R v AM

The Offence 4At about 9pm on 25 June 2009, HEK was involved in a physical assault with Samir Mohamad at Bankstown's Centro shopping centre. This offender was also present. The assault was interrupted by security staff and by police. Both groups were escorted from the premises. HEK was the instigator of the conflict by referring to Samir Mohamad as a "dog". 5Over the following hour, numerous telephone calls were made between associates and family members of the two opposing camps, namely the offender's group and the El Kobaili group, as well as between members belonging to each group. During these telephone calls, arrangements were made to meet in order to pursue the earlier conflict. This offender called members of the El Kobaili group and his two older brothers, resulting in this offender being picked up by M outside the address of Samir Mohamed at Padstow in a green Honda two door coupe. This offender and M spoke with Samir Mohamed and Ibrahim Mohamed about the earlier incident and dispute with HEK at Bankstown. 6At about 10:29pm, three members of the Mariam group, MM, Tarek Elbadar and Rami Abdulhardi, travelled to the vicinity of the car park in a Mazda. They parked near a roundabout on Starkey Drive and walked from the vehicle into the car park adjacent to a Hungry Jack's food outlet. The trio was seen by a number of employees of that outlet. They changed direction and walked towards the Aldi store on the northern edge of the car park. They remained in view of the Hungry Jack's employees until those employees left the parking lot shortly thereafter. 7At about 10:34pm, the Honda car driven by M with this offender as passenger, pulled into the car park and parked between KFC and Hungry Jack's. They remained in the car. 8A short time later, a white van carrying the El Kobaili group entered the car park and parked alongside the Honda. At this point in time, the high beam of the Honda was activated, whereupon some members of the Mariam group started walking towards the white van. 9Almost immediately, MM who was advancing from the direction of the Aldi store perimeter, began shooting at the El Kobaili group. One of the occupants of the van returned fire. 10HEK and another occupant left the white van while its engine was still running and ran to the Honda. HEK started fighting with M. This offender locked the passenger door as soon as he was approached. Other occupants from the van began attacking the Honda with a large piece of wood and a steel wrench. 11One of the bullets fired by MM in the car park struck a truck driver, Mr Knight, who was travelling on Milperra road, resulting in his immediate death. 12Mr Abdulhardi received serious gunshot wounds to the abdomen. M received gunshot wounds to the right forearm as he was standing outside the Honda. At some point, this offender left the vehicle and ran from the scene. 13Within minutes of these events, the El Kobaili group retreated to the van and left the car park. This offender went to Bankstown Hospital, together with M, in a vehicle driven by Tarek Elbadar. Meanwhile, MM drove from the scene in the Honda at high speed, pursued by police, and was ultimately arrested in the front yard of his home. The Ruger semiautomatic pistol used by MM was recovered by police from the side of the road between the car park and his home. The magazine was empty. Eight spent cartridges and two live rounds from the Ruger were found within the car park. 14In addition, there were four spent rounds from another .22 calibre weapon, a rifle, and one further unfired cartridge from the same weapon recovered from the car park. 15The offender's role in these events consisted of communicating with HEK for the purposes of arranging the meeting and enlisting the help of his older brothers. There is no reliable evidence capable of establishing what it was that the offender anticipated would happen. The offender gave an account to Dr Nielssen, psychiatrist on 15 October 2012, in which the offender claimed that he was acting as a peacemaker at the shopping centre, that he rang HEK but has no memory of how he came to have his telephone number or what was said between them, and that he had no intention that the violence between the two groups would escalate, rather that he thought he was going to stop everything and "it just went out of hand". 16A similar account was given to the Juvenile Justice officer who interviewed the offender on 22 November and 3 December 2012. To the Juvenile Justice officer, the offender claimed that he does not now recall how his brothers became involved. He said that he was unsure what to expect when the meeting was planned but that he thought it would be an opportunity to resolve the issue. The offender acknowledged that an altercation may occur but denied that he anticipated how serious it would become. 17These accounts are untested by cross-examination. I am sceptical of the offender's claimed lack of recollection surrounding the circumstances leading up to the meeting in the car park. However, I accept that the offender was appalled at the escalation in the violence once they arrived at the scene. Nonetheless, the invitation to his older brothers is strongly suggestive of a realisation on the offender's part that he needed additional physical and moral support to assert the will of his associates over that of the El Kobailis.

