IMNETU v REGINA

LEGISLATION CITED: Crimes (Sentencing Procedure) Act

Barca v R (1975) 133 CLR 82 Elyard v Regina [2006] NSWCCA 43 Grant v R 11 ALR 503 CASES CITED: Knight v R (1992) 175 CLR 495 R v Hodge (1838) 2 Lewin CC 227 Shepherd v The Queen (1990) 170 CLR 573 Stevens v R [2005] HCA 65

PARTIES: Joussef Tecle Imnetu (Appl) The Crown

COUNSEL: T A Game SC (Appl) D M L Woodburne (Crown)

SOLICITORS: Giddy and Crittenden (Appl) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/437

McCLELLAN CJ at CL JOHNSON J LATHAM J

FRIDAY 30 JUNE 2006 IMNETU, Youssef Tecle v REGINA Judgment 1 McCLELLAN CJ at CL: Youssef Tecle Imnetu was convicted of murder after a trial before Newman AJ and a jury. He was sentenced to an overall term of imprisonment of twenty-six and a half years with a non-parole period of twenty years. He appeals his conviction and seeks to appeal his sentence. 2 The Crown case against the appellant was that he was party with Basheeruddin Mohammed ("Ben") in a joint criminal enterprise to kill Shoukat Ali Mohammed ("the deceased"). The evidence as to motive was not entirely clear. However, the deceased had put up a $20,000 bond for Ben as a condition of Ben's obtaining a bridging visa allowing him to remain in Australia. The deceased's own bridging visa was about to expire which meant that he would shortly have to leave the country. 3 The Crown case was that the deceased was killed in the appellant's bedroom in a unit he shared with others at 13/187 Cleveland Street, Redfern, at some time between 2.13 pm and 8.15 pm on 29 June 2003. The primary mode of death was strangulation although the deceased was also given a large dose of heroin and was violently assaulted with a baseball bat, suffering a severe head injury. In the evidence of Dr Botterill the cause of death was given as strangulation with opiate intoxication described as a "significant contributing condition." 4 Ben did not stand trial with the appellant. He had left the country on 17 July 2003 after his visa had been cancelled. 5 The case against the appellant was wholly circumstantial. Evidence of the movements of Ben, the appellant and the deceased on 29 June 2003 was available from video surveillance footage in the car park basement at the Cleveland Street premises. 6 The appellant was with Ben when they left the premises at 12.38 pm and went to a "Rebel-sport shop" in Broadway where Ben purchased a baseball bat and sleeping bag. The deceased made a telephone call from his mobile phone to Ben's phone at 12.45 pm. After first buzzing at the front door Ben and the appellant are seen returning to the appellant's premises through the underground car park with Ben carrying a parcel at 1.38 pm. At this time the appellant is also seen adjusting a surveillance camera in the underground car park. 7 At 2.25 pm Ben is seen leaving the premises. At 2.31 pm the deceased drives into the underground car park in his motor vehicle with Ben in the passenger seat. Both are seen approaching the internal lift. This is the last occasion the deceased is seen alive. 8 At 3.09 pm the appellant is seen entering the underground car park from the elevator. Ben joined the appellant for some two minutes and then leaves. The appellant is observed to walk into the view of camera 2, look up at it, and then move back from it. At 3.11 pm the appellant is seen standing near the fire stairs and doing a little dance. At 3.13 pm Ben is seen wearing a white top and the appellant a black top. 9 At 3.17 pm the appellant went back to the lift and returned to his unit. At 4.06 pm Ben and the appellant re-entered the car park. Ben is now wearing a dark top having changed from his white top. Both appear to be doing some form of surveillance. They also both approach the deceased's motor vehicle. During this sequence the motor vehicle is moved and returned and cameras are again interfered with. The appellant said he moved the cameras so that Ben could not be seen changing the number plates on the deceased's car. At 4.28 pm the appellant's flatmate, Mr Legarth returned home. On the Crown case the murder may and most probably had already taken place in the appellant's bedroom. The Crown submitted that the deceased had, at least, already suffered head injuries by this time. 10 At 5.09 pm Ben left the building through the front door and returned through that door at 6.06 pm. At 6.54 pm Ben left the building through the underground car park and returned shortly after at 6.59 pm with a wheelie bin which he took into the lift. 11 At 7.53 pm Legarth left the building. Legarth made no mention of a wheelie bin in his evidence and it was the Crown case that this could have been brought into the flat while he was showering. 12 It was the defence case that the first the appellant knew of the killing was when he came out of the shower, at or about 7.53 pm, when he saw the deceased in the wheelie bin in front of the exit door and that he was thereafter forced by the co-accused to assist in disposal of the body. 13 At 8.15 pm the appellant exited the lift, walked around and then went back into the lift. At 8.18 pm both exit. Ben was pushing a wheelie bin. Cameras are again interfered with. A few minutes later they re-enter the car park and enter the elevator. Some time later they are seen leaving in the deceased's vehicle. The vehicle was disposed of. 14 The evidence established that the deceased had been orally administered a large dose of heroin (he was not a drug user), had been violently hit over the head and then strangled with an electrical cord which was later found in the appellant's bedroom. Blood was subsequently identified on the carpet of the appellant's bedroom. 15 The Crown case was that the appellant and Ben were engaged in a "joint criminal enterprise." It was put that the jury could infer that the appellant was involved from at least the time of purchase of the baseball bat and sleeping bag, that he acted as a lookout in the basement car park, that he attempted to move the surveillance cameras on three occasions to avoid detection and that he was involved with the disposal and removal of the body of the deceased. The Crown also relied on mobile phone calls from the appellant to Ben and Legarth, which were made while both were at the premises and which were not answered by either of them. This was said to be a method of communication between the appellant and Ben and a method whereby the appellant tested whether Legarth was still in the unit. 16 There was also some evidence from which it could be inferred that the shirt worn by Ben got blood on it when the deceased was assaulted with the baseball bat, Ben took the shirt off and was then lent another, larger, dark shirt by the appellant. Ben is seen in the dark shirt at 4.06 pm. 17 There are two grounds of appeal in relation to the conviction.

