R v Taha - [2012] NSWSC 903

Supreme Court

New South Wales

Medium Neutral Citation: R v Taha [2012] NSWSC 903
Hearing dates: 17, 21, 22, 23, 24, 28, 29, 30 November 2011; 5 April; 20 April, 25 May, 12 July 2012
Decision date: 03 August 2012
Jurisdiction: Common Law - Criminal
Before: Latham J
Decision:
Ferris Taha convicted of the murder of Khalil Bayani. Sentenced to a term of imprisonment, comprising a non parole period of 16 years, commencing 24 January 2009, expiring 23 January 2025, with a balance of term of 6 years, expiring 23 January 2031. Eligible for release on 24 January 2025

Cases Cited: Muldrock v The Queen [2001] HCA 39; Zreika v R [2012] NSWCCA 44
Category: Sentence
Parties: Regina - (Crown)
Ferris Taha - (Offender)
Representation: Counsel
M Hobart SC - (Crown)
SW Wilkinson - (Offender)
Solicitors
S Kavanagh Solicitor for Public Prosecutions - (Crown)
Rory Pettit - (Offender)

File Number(s): 2009/137458

SENTENCE

On 1 December 2011, the offender was convicted by a jury of the murder of Khalil Bayani. The jury arrived at that verdict after rejecting the possibility that he was acting in self defence.

The offence carries a maximum penalty of life imprisonment and a standard non parole period of 20 years.

The circumstances surrounding the offence were not substantially in dispute at trial.

On the evening of 23 January 2009, Mr Bayani, then aged 22, was in the company of his girlfriend Miss Lodhi at a friend's home in Concord. At about 10:30 pm, Ms Lodhi received a call from the offender's girlfriend, Ms Le Ban, asking if she could be picked up. Ms Le Ban was collected and returned to the house where Mr Bayani and Ms Lodhi were watching DVDs.

Shortly after midnight, Ms Le Ban spoke to the offender, asking when she could come to his place. The offender told her to stay at her mother's house because his friends were still at his home. The offender also told her that he was drunk. Ms Le Ban decided to stay at Ms Lodhi's home overnight.

At about 2 am, Mr Bayani was driving to Ms Lodhi's home in Merrylands when Ms Le Ban received a call from the offender asking her where she was. She told him that she was in the car with Ms Lodhi and Mr Bayani. The offender hung up and then made another call, during which he told her that he was going to kill "that little gronk". The offender disputed this statement at trial, although he admitted that he was angry with Ms Le Ban for associating with Ms Lodhi. I accept that the offender did make such a statement. However, I am not prepared to find beyond reasonable doubt that it was evidence of the offender's intention at the time the statement was made or at any later time. Much of the offender's behaviour during these events displays a degree of aggressive posturing, of which this statement is typical.

The offender then embarked upon a particularly serious…

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 Taha

Details

AGLC: R v Taha [2012] NSWSC 903
Case: [2012] NSWSC 903
Decision Date: 03 August 2012

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of R v Taha involved the conviction and sentencing of Ferris Taha for the murder of Khalil Bayani. The incident, which occurred on 23 January 2009, involved a confrontation between Taha and Bayani, culminating in Bayani's death. The legal issues addressed in this case revolved around the objective gravity of the offence, the circumstances surrounding the crime, and the appropriate sentence to be imposed on the offender, taking into account both objective and subjective factors.

The court found that the circumstances leading to Bayani's death were premeditated and involved a significant display of aggression from Taha. Armed with a rifle and two knives, Taha confronted Bayani, resulting in a physical altercation where Bayani was fatally stabbed. The court noted that while Taha claimed to have acted in self-defence, his aggressive actions and possession of weapons indicated a premeditated assault. The court also considered the impact of Taha's intoxication on his actions, concluding that while it may have contributed to his aggression, it did not absolve him of responsibility for his actions.

In determining the appropriate sentence, the court examined both the objective gravity of the offence and the subjective circumstances of the offender. The objective gravity of the offence was deemed significant due to the premeditated nature of the assault and the excessive use of force. The court also considered the offender's subjective circumstances, including his intellectual functioning and the impact of previous alleged brain injuries. The psychological evidence suggested that while Taha had cognitive deficits, these did not significantly reduce his moral culpability for the offence. The court found that Taha's youth, lack of prior criminal history, and the support of his family were factors that could be considered in mitigation.

The court ultimately sentenced Taha to a term of imprisonment, comprising a non-parole period of 16 years, commencing on 24 January 2009, expiring on 23 January 2025, with a balance of term of 6 years, expiring on 23 January 2031. Taha is eligible for release on 24 January 2025. The sentence reflects the court's consideration of both the objective and subjective factors, aiming to achieve an appropriate balance between punishment, deterrence, and the potential for rehabilitation.

Orders