REMARKS ON SENTENCE
1 His Honour: On 19 November 2002 the offender, Andrew Abou Chabake, was arraigned on an indictment containing two counts; firstly, that on 6 May 2001 at Campsie he did murder Romeo Nasr, and, secondly, that on the same date and at the same place he did shoot at Fadi Nasr with intent to murder him. The offender pleaded not guilty to both charges but on 2 December 2002 the jury convicted him on the count of murder. He is now to be sentenced for that offence.
2 At about 10 pm on 6 May 2001 the deceased was driving his motor vehicle in Frederick Street, Campsie in the company of his uncle, Fadi Nasr, who was seated beside him in the front passenger seat. Shortly after having entered Frederick Street from Moore Street, a person approached the motor vehicle and fired seven shots from a handgun at the motor vehicle as it proceeded passed him. Three of the shots fired entered into the motor vehicle. One of the shots inflicted a superficial wound grazing of the deceased's left leg. A second shot, however, travelled through the deceased's back penetrating his heart, aorta and right lung. The deceased died a short time later from these injuries. The deceased's uncle was uninjured.
3 The fundamental issue for the jury's decision was whether the Crown had proved beyond reasonable doubt that the person who fired the handgun was the offender. It was never suggested at the trial or during the sentencing proceedings that, if the accused was the person who fired at the deceased, he did so other than with an intent to kill.
4 Although the parties addressed the jury on an assumption that they would reach the same verdict for each of the two charges, the fact that the jury convicted the offender of murder but acquitted him of the attempted murder of the uncle is unremarkable. Clearly the jury were not satisfied that the accused intended to kill the deceased's uncle when firing at the motor vehicle. That finding is understandable in the particular facts of this matter, because, whatever may have motivated the offender to kill the deceased, there was no evidence that the offender wished to harm the uncle.
5 The facts and circumstances leading up to the shooting were not really in dispute. The offender and the deceased were acquaintances within the Lebanese community in the Campsie area. They shared a number of mutual friends and acquaintances. At about 5 pm on 6 May 2001 the deceased received a telephone call from the offender and as a result he drove to the offender's premises in Frederick Street. As the deceased walked up the driveway, the offender suddenly appeared and attacked him delivering what was later described as a "king hit". A fight ensued between the deceased and the offender. The deceased was apparently getting the upper hand when the fight was broken up by the arrival on the scene of Bek Hadid, a friend of both men, and the offender's father. They had been in the premises at the time the fight commenced.
6 Exactly what occurred at that point is not clear and, in particular, there was conflicting evidence as to who produced a handgun at the time the fight was interrupted. Accounts given by the deceased to various persons later that evening indicated that it was Hadid who first produced the weapon. Hadid has given conflicting accounts as to whether it was the offender or his father who had the gun at the time the offender ordered the deceased to leave the property.
7 It is probably not of importance to determine who it was that produced the gun on this occasion but I am satisfied that the firearm belonged to the offender or a member of his family and that it was used to threaten the deceased after the fight broke up and before he left the property. I do not know why the deceased went to the offender's home on this afternoon or why the offender attacked him. Nor do I understand why it was thought necessary to brandish a firearm at the deceased in order to have him leave the property. There was no evidence of any previous or existing enmity between the deceased and the offender or their families. Neither the offender nor his father gave evidence before the jury or before me on the sentencing proceedings. Hadid was an unreliable witness who changed his version depending upon what he thought best suited his own interests. Therefore, I am left without any real understanding of the relationship between the deceased and the offender at the time immediately before the shooting nor do I have any appreciation of the significance of the incident that took place at the offender's home.
8 I do know, however, that the deceased left the offender's premises unhappy with what had occurred and making it clear to him that he should not consider that the incident was over and forgotten. The deceased had apparently been slightly injured in the assault upon him as he was later seen to have a black eye and a swollen cheek.
9 Throughout the evening following the incident there were a number of conversations involving the deceased and his friends during which the deceased recounted what had occurred at the offender's home and expressed his indignation about his treatment there. The deceased expressed his intention to meet with the offender for what was to be a " fair fight" in order to salve his injured pride and reputation. At one point the deceased issued a challenge to the offender through a mutual friend, but it was declined. Bek Hadid gave evidence that the offender, when hearing of the challenge, had expressed his fear that the deceased might stab him.
