R v Barghachoun - [2011] NSWSC 1534

Supreme Court

New South Wales

Medium Neutral Citation: R v Barghachoun [2011] NSWSC 1534
Hearing dates: 3 August 2011, 20 September 2011
Decision date: 13 December 2011
Before: Johnson J
Decision:
For the offence of manslaughter, the Offender is convicted and sentenced to imprisonment comprising a non-parole period of two years and three months commencing on 27 October 2011 and expiring on 26 January 2014, with a balance of term of one year and nine months commencing on 27 January 2014 and expiring on 26 October 2015. The earliest date upon which the Offender will be eligible for release on parole is 27 January 2014.

Catchwords: CRIMINAL LAW - sentence - manslaughter - plea of guilty - participation in affray involving two groups of young men - deceased stabbed by another person in Offender's group - factors relevant to sentence
Legislation Cited: Children (Criminal Proceedings) Act 1987
Cases Cited: R v Diab [2005] NSWCCA 64
R v La Rosa [2011] NSWSC 1394
R v Pirini [2011] NSWSC 1395
R v Aouli [2011] NSWSC 1393
R v Costa [3011] NSWSC 1392
R v AH [2011] NSWSC 1535
Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274
Texts Cited: ---
Category: Sentence
Parties: Regina (Crown)
Saad Jamie Barghachoun (Offender)
Representation: Mr AJ McCarthy (Crown)
Mr RH Button SC (Offender)
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission of NSW (Offender)

File Number(s): 2009/71166
Publication restriction: ---

REMARKS ON SENTENCE

JOHNSON J : The Offender, Saad Jamie Barghachoun, appears for sentence for the crime of manslaughter. The maximum penalty for this offence is imprisonment for 25 years.

On 6 May 2011, the Offender was arraigned before Latham J upon an indictment alleging that, on 25 April 2009, at Busby in the State of New South Wales, he did murder David Wayne Boyce. The Offender pleaded not guilty, but guilty to manslaughter. The Crown accepted that plea in full discharge of the indictment. The sentencing proceedings came before me on 3 August 2011 and continued on 20 September 2011.

At the outset, I observe that the Offender is not to be sentenced for directly causing the death of Mr Boyce. It is not alleged that the Offender wielded the knife which caused the fatal injury to Mr Boyce. Rather, the Offender's crime arises from his participation in events in the early hours of 25 April 2009 which saw two groups of young men coming into conflict, involving the use of violence, and with a person on the Offender's side of the conflict stabbing Mr Boyce to death. I will return to the nature of the Offender's crime and its seriousness later in these remarks on sentence.

Facts of Offence

An Agreed Statement of Facts was tendered at the sentencing hearing. In addition, the Offender gave evidence at that hearing.

It will be observed that a number of persons are referred to by initials and not by their full names. The tragic events surrounding the death of Mr Boyce included the involvement…

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 Barghachoun

Details

AGLC: R v Barghachoun [2011] NSWSC 1534
Case: [2011] NSWSC 1534
Decision Date: 13 December 2011

CaseChat Overview and Summary

The case of R v Barghachoun involved the offender, who entered a guilty plea to manslaughter charges following a violent affray between two groups of young men. The incident culminated in the death of the deceased, who was stabbed by another individual within the offender's group. The High Court of Australia was tasked with determining the appropriate sentence for the offender, considering the various factors pertinent to the crime. The central legal issues revolved around the gravity of the offender's involvement in the affray and the extent to which his participation should influence his sentencing.

The court meticulously examined the circumstances of the affray and the offender's role within it. It considered the nature of the affray, the offender's level of participation, and the immediacy and severity of the violence. The court also weighed the offender's background, his age, and any mitigating factors that might inform a just and proportionate sentence. In determining the sentence, the court balanced the need for retribution and deterrence against the possibility of rehabilitation and reintegration into society.

Upon thorough deliberation, the court concluded that the offender's participation in the affray was significant, though not directly responsible for the fatal stabbing. The court recognised the offender's prior good character and potential for rehabilitation as mitigating factors. Ultimately, the court imposed a sentence that reflected both the seriousness of the crime and the offender's culpability, ensuring a fair and balanced outcome. The court's decision underscored the importance of considering the full context of the offence and the individual circumstances of the offender in sentencing.

Orders