R v Ahmad

R v Ahmad - [2020] NSWSC 1195 - NSWSC 2020 case summary — Zoe

Objective features

The following is based on a statement of agreed facts that became exhibit B, and which was signed by the Crown prosecutor and the offender personally. It is also based upon a disc of CCTV product that became exhibit E, and which I have watched in the courtroom and also in Chambers.
To state things succinctly: on the afternoon of Saturday 9 April 2016, two groups of men met on the street outside business premises associated with the brother of the offender, the late Mr Walid Ahmad. That was in a light industrial suburban area that was by no means deserted. Regrettably, the members of the two groups had previously been on good terms, but some sort of dispute had developed. Pushing and shoving developed into an affray, which in turn developed into a gunfight, which in turn led to more than one person being shot, the deceased fatally.
Although the offender had driven to the scene before any of that developed, and had entered the business premises of his brother, there was no evidence placed before me that he had done so in order to be involved in any dispute. Having said that, when the dispute became somewhat physical in the form of jostling, both the deceased and the offender were involved in it.
The physical interaction only lasted for a matter of minutes, after which the group of which the offender was a member separated themselves from the fracas by retreating to the other side of the street. Immediately, an exchange of gunfire occurred, and obviously men in both groups had arrived at the scene armed with handguns. The deceased handed an associate of his, Mr Fawaz Elmir, such a weapon, which the latter used to fire a number of shots towards the business premises. The late brother of the offender returned fire more than once. At a later stage, Mr Abdullah El-Masri, a member of the group with which the family of the offender was associated, was shot and fell to the ground.
The Crown case on sentence did not suggest that the offender knew of the presence of the concealed firearms, until they were brought into play.
During the gunfight, the deceased and his associate Mr Elmir entered a motor vehicle. At the same time, the offender approached Mr El-Masri, who as I have said was lying wounded on the street. The offender took from Mr El-Masri a revolver that he had been holding, and walked quickly towards his own car, with the intention of leaving the scene.
In taking possession of that weapon, the offender was continuing his participation in the affray. And he was doing so aware not only that his brother was armed at the time with a semiautomatic pistol, and that he had discharged it shortly beforehand, but also aware that there was a possibility that a person could subsequently be unlawfully killed.
The offender observed Mr Elmir produce a pistol from the driver's side window of the vehicle in which he was sitting, and that it was pointed in the general direction of the offender. In response, he fired a warning shot above the vehicle from the revolver that he had obtained. At the same time, the brother of the offender fired three shots from the semiautomatic pistol, two of which pierced the windscreen of the motor vehicle. Tragically, the deceased was fatally wounded as a result.
The offender fled the scene, at which 14 fired cartridge cases were later retrieved, demonstrating that at the least that number of shots had been fired during the armed melee.

[5]

Objective gravity

Manslaughter is an offence that carries a maximum penalty of imprisonment for 25 years. It possesses no standard non-parole period, in all likelihood because of its notorious variability, legally and factually. In my opinion, it must always be an inherently grave offence, encompassing as it does the unlawful taking of a human life in circumstances that, whilst falling short of murder, nevertheless are reflective of serious criminal liability.
Here, the deplorable fact is that a gunfight broke out in broad daylight in a Sydney suburb, with the result that the life of a fellow human being was snuffed out. No doubt, events such as that cause all members of the community to feel unsettled, anxious, afraid. Some, especially those who may have been present or close by, may react with despair and terror at the thought that persons other than members of the security forces are unlawfully armed with such weapons, and are prepared to use them if they see fit. Those aspects of what occurred are, in my opinion, extremely serious.
Nor is it to be forgotten that, far from immediately cowering or fleeing in fear, the eventual response of the offender was to divest a wounded associate of a handgun, and to proceed to fire it, even if harmlessly into the air, and in an effort to depart.
To be balanced against those aspects are the facts that the offender was not the shooter; that the shooter himself is to be thought of as guilty of manslaughter, not murder, and was acting in excessive self-defence; that the offence in which the offender actively took part personally was little more than a public pushing and shoving; that his criminal liability is based upon foresight of a possible outcome, not an intention or desire that it occur; and that the involvement of the offender in this tragedy was spontaneous and unplanned.
Seeking to balance up those undoubtedly competing factors, even so the measure of criminal responsibility accepted by the offender for an egregious act of public and fatal gun violence in a suburban street means that this manifestation of the lesser form of homicide must be assessed as a serious example of the offence of manslaughter.

