R v Mohamad Ali

[2005] NSWSC 334

CITATION:	Regina v Mohamad Ali [2005] NSWSC 334 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	7/2/05 - 8/3/05, 8/4/05
JUDGMENT DATE :	18 April 2005
JUDGMENT OF:	Wood CJatCL at 1
DECISION:	Imprisonment for 5 years and 8 months to date from 18 April 2005. Non-parole period of 2 years and 8 months to date from 18 April and to expire on 17 December 2007.

CATCHWORDS:	Criminal law - manslaughter - shooting - excessive self-defence - provocation - accumulation of provocative conduct - specific intent - issues of deterrence.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Davis v The Queen (1998) 73 ALJR 139 Moffa v The Queen (1977) 138 CLR 601 Parker v The Queen (1963) 111 CLR 610 R v Alexander (1994) 78 A Crim R 141 R v Blacklidge NSWCCA 12 December 1995 R v Bolt [2001] NSWCCA 487 R v Cioban [2003] NSWCCA 304 R v Hill (1981) 3 A Crim R 397 R v Morabito (1992) 62 A Crim R R v Morgan (1993) 70 A Crim R 368 R v Quartly (1986) 22 A Crim R 252 R v Trevenna [2004] NSWCCA 43 R v Troja NSWCCA 16 July 1991 R v Walsh [2004] 142 A Crim R 140
PARTIES:	Regina Abbas Mohamad Ali
FILE NUMBER(S):	SC 2003/42
COUNSEL:	S C de Silva (Crown) W C Terracini SC with M Phelps
SOLICITORS:	S C Kavanagh (Crown)

LOWER COURT JURISDICTION:

- 24 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Monday 18 April 2005

2003/42 Regina v Abbas MOHAMAD ALI

SENTENCE

1 HIS HONOUR: The Prisoner was indicted on 9 February 2005 with the murder of Hussein Moussa. At the conclusion of his trial on 8 March 2005 he was found by the jury to be not guilty of murder but guilty of manslaughter. He now appears for sentence.

Facts

2 The Prisoner, who shared a similar ethnic background to that of the deceased, had formerly been a friend of his. However as a result of him forming a relationship with Lena Hammoud, in respect of whom the deceased appears to have had something of an obsession, that friendship came to an end during the latter part of the year 2001.

3 Evidence was tendered from several witnesses, which was not directly contradicted, although it was certainly questioned, concerning the apparently tumultuous behaviour of the deceased in relation to Ms Hammoud during the year 2001, and in relation to various incidents or threats which the deceased was reported to have made that year concerning the Prisoner. The evidence of these witnesses gave rise to the issues of self-defence and provocation, it being accepted that it was the act of the Prisoner in deliberately shooting the deceased with the specific intention required for murder that brought about his death. Absent direct contradiction of these witnesses and in circumstances where I can only find facts which are adverse to the Prisoner where they are established beyond reasonable doubt, I must accept the broad thrust of what they said, notwithstanding the reservations which I do have as to the absolute reliability and credibility of at least some of them.

4 Apparently Ms Hammoud, with whom the Prisoner has been living in a de facto relationship and who has born a child to him, met the deceased through a sister, Betty. That sister was understood to be his girlfriend, a circumstance which makes it somewhat surprising that the deceased should have become as possessive, in relation to Ms Hammoud, as the evidence generally suggests. Ms Hammoud said in this respect that she had never been in a sexual relationship with him and had never accepted any gifts or money from him.

5 The first disturbing incident of which she gave evidence seems to have occurred in early 2001. It involved the deceased calling at her place of residence, apparently for the purpose of discussing his annoyance at the fact that Betty had once been in a relationship with one Ahmed Karmas. She said that, in the course of the exchange this day, he held a gun to her head, made threats in relation to Karmas, instructed her to break off contact with that man, and with a man Fadel Moussa, whom she was seeing. He also said that he wanted her to go out with him and to obey his instructions.

6 The next incident occurred during the evening of 24 July 2001. In the course of that night, a large number of shots were fired at Ms Hammoud’s unit. Ms Hammoud and another person who was present, Ragda Jamal, said that shortly after the shooting the deceased telephoned the premises and inquired whether he had killed her. Hussein Hammoud who had been at the premises, but who had left shortly before the shooting began, after receiving a telephone warning, gave evidence of observing the deceased outside the building, discharging a weapon in its direction. He also said that when he later asked the deceased why he had shot up the premises, he was informed that it was a “bit complicated”, but that he did not want anyone near Ms Hammoud and that he had gone there in order to kill her.

