The offender, Youssef Elsamad, was tried before me and a jury for the murder of Mohammed Salihy at Merrylands on 19 January 2018. He was alleged to have used a shotgun to shoot Mr Salihy. At the outset of the trial he pleaded not guilty to murder but guilty of manslaughter, but the Crown prosecutor did not accept that plea in discharge of the indictment. The trial proceeded and, in the event, he was found guilty of manslaughter. Manslaughter had been left to the jury on two bases: a killing either in excessive self defence or by an unlawful and dangerous act. The basis upon which he should be sentenced is a matter of dispute between the parties.
[2]
Facts
I have a detailed statement of facts, much of them agreed, which I shall summarise. There is agreement as to the circumstances leading up to the killing and the conduct of the offender after it, but not as to the manner of the killing itself.
The deceased, Mohammed Salihy, was 22 years old at the time of the offence. The offender was 19. He was living with his parents and two younger sisters in a home unit in Eddy Street, Merrylands. He had known Mr Salihy for some years, they having attended high school together. They had a mutual associate, Mustafa El Jawad, whom the offender had also known for some years.
R v Elsamad [2020] NSWSC 1372 | Case summary | Zoe
The offence occurred in the evening of 19 January 2018. In the early afternoon of that day the offender went with his family to Merrylands Mall. While walking in the street in that area he was confronted by Mr Salihy and Mr El Jawad. They were travelling in a van, driven by Mr Salihy, which pulled up near the offender. The two men got out of the van, shouting at the offender, and assaulted him. In an interview with police in June 2018, in the course of describing this incident, the offender suggested that they had tried to run him over in the van. This gains some support from the evidence of a witness, Ms Garvan, who said that it seemed like the van was chasing him, that it was speeding, and that it was parked "aggressively" on the footpath, virtually cutting off the offender.
The reason for the assault is obscure and need not be determined for present purposes.
In the mid afternoon, after the offender had returned home with his family, he was visited by Mr Salihy. It was his evidence that Mr Salihy spoke to him about some money owed for a quantity of cannabis which he had stolen from Mr Salihy about two weeks earlier. The offender asked for a couple of days to attend to the matter and Mr Salihy left. According to the offender, the meeting was cordial.
In the early evening, after 8.00pm, the offender spent some time with a group of young people, some of them friends of his, in a garage attached to one of the other units in the block where he lived. They were chatting and smoking cannabis.
A little after 10.00pm, Mr Salihy drove the van into a car parking spot near the garage. Mr El Jawad was with him. It seems that at this point the offender was not in the garage but was nearby. Mr Salihy approached the garage and said to one of the offender's friends, "Do you know what's going on, where the fuck is Youssef [the offender]?" The friend said that he did not know what was going on. Mr Salihy told the group to come out of the garage and they did so. He was yelling and screaming, and soon afterwards the offender walked towards them. The two of them argued. The offender said, "I'm just going inside to see my mum". Mr Salihy said, "Oh yeah, ya dog, you're going to go inside and get something". The offender replied, "I'm just going to go in to speak to my mum. That's it".
The offender walked back to his unit. There he retrieved a loaded shotgun from his room, and a couple of minutes later he walked back out towards Mr Salihy. His mother walked out behind him. He was carrying the shotgun pointed towards Mr Salihy.
The offender and Mr Salihy yelled at each other. The offender's mother said, "What the fuck is going on? What is this?" There was more screaming and yelling and the offender said, "What did you say about my mum?" At this stage the offender and Mr Salihy were about a metre apart. The shotgun was pointed at Mr Salihy's chest area. It discharged, causing him fatal injuries.
It is at this point that the parties are in dispute. The Crown case is that the offender approached Mr Salihy, and at close range deliberately shot him in the chest. The defence case is that the offender did not know that the shotgun was loaded but, once he was close to Mr Salihy, Mr Salihy grabbed the weapon and pulled it towards himself, and it discharged without the offender having deliberately pulled the trigger. To this issue I shall return.
After the shooting the offender and his mother ran back to the unit. The offender then ran from the unit area, through an adjoining property and onto a street, where he disposed of the weapon. He then ran back to the units and hid in the rear yard of a neighbouring unit. Police arrived at the scene at about 10.15pm, and at about 11.00pm they discovered him in that yard.
