R v Masood Atai - [2011] NSWSC 1617

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court

New South Wales

Case Title: R v Masood Atai

Medium Neutral Citation: [2011] NSWSC 1617

Hearing Date(s): 5 - 22 September 2011; 9 & 13 December 2011

Decision Date: 13 December 2011

Jurisdiction: Common Law - Criminal

Before:
Grove AJ

Decision:
1.The offender is sentenced to imprisonment consisting of a non-parole period of eighteen years commencing on 10 February 2010 and expiring on 9 February 2028 with a balance of term of six years commencing on 10 February 2028.
2.The earliest date of eligibility for parole is specified as 9 February 2028.

Catchwords:
SENTENCE - criminal law and procedure - conviction of murder after trial - random shooting of stranger - youthful offender - absence of remorse - sentence imposed

Legislation Cited:

Cases Cited:

Texts Cited:

Category: Sentence

Parties:
Regina (Crown)
Masood Atai (Offender)

Representation

- Counsel:
Counsel
M. M. Cunneen SC (Crown)
E. Wasilenia (Offender)

- Solicitors:
Solicitors
Solicitor for Public Prosecutions (Crown)
Proctor & Associates (Offender)

File number(s): 2010/36738

Publication Restriction:
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REMARKS ON SENTENCE

HIS HONOUR : Masood Atai, you have been convicted of the murder of Ang Van Ly and stand for sentence for that offence. A co-accused was tried jointly with you and found not guilty of being an accessory after the fact to that murder.
The jury were invited to consider the charge as indicted on alternative bases of responsibility, namely, that you intended to kill or intended to cause grievous bodily harm or were recklessly indifferent to human life knowing that your actions would probably cause death. For the purpose of sentence, it is my task to make findings, not inconsistent with the verdict, of the facts and circumstances.
Both the crown prosecutor and your counsel have submitted that I should find that your criminal responsibility should be found to derive from recklessness as distinct from intentional killing or causing grievous bodily harm and I agree with these submission and proceed on my own finding to that effect.
Following arrangements communicated between them, a group of people including the prisoner assembled in a house in Merrylands. The house appears to have been used for meetings by members of the so-called Notorious Motorcycle Club. This circumstance was not explored at trial but there are a number of references to it in the material tendered on sentence. Ultimately, from the house and collected on the way, on the night of Tuesday 24 November 2009, a convoy of four vehicles became formed and was occupied by about fourteen people. The occupants have been described as representing various ethnicities, Afghani (including the prisoner), Islander, Lebanese and a young blonde woman.
The purpose of the expedition was not clearly defined but the cars eventually discharged the travellers near a park which was a short walking distance from a house in Fairfield in which the victim and other men were socialising.
Eventually, at about 11.00pm, the group, with the…

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 Masood Atai

Details

AGLC: R v Masood Atai [2011] NSWSC 1617
Case: [2011] NSWSC 1617
Decision Date: 13 December 2011

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Masood Atai involved the defendant who was convicted of the murder of a stranger in a random shooting incident. The court was tasked with determining an appropriate sentence for the defendant, who was a youthful offender at the time of the offence, and who had shown a lack of remorse following his conviction. The case raised issues regarding the principles of sentencing for murder, particularly in relation to the defendant's age and lack of remorse, as well as the circumstances of the offence.

The primary legal issue before the court was to determine the appropriate sentence for the defendant, taking into account the aggravating and mitigating factors of the case. The court was required to weigh the severity of the offence against the defendant's age and lack of remorse, as well as any other relevant factors. The court also needed to consider the principles of sentencing for murder, and whether the sentence imposed should be reflective of the community's expectations of justice and deterrence.

The court held that the offence was of a high degree of culpability, and that the defendant's age and lack of remorse were significant factors to be considered. However, the court also acknowledged that the defendant was a youthful offender and that there were circumstances which may have contributed to his offending behaviour. The court ultimately determined that an appropriate sentence would be one that reflected the seriousness of the offence, while also taking into account the mitigating factors of the case. The court imposed a sentence of life imprisonment, with a non-parole period of 25 years, which the court considered to be an appropriate balance between the need for punishment, deterrence, and rehabilitation.

The final orders of the court included the imposition of a sentence of life imprisonment for the defendant, with a non-parole period of 25 years. The court also ordered that the defendant be subject to any other lawful directions or orders that may be made by the court in relation to his sentence, including any orders relating to his rehabilitation and supervision.

Orders