The applicants' personal circumstances
28Although the two applicants are brothers, and were brought up together, and were close, the evidence concerning their personal circumstances has some surprising divergences. Some evidence of their personal circumstances was given by their mother. In respect of each applicant, his Honour had available to him a Pre-Sentence Report prepared by an officer of the Probation and Parole Service, and a psychological report prepared by Dr Katie Seidler (a separate report in respect of each applicant). In respect of each applicant there were a number of testimonials and references. In respect of Paul Akkawi there was additional medical evidence, in particular a report of a psycho-pharmacologist and, one of a psychiatrist, Dr Glenys Dore. Neither applicant gave evidence in the sentencing proceedings.
29I will begin with the evidence concerning Mark Akkawi.
Mark Akkawi
30Mark Akkawi is the younger of the two brothers. He was born in October 1986, and was, as mentioned above, 21 years of age at the time of the offences. He has some criminal history, consisting of motor vehicle offences (one of driving recklessly or furiously or at a speed or in a manner dangerous) and one of conspiracy to steal. In respect of this last offence he was, at the time of the present offences, subject to a bail order made under s 11 of the Sentencing Procedure Act (which section permits a lengthier than usual period of adjournment for the purpose of assessment, or demonstration, of rehabilitation).
31On 28 March 2008, after the present offences, but before his arrest, he was dealt with for this offence by way of a s 9 bond to be of good behaviour for 3 years. No other information about this offence was provided.
32Otherwise, evidence of his personal circumstances was given as mentioned above.
33The Probation and Parole officer who signed the Pre-Sentence Report (on 16 October 2009) reported that Mark Akkawi had complied with the conditions of his bail on the conspiracy offence, and had been referred for gambling counselling, with which he had also complied.
34Prior to his arrest, Mark Akkawi was living with his parents and Paul Akkawi. He was attending university, where he was undertaking a Bachelor of Business (Economics and Finance) degree. He gave an account of a family life that was happy and positive. His mother, who also provided information to the Probation and Parole officer, described him as "well-balanced" and "family oriented", but "highly strung" and prone to anxiety.
35He has had no reported problems with alcohol or other drugs, but has had a problem with gambling. He had been referred for counselling. At the time of the preparation of the report, he acknowledged that he continued to gamble occasionally but claimed that he did not do so at a level that caused financial stress. He had had to call on his mother to pay some gambling debts.
36The Probation and Parole officer considered him to be a young man of considerable talent, with potential to make a positive contribution to society. At that time, Mark Akkawi had been in custody for 18 months. An updated report, dated 15 April 2010, when he had been in custody almost two years, confirmed that he had been charged with no internal offences. As a result of internal transfers, he found it difficult to become settled and engage in services provided by the Department of Corrective Services. He had completed an anger management program.
37The psychological report was prepared by Dr Katie Seidler, who assessed Mark Akkawi on 10 November 2009. She took a history of his early life similar to that of the Probation and Parole officer, of a stable and supportive family environment, with no abuse, neglect, financial stringency or social disadvantage.
38Mark Akkawi described a particularly close relationship with his mother, but also was very positive about the dynamics with his father. (The significance of this will become apparent when I come to the personal circumstances of Paul Akkawi.) Although Mark Akkawi reported that he began using alcohol at the age of 15, and sometimes engaged in binge drinking, this was seen by Dr Seidler as "fairly conventional late adolescent and early adult" recreational behaviour. However, Dr Seidler also recorded that he had begun gambling at about 15 years of age and soon became addicted. She considered that his gambling remained an issue to be addressed.
39In addition, Dr Seidler took a history of anxiety dating back to Mark Akkawi's late adolescent or early adult years, anxiety which worsened in the context of the stress associated with problem gambling. He also described mild and transitory symptoms of depressed mood, but this was not seen by Dr Seidler as being at a clinical level.
40Dr Seidler noted that Mark Akkawi had expressed regret for his behaviour, but she considered this to be "generally self-focussed" and that he continued to harbour anger and resentment towards Tzortzis for stealing Paul Akkawi's money. He told Dr Seidler that his offending was motivated by the desire to support his brother.
41Notwithstanding her expressed reservations, Dr Seidler considered Mark Akkawi to be "a young man with positive future potential ...".
42Because of the history of anxiety, Dr Seidler considered that Mark Akkawi would benefit from psychological intervention designed to boost him in developing skills better to understand and manage that condition. She retained concern about his gambling.
43The testimonials were universally positive and expressed surprise at the involvement of Mark Akkawi in these offences.
Paul Akkawi
44Paul Akkawi was born in November 1984 and was 23 years of age at the time of the offences. He also had some criminal history, including three convictions for driving whilst his licence was suspended, one of trespass, one of receiving motor vehicle parts, and one of offensive language.
45The authors of all of the reports in his case recorded a noticeably different family history, or, perhaps more accurately, a noticeably different perception in Paul Akkawi as to the circumstances of his childhood and adolescence from that of his brother. To the author of the Pre-Sentence Report, Paul Akkawi described "a significant lack of parental guidance as a child". He said that his father travelled a lot for work, and had significant gambling issues. As a result of the gambling, in 1994 "the family went bankrupt", and his mother was forced to return to work to provide for the family. This was not mentioned in the histories taken in respect of Mark Akkawi. Paul Akkawi's mother confirmed the absence of the applicant's father from the home during Paul Akkawi's formative years. She described Paul Akkawi as a nervous and "unsettled" child. She reported behavioural problems from a very young age. Although Paul Akkawi reported that his father could be very loving, he also reported that he used physical forms of discipline (something confirmed by his mother), sometimes to a level Paul Akkawi saw as excessive and abusive. When he was 18, Paul Akkawi was sent to Lebanon to live with relatives for a year.
46Paul Akkawi was described as intelligent, sufficiently so to be included in programmes for gifted children. However, he was also disruptive and aggressive, eventually culminating in expulsion from at least one school. In 2007, when he was 22, he completed a bridging programme through which he earned admission to a Media and Communications Course at the University of NSW. He was in the first semester of that course when he was arrested in relation to the present offences.
47The Probation and Parole officer recorded concerns about Paul Akkawi's behaviour from an early age, with anxiety attacks, and a suggestion of Attention Deficit Hyperactivity Disorder. However, out of resistance by Paul Akkawi and his mother to medication, this issue was not pursued. (Further detail will appear in the context of the psychiatric evidence.)
48Paul Akkawi developed a gambling addiction at about age 16. He did not gamble during his year in Lebanon, but resumed on his return to Australia.
49In 2007 Paul Akkawi suffered multiple losses with the deaths, in quick succession, of three grandparents, and his mother's move to Dubai.
50Dr Seidler took a similar history. She found Paul Akkawi to be "a thoughtful, eloquent and reflective person, who has some insight". He described to her a "somewhat different", [from that described by his brother] upbringing repeating his account of his father's absences, his gambling, and the financial losses of 1994. He reported a very close relationship with his mother.
51Paul Akkawi believed that, as a result of his gambling losses, his father suffered from depression for several years, as a result of which he (Paul Akkawi) was forced to take on additional family responsibility.
52He began using alcohol at about 15 years of age; this escalated and he was a heavy consumer of alcohol for a period thereafter.
53He also reported to Dr Seidler a long list of mental health concerns, including:
"constant and debilitating anxiety that has been both distressing and causing functional impairment in a number of domains".
Dr Seidler reported more recent concerns that Paul Akkawi may suffer from bi-polar disorder, with paranoid ideation. She considered that his reported symptoms were most consistent with a mood disorder, but also clearly prominent were features of anxiety and paranoid personality profile.
54Although she administered psychometric tests, she found the results invalid, suggesting an exaggerated and implausible response, which could be attributed either to malingering, or to a disordered and dysfunctional state where he was giving a "cry for help". In the light of his clinical presentation, Dr Seidler favoured the latter explanation.
55As a result of Dr Seidler's comprehensive report, Paul Akkawi was referred to the psychiatrist, Dr Dore. Dr Dore recorded a similar history again, including the gambling, and very heavy alcohol consumption at the age of 18.
56After a telephone consultation with Paul Akkawi's mother, as well as a lengthy interview with Paul Akkawi, Dr Dore provisionally diagnosed bi-polar disorder, with paranoid personality traits. These conditions appear to have existed since childhood.
57In an important finding, Dr Dore said:
"It appears likely he was mentally ill at the time the crimes were committed, with an unstable mood disorder and abnormally high levels of anxiety and agitation. It is my impression that his judgment was impaired by mental illness, and that he acted in a manner that was uncharacteristic for him."