Ground 1 - The trial judge gave inadequate directions and erred in his directions on inferences and circumstantial evidence 18 Although the trial judge emphasised to the jury that the onus of proof lay upon the prosecution which must prove the relevant elements of the offence beyond reasonable doubt and provided detailed directions with respect to circumstantial evidence, the appellant said they were inadequate. In particular it was submitted that because the judge did not tell the jury that before an inference could be drawn it had to be the only rational inference available (Knight v R (1992) 175 CLR 495 at 502-503) the directions given were inadequate and the trial miscarried. The appellant particularly emphasised the reasons of McHugh J in Stevens v R [2005] HCA 65 at [25] where his Honour said that because the prosecution case was a circumstantial case it required a direction to "the jury that, if there is any reasonable hypothesis consistent with innocence of the [accused], it is their duty to acquit." 19 The defence at the trial was confined to an argument that the appellant was not involved in the events until late in the evening when he acted under duress. On the appeal it was submitted that his Honour had failed to give the jury adequate guidance as to an hypothesis consistent with his innocence of the count of murder, because, so it was suggested, if the deceased had died at an early time in the sequence of events, by 4 pm, it was suggested the evidence of the appellant's initial acts - going to the Rebel-sport store and adjusting cameras, was not sufficient to found a conviction for murder. This, so it was submitted, was an hypothesis consistent with innocence which had to be excluded before the appellant could be convicted. 20 I have no doubt that this ground of appeal should be rejected. 21 To my mind the submission now made by the appellant significantly understates the strength of the Crown case. That case was comprised of the early phone calls to and from the deceased, the journey to the Rebel-sport store to purchase the baseball bat and the sleeping bag, the manipulation of video surveillance cameras to avoid being filmed followed by a period of time when the deceased, Ben and the appellant were together undisturbed in the appellant's flat. They were in the flat together for at least 49 minutes following which at 4.06 both the appellant and Ben are seen in the car park without the deceased. Ben has changed his clothes and they proceed to change the number plates on the deceased's car while endeavouring to shield their activities from the video cameras. It was at 4.28 pm that Legarth arrived and stayed for about three hours. 22 I accept that the overwhelming inference from this sequence of events is that the deceased had either died by about 4.00 pm or was seriously ill by this time. The medical evidence is also consistent with death by this time. The killing occurred in the appellant's bedroom which was not accessed by Legarth whilst he was at the premises. The door was shut although for a period the appellant accessed the room. 23 The deceased was both drugged and violently attacked in the appellant's bedroom. It seems to me to be inconceivable, having regard to the evidence of their movements both before 3.00 pm and after 4.00 pm, that the appellant was not involved in the planning, preparation and carrying out of the killing. Rather than death at an early time being consistent with innocence it is to my mind but one of the elements in an overwhelming Crown case that the appellant carried out the killing together with Ben. 24 The trial judge summed up to the jury over part of two days. His Honour told them that the Crown carried the onus of proof "from start to finish" and "in relation to every element which the Crown is required to prove in relation to the crimes and the Crown must establish those matters beyond reasonable doubt." These directions were repeated on more than one occasion. 25 His Honour also addressed the jury in relation to inferences making plain the difference between an inference and speculation. He did this by using the example of a football match. His Honour said: "During the course of addresses, you heard reference to drawing of inferences. Drawing of inferences, members of the jury, is a process of reasoning whereby you move from one or more established fact, or facts, to a further conclusion of fact. That process, which his open to you, is to be distinguished from mere speculation, a process which is not open to you. The process of factual reasoning in which you engage, is to be undertaken in the light of the directions I have given to you concerning onus of proof. Perhaps I can give you a somewhat homely example of the distinction between drawing a proper inference and mere speculation. Go back to last weekend and you will remember, members of the jury, that it started to rain last Thursday night and, happily, we can say, it has kept on raining ever since. Assuming last Saturday afternoon you were driving around the suburbs of Sydney around quarter to five, just as darkness was falling, and you were passing by a suburban oval. You see 26 young men. 13 in garb which was basically green. 