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R v Diallo & Ors (No 17) (Sentence)

R v Diallo & Ors (No 17) (Sentence)

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Case Copied 20 December 2024 84 min read

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Supreme Court

New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 17) (Sentence) [2024] NSWSC 1650
Hearing dates: 29 November, 11 and 19 December 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) AD is sentenced to an aggregate sentence of 8 years with a single non-parole period of 5 years.
(2) Panashe Karise is sentenced to an aggregate sentence of 10 years with a single non-parole period of 7½ years.
(3) Panashe Karise is convicted with no further penalty of four traffic offences. The automatic licence disqualification for 12 months applies.
(4) Ibrahima Diallo is sentenced to an aggregate sentence of 7½ years with a single non-parole period of 5 years.
(5) AG is sentenced to an aggregate sentence of 6½ years with a single non-parole period of 4 years.
(6) YA is sentenced to an aggregate sentence of 6 years and 9 months with a single non-parole period of 4 years and 3 months.
(7) Pursuant to ss 19(1) and 19(4) of the Children (Criminal Proceedings) Act 1987 (NSW), the sentences of AD, AG and YA are to be served as juvenile offenders up until the offenders attain the age of 21.

Catchwords:
CRIMINAL LAW – sentencing – offences of violence – violent melee in a suburban street – six people stabbed – one child killed – manslaughter – attempted murder – wound with intent – animosity between groups of young men – an art form known as drill rap music – where offenders’ group initiated violence by attending with knives – where victims’ group emerged from house and attacked – zombie knife and golf clubs – where jury rejects proposition that joint criminal enterprise abandoned – dispute over content of joint criminal enterprise – relevance of self-defence – fact finding on sentence – finding that subjective component established but objective component rejected – relevance of extent to which conduct exceeded what was reasonable – different findings in relation to each offence – devastating impact on victims – eloquent and moving victim impact statement – subjective circumstances of offenders – requirement for stern punishment – balancing competing considerations – a place for leniency – assessment of moral culpability – different findings in each case – where one offender contended subjective factors fed into assessment of moral culpability – application of cases – submission rejected – parity and proportionality in sentencing co-offenders – different considerations – varying assessment of objective criminality – individualised justice – application for direction that three offenders serve sentences as juvenile offenders – Prosecutor chooses to oppose – direction made – special circumstances

Legislation Cited:
Bail Act 2013 (NSW), s 22B
Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 19, 19(1), 19(2), 19(3), 19(4), 25
Crimes Act 1900 (NSW), ss 24, 27, 33, 33(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(i), 21A(3), 44, 44(2B), 47, 53A, 54D, 54D(3)
Criminal Procedure Act 1986 (NSW), s 166
Jury Act 1977 (NSW),…

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: [2024] NSWSC 1650
Decision Date: 20 December 2024

CaseChat Overview and Summary

In the case of R v Diallo & Ors (No 17) (Sentence), the offenders were before the Court of Appeal challenging their sentences following convictions for various violent offences committed during a melee in a suburban street. The incident resulted in six people being stabbed, one child killed, and charges of manslaughter, attempted murder, and wounding with intent. The Court was required to address several legal issues, including the relevance of self-defence, the content of the joint criminal enterprise, and the appropriate balance between stern punishment and individualised justice when sentencing co-offenders.

The court considered the subjective circumstances of the offenders and the devastating impact of the crimes on the victims, taking into account an eloquent victim impact statement. The legal issues involved the assessment of moral culpability and the extent to which the conduct of the offenders exceeded what was reasonable. The court rejected the proposition that the joint criminal enterprise had been abandoned and made findings on the relevance of self-defence and the content of the joint criminal enterprise. The court also examined the need for parity and proportionality in sentencing co-offenders, considering individualised justice and the varying assessments of objective criminality.

After carefully considering the evidence and arguments presented, the Court of Appeal found that the sentences imposed on the offenders were appropriate, taking into account the serious nature of the crimes, the impact on the victims, and the individual circumstances of each offender. The court made a direction that three offenders serve their sentences as juvenile offenders, despite the prosecutor's opposition to this application. The final orders of the Court reflect the need to balance the requirement for stern punishment with the need for individualised justice in sentencing co-offenders.

Orders