The Objective Gravity of the Offence 18I have previously considered the extent to which the Court could have regard to the fact that the discharge of firearms resulted in the death of an innocent bystander in assessing the gravity of the offence. I repeat what I have previously said on this issue for the purposes of sentencing this offender. 19Most relevantly, in Stevens v R [2007] NSWCCA 152, Price J (McClellan CJ at CL and Hidden J agreeing) said at [25] to [27] :- In determining an appropriate sentence for an offence of affray contrary to section 93C of the Crimes Act an offender's conduct is to be considered in the context of the conduct of a co-offender. The level of violence used in the scale of the affray is relevant. An offender however, may only be sentenced for that part of his conduct and the conduct of the co-offender which give rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender; see R v Huynh [2000] NSWCCA 18; R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166. His Honour found as I have mentioned that the applicant and Davis were the aggressors. Furthermore it was open to the judge to find that they had attacked both victims with extreme violence. The attack by Davies upon Mrs Herring with a tyre lever was part of the co-offender's conduct which gave rise to the offence of affray. In my view, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence. 20Most recently in Khanwaiz & Ors v R [2012] NSWCCA 168 , Beech-Jones J said (Basten JA and Harrison J agreeing) :- 50. Further the significance of the distinct element of the affray charge, namely the effect of the attack upon persons at the scene, cannot be understated. Offences such as s 93C have a wider focus that just the impact on the direct victim of the unlawful violence. Section 93C is located within Part 3A of the Crimes Act which deals with public order. Attacks of the kind participated in by Noman can undermine the public's confidence in the security of their streets and homes. His Honour recognised this is in the sentencing judgment when referring to the "separate policy considerations effectively requiring separate assessments of the criminality and issues of accumulation" with the affray offences. 21It is axiomatic that in determining the appropriate sentence to be imposed upon the offender for the affray, he is not to be punished for the manslaughter of Mr Knight. He stands to be sentenced on the basis of his individual role in the commission of the affray. That, however, does not preclude the Court from taking into account, for the purposes of assessing the objective gravity of the offence, the fact that the discharge of loaded firearms was a feature of the affray. That feature of the offence demonstrated the extent to which members of the public were put in fear for their personal safety. 22To the extent that the gravity of the offence is affected by its short duration and the fact that it occurred late at night, after the various retail outlets on the perimeter of the car park had closed, those factors are of some, albeit, limited significance. The relatively short period of time during which the affray took place, in the order of minutes, was no doubt the product of the repeated discharge of at least two firearms and the wounding that resulted to two of the Mariam group. The participants in the affray were in exposed positions in the car park. The longer they remained there, the more likely it was that they themselves would be injured. Notwithstanding that the fast food outlets were no longer trading, there were members of the staff of those outlets who were waiting in the car park to be collected by friends and relatives. Moreover, adjacent to the car park, there was a service station and 711 store which was, at the time of the affray, trading with members of the public. All of these people were potentially put at risk of serious injury. That risk materialised in the death of Mr Knight. 23The offence demonstrated a measure of planning and premeditation, the participants were variously armed with firearms, pieces of timber and other implements, it was a large group, it occurred in full view of numerous members of the public in a public car park and it involved the actual use of violence. These are all factors that are relevant to an assessment of objective gravity. 24In the result, it is not necessary to embrace the Crown's description of the offence as one approaching the worst case. It is always possible to envisage circumstances that would render the offence more objectively serious, although that does not preclude a finding that an offence is in the worst case category. This affray did not take place at a time or in a place that engendered in a large number of members of the public fear for their personal safety. That does not detract from my assessment of the offence as objectively a particularly serious example of affray. 25For these reasons I have determined that the offender must be dealt with at law. That said, his role in the events at the carpark was extremely limited. He was not involved in the infliction of any violence and he did not engage with anyone once the affray started. I accept that he attempted to withdraw by locking the door of the car, although that act of self preservation was not surprising given the size and bulk of the man who was immediately threatening him. 26The offender was only 15 years of age at the time of the offence. There is some merit in the submission of the offender's counsel to the effect that the offender's older brothers demonstrated a complete failure of moral and filial duty towards the offender. He has no criminal history and stands to be sentenced as a person of otherwise good character. 27Whilst general deterrence has a role to play in the sentencing exercise, specific deterrence is of negligible consideration. Given his personal circumstances and the effect which his involvement in the events of that night have had upon him, I regard his prospects of rehabilitation as sound.

At a glance

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Judgment (4 paragraphs)

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Cases Cited (6)