Regina v Ahmad [2005] NSWSC 911 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: The offender Walid Ahmad was committed to this Court for trial on a number of charges including murder. On 4 July 2004 he pleaded guilty to a charge alleging that on 11 June 2002 at Greenacre he did feloniously slay Mayez Danny. The Crown indicated that the plea of guilty to the offence of manslaughter was based upon the Crown's acceptance of the reasonable possibility that the offender shot the deceased in self-defence although the offender acknowledges by the plea that this act was unreasonable for his own defence in all of the circumstances surrounding the killing. 2 On 23 August 2005 the offender was arraigned on a further indictment containing three charges and pleaded guilty to each count. The first count alleged that on 9 June 2002 he did maliciously inflict grievous bodily harm on Khaled Hammoud. The second count alleged that on 11 June 2002 he maliciously wounded Mohammed Khalifa. These are both offences contrary to s 35(1)(a) of the Crimes Act for which a maximum penalty of 7 years imprisonment is prescribed. The third count alleged that on 11 June 2002 at Greenacre in company with persons unknown he assaulted Khaled El Ahmed and occasioned to him actual bodily harm. This is an offence contrary to s 59(2) of the Crimes Act. It also carries a maximum penalty of imprisonment for 7 years. 3 I note that in written submissions presented to the Court on behalf of the offender it was suggested that the s 35 offences were committed in company under s 35(2) and, therefore, carried maximum penalties in each case of imprisonment for 10 years. However, that element of aggravation was not pleaded in either of the first or second counts on the indictment and I take the offences to be brought under s 35(1) even though the offender was clearly in company in each case. 4 The factual basis upon which the parties ask me to sentence the offender is contained in an agreed statement of facts signed on behalf of the Crown and the offender. The facts can be summarised as follows. All of the offences for which the offender is before the Court and is to be sentenced arose from a course of conduct that commenced with an incident on 9 June 2002. On that day the offender was a security guard employed at a nightclub at Oxford Street. The nightclub was owned by relations of a person known as Hassan Ibrahim. 5 At about 4.30 am that morning Khaled Hammoud, who was a nephew of the deceased, tried to enter the nightclub along with two other persons. They were forbidden entry and, during a dispute that occurred at the time, one of these persons head butted the manager of the nightclub. The manager retaliated by punching this person and knocked him out. This person was conveyed to hospital but the dispute between the persons seeking entry to the nightclub and the staff continued. During the course of this argument the offender punched Hammoud once to the left side of his face knocking him out and breaking his jaw. The assault by the offender upon Hammoud, which the offender later explained as being to "discipline him", gives rise to the charge of maliciously inflict grievous bodily harm on the second indictment. Hammoud suffered a serious injury to his jaw requiring the insertion of wires. 6 The deceased was on a trip to Cooma when he learnt of this assault upon his nephew by the offender. There were telephone calls between the deceased and Ibrahim in which threats were made, including a threat by the deceased that he would close down the nightclub. It was agreed that the dispute between the men would be resolved after the deceased returned to Sydney. There is evidence that the deceased was intending to seek reprisal for the assault upon Hammoud and apparently he was known to carry a firearm with him when in public. 7 There were in Greenacre at the time two motor repair businesses. One called Just Vans was operated by Hammoud and his brother, Abdul. The other was called Automobile Wreckers and was owned by the wife of the offender. These premises were close to one another in Claremont Avenue Greenacre. On the morning of 11 June there was a meeting at the Just Vans premises between the offender and the deceased. It appears that they reached a truce and deferred until a later time the resolution of the differences arising from the assault upon Hammoud. There was evidence that the meeting ended in both the offender and the deceased embracing. 8 However, shortly after the deceased's departure, the brother of Hammoud arrived in Claremont Avenue and verbally abused the offender. The confrontation almost came to blows until bystanders intervened to separate the two men. By this time a large number of men had gathered in the area and were exchanging insults with each other depending upon which faction they happened to support. 9 At about midday Mr Khalifa, a nephew of the deceased and cousin to the Hammoud brothers, was working on a van in the premises of Just Vans. He was summoned to the rear of the van where he met with a group of about 15 men, one of whom was the offender. He questioned Khalifa as to the whereabouts of the Hammoud brothers. At some stage, when his back was turned to the group, Khalifa was struck by a heavy blow to the back of his head and rendered unconscious. As a result of this attack he suffered a blackened left eye and fractures of a number of facial bones. 10 The assault upon this person gave rise to the charge of malicious wounding which is the second count in the second indictment. It is alleged that the offender was involved in a joint enterprise with the group of persons who confronted Khalifa and the offender's plea of guilty acknowledges that, while he was not the person who struck the blow, he was at least a principal in the second degree to the wounding of that victim by encouraging those with him who were, according to the facts, "a group of hostile men adversely disposed to certain Just Van employees". 