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[2002] NSWCCA 176
appellant. Leave to appeal granted; appeals on counts 2 and 3 dismissed; appeal as to sentence on count 1 allowed in part—head sentence of eight years (unchanged) but non-parole period reduced from five years...
The Court of Criminal Appeal held that provocation and a resulting loss of self-control can be a mitigating factor at sentencing, and that the sentencing judge erred by saying provocation 'in no way' mitigated the offender's conduct. On the facts, the combined provocation from the appellant's father and the motorcyclist led to a loss of control that spilled over to injure bystanders. The Court nevertheless upheld the eight-year head sentence for the most serious count because of the objective gravity, but reduced the non-parole period from five to four years. Appeals on the other counts were dismissed.
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1,786 words · generated 13/07/2026
On 13 July 2000 the appellant, Mr Marwan Haddad, was involved in a roadside confrontation with a motorcyclist, Mr Lynch. Following exchanged insults and a brief physical contact, the appellant drove away, re-entered the service station driveway and collided with Lynch's motorcycle. He then drove off and, shortly afterwards, returned and drove his vehicle along the footpath directly at Lynch and two helpers who had come to assist Lynch, colliding with the motorcycle and striking the two helpers. Ms Pereira suffered serious orthopaedic injuries requiring operations and with long-term consequences; Mr Sutton suffered bruising and soreness. The appellant later contacted police and was charged. He pleaded guilty to three offences: using an offensive weapon (a motor vehicle) to cause grievous bodily harm (relating to Ms Pereira) and two further similar offences (in respect of Lynch and Mr Sutton). Each offence carried a maximum penalty of 12 years' imprisonment.
No linked legislation citations have been extracted yet.
At sentence the trial judge found the offences objectively very serious, emphasised that the appellant had returned twice to use his vehicle as a weapon and observed the need for general deterrence and retribution. She accepted the appellant's good character and remorse and discounted the head sentence by 20 per cent for early plea. Importantly, the judge stated that the provocation alleged by the appellant (provocative conduct by his father and by Lynch) could in no way mitigate the offender's conduct. The judge sentenced the appellant to eight years' imprisonment on the count concerning Ms Pereira with a five-year non-parole period, and concurrent four-year fixed terms on the other two counts.
The appellant sought leave to appeal against severity. The Court of Criminal Appeal (Smart AJ, with Kirby J agreeing) granted leave, found the sentencing judge erred in principle by excluding provocation 'in no way' from mitigation, and allowed the appeal in part: the eight-year head sentence on the count concerning Ms Pereira was upheld but the non-parole period was reduced from five to four years (other sentences unchanged) [23-36].
Two broad strands of reasoning determine the Court's outcome.
Provocation is relevant mitigation on sentence
Causation and the spill-over effect
Balancing mitigation and objective seriousness
Before
Relevant authority cited
After
Selected passages from the judgment (with translations):
Paragraph 23: "I do not think that it is correct to say that these factors can in no way mitigate the applicant's conduct. The combination of the father's malevolent insinuation and taunt and Lynch's foul derogatory abuse as to the applicant's mother, could provoke a loss of self control."
Paragraph 10: "The judge correctly held that the offences were objectively so serious that they warranted a head sentence ... He assaulted one innocent party and gravely injured another, so all consuming was his anger towards Mr Lynch."
Paragraph 33: "This case is a difficult one. ... even with the effects of the provocation, merit stern punishment. I regard a sentence of imprisonment of eight years on the first count ... as correct."
Paragraph 35: "In all the circumstances, the correct non-parole period is one of four years."
Haddad will be engaged in sentencing appeals where:
Key elements the appellate court will look for:
Within this judgment the Court expressly distinguished R v Henderson, noting Henderson’s factual difference and not applying it to defeat mitigation here [28-31]. Haddad therefore stands as an example that Henderson is not an absolute bar to considering provocation in relation to injuries suffered by bystanders. Later courts reviewing sentences where provocation is claimed will look closely at causal spill-over and the linkage between provocation and subsequent offending.