13 in garb which was basically red, and all very muddy and they are walking off a rectangular field and at the end of each end is a pair of rugby posts, accompanied by three other people; one dressed, say, in a yellow garb basically, and two others otherwise dressed. The one dressed in yellow garb is carrying a football. Now, members of the jury, it would be a perfectly proper inference for you to draw that those 26 young men had just competed in a game of rugby league football. Why is it so? Facts known: winter, football season. Saturday afternoon, a time when football is often played. Thirdly, a suburban oval marked as a rugby field. 26 young men, 13 each side; quarter to five, about the time when a game of football ends' muddy young men leaving a muddied field; football in the hand of somebody who is a referee. A perfectly proper inference for you to draw is that they had just played a game of rugby. You can draw from those facts this: they had a game of rugby league, even though you had not seen a ball kicked, passed or a tackle made. A perfectly proper inference to draw. Now, say one of the young men in red had a big grin on his face. It would be mere speculation for you to conclude that he had that big grin on his face because the side in red had just won the match. For all you know, it may be the first time that season that the red team had managed to avoid being beaten by more than 50 points. It may be that he had scored a try. Who knows. There is nothing upon which you can draw a proper inference as to why he is smiling. There are a whole lot of reasons why he is smiling. But, there is no fact that you can look to to draw a further conclusion of fact as to why he was smiling. If you do so, it is mere speculation. That, members of the jury, is a process of reasoning which is forbidden to you. But, as I have said, you are perfectly entitled to draw inferences, and I have explained to you what an inference is and I hope that example, members of the jury, is helpful to you in understanding the difference between speculation and inference." 26 After addressing the jury in relation to the appellant's defence his Honour turned to deal with the evidence. Identifying the essential elements in the Crown case as the evidence on the video of the movements of both the appellant and Ben. His Honour said: "You have had the Crown saying that the actions you see from thereon right through to the time you see the wheelie bin heading out of the garage are absolutely consistent with only one thing, that from the start to finish, including the manipulations of the cameras, and there were a number of them members of the jury, the accused was in it, assisting Ben from start to finish. The accused of course said, 'No, no I only assisted Ben after he threatened me, after Mr Legath left the flat.' Remember the accused told you that when Legath left the flat he was having a shower, and he came out of the shower, it was then that the accused says that he first became aware that any misfortune had occurred to the deceased at all, and it was then that Ben threatened him. He says, this is what the accused tells you, and again I remind you members of the jury he bears no onus. He says that it was not until Legath had left the flat, and Legath left the flat, according to the accused, when the accused was under the shower. So it couldn't have been too long after, you might have thought, Legath left the flat. The accused points to the time when he first became aware that some misfortune had fallen to the deceased. Members of the jury, an easy reference to when it was that Legath had left the flat is picked up in the still photographs contained in Exhibit Q, which is put down as being eastern standard time, about 7 minutes to 9. In fact as we know, it's about 7 minutes to 8 real time. Then the accused says that he first became aware that misfortune in any way had fallen to the deceased. Of course the Crown case is that you are perfectly entitled when looking at the whole of the evidence to infer the participation of the accused in the murder of the deceased." 27 His Honour then contrasts the Crown case and that of the appellant saying: "The Crown case is that the accused accompanied the man Ben to the Rebel Sport store where a baseball bat and a sleeping bag were purchased. They returned - I am just repeating the Crown case members of the jury. I'm not putting it anything else but that. This is the Crown case. They returned to the block of flats. They go to the entrance, the ordinary entrance, the buzzer is pushed, then they go downstairs and go in through the basement because, you will remember, again it's common ground, that the accused had a remote control to the garage door. You then see the accused, and he admits it, adjusting it - to use a neutral phrase - the camera above the lift; camera 3. The Crown says you would not accept the accused's explanation that he was just doing it because Ben suggested it was, as I understand, out of alignment. Go upstairs. You see the arrival of the deceased. You then see on the film the involvement of the accused coming down. The Crown says when he's down in the basement he is obviously keeping a lookout, the discussions in the basement with the man Ben, various adjustments to various cameras in the basement by the accused. The accused says the camera's being adjusted because Ben was going to do something, change the number plates on the deceased's car. The Crown says you would not accept that. The Crown says when you look at the continuation of the video, at all stages the accused seems calm, he seems to know what he's doing, he's with the man Ben, and the Crown puts it of course a lot of the activity, including the adjustment of cameras, occurs well before Mr Legath leaves the premises just before 8 o'clock in the evening." 