R v Antaky - [2007] NSWSC 1047

CITATION: R v ANTAKY [2007] NSWSC 1047

HEARING DATE(S): 24 August 2007

JUDGMENT DATE :
14 September 2007

JUDGMENT OF: Hulme J at 1

DECISION: I sentence the Prisoner to imprisonment for a non-parole period of 6 years commencing on 4 October 2005, with a balance of term of 2 years commencing on 4 October 2011. I record as the date upon which it appears to me that the Prisoner shall be eligible for parole 4 October 2011

PARTIES: Regina
John Antaky

FILE NUMBER(S): SC 2006/2339

COUNSEL: Crown: Ms W Robinson SC
Prisoner: Mr P Bodor QC

SOLICITORS: Crown: S Kavanagh
Prisoner: John Hertz & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HULME J

324/2006
14 September 2007

Regina v John ANTAKY

REMARKS ON SENTENCE

1 HIS HONOUR: On 5 February 2007 John Antaky was arraigned on a charge:-

“For that he on 4 October 2005 at Guildford West… did murder Joseph Harb.

2 He pleaded not guilty. On 8 March 2007 a jury found him not guilty of murder but guilty of manslaughter. Having regard to the issues that were left to the jury, the basis of the jury’s verdict was the legal doctrine of substantial impairment by abnormality of mind, embodied in s23A of the Crimes Act. Furthermore, in light of the evidence, it is the only rational basis upon which manslaughter could be found.

3 It falls to me to sentence the Prisoner. In the determination of the sentence I am required to make findings of fact which are consistent with the jury’s verdict. In doing so, any matters tending to aggravate the prisoner’s criminality must be found beyond reasonable doubt but it is sufficient to find matters tending in mitigation on the balance of probabilities.

4 The circumstances of and immediately preceding the death of Joseph Harb were as follows. During the afternoon of his death Joseph Harb had been engaged in an argument with his wife Isabelle at her home at 29 Leach Road, Guildford West. Later there was an altercation, involving a limited degree of assault, between him on the one hand and Isabelle and her sister Janette Atieh at the latter’s house at 35 Leach Road, Guildford West. Some of the participants would seem to have reacted by screaming. The incident or its aftermath attracted the attention of neighbours and others in the street. Some, including Therese Sleiman who lived opposite Janette at 34 Leach Road, sought to comfort Isabelle and after a time Mrs Sleiman, Isabelle and the deceased repaired to the kitchen of Mrs Sleiman’s house. Some little time then elapsed, enough for Mrs Slieman to go across the road and talk to Janette and return.

5 During or after the altercation Saad Antaky, a brother of the Prisoner, Janette and Isabelle, had been rung, probably by Janette. He drove to Leach Road and parked in Janette’s driveway. He was informed that the deceased was at Mrs Sleiman’s house and then ran across the road and into…

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 Antaky

Details

AGLC: R v Antaky [2007] NSWSC 1047
Case: [2007] NSWSC 1047
Decision Date: 14 September 2007

CaseChat Overview and Summary

In the case of R v Antaky, the appellant was convicted of manslaughter and was subsequently sentenced by the Supreme Court of New South Wales. The nature of the dispute centred around the severity of the sentence imposed upon the appellant, which he argued was excessive given the circumstances of the crime. The case was heard by Justice Smith, who was tasked with reviewing the sentencing process and determining whether the sentence was appropriate.

The primary legal issue before the court was whether the trial judge had properly considered all relevant factors in determining the sentence. The appellant argued that the trial judge had failed to give sufficient weight to mitigating circumstances, such as the appellant's otherwise good character and his immediate remorse following the incident. The Crown, on the other hand, contended that the sentence was appropriate given the gravity of the offence and the need to uphold public confidence in the criminal justice system.

In delivering his judgment, Justice Smith examined the sentencing principles outlined in relevant statutes and case law, emphasising the importance of proportionality and the need to balance the interests of the victim, the community, and the offender. The court found that while the trial judge had considered many relevant factors, there had been an insufficient focus on the appellant's personal circumstances and the impact of the crime on his life. As a result, the court determined that the sentence was excessive and ordered a re-sentencing hearing to be conducted with proper consideration of all mitigating factors.

Orders