Practically, Haddad will be cited by defence as authority that provocation and loss of control may be relevant mitigation even where the immediate victims were not the original provocateurs, provided the facts support a spill-over effect. The Crown will still rely on the boundaries set by Henderson and emphasise objective seriousness, prompting courts to undertake a careful fact-specific balancing exercise.
Concluding remark Haddad is a fact-sensitive decision that clarifies sentencing law: provocation and loss of self-control are valid mitigation considerations and cannot be excluded summarily. However, the decision affirms that such mitigation does not overwhelm the objective seriousness of violent offending. Practitioners should frame provocation arguments by establishing a clear causal nexus and be prepared for courts to balance mitigation against the gravity of the means and injuries inflicted.
The applicant was born on 24 July 1974. He has no previous convictions. The judge accepted that the offender had pleaded guilty at the first opportunity after the indictment in its present form was made available.
The judge accepted that the applicant had always been honest, hardworking, considerate towards others and highly regarded by work associates. She also accepted that the applicant was genuinely contrite and feels profound regret for the injuries he has inflicted. She discounted the head sentence by twenty per cent.
The applicant was born and raised in Lebanon in financially comfortable circumstances. He migrated to Australia in 1994 with his wife. They have two sons aged six and two. He continued to work for his father selling antiques, but he also took a job as a truck driver. His father continually tried to convince him to return to Lebanon and work with him. The applicant made two trips to assess the situation and both were disastrous. After the last trip the applicant and his wife decided to settle in Australia and he bought his own tipper truck.
The applicant detailed his father's attempts to undermine his marriage, telling him that his wife had been unfaithful to him. His brothers confirmed this situation. At his father's insistence and arranging, he divorced his wife. Within a short period of time, the younger brother of the applicant confessed that he and their siblings had been paid by their father to support his claim.
The applicant immediately flew to Australia, begged his wife's forgiveness and they remarried.
The applicant said that when his father visited Australia just prior to the incident in question, he was once again trying to cause trouble between the applicant and his wife and was still trying to get the applicant to agree to move back to Lebanon.
On the evening of 13 July 2000 the applicant was driving his father to Glebe. During their journey his father maintained that the applicant's younger son was the product of an affair his wife had with a friend of the applicant. The applicant said he was very angry and "went very quiet". He felt he could not talk back. The applicant was thus in a very upset state immediately prior to the incident with Lynch and his bike. His driving reflected that state.
Lynch's abuse also upset the applicant. He took particular exception to Lynch's foul derogatory abuse about his mother, who was deceased. That made the applicant very angry. It would have made many men very angry.
The judge noted that the applicant had no psychiatric illness, no personality disorder, no drug or alcohol addiction, and that he appeared to be of sound average intelligence. The judge was "not persuaded that anger management does not figure in this young man's life". She continued: "These offences indicate very strongly that at 27 years of age the offender is capable of random acts of violence. The unresolved nature of his relationship with his father will continue to have the potential to cause aberrant behaviour. For that reason alone I am inclined to provide for a period of supervision in the community."
21.The judge found special circumstances on the basis that this will be the applicant's first term of imprisonment.
Dr B Westmore, Consultant Psychiatrist, expressed this opinion: "The matters now before the Court, as noted earlier, appear to be completely uncharacteristic of this man and on the history having occurred tragically as the result of a number of specific events which have escalated or aggravated a state of emotional distress and disturbance in him, leading him to allegedly drive in an erratic and dangerous fashion, causing injury to others and damaging another vehicle." Ms A Robilliard, Consultant Psychologist, was of much the same view. 22.The judge appeared to accept the view that the offences were committed by an essentially non-violent, law abiding, conscientious and loving father, whilst under the domination of a vindictive and manipulative father. She stated that while this might explain the offender's conduct, it could in no way excuse, justify or mitigate it. 23. I do not think that it is correct to say that these factors can in no way mitigate the applicant's conduct. The combination of the father's malevolent insinuation and taunt and Lynch's foul derogatory abuse as to the applicant's mother, could provoke a loss of self control. Normally it would not have the extreme effects it had in the present case. While not relevant on guilt in the present case, provocation is relevant on penalty.