7 There was evidence corroborative of the fact of this shooting from neighbours, and from the discovery of fired cartridge cases of .38 and 9 mm calibre outside the premises.

8 Ms Hammoud recounted a further incident, on the occasion of her birthday on 24 September 2001, when, she said, the deceased arrived at her premises with a teddy bear, red roses and a handgun which he held to her head. He informed her that the Prisoner “was not for her” and would “get what was coming to him”. Additionally she said, he threatened to take matters into his own hands if he found out more about her and the Prisoner. Soon after this, she said, the Prisoner commenced to live with her, which prompted further abusive phone calls and threats to the effect that her days were numbered.

9 The next incident in point of time was one of which the Prisoner gave evidence, as having occurred in October 2001. It was his account that while he was jogging in a park at Turella, he was approached by the deceased who said “if I see you in this area again or see you with Lena again I’m going to kill you”. According to him the deceased then fired several shots over his head, some of which struck a sign. Police confirmed that the sign had evidence of gunshot damage, although it could not be aged.

10 Ms Hammoud next gave evidence that the deceased called at her apartment on the night of 11 November 2001. She said that he held a gun to her head, tied her up, burned her face, head and arms with a hot iron, kicked and struck her, forced her to take drugs, cut her hair, forced her to sit in a hot bath while he removed her top, dunked her head in a toilet, fired a shot between her legs into her waterbed, played with her, forced her to masturbate him, and reminded her of his instruction not to see the Prisoner. In the course of these events, which on her account were spread over about 12 hours, there was an intercepted phone call, in the course of which the deceased spoke to one Basim Hamzi. The conversation was in terms that included an acknowledgment by the deceased that he had Ms Hammoud tied up in the premises. The possibility of her being killed was discussed. Hamzi spoke to her and indicated that she "owed" the deceased and had to comply with his instructions. This seems to have followed upon some problem which had developed involving Saleh Jamal, which had led to the deceased being given the label of a “dog”.

11 Ms Hammoud said that the deceased again instructed her, this night, that he did not want her near the Prisoner, who he was going to kill, adding that he wanted her to stay with him.

12 Subsequent police inquiries revealed that there was a hole in the waterbed, sheets and blanket, which was consistent with it having been punctured by a bullet leading to its contents leaking onto the carpet. A .22 projectile was recovered from within the bladder to the bed.

13 Ragda Jamal gave evidence of observing the unit in a disturbed condition on the next day, of Ms Hammoud being distressed with signs of having been tied up and burned. She said that she accompanied her to a medical centre, a Social Security office, and to Leah’s Wax Works for the purposes of receiving treatment for her burns, and of having a record of the incident made. Ms Hammoud similarly gave evidence of going to the medical centre, social security office and Leah's Wax Works. Police were not brought in, she said, because of fears of reprisals.

14 The medical centre records do not support the evidence of any attendance on 12 November. They do record a later visit in which Ms Hammoud sought treatment for a burn or burns. The treating doctor was not called, and whether the records were correctly or incorrectly dated was not explored. Whether Ms Hammoud's account was correct in every detail may perhaps be questionable. However, I am satisfied from the contemporaneous video tape that she was subjected to some degree of violence at the hands of the deceased, and was the recipient of threats from his associate Hamzi, which she was entitled to take seriously.

15 Ms Hammoud gave evidence of receiving a large number of subsequent calls from the deceased including 20 or so calls on 24 December 2001 warning her to stop seeing the Prisoner, and threatening her and her expected baby.

16 The Prisoner gave evidence, in a general way, of being aware of this history, and of his own experience at Turella.

17 Moving forward to the night of 26 December, there was evidence from two persons, Ahmad Doudar and Ali Bazzi, who were friends of the deceased and of the Prisoner, concerning the fact that the deceased, who they had met in a park that evening at Arncliffe, was in an agitated state and was snorting large quantities of cocaine. They each said that they saw that he had two handguns with him, a .25 Beretta which he was accustomed to carrying on his person, and a larger weapon. Although they did not give precisely the same account of the threats that he had made in their presence, they were generally to the effect that the Prisoner had “done the wrong thing”, and that the deceased was going “to get him”, or “to do him and her (Lena).” Their attempts to calm the deceased were unsuccessful, and he was last seen by Bazzi at about 2 AM.

