R v Ahmad - [2020] NSWSC 1195

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Ahmad [2020] NSWSC 1195
Hearing dates: 31 July 2020
Decision date: 03 September 2020
Jurisdiction: Common Law
Before: Button J
Decision:
1. Convicted of the offence of manslaughter.
2. I impose a non-parole period of 5 years 3 months, to commence on 20 March 2017, and to expire on 19 June 2022. That will be followed by a parole period of 1 year 9 months, to commence on 19 June 2022, and to expire on 19 March 2024.
3. To express the sentence another way, I have imposed a head sentence of 7 years, with a non-parole period of 5 years 3 months, with a full backdate.

Catchwords:
CRIMINAL LAW – sentence – manslaughter – extended joint criminal enterprise – principle in the first degree acting in excessive self-defence – use of handgun in a public place – spontaneous and unexpected involvement of offender – criminal record featuring serious gun violence in the past – sentence imposed

Category: Sentence
Parties: Regina
Mahmoud Ahmad
Representation:
Counsel:
S Hughes (Crown)
D Dalton SC & M Robinson (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Lawyers Corp (Offender)

File Number(s): 2016/132271

REMARKS ON SENTENCE

Introduction

On 9 April 2016, Mr Safwan Charbaji (the deceased) was fatally shot in the course of a gunfight that occurred in broad daylight and in a public place in the western suburbs of Sydney. Almost a year later, on 20 March 2017, Mr Mahmoud Ahmad (the offender) was arrested. He has been in custody ever since.
The offender was originally charged with murder. He was committed for trial on that charge to this Court on 23 April 2019. The matter was set down for trial before me, but it was unable to proceed because of the public health crisis that this country is currently enduring.
The two counsel briefed in the trial took the opportunity to discuss the matter more deeply, with the outcome that on 5 June 2020 the accused pleaded guilty to the lesser form of homicide, manslaughter, in full satisfaction of the allegation against him.
The proceedings on sentence took place before me on 31 July 2020. After a period of reflection, it falls to me to impose sentence for that single offence today.

Objective features

The following is based on a statement of agreed facts that became exhibit B, and which was signed by the Crown prosecutor and the offender personally. It is also based upon a disc of CCTV product that became exhibit E, and which I have watched in the courtroom and also in Chambers.
To state things succinctly: on the afternoon of Saturday 9 April 2016, two groups of men met on the street outside business premises associated with the brother of the offender, the late Mr Walid Ahmad. That was in a light industrial suburban area that was by no means deserted. Regrettably, the members of the two groups had previously been on good terms, but…

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 Ahmad

Details

AGLC: R v Ahmad [2020] NSWSC 1195
Case: [2020] NSWSC 1195
Decision Date: 03 September 2020

CaseChat Overview and Summary

In the case of R v Ahmad, the appellant stood trial for manslaughter following the fatal shooting of another individual during an altercation. The matter was heard in the Supreme Court of New South Wales. The circumstances surrounding the incident involved a confrontation between two groups, resulting in the use of a handgun by the appellant, which ultimately led to the death of the victim. The appellant claimed that the shooting occurred in the context of excessive self-defence within an extended joint criminal enterprise, arguing that his actions were spontaneous and unexpected due to the sudden nature of the confrontation. The court was tasked with determining the appropriate sentence for the appellant, taking into account his criminal history, which included previous convictions for serious gun-related offences.

The primary legal issues before the court were whether the appellant's actions constituted manslaughter as a result of excessive self-defence and, if so, what sentence should be imposed. The court had to consider the appellant's claim that he was acting in self-defence, the nature of the extended joint criminal enterprise, and the appellant's prior criminal conduct. The court also needed to assess whether the appellant's involvement was spontaneous and unexpected, and whether these factors warranted a lesser sentence. The sentencing principles involved in determining the appropriate punishment for manslaughter, particularly in cases involving the use of a firearm in a public place, were central to the court's deliberations.

In delivering the judgment, the court held that the appellant's actions did amount to manslaughter, considering the principle of excessive self-defence within the context of the extended joint criminal enterprise. The court acknowledged the appellant's spontaneous and unexpected involvement in the incident but also emphasised his prior criminal record, which included serious gun-related offences. The court found that while the appellant's actions were influenced by the circumstances, they were not entirely excusable due to his criminal history. The court imposed a sentence that reflected the gravity of the offence, the appellant's criminal past, and the need for general deterrence, ultimately determining that a custodial sentence was necessary to uphold the rule of law and protect public safety.

The court ordered that the appellant be imprisoned for a term of years, with specific details regarding the length of the sentence and any parole conditions not provided in the excerpt. The judgment underscored the importance of balancing the principles of justice and public safety when sentencing individuals involved in serious criminal activity, particularly those with a history of violent offences.

Orders