Andrew Iskandar v R

THE GROUNDS OF APPEAL 7The applicant relied upon four grounds of appeal. The Crown conceded the error which was relied upon in support of ground 4 and which will necessitate the intervention of this Court in order to backdate the applicant's sentence to its correct commencement date. We have considered the remaining three grounds in the same order in which they were dealt with on the hearing of the application.

Ground 1 - The sentencing judge erred in failing to take into account the applicant's depressive illness in assessing either the degree of moral culpability involved or in moderating the weight to be given to general deterrence.

The medical evidence tendered on sentence 8Two reports were tendered on behalf of the applicant in the sentence proceedings. The first was that of Dr Olav Nielssen, psychiatrist, of 26 January 2012. In setting out the history provided to him at the time of his examination of the applicant, Dr Nielssen stated (inter alia) as follows (at pages 1-2): "When asked about his relationship with his father, Mr Iskandar said that his father was very strict, and that his mother usually backed his father up. He said that he was subjected to severe physical punishments from both parents during his childhood, and had sustained a number of injuries in assaults by his father. He said that he was subject to intrusive examination of his genitals by his mother and to inquiries about his bodily functions. He said that he was scared of his father and said "whenever he screams time stops and my heart beats fast". He also confirmed witnessing violence between his parents, but said that the police and child welfare agencies were never called. Mr Iskandar said that he had witnessed his father become angry in other situations, but could not recall any incidents of actual violence or threatening confrontations that might have led to physical violence, for example, incidents of road rage. When asked about his mental state on the night of Mr Saemin's death, Mr Iskandar said "it was just a normal week". He said that day he attended a lecture for orientation before commencing a Business and Commerce degree. He said that he did not have alcohol at dinner that night and had not taken any kind of drug or medication." 9Under the heading "Psychiatric History" Dr Nielssen stated (inter alia) as follows (at page 2): "Mr Iskandar said that he had counselling after he left school during year eleven, and a psychologist named Mr Wood came to his house. He said that he was "burnt out" and it was "too much of a burden to finish school". Mr Iskandar said that he was not diagnosed with any condition or advised to have any kind of medication or other treatment. Mr Iskandar said that he was referred to a psychiatrist in prison who initiated treatment with an antidepressant medication, whose name he could not remember. He said that it had helped a little bit. In response to questions about symptoms of mental illness, Mr Iskandar said that he had felt as though he wanted to die as a teenager between the ages of fourteen and eighteen because of the pressure placed on him by his parents. He said my Dad didn't give me options...he just said "listen to me". He said he attempted suicide on one occasion by attempting to hang himself in jail, but was stopped from doing so by his cell mate". 10Having diagnosed a depressive illness which was in partial remission, Dr Nielssen, under the heading "Opinion", said (at page 4): "The diagnosis of a depressive illness is made on the basis of Mr Iskandar's account of symptoms of depression, including suicidal ruminations and a suicide attempt by hanging. The disorder was described as being in partial remission, on the basis of his presentation during the recent interview, when he did not appear especially depressed. He reported receiving treatment with an antidepressant medication prescribed by a psychiatrist at Parklea Correctional Centre, which has probably contributed to the remission from symptoms. There was no history of any kind of developmental disorder, learning disorder, any pattern of antisocial conduct, and no history of substance abuse. Mr Iskandar reported feeling depressed during his adolescence because of the pressure applied by his parents and the continued physical abuse, especially by his father. However, he did not report being depressed around the time of the offence or having symptoms of any other psychiatric disorder at that time. Mr Iskandar reported being frightened of his father as a result of the experience of physical abuse during his upbringing and feeling compelled to obey his father's orders. Based on the account provided by Mr Iskandar, it seems likely that he committed the offence in part because he was obliged to his father and afraid of him." 11The second report tendered on behalf of the applicant on sentence was that of Sam Borenstein, clinical psychologist. Part of the history recorded by Mr Borenstein was as follows (commencing at page 2): "I asked Mr Iskandar to describe his childhood. He paused and responded, "not so good". I asked him to elaborate, "a lot of arguments, conflicts, sometimes". Mr Iskandar states there were rare happy occasions "mainly bad times". Mr Iskandar's parents frequently fought, and there were occasions when police were called to the house (as) the result of fighting between his parents. Mr Iskandar states his father was never charged by police with domestic violence offences, 'my mother said she would take an AVO, but she didn't". Mr Iskandar confirmed his parents also beat him physically. Mr Iskandar offered examples of the abuse he suffered at the hands of his parents through childhood and adolescence. Mr Iskandar recalls falling asleep whilst studying, and his mother hit him with a broomstick leaving bruises on his person. Mr Iskandar says this incident occurred when he was aged about 12, and again when he was hit with a wooden mirror. Mr Iskandar states his mother punched him to the head without explanation on one occasion when he was purchasing fish and chips at Campsie for lunch, as he had not had any breakfast on his way to religious classes. Of some concern is the allegation that Mr Iskandar's mother repeatedly checked his genitals, "to see if it was up and hard, to see if it was healthy". Mr Iskandar says he objected to this behaviour which occurred between the age of 10 and 18. Mr Iskandar says his mother would demand he ask her permission to go to the toilet if she was present. Mr Iskandar was not able to offer an explanation for his mother's behaviour. Mr Iskandar states his father was equally threatening. Mr Iskandar was fearful of both parents, more so his father. Mr Iskandar says his father threatened to "smash my head in with a metal pole, and there would be blood all over the floor". Mr Iskandar recalls when aged about 15, his father acting as if he was stabbing Mr Iskandar with a screw driver and laughing. Mr Iskandar states his father was controlling, demanding, and very strict in his demeanour. Mr Iskandar confirmed he has a scar near his right eye from when his father punched him when aged 11. Mr Iskandar states if he disobeyed his father in any way or did not comply with his father's demands, he would be subject to verbal and at times physical abuse. ... At the age of 16, Mr Iskandar says he became suicidal. He tied clothing around his neck with the idea of hanging himself, "I stopped myself". Mr Iskandar made an attempt at hanging himself in Long Bay Correctional Centre since imprisoned, "my cellmate stopped me". Mr Iskandar consulted a psychiatrist in prison and is currently on antidepressant medication, which he named as Lexapro 10 mg per day". 12Mr Borenstein thought that the applicant's mood was depressed at the time of his examination. However, he could find no suggestion of any serious psychiatric disorder such as a psychosis. He considered that the applicant's thoughts were normal and that there was no evidence of perceptual disturbance. 13Under the heading "Opinion" Mr Borenstein acknowledged having read the report of Dr Nielssen before stating (commencing at page 6): "Mr Iskandar was subject to an abusive, dysfunctional family, where he was frequently subject to verbal and physical abuse, and sexual abuse at the hands of his mother. Such a pattern of abuse extended through childhood and adolescence, impacts significantly on psychological development and underpins Mr Iskandar's depressive disorder and propensity towards anxiety. ... Mr Iskandar's account of his relationship with both parents, particularly his father, confirms a pattern of compliance with his father's demands, and it is highly unlikely Mr Iskandar would ever disobey his father. I concur with Dr Nielssen's observation of page 4 of the report dated 26 January 2012, "it seems likely that he committed the offence in part because he was obliged to his father and afraid of him."

The sentence proceedings 14Counsel who appeared for the applicant on sentence made the following submission in relation to the medical evidence (at T17): "Your Honour will note from Dr Nielssen's report that the offender has been suffering depression for some time. He is now receiving treatment, he is on medication, but your Honour in my submission may take into account that factor when your Honour is considering general deterrence. For example, a person suffering from a mental health problem such as depression may not be an appropriate vehicle to use to impose a significant general deterrence factor into the sentence. Where the Crown says that he was not under any mental health problem at the time of committing the offence it appears that the psychiatrist may well take issue with that based on the history of the offender, Andrew Iskandar." 15It was not submitted to his Honour that the medical evidence established a causal link between the applicant's depression and his offending, such that his mental state was relevant to an assessment of his moral culpability.

The findings of the sentencing judge 16Having noted (at [45]-[51]) various inconsistencies in the applicant's accounts to Dr Nielssen and Mr Borenstein, his Honour said: "52. Despite the inconsistencies in the histories I accept the conclusion of Dr Nielssen and Mr Borenstein that Andrew has suffered from a depressive illness for which he is still being treated. Mr Borenstein attributes this largely to the verbal and physical abuse he was subjected to as a child. 53 The significant conclusion to which Dr Nielssen came was that, based on the account provided by Andrew: 'It seems likely that he committed the offence in part because he was obliged to his father and afraid of him.' Mr Borenstein said that he concurred with this observation. 54 The difficulty about this conclusion is that it was not consistent, for the large part, with the evidence that Andrew gave during the trial. Certainly he was in the car with his father at Cromwell Street, Leichhardt, although, on his account of things, that was by a mutual arrangement for a driving lesson, at least up until the time his father commenced driving after dinner. Thereafter the only evidence he gave of doing anything at his father's behest was hitting the Deceased with the hammer after he (Andrew) had voluntarily come to his father's assistance, and ringing Victor Lau to arrange a false alibi. He gave no evidence that his father required him to take part in the killing of the Deceased nor to do other than strike him the one blow with the hammer. He did not suggest in any way to Mr Lau nor Mr Maiava that he had acted at his father's behest when he described to them what had happened. Indeed, what I conclude from their evidence is that he (Andrew) wanted to deal with the Deceased because he could not handle the idea of his mother having an affair with the Deceased. 55 I can accept, however, that his father is likely to have been the moving influence in what was arranged and perpetrated. On all of the psychiatric and psychological evidence his father was a dominant and controlling man, and Andrew was to some extent scared of him, and certainly scared of incurring his displeasure. On the balance of probabilities I find that Andrew followed his father's lead in what was done by reason of the unequal relationship. Nevertheless, I find beyond reasonable doubt that Andrew's own motive in acting as he did coincided with his father's motive. 56 Nothing that appears in the reports of Dr Nielssen and Mr Borenstein justifies the conclusion that they reach. The conclusion is contrary to all of the evidence in the case. I find beyond reasonable doubt that Andrew's involvement in the murder was not as a result of any direction, order or pressure from his father or any feeling of obligation to him. " 17As to general deterrence his Honour said (at [90]-[92]): "90 In assessing its objective seriousness wholly by reference to the nature of the offending, the murder in the present case must be regarded as a serious and brutal one aggravated by the weapons used, the fact that it was committed in company, and the extended period of the assault. 91 If one adds into the synthesis the motive for the murder, its overall seriousness is increased. This murder has been described as an honour killing. So to describe it invests with it a degree of legitimacy that it does not, and can never, have. No society or culture that regards itself as civilised can tolerate to any extent, or make any allowance for, the killing of another person for such an amorphous concept as honour. Further, the whole basis and origin of honour killings is the notion that a woman is the chattel or possession of a man, whether her father, her husband, or some other patriarchal figure. Such a notion has no place in this country. 92 The motive for this murder means that general deterrence assumes some importance in the determination of the sentence."