28 At the end of the first day of the summing up his Honour took care to discuss any issues requiring attention with counsel. No reference was made to circumstantial evidence until the court resumed on the following day. The matter was raised by the Crown who indicated that counsel for the appellant sought a "circumstantial direction not of the links in the chain type, if I can call it that, but the strands in the cable type." His Honour indicated that he would give the direction provided at para 2-510 of the Supreme Court Bench Book. Counsel for the appellant agreed that would be a suitable direction. Counsel also agreed with his Honour the evidence which comprised the circumstances relevant to the Crown case. 29 Subsequently, his Honour gave the following further directions to the jury: "Now members of the jury, you will recall that yesterday I gave you directions about the drawing of inferences and you will remember I gave you an example relating to football about the difference between drawing proper inference and mere speculation. Mere speculation being, as I directed you, a process of reasoning which is forbidden to you. That direction is important because in this case the Crown relies upon what lawyers call circumstantial evidence. And I will now give you a direction relating to circumstantial evidence. Now, members of the jury, I have already told you the onus of proving the accused's guilt in respect of charges which it brings against him is on the Crown. It must establish, as I have told you, his guilt beyond reasonable doubt. That means that in respect of each of the essential elements, ingredients or elements of the charges, you must be satisfied that the Crown has established its case before you would be entitled to bring in a verdict of guilty on any charge that you believe the Crown has established beyond reasonable doubt. I have also told you that your function as a fact finding tribunal in this case goes beyond coming to a conclusion that you were satisfied that a particular basis of fact has been established by the evidence. Your function also extends, as I have told you, to drawing reasonable inferences or conclusions from the facts you find to be established. Now, here, in this case members of the jury, the Crown relies upon evidence which is described as circumstantial evidence. First, the Crown relies upon evidence that the accused, and as I understand him Ben, went shopping, when the baseball bat and the sleeping bag were purchased. Secondly, the Crown of course relies upon the video player. The CCTV, Ex. X, about which much has been said and about which you have seen now on a number of occasions and of course you are at liberty to see again at your leisure. Thirdly, the Crown relies upon the fingerprints of the accused which were found firstly on the bin, secondly on the garbage bag which was over the deceased's legs and thirdly you will recollect the cornflake packet in the bin. That is a circumstance upon which the Crown relies. Next, the Crown relies upon the evidence of phone calls which is found in Ex. AA and you will recollect that the Crown took you to phone calls such as the one which is number 28 from the accused's phone to Legath at 18.09, number 28, and the one, number 31, at 19.15. I will not go into that in any more detail. There are other calls, of course, referred to. You have the exhibits. The Crown says that is another circumstance upon which it relies. It also relies, members of the jury, upon the circumstance of the removal of the body of the deceased in the wheelie bin from the block of units to the position where it was subsequently found in the street. It also relies in another circumstance, upon the fact that the accused and Ben took the deceased's car from the premises, Ben driving. There is not [sic] issue, but the accused accompanied him. Now they are the circumstances upon which the Crown relies as circumstantial evidence. Circumstantial evidence, members of the jury, is evidence of a basic fact or facts from which you, are asked to draw a conclusion as to a further fact or facts. In other words, as I described to you yesterday, drawing a proper inference. Circumstantial evidence is sometimes contrasted with direct evidence. That is, evidence from a person who says that he saw or she saw or otherwise perceived a fact or facts which the Crown relies upon as establishing its case. Now there is nobody here who says - I saw somebody attack the deceased. Now, there is no such evidence of that type. And such direct evidence, they not only take the form of a witness saying, as I have just said, that he or she saw, the accused doing the act which the Crown says constitutes the alleged crime. It may take another form, such as a video recording showing the accused, or Ben committing that