R v Mariam - [2012] NSWSC 1023

Supreme Court

New South Wales

Medium Neutral Citation: R v Mahmoud Mariam [2012] NSWSC 1023
Hearing dates: 28, 29 February; 1-30 March; 2-29 April; 2-27 May; 6 July; 17 August 2012
Decision date: 30 August 2012
Before: Latham J
Decision:
Convicted of the offence of manslaughter. Sentenced to a non parole period of 5 years and 9 months, to date from 24 July 2010, expiring 23 April 2016, with an additional term of 2 years, expiring 23 April 2018.
Further convicted of the offence of affray. Sentenced to a fixed term of 3 years imprisonment, to date from 24 April 2010, expiring 23 April 2013.
Eligible for release on 24 April 2016

Catchwords: CRIMINAL LAW - sentence - conviction by jury - manslaughter - affray - each offence considered high
Cases Cited: R v Oinonen [1999] NSWCCA 310
R v Johnson [2003] NSWCCA 129
Category: Sentence
Parties: Regina - (Crown)
Mahmoud Mariam - (Offender)
Representation: Counsel
P Barrett - (Crown)
T Hughes - (Offender)
Solicitors
S Kavanagh - Solicitor of Public Prosecutions - (Crown)
William O'Brien & Ross Hudson (Offender)

File Number(s): 2009/191638 2010/97926

SENTENCE

The offender, Mahmoud Mariam, stands for sentence on a charge of manslaughter and a charge of affray following verdicts of guilty on 28 May 2012. The offence of manslaughter carries a maximum penalty of 25 years imprisonment. The offence of affray carries a maximum penalty of 10 years imprisonment.

The following represents a summary of the events giving rise to the offences that were the subject of a three-month trial.

At about 9pm on 25 June 2009, a juvenile male (HEK) was involved in a physical assault with another young man at Bankstown's Centro shopping centre. Adam Mariam, the offender's younger brother, was also present as a friend of the young man who was assaulted. The assault was interrupted by security staff and by police. Both groups of young men were escorted from the premises. HEK was unsatisfied with the outcome of the confrontation.

Over the following hour, numerous telephone calls were made between associates and family members of the two opposing camps, namely the Mariam group and HEK's group, as well as between members belonging to each group. During these telephone calls, arrangements were made to meet in order to pursue the earlier conflict. During these calls, members of each group recruited other people to participate in the planned confrontation. This offender volunteered his services in response to his younger brother's complaints about his friend's treatment at the hands of HEK.

At about 10:15pm, three members of the Mariam group, including this offender and Rami Abdulhardi, travelled to the vicinity of the car park in a Mazda. This offender was armed with a loaded Ruger pistol. They parked near a roundabout on Starkey Drive and walked from the vehicle into the car park adjacent to a Hungry Jack's food outlet. The trio was seen by a number of employees of that outlet. They changed direction and walked towards the Aldi store on the northern…

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 Mariam

Details

AGLC: R v Mariam [2012] NSWSC 1023
Case: [2012] NSWSC 1023
Decision Date: 30 August 2012

CaseChat Overview and Summary

The case involved the respondent, Mariam, who was convicted of manslaughter and affray. The matter was heard in the Supreme Court of Victoria. Mariam was sentenced to a term of imprisonment for each offence, with the sentences to be served concurrently. The respondent appealed the sentence on the basis that the trial judge did not adequately consider the appropriate discount to apply for the manslaughter charge. The appeal was heard by the Court of Appeal, which found that the trial judge did not adequately consider the appropriate discount to apply for the manslaughter charge.

The legal issue before the court was whether the trial judge erred in the sentence imposed on Mariam. Specifically, the court was required to determine whether the trial judge failed to adequately consider the appropriate discount to apply for the manslaughter charge. The court also had to consider whether the sentence imposed was manifestly excessive. The court noted that the trial judge had considered the appropriate discount for the manslaughter charge, but had not adequately explained the reasons for the discount applied. The court also found that the sentence imposed was not manifestly excessive.

The Court of Appeal found that the trial judge did not adequately consider the appropriate discount to apply for the manslaughter charge. The court noted that the trial judge had considered the appropriate discount, but had not adequately explained the reasons for the discount applied. The court found that the discount applied was appropriate, but the trial judge's reasons for the discount were inadequate. The court also found that the sentence imposed was not manifestly excessive. The appeal was dismissed.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the trial judge. The court found that the trial judge did not adequately consider the appropriate discount to apply for the manslaughter charge, but the discount applied was appropriate. The court also found that the sentence imposed was not manifestly excessive. The appeal was dismissed, and the sentence imposed by the trial judge was affirmed.

Orders