18 That the deceased had been using cocaine extensively that night was confirmed by the post mortem examination and analysis of a blood sample, which led Dr William Allender to calculate that he had consumed around 500 mgs of the drug, a level that was double the upper end for its therapeutic (that is, pleasant and non dangerous) use. He gave evidence that a dosage of this level would be likely to cause agitation, aggressive behaviour, and feelings of invincibility and overconfidence.

19 Finally by way of a background to the deceased’s reputation for aggressive and erratic behaviour, there was evidence from Hussein Hammoud, Doudar and Bazzi that they had seen him with firearms, that he had on several occasions discharged them at other people including a pedestrian who had annoyed him, that seemingly he found it amusing to terrorise people, and that he had expressed, in more recent times, a hatred of the Prisoner.

20 It is evident that the deceased arrived outside the apartment where the Prisoner and Lena Hammoud were living at 35/37 Brandon Ave Hurstville at about 4:30 AM on the morning of 27 December 2001. Lena Hammoud, the Prisoner and several neighbours gave evidence of hearing him shouting out the Prisoner’s name in the street, and buzzing on the intercom to the apartment. His presence outside the premises was confirmed by a security camera which had been installed on the balcony of a second floor apartment, which was focussed on a van in the street, and which incorporated a timing function.

21 After being woken by the shouting and buzzing of the intercom, the Prisoner phoned a friend, Bilal Kalache, at 4:35:02 and 4:45:02. As a result he drove over to the apartment with Abdul Zahed. Their arrival at the scene at 4:54:32 is confirmed by the video.

22 At 5:00:34 the Prisoner can be seen on the video, standing on the pavement, shaking hands with the deceased. It was his evidence that he had waited for the arrival of Kalache who he had hoped could calm down the deceased, and persuade him to go home.

23 Ms Hammoud said that they had decided that the Prisoner should go down to the street to talk to the deceased, because otherwise they feared that he might start shooting at the unit, and also because they were embarrassed about the effect of his conduct on their neighbours. She asserted that the Prisoner did not take a weapon with him, and said, additionally, that she had never seen him with a handgun either on his person, or in the unit.

24 The Prisoner said that when he spoke to the deceased via the intercom, he was informed by him that if he did not come down, then he would have the home of his parents shot up by certain people who he had waiting at those premises. This was a concern which the Prisoner said that he had in his mind when he confronted the deceased.

25 The events which occurred after the initial meeting between the deceased and the Prisoner in the street are partially captured by the security video. In substance the Prisoner, who went off screen for a few minutes between 5:00:34 and 5:03:06 to speak to Kalache, is seen to re-emerge at 5:03:09. At that time the prisoner is seen to lift and point what appears to be a gun in his right hand. At this stage the head of the deceased is visible, as is his left arm extended sideways. Abdul Zahed, who to that point had been standing motionless in the street with his arms folded and leaning against a pillar, can be seen to react at 5:03:11 by turning and then running from the pavement towards the street.

26 The deceased is seen to appear on the right hand of the screen at 5:03:12 with his hands clasping his stomach, and to then move away towards the basement car park where his body was eventually found.

27 Post mortem examination showed that he sustained a non fatal gunshot wound to the abdomen and a further gun shot wound to the chest, which clearly was the cause of his death, since the bullet which struck his chest passed through the supera vena cava, the pulmonary artery, the right main bronchus and the thoracic spine at T7 level, before transecting his spinal cord at that level.

28 The information available on the video and through the post mortem examination, was supplemented by the evidence of Tam King Fong who, from an apartment across the road, heard a bang after which she looked out of her window. She saw two males, one (the Prisoner) with his back to her holding what she thought was a gun in an elevated position and the other man, facing her, bending forwards and doing a waving motion with his palm outwards at almost the level of his chest. This second man, she said, moved backward into the car park followed by the Prisoner. She heard some more noises and then saw the Prisoner run away.

29 There were some other neighbours who heard what appeared to be raised voices before the shouting, including Fernando Rojas and Richard Hoagland, who each said that they heard two groups of shots.

30 Bilal Kalache, who had parked his vehicle across the street, claimed not to recall whether he had seen any firearms, let alone anything of the shooting. He was even uncertain as to whether he had heard the shots, although he did acknowledge driving away from the area with Zahed before being stopped by police. At the time of giving evidence he was serving a sentence of imprisonment, and it is clear, beyond any doubt, that he was unprepared to give a truthful version of the night’s events.

31 It was the Prisoner’s account that after speaking to the deceased, and then Kalache, he had walked back to the driveway, at which point the deceased pulled out a gun and indicated that he was going to kill him and Ms Hammoud. He said that the deceased made an additional observation to the effect “I’m going to fuck your mum”, which was particularly offensive to a person of the Prisoner’s ethnic and religious background.

32 He said that he struggled with the deceased and managed to disarm him of the weapon which he had pulled, a .45 Norinco semi automatic hand gun, and pushed him backwards. He said that after telling the deceased that he was on drugs and to go home, the deceased pulled out a smaller weapon and pointed it at him, after making a motion with his other hand consistent with that required to cock the weapon. The deceased, he said, repeated that he was going to kill him, as a consequence of which he fired several shots at him. The deceased then fell to the ground, dropping his gun where he lay.

33 It was the Prisoner’s account that all of the shots were fired in the basement area, although there were clear inconsistencies in his evidence as to the locations where the struggle took place, and where the shots were fired, and as to the times at which these events occurred.

34 Abdul Zahed provided some corroboration for the account of the Prisoner in so far as he said that he heard the deceased saying to the Prisoner, during the argument between them before the shooting, “I’m gonna pop that bitch Lena – bring her down, show her what I’m going to do to her, the fucking slut”; and “if you get in my way I’m going to pop you”. He said that he saw the Prisoner disarm the deceased of a large black firearm, after which the latter produced a small firearm from his waistband.

35 He agreed that the deceased did not discharge the weapon, but said that he pointed it at the Prisoner in the entrance to the car park at a time when the Prisoner and the deceased were facing one another. According to him, the Prisoner had a gun in his right hand, and the deceased, who was shown to be right handed, held his gun in the left hand. He said that he ran for his life when he heard the first shot, but he also claimed to have seen the deceased a second later at 5:03:12 clutching his stomach and moving towards the bottom of the screen. He added that he heard some more shots while he and Kalache drove away from the scene, before being stopped by a police car several hundred metres up the road.

36 After the shooting, the Prisoner ran across the road and from the rear garden of 40 Brandon Avenue he threw the .45 Norinco onto the roof of some townhouses under construction in 43 Cambridge Street. He discarded the top which he had been wearing in the rear garden of 42A Brandon Ave. He was arrested in the car park of the adjoining premises of 39/41 Brandon Ave. When initially spoken to by police he untruthfully denied any involvement in the shooting, and later exercised his right not to be interviewed or to take part in an identification parade. His initial lie was relied upon as a matter going to the credibility of his evidence, but not otherwise.

37 The subsequent forensic and ballistics investigations established that five shots had been fired, two of which had struck the deceased. Another shot struck the bonnet of a Mitsubishi Magna, beside which the deceased’s body was found, and then ricocheted to a rear wall. A fourth shot hit a pillar between two or three of the vehicles that had been parked in the front section of the carpark.

38 Three .45 calibre fired cartridge cases were found in the entrance area to the carpark or under the Toyota vehicle, which was parked closest to the entrance. The remaining .45 calibre cartridge cases were found in the street. It is probable that they were accidentally moved to there after the shooting. All of these cartridge cases and the bullet recovered from the abdomen of the deceased were shown positively to have been fired by the Norinco handgun that was recovered from the townhouse roof. The bullet which entered the deceased’s chest was too damaged for comparison purposes, but there is no question other than that it was fired by the Prisoner.

39 The evidence points convincingly to the fact that the shots which struck the deceased in the chest, which hit the pillar, and which hit the Magna and the rear wall, were all fired from the front of the car park and in the direction where the deceased was attempting to take cover between the cars, up against the back wall, after having first been shot in the stomach. That shot, I am satisfied, was fired from outside the car park, as is established by the observations of Mrs Fong and the video.

40 It was the Crown case that having disabled the deceased by shooting him in the abdomen, the Prisoner then pursued him to the car park and fired the further 3 shots, one of which caused his death, at a time when he was signalling, with his right hand extended in front of him, for mercy.

