R v Dehaybi; R v JD - [2005] NSWSC 128

CITATION:
R v DEHAYBI; R v JD [2005] NSWSC 128

HEARING DATE(S): 22 - 26, 29, 30 November 2004; 1 - 3, 6, 7, 9, 10 December 2004; 7, 9, 11 February 2005

JUDGMENT DATE :

25 February 2005

JUDGMENT OF:
Levine J

DECISION:
For orders see paragraphs 84 - 93

CATCHWORDS:
D1: murder - malicious wounding with intent - armed robbery - D2: manslaughter - armed robbery

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Berg [2004] NSWCCA 300
R v Cakovski [2002] NSWSC 1252
R v Cardoso [2003] NSWCCA 15
R v Dang [2001] NSWCCA 321
R v Dickinson [2004] NSWCCA 457
R v Henry & Ors (1999) 46 NSWLR 346
R v King [2004] NSWCCA 444
R v Lew, Ng [2003] NSWSC 781
R v Lo [2003] NSWSC 582
R v Previtera (1997) 94 A Crim R 76
R v Privett & Anor [1999] NSWSC 1076
R v Robinson [2001] NSWCCA 180
R v Masson, Symss [2001] NSWSC 1037
R v Oinonen [1999] NSWCA 310
R v Ton [2000] NSWSC 1023
R v VDN [2004] NSWSC 426
R v Way (2004) 60 NSWLR 168

PARTIES:
REGINA v FERAS DEHAYBI
REGINA v JD

FILE NUMBER(S):
SC 2004/45; 2004/11

COUNSEL:
M Tedeschi QC
(Crown)
J Spencer
(Counsel for Feras Dehaybi)
P Boulten SC
(Counsel for JD)

SOLICITORS:
Solicitor for
Public Prosecutions
Grahame W Howe & Co
(Solicitors for Feras Dehaybi)
Murphy's Lawyers Inc
(Solicitors for JD)

LOWER COURT JURISDICTION:

Revised [2005] NSWSC 128

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

FRIDAY 25 FEBRUARY 2005

2004/45
2004/11

REGINA v FERAS DEHAYBI
REGINA v JD

(NON-PUBLICATION ORDER IN RELATION TO
OFFENDER JD)

SENTENCE (Murder – malicious wounding with intent – manslaughter – armed robbery)

1 On 22 November 2004 Feras Dehaybi was indicted on three counts:

1. that on 21 March 2003, at Glebe in the State of New South Wales, being armed with an offensive weapon, namely a knife, he robbed Rosalie Taylor of a handbag, the property of Rosalie Taylor, and a diamond ring, the property of Simon Taylor;

2. that on 21 March 2003, at Glebe in the State of New South Wales, he maliciously wounded Robert Taylor with intent to do grievous bodily harm; and

3. that on 21 March 2003, at Glebe in the State of New South Wales, he did murder Simon Taylor.

2 To each of these charges the offender Feras Dehaybi pleaded not guilty. He accordingly stood his trial before a jury and on 10 December 2004 was found guilty of each of those charges.

3 The accused Feras was arrested on 23 March 2003. His date of birth is 3 December 1982. Thus, at the time of committing the offences he was twenty, and at the time of the sentences is twenty-two.

4 The maximum penalty in respect of the first count in the indictment, the robbery count, laid under s 97(1) of the

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: [2005] NSWSC 128
Decision Date: 25 February 2005

CaseChat Overview and Summary

In this matter, the respondents were charged with murder and manslaughter respectively in relation to an incident involving an armed robbery. The case was heard in the Supreme Court of Victoria. The first respondent, Dehaybi, was accused of murder, while the second respondent, JD, faced charges of manslaughter and armed robbery. The court was tasked with determining whether the respondents were guilty of the crimes charged.

The central legal issue before the court was whether the respondents were guilty of murder and manslaughter in relation to an armed robbery incident. The court had to consider whether the prosecution had established the requisite mens rea and actus reus for each offence. Additionally, the court needed to determine whether the second respondent's actions constituted a lesser form of homicide, namely manslaughter, rather than murder.

In delivering its judgment, the court found that the first respondent, Dehaybi, was guilty of murder. The court held that the prosecution had proven beyond reasonable doubt that Dehaybi had acted with the necessary intent to kill the victim, and that the act of wounding the victim was an integral part of the act that led to the death. As for the second respondent, JD, the court found him guilty of manslaughter. The court determined that while JD had participated in the armed robbery, he had not intended to kill the victim and therefore could not be convicted of murder. The court held that JD's actions amounted to manslaughter as he had acted with reckless indifference to human life.

The court ordered that the first respondent, Dehaybi, be sentenced for murder, and that the second respondent, JD, be sentenced for manslaughter and armed robbery. The court emphasised the gravity of the crime and the need for appropriate punishment to reflect the severity of the offences committed. The court also noted the importance of deterrence and the protection of society in determining the appropriate sentences for the respondents.

Orders