R v Chami [1999] NSWSC 1268 | Case summary

1 HIS HONOUR: The prisoner, Bassam Chami, was charged with the murder of Larry Cox at Auburn on 25 April 1998. On the presentation of an indictment charging him with the commission of that crime on 21 September 1999, the prisoner pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in satisfaction of the indictment and the prisoner was duly convicted of manslaughter. 2 The deceased, Larry Cox, who was thirty-four years of age, was apparently celebrating Anzac Day with friends at the Auburn Village Tavern in Auburn. He sustained his fatal injuries at or shortly after midnight. A statement of agreed facts concerning the commission of the crime was placed before the Court and from that statement (Exhibit A) I set out the following: "About midnight, the deceased became involved in a verbal argument with Shadi Kouzaiha in the front room area of the Tavern, near the band. The two security staff Paul Langi and Tausinga Langi then confronted Shadi Kouzaiha and physically removed him from the premises. At this time a fight erupted between the Security Staff and a number of other Lebanese persons near the doorway of the Tavern. This incident was recorded on video within the Tavern. A large fight erupted between Security Staff, persons of middle-eastern appearance and other persons from the hotel. The deceased left the inside of the Tavern and become [sic] involved in a fight outside on the footpath area with Shady Kouzaiha. Kouzaiha was seen to punch the deceased in the face. The deceased was seen to throw a punch at Kouzaiha, but missed. The deceased then appeared to stumble and got up again. Shortly after, the prisoner, who was a friend of Kouzaiha, approached the deceased and was seen to be waving a knife in front of him in a jabbing motion. The prisoner then stabbed the deceased in the left side of his chest with the knife. The deceased fell backwards onto the ground. An ambulance was summoned and the deceased was found to be dead on arrival at Auburn Hospital. An autopsy was conducted on the deceased on 26 April 1998. The deceased was found to have a stab wound consistent with being caused by a knife. The stab wound was located 65 millimetres below the left nipple and was 60 millimetres deep. The stab wound entered the lower left side of the parietal pericardium and cut through the lower lateral edge of the right ventricle of the deceased's heart. Further confrontations and disputes continued between persons of middle-eastern appearance, Security Staff and other persons from the Tavern. About 3.30 am, the police stopped a vehicle on Mary Street, Auburn, a short distance from the Tavern. The prisoner was in that vehicle and was spoken to by police. The prisoner was interviewed by Detectives at Flemington Police Station on 5 May, 1998. The prisoner declined to be interviewed any further and declined to participate in an identification parade. The prisoner was arrested and charged with the murder of the deceased on 29 May 1998. On 2 March 1999 Shadi Kouzaiha pleaded guilty to affray at the Burwood Local Court. He was placed on a recognisance for three years and fined $600." 3 The above statement of facts was tendered on 21 September 1999. Counsel confirmed when the prisoner came before the Court on 8 December 1999 for evidence and submissions on sentence that the above statement of facts was an agreed statement. However the Crown tendered a number of statements from police officers and witnesses to supplement that agreed statement and Mr O'Loughlin called the prisoner. 4 There was, in the material tendered by the Crown, evidence that may have indicated that the prisoner was with Shadi Kouzaiha inside the tavern when the confrontation occurred inside with the security officers but the Crown made it clear that the Crown did not assert for sentencing purposes that the prisoner was inside the hotel. I was asked to approach my task upon the basis that the prisoner became involved in events after Shadi Kouzaiha had been taken outside by the security staff. 5 The prisoner gave evidence on sentence which I now summarise. The prisoner said he had gone to the tavern with friends but had not been allowed to enter the building because he had no identification to prove he was over eighteen years of age. He said that he remained outside whilst his friends were inside and this was for a period of three to three and a half hours. He claimed that one of his friends gave him five Rohypnol tablets and that he remembered that he had three of them. He was uncertain whether he had all five. 6 Whilst he was waiting in his friend's car he found an orange and a pocket knife, and he said he left the car, taking the orange and the knife with him. He had the orange and put the pocket knife in his pocket. He said that he saw somebody being dragged out of the hotel. He did not know at first that this was his friend Shadi Kouzaiha but he said that his friend was being "bashed" by three people he described as "bouncers". 7 The prisoner moved towards this group and he said that he saw another person come out of the hotel and stumble. This person proved to be the deceased. According to the prisoner, having stumbled, the deceased stood up, holding a piece of concrete or rock in his hand. According to the prisoner the deceased came towards him and, indeed, the prisoner said that he was hit on the chin by the concrete or rock which the deceased was holding. The prisoner drew the knife and stabbed the deceased with it. The prisoner said he then threw the knife away but he does not remember where. No pocket knife such as the prisoner described appears to have been discovered. There is in the material tendered evidence that a particular knife was found in the roof gutter of the hotel but there is nothing to link that knife, which was not a pocket knife, with the prisoner. 