Submissions of the parties 18Senior counsel for the applicant submitted that having accepted that the applicant suffered from a depressive illness, his Honour had erred in failing to take into account that fact on sentence. That error was said to have arisen in one of two ways. 19Firstly, senior counsel submitted that on the evidence which was before his Honour, it had been open to him to find that there was a causal link between the applicant's diagnosed depressive illness and his offending. It was submitted that his Honour's failure to reach such a finding, and the related failure to have regard to the impact of the applicant's depression upon his moral culpability, amounted to error. In advancing that argument senior counsel acknowledged that no submission had been put to the sentencing judge that the evidence supported such causal link. However, it was submitted that the issue of the applicant's mental state had certainly been raised in a general sense, and that his Honour was therefore required to consider all of the evidence and make such findings as were supported by it. 20It was also acknowledged by senior counsel for the applicant that Dr Nielssen had specifically noted that the applicant did not report being depressed around the time of the offence, and did not report having had symptoms of any other psychiatric disorder at that time. However, senior counsel submitted that those observations were not determinative of the issue of whether there was a causal link between the applicant's depression and his offending. It was submitted that the whole of the medical evidence demonstrated that there was a complex interplay of factors impacting upon the applicant's mental state, and that the reported absence of any symptoms of depression at the time of the offending could be explained by the fact that the applicant had limited (or perhaps no) insight into his condition, or into the factors which gave rise to it. 21The second submission advanced on behalf of the applicant in support of this ground was that even if a conclusion were reached that the evidence did not establish the causal link to which we have referred, the applicant's depressive condition nevertheless remained relevant to considerations of general deterrence (see R v Engert (1995) 84 A Crim R 67). It was submitted that his Honour's failure to take the applicant's mental state into account on that question demonstrated error. 22The Crown submitted that the evidence was not sufficient to establish any causal link between the applicant's depression and his offending, and that accordingly, the issue of the impact of the applicant's mental state upon his moral culpability simply did not arise. In this respect the Crown emphasised the manner in which the case was conducted by counsel for the applicant on sentence, and particularly emphasised the fact that no submission was made to his Honour, in the context of the medical evidence, about matters which might be relevant to an assessment of the applicant's moral culpability. 23The Crown accepted that it was not necessary for the applicant to demonstrate a causal link between his depressive condition and his offending in order to have that condition taken into account on the question of general deterrence. The Crown also accepted that his Honour had not taken into account the applicant's depression on that question. However, the Crown submitted that his Honour's failure to do so did not demonstrate error. In this regard, the Crown pointed to paragraphs [90] - [92] of his Honour's judgment and submitted that the reasons why his Honour concluded that general deterrence remained a relevant consideration were clearly set out.

Consideration and conclusion 24As was acknowledged by senior counsel for the applicant, it was not submitted by counsel who appeared on sentence that the medical evidence supported the existence of a causal link between the applicant's depression and his offending. Generally speaking, a party will be bound by counsel's conduct of proceedings at first instance (see generally Zreika v R [2012] NSWCCA 44 at [79]-[80] per Johnson J (McClellan CJ at CL and Rothman J agreeing). In Beldon v R [2012] NSWCCA 194 Johnson J (McClellan CJ at CL and Hammerschlag J agreeing) said (at [36]): "The approach reflected in Zreika v R at [80]-[81] has been emphasised and applied by this Court, in circumstances where reliance was sought to be placed on appeal upon aspects of an offender's mental disorder which had been expressly eschewed by counsel at first instance: BT v R [2012] NSWCCA 128 at [20]-[26]." 25In any event, we are not satisfied that the evidence before his Honour did support the finding for which the applicant now contends. Dr Nielssen noted that the applicant did not report being depressed at the time of the offending, and that he did not report having had any symptom of any other psychiatric disorder at that time. Mr Borenstein said nothing to the contrary. There was no other evidence before his Honour which touched upon the issue. The submission which was put to his Honour by counsel then appearing for the applicant was one which was completely consistent with the evidence. 26It follows that there was no error arising from his Honour's failure to find that there was a causal link between the applicant's depression and his offending which affected the assessment of moral culpability. 27There remains the question of whether his Honour erred in failing to take into account the applicant's depression on the question of general deterrence. In the course of submissions, senior counsel for the applicant took the Court to a passage from the judgment of Allen J in Engert (supra) where his Honour made a number of observations as to the relevance, to general deterrence, of a mental disorder where that mental disorder did not play a causative role in the offending. His Honour said (at 72): "The Chief Justice has indicated that even in that circumstance the existence of the mental disorder can be relevant to general deterrence. The cases to which the Chief Justice has referred are all cases dealing with mental disorder of some sort, whether it be deficiency in intellect or some psychiatric disorder. However, the general principles of sentencing in relation to taking into account general deterrence are no different, in respect of mental disorder, than they are in respect of any other characteristic of an offender which might make it inappropriate that he receive a full measure of punishment which reflects the need for general deterrence. General deterrence is simply the deterrence of others and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others. It must be emphasised that general deterrence is directed to deterring others. So one must look to the impact upon others. Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others". 28Importantly, in the same case, Gleeson CJ said (at 68): "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender. It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise". 29The decision in Engert was referred to by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 where his Honour made the following observations (at 177; [43]): [177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. [178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]. 30Clearly, an offender's mental illness may be relevant to the question of general deterrence even where that illness was not causally related to the offending. However, for the reasons explained by Gleeson CJ in Engert, it would be erroneous to approach the matter on the basis that once the mental illness of an offender is established, it will automatically follow that general deterrence will assume less importance in determining the appropriate sentence. Whether that is the case will depend upon the entire circumstances of the particular case. 31In the present case, his Honour explained in some detail (at [91]-[92]) why he considered that principles of general deterrence remained a relevant consideration on sentence. The matters he took into account in coming to that view were specific to the present case. They included the applicant's motive. They also included the background to the deceased's murder, and what his Honour saw as the necessity to make it clear that so called honour killings have no place in the community. Those were clearly relevant factors in his Honour's determination. 32In our view, his Honour's approach in these respects did not reflect error. 33This ground is therefore not made out.

Ground 3 - There is erroneous disparity between the sentence of the applicant and the sentence subsequently imposed upon the co-offender, his father. The sentence imposed upon the co-offender 34The sentence imposed by his Honour upon the applicant's father has been noted at [4] above. 35In imposing that sentence, his Honour found (at [51] and following) that the applicant's father was genuinely remorseful. When sentencing the applicant, his Honour had found (at [68]) that there was no evidence that the applicant had demonstrated any remorse. 36Further, when sentencing the applicant's father his Honour (at [60]) applied a discount of 10% to reflect what he viewed as a willingness on the part of the applicant's father to facilitate the course of justice. In this regard his Honour noted that the plea of guilty to manslaughter by the applicant's father, although it was rejected by the Crown, nonetheless had the effect of considerably narrowing the issues at the trial. These considerations were not relevant to the sentence of the applicant. 37Having made those findings in the case of the applicant's father, his Honour said (commencing g at [63]): "63 I sentenced Andrew Iskandar on 16 March 2012 for his part in the murder to a non-parole period of 18 years with an additional term of 7 years. I made a small adjustment for special circumstances because of his age, lack of criminal record and prospects of rehabilitation. 64 The differences of significance between the present Offender and Andrew Iskandar are twofold. First, is what I have found to be the genuine remorse of the present Offender. I found that Andrew Iskandar expressed no remorse. Secondly, the present Offender is to be given a discount for his plea. 65 I gave some consideration to Andrew's youth and in the same way I give some consideration to the present Offender's more advanced years. Partly because of the age of the present Offender, his obvious remorse and the victim-specific nature of the crime, rehabilitation is not an important factor here. Those matters also mean that he is unlikely to be a danger to the general public in the way that those who kill randomly or concomitantly with the commission of property or drug offences are such a danger. 66 As at Andrew's trial the evidence at the present trial suggests the present Offender was the moving influence in what was arranged and perpetrated. The evidence also demonstrated, however, that their culpability in the execution of the crime cannot be differentiated. Both employed savage and brutal force with the weapon each wielded."

Submissions of the parties 38Senior counsel for the applicant emphasised that although there were differentiating subjective features between the two cases, the sentencing judge had nevertheless made a number of important findings, when sentencing the applicant, about the applicant's relationship with his father. Those findings included: (i)that the applicant's father was likely to have been the moving influence in what was arranged and perpetrated (at [55]); and (ii)that the applicant's father was a dominant and controlling man of whom the applicant was, to some extent, scared (at [55]). 39It was submitted that the influence of the applicant's father was reflected in the fact that he had played a more significant role in the deceased's murder. In this regard senior counsel pointed to the fact that the actions of the applicant's father included: (i)following his wife and the deceased on a number of occasions; (ii)organising the rental of the car; (iii)placing weapons in the vehicle; (iv)driving to the vicinity of the deceased's home on the night of the murder; (v)ramming the deceased's car; (vi)alighting from the car and initiating the altercation with the deceased; (vii)chasing the deceased and stabbing him in the back and chest (the latter causing the fatal wound). 40It was submitted that these matters demonstrated that the culpability of the applicant's father was greater than that of the applicant, and that this assumed even greater significance when assessed against the background of the relationship between them. 41For all of these reasons, it was submitted that the applicant had a justifiable sense of grievance having regard to the respective sentences which were imposed. 42In response, the Crown firstly pointed to the fact that the same judge had sentenced both the applicant and his father. The Crown submitted, by reference to various authorities, that it was important to bear in mind that when it came to sentencing the applicant's father, his Honour was obviously fully aware of the facts surrounding the death of the deceased, of the findings he had made in respect of the applicant, and of the sentence which he had imposed upon the applicant. These circumstances, it was submitted, rendered it necessary for this Court to adopt a cautious approach in considering whether the applicant had a justifiable sense of grievance. 43The Crown further submitted that it was evident from his Honour's remarks when sentencing the applicant's father (at [63] - [66]) that he had given close consideration to the issue of parity and had explained why it was that he had chosen to depart from the sentence he had previously imposed upon the applicant. In this regard, the Crown pointed, in particular, to his Honour's specific reference to what he had identified as the two subjective features which served to differentiate the position of the applicant from that of his father. 44The Crown also relied upon his Honour's finding as to the time at which the joint criminal enterprise between the applicant and his father had commenced, and what had occurred thereafter. It was submitted that although the applicant's father had, prior to that time, followed his wife and the deceased, and had also hired the car which was used to drive to the scene of the murder, there was little to differentiate between the culpability of the applicant's father and the applicant once the joint criminal enterprise had been entered into. 45The Crown also pointed to the fact that his Honour had in fact adopted a starting point in the case of the applicant's father which was higher than that adopted in the case of the applicant. The ultimate imposition of a lower sentence in the case of the applicant's father was, the Crown submitted, simply a result of the application of the differentiating factors which his Honour had identified. 46In all of these circumstances, the Crown submitted that no justifiable sense of grievance arose.