act. There is no such evidence here, of course. Plenty of video evidence but no video evidence of the act which gave rise to the deceased's death, or evidence of a person who says that he or she heard an admission being made. Again, no such evidence of doing the act. No such evidence this case. Where, however, the Crown's case depends on circumstantial evidence to some degree, then it relies upon evidence of a basic fact or facts from which you, the jury, are asked to infer or conclude that further fact or facts existed, being in this case the accused's guilt of the crime, because the onus of proof is on the Crown to prove its case beyond reasonable doubt as to every essential element or ingredient of the charge. Any such inference or conclusion from basic facts relied upon by the Crown must of course be a conclusion reached by you beyond reasonable doubt, having taken into consideration not only the material presented on behalf of the Crown but also any material presented on behalf of the accused, and having given careful consideration to the submissions of counsel on behalf of both the Crown and the accused. I should add that a case on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence, depending upon the nature of the circumstances relied upon when considered as a whole, that is, all the circumstances considered together. And remember, members of the jury, yesterday I directed you to consider the whole of the evidence in the case, and do not compartmentalise it. That is, do not look at evidence individually or in isolation, and the degree of clarity and certainty to which that evidence may lead inevitably to a conclusion that the Crown has established its case or does not lead to the conclusion that the Crown has established its case. It is essential that you examine the evidence with care and consider whether it is reliable before drawing any conclusions from facts which you regard as being established but which in your view it is not of such reliability to enable you to come to the conclusion which the Crown says you will come to, having taken into consideration the accused's evidence, and the character of evidence called on his behalf and having given due weight to the submissions of counsel on both sides, if that is your view then you must acquit." 30 To my mind the directions which his Honour gave adequately explained to the jury the nature of circumstantial evidence and how they could use it in their deliberations. His Honour was careful to tell the jury they could not speculate and that the prosecution carried the onus of proving its case beyond reasonable doubt. When considering these matters on the second day his Honour was careful to remind the jury of the illustration he had given and emphasised that they could only draw a "proper inference" which his Honour had explained by example was one where only one explanation for a known event was appropriate. His Honour contrasted a "proper inference" with "mere speculation" describing the latter as a process of reasoning which was forbidden to them. 31 Although McHugh J in Stevens v R [2005] HCA 65 at [25] spoke of the "requirement" that the jury be told that "if there is any reasonable hypothesis consistent with innocence … it is their duty to acquit," I do not believe his Honour should be understood as requiring that precise formulation be used by the trial judge. What is required is that the directions given ensure that the jury understand that if there is another reasonable explanation available "other than that the accused committed the crime charged the accused is entitled to be acquitted" (see Barca v R (1975) 133 CLR 82 per Gibbs, Stephen and Mason JJ). 32 In Grant v R 11 ALR 503 Barwick CJ emphasised that there is no rule of law that a trial judge must, in a circumstantial evidence case, give the direction in terms expressed by McHugh J (which is apparently derived from R v Hodge (1838) 2 Lewin CC 227 at 228). As Barwick pointed out the direction suggested in Hodge was "an amplification of the direction that the Crown must prove its case beyond reasonable doubt." 33 In Shepherd v The Queen (1990) 170 CLR 573 Dawson J said at 578: "The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge's Case; Peacock v The King; Plomp v The Queen. Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick CJ, speaking for the Court, observed in Grant v The Queen: 'Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed.'" 34 In my opinion when read as a whole the directions given by the trial judge, in the present case, with respect to circumstantial evidence and the drawing of inferences were adequate. 35 Although the appellant suggested otherwise this is a matter where Rule 4 applies. At the beginning of the second day of his Honour's summing up he discussed and agreed with counsel the direction he proposed to give with respect to circumstantial evidence. The direction which his Honour gave faithfully reflected the directions which counsel asked him to give. 36 In these circumstances I see no justification for this Court to allow the matter to be raised in an appeal. Both the adequacy of the directions given and the failure of counsel to raise any difficulties with them at the trial are persuasive reasons to deny leave to raise ground 1.

