R v Barghachoun

Seriousness of the Offence 63The Offender has pleaded guilty to the crime of manslaughter. He is to be sentenced for his participation in an extended joint criminal enterprise, in that he took part in an unlawful and dangerous act, an affray, in circumstances which objectively carried with it an appreciable risk of serious injury being occasioned to a person. He went with a group of men, whilst he was armed with a metal pole, with the intention of using the pole as a weapon and he did strike a person with another implement, namely a baseball bat. 64It is important to keep in mind that I am not sentencing the Offender for directly causing the death of Mr Boyce, nor am I sentencing him for his participation in a joint enterprise that had as its object, the doing of an act with the intention of killing or inflicting grievous bodily harm. 65In this case, the persons at risk of serious injury were the persons involved in the affray itself. These were the persons who emerged from the Busby house, with reinforcements from the 4WD (on one side) and the persons who emerged from the van, including the Offender, AH and Mr Smith (on the other side). 66Although submissions were made at the sentencing hearing which suggested a small distinction between the bases upon which the Crown and the Offender submitted that the offence of manslaughter was made out in this case, I do not think that anything turns upon any such distinction. 67The Offender travelled with a group of men, expecting that a fight was to occur with other persons. With others, he responded to a call for assistance on behalf of his friend, AH. Expecting that a fight would occur, he emerged from the van holding a metal pole. He participated in the physical confrontation, striking Mr Tyrell in the shins with a baseball bat. The Offender was not a passive bystander, but an active participant in the affray. 68There is no evidence that the Offender engaged in any confrontation with Mr Boyce. Nor does the evidence suggest that the Offender was aware that Mr Smith was armed with a knife, let alone that he used it to stab Mr Boyce during the fight. 69The Court was taken to a limited number of sentencing cases, including R v Diab [2005] NSWCCA 64, which were far removed from the circumstances of the present case. 70The Supreme Court has had recent experience of sentencing persons for manslaughter arising from an affray between two conflicting groups. The context for those sentencing decisions, the conflict between members of two rival motorcycle clubs at Sydney Airport in March 2009, bore a number of significant differences from this case. However, persons were sentenced for manslaughter upon a basis not far removed from this Offender who came to assist their side of the conflict, even though (as to some) they did not get involved in any physical fighting, although willing to assist if required. 71In considering the question of sentence for such an offender, RA Hulme J observed that the role of the particular offender was, relatively speaking, minor. His Honour observed, however, that such an assessment did not mean that the particular offence was anything other than a serious one with the absence of such factors simply meaning that the culpability of the particular offender was less than that of others: R v La Rosa [2011] NSWSC 1394 at [34]. Other manslaughter sentencing decisions for persons arising out of the Sydney Airport incident include R v Pirini [2011] NSWSC 1395; R v Aouli [2011] NSWSC 1393 and R v Costa [3011] NSWSC 1392. I do not refer to these cases as comparable sentence cases. Rather, the assistance derived from them concerning an assessment of objective seriousness for offences of manslaughter involving participation in an unlawful and dangerous act which objectively carried with it an appreciable risk of somebody suffering serious injury. The offenders in the cases which I have mentioned did not strike the fatal blows and some did not strike any blows at all. Nevertheless, their crimes of manslaughter were serious. 72The starting point in assessing the gravity of an offence of manslaughter is to recognise that it involves the unlawful taking of a human life. As RA Hulme J observed in R v La Rosa at [32], there are a wide variety of ways in which the crime of manslaughter can be committed and there are an equally wide variety of ways in which an offender may be culpable. 73The Offender's crime is one of considerable seriousness. There was some element of planning and organisation in that there was a call for assistance with a confrontation and a willingness on the part of the Offender to participate for that purpose. The Offender emerged from the van armed with a metal pole, indicating his willingness to participate. He struck a member of the other group with a baseball bat. 74I accept the Offender's evidence that he had been consuming ice that evening. That may serve to partly explain his involvement, but it cannot excuse it. It is apparent that others involved in the confrontation, in particular those from the Busby house, were affected by alcohol. A physical confrontation between two groups of young men who are alcohol or drug affected is the very scenario where very serious injury or death can occur. 75The Offender was a willing participant in the confrontation and he himself used violence in the course of that confrontation. His was an objectively serious crime.