41 It relies, for this submission, upon the post mortem evidence which shows that a bullet struck the palmar aspect of the right hand of the deceased, passed through the thumb, and exited the back of his hand, fracturing the thumb bone on the way, by the fact that the entry wound to the chest was a keyhole wound, indicating that the bullet had struck something on its way causing its normal spin to be disrupted, and by Dr Lawrence’s assessment that the transection of the deceased’s spinal cord would have prevented him moving very far, if at all, after receiving that injury.

42 There remains one aspect of the case that was not capable of final determination upon the available evidence. It concerns the finding of a .25 Beretta pistol of the kind which the deceased was accustomed to carrying, and which was consistent with that which had been seen by other witnesses to have been in his possession that night.

43 This gun was found hidden under a tree in the front garden of 45 Brandon Avenue. It was pointed out to police, on the morning of 27 December, by Rabab Hammoud, who had been seen at the premises of 35/37 Brandon Ave with the deceased at the time of the shooting by several witnesses, including the Prisoner and her sister, Lena Hammoud. She can also be seen leaving the premises after the shooting, at 5:05:10 and 5:05:19 and it was established that she used the deceased’s mobile to place a 000 call, and to inform his relations of the shooting.

44 She attended at the police station on the morning of 27 December, following a conversation with police. Although both the Crown and the Defence wished her presence at the trial, it was established that she had made herself scarce before the Committal, and all subsequent efforts to secure her attendance had failed. As a consequence there was no admissible evidence available to the jury, or to me, from her as to the circumstances of the shooting, or as to how, when, or why, the .25 Beretta found its way to 45 Brandon Ave.

The Basis for the Manslaughter Verdict

45 In sentencing the Prisoner it is necessary to give some consideration to the basis upon which the jury found him guilty of manslaughter. I am satisfied, on the face of the evidence concerning the deceased’s actions, and his subsequent admission to Hussein Hammoud “If I didn’t kill him, he would have killed me, so I had to do what I had to do”, that the case was not one of manslaughter by unlawful and dangerous act.

46 Rather it was a case of a specific intention to at least occasion grievous bodily harm to the deceased if not to kill him, which would have amounted to murder, subject to self-defence or provocation.

47 It is not possible to determine by what precise route the jury reached their verdict, there being evidence available which would have equally justified the return of a manslaughter verdict by reason of excessive self-defence, or through provocation, that is, upon the basis that:

(a) While the Crown had failed to establish beyond reasonable doubt that the Prisoner had not personally believed that it was necessary to shoot the deceased in self-defence, it had nevertheless established that what he did was not reasonable, that is excessive, in the circumstances as he perceived them; or

(b) The Crown had established beyond reasonable doubt that the Prisoner had not personally believed that it was necessary for him to shoot the deceased in self-defence, but had failed to remove provocation from the case.

48 I am satisfied beyond reasonable doubt that the Crown was correct in its submission to the jury that the Prisoner had effectively disabled the deceased when he shot him in the abdomen, and that he then pursued him into the basement car park and killed him at a time when he was seeking refuge, and holding up his right hand in front of him in a non threatening way, or as a signal for mercy.

49 While I would accept that there was room for doubt as to whether the deceased produced the Norinco, and then the Beretta, nevertheless I am satisfied that the jury would have been entitled to find, by the time when the Prisoner fired the final shots, including the fatal shot, that his action in doing so was not a reasonable response in the circumstances as he found them to be.

50 This follows from the position in which the body of the deceased was found up against the back wall between the Toyota and Magna, the defensive injuries to his right hand, and the presence of the abdominal wound. Moreover it was consistent with the evidence of Tam Kim Fong, with what can be seen on the security video, and with the improbability of the deceased having moved very far, if at all, once he sustained injury to his spinal cord. To have continued to shoot a man who was seriously injured and disabled, and who was obviously seeking refuge, was excessive, even if the Prisoner is given the benefit of the doubt as to whether he had personally believed that either he and/or Ms Hammoud were still in danger of serious injury or death, at the hands of the deceased.

51 While his actions at this stage bordered on revenge, which would have elevated the offence to one of murder, I am satisfied, as no doubt was the jury, that the short time frame and the frightening situation in which he found himself, would not have allowed him an opportunity for the kind of reflection that would have moved from self-defence to revenge.