Ground 2 - The trial miscarried by reason of the trial judge's failure to correct a comment made by the Crown prosecutor regarding evidence of the accused's good character or by reason of the Crown prosecutor's comment regarding the accused's good character. 37 There was evidence that the accused was of good character. The accused gave the following uncontradicted evidence: "Q. Have you ever been in trouble with police in Australia or anywhere else before? A. No, never." 38 Evidence was also called on behalf of the accused from a number of character witnesses. 39 In his address to the jury the Crown Prosecutor, when dealing with the accused's character, said, inter alia: "The fact that he has had no prior criminal charges against him, criminal convictions as Sergeant Dyball told you in answer to one of my friend's questions. That is something his Honour will tell you that you can take into account. His Honour will tell you how you can take those issues into account but I just ask you to bear in mind that people who have never committed crime do commit crime. Some of them do. You might think that evidence of that nature might be more compelling if it were someone who was perhaps 60 years old and had never committed an offence. You might think, that would weigh a little more strongly the balance perhaps than someone who hasn't had a long life, who is young, who raises the same issue." 40 The appellant submitted that the Crown Prosecutor was, in effect, attacking the probative value of the accused's good character on two bases. The first was that some people who have never committed crime can change character and commit crimes. The second was that less weight should be given to the good character of a 20 year old accused than say a 60 year old accused. 41 It was submitted that the first basis was a comment that could properly be made by a Crown Prosecutor. However, it was said that it was significantly undermined by the failure of the Crown to point to any motive for the accused to change character so substantially as to enter into a joint enterprise to murder the deceased. 42 It was submitted that the second basis therefore assumed additional significance and that it was not appropriate and never has been appropriate for a jury to be told that they could place less weight on evidence of an accused's good character because of his relative youth. In this formulation youth becomes a disentitlement to a good character direction. 43 This matter was not raised at the trial and to my mind leave should be refused. In my opinion there is no difficulty in the prosecutor's submission. It is obvious that a person who has lived 60 years without blemish has demonstrated a capacity to avoid criminal activity which a twenty year old cannot claim. Furthermore, the life pattern of a sixty year old is likely to be more settled than a twenty year old. Accompanied by the standard observation that persons of good character nevertheless commit crimes all that the prosecutor was urging was that the jury appropriately evaluate a claim of good character made by a younger person.

