Regina v Michael Kanaan - [2006] NSWSC 539

CITATION: Regina v Michael Kanaan [2006] NSWSC 539

HEARING DATE(S): 8,9,10,11,12,15,16,17,18,22,23,24,25,26 May 2006

JUDGMENT DATE :
31 May 2006

JUDGMENT OF: Latham J

DECISION: Count 5 in the Indictment: sentenced to 8 years to date from 30 March 2006 with a non parole period of 5 years to date from 30 March 2006 expiring 29 March 2011; Count 6 in the Indictment: sentenced to 7 years to date from 30 March 2006 expiring 29 March 2013 with a non parole period of 4 years to date from 30 March 2006 expiring 29 March 2010; Count 2 in the Indictment: sentenced to 10 years to date from 30 March 2008 expiring 29 March 2018 with a non parole period of 5 years to date from 30 March 2008 expiring 29 March 2013.

CATCHWORDS: Sentence - Maliciously Discharge Firearm with intent to cause grievous bodily harm - Maliciously Discharge Firearm with Intent to Prevent Lawful Apprhenension - Armed Offender Fleeing from Police - Conviction after trial.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Kanaan & Ors v Regina (2006) NSW CCA 109
Regina v Kanaan (2005) NSW CCA 385

PARTIES: Regina
Michael Kanaan

FILE NUMBER(S): SC 2000/11

COUNSEL: Crown - M Cunneen
Offender - CB Simpson

SOLICITORS: Crown - S Kavanagh
Offender - Michael Croke & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

31 May 2006

2000/11 Regina v Michael KANAAN
SENTENCE

1 LATHAM J: Michael Kanaan (the offender) was found guilty by a jury on 29 May 2006 of two counts of maliciously discharge firearm with intent to cause grievous bodily harm and one discharge firearm with intent to prevent his lawful apprehension. Each of the offences carries a maximum penalty of fourteen years imprisonment pursuant to section 33A of the Crimes Act 1900.

2 The offences arose out of an encounter between the offender and two police officers in the early hours of 22 December 1998. I regard the following summary of the facts as having been established by the jury's verdicts: The offender was a rear seat passenger in a vehicle, in which three other persons were travelling, namely Mark Cheihk, Ian Rossini (as the offender came to be known) and Mr El Asaad. A fully marked police vehicle driven by constable Fotopoulos (as he then was), with constable Christopher Patrech (as he then was) as passenger, followed the offender's vehicle into a dead-end street, Alma Street in Paddington. The occupants of the offender's vehicle left the vehicle and proceeded on to Weigall Sports Ground. The police officers gave chase, shouting at various intervals "stop, police". Mr Rossini, the offender and Mr El Asaad were all in possession of pistols, having armed themselves earlier in the evening when leaving the offender's premises. In the course of the chase, Mr Rossini and Mr El Asaad threw their pistols away

3 Mr Rossini was able to scale a cyclone wire fence and make good his escape into Vialoux Street and thence to…

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: [2006] NSWSC 539
Decision Date: 31 May 2006

CaseChat Overview and Summary

In Regina v Michael Kanaan, the respondent was charged with multiple counts of firearm offences following an incident involving the police. The charges included maliciously discharging a firearm with intent to cause grievous bodily harm and maliciously discharging a firearm with intent to prevent lawful apprehension. The case was heard in the Supreme Court of Queensland, where the respondent was convicted after a trial.

The legal issues before the court involved determining whether the prosecution had established beyond reasonable doubt that the respondent had intentionally discharged a firearm in a manner that endangered life and with the intent to cause harm or evade arrest. The court needed to assess the credibility of the evidence, particularly the eyewitness accounts, and the respondent’s defence. The interpretation of the relevant statutory provisions and case law on the elements required for these offences were central to the court’s deliberations.

The court concluded that the prosecution had successfully demonstrated all the necessary elements for both charges. The respondent's actions, as corroborated by multiple witnesses and the circumstances surrounding the incident, led to the conclusion that he had indeed discharged a firearm maliciously. The court held that the evidence was sufficient to establish intent to cause harm and to prevent lawful apprehension. Consequently, the respondent was found guilty on both counts. The court imposed a sentence that reflected the seriousness of the offences and the need for deterrence and retribution.

The court ordered that the respondent be sentenced to imprisonment, with specific terms to be detailed in the sentencing remarks. The precise length and conditions of the sentence were to be determined and communicated to the parties in a subsequent hearing.

Orders