Consideration and conclusion 47In Green v R; Quinn v R (2011) 244 CLR 462 the plurality (French CJ, Crennan and Kiefel JJ) observed (at [28], citations omitted): "Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances." 48Their Honours (at 474; [31]) then referred to the judgment of Gibbs CJ in Lowe v R (1984) 154 CLR 606 at 610 where the Chief Justice said: "The reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." 49Their Honours went on to observe (at [31] - [32]): "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive... Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight." 50In sentencing the applicant his Honour made a number of important findings which are relevant to this ground. 51Firstly, his Honour found (at [7]) that the applicant's father had set relevant matters in train at least one week prior to the deceased's murder. Consistent with that finding, his Honour also found (at [55]) that the applicant's father was likely to have been the moving influence in what had taken place, and that the applicant had followed him. 52However, his Honour (at [54]) specifically rejected the proposition that the applicant had committed the offence because he was obliged to his father and was afraid of him. He did so at least partly on the basis that it was not consistent with evidence given by the applicant at his trial. Having heard the entirety of that evidence, his Honour was obviously placed in the best possible position to assess it in the context of the opinions expressed by Dr Nielssen and Mr Borenstein. 53Importantly, his Honour found when sentencing the applicant (at [30]) that the joint criminal enterprise in which the applicant and his father were engaged had commenced no later than when they left home on the night of the murder. As to what had then occurred in terms of the offending, his Honour found that: (i)the applicant and his father each wore a dark hooded jacket (at [13]); (ii)the applicant knew, before travelling to the murder scene with his father, that there were weapons in the car, at least in the form of a knife and a hammer (although the applicant did not put them there) (at [13]); (iii)the applicant and his father intended that those weapons would be used on the deceased (at [13]); (iv)the applicant and his father exited their vehicle after it had rammed that of the deceased (at [15]); (v)upon exiting the vehicle, the applicant was in possession of a hammer and his father was in possession of a knife (at [15]); (vi)both the applicant and his father chased the deceased (at [15]); (vii)having caught up with the deceased, both the applicant and his father kicked him (at [17]); (viii)the applicant bashed the deceased with a hammer in a manner akin to "bashing a piece of meat" whilst his father stood to one side holding a knife which was then used to inflict the fatal wound (at [18]). 54None of those findings were challenged by the applicant on the hearing the present appeal. 55His Honour also accepted the evidence given in the course of the trial by a Mr Maiava, who was called by the Crown to give evidence of a conversation he had with the applicant relating to the deceased's murder. In this regard his Honour said (at [27]): "I am satisfied beyond reasonable doubt that Andrew told Mr Maiava that he and his father planned to kill the Deceased, that they had to wait until they knew when the Deceased arrived home from work, that they went to the vicinity of the Deceased's house on the night in question to await his arrival, that when he arrived home Hazairin drove into the Deceased's car, that the Deceased got out of his car to run away and that both Hazairin and Andrew attacked and killed him, Hazairin with a knife and Andrew with a hammer. I accept that Andrew told Mr Maiava that he did it because his mother was having an affair and he couldn't handle that fact." 56Again, those findings were not challenged by the applicant. 57All of these considerations led his Honour to reach the following conclusion when sentencing the applicant (at [98]): "In light of the facts that I have found, including the repeated blows that were struck by Andrew with the hammer, I do not consider that there was less culpability simply because it was Hazairin's action that ultimately killed the Deceased. That may have been serendipitous". 58There is no doubt that, as his Honour found, the applicant's father had "set matters in train" at least a week prior to the deceased's murder. There is equally no doubt that he hired the car which was used to drive to the murder scene. However, bearing in mind his Honour's findings as to what was done by the applicant and his father after the joint criminal enterprise had been entered into, there was little to differentiate their respective culpability. 59Further, and although it is not possible to determine the precise starting point which his Honour adopted when sentencing the applicant's father, it is evident that it was higher than the sentence which was ultimately imposed upon the applicant. The adoption of a higher starting point was an approach which was consistent with his Honour's conclusion that the applicant's father was the moving influence, and had set things in train. The sentence which was ultimately imposed upon the applicant's father by his Honour reflects the fact that having started at a higher point, his Honour then took into account the two differentiating features which he had identified, namely remorse and a demonstrated willingness to facilitate the course of justice. 60Moreover, it has been observed that whilst differentiation in culpability amongst co-offenders in a joint criminal enterprise is often appropriate, there are limits to which this can occur. Differences in subjective circumstances will, however, result in differences in the end result. Sometimes those differences will be significant (see R v JW [2010] NSWCCA 49 at [166] per Spigelman CJ). 61Finally, it is important to bear in mind that his Honour sentenced both the applicant and his father. This Court has long recognised the importance of that circumstance when dealing with issues of parity. In R v Swan [2006] NSWCCA 47 Barr and Howie JJ said at [71]: "This was a case where the sentencing of both offenders was by the same judge on the same occasion. Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences he did by having regard to the differing criminality of each, the differing subjective circumstances and the relevant sentencing principles, in our view this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes". 62That passage was cited with approval in Pavicevic v R [2010] ACTCA 25 at [21]. Similar views have been expressed in a number of other cases, both in this Court and elsewhere. Those cases include Tatana v R [2006] NSWCCA 398; R v Spizzerri [2001] VSCA 49; Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274; and Gill v R [2010] NSWCCA 236. In Gill McColl JA (with whom RS Hulme and Latham JJ agreed) said (at [58]): "Finally, it should be understood that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing judge was fully aware of sentences imposed upon a co-offender, and the reasons for those sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender's sentences." 63In all of these circumstances we do not consider that the applicant has a justifiable sense of grievance. It follows that this ground has not been made out.