Sentence 44 The application raised three related grounds:

1. The sentencing judge erred in his assessment of the appellant's culpability for the offence. 2. The sentencing judge erred in assessing the offence as falling above the mid range of seriousness. 3. The sentencing judge erred in holding that: a. the offence "revealed a degree of planning"; b. was "carried out in company"; and these were aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act. 45 The challenge to the sentence was supported by the following written submissions: "The sentence imposed by the trial judge was a non-parole period of twenty years with a total sentence of twenty six years and eight months.

His Honour determined that "the objective facts of this murder place it above the mid range." His Honour determined to set the standard non-parole period on the basis that Ben was the ring-leader and because of the appellant's favourable subjective circumstances.

Concerning the criminality of Ben it is accepted that his offending at least falls within or above the mid range of seriousness for the offending. It is submitted that the same could not be said for the criminality of the appellant.

His Honour made the following finding: "What is not clear from the evidence is who it was who administered the heroin to the deceased, who struck him with a baseball bat and who it was that strangled him. However, I have no doubt that these acts were committed by the prisoner and Basheeruddin acting in concert."

It would appear from this that his Honour was making a finding that the appellant had an actual involvement in drugging, assault and strangulation of the deceased, notwithstanding his acceptance that Ben was "the leader of these criminal activities." Obviously, before his Honour made any such findings they had to be found on the evidence beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270.

The Crown never put its case on this basis, or at least, certainly never explicitly did so. The Crown case appears to have been that the appellant's participation could be inferred from things he did (eg shifting the surveillance camera), not that it could be inferred from this that he was actually involved in the killing. In addition, the "joint enterprise" was explicitly said to encompass joint enterprise to cause grievous bodily harm.

In any event the evidence supported no more than that the appellant effectively acted as a lookout and decoy for the activities which Ben was engaged upon. If this is so then his Honour did not accurately characterise the appellant's culpability and his assessment of it falling above the mid range of seriousness was also erroneous.

His Honour also found that aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 included:

(a) a degree of planning (cf s 21A(2)(n)); (b) the offence was committed in company (cf s 21A(2)(e)).

His Honour rejected a submission that these matters fell within the proviso to s 21A(2), namely that they were elements of the offence. Whether or not this is correct as a matter of principle, it is incongruous to find an offender liable on the basis of his involvement in planning of the offence or participation in another's acts and then aggravate his criminality because of it. For instance, what is to be made in such circumstances of a finding that Ben was the leader and principal? Does this mean somehow that the appellant's liability is aggravated beyond that which a reasoned assessment of his involvement in the offence would enable? It is respectfully submitted that this could not be what the legislation intended." 46 I am satisfied that it was open to his Honour to find that the appellant and Ben acted closely in the commission of the offence. Furthermore, it was open to his Honour to find that the appellant was prepared to use the baseball bat and do whatever it took to kill the deceased and dispose of his body. In my opinion his Honour did not err when characterising the appellant's culpability for this offence. 47 Both "the degree of planning" and the "fact the offence was committed in company" were matters which his Honour appropriately determined as relevant to the characterisation of the seriousness of the offence thereby informing the appropriate sentence. They are not relevantly elements of the offence of murder for the purposes of s 21A of the Crimes (Sentencing Procedure) Act. They are merely descriptive of how this particular murder was carried out. 48 However, in the present case I am satisfied that the sentence imposed was appropriate. This was a premeditated and vicious killing. Not only was the victim induced to take an excessive heroin dose, he was bashed about the head and strangled, before his body was disposed of in a garbage container. In my opinion no other sentence than that which was imposed was appropriate in law.

