbert Adam (aka Dawood Odishou)

JUDGMENT OF: Wood CJatCL

COUNSEL : G. Smith for Crown
J. Foord QC with T. Moore for Richard Adam
C. Waterstreet for Gilbert Adam

SOLICITORS: Murphy Lawyers

CATCHWORDS:

DECISION: Gilbert Adam - penal servitude for 21 years from 17/7/97 to expire 16/7/2018 and an additional term of 7 years from 17/7/2018; Richard Adam - sentenced to a minimum term of penal servitude for 2 years from 24/12/98 to expire on 23/12/2001, and an additional term of 8 months from 24/12/2001.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

WOOD CJ at CL

(NSWSC 144)

FRIDAY 19 FEBRUARY 1999

70209/98 - REGINA v RICHARD ADAM)
70210/98 - REGINA v GILBERT ADAM (aka DAWOOD ODISHOU)

SENTENCE

1 HIS HONOUR: The prisoners Gilbert and Richard Adam were each placed on trial on 10 October 1998 for the murder of Constable David Carty. Richard Adam was charged in the alternative with inflicting grievous bodily harm to David Carty with intent to do him grievous bodily harm (Crimes Act 1900 s 33). By their verdicts, returned on 24 December 1998, Gilbert Adam was found by the jury to have been guilty of murder, while Richard Adam was found guilty of maliciously inflicting grievous bodily harm (Crimes Act 1900 s 35). This offence was left as an alternative to the count of inflicting grievous bodily harm with intent to do grievous bodily harm. It carries a maximum penalty of penal servitude for seven years, while the maximum penalty for murder is penal servitude for life.
2 The offences, of which the prisoners were convicted, occurred in the early hours of the morning of 18 April 1997 in the carpark to the Cambridge Tavern at Fairfield. Several other persons are yet to appear for trial in relation to the physical injuries sustained by David Carty in the carpark that led to his death. I will, accordingly, confine myself, in these reasons for sentence, to the evidence now before me, so far as it impacted upon the prisoners standing for sentence and refrain from any factual findings concerning the role of those accused whose trial will commence later this year. The prisoners are to be sentenced upon the basis of the factual findings that I am now to make, subject to the requirement that those findings are consistent with the verdicts of the jury: Isaacs (1997) 41 NSWLR 374 at 378.
3 Upon the basis of the evidence led in this trial it may, however, be accepted that the remaining accused, who were somewhat younger than the prisoners, were friends and members of a loose group of locals, largely, if not exclusively, of Assyrian origin. The prisoners are of similar national background and each emigrated to this country by reason of unrest in Iraq.
4 Common with many…

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.

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Details

Case: [1999] NSWSC 144
Decision Date: 19 February 1999

CaseChat Overview and Summary

The Supreme Court of New South Wales was tasked with sentencing Gilbert Adam and Richard Adam, who were convicted of murder and grievous bodily harm, respectively, in relation to the death of Constable David Carty. The incident occurred in the early hours of the morning on 18 April 1997 in the carpark of the Cambridge Tavern at Fairfield. The court considered several legal issues in determining the appropriate sentences, including the level of culpability, the need for general deterrence, and the personal circumstances of the defendants.

The court found that Gilbert Adam was guilty of murder and was involved in a joint criminal enterprise with others who attacked Constable Carty. The attack was unprovoked, and Gilbert Adam carried a knife, which he used to inflict the fatal stab wound. The court found that the attack was particularly heinous due to the fact that the victim was a police officer, and the attack was carried out by a group of men in a public place. Although the court acknowledged that Gilbert Adam's culpability was extremely high, it did not find it to be so extreme as to warrant a mandatory sentence of life imprisonment. Instead, the court imposed a determinate sentence of 21 years with an additional term of 7 years.

Richard Adam was found guilty of maliciously inflicting grievous bodily harm. The court determined that his involvement in the attack was less serious than that of his brother and others, and he did not carry or use a knife. Richard Adam joined in the second phase of the attack, encouraging and assisting those who assaulted Constable Carty. The court imposed a sentence of 2 years with an additional term of 8 months.

In reaching its decision, the court considered the personal circumstances of both defendants, including their backgrounds, family situations, and prospects of rehabilitation. The court also took into account the hardship that imprisonment would cause their families. However, the court found that these factors did not constitute special circumstances warranting a reduction in sentence. The court emphasized the importance of general deterrence and the need to protect police officers from violence in the course of their duties.

Orders