11 The owner of the van upon which Mr Khalifa had been working at the time of his assault was also confronted by one or more of the group of men and without any provocation was struck to the ground and beaten. He suffered bruising to both eyes, lacerations to his face and a bruised wrist. The assault upon this man gives rise to the third count in the second indictment and again the Crown alleges that the offender was part of a joint criminal enterprise to assault this man and was at least a principal in the second degree to the member or members of the group who assaulted him. 12 At about 1 o'clock the offender rang Ibrahim and complained about the behaviour of Abdul Hammoud, blaming him for in effect disturbing the truce earlier established between himself and the deceased. The call concluded with Ibrahim agreeing to come to the repair shop to meet with the offender. There were arrangements made between various members of the two factions agreeing to meet at the Automobile Wreckers shop. Ibrahim spoke to a person named Hijazi indicating that he should come to the shop and bring the deceased. Hijazi exhorted Ibrahim to calm the situation. 13 At about 1.40 pm there was a heated argument between the deceased and the offender in Claremont Avenue. The deceased entered the premises of Just Vans and saw the two injured men who had been assaulted by the group accompanying the offender. The argument continued when the two men met up again a short time later as the deceased was approaching the Automobile Wreckers premises. The agreed facts contain the following account of what then happened:

Immediately after Hussein had fallen to the ground, [the offender] produced a self-loading .38 calibre pistol from somewhere on his person and fired five rounds at [the deceased]. Five spent .38 cartridges were found at the scene. All were fired from the same gun, which has never been recovered, nor its whereabouts identified to police. [The deceased] was mortally wounded by [the offender's] gunfire and later died in hospital from those injuries. 16 The offender immediately fled from the scene and evaded police until his arrest on 3 December 2002. 17 Dr Duflou carried out an autopsy on the deceased and observed six gunshot wounds to the chest area of the deceased, his left arm and hand. He formed the opinion that the wounds were caused by five gunshots. There were no signs of gunpowder burns, powdering or tattooing on the deceased's wounds indicating that the shots were probably fired a short distance from the deceased. 18 The offender was born in Lebanon and is aged 30. He has one prior conviction in respect of possessing a prohibited drug in 2002 but that is a matter that can be disregarded for present purposes. He is married with 3 children aged 6, 4 and 2 years. I sentenced his wife for an offence of hindering police by providing them with misleading information about the whereabouts of the offender and by otherwise assisting him to avoid apprehension. Other than the offences arising from these incidents, both the offender and his wife have been worthwhile citizens in the community and there are a large number of testimonials as to the offender's good reputation in the community. They speak highly of his work ethic, his loyalty and diligence and suggest that the conduct giving rise to the present offences is out of character. 19 There is a psychiatric report prepared by Dr Nielssen in evidence. The offender has never suffered any serious psychiatric illness or mental disorder. However, he has experienced a number of traumatic incidents arising from the involvement of members of his family in conflicts occurring in Lebanon before the offender migrated to Australia and he suffered some loss of hearing as a result of heavy shelling of the neighbourhood in which he lived. As a result it appears that the offender's intellectual abilities have been diminished. He came to Australia at around the age of 16 years in 1990 and at that time was unable to speak English. Eventually he found a job as a panel beater. Apart from some minor involvement with cocaine, the offender had no problem with alcohol or drugs. 20 The psychiatrist believed that a head injury suffered by the offender in his childhood might have resulted in some impairment of frontal lobe function resulting in diminution of impulse control. He also thought that the exposure to trauma during childhood was likely to have resulted in an increased startle response. The psychiatrist believed that an increased level of arousal in response to gunshots was another factor contributing to the offender's behaviour at the time of the shooting. The psychiatrist assessed the offender as having good prospects of rehabilitation. 21 There was also a psychological report in evidence. Tests indicated that the offender's IQ falls in the bottom 2 per cent of the population. He was found to lie in the borderline range. The psychologist formed the opinion that the offender had difficulty in thought planning and conceptualising issues resulting in a diminished capacity to fully think through problem situations free from emotional bias, particularly in times of emotional duress. The psychologist thought this would indicate that the offender would tend to act on the spur of the moment without thinking fully through the consequence of his behaviour. 