ORDERS 49 In my opinion the appeal against conviction should be dismissed. 50 Although I would grant leave to appeal against sentence I would dismiss that appeal. 51 JOHNSON J: I agree with McClellan CJ at CL and Latham J. 52 LATHAM J: I agree with the reasons of the Chief Judge at Common Law and with the proposed orders. I wish to add some brief comments in relation to the appeal against sentence. 53 It is simply not correct to assert that "the evidence supported no more than that the appellant effectively acted as a lookout and decoy for the activities which Ben was engaged upon" (see the appellant's written submissions set out at par 45). It is implicit in the jury's verdict that the appellant's evidence at trial was rejected, in that the appellant sought to place an innocent construction on his participation in all of the events of 29 June 2003, including the purchase of the bat and sleeping bag, the manipulation of the security cameras and his movements in and around the unit. Objectively, the remaining evidence at trial established that the appellant played a pivotal role in the commission of the offence, as the following specific acts make clear :- · The appellant satisfies himself that the unit is empty by pressing the intercom at the front door, despite being able to enter the carpark and then the unit with a remote control device, before the deceased is due to arrive. · The appellant adjusts a security camera in the car park, apparently without any direction from Ben. · The appellant gives Ben the remote control device so that he can guide the deceased's vehicle into the carpark. · Between the arrival of the deceased and the infliction of fatal injuries upon him (2:31pm - 4:28pm), the appellant and Ben are in each other's company, but for 8 minutes, during which time the appellant is in the carpark appearing to check the angle of the surveillance cameras. · The appellant and Ben are sitting on the balcony when Mr Legarth arrives home (4:28pm). The appellant goes to his bedroom (where the deceased lay dead or dying), leaving Ben to monitor Mr Legarth's movements around the unit. The appellant also monitors Mr Legarth's presence by phoning Ben and Mr Legarth from inside the appellant's bedroom.

54 Not only did the appellant jointly engage with Ben in doing all that was necessary to carry out the murder and to avoid, as far as possible, detection, but he provided the premises where the offence might be committed without the risk of intervention by others. I do not regard a finding by his Honour that Ben was "the leader of these criminal activities" as in any way detracting from the objective gravity of the appellant's role. Similarly, the absence of evidence capable of establishing who administered the heroin to the deceased, who struck him with the baseball bat and who strangled him does not equate to the proposition that the appellant did not participate in those activities. Given the length of time during which the appellant and Ben were in each other's company, and in the company of the deceased, inside the unit when the injuries were undoubtedly inflicted, his Honour was entitled to find that the acts leading to the deceased's death were committed in concert. 55 Neither the "degree of planning" or the fact that "the offence was committed in company" were elements of the offence, or "inherent characteristics of the class of offence" of murder : see Elyard v Regina [2006] NSWCCA 43. This offence displayed a relatively high degree of planning, which ought to have been reflected in the sentence to be imposed. The further aggravating factor is intended to reflect the criminality inherent in the commission of offences by the combined force of two or more offenders. I am not persuaded that "joint criminal enterprise" as a basis of liability necessarily equates with the circumstance of aggravation arising out of the commission of this offence by two offenders. In any event, I agree that the sentence imposed was appropriate and that no lesser sentence was warranted in law. **********

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