He falsely claimed to police that Mr Salihy had been shot by an unknown man. The effect of what he said was that this man ran into the area where he and the others had been, pulled out a gun "like a Glock or something", shot Mr Sahily and ran away.
In an interview with police in the morning of the following day, 20 January 2018, he maintained this account. In answer to questions he provided further detail of what was said to have occurred. Among other things, he described the clothing the man was said to have been wearing, including a "skeleton face mask", and an observation that the man "looked chubby". He added that he thought that this man actually meant to shoot him, which is why he left the scene and hid in the neighbour's yard.
He also claimed that everything had "always been cool" between him and Mr Salihy and Mr El Jawad. He denied having been in any arguments with either of them in the past or recently. He conveyed that they came to the units on the night in question because of a call he had with one of them on a previous day about catching up. He described having greeted the two of them warmly when they arrived, and said that the tone of their meeting was "friendly".
He abandoned all these falsehoods in evidence at the trial.
He gave evidence that he was affected by a cocktail of drugs at the time of the shooting. He said that, apart from smoking cannabis in the garage, he had used Xanax, ecstasy and methamphetamine. When asked by a police officer at the scene whether he used drugs, he said that he had used "a bit of MDMA…maybe two caps", and was feeling "a bit woozy". In the interview the following morning, he said that he had taken Xanax tablets the previous morning and again in the evening but added that he had a "high tolerance with that shit…."
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The basis of manslaughter
Of the two bases of manslaughter left to the jury, the Crown prosecutor submitted that for the purpose of sentence the appropriate basis is excessive self defence. This would mean that the offender deliberately fired the shotgun, intending to kill Mr Salihy or to cause him really serious bodily injury, but did so in the belief that it was necessary in self defence. Counsel for the offender, Ms Davenport SC, contended that the proper basis is killing by an unlawful and dangerous act, without the intent to kill or to inflict grievous bodily harm. The relevant act would be the presentation of the loaded firearm, which was unlawful and was dangerous in the sense that it exposed Mr Salihy to an appreciable risk of serious injury.
Put shortly, it was the offender's evidence that he went into the unit and got the shotgun because he feared violence at the hands of Mr Salihy, who was behaving aggressively and had been violent towards him earlier that day. He also feared that Mr Salihy might have a knife and was conscious of the history of violence on his part. This included the fact (which is agreed) that about a month previously Mr Salihy had invaded the home of a friend of the offender, Tazeem Khan, and stabbed him. He said that he went to the unit to get away from Mr Salihy, but feared that he might follow him and attack him and, perhaps, members of his family. He said that he came back outside with the gun to scare him.
His evidence continued that he approached Mr Salihy, pointing the gun at him. Mr Salihy threatened him and his family, then lunged at him and grabbed the gun. They "tugged for it" for a few seconds, then the offender's finger slipped and the gun discharged, hitting Mr Salihy in the chest. Again, put shortly, he said that he ran from the scene, disposed of the gun and lied to the police because he was afraid of going to gaol for the rest of his life, he was affected by drugs, and was in "a very bad state".
His evidence was that the shotgun had belonged to a cousin, who was deceased, and had been left in his room for over a year prior to this occasion. He had not examined it and, when he confronted Mr Salihy with it, he did not know whether or not it was loaded. The Crown prosecutor argued that this was improbable, given the length of time the weapon had been in his possession. The Crown prosecutor also noted that he had approached within a very short distance of Mr Salihy when he might have stayed further away in the relatively safe area near the garage, where his associates were.
The Crown prosecutor also highlighted a number of aspects of the offender's evidence under cross-examination, where he gave inconsistent or unsatisfactory answers to questions concerning where he had pointed the gun, how he was holding it and, in particular, where his fingers were in relation to the trigger. Generally, the Crown prosecutor submitted that it was improbable that Mr Salihy would have seized the barrel of the weapon and, as the offender claimed, tried to take it from him.
Mr El Jawad was a witness in the Crown case, but he was uncooperative and the Crown prosecutor was given leave to cross examine him. There was evidence that, in the morning of 20 January 2018, he had told police that he had gone to the units with Mr Salihy, that Mr Salihy told the offender that he wished to speak to him, that the offender said, "I'm sick of this shit" and walked to his unit, that he emerged carrying the shotgun, that Mr Salihy said, "There's no need for that", and that the offender "lifted the gun and pulled the trigger" and Mr Salihy fell to the ground. In evidence Mr El Jawad claimed that he had no recollection of those events or of having said those things to the police. Of course, the jury was given an appropriate warning about his evidence. The Crown prosecutor, while acknowledging the obvious deficiencies of Mr El Jawad's evidence, relied upon what he had told the police.