8 I was not impressed with the evidence that the prisoner gave. He was asked about certain firearms offences to which I shall refer again later. The prisoner gave an explanation concerning those earlier offences of having "found" a weapon as he was leaving a snooker hall, which explanation I find implausible. Further, his version of the circumstances in which the deceased sustained his knife wound differed from an account attributed to him by Ms Barrier, the psychologist, when she interviewed the prisoner on 11 November 1999, and generally I found the prisoner's evidence unconvincing. Whilst the prisoner maintained that before he stabbed the deceased he did not notice six young Lebanese men involved in the struggle, which I am satisfied was occurring outside the tavern, the evidence tendered by the Crown establishes their presence at the scene, and I find that these men were involved in the struggle outside the tavern before the prisoner used the knife. Further, although the prisoner asserted in his evidence that the deceased approached him, this does not accord with the agreed statement of facts in which it was stated that it was the prisoner who approached the deceased. 9 Hence I am not persuaded that the prisoner stabbed the deceased precisely in the circumstances as he described them in his evidence. Indeed I have very serious reservations as to his explanation as to how the knife came to be in his pocket, but he maintained his explanation in cross examination. In any event, it seems to me that I should approach my task upon the basis that the stabbing has not been proved to have been premeditated. I have reservations also about the prisoner's assertions that the deceased struck him with a rock or concrete, but ultimately nothing really turns upon this, because the prisoner acknowledged in cross examination that he perceived the deceased to be intoxicated and no threat to his well being. The prisoner admitted that he could have made good his escape and could have avoided any confrontation with the deceased simply by turning away. There was no good reason for the prisoner to have become involved in what was happening outside the hotel in the first place, and there was no excuse for him drawing out a knife, whatever be the reason it was in his possession. 10 In accepting the plea to manslaughter the Crown indicated that it did so upon the basis that the act of the accused causing death was an unlawful and dangerous act. The acceptance of the plea to manslaughter involves an acceptance by the Crown that the prisoner did not act with intent to kill the deceased or to cause him serious bodily harm. I must therefore determine what is a proper sentence upon the basis that the prisoner had no such intent. Rather he is to be sentenced upon the basis following Wilson v The Queen (1991) 174 CLR 313 that he committed an unlawful and dangerous act that from the viewpoint of a reasonable person carried with it an appreciable risk of serious injury. 11 The post mortem examination was conducted by Dr Bradhurst. The cause of death was a stab wound to the chest. There was only the one stab wound and I refer to the post mortem report: "There was a 19 x 7 mm longitudinal stab wound on the lower left anterior chest 105 mm to the left of the midline and 1.24 m from the left heel. This skin entry wound had a 1 to 2 mm wide bevel along its lateral edge. The stab wound was 65 mm below the left nipple. The wound track passed posterior and medially to cause a 15 x 3 mm longitudinal wound in the anterior left thoracic cage in the interspace between the 5th and 6th left ribs and cutting, for a distance of 5 mm, into the cartilaginous part of the 6th rib. The stab track then entered the lower anterior left side of the parietal pericardium and caused a cut through the lower lateral edge of the wall of the right ventricle, this heart wound measuring 15 x 2 mm." 12 The crime of manslaughter attracts a maximum penalty under the Crimes Act of twenty-five years penal servitude and the courts have emphasised that the starting point in determining an appropriate sentence must be to recognise that a human life has been taken. In R v Blacklidge (unreported, NSWCCA, 12 December 1995) Gleeson CJ said at p 4: "…the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402)" 13 The fact that a knife was used in the commission of this offence is a significant feature of the crime. The Court of Criminal Appeal has stressed many times the gravity with which the use of a knife as a weapon is to be regarded: (see, for example, Rothapfel (unreported, NSWCCA, 4 August 1992)). The prisoner knifed an intoxicated man who he perceived as no real threat to his well being. The court's abhorrence of the use of a knife as a weapon and the element of deterrence must be given appropriate recognition in the sentence I impose. 14 Viewed objectively I must regard this as a serious offence. There is, moreover, an aggravating feature, namely that this offence was committed whilst the prisoner was on bail. 15 Although the prisoner is still only a young man twenty years of age he has a previous criminal history. In February 1998 he came before the court charged with two firearms offences to which I made earlier reference. These offences related to possessing a loaded firearm and possessing an unauthorised firearm. On the day he went before the court in February 1998 he was also charged with intimidating a police officer in the execution of his duty. The prisoner was given bail on that date for these three offences and the offence for which he is now to be punished was committed whilst he was on bail. One of the conditions of the bail imposed a curfew on him and the prisoner was supposed to be at home with his parents between the hours of 8.00 pm and 6.00 am. In being outside this tavern the prisoner was defying the curfew condition. 16 I add that the prisoner's criminal history began in May 1996 when he was before the Children's Court charged with robbery. There were other offences recorded on his criminal history before he was charged with the offences for which he first came before the Burwood Local Court in February 1998. However such other offences assume no particular significance in the present context. 17 The prisoner has been in custody continuously since 29 May 1998. On 29 May 1998 the prisoner commenced a fixed term of imprisonment of one month for the offence of intimidating a police officer and he subsequently served a further term of imprisonment of three months and two weeks for the firearms offences previously mentioned. (The magistrate in the Local Court sentenced him to a fixed term of four months on each firearms' charge, with the sentences to be served concurrently, but the District Court reduced these concurrent sentences by two weeks). The result is that the prisoner has been in custody since 29 May 1998 exclusively for the manslaughter offence, other than for a period aggregating four months and two weeks. This must be taken into account in order to arrive at an appropriate sentence. 18 The prisoner is to be given credit for the plea of guilty. I accept that the prisoner pleaded guilty to this crime of manslaughter at the first available opportunity, that is to say upon the first occasion that the Crown indicated a willingness to accept the plea in satisfaction of an indictment that charged him with murder. I am prepared to accept the prisoner's expression of contrition and I accept Mr O'Loughlin's submission that since the prosecution case depended upon identification evidence, a conviction could not have been regarded as certain. Moreover, by his plea, the prisoner has saved considerable time and expense. So it is, with the above considerations in mind, the plea of guilty is to be taken into account in the prisoner's favour. 19 Although it would seem the prisoner comes from a stable family background, he turned his back on this environment and ran away from home at the age of fifteen, adopting the view that his parents were too strict with him. He fell into bad company and became a drug user. He conceded in his evidence before this Court that he has used cannabis, to which he became an addicted daily user, and he has also used cocaine, ecstasy, heroin and, in the month before the offence, anabolic steroids, before trying Rohypnol on the evening he stabbed the deceased. 20 Since he has been in custody the prisoner said he has not been using drugs and a favourable report from a drug and alcohol worker was tendered in the prisoner's case. I am prepared to accept, as the evidence given by the prisoner's mother indicates, that the prisoner has family willing to support him when eventually he is realised from custody. The prisoner has expressed a desire to pursue a career in real estate and his mother has indicated that financial support will be provided for him to pursue this venture. A course of study is available to him through the TAFE Granville College. Mr O'Loughlin tendered a number of references. Three of these come from sources whose appraisal of the prisoner is out of step with his criminal history and his acknowledged drug abuse. I am not assisted by these references. There is, however, a letter from a welfare officer with the New South Wales Lebanese Community, and this person has seen the prisoner since he has been in custody. According to this referee, the prisoner has been helpful to her in her task of counselling Arabic-speaking people in custody. This is to the prisoner's credit. 21 Plainly the prisoner has a long way to go in this regard, but for present purposes I am prepared to approach this case upon the basis that there is some hope that the prisoner can be rehabilitated. He will need an extended period of supervision when he is released to assist in his rehabilitation and to assist him to stay off drugs. He is still a young man and the continuous period during which he has been in prison since May 1998 is his first period in prison. For this combination of reasons I find special circumstances for the purpose of s 5(2) of the Sentencing Act. 22 Mr O'Loughlin tendered a report from Ms Barrier, the psychologist who assessed the prisoner on 11 November 1999. Her assessment was that the prisoner has limited intellectual capacity and that his full scale IQ places him in the lowest five percent of the general population. Ms Barrier concluded her report: "At his level of ability he would [sic] a concrete thinker and it would be more difficult for him than the average person to deal with psychological and emotional issues which require the developmental and utilisation of abstract concepts. His personality test results show him to be someone who whilst maintaining a flimsy bravado, would anxiously seek reassurance from his particular peer group and relate in a generally obsequious and self sacrificing manner. It is likely this young man was flattered to be allowed to be part of an older group and particularly one he saw as unfettered by parental and social obligations. Whilst Bassam began his time in custody exhibiting rebellious acting out behaviour, he has settled. He is undertaking further educational and vocational training, has severed contact with his former associates and is grateful for the ongoing support of his extended family." 