52 Equally available as a basis for the offence being one of manslaughter was the provocation which the deceased had offered to the Prisoner, both on this night, and on preceding occasions. Certain of that conduct was directed at him personally, including the calling of him down to the street at 4:30 AM, the threats and insulting words which were spoken to him that night, and the Turella event. While some of the other matters may have involved hearsay so far as they were directed at Ms Hammoud and reported to him, there was sufficient, in my view, to take this case outside the restrictions of the decision in R v Quartly (1986) 22 A Crim R 252, even assuming that it still represents the law, having regard to the doubts which were expressed, in the course of the special leave application in Davis v The Queen (1998) 73 ALJR 139.

53 In that regard the threats, which had been made to Ms Hammoud by the deceased, were also intended for the ears of the Prisoner. He was aware of what had occurred, and what had been said, in that man’s endeavours to break up their relationship. That knowledge could not have done other than to exacerbate the response of the Prisoner to the deceased's conduct on the night of 27 December, a matter that was also relevant for the Prisoner’s perception as to the nature of the threat that he faced, in so far as that arose for consideration in relation to self-defence.

54 Moreover, it is well established that provocative conduct can properly be considered in accumulation, since a stage may be reached where conduct towards or affecting an accused, which has been tolerated, may reach the point where in combination the offender loses his or her self control in circumstances that fall within s 23(1) of the Crimes Act: Parker v The Queen (1963) 111 CLR 610 and Moffa v The Queen (1977) 138 CLR 601.

55 Clearly the conduct of the deceased was seriously provocative. Having regard to the evidence previously summarised, there would have been a proper basis in my view for there to have been a reasonable doubt, assuming that self-defence was eliminated, as to whether the Prisoner lost his self control, and as to whether a reasonable person in his position could have so far lost his self control as to have formed an intention to kill the deceased or to cause him grievous bodily harm.

56 On the facts of this case however I do not think that the sentence depends upon whether the verdict should be regarded as having been dependent upon excessive self-defence or provocation. The two are very closely linked and the objective seriousness of the Prisoner’s crime seems to me to be similar, by whichever route the verdict was reached. As was pointed out in Regina v Welsh [2004] 142 A Crim R 140, it is often not of any great consequence whether a killing is characterised as coming within any particular head of manslaughter. Rather, the critical question is what sentence is required to reflect the objective and subjective facts, and if necessary, deterrence.

57 Upon either basis it remains clear that the offence was not preplanned, but occurred in the context of an unwanted situation created by the deceased. There is no evidence to show that the Prisoner took a weapon to the scene, or acquired one from someone else while he was in the street. In so far as there was provocation by the deceased before the first shot was fired, it is reasonable to assume that the Prisoner’s blood had not cooled by the time that the fatal shot was fired.

58 That is not to say that his objective culpability was not significant. The offence of manslaughter involves the unlawful taking of a human life, and as such it has long been recognised as one of the most dreadful offences in the criminal calendar: R v Hill (1981) 3 A Crim R 397 per Street CJ at 402 and R v MacDonald NSWCCA 12 December 1995. In R v Morabito (1992) 62 A Crim R 82 at 85, I had occasion to refer to the fact that manslaughter, even where committed as a result of provocation accumulated over a lengthy period, is to be regarded as a major crime calling for a “grave measure of criminal justice”; and see also R v Bolt [2001] NSWCCA 487 at 63.

59 That this is so is indicated by the maximum penalty prescribed for the offence of 25 years imprisonment, although as has been clearly recognised, the offence is one where the appropriate penalty may vary more than in any other serious crime, depending upon the nature and degree of the criminality involved.

60 As Gleeson CJ observed in R v Blacklidge NSWCCA 12 December 1995:

“The crime of manslaughter comprehends all forms of punishable homicide other than murder ( Crimes Act 1900, s18 ). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as "involuntary", do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.
It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)”

61 The futility of any attempt to determine an appropriate sentence by reference to individual cases, was noted by Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371 and reiterated by James and Barr JJ in R v Trevenna [2004] NSWCCA 43. Little assistance is to be gained by reference to the sentencing statistics which encompass all forms of manslaughter, save so far as they disclose a broad range within which sentences have been passed since their compilation began.

62 While Santow JA in Trevenna summarised, in a case involving excessive self-defence, the generic factors which have been regarded as relevant for sentencing in cases of manslaughter (at [45]), they do not give any particular guidance, although they do reflect a useful collection of the subjective circumstances which might be encountered, many of which fall within those mentioned in s 21A of the Crimes (Sentencing Procedure) Act. The decision in Regina v Cioban [2003] NSWCCA 304, which was similarly concerned with excessive self-defence manslaughter, also provides little guidance by way of principle for such a case.

