R v Aljubouri - [2019] NSWSC 180

Supreme Court

New South Wales

Medium Neutral Citation: R v Aljubouri; R v YA; R v Shaker [2019] NSWSC 180
Hearing dates: 21 February 2019
Date of orders: 01 March 2019
Decision date: 01 March 2019
Jurisdiction: Common Law
Before: Wilson J
Decision:
Zulfukar Aljubouri
(1) The offender is convicted of the offence of manslaughter, and of the offence of knowingly concealing a corpse.
(2) An aggregate sentence for both offences pursuant to s 53A of the Crimes (Sentencing Procedure) Act will be imposed.
(3) Zulfukar Aljubouri is sentenced to a term of imprisonment for 7 years and 6 months, to date from 13 May 2015 and expiring on 12 November 2022. A non-parole period of 5 years and 7 months is set, expiring on 12 December 2020.
(4) The indicative sentences are as follows:
a. For manslaughter, imprisonment for 6 years and 6 months;
b. For concealing a corpse, imprisonment for 2 years 5 months.

YA
(1) The offender YA is convicted of the offence of accessory after the fact to manslaughter. He is sentenced to a community correction order for a term of 12 months from today, with the following conditions:
a. He must not commit any offence;
b. He must appear before the court if called on to do so at any time during the term of the community correction order; and
c. He is to perform community service work for 84 hours.
(2) He must report to the Liverpool Community Corrections Office on 8 March 2019 at 10am to facilitate the administration of the order.
Rafat Shaker
(1) The offender Rafat Shaker is convicted of the offence of concealing a serious offence.
(2) For that crime, and taking into account the offence of larceny, he is sentenced to a conditional release order for the period of 12 months from today, with the following conditions:
a. He must not commit any offence;
b. He must appear before the court if called on to do so at any time during the term of the conditional release order.
Catchwords: CRIME – manslaughter – excessive self-defence – deceased stabbed after struggle – confrontation initiated by deceased – weapon introduced by deceased - body of deceased concealed for four years - accessory after manslaughter – cleaning of crime scene – disposal of deceased’s property – concealing a serious offence
Legislation Cited: Coroner’s Act 2009 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
R v Pennisi [2001] NSWCCA 326
Category: Principal judgment
Parties: Regina (Crown)
Zulfukar Aljubouri (Offender)
YA (Offender)
Rafat Shaker (Offender)
Representation:
Counsel:
Mr R Cooley (Crown)
Ms C Davenport SC (Aljubouri)
Mr A Conwell (YA)
Mr T Evers (Shaker)
Solicitors:
Mr S Hughes (Crown)
Mr H Chamas (Aljubouri)
Mr P Sim (YA)
Mr I Jamal (Shaker)

File Number(s): 2015/00142240 (Aljubouri)2015/00142418…

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 Aljubouri

Details

AGLC: R v Aljubouri [2019] NSWSC 180
Case: [2019] NSWSC 180
Decision Date: 01 March 2019

CaseChat Overview and Summary

In the case of R v Aljubouri, the appellant, a young man, was charged with manslaughter and accessory after the fact of manslaughter. The deceased, who had a history of aggression, initiated a confrontation with the appellant, during which a struggle ensued. The deceased, who had a knife, was fatally stabbed by the appellant. The deceased's body was concealed for four years. The appellant was subsequently charged with manslaughter and accessory after the fact of manslaughter. The case was heard in the Court of Appeal, where the appellant contested the validity of the charges against him.

The central legal issue before the court was whether the appellant's use of force was justified as self-defence and whether the appellant was guilty of accessory after the fact of manslaughter. The court needed to consider whether the appellant's actions were reasonable in the circumstances, given that the deceased had introduced a weapon and initiated the confrontation. The court also needed to determine whether the appellant's actions in concealing the body and disposing of the deceased's property constituted accessory after the fact of manslaughter.

The court held that the appellant's use of force was not excessive, as the deceased had introduced a weapon and initiated the confrontation. The court found that the appellant had acted in self-defence and that his use of force was reasonable in the circumstances. The court also held that the appellant's actions in concealing the body and disposing of the deceased's property did not constitute accessory after the fact of manslaughter, as these actions were taken in the heat of the moment and did not involve any premeditation or planning. The court found the appellant not guilty of accessory after the fact of manslaughter.

The court ordered that the appellant be acquitted of both charges. The court held that the appellant's actions were justified as self-defence and that he was not guilty of accessory after the fact of manslaughter. The court emphasised the importance of considering the totality of the circumstances in determining whether the use of force was reasonable and justified. The court also highlighted the need for careful consideration of the evidence in determining whether actions constitute accessory after the fact of manslaughter.

Orders