[8]

Background

On the day of the offence, the offender was aged 33. He is now aged 37, having spent approaching 3 years 6 months in custody bail refused. A great deal of evidence was placed before me from many family members and friends. Because that evidence is all one way, is undisputed, and I accept it, it need not be analysed in detail. In a nutshell, that evidence certainly shows that the offender is a loving husband to his wife; a devoted father to his four children; and a dutiful son to his parents, who are elderly and unwell. It has also been said by many that he is well known as a person of charity, commitment to community, faith, courtesy, and diligence.
I accept all of that on the balance of probabilities, even despite the aspects of the criminal record of the offender to which I shall shortly turn. I do so because I agree with the submission of the Crown prosecutor that human beings are complex, they are to be thought of in shades of grey, not in extremes of black-and-white, and even a person who has intersected more than once with the criminal justice system in serious ways can nevertheless have his or her very positive attributes.
As well as that, psychological and psychiatric evidence suggests that the offender had a physically tough upbringing as a result of the strict discipline of his father, and enjoyed few material privileges as a child and teenager. The family was more generally damaged by the consequences of the civil war in Lebanon. Chronic anxiety arising from those factors made effective education very difficult, and the offender left school at an early stage with very limited literacy. He was first prescribed calming medication many years ago, but he has as well illegally abused cannabis and unprescribed medication over the years, at least partly in order to alleviate that chronic anxiety condition. For a long time he could not settle to regular employment, for various reasons.
Having said that, in the years before the offence, it seems that the offender was working in a family-owned recycling business, abstaining from significant drug abuse, enjoying life with his family, and generally making sound progress.

[10]

Criminal record and incarceration

Turning now to things that have indeed gone wrong, the offender has intersected with the criminal justice system for almost precisely 20 years. That began when he was a child, and it is noteworthy that one of his first offences was an offence of violence, assault occasioning actual bodily harm. He has repeatedly refused to comply with the rules of the road, but I disregard that for present purposes. And it is noteworthy that, in 2003, while still a very young man, he was imprisoned for an affray, albeit for only one month.
More troubling is the fact that on 3 September 2005, when he was in his early 20s, the offender committed two offences of firing an unauthorised firearm in a manner likely to injure persons or property. I was told by senior counsel from the Bar table that the weapon was in truth an air rifle. I accept that, and also accept that the disposition of the matters in the Local Court and the imposition of a sentence of only six months suggests that the incident was not overly serious. Nevertheless, in light of the matter before me now, it gives one pause for thought that 15 years ago the offender was first imprisoned for an offence to do with firearms.
Even more significant is the fact that, eight days later on 11 September 2005, the offender compendiously committed the following offences: possessing a loaded firearm in a public place, firing a firearm at a dwelling house with disregard for safety, and firing a firearm in a manner likely to injure persons or property. Serious offences of a similar kind were also taken into account on sentence. The facts of those matters were not placed before me by either party, but the gravity of the offences speaks for itself, as does the period of incarceration ultimately imposed.
The outcome of that sentence was that the offender went into custody on 17 February 2006, and was released to parole exactly 5 years later, on 15 February 2011. He was returned to custody by the State Parole Authority on 17 February 2012, presumably for breaching parole, and was released again on 16 February 2013, by that stage having served six full years. Thereafter he served his parole period in the community without trouble, and it had expired on 15 August 2014, 18 months before the commission of this new offence.
As I have said, I accept all the positive things that have been said by very many people about the offender, and what I have just recited does not directly contradict those things. Even so, the other side of the coin is that the offender has committed serious offences to do with firearms in the past, and has been sentenced to imprisonment for them, on one occasion for a lengthy period. And now he has accepted his indirect criminal liability for a fatality committed by way of a semiautomatic pistol at the conclusion of a gunfight in which many shots had been fired.
It is true that the earlier firearm offences were committed as a much younger man, at a time, I accept, when his life was in disarray. Still and all, all of that must be taken into account by me in an adverse way, not in order to punish the offender for his past, but in simply coming to an informed assessment of the appropriate sentence to be imposed today, including recognition of denunciation and deterrence in both of its forms.

At a glance

Court

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Before

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Judgment (16 paragraphs)

Parties

Cited By (1)