22 Mr Barker QC, who appears with Mr Coroneos, for the offender, submitted that the pleas of guilty were made at the earliest reasonable opportunity and warrant a discount in the range of 25 per cent notwithstanding that they did not emerge until almost 3 years after the offender had been arrested. The Crown Prosecutor supported this submission. He stated that up until the time he was briefed in the matter, the clear view of those then prosecuting the offender was that no charge less than murder would be accepted in respect of the shooting of the deceased. However, very shortly after he became involved in this matter in April of this year junior counsel for the offender indicated that his client might be willing to plead to manslaughter. The Crown Prosecutor decided to charge the offender with manslaughter because of what he perceived to be the difficulty in the Crown negativing self-defence. 23 However that may be, I do not accept that a plea of guilty arising so long into the prosecution of this matter justifies the maximum discount. It was always open for the offender to indicate that he was prepared to plead guilty to manslaughter on the basis of excessive self-defence even in committal proceedings and it is difficult to see how he could have avoided a verdict of manslaughter even if the matter had proceeded to trial. The fact that the Crown might not have accepted the proffered plea is not to the point. Until relatively recently the offender has done nothing to indicate that he was willing to facilitate the administration of justice and, notwithstanding that his plea has avoided a relatively lengthy trial, its utilitarian value is not of the order justifying the maximum discount: see R v Dibb [2003] NSWCCA 117. With respect I do not accept that the Crown concession was a proper one. I believe that an appropriate discount is one of 15% for each of the pleas of guilty. 24 As I have already indicated it is clear from the number of shots fired by the offender and the locations where the deceased was struck by the bullets that the offender acted with intent to kill. True it is that, before the offender shot him, the deceased had already shot and wounded the person who was trying to restrain him from acting violently against the offender. But at the time the shots were fired it seems that the deceased was disarmed by the weapon falling to the ground and spilling its rounds. I take the plea of excessive self-defence to acknowledge that, before the offender fired at the deceased, he was aware that the deceased was unarmed, otherwise it is hard to see how the self-defence would be excessive if the offender believed that the deceased would be able to fire the weapon at him. Further, the shooting has to be seen in the context of the offender's involvement in serious criminal acts of violence against other members of the Lebanese community as part of a dispute arising between factions in that community and immediately prior to his confrontation with the deceased. 25 This type of conduct, particularly when it involves the use of weapons, is a scandalous breach of the peace of the community and has no part in civilised society in any country let alone in suburban Sydney. When people come to this country fleeing civil unrest or warfare in some other country, they come here to live as law-abiding members of this community and abide by the standards that this society requires of its citizens. I am prepared to accept that there are aspects of the offender's personality that might indicate impulsiveness in his reaction to the danger he believed that the deceased posed to him and to the shooting of his uncle. But as I have indicated, the shooting of the deceased cannot be viewed in isolation but as part of a violent conflict that was developing between factions of this section of the community. Although I know little about the offender's possession of the weapon, I assume he at least became armed with it prior to the second confrontation with the deceased as according to the facts he produced the weapon from his person before firing it. 26 Notwithstanding the difficulties that the offender suffered in his youth in Lebanon and the material in the psychiatric and psychological report, it is appropriate to visit upon the offender a condign sentence denouncing this type of conduct and reflecting general deterrence to a very significant degree so as to send the message to others in this society that this type of criminally violent behaviour within community groups will not be tolerated for whatever reason, and particularly when it involves the use of firearms. There is nothing in my view in the material contained in the reports placed before me that could possibly excuse or even explain this conduct. The offender, in an atmosphere of developing violence for which his faction was clearly responsible, was involved in a confrontation with a person he knew to be able to resort to violence, and I have no doubt the offender was prepared to respond in kind if necessary. Simply put the offender was shortly before the killing involved with a group of thugs seeking to establish their importance in the community by acts of violence against members of their rival faction and who were spoiling for a showdown as the tension increased. 