R v Linard SHAMOUIL; R v Steven DAVID [2009] NSWSC 24
HEARING DATE(S):
13/11/08;18/1108;27/11/08;4/12/08.
JUDGMENT DATE :
6 February 2009
JUDGMENT OF:
Hidden J
DECISION:
Shamouil: imprisonment for 19 years, NPP 14 years 6 months, from 30/07/2011. David: on common assault, 6 months FT. On accessory after the fact to murder, imprisonment for 2 years 6 months, NPP 15 months, from 01/06/2008.
CATCHWORDS:
CRIMINAL LAW - sentence - plea of guilty by Shamouil to murder - pleas of guilty by David to common assault, accessory after the fact to murder
PA Leask (Crown) M Ramage QC (David) P Young SC (Shamouil)
SOLICITORS:
V Engel (ODPP) D Miralis K Kyriacou
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
HIDDEN J
6 February 2009
2008/6108; 2008/8233 R v Linard SHAMOUIL & Steven DAVID
REMARKS ON SENTENCE
1 HIDDEN J: The offenders, Linard Shamouil and Steven David, were to have faced trial for the murder of Ashoor Audisho at Fairfield West on 9 April 2006. In the event, Shamouil pleaded guilty to that charge. David pleaded guilty to a fresh indictment containing two counts:
(1) common assault of Ashoor Audisho;
(2) accessory after the fact to Shamouil’s murder of Audisho.
The Crown takes no further proceedings in respect of the charge of murder against him.
Facts
2 I have received agreed statements of facts in both cases. For the most part they are identical, but there are some differences between them. I shall point out those differences as I recite the facts. Of course, in dealing with each offender I shall have regard only to the facts in his case.
3 The deceased was a 21-year-old man. On 2 April 2006, at an Assyrian festival at Fairfield, he had an argument with a young woman to whom I shall refer simply as NY. The background to that argument is not material. During the course of it, the deceased ended up trading insults with a friend of NY, a 16-year-old girl whom I shall identify as NS. NS is Shamouil’s cousin although, for reasons which I shall explain later, he saw her as his sister.
4 During the days thereafter those insults came to the attention of Shamouil, who took exception to them. He spent some time trying to locate the deceased, without success. He and David were associates. He did not know the deceased or his family, but David did. David helped him find the deceased, and by the morning of 9 April the deceased knew that both men were looking for him.
5 That afternoon, the deceased spoke to a man he knew, Awney Adam, who was also a friend of David’s brother. Adam advised the deceased against meeting with Shamouil and David. Throughout the afternoon the deceased received a large number of phone calls from both of them.…
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.
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AGLC
R v Shamouil [2009] NSWSC 24
Case
[2009] NSWSC 24
Decision Date
CaseChat Overview and Summary
The case of R v Shamouil involved the Crown prosecuting Shamouil for murder, and David for common assault and accessory after the fact to murder. Shamouil pleaded guilty to the murder of the deceased. David pleaded guilty to common assault and accessory after the fact to murder. The primary dispute was whether the court should impose a sentence that adequately reflected the gravity of the crimes committed. The court was required to consider the severity of the offences, the circumstances surrounding the incident, and the plea agreements reached with the defendants.
The court had to determine the appropriate sentence for Shamouil, who had pleaded guilty to murder, and the sentence for David, who had pleaded guilty to common assault and accessory after the fact to murder. The legal issues involved balancing the severity of the crimes against the mitigating factors presented during sentencing. The court also needed to consider the principles of justice and proportionality in imposing sentences that reflected the gravity of the offences while also taking into account the plea agreements.
The court considered the gravity of the crimes, noting the violent nature of the murder and the role of David as an accessory. The court emphasised the importance of deterrence and the need for sentences to reflect the seriousness of the offences. After weighing the mitigating factors presented by the defence and the plea agreements, the court imposed a sentence on Shamouil that reflected the severity of the murder. The court also imposed a sentence on David, considering his role as an accessory and the plea agreement reached. The court ensured that the sentences were proportionate to the crimes committed and that justice was served.
The court made final orders imposing a sentence on Shamouil and a separate sentence on David, reflecting the severity of their respective crimes and the terms of their plea agreements. The court's decision was based on a thorough consideration of the legal principles involved, the circumstances of the case, and the mitigating factors presented by the defence. The outcome aimed to balance the need for deterrence with the principles of justice and proportionality in sentencing.