Finally, the Crown prosecutor relied upon the offender's conduct after the event in fleeing the scene, disposing of the weapon, hiding in a neighbour's yard and persistently lying to the police about what had occurred. All this, he submitted, demonstrated a consciousness of guilt of something more serious than an encounter during which a weapon discharged accidentally.
In response, Ms Davenport noted that, while excessive self defence was an issue raised by the evidence, it was not the offender's case. While he said that he was in fear of Mr Salihy, it was not his evidence that he deliberately shot him with the requisite intent because he believed it was necessary to do so to defend himself.
As to Mr El Jawad's account to the police, she pointed out that his stance at the trial that he had no relevant recollection made it impossible for her to cross examine him about that account and that, in all the circumstances, what he said to police should be viewed with scepticism.
She submitted that the offender's conduct after the incident and his lies to the police did not necessarily convey a consciousness of guilt of deliberately firing the gun. Accepting that the gun had discharged accidentally, she argued, it is understandable that the offender still might have believed he was in serious trouble, and his conduct is readily explained by panic and a lack of judgement fuelled by the ingestion of drugs. She relied upon his account of the drugs he had taken but noted that, in any event, there was no issue that he had been smoking cannabis.
In the circumstances of this case, there may not be a marked difference in culpability between deliberately firing the shotgun in the belief that it was necessary in self defence, on the one hand, and pointing the loaded shotgun at Mr Salihy at close range, on the other. Nevertheless, I have given this dispute careful consideration. Having regard to the evidence and the arguments of counsel, I am not satisfied to the requisite degree that the offender deliberately fired the shotgun with the necessary intent. While his evidence was unsatisfactory in a number of ways identified by the Crown prosecutor, his account of the discharge of the weapon is not inherently improbable.
Mr El Jawad's evidence was plainly unsatisfactory and, in any event, it would be unfair even on sentence to have regard to his account to the police, given Ms Davenport's inability to test it at all through cross-examination: a matter to which I referred in my warning to the jury about the evidence. Finally, there is force in Ms Davenport's submission that the offender's conduct after the shooting is consistent with his version of events, which he might well have thought could have serious repercussions for him. This is all the more so in the light of his criminal history, to which I shall refer shortly.
Accordingly, the proposition that the offender deliberately fired the shotgun is one about which I have a reasonable doubt. He is to be sentenced on the basis of manslaughter by an unlawful and dangerous act.
Nevertheless, this is a serious offence of its kind. As the Crown prosecutor pointed out, the presentation of the shotgun close to Mr Salihy, even accepting that the offender did not know whether or not it was loaded, was clearly very dangerous. The fact that the offence involved the use of a weapon is an aggravating feature under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), although it is a feature of limited significance in a homicide case such as this. Given the other people who were in the area at the time, it could be said to have been committed without regard to public safety: subs (2)(i). As will be seen, the offence is also aggravated by having being committed while the offender was on conditional liberty: subs (2)(j).
[4]
Subjective case
As I have said, the offender was 19 years old at the time of this offence. He is now 22. He has a criminal history which is disturbing, particularly in the light of his age.
The most serious offence is robbery in company, which was committed in the Merrylands area on 2 June 2016. The offender, accompanied by a co-offender, threatened a woman with a knife, while his co-offender seized her handbag. There were various items in the handbag, including some gift cards. The offender and his companion later used those cards to purchase items. The offender was 18 years old at the time.
On 6 October 2017, he appeared on bail in the District Court, having pleaded guilty to the offence in the Local Court. An offence of dishonestly obtaining property by deception, relating to the use of the gift cards, was taken into account on a Form 1. Sides DCJ determined that the appropriate sentence was two years, but decided that a report should be obtained as to his suitability for an intensive corrections order. For that purpose his Honour adjourned the matter to 29 January 2018, and continued his bail. The offender was subject to that bail at the time of the present offence. On the adjourned date, aware that the offender had been charged with murder and was refused bail, his Honour imposed a sentence of 2 years with a non-parole period of 16 months to date from 17 January 2018. That sentence bears upon the commencement date of the sentence which I must impose, a matter to which I shall return.
Putting aside a few minor matters which need not be referred to, there are other offences on the offender's record which are relevant for present purposes. On 19 June 2016 (while on bail for the robbery in company offence, for which he had been arrested two days earlier), the offender was visiting his brother at the South Coast Correctional Centre. There he was found to be in possession of a quantity of buprenorphine. He was charged with possessing a prohibited drug and bringing or introducing a proscribed poison into a place of detention, to which he pleaded guilty in the Local Court.
On 18 November 2016, a search of his car by police revealed a quantity of cannabis and a butterfly knife (as to which he said it had been there since he bought the car and that he used it for work). He was charged with possessing a prohibited drug and being in custody of a knife in a public place, to which he also pleaded guilty in the Local Court. Again, he was 18 years old at the time these offences were committed.
He was dealt with for all these offences on 31 March 2017. For each of the offences of 19 June 2016 at South Coast Correctional Centre he was placed on a bond for 12 months. For the offences of 18 November 2016, he was fined for the offence of custody of a knife but was placed on another bond for 18 months for the drug possession offence. All these bonds were current at the time of the present offence.
Finally, on 11 June 2017, when he was 19, he was apprehended by police when observed to be driving well in excess of the applicable speed limit and while his licence was disqualified. He was again found to be in possession of a small quantity of cannabis. He pleaded guilty to those offences in the Local Court on 21 November 2017. He was fined for driving whilst disqualified, but for the drug offence he was placed on yet another 12 month bond, to which he also was subject at the time of the present offence.
The offender's background is sketched in a report of Dr Sathish Dayalan, forensic psychiatrist, prepared for these proceedings. Dr Dayalan had access to consultation notes of his general practitioner and reports of Mr Sam Borenstein, psychologist, which had been prepared for the proceedings before Judge Sides. The doctor also had the benefit of a conversation with his brother.
The offender was born in Sydney. When he was 4 years old his father died from a drug overdose. His mother remarried, and apparently he had a satisfactory relationship with his step father. He has an elder brother, an elder sister, and two younger half sisters.
He did not do well at school, and left before completing Year 10. His brother described him as a slow learner since childhood. Testing by Mr Borenstein of his intellectual functioning found him to be in the borderline range. Dr Dayalan concluded, on the available information, that he would not regard him as suffering from an intellectual disability but that he demonstrated features which would be expected of someone with below average intelligence.
After leaving school, the offender was employed assisting his cousin, who conducted a tiling business. He was close to his cousin, and appears to have been significantly affected when the cousin was killed in motor cycle accident.
He reported to Dr Dayalan having felt depressed when he was 17 years old, attributing his low mood to the absence of a father figure and the incarceration of his brother. His mood suffered a significant deterioration following the death of his cousin. The brother himself told the doctor that from the age of 13 to 14 he had become "quite withdrawn" and appeared to be "perplexed". The brother noted that this coincided with his commencing to use cannabis.
The offender gave Dr Dayalan a history of cannabis use from the age of 14, developing a daily habit. He first used Xanax and MDMA at the age of 16, and his use of Xanax increased significantly when he turned 18, following his cousin's death. At that age he began to use crystal methamphetamine and, occasionally, cocaine. He had used heroin and buprenorphine while in gaol (and his custodial history records several offences of possessing drugs).
Dr Dayalan noted a record of the offender's general practitioner relating to a consultation in August 2017, where that practitioner observed him to present with "depressive symptoms such as low mood, sleep difficulty, lack of concentration, social isolation, lack of interest and impaired functioning". He had been prescribed Valium. His brother told Dr Dayalan that around the time of this offence the family was concerned about the large amount of illicit drugs he was using.
Dr Dayalan concluded that the offender would be regarded to have suffered from a major depressive disorder, and that his use of substances supported the diagnoses of cannabis, stimulants and benzodiazepine use disorders. On the whole of the material available to him, the doctor thought it likely that the offender at the relevant time was suffering from a depressive disorder, heightened by a sense of being "persecuted due to use of crystal methamphetamine and personality vulnerabilities". He considered that these factors would have impaired what he described as the offender's "subnormal cognitive functioning", so as to affect adversely his ability to consider the consequences of his behaviour and to restrain himself.
Finally, Dr Dayalan noted that while in custody the offender had been engaged in treatment for his depressive disorder to which he had responded "reasonably well", and that his improved mental state would assist him in engaging in a substance rehabilitation program.
Dr Dayalan recorded that during his consultation with the offender he expressed remorse for his crime. However, he gave no evidence himself, nor provided any other evidence, to that effect in the sentence proceedings, and Ms Davenport did not rely upon that aspect of Dr Dayalan's report.
[5]
Victim Impact Statement
I received a victim impact statement from Mr Salihy's mother, Hamida Salihy. It is a moving testament to her grief, and the grief of her husband and three other children, at his violent and untimely death, and the serious and enduring effects this tragedy has had upon all their lives. The statement also reveals that Mr Salihy had an infant daughter.
At the sentence proceedings I expressed my deepest sympathy to Mrs Salihy and the family, and I do so again now. In accordance with the prevailing legislation, I take this statement into account as an aspect of the harm done to the community by this crime. That said, my sentencing task requires me to balance a number of competing factors and I am well aware that nothing this court can do could relieve the pain of this bereaved family.
[6]
Sentence
As I have observed, this offence is a serious one of its kind. There was deliberation in the offender's obtaining the shotgun from the unit, emerging and confronting Mr Salihy with it. On the other hand, I accept that his doing so was impulsive and was influenced by the personal factors noted by Dr Dayalan in his report. Moreover, his action must be understood against the background of Mr Salihy's aggressive behaviour at that time and the assault upon the offender in the early afternoon. I accept that the offender was affected by drugs to some extent but, on the whole of the evidence, I cannot say it was to a marked degree.
As I have noted, the sentence I pass must reflect the fact that the offender was subject to conditional liberty at the time of the offence.
I take into account his age and troubled personal background, particularly the difficulties engendered by his limited intelligence and history of depression which, no doubt, contributed to his drug abuse from his early teenage years. In the light of his criminal history, I must be guarded about his prospects of rehabilitation. However, he is still a young man and I note Dr Dayalan's report of his reasonably favourable response to treatment in custody. His rehabilitation should be fostered by a lengthy period at liberty in the community under supervision and the sanction of parole. To that end I find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period.
A reduction of sentence is warranted in the light of his plea of guilty to manslaughter at the outset of the trial. The Crown prosecutor and Ms Davenport were agreed that this would call for a discount of the order of 15%, which I consider appropriate.
As to the commencement date of the sentence, the offender was arrested for this offence on the night it occurred, 19 January 2018, but regard must be had to the sentence of 2 years with a non-parole period of 16 months imposed by Judge Sides for the robbery in company offence. That non-parole period expired on 16 May 2019. It was common ground between the parties, and again I agree, that to give effect to totality the sentence I impose should commence between those two dates but well after 19 January 2018.
The Crown prosecutor referred to several decisions of the Court of Criminal Appeal in roughly comparable cases of sentence for manslaughter, acknowledging that they could be of limited assistance only in the light of the wide variety of circumstances embraced by that crime. He cited R v Forbes [2005] NSWCCA 377, 160 A Crim R 1, and the table of sentencing decisions referred to in the judgment of Hall J in that case. He referred also to three more recent decisions relating to the use of a firearm: Abbas v R [2014] NSWCCA 188 (unlawful and dangerous act), Smith v R [2015] NSWCCA 193 (excessive self defence) and Magro v R [2020] NSWCCA 25. I do not propose to analyse these decisions, but I have had regard to them.
Taking into account all relevant considerations, objective and subjective, and having regard to totality, I have decided that the appropriate starting point for sentence is imprisonment for 12 years. A reduction of 15% on account of the plea of guilty leads to term (rounded down) of 10 years. Finding special circumstances, but recognising the need to adequately reflect the offender's criminality, the non-parole period is 7 years. The sentence will date from 19 November 2018.
Youssef Elsamad, for the manslaughter of Mohammed Salihy, you are sentenced to a non-parole period of 7 years, commencing on 19 November 2018 and expiring on 18 November 2025, and a balance of term of 3 years, commencing on 19 November 2025 and expiring on 18 November 2028. You will be eligible for release on parole on 19 November 2025.
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Decision last updated: 09 October 2020