27 The Crown Prosecutor was prepared to concede that the appropriate non-parole period in respect of the offences committed by the offender should be 4 to 5 years. Presumably this was on the basis of his concession that the offender should receive a discount of 25 per cent. I do not understand whether this concession is based upon a finding that there are special circumstances or not. Quite frankly I do not understand why the Crown should be making such a concession in respect of a charge of manslaughter where it is difficult to determine the appropriate range of sentences for any given factual situation and in a case of multiple offences where there is a real question as to the assessment of the overall criminality. I made it clear to Mr Barker that I did not consider myself bound in any way by that concession and he accepted that this was so. The cases to which I was referred during the course of submissions did not indicate to me that the concession of the Crown was an obviously appropriate one to make. 28 But in any event I have simply approached the task in accordance with normal sentencing principles and determined for myself what I believe the overall head sentence and non-parole period should be, based upon my finding of whether there are special circumstances and what effect that finding should have upon the minimum period of custody that the offender is to serve. Having differed from the Crown's concession to a marked degree, I have taken that fact into account but I am not persuaded that the sentence I intend to impose is outside the appropriate range although I concede it is a high one. 29 Because the offences were committed prior to 1 February 2003 the now repealed s 44 of the Crimes (Sentencing Procedure) Act applies. There are in respect of each of the offences the mitigating factors listed in s 21A(3) encompassed by his prior good character, lack of relevant record, and his remorse. His prospects of rehabilitation and the likelihood of re-offending depend largely upon his further relationships with persons within the community. If the factional strife flares up again, there is a possibility that he will re-offend if he chooses to become involved in it. It is not irrelevant that the factions seemed to revolve around the two car-repair businesses, one of which is owned by his wife. However, I am prepared to sentence the offender on the basis that given the time that has passed there is little likelihood of the strife leading up to the shooting still continuing and that he will avoid again becoming violently involved in factional strife in the community if it arises again. Therefore, his prospects of rehabilitation are probably good. It may be that, if necessary, he will be able to benefit from some form of treatment as suggested by the psychologist. 30 The first offence for which the offender is to be sentenced is the malicious infliction of grievous bodily harm on 9 June. That was an offence that was provoked but was an intentional striking of the victim in order to discipline him. This is the most serious of the offences on the second indictment because of the injury inflicted. It was the incident that gave rise to the series of events that resulted in the shooting of the deceased. There are no aggravating features listed under s 21A(2) present. I make it clear that I have not taken into account that the offence was in company because it is an element of a more serious offence. 31 The other offences on the second indictment are of no great seriousness in themselves although they are unprovoked acts of gratuitous violence. But they are part of a course of conduct leading up to the shooting and set the atmosphere for the confrontation between the offender and the deceased. It was inevitable because of those offences that there would be further and escalating violence between the two factions and, in particular, the offender and the deceased. Again there is none of the aggravating factors present in s 21A(2) that should impact on the sentence that are not elements of the offences charged or an element of a more serious offence. The applicant was not the person who struck the blows in either case but he was part of the violent group who were largely acting in his cause. They were at the premises of Just Vans so that the offender could find out where Hammoud's brother had gone. 32 The manslaughter is in my opinion a serious example of the offence notwithstanding the threat of violence exhibited by the deceased. As I have already indicated, the offender himself was taking an active and, I believe, leading role in the escalation of animosity and violence leading up to the shooting. The plea of guilty to manslaughter accepts that there was no immediate danger to the offender at the time of the killing justifying the repeated shooting of the deceased although I accept that his over-reaction was in part due to the matters referred to in the reports before me. But I have no doubt that it was also to a greater extent the result simply of the aggressive attitude of the offender and those supporting him to the deceased and those associated with him leading up to their final confrontation. It would clearly have been foreseen that there was a real risk that the deceased would draw his weapon and I believe that the offender had prepared himself for that contingency. 33 The offence is one that carries a maximum penalty of imprisonment for 25 years. Because the offence embraces a range of conduct that happens to result in the death of a person, it is difficult to discern an appropriate range to apply to any particular case. It is not particularly helpful to try to categorise the type of manslaughter to obtain some guidance as to what the sentence might be. However, the sentence imposed in this case must reflect the fact that the offence involved the unlawful taking of human life and must recognise that the offender acted with an intention to kill. There was only one aggravating feature in the commission of the offence being the use of the firearm, but that is one of grave seriousness. As I have already noted, there must be a significant degree of general deterrence because of the use of a firearm and because the shooting occurred in circumstances of escalating violence between factions in the community in which the offender had a very significant role. The non-parole period must reflect that fact and denounce such conduct. 34 I have been referred to a number of decisions of this Court concerned with sentencing for manslaughter as a result of excessive self-defence. As Mr Barker appropriately noted, they offer only limited assistance because of the differing circumstances of the offences. However, I have had particular regard to the decisions of the Court of Criminal Appeal in Cioban v R [2003] NSWCCA 304 and R v Trevenna [2004] NSWCCA 43. I consider that the present offence is considerably more serious objectively than the offences considered in either of those two cases because of the circumstances in which the shooting occurred. 35 In Cioban only one shot was fired after the offender had retreated and was pursued by his attacker. The shot was fired with reckless indifference to human life when the offender was actually being attacked by a younger, fitter man although he was unarmed. The Court allowed the appeal and sentenced the appellant to imprisonment for 6 years 6 months with a non-parole period of 4 years. That was a sentence imposed after trial. 36 In Travenna a sentence of 7 years 6 months with a non-parole period of 4 years 6 months was imposed upon an offender who shot her husband after a fight during which the deceased had attempted to strangle her and threatened her with a cricket bat. The offender had obtained the firearm from under a bed during the course of the attack. The sentence was imposed after a late plea of guilty. 37 I have reviewed the other cases provided to me but they have little relevance because of their varying facts. They certainly do not provide some sort of tariff for manslaughter by excessive self-defence, nor do they suggest that the concession made by the Crown was justified or appropriate. 38 I have been referred to the factors identified by Santow JA in Travenna and taken them into account insofar as they indicate the seriousness of any particular offence although the weight to be given to such factors will depend upon the particular case. There were other factors in the present case to which I have referred that show the present offence to be a serious one. 39 There has been a delay in sentencing of a little over three years. I take into account that the offender has over that period been in some uncertainty as to his fate and was for much of that time facing a charge of murder. This is not a case, however, of sentencing for a stale crime. Had there not been this delay the sentence would have been longer. 40 For the offence of maliciously inflicting grievous bodily harm I intend to impose upon the offender a fixed term sentence by reason of the severity of sentence for the offence of manslaughter. It will be the equivalent of the non-parole period I would have imposed for that offence calculated by taking into account a head sentence after discount of about 2 years 6 months. 41 For the offences in the second and third counts on the second indictment the offender will for the same reason be sentenced to fixed terms again being the equivalent of the non-parole period that I would have imposed on sentences of about 15 months. They will be concurrent with each other and with the sentence for the offence of manslaughter. That is because I see them as substantially part of the events leading to the manslaughter offence, occurring as they did on the same day and being part of the reason for the violent confrontation between the offender and the deceased. However, these sentences will be cumulative upon the first offence on the second indictment because I believe that to be a separate and distinct act of criminality even though it led to the events giving rise to the other offences. 42 I find that there are special circumstances by reason of the material contained in the psychological report. But there can only be a minor adjustment of the ratio between the head sentence and the non-parole period because of the need of the latter to reflect the seriousness of the offence and the importance of general deterrence. I do not believe that there is any need for a lengthy period on parole because, as I have indicated, there is little likelihood of re-offending unless the offender becomes involved again in factional strife within the community in which he lives. He will either have learned his lesson from these offences or not and there is little need for extensive supervision. The minimum period is in my opinion the very least that could be imposed. At one point I was minded not to find special circumstances given the length of the parole period that would arise from an application of the statutory ratio between the head sentence and the non-parole period but I did so to some degree in recognition of the disappointment that the offender might feel due to the Crown's concession not being adopted by the Court. 43 In respect of the offence of maliciously inflict grievous bodily harm the offender is sentenced to imprisonment for 15 months. That sentence commenced on 3 December 2002 and expired on 2 March 2004. 44 In respect of the offences on the second and third counts on the indictment the offender is sentenced to imprisonment for 9 months. Those sentences commenced on 3 December 2003 and expired on 2 September 2004. 45 In respect of the offence of manslaughter the offender is sentenced to imprisonment for 9 years 4 months to date from 3 December 2003. There is to be a non-parole period of 6 years to date from 3 December 2003 and to expire on 2 December 2009 the date upon which the offender is eligible to be released to parole. 46 This is in effect an overall sentence of 10 years 4 months with a non-parole period of 7 years. **********

Regina v Ahmad

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Judgment (12 paragraphs)

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