R v Diab - [2007] NSWSC 577

CITATION: R v Diab [2007] NSWSC 577

HEARING DATE(S): 14, 23 February, 9 March, 20 April, 25 May 2007

JUDGMENT DATE :
7 June 2007

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Studdert J

DECISION: Sentenced to a non parole period of seven years nine months to date from 7 June 2005 and to expire on 6 March 2013. The balance of the term of two years six months is to date from 7 March 2013 and to expire on 6 September 2015. The first date upon which the offender is eligible for release on parole is 6 March 2013.

LEGISLATION CITED: Crimes Act, ss 24, 421
Crimes (Sentencing Procedure) Act, ss 3A, 21A, 44

CASES CITED: R v Blacklidge (unreported, NSWCCA, 12 December 1995)
R v Forbes [2005] NSWCCA 377
R v Previtera (1997) 94 A Crim R 76
R v Bollen (1998) 99 A Crim R 510
Ahmad v R [2006] NSWCCA 117
R v Vuni [2006] NSWCCA 171
R v Mohamad Ali [2005] NSWSC 334
R v Morgan (1993) 70 A Crim R 368
R v Trevenna [2004] NSWCCA 43

PARTIES: Regina v Ali Diab
(NON PUBLICATION ORDER)

FILE NUMBER(S): SC 2006/1451

COUNSEL: E. Wilkins SC (14, 23 February, 9 March) (Crown)
A. Robertson (25 May) (Crown)
A.M. Webb (Offender)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Hanby & Associates Lawyers (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT J

Thursday 7 June 2007

2006/1451 REGINA v ALI DIAB

SENTENCE

NON PUBLICATION ORDER
(There is to be no publication such as would identify the witnesses referred to in the statement of facts, Exhibit A.)

1 HIS HONOUR: On 14 February 2007 the offender, Ali Diab, pleaded guilty to the manslaughter of Wasiem Amer on 15 May 2005. Earlier, an indictment had been presented against the offender charging him with the murder of the deceased but, on the issue of self defence, the Crown concluded that it was unable to discharge its onus of proving beyond reasonable doubt that the offender did not believe his conduct was necessary to defend himself or another person: see para 18 of Statement of Facts, Exhibit A. It is in these circumstances that the present indictment was presented and in which I am now required to sentence the offender for the crime of manslaughter as charged, committed in circumstances that I shall now review.

2 The offender shot the deceased at Bexley on 15 May 2005. The deceased, on post mortem examination, was found to have died from the effects of multiple gunshot wounds. There were five gunshot wounds to the body, with two of those being to the chest, one to the right arm, one to the left arm and one to the right leg.

3 I draw on the statement of facts presented by the Crown (Exhibit A) to summarise the objective facts.

4 The offender and Rabih Abdulrahman, who was charged with being an accessory after the fact…

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 Diab

Details

AGLC: R v Diab [2007] NSWSC 577
Case: [2007] NSWSC 577
Decision Date: 7 June 2007

CaseChat Overview and Summary

The case of R v Diab, which came before the Supreme Court of New South Wales, involved the sentencing of Ali Diab, who had pleaded guilty to the manslaughter of Wasiem Amer on 15 May 2005. The original charge against Diab was murder, but the Crown had concluded it could not prove beyond reasonable doubt that Diab did not believe his conduct was necessary for self-defence. Diab, along with Rabih Abdulrahman, was involved in illegal drug dealing and had a dispute with the deceased over their respective drug dealing territories. The fatal shooting occurred in a unit rented by a witness, B, with whom Abdulrahman had a prior relationship. Diab shot the deceased five times, resulting in the latter's death from multiple gunshot wounds.

The court needed to decide on the appropriate sentence for Diab, considering the circumstances of the manslaughter and the relevant sentencing principles and factors. The court had to balance the objective gravity of the offence with the subjective circumstances of Diab's background and the mitigating factors presented. Key issues included the appropriate penalty for manslaughter, the relevance of the offender's prior violent conduct, the offender's prospects of rehabilitation, and the impact of the offender's guilty plea on sentencing.

The court, in delivering its judgment, acknowledged the serious nature of the crime and the need to adequately punish Diab, deter him and others from similar conduct, and denounce the use of firearms in unlawful circumstances. The court considered the mitigating factors, such as Diab's age, his expressed remorse, and the discount for his guilty plea, but found these factors to be insufficient to significantly reduce the sentence. The court reviewed comparable cases and determined that a sentence of ten years and five months imprisonment, with a non-parole period of seven years nine months, was appropriate. The sentence was backdated to commence from the date of Diab's arrest, 7 June 2005, with the first eligibility for parole on 6 March 2013.

The court's final orders were that Ali Diab was sentenced to imprisonment for a non-parole period of seven years nine months, to date from 7 June 2005 and to expire on 6 March 2013, with the balance of the term of the sentence being two years six months, to date from 7 March 2013 and to expire on 6 September 2015. The first date upon which Diab was eligible for release on parole was 6 March 2013.

Orders