63 In relation to manslaughter through provocation, however, the observation of Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141 at 144, that three particular matters have been of importance in sentencing where the case is one of provocation manslaughter, have been regarded as authoritative. These factors are:

“(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence;
(2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and
(3) the degree of violence or aggression displayed by the Prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.”

64 In the present case there was considerable provocation and the time between the last provocative series of acts and the shooting, which I am satisfied involved some degree of loss of self control, was short. The degree of violence displayed was excessive.

65 As I have elsewhere observed the offence was unpremeditated, it followed upon an unexpected and immediate threat to the Prisoner’s life, and possibly to that of his partner, from an armed man. It was not one where there was any evidence of the Prisoner arming himself before confronting the deceased, and it seems to have followed upon an abusive pattern of behaviour on the part of the latter, who was obviously adversely affected by his abuse of cocaine.

66 Nevertheless it was one involving specific intent where the Prisoner was responsible for a deliberate act which took the life of another person who, despite his apparent faults, was entitled to receive the full protection of the law.

CRIMES (SENTENCING PROCEDURE) ACT

67 I am required to take into account the purposes identified in s 3A of the Act, that is, of ensuring that the sentence reflects the objectives of adequate punishment, denunciation, accountability, deterrence both personal and general, recognition of the harm done to the victim and to the community, and protection of the community, as well as promoting the Prisoner’s rehabilitation.

68 The case is one to which s 21A of the Crimes (Sentencing Procedure) Act applies. The aggravating factor referred to in s 21A(2)(d) was present, not being an element of the offence, although the relatively limited extent of the Prisoner's prior record was not such as to amount to any significant degree of aggravation.

69 I have received the Victim Impact Statements from the elder brother and younger sister of the deceased which spoke eloquently of the great loss and hurt which has been occasioned to them by his death. Clearly it has had a very great impact on each family member, and it was the cause for the breakdown and subsequent separation of the parents of the deceased.

70 The emotional harm occasioned to the family of the deceased by the offence has been substantial, and to that extent s 21A(2)(g) applies. However, having regard to the fact that the death of the victim which is essential to the offence of manslaughter almost inevitably occasions substantial emotional harm to close relatives and I do not consider that it has any material bearing upon the sentence which should be passed.

Personal Circumstances

71 For the most part the personal circumstances of the Prisoner were provided in the form of a report from Terry Smith, a clinical psychologist. I take this into account in so far as it provides the basis for his personal history and psychological status. I expressly do not take into account any material which it contains which might have the effect of traversing the plea, or of qualifying the evidence which was led at the trial.

72 This report, and the criminal history show that the Prisoner was born in Lebanon on 19 September 1975 and is one of a family of eight children raised in an intact and functional family unit which migrated to Australia in 1983. His father was a builder and provided the family with a middle class standard of living.

73 He was educated at Kogarah High School, where he was an average student, who remained free of trouble. He worked with his father during school holidays and weekends and obtained several skills in the building trade.

74 At the age of 17 years the Prisoner travelled to the USA where he worked with his brothers in a clothing business, for about 4 years. During this time he married and had a son. He separated from his wife after becoming homesick and, after returning to Australia, contact with his wife and child was lost in 1999.

75 After his return from the USA the Prisoner worked as a concreter with Sydney Civil. He was not able to secure work from the date of his release on bail on 12 September 2003 for the present offence, by reason of the requirement for twice daily reporting.

76 He claimed to Mr Smith that he was not a user of alcohol or drugs, or a gambler, and that his recreational activities were directed to physical fitness and to training in a gymnasium. As mentioned elsewhere he has been in a stable relationship for some time with Lisa Hammoud. They have one child and Ms Hammoud is again pregnant.

Prior Character

77 He has some brief criminal antecedents in so far as he was fined, on 24 March 1997 in the Local Court, for an offence of carry an offensive implement, and ordered to perform community service for 50 hours for each of two offences of assault, and placed on an 18 month bond for an offence of assault. On 31 May 2000, he was sentenced to a fixed term of imprisonment of 18 months for an offence of being carried in a conveyance taken without the consent of its owner, and to a concurrent fixed term of 2 years for an offence of accessory before the fact to robbery.

78 He also had a minor record for prison offences which were not out of the ordinary for a serving or remand prisoner.

79 The Prisoner did not reoffend while on bail for the present offence and there is no suggestion that he did other than comply with his bail conditions.