The Offender's Subjective Circumstances 76The Offender gave evidence at the sentencing hearing. He was 21 years' old at the time of the offence and is now 23 years' old. 77The Offender was placed on 18 months' probation in July 2003 at the Bidura Children's Court for an offence of robbery in company. In November 2005, he was sentenced at the Liverpool Local Court for a number of traffic offences, the most serious being driving whilst his licence was suspended, for which he was placed on an 18-month good behaviour bond and disqualified from driving for 12 months. 78A presentence report dated 18 July 2011 was tendered at the sentencing hearing, together with a report of Dr Emma Collins, psychologist, dated 7 July 2011. In addition, a number of other reports and references were tendered which described the Offender in favourable terms in his response to this offence since April 2009. This material included a report of Toby Raeburn, psychiatric nurse practitioner, dated 21 July 2011, a letter from Joanne Perry, social welfare manager of Inspire Community Services, dated 29 July 2011 and references from Antonio Alviggi dated 20 May 2011, James Moffat dated 18 May 2011, Jade Carroll dated 2 August 2011 and a letter from the Offender's mother dated 3 August 2011. This letter, together with a medical report dated 19 July 2011 referred to health problems affecting the Offender's mother and the role of the Offender in the care of his mother. 79The presentence report was favourable to the Offender. The report of Dr Collins indicated that the Offender achieved a score that placed him within the below-average-to-average range of ability, outperforming 18% of the normative sample for his age. 80I accept that the Offender has good prospects of rehabilitation.

Some Other Factors Relevant to Sentence 81Mr Button SC, for the Offender, submitted that the Offender was entitled to a discount in the order of 20%-25% for his plea of guilty. The Crown submitted that, although it was not a plea entered at the earliest opportunity, it should be regarded nevertheless as an early plea attracting a discount not exceeding 20%. 82Although there is evidence of an offer to plead guilty to a charge of affray made at an early time, the offer to plead guilty to manslaughter was not made until the proceedings were before this Court. I propose to allow a 20% discount for the Offender's plea of guilty. 83Mr Button SC submitted that the Offender was entitled to a discount because of his willingness to assist the prosecution, including a willingness to give evidence against Joey Smith at his trial for murder. At the time when this submission was made on 3 August 2011, there had been no statement proffered to the Crown on behalf of the Offender as part of an offer to assist in the trial of Mr Smith. Given the significance which Mr Button SC sought to attach to this issue, I adjourned the sentencing hearing to allow this aspect to be explored formally. When the hearing resumed on 20 September 2011, I was informed that the Crown did not propose to call the Offender at the trial of Mr Smith and that his offer of assistance was of no value. Mr Button SC submitted that the Offender's offer showed at least a willingness to facilitate the course of justice. 84I take into account the Offender's offer to assist the Crown but, having done so, I do not consider that it provides any real assistance to him on sentence. It was an offer made late in the process and was one where the Crown saw no value in the evidence which he might give at the trial of Mr Smith. The credit to which the Offender is entitled, in these circumstances, rises no higher than an offer of assistance which suggests a willingness to assist the Crown authorities, but with no assistance of value actually being provided. 85It was submitted that the Offender had demonstrated contrition and remorse. I bear in mind that the Offender left the scene with Mr Smith and AH and, when initially questioned by the police, provided a false account as to his movements on 24 and 25 April 2009. At the time when he provided this false account, he was aware that a man had died in the confrontation. The Offender's initial approach is not indicative of contrition and remorse. 86However, the evidence suggests that the Offender has developed some insight into his conduct and has remorse. I take into account his remorse, which assists a favourable assessment of his prospects of rehabilitation.

