Regina v Diab [2005] NSWCCA 64 | Case summary

1 March 2005 REGINA v KADR DIAB Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Shaw J for the crime of manslaughter for which the prescribed maximum sentence is twenty five years imprisonment. The applicant was sentenced to imprisonment for nine years with a non parole period of six years. In imposing that sentence his Honour took into account pursuant to the Form 1 procedure, offences of affray, possessing a loaded firearm in a public place and possession of an unauthorized firearm. Those three offences took place at Brookvale shortly after 1 am on 23 April 2001. The offence of manslaughter was committed at Hurlstone Park on 26 April 2001 between midnight and 1 am. 2 The victim was a youth aged eighteen years who was shot dead by a juvenile co-offender referred to as MA. The applicant was born on 8 April 1982. MA was born on 30 January 1984. They were accordingly aged nineteen and seventeen when their offences were committed. On the first day of trial MA was arraigned before Shaw J on a charge of murder to which he pleaded guilty. His Honour sentenced MA to imprisonment for thirteen years six months with a non parole period of eight years six months which was varied on Crown appeal to this Court to imprisonment for sixteen years with a non parole period of eleven years: Regina v MA [2004] NSWCCA 92. 3 The applicant was represented by senior counsel at the sentencing proceedings. A different member of the Inner Bar represented him in the appeal. It was acknowledged by the latter that the first ground sought to be advanced involved a proposition which was not put at first instance. I will elaborate upon this when dealing with the grounds. 4 The basic facts of the offence were placed before the sentencing court in a document signed by the Crown Prosecutor, counsel for the applicant and the police officer in charge of investigation. This document read: " Facts On the evening of 25 April 2001 (Anzac Day) the deceased, Jai Graham JAGO, and his friend Andrew Clayton were at Grumpy's Hotel on New Canterbury road, Hurlstone Park. Shortly before midnight the deceased and the victim left "Grumpy's" and walked along New Canterbury Road at Hurlstone Park. Whilst crossing Old Canterbury Road the deceased became involved in a verbal exchange with the offender, Kadr DIAB, and the young person, (MA). At the time the accused was driving a 1963 Toyota Corona, registration number VPX386. This car is owned by the offender DIAB's sister. The offender and the young person stopped their vehicle and confronted the deceased and the victim near the intersection of Old Canterbury Road and Hanks Street. A further verbal exchange between the deceased, offender and young person took place. The deceased become involved in a physical exchange with either the offender or the young person. The young person then shot the deceased, once in the chest, fatally injuring the deceased. The offender was aware of the presence of the firearm, as he purchased it. The offender was not aware that the young person would use the firearm other than to threaten. After the deceased was shot he ran a short distance into Hanks Street, where he collapsed. The offender and young person returned to the vehicle and the offender drove away along Old Canterbury Road. Andrew CLAYTON rendered assistance to the deceased until the arrival of Ambulance and Police. The deceased was dead on arrival at Royal Prince Alfred Hospital. Weapon The young person later disposed of the firearm, this has not been recovered. Vehicle The vehicle of interest has been recovered by police. It is owned by the offender's sister. Flight On the 4th of May, 2001 the offender and the young person left Australia and travelled to Lebanon. The young person remained with the offender's family, residing with him until they both returned to Australia on the 17th of June. Arrest On Wednesday the 24th of April, 2002, the offender was arrested at his place of residence by investigators from Strike Force RESEN and conveyed to Bankstown Police Station. The offender, in consultation with his legal representative, participated in a short electronically recorded interview, during which he declined to answer questions. Plea On Friday 18 July 2003 the offender entered a plea of guilty to manslaughter. The offender, at sentence, would also like matters on a Form 1 taken into account. Form 1 matters - Short facts. On 23 April 2001, two days before the offence occurred, the offender DIAB was involved in an offence at Brookvale. The offender and the young person drove into a garage/service station at Brookvale and an altercation occurred between the young person, the offender and a group of young men. On this occasion the offender DIAB alighted from the motor vehicle and threatened these young men with the same firearm as was used in the murder of Jai Jago. DIAB held the pistol in his hand with his arm extended, pointing the weapon at several of these young men. He then returned to the vehicle and drove off at speed. On the night of the murder, when the two offenders alighted from their vehicle the young person (MA) had possession of the firearm". 5 In recording his findings concerning the applicant his Honour's remarks were couched in terms that the "agreed facts in the case of Diab state" followed by a recitation of the first, second, third, fifth and ninth paragraphs of the document which I have set out. 6 The fourth paragraph was also included in his Honour's remarks but the text was slightly different. His remarks were: "The young person then shot the deceased, once in the chest, fatally injuring the deceased. The offender was aware of the presence of the firearm, the offender paid $1000.00 for the firearm and the young person was present when it was purchased. The offender was also aware that the gun was loaded. The offender was not aware that the young person would use the firearm other than to threaten". 7 His Honour added: "The pre-sentence report indicates that the offender was aware of the presence of the gun in the car on the night of 25 April. He told the author of that report, Mr Brookes, that he tried to persuade MA to leave the gun behind. The report indicates that the offender did not see MA reach for the gun, which was under the seat of the car, before MA alighted from the car to confront the deceased and first saw the gun when it was too late". 8 In dealing with a submission concerning comparative criminality between the co-offenders, his Honour observed: "However, as I understand the extent of the defence submission, I accept that it is possible to characterise the extent of Diab's criminality as less than that of his co-offender. I accept that the offender may not have known that MA had reached for the gun on alighting from the car, though he would have become aware of MA's possession at its presentation. Accordingly, I accept that there was a lesser degree of forethought about the possibility of its use in relation to Diab". 9 At the hearing of the appeal counsel contended that the responsibility of the applicant was encapsulated by the mere seconds between when he was aware of the presence of the pistol in MA's hand when it was presented to the victim and its discharge almost immediately thereafter. This contention is at odds with the way in which the matter was dealt with at first instance, although it should be noted that in making this submission counsel expressly disavowed any intention to traverse the plea of guilty. 10 Both the Crown and the applicant's counsel presented written outlines of submission to the sentencing judge. Part of the Crown submission was in these terms: "The Crown says it is likely that the offender believed when he alighted from the vehicle, that the young person would only use the pistol to threaten and frighten the youths, as he himself had done two days earlier at Brookvale. However, allowing the younger offender to take possession of the pistol to use in such a manner, was not only totally irresponsible, but made the offender implicit in any subsequent crime, if, as it was, the pistol was discharged. In the course of carrying out the agreement to use the firearm to threaten the deceased and his friend, the young person did an act, which was unlawful and dangerous, which in fact caused the death of the deceased, by discharging the firearm, killing the deceased. At this time the offender was present and knowing that the young person was going to threaten the youths with the pistol, and intentionally assisted and, by his presence, encouraged the young person. The offender participated in the joint criminal enterprise". 11 The Crown assertion that the applicant's plea of guilty to manslaughter represented his acknowledgment of criminal responsibility on the stated basis was not a matter of controversy at the sentence hearing. This is not surprising, given what can be inferred from the applicant's statement to Mr Brookes that he "tried to persuade MA to leave the gun behind" which would somewhat qualify what might otherwise be implied from the statement that he did not actually see MA reach for the gun from under the seat. A consideration of the offence now on a new and different basis is not warranted. 12 I turn to the grounds of appeal. It is convenient to deal with grounds 1 and 3 together, namely: "l. The sentencing judge erred in rejecting provocation as a mitigating consideration. 3. The absence of new evidence in the sentencing proceedings caused a miscarriage of justice". 13 As previously indicated, it was not put to the sentencing judge that provocation was a mitigating factor in the applicant's offence. In specific references to provisions in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 the absence of subsection (3)(c) (the offender was provoked by the victim) was notable. It was not suggested that the omission was the result of inadvertence on the part of counsel. 14 In contrast, it was submitted on behalf of MA that the conduct of the victim was provocative towards him. That submission was rejected and his Honour said: "I am not satisfied that I should accept a submission that the offence resulted out of some ' provocation ' by the deceased. That the deceased may have thrown a punch at either offender does not, in my opinion, amount to provocation of any real significance (even if, according to the submissions of the defence, this conduct need not mean legal provocation). The grossly disproportionate response of the offender MA was not the result of any act by the deceased. I make no finding of mitigation under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act, though the other matters relied upon by the offenders will be taken into account". 15 In the appeal it was initially sought to support ground 1 by reference to hearsay statements of the applicant recorded by a psychologist, Mr Smith, who interviewed him on 13 August 2003 which was after he had entered his plea of guilty to manslaughter. The material included a claim or belief that "something" had been thrown at the car in which the offenders were travelling and that, after stopping and confronting the victim and his companion they were abused and "the guy swung a punch at me and missed". 16 In response the Crown reminded that that other claimed evidence of provocation was tendered only in relation to MA. This was correct and, further, as above mentioned, there was no contention at the first instance proceedings that provocation was a relevant mitigating factor so far as the applicant was concerned. Ground 3 was produced as a rejoinder to what was described as the Crown's "highly technical point". I would not endorse that description. The Crown submission accurately represented the actual conduct of the proceedings in the trial court. 17 In support of ground 3, two witness statements by Ms Jane McKenzie and Mr Daniel Pedemont respectively were tendered. A ruling on whether they would be admitted was deferred to the determination of the application for leave to appeal. On that provisional basis, the content of the statements was examined. Ms McKenzie related observations of conduct by persons, identifiable as the victim and his companion, prior to any encounter with the applicant and MA. Her statement, if admitted into evidence, could not support a finding that the applicant's crime was mitigated by provocation. Mr Pedemont's statement does describe some physical altercation but he identified "the one who had just been punched" as the offender with a gun in his hand. This must refer to MA. His continued observation was that first the companion, and later the victim, ran away from the scene of confrontation but the latter hesitated and turned to face MA who "repositioned himself" and then shot him. 18 The applicant's argument was premised solely upon a proposition, as ground 3 states, that absence of this evidence caused a miscarriage of justice. The receipt of additional evidence by this Court follows establishment of circumstances that it be of such significance that the judge may have regarded it as having a significant bearing on his decision; that the significance was not appreciated by the applicant at the time even if he knew of the relevant matter and that he had not then made it known to his legal advisers: R v Goodwin 1990 51 A Crim R 328. 19 It is clear, having regard to the contrast with the claim of provocation by MA, that a decision was made not to advance such a proposition on behalf of the applicant. Putting to one side any question of fulfilment of the Goodwin "tests", where a deliberate decision as to issues to be pursued is made, there is nothing unfair, and there will be no miscarriage, in holding an accused to such a decision, even though it is conceivable (or might be thought by other advisers) that a different decision may have "worked rather better": R v Abou-Chabake [2004] NSWCCA 356; see also Ratten v The Queen 1974 131 CLR 510 @ 517. 20 On any view, it is not perceptible that the absence of the material caused a miscarriage of justice, and I would reject the tender of the statements. I would add that, perusal of the content, especially that of Mr Pedemont, demonstrates an apparently sound appreciation on the part of the applicant's representative at the sentencing hearing of what material may advantage or disadvantage the success of submissions in support of mitigation. 21 I would reject grounds 1 and 3. 22 Ground 2 complains: "The sentence is manifestly excessive". 23 On the scheduled trial date, as I have indicated, MA pleaded guilty to murder and it was on the following day that the applicant pleaded guilty to manslaughter. His Honour determined that each offender would receive an overall discount of 25 percent in assessment of penalty for utilitarian and subjective factors pertaining to the pleas of guilty. It was not argued that this discount was inappropriate. 24 It can therefore be deduced that his Honour's "starting point" for the applicant's sentence was an imposition of twelve years imprisonment. 25 A number of subjective factors operated in the applicant's favour. He was youthful and had no prior conviction. Although some reservation was expressed about the absence of indication that referees were aware of the details of the offence, his Honour accorded "some weight" to descriptions of the applicant as quiet, honest and respectful. The statements to the psychologist indicated "some contrition and remorse". 26 A significant element in the sentence assessment was the need to reflect the seriousness of the offences on the Form 1. In addition to the summary of agreed facts set out above, there was more detail of the offences at Brookvale in the document signed by the applicant. Some detail of the offence of affray was given in these terms: "About 1.05am on 23 April, 2003, the prisoner drove a red Nissan 200 SX coupe into the Caltex Service Station, 750 Pittwater Road, Brookvale. The prisoner became involved in an argument with a male. As a result the prisoner went to his motor car and produced a pistol in his right hand. The prisoner stood up, pointed the pistol at the male and said, 'I'm going to shoot you'. At the time there was about fifteen other persons standing in close proximity to the prisoner and the male. These persons took cover behind parked cars and petrol bowsers. The prisoner cocked the pistol (pulling the top of the pistol to the rear, making a metal clicking sound). The male retreated. The prisoner moving the pistol in the direction of the other people present, said 'Anyone want to come forward and take it'. The prisoner got into his car and drove quickly from the service station. The pistol produced by the prisoner was in working order, which was purchased illegally". 27 No challenge was offered to his Honour's approach which he articulated as follows: "I propose to take these matters into account in line with the judgment of the Chief Justice in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 by taking a graver view of the objective seriousness of the manslaughter of Mr Jago than would ordinarily be the case having regard to the incident mentioned in the Form 1". 28 In relation to these remarks counsel proposed in a written submission: "This may be conceded, but their (the Form 1 matters) significance in this way was limited. They showed that the applicant's involvement in the presentation of a loaded pistol to threaten other persons was not an isolated event. He did it himself two days before". 29 If "limited" is intended to convey that the offences were of diminished seriousness, then the submission should be rejected. The presentation of a loaded weapon carries with it the risk of lethal consequence even if the intention is to do no more than threaten. On the facts, there were some fifteen persons put at risk at Brookvale. The proper use of the Form 1 procedure had a necessary consequence that there would be a significant and not merely nominal enhancement in the assessment of sentence for the substantive offence. 30 It has been observed that appropriate penalties for the crime of manslaughter vary more than in any other serious crime contained within the Crimes Act and little assistance can be derived from other cases: Regina v Elliott unreported, NSWCCA 14 February 1991. Nevertheless manslaughter involves the felonious taking of human life and unlawful homicide, whatever form it takes, has always been recognized as a most serious crime: Regina v Hill 1981 3 A Crim R 397. The circumstances of the present offence involving contemplation of the use of a loaded pistol to frighten unarmed youths with an ultimate fatal consequence to one of them requires assessment of a sentence, into which must also be woven a reflection of markedly similar criminal conduct two days previously, albeit without the fatal element on that occasion. The circumstances measured against the imposition do not demonstrate error in his Honour's exercise of sentencing discretion. I would reject the submission that the sentence was manifestly excessive. 31 I would grant leave to appeal against sentence but dismiss the appeal. 32 BELL J: I agree with Grove J. 33 BUDDIN J: I agree with Grove J.

Regina v Diab

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