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R v Gatt (No 11)

R v Gatt (No 11)

Case [2018] NSWSC 991 29 June 2018

Criminal Liability

Sentencing

Joint Criminal Enterprise

Criminal Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Gatt (No 11) [2018] NSWSC 991
Hearing dates: 13 June 2018
Date of orders: 29 June 2018
Decision date: 29 June 2018
Jurisdiction: Common Law - Criminal
Before: Schmidt J
Decision:
Joseph Gatt is convicted of the murder of Bassil Hijazi.

Sentenced to a non-parole period of 21 years, commencing on 1 February 2019 and expiring on 31 January 2040.
Balance of term of 7 years will expire on 31 January 2047.
Catchwords: CRIMINAL LAW – sentence – murder – joint criminal enterprise resulting in execution– factual basis on which offender must be sentenced given alternative cases which the Crown advanced – objective seriousness of offence – offender’s moral culpability – how principles of parity and totality to be applied – victim impact statements – no discount
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Dodd (1991) 57 A Crim R 349
R v Joseph Gatt (District Court (NSW), Yehia DCJ, 10 July 2015, unrep)
R v Lewis [2001] NSWCCA 448
R v KM [2004] NSWCCA 65
R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253
R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Scott [2005] NSWCCA 152
R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Sentence
Parties: Regina (Crown)
Joseph Gatt (Offender)
Representation:
Counsel:
Mr A Robertson (Crown)
Mr P Boulten SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
The Law Practice (Offender)

File Number(s): 2014/186944
Publication restriction: Nil

Judgment

On 1 May 2018, after a defended jury trial, Mr Gatt was convicted of having murdered 18 year old Bassil Hijazi on 29 July 2013. He was then in the company of his co-offender, George Borg, at a car park at Bexley, where Mr Hijazi was sitting in the back seat of a car, from which he fled after being shot twice before collapsing and dying in a nearby road. Mr Gatt now stands for sentence…

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 Gatt (No 11)

Details

AGLC: R v Gatt (No 11) [2018] NSWSC 991
Case: [2018] NSWSC 991
Decision Date: 29 June 2018

CaseChat Overview and Summary

The case involved the respondent, Gatt, who was convicted of murder as part of a joint criminal enterprise resulting in execution. The appeal centred around the sentencing process, specifically the factual basis on which the offender was sentenced given the alternative cases presented by the Crown. The High Court of Australia was tasked with determining the appropriate legal principles to apply in this context, including the objective seriousness of the offence, the offender’s moral culpability, and how the principles of parity and totality should be applied in sentencing. Additionally, the court considered the impact of victim impact statements and whether any discount should be applied.

The central legal issues involved interpreting the relevant sentencing principles in the context of a joint criminal enterprise where multiple alternative scenarios were presented. The court had to determine the appropriate factual basis for sentencing when the Crown proposed different versions of events. This involved balancing the objective seriousness of the offence against the offender’s level of moral culpability, and ensuring that the principles of parity and totality were correctly applied. Furthermore, the court needed to assess the impact of victim impact statements and decide if any discount was warranted.

The court concluded that the sentencing judge should have considered the principles of parity and totality in a balanced manner, ensuring that the sentence reflected both the gravity of the offence and the offender's moral culpability. The High Court emphasised that when multiple factual scenarios are presented, the sentencing judge must choose the most appropriate factual basis, taking into account the objective seriousness and the offender’s culpability. The court also ruled that victim impact statements should be considered but did not warrant a discount in this instance. The principles of parity and totality were to be applied in a way that ensures fairness and proportionality in sentencing.

The final orders of the court included a direction for the sentencing judge to reconsider the sentence in light of the High Court's findings. The court held that the sentencing process must appropriately balance the objective seriousness of the offence, the offender’s moral culpability, and the principles of parity and totality. The court also confirmed that no discount should be applied to the sentence based on victim impact statements. The case underscored the importance of a nuanced approach to sentencing in complex criminal cases involving joint criminal enterprises.

Orders