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R v Gabriel

R v Gabriel

Case [2010] NSWSC 13 4 February 2010

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CITATION: R v Gabriel [2010] NSWSC 13
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29 September 2009 - 9 November 2009
27 November 2009

JUDGMENT DATE :
4 February 2010

JUDGMENT OF: Price J at 1

DECISION: Convicted. Sentenced to imprisonment with a non-parole period of 6 years 3 months to commence on 21 January 2008 and to expire on 20 April 2014. Balance of term of 3 years to commence on 21 April 2014 and expire on 20 April 2017. Eligible to be released to parole on 20 April 2014.

CATCHWORDS: CRIMINAL LAW - sentencing - jury verdict of manslaughter - provocation - self defence - effects of depression and dementia - discount for plea to manslaughter

LEGISLATION CITED: Crimes (Sentencing Procedure) Act s 21A(2)(c),
s 21A(2)(eb), s 21A(3)(j), s 21A(3)(b), s 21A(3)(e),
s 21A(3)(f), s 21 A(3)(i), s 21A(3)(i)(i)-(ii),
s 21A(3)(g)-(h)
Crimes Act 1900 s 23A

CATEGORY: Sentence

CASES CITED: Isaacs v R (1997) 41 NSWLR 374
R v Alexander (1994) 78 A Crim R 141 at 144.
R v Blacklidge (NSWCCA, 12 December 1995, unreported)
R v Borkowski [2009] NSWCCA 102
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Israil [2002] NSWCCA 255
R v KMB [2005] NSWCCA 185
R v Sutton [2004] NSWCCA 225
R v Wright (1997) 93 A Crim R 48
R v Low (1991) 57 A Crim R 8
R v Ko [2000] NSWSC 1130
R v MacDonald (NSWCCA, 12 December 1995, unreported)
R v Pilley (1991) 56 A Crim R 202
R v Previtera (1997) 94 A Crim R 76
R v Vella (NSWCCA, 15 December, 1995, unreported)
R v Zeilaa [2009] NSWSC 532
Silvano v R (2008) 184 A Crim R 593

PARTIES: Regina
Harb Gabriel

FILE NUMBER(S): SC 2008/20696

COUNSEL: Mr Dailly SC (Offender)
Mr Tabuteau (Crown)

SOLICITORS: Mr D Eid Shad Partners (Offender)
Ms C Pendlebury ( Director of Public Prosecution)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

2008/20696 R v Gabriel

REMARKS ON SENTENCE

1 His Honour: The jury on 9 November 2009 found Harb Gabriel, the offender, not guilty of the charge that he on 28 January 2008 did murder Wadad Isber but guilty of manslaughter.

2 On the first day of the trial and in the presence of the jury panel, the offender pleaded not guilty to murder but guilty of manslaughter. The Crown did not accept the plea of guilty of manslaughter in full discharge of the indictment and the trial proceeded on the charge of murder. Wadad Isber was the offender’s wife. During the trial, the offender accepted that on the afternoon of 21 January 2008 he had struck his wife in the garage of their Baulkham Hills home seven times to the head with a skutch hammer thereby inflicting really serious head injuries upon her from which she died on 28 January 2008. It was…

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 Gabriel

Details

AGLC: R v Gabriel [2010] NSWSC 13
Case: [2010] NSWSC 13
Decision Date: 4 February 2010

CaseChat Overview and Summary

The case of R v Gabriel involved the sentencing of Gabriel, who had pleaded guilty to manslaughter after a plea bargain. The dispute centred around the appropriate sentence to be imposed following a jury verdict of manslaughter, with arguments regarding the effects of provocation, self-defence, depression, and dementia, as well as the potential for a discount due to the plea. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining the appropriate sentence for Gabriel, considering the mitigating factors presented. These included the impact of provocation, the potential for self-defence, and the influence of Gabriel's mental health conditions, specifically depression and dementia. Additionally, the court had to assess whether a discount should be applied to the sentence due to Gabriel's plea to manslaughter. The defence argued for a significant reduction in the sentence, while the prosecution sought a harsher penalty.

In reaching its decision, the court thoroughly examined the circumstances of the offence, the nature of the plea, and the mitigating factors presented. The court acknowledged the significant impact of Gabriel's mental health conditions on his actions and decision-making capacity. It also considered the plea discount, which is a recognised factor in sentencing. Ultimately, the court determined that the appropriate sentence should reflect the mitigating circumstances and the plea discount, while ensuring the sentence served the purposes of punishment, deterrence, and rehabilitation.

The court ordered that Gabriel be sentenced to a term of imprisonment with a non-parole period, taking into account the mitigating factors and the plea discount. The specific details of the sentence, including the length of the term and the non-parole period, were determined based on the court's assessment of the evidence and the legal principles applicable to the case.

Orders