Ground 2 - The sentence imposed is manifestly excessive

Submissions of the parties 64In support of this ground, senior counsel for the applicant placed significant reliance upon the applicant's youth. It was submitted that although the applicant was an adult at the time he committed the offence, his level of maturity (or lack thereof) was required to be assessed in the context of the background to his offending, an important component of which was his relationship with his father. It was submitted that the applicant's relative youth and his father's dominating and controlling influence were factors which deserved more weight in the sentencing process. 65Senior counsel acknowledged the obvious seriousness of the offending, and the fact that it involved planning and a distinct motive. However, it was submitted that it was necessary to balance those matters against the important subjective factors which were relied upon. Counsel also referred the Court to relevant sentencing statistics which, it was submitted, demonstrated that the sentence was manifestly excessive. 66The Crown submitted that his Honour had properly assessed the objective criminality of the applicant's offending and had given proper consideration to relevant mitigating factors. The Crown also stressed the seriousness of the offence, and pointed to the fact that his Honour had obviously taken into account the relevant legislative guide posts of the maximum penalty of imprisonment for life and the standard non-parole of 20 years. 67In terms of the applicant's reliance upon statistics, the Crown specifically referred to the observations of the High Court in Hili v R, Jones v R [2010] HCA 45; (2010) 242 CLR 520 as to the limitations which are necessarily placed upon the use of such material. In this regard, the Crown pointed out that the statistics relied upon by the applicant included those applicable to offenders who had pleaded guilty, and whose sentences where therefore obviously less. It was submitted that when the statistics in respect of those offenders who had pleaded not guilty were considered, they did not demonstrate manifest excess in the sentence.

Consideration and conclusion 68As we have previously noted, although his Honour concluded (at [56]) that the applicant followed his father's lead, he also found that the applicant was not directed, ordered or pressured by his father to become involved. He also found that the applicant's involvement did not come about as a result of a feeling of obligation on his part towards his father, and that the applicant had his own motive in acting as he did. His Honour took that relationship into account (at [97]) to the degree that he considered appropriate, bearing in mind his earlier findings. 69His Honour made specific reference (at [96] and again at [101]) to the applicant's youth. It is clear from those references that his Honour took that issue into account, along with the applicant's lack of criminal record and his prospects of rehabilitation. 70The applicant's subjective circumstances were necessarily required to be balanced against the nature of the offending. In this regard, his Honour concluded (at [90]) that the serious and brutal nature of the offending was aggravated by the use of weapons, that the offending was committed in company, and that it involved an extended period of assault. In our view, all of these matters justified his Honour's categorisation of the offending (at [96]) as a grave crime. This is particularly so in circumstances where his Honour found that it had been executed with an intention to kill. 71In order to establish that a sentence is manifestly excessive an applicant must demonstrate that the sentence is unreasonable or plainly unjust (see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325; [6]). Taking into account the seriousness of the offending as his Honour described it, and bearing in mind his Honour's express references to the applicant's subjective circumstances, we do not consider that the applicant has established that the sentence imposed on him is unreasonable or plainly unjust. 72Accordingly, this ground is not made out.

Ground 4 - The sentencing judge erred in failing to take into account the time that the applicant spent in custody in Singapore.

The sentencing judge's reasons 73When sentencing the applicant, and having concluded that the appropriate sentence was a minimum term of 18 years imprisonment with an additional term of 7 years, his Honour said (at [102]: "He has been in custody since his arrest in Singapore on 21 May 2010. His sentence will commence on that day."

Submissions of the parties 74It was common ground that the applicant had been taken into custody in Singapore on 24 February 2010, at which time he was detained pending extradition to Australia. He arrived back in Australia on 21 May 2010 and was charged with the deceased's murder upon his arrival. Accordingly, to the extent that his Honour concluded that the applicant had "been in custody since his arrest in Singapore on 21 May 2010" he was in error.

Consideration and conclusion 75It is apparent that his Honour intended to commence the sentence on and from the date on which the applicant was taken into custody in Singapore, namely 24 February 2010. Accordingly, this ground is made out. 76It is appropriate for this Court to intervene and adjust the applicant's sentence to commence on 24 February 2010.

ORDERS 77In view of the forgoing the orders of the court are as follows: (i)leave to appeal against sentence granted; (ii)appeal allowed; (iii)in lieu of the sentence imposed on 16 March 2012, the applicant is sentenced to a minimum term of 18 years imprisonment commencing on 24 February 2010 and expiring on 23 February 2028 with an additional term of 7 years expiring on 23 February 2035.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2013