10 Mr Steirn S.C., in his address on behalf of the offender in the sentencing proceedings, placed considerable weight on this piece of evidence in order to explain the offender's conduct in shooting the deceased. Although he accepted that self-defence was not open on any view of the evidence, Mr Steirn submitted that I should find that the offender acted out of fear of what the deceased would do when he was forced to confront him on the deceased's return. However, I have very serious misgiving about the reliability of any evidence given by Bek Hadid and I warned the jury that they should not place any weight upon his account. The fact that they convicted the accused of murder does not mean that they accepted his evidence.
11 But even if the offender did express that fear on hearing of the challenge, he had no basis for it on the evidence before me. There was no suggestion that the deceased was armed when he attended the offender's premises in the afternoon prior to the shooting and was there attacked and threatened with a firearm by the offender or his father. There was no evidence that the deceased was armed at the time of the shooting. There was no weapon of any sort found in his motor vehicle. There was nothing before the jury to suggest that the deceased was generally regarded as a violent person and there was no evidence that, prior to the incident at the offender's home, the deceased had threatened violence to the offender or his family. There was no evidence at all to indicate that the offender could have had any reason to fear that the deceased would do other than engage in a fistfight with him in order to settle the score as a result of the earlier incident. Quite the contrary, the deceased was expressing his intention of having a fair fight in front of his uncle, a young man not much older than him, but apparently with some standing amongst the young men in the community. Although the offender might have had some fear of coming off the worse in such a fight, there was nothing to suggest that he would have suffered any serious injury except to his pride and his standing in the community.
12 On the evening of the shooting there was a telecast of an interstate football match that the deceased and his friends intended to watch. For this purpose, the deceased went to the premises of his uncle, Fadi Nasr. He had earlier spoken to him on the telephone and recounted the incident that had occurred that afternoon at the offender's home. His uncle had contacted various persons in order to speak to Hadid so that he could remonstrate with him for having produced the pistol during the course of the fight. After the deceased arrived at the uncle's home, they commenced to watch the football match together but the deceased was too distracted by the earlier incident and made and received a number of telephone calls to friends and acquaintances in connection with it.
13 Ultimately, just after the telecast of the football game had come to an end at about 10 pm, the deceased determined to travel to Campsie to find the offender and to confront him about the earlier incident, intending no doubt to fight him if the opportunity arose. The deceased's uncle went with him in order to ensure that the fight would be a fair one. They travelled in the deceased's vehicle to Frederick Street, Campsie and stopped outside the offender's premises. A neighbour of the offender gave evidence of hearing a motor vehicle stop and a person calling out, "Come out Andrew, (a name that the witness could not recognise) is looking for you. I know you are in there, I will come back for you". The neighbour said that, after hearing these words, she looked out the window and saw a vehicle matching the description of the deceased's vehicle driving down Frederick Street. A short time later "about 2 to 10 minutes", on her estimation, the neighbour heard sounds that were the shots fired at the deceased's vehicle.
14 The deceased's uncle gave evidence that, when they stopped outside the offender's premises, he saw the lights in the house extinguished and believed that he saw somebody looking out through the curtains. He said the deceased called out "Andrew, come out you dog, come out and fucking finish what you started". He told the deceased to leave and they travelled a short distance to the premises of an acquaintance. However, on arriving there it appeared that there was nobody awake and so the deceased turned the vehicle around and travelled back to Frederick Street where the shooting took place.
15 The offender did not give evidence before the jury and did not participate in any interview with the police. However, he did tell the police officer that he was working on the evening of the shooting. The evidence before the jury that implicated him as the shooter was the identification of him by the deceased's uncle and the circumstances leading up to, and surrounding, the shooting. In my view the Crown's circumstantial case was overwhelming. Clearly the jury was of the view that the shooting of the deceased was connected to the incident between the offender and the deceased earlier that evening, although the evidence before them did not disclose the circumstances surrounding that incident.
