Regina v M.A; Regina v Diab - [2003] NSWSC 978

CITATION: Regina v M.A; Regina v DIAB [2003] NSWSC 978 revised - 03/11/2003

HEARING DATE(S): 14/07/03; 15/07/03; 16/07/03; 18/07/03; 24/07/03; 04/08/03; 26/08/03; 24/10/03

JUDGMENT DATE:
31 October 2003

JUDGMENT OF: Shaw J

DECISION: M.A.sentenced to imprisonment for 13 years and 6 months to commence on 18 April 2002 and expire 17 October 2015 with a non parole period of 8 years and 6 months to expire on 17 October 2010. Order that the prisoner serve his sentence in a child detention facility until he turns 21 years of age; Diab sentenced to imprisonment for 9 years to commence on 24 April 2002 and expire on 23 April 2011 with a non parole period of 6 years to expire on 23 April 2008.

CATCHWORDS: Criminal Law - sentence - murder - young victim - young offender - strong prospects for rehabilitation - contrition - plea of guilty - head sentence as punishment imposed - special circumstances - naming of offender - discretion as to where the sentence should be served - - Manslaughter - young victim - young offender - good prospects for rehabilitation - contrition - plea of guilty - objective seriousness - mitigation - special circumstances -

LEGISLATION CITED: Children (Criminal Procedings) Act 1986 s 3, 19
Crimes (Sentencing Procedure) Act 1999 ss 3A, 22, 21A(3)(c), 30A, 33, 44,
Victims Legislation Amendment Act 2003;

CASES CITED: AEM (Snr); KEM and MM [2002] NSWCCA 58;
Blackman and Waters [2001] NSWCCA 121;
Cameron v The Queen (2002) 209 CLR 339;
Olbrich v The Queen (1999) 199 CLR 270;
R v AO [2003] NSWCCA 43;
R v Bollen (1998) 99 A Crim R 510;
R v Bryant [1999] NSWCCA 181;
R v Jenkins [1999] NSWCCA 110;
R v Lattout (Unreported, NSWCCA, 12/12/96);
R v Privitera (1997) 94 A Crim R 76;
R v Sharma (2002) 54 NSWLR 300;
R v Simpson (2001) 53 NSWLR 704;
R v Thomson (2000) 49 NSWLR 383;
R v Voss [2003] NSWCCA 182;
Ryan v The Queen (2001) 206 CLR 267;
Veen v The Queen (No 2) (1988) 164 CLR 465;
Yardley v Betts (1979) 22 SASR 108;

PARTIES :
Regina v M.A.
Regina v Kadr Diab

FILE NUMBER(S): SC 70109/02; 70118/02

COUNSEL: D Hobart - Crown
A Haesler - Defendant (M.A.)
W Terracini, QC with J Trevallion and P Doyle - Defendant (Diab)

SOLICITORS:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Shaw J

31 October 2003
70109 of 2002

Regina (NSW)

v
M.A. (Offender)

70118 of 2002

Regina (NSW)

v

Kadr DIAB (Offender)

REMARKS ON SENTENCE

1 Shaw J: All murder cases are disturbing in that they involve the loss of a human life. But this case is particularly so given that it involves a young victim, young offenders, and no evidence of premeditation. Nevertheless, the acts were totally irrational, and the result can properly be described as tragic.

2 M.A. has admitted that he…

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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Details

Case: [2003] NSWSC 978
Decision Date: 31 October 2003

CaseChat Overview and Summary

The accused, M.A and Diab, were convicted of murder and manslaughter respectively in the Supreme Court of Victoria. The case involved the tragic death of a young victim, resulting in a complex sentencing process that took into account the age and prospects for rehabilitation of the offenders, as well as their expressions of contrition and pleas of guilty. The court was required to balance these factors against the objective seriousness of the crimes and the special circumstances of the case.

The legal issues before the court included the appropriate sentence for each offender, considering their respective roles in the crime and the potential for rehabilitation. The court had to weigh the objective seriousness of the crimes against the mitigating factors presented, including the youth of the offenders and their demonstrated remorse. Additionally, the court needed to decide on the naming of the offenders and where the sentences should be served, taking into account the unique aspects of each case.

In delivering the judgment, the court acknowledged the profound impact of the crimes on the victim and their family. The court recognised the youth and potential for rehabilitation of both offenders, as well as their expressions of contrition and pleas of guilty. The head sentence imposed was intended to serve as a punishment while also reflecting the special circumstances of the case. The court exercised its discretion to protect the identity of one offender due to their age and prospects for rehabilitation, while determining the appropriate placement for the sentences based on the individual circumstances of each case.

The final orders of the court included a head sentence for M.A of imprisonment with a non-parole period, and a head sentence for Diab of imprisonment with parole eligibility. The court also ordered that one offender's name be protected and specified the location where each sentence should be served. The judgment emphasised the importance of considering the unique circumstances of each offender and the need for a balanced approach in sentencing.

Orders