R v Elsamad - [2020] NSWSC 1372

Supreme Court

New South Wales

Medium Neutral Citation: R v Elsamad [2020] NSWSC 1372
Hearing dates: 11 September 2020
Decision date: 09 October 2020
Jurisdiction: Common Law
Before: Hidden AJ
Decision:
Sentence of imprisonment for 10 years, NPP 7 years from 19 November 2018

Catchwords:
CRIMINAL LAW – sentence – trial for murder – plea of guilty to manslaughter not accepted by Crown – offender found guilty of manslaughter – use of firearm – unlawful and dangerous act

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(c), s 21A(2)(i), s 21A(2)(j)

Cases Cited:
Abbas v R [2014] NSWCCA 188
Magro v R [2020] NSWCCA 25
R v Forbes [2005] NSWCCA 377, 160 A Crim R 1
Smith v R [2015] NSWCCA 193

Category: Principal judgment
Parties: Regina (Crown)
Youssef Elsamad (Defendant)
Representation:
Counsel:
A Robertson (Crown)
C Davenport SC (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Allied Lawyers (Defendant)

File Number(s): 2018/20965
Publication restriction: Nil

REASONS FOR SENTENCE

The offender, Youssef Elsamad, was tried before me and a jury for the murder of Mohammed Salihy at Merrylands on 19 January 2018. He was alleged to have used a shotgun to shoot Mr Salihy. At the outset of the trial he pleaded not guilty to murder but guilty of manslaughter, but the Crown prosecutor did not accept that plea in discharge of the indictment. The trial proceeded and, in the event, he was found guilty of manslaughter. Manslaughter had been left to the jury on two bases: a killing either in excessive self defence or by an unlawful and dangerous act. The basis upon which he should be sentenced is a matter of dispute between the parties.

Facts

I have a detailed statement of facts, much of them agreed, which I shall summarise. There is agreement as to the circumstances leading up to the killing and the conduct of the offender after it, but not as to the manner of the killing itself.
The deceased, Mohammed Salihy, was 22 years old at the time of the offence. The offender was 19. He was living with his parents and two younger sisters in a home unit in Eddy Street, Merrylands. He had known Mr Salihy for some years, they having attended high school together. They had a mutual associate, Mustafa El Jawad, whom the offender had also known for some years.
The offence occurred in the evening of 19 January 2018. In the early afternoon of that day the offender went with his family to Merrylands Mall. While walking in the street in that area he was confronted by Mr Salihy and Mr El Jawad. They were travelling in a van, driven by Mr Salihy, which pulled up near the offender. The two men got out of the van, shouting at the offender, and assaulted him. In an interview with police in June 2018, in the course of describing this incident, the offender suggested that they had tried to run him over in the van. This gains…

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 Elsamad

Details

AGLC: R v Elsamad [2020] NSWSC 1372
Case: [2020] NSWSC 1372
Decision Date: 09 October 2020

CaseChat Overview and Summary

The case of R v Elsamad involved the offender, who stood trial for the charge of murder. The offender entered a plea of guilty to the lesser offence of manslaughter, which was not accepted by the Crown. The offender was subsequently found guilty of manslaughter by the jury. The case involved the use of a firearm, which was found to be unlawful and dangerous. The court was required to determine an appropriate sentence for the offender. The offender was sentenced to a period of imprisonment, reflecting the gravity of the offence and the circumstances surrounding it. The court's decision highlights the importance of considering the nature of the offence and the circumstances of the offender when determining an appropriate sentence. The court also emphasised the need for a sentence that reflects the seriousness of the offence and provides for the protection of the community. The decision provides guidance for courts when considering sentences for similar offences.

Orders