Victim Impact Statements 87Victim impact statements were read at the sentencing hearing. Statements were made by the mother and sisters of Mr Boyce and his younger siblings. The tragic consequences for Mr Boyce's family resulting from his senseless death were explained eloquently and movingly by members of his family. On behalf of the community, the Court expresses its sympathy to the family of Mr Boyce for their tragic loss. I have regard to the victim impact statements, as part of the sentencing process, in the manner permitted by law.

The Sentencing of AH 88I have referred earlier in these remarks to the involvement of a young person, AH, in the tragic events leading to the death of Mr Boyce. AH has pleaded guilty to manslaughter and is to be sentenced by me today: R v AH [2011] NSWSC 1535. In accordance with proper sentencing practice, where possible the same Judge should sentence co-offenders: Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [33]-[46]. A separate sentencing hearing was conducted with respect to AH given that his plea was entered at a later time than the present Offender. 89In considering the question of sentence of this Offender and AH, I have kept in mind the concept of relativity as between the sentences to be passed. That said, the roles of the Offender and AH were different and additional sentencing principles apply to AH, who was 16 years and eight months' old at the time of the offence.

Determining the Appropriate Sentence 90Earlier in these remarks, I addressed the objective seriousness of the Offender's crime. Manslaughter may take many forms and it is necessary to determine penalty in the circumstances of the case. A constant factor, of course, is that a person who commits the crime of manslaughter is criminally involved in the taking of a human life. 91The present offence is a serious example of the crime. It is necessary to denounce and punish the Offender for his crime. It is necessary as well that the sentence reflect an element of general deterrence given the approach of the criminal law towards offences involving violence between groups of young men committed in public places. 92Given the Offender's insight and remorse developed in the period since his crime, less weight ought be given to specific deterrence and the Offender's good prospects of rehabilitation must be taken into account. 93I bear in mind the Offender's age and the evidence of his character generally. He was involved in a serious offence in 2003 which was dealt with in the Children's Court by way of a non-custodial penalty. To the extent that the Offender's involvement in this present offence suggests that he had not learned the lessons from the 2003 offence, I am satisfied that he has made substantial progress since 2009. 94I have taken into account as well the relatively strict bail conditions to which the Offender has been subject whilst these proceedings have been on foot together with his willingness to assist, through Inspire Community Services, by volunteering in programs which will allow him to emphasise to young persons the risks of involvement in group violence. 95Mr Button SC submitted that the circumstances of this case, objective and subjective, were such that the Court should suspend sentence. The Crown submitted that a sentence of full-time custody was the only appropriate sentence to be imposed upon the Offender in all the circumstances of the case. 96In my view, the objective seriousness of the crime is such that the only appropriate sentence which should be imposed is one of full-time custody. If this point was reached, Mr Button SC submitted, and the Crown accepted, that a finding of special circumstances should be made. The Court is not entitled to double count positive subjective factors in favour of the Offender in setting the sentence, and then determining the proportion of the sentence which the non-parole period should constitute. I am satisfied, however, in the circumstances of this case that a finding of special circumstances should be made. In this regard, I take into account the need for supervision in the community upon the Offender's release from his first term of imprisonment. 97Taking into account all objective and subjective factors, I take as a starting point, before application of the 20% discount for the plea of guilty, a sentence of imprisonment for five years. After applying the 20% discount, a head sentence of four years' imprisonment will be imposed. In light of the finding of special circumstances, a non-parole period of two years and three months should be fixed. 98Saad Jamie Barghachoun, would you please stand. For the offence of manslaughter, you are convicted and sentenced to imprisonment comprising a non-parole period of two years and three months commencing on 27 October 2011 and expiring on 26 January 2014, with a balance of term of one year and nine months commencing on 27 January 2014 and expiring on 26 October 2015. 99The earliest date upon which you will be eligible for release on parole is 27 January 2014.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2011