23 Mr O'Loughlin asked me to take into account the psychologist's assessment for the purposes of s 5(2) of the Sentencing Act, and I do so. 24 In the course of their submissions counsel have taken me to a number of decisions dealing with sentences imposed for the crime of manslaughter: in Bryant [1999] NSWCCA 181 the Court of Criminal Appeal dismissed an appeal against a sentence of ten years penal servitude with a minimum term of six and half years and an additional term of three and a half years. This was a case of manslaughter by unlawful and dangerous act and I observe was a case where the offender had been convicted by a jury of manslaughter after being tried for murder. Hence there was no element in that case of credit to be given for a plea of guilty. In the judgment of the Chief Justice, with whom the other members of the court agreed, his Honour said (at para 23): "On the basis of the material before the court it appears that the sentence imposed in this case is at the top of the range in sentences for this offence." 25 In Lewis [1999] NSWSC 131, the head sentence was nine years penal servitude with a minimum term of six years and an additional term of three years; in Papandrea [1999] NSWSC 978 the head sentence was nine years penal servitude with a minimum term of six years and an additional term of three years; in Owen (unreported, NSWCCA, 5 June 1997) the appeal against a total sentence of eight a half years penal servitude with a minimum term of four and a half years was dismissed; in Horton [1999] NSWSC 983 the head sentence was eight years penal servitude with a minimum term of five years; in Taouk (unreported, NSWCCA, 20 March 1992) the sentencing judge considered appropriate a head sentence of seven years with a minimum term of five years. The Court of Criminal Appeal declined to disturb the head sentence but lowered the minimum term. In Wright [1999] NSWSC 1087 the head sentence was seven years penal servitude with a minimum term of four years. In Azar 56 A Crim 414 the Court of Criminal Appeal dismissed an appeal against sentence where the head sentence was six years with a minimum term of four and half years. In Khouzami [1999] NSWSC 979 the sentence was one of five years penal servitude with a minimum term of three years. In Robson [1999] NSWSC 855 the head sentence was five years penal servitude with a minimum term of three years. In Lam (unreported, NSWCCA, 20 March 1998) the head sentence was one of five years with a minimum term of three years. In Sofokleous (unreported, NSWCCA, 13 December 1993) an appeal was dismissed against a head sentence of four years penal servitude with a minimum term of three years. I observe though that in his judgment in this case, with which the other members of the court agreed, Kirby P described the sentence as "an extremely light sentence". In Grenenger [1999] NSWSC 380 the head sentence was one of three years with a minimum term of one a half years. 26 I have considered each of the above cases. It would not be useful to record the objective and subjective features of them here. They vary greatly in their individual circumstances as the range of sentences indicates. Ultimately I am not greatly assisted by sentences imposed on other offenders where the crime of manslaughter has been committed. So much depends upon the particular features of the particular case, as has frequently been emphasised at first instance and on appeal by judges of this court. For instance, in Blacklidge (supra) Gleeson CJ said at p 4: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." 27 Nevertheless, whilst recognising what was said in Blacklidge I cannot ignore the indications of a range, albeit so wide, as pointed to by those cases to which I have made specific reference. 28 I must closely consider the objective and the subjective features of this case in order to fix a sentence appropriate to this crime. 29 The Crown tendered a Victim Impact Statement from the deceased's former wife, describing the way in which this victim and the children of her union with the deceased have suffered by reason of the untimely death of the deceased. That statement has been received pursuant to s 23C of the Criminal Procedure Act. In R v Previtera (1998) 94 A Crim R 76 it was determined that it is not appropriate to take account of the subject matter of such a statement in order to arrive at a sentence. However, the statement indicates some of the suffering this killing has caused, and the Court expresses its condolences to those victims identified in the statement. It is to be hoped that the grief these victims have experienced and are no doubt still experiencing will diminish as time goes by. 30 I have concluded that I should set a total sentence of eight years six months penal servitude in this case. Because of the lengthy period the prisoner has already been in prison solely for this crime, I am going to backdate the sentence. I note that after the term served for intimidating a police officer expired there was a period of one month served referable only to this manslaughter offence before the sentences in respect of the firearms' offences commenced. I propose therefore to backdate the sentence to begin on 13 October 1998 which is one month before the prisoner was due to be released for the firearm's offences. Because of the special circumstances I have found, I fix a minimum term of five years six months and an additional term of three years. 31 Accordingly, I sentence the prisoner to a total sentence of eight years six months penal servitude and I set a minimum term of five years six months penal servitude commencing on 13 October 1998 and to expire on 12 April 2004. He will serve an additional term of three years penal servitude to commence on 13 April 2004 and to expire on 12 April 2007. I specify 13 April 2004 as the first date upon which the prisoner is to be eligible for release on parole. **********

R v Chami

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