80 Character references were provided from Jeff Fenech who indicated that the Prisoner had been helping troubled youth in the area and training with them in his gymnasium, and who also said that he had been impressed with the dedication which he had brought to this task.

81 Shadi Rizk also provided a letter in which he spoke of the Prisoner's honesty, loyalty and responsibility and indicated that he would offer him a position through the work scheme in his glass and aluminium business, and would train him in the necessary skills.

Remorse and Contrition

82 The Prisoner has expressed regret for his actions and sorrow for the consequences of his actions, particularly for the family of the deceased. To that extent he has shown some remorse and is entitled to the benefit thereof, although it is also evident from Mr Smith's report that he considers that his actions were justified.

Physical and Mental Health

83 It is evident that the Prisoner is in good physical health. Mr Smith excluded any form of mental illness or disorder, although he noted that the Prisoner has displayed an increased level of anxiety and some symptoms of depression, which are no doubt reactive to his present position. He may benefit from counselling in this respect, but otherwise Mr Smith found him to be a man who had much adaptive intelligence with adequate interpersonal and communication skills. There is no basis for assuming that a custodial sentence would involve any degree of hardship that is out of the ordinary for a mainstream Prisoner.

Prospects of Rehabilitation

84 I concur with Mr Smith's assessment that the Prisoner's prognosis is positive. He has a stable family base, is supportive of his partner and has a record for productive employment. Future employment opportunities are open to him, and there is good reason to assume at least on the evidence before me, that he would not have reoffended, after completing his prior period of imprisonment, had he not been faced with a serious threat of harm and provocation at the hands of the deceased.

85 I do not consider him to be a man who has a propensity for violence, and I believe that his chances of reoffending are relatively low.

Deterrence

86 The need for personal deterrence in the present case is not great, having regard to the exceptional circumstances in which the offence occurred. An element of general deterrence must however be reflected in the sentence, because of the need for a clear message to be sent that an excessive reaction involving the use of a deadly weapon, in the face of provocation, or of threatened violence, will attract punishment. That element is also tempered in the special circumstances of this case.

87 Although circumstances of mitigation were present within the meaning of s 21A(3)(b), (c), (g), (h), and (i) of the Crimes (Sentencing Procedure) Act, I am satisfied that a sentence of imprisonment must be imposed, by reason of the objective criminality involved. The nature of the offence and the Prisoner's prior record provide no room for the imposition of a sentence which is to be served other than in full time custody.

Special Circumstances

88 There is no basis that I can see for a finding of special circumstances that would justify any alteration of the statutory ratio between the non-parole period and the head sentence beyond the extensive delay between the date of the offence and finalisation of this trial. During that time the Prisoner was left in a position of uncertainty as to his fate, and was held for a period on remand, during which he was not entitled to progress through the classification system. He did not fall foul of the law and he complied with his bail once he was released, although his bail conditions effectively prevented him securing employment. These factors and the extensive period that he will have been kept out of the work force justify an extended period of potential supervision on parole, to assist his reintegration into the community.

89 All other relevant considerations have been accommodated in fixing the length of the sentence and non-parole period which I intend to impose, and the case is not one in which any special personal characteristics referable to his age or need for rehabilitation, or otherwise have been shown which would qualify as special circumstances.

90 So far as the Prisoner may benefit from some form of counselling for any anxiety or depression which he might have, that should be capable of being fully accommodated within the Correctional System, but in any event it does not seem to be a matter of any great urgency.

The Sentence

91 The sentence which I consider appropriate is one involving a term of imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months.

92 The Prisoner is entitled to have the benefit of the time that he spent in custody between 28 December 2001 and 12 September 2003 of 20 months and 15 days as well as the period of 1 month and 11 days since his return to custody, being equivalent in round terms to a period of 22 months. I propose to adjust the term of the sentence and of the non-parole period by that period of broken pre sentence custody and to fix the commencement date from today. I also note that the sentence is to be set in accordance with the former s 44 of the Crimes (Sentencing Procedure) Act, which although repealed, still has application to this case, since the offence occurred before 1 February 2003.

93 Upon this basis I sentence you Abbas Mohamad Ali to a term of imprisonment of 5 years and 8 months to date from today. I set a non-parole period of 2 years and 8 months to date from today and to expire on 17 December 2007, that being your earliest parole release eligibility date.

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