The applicant submitted that the judge erred in holding that the vulnerability of the applicant to a loss of self control in no way mitigated his conduct. It was submitted that, given his general good character, the conclusion was inescapable that what happened was the tragic culmination of a series of events which produced an extreme loss of self control. Reliance was placed on the extremely provocative conduct of the applicant's father, and the provocative conduct of Lynch, the initial aggressor, which caused the applicant to redirect his anger.
The Crown accepted that the judge had erred in holding that the provocation and loss of control in no way mitigated the offence. However, the Crown contended that the error was relatively insignificant in the context of this case.
In support of his contention that the Court would find that the sentence was manifestly excessive, the applicant relied on the matters earlier mentioned. The offences were completely out of character, as the references showed, and were committed in a tragic combination of circumstances which caused an extreme loss of control in the applicant.
The Crown pointed out that the applicant's action seriously and adversely affected three people, two of whom had had nothing to do with the confrontation between the applicant and Lynch, and were simply seeking to help Mr Lynch recover.
The Crown submitted that the error made by the sentencing judge in holding that the provocative conduct of Lynch did not operate to mitigate the offence did not extend to the offences committed against the innocent bystanders. Reliance was placed upon R v Henderson NSWCCA, unreported, 5 November 1997 per McInerney J (with whom Grove and James JJ agreed), who said: "... the problem that arises here is that his Honour found that the provocation was not uttered by the victim (as he was clearly entitled to find) and which is not disputed by Mr Game.
In those circumstances I fail to see how provocative conduct emanating from persons other than the victim can reduce the gravity of the attack on the victim. Surely an innocent bystander should not be attacked because of provocative conduct emanating from persons nearby, thus reducing his culpability when provoked by persons other than the victim ..."
Henderson was a very different case on the facts from the present one.
Unfortunately, what happened in the present case was that the provocation of the applicant and his consequent loss of self control, caused in part by Lynch, spilled over and, as a result, those who were kindly assisting Lynch were attacked and Ms Pereira was seriously injured.
The combined provocation of the applicant's father and Lynch resulted in a loss of control, the effects of which affected two innocent helpers, as the applicant attacked Lynch and his bike. In the circumstances of the present case it would not be correct to fail to take the provocation into account, which led to the loss of the self control.
The Crown emphasised these points in support of the submission that lesser sentences should not be imposed: (a) The gravity of the offences and the injuries inflicted on Ms Pereira; (b) There was a gap between Lynch's abuse and the applicant driving off and returning, (this would have been probably in the order of a minute). There was a further gap between the applicant leaving and returning a second time. This would also probably have been in the order of a minute. The Crown's point was that the applicant had an opportunity to cool down. I do not think that that was likely. (c) The injuries to Ms Pereira and the shock to the others occurred on the return visit. It does not follow that the effects of the provocation and the loss of self control had abated. That is improbable. 33. This case is a difficult one. This Court does have to reconsider the sentence because of the error made. The offences were undoubtedly very serious and even with the effects of the provocation, merit stern punishment. I regard a sentence of imprisonment of eight years on the first count, referring to Ms Pereira, as correct. No lesser sentence should be imposed, having regard to the objective seriousness of the offence.
37.KIRBY J: I agree. The orders of the Court will be as indicated by Justice Smart.
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Marwan Haddad
Regina
CITATION : Rv Haddad [2002] NSWCCA 176 FILE NUMBER(S) : CCA 60824/01 HEARING DATE(S) : 7 May 2002 JUDGMENT DATE : 7 May 2002
Leave to appeal granted; appeals on counts 2 and 3 dismissed; appeal as to sentence on count 1 allowed in part—head sentence of eight years (unchanged) but non-parole period reduced from five years to four years (eligible for parole on 30 October 2005).