R v Dib, Kanaan and Refai - [2002] NSWSC 1244

CITATION: R v DIB, KANAAN & REFAI [2002] NSWSC 1244

FILE NUMBER(S): SC 70201/02; 70006/02; 70200/02

HEARING DATE(S): 9 December 2002

JUDGMENT DATE: 18 December 2002

PARTIES :

Regina
Mohamed Dib
Michael Kanaan
Nawaf Refai

JUDGMENT OF: Hulme J at 1

COUNSEL : Crown: P Conlon SC
Dib: J Korn
Kanaan: A Morison
Refai: M Thangaraj

SOLICITORS: Crown: SE O'Connor
Prisoners: TA Murphy

DECISION: See paragraph 69

- 20 -

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

HULME J

Wednesday, 18 December 2002

Mohamed DIB, Michael KANAAN, Nawaf REFAI

REMARKS ON SENTENCE

1 HULME J: The prisoners before me were committed for trial on 17 December 2001 on a number of charges, one of which was of being an Accessory after the Fact to Murder. They were arraigned in this Court on 1 February 2002. There is no endorsement on the Court file of what their pleas then were but from the fact that their trial, and that of Moustapha Dib for the principal offence were listed to commence on 9 September last and extend for an estimated 6 weeks, one may infer that they did not indicate any intention to plead guilty.

2 On that day there were applications made to defer the trial of Mr Kanaan because of publicity he had received in consequence of other trials and to separate the trial of the others from his. Those applications I refused. There were some other complications it is unnecessary to detail and the proceedings were stood over, without any further arraignment or empanelling of a jury until Wednesday 11 September.

3 Before proceedings recommenced on the Wednesday, I was informed that the Crown proposed to present an indictment including a lesser charge. Counsel for the 3 prisoners indicated that they wished for some time to consider the situation and discuss it with their clients and when I resumed the Crown presented an indictment charging each of Mohamed Dib and Narwaf Refai with, between about 17 and 19 October 1998, being an accessory after the fact to the murder, by Moustapha Dib, of Edward Lee and, secondly with, between those dates, being an accessory after the fact to the malicious wounding of Edward Lee by Moustapha Dib with intent to do grievous bodily harm. Each of these prisoners pleaded not guilty to the charge of being an accessory after the fact to murder but guilty to the lesser charge. The Crown indicated it would accept those pleas in full satisfaction of the charges against each. Proceedings involving these 2 were stood over to 18 October for sentence.

4 It was indicated that Mr Kanaan wished for more time to consider his position and proceedings were adjourned to the following day. After Mr Kanaan was given a little more time on the Thursday morning, his counsel indicated that he would plead guilty to the alternate count. An indictment in materially the same terms as that against the other prisoners was then…

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: [2002] NSWSC 1244
Decision Date: 18 December 2002

CaseChat Overview and Summary

The case of R v Dib, Kanaan and Refai involved three defendants who were charged with being accessories after the fact to murder and malicious wounding with intent to do grievous bodily harm. The defendants, Mohamed Dib, Michael Kanaan, and Nawaf Refai, initially pleaded not guilty but later changed their pleas to guilty on the lesser charge of being an accessory after the fact to the crime of inflicting grievous bodily harm. The court considered the objective seriousness of their crimes, their individual backgrounds, and the benefits of their guilty pleas in determining the appropriate sentences. The court found the defendants' conduct to be of high objective seriousness due to the nature of the crime they assisted in and the deliberate and calculated manner in which they provided assistance. The court also considered the defendants' subjective circumstances, such as their criminal history and personal backgrounds, in determining the appropriate sentences. The court ultimately decided to sentence Mohamed Dib and Michael Kanaan to 3 years and 4 months in prison, including a non-parole period, while Nawaf Refai received a suspended sentence of 2 years due to his relatively clean record and potential for rehabilitation.

Orders