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R v Jaghbir (No 4)

R v Jaghbir (No 4)

Case [2020] NSWSC 1704 2 December 2020

Accessory Before the Fact

Sentencing

Expert Evidence

Criminal Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Jaghbir (No 4) [2020] NSWSC 1704
Hearing dates: 5 November 2020
Date of orders: 2 December 2020
Decision date: 02 December 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
For the offence of procuring, aiding and counselling unknown persons to murder Kemel Barakat, Ahmed Jaghbir is sentenced to a non-parole period of six years and six months commencing 10 October 2020 and expiring 9 April 2027 with a balance of term of four years expiring 9 October 2031

Catchwords:
CRIME - sentence - accessory before the fact to murder - where offender asked by deceased to replace front door and lock to deceased’s apartment - where offender assisted assailants in the procuring of a key to the deceased’s apartment - where offender knew that the deceased was to be shot in the deceased’s apartment - where opportunity arose fortuitously and did not involve extensive planning -where offender took advantage of the trust the deceased had in him to replace the door - where offender had no prior criminal history - where offender convicted of offences subsequent to the index offence - expert evidence of offender’s low intelligence - where offender continued to deny involvement in the offending - lack of remorse - low risk of reoffending - where finding of special circumstances because offender in protection in custody - where standard non-parole period for murder does not apply to charge of accessory before the fact
SENTENCING – non-parole period – standard non-parole period – whether applicable for accessory before the fact to murder
SENTENCING – accessory before the fact to murder - victim impact statement – whether deceased died as a direct result of the offence – whether should be taken into account in determination of the punishment for the offence

Legislation Cited:
Crimes Act 1900 (NSW) ss 18, 93T, 346
Crimes (Sentencing Procedure) Act 1999 (NSW) ss21A, 28, 54, 61

Cases Cited:
Aoun v R [2007] NSWCCA 292
Karl Suleman v R [2009] NSWCCA 70
Lu v R [2014] NSWCCA 307
R v AC (No 7) [2016] NSWSC 404
R v Jaghbir (No 3) [2020] NSWSC 1383
R v Kirchner [2011] NSWSC 1516
R v Nathan John Blundell [2016] NSWSC 1810
R v Proud [2017] NSWSC 286
R v Robert Nikolovski [2018] NSWSC 1147
R v Zanker (No 2) [2017] NSWSC 1254

Texts Cited:
Nil

Category: Principal judgment
Parties: Crown
Ahmed Jaghbir (Accused)
Representation:
Counsel:
C Taylor (Crown)
G James QC & E James (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Abbas Jacobs Lawyers (Accused)

File Number(s): 2017/337859
Publication restriction: Nil

JUDGMENT

Ahmed Jaghbir was arraigned before me on 7 September 2020 and entered a plea of not guilty to the following charge:

Whereas on the 10th day of March 2017, at Mortlake in the State of New South Wales, unknown persons did commit a serious indictable offence, namely murder Kemel Barakat, Ahmed Jaghbir between the 2nd and 10th day of March 2017 at…

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 Jaghbir (No 4)

Details

AGLC: R v Jaghbir (No 4) [2020] NSWSC 1704
Case: [2020] NSWSC 1704
Decision Date: 02 December 2020

CaseChat Overview and Summary

In the matter of R v Jaghbir (No 4), the appellant was convicted for his involvement as an accessory before the fact to the murder of a deceased. The deceased had been shot in their own apartment, and the appellant had facilitated the assailants by replacing the front door and lock, assisting in procuring a key, and knowing the deceased was to be shot. The appellant, who had no prior criminal history, denied any involvement and showed no remorse. The appellant was also found to have a low risk of reoffending and had expert evidence indicating low intelligence. The court was required to determine whether the standard non-parole period for murder applied to the charge of accessory before the fact to murder and whether the victim impact statement should be taken into account in determining the punishment.

The court examined whether the standard non-parole period for murder applied to the offence of accessory before the fact to murder. It considered that the standard non-parole period did not apply to this charge due to the nature of the offence and the unique circumstances of the appellant's involvement. The court also deliberated on the relevance of the victim impact statement in the context of the offence. It concluded that, although the deceased did not die as a direct result of the appellant's actions, the impact on the deceased's family and the community should be considered in determining the punishment.

The court held that the standard non-parole period for murder did not apply to the charge of accessory before the fact to murder. It reasoned that the nature of the offence and the unique circumstances of the appellant's involvement warranted a different approach to sentencing. The court further determined that the victim impact statement should be considered in determining the punishment for the offence. The court emphasised the importance of recognising the impact on the deceased's family and the community, even though the deceased did not die as a direct result of the appellant's actions. The court also took into account the appellant's low risk of reoffending, expert evidence of low intelligence, and the lack of remorse shown by the appellant.

The court ordered that the appellant be sentenced for his involvement as an accessory before the fact to the murder of the deceased. It determined the non-parole period without applying the standard non-parole period for murder and considered the victim impact statement in its sentencing decision. The court's decision recognised the unique nature of the offence and the importance of addressing the impact on the deceased's family and the community. The court also took into account the appellant's personal circumstances, including his low risk of reoffending, expert evidence of low intelligence, and the lack of remorse shown by the appellant.

Orders