R v Abdulrahman

LEGISLATION CITED : Crimes Act, ss 347, 350 Crimes (Sentencing Procedure) Act

R v Blacklidge (unreported, NSWCCA, 12 December 1995) R v Forbes [2005] NSWCCA 377 R v Huntingdon [1999] NSWSC 1314 CASES CITED : R v Strahan [2000] NSWSC 537 R v Strahan [2003] NSWCCA 397 R v Sharp [2004] NSWSC 111 R v Sulman [2005] NSWSC 1244 R v Sandilands [2007] NSWSC 452

PARTIES : Regina v Rabih Abdulrahman (NON PUBLICATION ORDER)

E. Wilkins SC (14, 23 February, 9 March) (Crown) COUNSEL : A. Robertson (25 May) (Crown) R. Button SC (Offender)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) Galloways Solicitors and Attorneys (Offender)

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

NON PUBLICATION ORDER (There is to be no publication such as would identify the witnesses referred to in the statement of facts, Exhibit A.)

1 HIS HONOUR: On 14 February 2007 Rabih Abdulrahman ("the offender) pleaded guilty upon the presentation of an indictment charging him with an offence under s 347 of the Crimes Act of accessory after the fact. The maximum penalty provided for this category of offence under s 350 of the Crimes Act is imprisonment for five years. This maximum is to be contrasted with the statutory maximum for accessory after the fact to murder, as to which s 349 provides for a maximum penalty of twenty-five years imprisonment. 2 Pursuant to the same indictment, Ali Diab was charged with, and pleaded guilty to, the manslaughter of Wasiem Amer on 15 May 2005. The assistance which this offender, Rabih Abdulrahman, gave to Ali Diab after the slaying of the deceased and up to 7 June 2005, constituted the foundation of the offence charged against the offender, Rabih Abdulrahman. 3 The Crown presented a statement of facts, to which I shall refer in summarising the objective circumstances of the offence charged against the offender. 4 In May 2005 the offender and Ali Diab were engaged in the illegal activity of supplying drugs. So, too, was the deceased, and there was tension between the deceased on the one hand and the offender and Ali Diab on the other hand arising from competition over their respective illegal enterprises. In the week leading up to the death of Wasiem Amer the offender and Ali Diab were staying at premises consisting of a one bedroom unit at Bexley where B lived. B had been in an earlier relationship with the offender. 5 On the evening of 15 May 2005 the deceased was at those premises at Bexley and was lying on the bed in the bedroom there. When he came to that unit, the deceased informed B that he wanted to stay at that unit and to use it for keeping drugs. He asked B to go and collect Ali Diab. Ali Diab did not respond immediately but he did so later, presenting himself with his brother and other companions. Ali Diab stood behind his brother in the bedroom near the doorway and there was an argument involving the deceased, Ali Diab and his brother. After the argument had proceeded for some three or four minutes, the deceased drew a handgun and thereupon Ali Diab used a weapon in his possession to fire five shots at the deceased who died from wounds inflicted in the shooting. 6 Ali Diab and the offender left the premises after the shooting and stayed for a number of days in premises at Glebe. The offender contacted B, telling her to go to a motel in Artarmon, where, on her arrival, the offender was found to be staying with Ali Diab. At that time Ali Diab still had the weapon used in the shooting in his possession. On the following day, the offender and Ali Diab took B to Newcastle. She was required to remain there with the offender and Ali Diab for three days. Ali Diab and the offender then brought her back to Sydney to a unit at Villawood where B was kept for a further two days. The offender did not try to prevent B from leaving that unit when she succeeded in doing so at a time when Ali Diab was in the shower. 7 It was between 30 May 2005 and 2 June 2005 that police, acting pursuant to a listening device warrant, recorded conversations between the offender and his family at a time when the offender was in hospital being treated for wounds received in an unrelated incident. The offender was heard to tell his mother on three occasions that Ali Diab shot the deceased. 8 In the statement of facts the following agreement was recorded as to the basis upon which the offender, Rabih Abdulrahman, is to be sentenced as an accessory after the fact to manslaughter. That basis is as follows: "That he knew the offence had been committed by…Ali Diab because he was present in the unit at that time and that thereafter he assisted…Ali Diab. The particulars of this assistance are that after…Ali Diab had committed the offence, [this offender] instructed [B] to come to Artarmon where he and Ali Diab were staying in a motel. [This offender] paid her cab fare and remained with her and…Ali Diab in Artarmon, Newcastle and Villawood at a time when he knew that…Ali Diab required B to remain with them. [This offender] assisted…Ali Diab knowing that Ali Diab's intention was to hinder his [Diab's] apprehension, trial and punishment and intending to assist him in that regard." 9 The offence charged against the offender, viewed objectively, is a serious offence. The offender provided Ali Diab with assistance to hinder his apprehension knowing what Ali Diab had done. That said, however, Mr Button of Senior Counsel was correct to draw attention to the difference in the maximum penalties provided in s 349 for accessory after the fact to murder and in s 350 in relation to accessory after the fact to manslaughter. Section 349 provides for a maximum penalty of twenty-five years imprisonment and s 350 provides only for a maximum penalty of five years imprisonment. In my opinion the maximum penalty provided by the Crimes Act for this type of offence pays insufficient regard to the gravity of accessorial involvement in the taking of a human life. I consider the maximum penalty warrants review by the legislature. However, I must sentence the offender in accordance with the statute as it presently stands. 10 Whilst addressing the statutory regime, it is to be observed that there is no standard non parole period for accessory after the fact to manslaughter. Nor, indeed, does Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 make provision for a standard non parole period for the crime of manslaughter. This is unsurprising having regard to the extremely wide variety of circumstances in which that crime may be committed. As to observations in this regard, see R v Blacklidge (unreported, NSWCCA, 12 December 1995) and the judgment of Gleeson CJ, and also R v Forbes [2005] NSWCCA 377 and the judgment of Spigelman CJ at [133]-[136]. 11 Mr Button asks me to take account of the history in this matter. The offender was arrested on 31 May 2005 and charged with the crime of murder. Some time prior to the committal hearing in 2006 a different charge was preferred, namely that of being an accessory after the fact to murder. On 22 June 2006 the offender was discharged on that charge and was committed for trial on a charge of concealing a serious indictable offence. However, thereafter an ex officio indictment charged the offender with being an accessory after the fact to murder and on 4 August 2006 he was arraigned before Bell J on that charge, when he pleaded not guilty. A trial date was later set for 12 February 2007. The trial was then adjourned for two days and on 14 February 2007 the offender pleaded guilty to the indictment then presented charging him with the offence for which he is now to be sentenced. 12 I take that history into account and it is of particular importance to note that the offender was in custody, bail refused, between 2 June 2005 and 7 July 2006, a period in excess of thirteen months. 13 Mr Button submitted that the offender is to be regarded as having pleaded guilty as soon as the opportunity to do so presented itself and he submitted that the plea had significant utilitarian effect, avoiding a trial of some days at least. He submitted that in the circumstances the plea should attract the maximum discount of twenty-five percent. 14 I do not accept that this case warrants a twenty-five percent discount. At the outset the offender denied being at the unit at the time of the shooting and the willingness to plead was not indicated in the early stages. Nevertheless, the utilitarian value of the plea that has been entered is to be given due recognition, and is to be reflected in my assessment by a discount of approximately fifteen percent on the sentence that would otherwise be attracted. 15 The offender was born on 11 May 1983. He was brought up in the Hurstville area and left school in year 11 at the age of sixteen. Prior to his arrest in relation to this matter, he abused drugs and alcohol. To the author of the pre sentence report (Exhibit B), he attributed his involvement in this matter to his associates and his alcohol and drug abuse. I note that the author of the report has written that the offender is eligible for and has been assessed as suitable for a periodic detention order. I also note that the offender has signed an undertaking as required by s 66(1) of the Crimes (Sentencing Procedure) Act 2002. 16 The offender does have a criminal record. He has a drug conviction for possession, for which he was dealt with by a monetary penalty. The offender was also sentenced to a term of imprisonment for twelve months for demanding property with menaces but that sentence was suspended conditionally, a condition being that he submit to twelve months supervision by the New South Wales Probation and Parole Service. It is to be noted that the author of the pre sentence report before this Court has reported that the offender's conduct during the relevant twelve month period, which expired in 2003, was satisfactory. 17 Mr Button presented a number of references from family members who have commented upon the improvement in the offender's behaviour since he was admitted to bail in July 2006. Since being granted bail the offender has had employment as a freight delivery offsider and there is a reference from his employer, which is in favourable terms. The material produced by Mr Button and found in Exhibit 1 is favourable, and on the evidence produced I consider that the offender's prospects of rehabilitation are good. 18 There is a psychologist's report. Mr Watson-Munro is the author of that report prepared after an assessment on 13 April 2007. I do not propose to draw on that report in these sentencing remarks except to observe that Mr Watson-Munro considered that the offender's time in custody has had a salutary effect upon him, and this assessment is consistent with the other material in Exhibit 1. 19 I remind myself of the content of s 3A of the Crimes (Sentencing Procedure) Act and the purposes of sentencing there expressed. There is the need to ensure that the offender is adequately punished; there is the need for deterrence of this offender and others who might be tempted to commit similar offences; there is the need to denounce the conduct of the offender. These, and the other purposes of sentencing expressed in s 3A, require, and have been given, my attention. 20 I have also considered the provisions of s 21A of the statute. 21 There have been relatively few cases in which offenders have been sentenced for being an accessory after the fact to manslaughter in recent times:

In R v Huntingdon [1999] NSWSC 1314 Hidden J deferred passing sentence upon the offender entering into a recognizance to be of good behaviour for a period of two years. The offender in that case was aged sixteen and he assisted the older offender who had killed the deceased to bury the deceased's body in a park. The principal offender's responsibility for the crime was not detected for some five years, so the gravity of the offence as accessory in that case was to be found not merely in assisting in the disposal of the body of the deceased but in maintaining silence about the crime for a number of years.

In R v Strahan [2000] NSWSC 537 Barr J imposed a sentence of periodic detention for three years on an accessory who helped the principal offender dispose of a body which was transported from the scene of the crime into the bush where it was dumped and remained undetected for six months. On appeal: R v Strahan [2003] NSWCCA 397, that sentence was considered excessive and was quashed, and a sentence of three years imprisonment was imposed, with a non parole period of two years three months.

In R v Sharp [2004] NSWSC 111 Howie J imposed a fixed term of imprisonment of two years to be served by way of periodic detention. The accessory in that case gave the principal offender substantial assistance in concealing the body. The accessory helped the principal offender to transport the body in her motor vehicle from the scene of the crime to a country property where it was to be buried. The principal offender then beheaded the body and dismembered it. Thereafter, the accessory assisted by driving the offender to a river where the body parts were deposited.

In R v Sulman [2005] NSWSC 1244 Latham J imposed a sentence of two years, with a non parole period of nineteen months upon an accessory who helped to clean up the room where the principal offender had killed the deceased.

In R v Sandilands [2007] NSWSC 452 Adams J determined that an overall sentence of two years six months with a one year non parole period would have been appropriate but for one year nine months already spent in custody. His Honour fixed a non parole period to reflect the time already spent in custody and set a balance of parole period of some ten months, thereupon ordering the offender's immediate release on parole. This was a case in which the accessory was involved in removing the body of the deceased from the premises in which he had been killed and the accessory was also involved in attempting to remove evidence concerning the commission of the crime from those premises. 22 Returning to the present case, I must determine what sentence I perceive to be appropriate in the particular circumstances which this case presents. I must take account of the period of more than thirteen months that the offender has already spent in custody whilst refused bail and all the objective and subjective features presented by the evidence. Having regard in particular to considerations of punishment and deterrence, I have concluded that a prison sentence must be imposed, and I consider that a non parole period of no less than two years would suffice. The balance of the term which I will set is six months. I do not consider that there are special circumstances calling for any lengthier balance of the term of the sentence. I accept the submission by Mr Button that it is appropriate in this case that the offender serve his sentence by way of periodic detention. In so deciding, I am influenced by the considerable period the offender has already spent in full time custody, by the content of the pre sentence report, by what I perceive to be the offender's prospects of rehabilitation and by what I perceive to have been the offender's progress towards that goal since he was admitted to bail in July last year. 23 I now pass sentence as follows: you are sentenced to a non parole period of two years imprisonment to date from 16 June 2007 and to expire on 15 June 2009. I set a balance of term of six months to commence on 16 June 2009 and to expire on 15 December 2009. I order that the non parole period for the sentence be served by way of periodic detention at North Parramatta Detention Centre, to which you are first to report at 8.00 am on 16 June 2007. The first date upon which you will become eligible to be released on parole is 15 June 2009.

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