16 I have little doubt that the Court has not been told the full story about the shooting of the deceased. But I cannot speculate about matters of which there is no evidence and I have to sentence the offender on the basis that he shot the deceased in the circumstances that I have recounted. I find it difficult if not impossible to understand how a young man, such as the offender, could possibly have laid in wait for the deceased in effect to ambush and kill just to avoid the consequences of a fistfight. Yet on the available evidence this is what the offender did. He decided to take that course while completely sober and apparently rational. There is nothing in the evidence before me that could possibly explain his actions such as to significantly mitigate the seriousness of what he did.
17 Although Mr Steirn with his usual skill has submitted that, in all the circumstances, this was a murder at the lowest end of the scale of such offences, I cannot accept that it was. I acknowledge that there was a degree of provocation in the challenge issued by the deceased and his promise to return, but I find it impossible to understand how the offender could have reacted to that provocation by forming the view that he should arm himself, await the deceased's return in a public street, and, without any warning, shoot at him with the intention of killing him. I acknowledge that unfortunately among some sectors of the community, particularly among some groups of young people, the law of the gun is replacing the law of the land. But there is nothing before me to indicate that this attitude was prevalent amongst the Lebanese community in Campsie or in particular amongst the persons with whom both the deceased and the offender associated. Nor can I overlook that the deceased was threatened with a gun at the offender's premises earlier that day.
18 In determining the appropriate sentence I have had regard to s 21A of the Crimes (Sentencing) Procedure Act. That section sets out a number of matters which either aggravate or mitigate the severity of an offence and which must be taken into account in determining the severity of the sentence to be imposed. The offence is aggravated by the fact that it involved the use of a weapon, in this case a fully-loaded handgun. The sentence to be imposed must reflect general deterrence in relation to the use of firearms in the community, even though as I have indicated there is no evidence of the prevalence of such weapons amongst the particular community in which the offender lived. There is also the aggravating feature that the offence was committed in a public street, even though there was no other person other than the accused's uncle in the vicinity. There was an element of planning or premeditation in the commission of the offence at least in the period between the arrival of the deceased and his uncle at the premises and the return of the vehicle into Frederick Street. It was not as if the offender acted instinctively to the challenge without time for thought or reflection.
19 The accused is aged 26 years and has no relevant prior convictions. He is married, and was living with his wife and parents at the time of the killing and up until he was returned to custody upon being convicted by the jury. His background, or what I know of it, is unremarkable. He has generally been employed since the age of 14 years in unskilled positions. He was self-employed at the time of the shooting, operating what appears to have been a pool-hall. There is nothing in the very limited material before me that would suggest that his behaviour on this night was other than an aberration.
20 As I have already indicated there was a degree of provocation by the deceased in coming to the home late in the evening and issuing his challenge but the response was so greatly disproportionate to that provocative conduct that it does little to explain, let alone mitigate, the offence. Although Mr Steirn submitted that I should find that the offender was acting under some form of emotional duress caused by his anxiety about the return of the deceased, I am not prepared to find that he was. I simply cannot comprehend the offender's reaction to the challenge of the deceased, and as I have already indicated I do not believe that I am apprised of all the relevant facts to explain what he did.
21 The offender has denied the offence and continues to do so. He is not to be punished for taking that stand, as he is entitled to put the Crown to proof of the offence. But his failure to acknowledge his guilt or to show any remorse for the killing, and the nature of the killing itself raises questions in my mind about his prospects for rehabilitation and whether he is likely to offend in the future. As I have indicated, the killing was grossly disproportionate to the situation in which the offender found himself and is unexplained by any circumstance that might go any way to account for that reaction. I cannot conclude otherwise than that there was some motivation unknown to me that caused the offender to behave as he did or his conduct reflects a complete lack of regard for human life. If the former be the case, I cannot make any judgment about his prospects for rehabilitation without understanding that motivation and whether it is likely to arise again in the future. If it is the latter, then I doubt that any sentence I impose upon him is going to change that attitude except by his gaining maturity over many years in custody.
22 My attention was drawn by Mr Steirn to s 22A of the Act. That section is as follows: