R v Kari; R v H; R v Hamid

[2008] NSWSC 993

Supreme Court of NSW|2008-09-23|Before: Hidden J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2008-09-23

Before

Hidden J

Catchwords

CRIMINAL LAW - sentence - manslaughter - accessory after the fact to manslaughter - form 1 matters - entering dwelling house in company with intent to steal

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW - sentence - manslaughter - accessory after the fact to manslaughter - form 1 matters - entering dwelling house in company with intent to steal

Judgment (23 paragraphs)

[1]

CITATION : R v Kari; R v H; R v Hamid [2008] NSWSC 993

[2]

HEARING DATE(S) : Pleas entered 13/06/08 (H); 23/06/08 (Kari); 09/07/08 (Hamid). Hearings on sentence 01/08/08 (Kari); 29/08/08 (H and Hamid)

[3]

(Georgeus Kari) for the offence of manslaughter and taking into account the matter on the Form 1, sentenced to a non-parole period of 4½ years, commencing on 4 August 2005 and expiring on 3 February 2010, and a balance of term of 2½ years, commencing on 4 February 2010 and expiring on 3 August 2012. DECISION : (H) for the offence of manslaughter and taking into account the matter on the Form 1, sentenced to a non-parole period of 3½ years, commencing on 23 December 2007 and expiring on 23 June 2011, and a balance of term of 2½ years commencing on 24 June 2011 and expiring on 24 December 2013. (Jamal Hamid) for the offence of accessory after the fact to manslaughter and taking into account the matter on the Form 1, sentenced to imprisonment for 18 months, commencing on 14 January 2005 and expiring on 13 July 2006 (decline to specify any non-parole period); for the offence of entering a dwelling house in company with intent to steal, sentenced to a non-parole period of 2 years and 3 months, commencing on 14 July 2006 and expiring on 13 October 2008, and a balance of term of 2 years and 3 months, commencing on 14 October 2008 and expiring on 13 January 2011. The overall sentence is imprisonment for 6 years with a non-parole period of 3 years and 9 months.

[12]

Facts 2 I shall deal first with the events surrounding the death of the unfortunate Matthew Hughan, who was only twenty-one years old. In the early hours of 8 May 2003, the three offenders and another man, Ahmed Dib, went to the home at Telopea where the deceased lived with his mother and his sisters. It seems that both Dib and the deceased were drug dealers, and Dib wanted to "shut down" the deceased's business. The expression "shut down" meant to stop a rival drug dealer from trading. The offenders accompanied Dib to help him in this enterprise. Dib had in his possession a police baton which he had stolen from a police vehicle, while in the company of the juvenile offender and another man, some hours earlier. The juvenile had a small pistol, with which he intended to menace the deceased as part of the "shut down". 3 Dib, Kari and the juvenile offender attempted to gain entry to the house by banging on the front door or kicking it. The juvenile handed the pistol to Kari, so that he could kick the door more effectively. That was the first that Kari knew of the pistol, and he was unaware of its condition and operation, including whether it had a safety catch. The deceased opened the door, and there was an argument and a brief struggle. He was assaulted by the juvenile and by Dib, who used the baton. During the struggle, in panic, Kari fired the pistol. He did so by a voluntary act, but without the intention to kill or to cause grievous bodily harm. The deceased was struck in the chest area by a single bullet and collapsed. He died in hospital about 30 minutes later. 4 During this incident Hamid remained on the driveway of the house, a few metres from the front door. After the deceased was shot all four men ran from the house. A friend and neighbour of the deceased, who had heard the shot fired while he was walking home, pursued them. By this time Hamid had the pistol, although how he had come into possession of it is not clear from the material before me. He fired it twice in the direction of their pursuer, without harming him. It was this act which gave rise to the charge of causing danger with a firearm on Hamid's Form 1. 5 The criminal enterprise was the initiative of Dib and, for what significance it might have, the offenders were reluctant participants in it. The basis of the pleas of guilty to manslaughter by Kari and the juvenile offender is that they participated in the venture contemplating the possibility that, in the course of it, some harm falling short of grievous bodily harm might be inflicted upon the deceased. 6 As I have said, Hamid's liability is as an accessory after the fact to manslaughter, that is, providing assistance to the principal offenders to evade justice. His liability is founded, firstly, upon his helping the others to make good their escape after the shooting. After evading their pursuer, they separated. Hamid arranged for them to go to the home of an associate about a kilometre away. He later phoned each of them to ensure that, after leaving that associate's home, they had got away from the area. In the following days, he encouraged them to arrange false identities to leave the country. He went with the juvenile offender to the home of another man, who had driven them to the vicinity of the deceased's house and might have had some knowledge of what had occurred, to ensure that he said nothing to police or anyone else about the shooting. He also supported and encouraged the juvenile offender to get money to leave the country, so as to avoid detection and arrest. 7 On different dates towards the middle of 2003, all three offenders left Australia to travel to Lebanon, although there is no evidence before me that any of them used a false identity to do so. I shall return to that matter when I deal with each of their subjective cases.

[13]

Unrelated Offences 8 The home invasion to which Hamid pleaded guilty, and which Kari asked to be taken into account on a Form 1, took place at a house at Rooty Hill at about 12.15am on 11 December 2002. The victim, Craig Channels, was visiting a friend of his, Ahmed Diab. Both Kari and Hamid knew Channels and they went to the house in the company of two other men. 9 The four of them entered the house and demanded cash and Channels' car, a Mitsubishi Lancer. Kari assaulted Diab and, when he came to his aid, Channels was also assaulted by all four men. He was kicked and punched a number of times before he managed to get outside and hide in the garden of a neighbour's house. Diab also managed to get away after he threatened the men with a cricket bat. The men left without taking the car or any cash. 10 Police and ambulance officers attended the house. Channels was later treated at hospital, where a laceration to his head was sutured and he was treated for a broken nose. He also suffered significant bruising to his body. 11 The robbery in company offence which the juvenile offender asks to be taken into account on a Form 1 was committed in the early hours of 7 May 2003, the day before the manslaughter of Matthew Hughan. The offender and two accomplices drove to the BP Service Station at Silverwater in a car which the accomplices had previously stolen. The offender parked the car near the service station and remained in it while the accomplices entered the service station. The victim was working alone as the cashier. The accomplices took hold of him, told him to be quiet and menaced him by raising their clenched fists near his face. They produced a doona cover, and had the victim hold it open while they filled it with packets of cigarettes from a rack behind the counter. 12 The victim dropped the doona cover and escaped through a rear door into the garage area of the service station. He activated a hold-up alarm. In the meantime the juvenile offender had driven the car to the front door of the service station. The accomplices had about 90 packets of cigarettes in the doona cover. They got into the car and the three of them made their escape.

[15]

Kari 14 Georgeus Kari was born on 14 December 1983. He was eighteen years old at the time of the home invasion offence and nineteen at the time of the manslaughter. He is now twenty-four. He has a criminal history, comprising offences committed between 2001 and 2003. For the most part, they are drug offences, offences of dishonesty and traffic offences. There is nothing approaching the seriousness of the crimes for which he now stands for sentence. However, it should be noted that at the time of the home invasion offence he was on bail in respect of two drug offences. At the time of the manslaughter he was on bail for a drug offence and driving offences, and was on two good behaviour bonds, one of them in association with a suspended control order, for two further drug offences. 15 He travelled to Lebanon early in June 2003, returning to Sydney late in October of that year. All the offences on his criminal history were committed before he left for Lebanon, but some of them were not dealt with until after his return. He was arrested for the home invasion matter on 4 February 2005, and he has remained in custody since then. He was charged with the murder of Matthew Hughan on 18 January 2006. In April 2007 he was sentenced to six months imprisonment for an old offence of assaulting an officer in the execution of his duty. Apart from that period, his time in custody from 4 February 2005 is referable to the matters for which he is to be sentenced. Accordingly, his sentence will date from 4 August 2005. 16 Evidence of his background and personal circumstances is to be found in a psychological report of Ms Jenny Howell and statements of his mother, Ramza Kari and his older sister, Joyce Ajaka. He was born in Sydney, he has three sisters, and he appears to have been raised in a happy and supportive family environment. He left school part way through year 12. He worked in several jobs thereafter, one of them being in a computer technology business conducted by his brother-in-law. However, he was unemployed in May 2003, when the manslaughter was committed. 17 He used marijuana for several years, starting when he was eighteen or nineteen years old, but stopped using the drug in 2004. His criminal history is consistent with a period of drug abuse, but it does not appear to be a factor in the offences with which I am concerned. During 1999 and 2000, his mother had serious health problems and he provided her with considerable assistance. In her statement, Mrs Kari said that she felt this had placed a great deal of pressure on him and may have led to his criminal offending. He began to spend less time at home, and she noticed a general deterioration in his behaviour. His sister described similar observations in her statement, and she also said that she became concerned about the people with whom he was associating. 18 Both Mrs Kari and Mrs Ajaka have maintained contact with him during the lengthy period he has been in custody, and both described him as having matured considerably during that period. He displayed insight into the course his life had been taking through his criminal behaviour. He has undertaken some training in practical skills while in custody. He retains the family's support, and is assured of employment with his brother-in-law upon his release. 19 I am satisfied that he is remorseful about the killing of Matthew Hughan. The day after the incident an associate of his observed him to be pale, shocked and monosyllabic. That associate later described his appearance to police in this way: … George felt, when you see George, when you see his face, … you could tell the guy just seen the devil or something. Like, to shoot a man and die in front of you, that's nothing easy, you know what I mean. … like every time we spoke about it after that he always felt very sad about it.

[17]

H 21 The juvenile offender was born on 23 July 1986. He was only sixteen years old at the time of the robbery in company and the manslaughter, and he is now twenty-two. He has an alarming criminal history for one so young. It comprises a number of offences, some of them very serious, committed between 2001 and 2004. In early 2002 a Children's Court magistrate placed him on probation for two years for assault occasioning actual bodily harm, and he was subject to that order at the time of the offences for which I am to sentence him. 22 There is no need to recite the other entries in his criminal history. It is sufficient to say that they include offences of aggravated robbery and robbery while armed with a dangerous weapon, together with related offences, for which he was sentenced to substantial prison terms. In respect of two of those sentences non-parole periods were set, but they have now expired and he is serving the balance of those terms, which expire on 23 March 2010. I shall consider the commencement date of his sentence later in these reasons. 23 He travelled to Lebanon in mid-May 2003, returning a little over 3 months later. His trip was financed partly from the proceeds of one of the robberies for which he was subsequently sentenced. Generally, the sentences to which I have referred were imposed for offences committed in 2003. While in custody, he was charged with the murder on 24 February 2005 and the robbery in company on 18 July 2007. 24 In his case I have the benefit of a report from the Department of Juvenile Justice and a psychological assessment by Professor Stephen Woods. The offender also gave evidence. He is a member of a large family and his upbringing appears to have been stable and supportive. It seems that neither of his parents nor any of his siblings have been in conflict with the law, and to Professor Woods he described himself as "the odd one". 25 It is, indeed, difficult to understand why his life took the course it did in his early years. His schooling was troubled and marred by disruptive behaviour. It seems that he needed the approval of older boys, whose influence on him was anything but beneficial. His education was interrupted in his mid-teens by his being in custody, and it is not clear what level of schooling he reached. Perhaps not surprisingly, his relationship with his parents was poor, and to Professor Woods he acknowledged that this was the result of his own behaviour. He was introduced to alcohol and marijuana at the age of ten, and through his teenage years his intake of alcohol and use of a variety of drugs escalated. However, in his case also it does not appear that drug abuse had a direct bearing upon the offences with which I am dealing. 26 After his extended period of custody, he presents now as a very different young man. He has repaired his relationship with his parents, and he has their support and the support of his siblings and his extended family. He has undertaken a variety of training courses, and has completed a six month period of counselling to address his offending behaviour. He has enrolled in a violence prevention programme, which will be available to him after he has been sentenced. He will be able to live with his parents upon his release, and is assured of employment in his uncle's home improvement business. It is clear that he, like Kari, has matured markedly in recent years. He displays insight into the futility of his earlier criminal lifestyle, and in evidence he expressed what I consider to be genuine remorse for his involvement in the death of Matthew Hughan.

[18]

Hamid 27 Jamal Hamid was born on 1 November 1983, and was nineteen years old at the time of the offences with which I am dealing. He is now twenty-four. He has one prior conviction for a minor offence of a regulatory nature, which is of no consequence. He is entitled to be treated on the basis that he has no criminal history. He travelled to Lebanon with his grandparents in the middle of May 2003 and did not return to Sydney until early June 2004. The lengthy stay in Lebanon was due partly to the fact that he was required to do some army service while he was there. He was arrested for the murder on 14 January 2005 and has remained in custody since. He was charged with the home invasion offence at the end of that month. 28 He gave evidence, and I also have a psychological assessment of him by Dr John Jacmon and a statement by his brother-in-law, Mr Caleb Strik. He is one of four children, and he also appears to have had a stable upbringing. Nevertheless, in his early years of secondary school he was expelled because of marijuana use. He later undertook an apprenticeship with his brother, who was a licensed plumber. Unfortunately, his brother's business failed for personal reasons, an event which affected the whole family. The offender was distressed at the loss of an opportunity to complete the apprenticeship and to pursue his chosen trade. 29 He sought relief in the use of marijuana and cocaine, and began to keep undesirable company. On more than one occasion in his later teenage years, his parents tried to deal with his problem by having him spend time in the village in Lebanon from which they had come. Notwithstanding their efforts, over the period of about six months between December 2002 and May 2003 he was involved in the offences for which he must now face sentence. In his case also, drug abuse provided the background to his criminal behaviour but does not appear to be directly related to it. The origin of his offences, as best I can assess the evidence, is to be found in poor judgment, in the criminal associations which he had formed and, no doubt, the misguided loyalty which they had engendered. 30 It is clear that he also has matured over the period of almost four years that he has been in custody. He has insight into the deleterious effects of an unfortunate period in his life and he is determined to turn his back on it. He expressed remorse for his involvement in the death of Matthew Hughan to his brother-in-law and to Dr Jacmon, and he repeated it in his unchallenged evidence before me. Upon his release he plans to move to Melbourne, where his sister and brother-in-law live and where his brother-in-law, who has a painting business, can offer him employment.

[19]

Sentencing 31 None of this is to deny the seriousness of these three offenders' crimes. As a result of the events of 8 May 2003, a young life has been taken. Matthew Hughan met his death because of an impulsive act, but an act done in the course of a criminal enterprise in which, clearly, significant violence was contemplated. In the case of Kari and the juvenile offender, their crime of manslaughter is aggravated by the fact that it was committed in company, at the home of the victim, while each of them was subject to conditional liberty of one form or another. Moreover, in sentencing each of them for that crime, I must take into account on a Form 1 an offence which is itself serious. 32 Hamid's culpability in relation to the death of Matthew Hughan, of course, is significantly less than that of his co-offenders. Nevertheless, his offence is a serious one of its kind. This is not the more common case in which the accessory's motive is to prevent a family member or a loved one from being brought to justice. When sentencing him for that offence, I must again take into account on a Form 1 a further offence which is itself serious. He is also to be sentenced for the home invasion offence which, as I have said, is of considerable gravity. 33 The offenders' youth is an important factor. Particularly is this so of the juvenile offender, but Kari and Hamid were barely adults at the relevant time. In determining the appropriate sentence for each of them, the need to foster their rehabilitation looms large. As I have said, I am satisfied that each of them is remorseful for his part in the death of Matthew Hughan and has developed insight into the futility of his criminal offending generally. I think their prospects of rehabilitation are good. Nevertheless, they would all benefit from a period at liberty under supervision and the sanction of parole. In each case there are special circumstances justifying a departure from the statutory ratio between sentence and non-parole period. 34 That said, their crimes are serious and due regard must still be had to considerations of retribution and deterrence. I do not see the juvenile offender's objective culpability for the manslaughter to be different from that of Kari, and senior counsel representing him did not suggest that it was. Nevertheless, there is a significant difference between their ages, such as to call for a greater measure of leniency for the juvenile offender. In so saying, I am mindful that his criminal history is more serious than Kari's. However, he is still serving sentences for two of those previous offences, which were committed during much the same period as those with which I am concerned, and the principle of totality also calls for some moderation of the sentence which I pass. 35 There has been considerable delay in these matters coming to finality. It is not necessary to examine the course of the proceedings in any detail. I was informed from the bar table that the investigation of the killing of Matthew Hughan was complex and, as I have recounted, the three offenders were charged with his murder between 2005 and 2006. On the material before me, it does not appear that their trips to Lebanon contributed in any significant way to this delay. It is also unnecessary to recite the procedural history of the matter before me. It is sufficient to say that a joint trial scheduled for October last year ran aground because of developments over which the offenders had no control. 36 Discussions between their legal representatives and the Crown prosecutor led to their pleas of guilty, which were entered at different times around the middle of this year. I understand that offers by the Crown to accept a plea of guilty to a lesser charge in relation to the killing of Matthew Hughan were accepted reasonably promptly and, no doubt, the offence to which each offender pleaded guilty was seen as a fair reflection of his criminality as it was disclosed by the available evidence. It is also desirable, and to the credit of all concerned, that other charges outstanding against each of them have been able to be dealt with in the same proceedings. These could not be described as early pleas of guilty, but they are of significant utilitarian value and, in my view, should earn a discount of sentence of the order of 15 per cent.

[22]

Hamid 41 The charge of accessory after the fact to manslaughter, to which Hamid pleaded guilty, is rarely encountered. Accessory after the fact to murder is more frequent. It is usually dealt with by moderate custodial sentences. Non-custodial sentences are by no means unheard of, but tend to be confined to cases in which the accessory has strong emotional ties to the principal offender. As I have said, this is not a case of that kind. A full-time custodial sentence is called for. 42 The sentencing of Hamid is somewhat constrained by the fact that he has spent the best part of 3 years and 9 months in pre-sentence custody. Senior counsel representing him submitted that he should have the opportunity for release on parole in the immediate future, and the Crown prosecutor, quite properly, put no argument to the contrary. I shall impose a fixed term of imprisonment for 18 months for the offence of accessory after the fact to manslaughter, taking into account the Form 1 matter. That term recognises the plea of guilty, but I find it unnecessary to quantify the reduction of sentence which it earned. 43 For the home invasion offence, but for the plea of guilty, I would have imposed a sentence of imprisonment for 5½ years. A 15 per cent reduction produces a term, in round figures, of 4½ years. I shall fix a non-parole period of 2 years and 3 months for that offence, and that sentence will be accumulated upon the sentence for the other offence. The overall sentence, then, will be imprisonment for 6 years with a non-parole period of 3 years and 9 months. 44 Jamal Hamid, for the offence of accessory after the fact to manslaughter and taking into account the matter on the Form 1, you are sentenced to imprisonment for 18 months, commencing on 14 January 2005 and expiring on 13 July 2006. I decline to specify a non-parole period for that sentence because of the sentence which I am about to pass. For the offence of entering a dwelling house in company with intent to steal, you are sentenced to a non-parole period of 2 years and 3 months, commencing on 14 July 2006 and expiring on 13 October 2008, and a balance of term of 2 years and 3 months, commencing on 14 October 2008 and expiring on 13 January 2011. 45 I am indebted to the Crown prosecutor for his comprehensive written submissions, which included reference to authority on relevant sentencing principles. I also appreciate his supplying information about a series of manslaughter sentencing cases, while acknowledging that they turned upon their own facts and could never be more than of limited guidance in the exercise of my discretion. I must also express my appreciation of the submissions of counsel for the three offenders in what I have found to be a most difficult sentencing exercise.