Karaali v R

Court of Criminal Appeal (NSW)|2024-08-09|Before: Ward P, Wilson J, Sweeney J, Gleeson CJ, Cole JA, Sperling J, Campbell J

[This headnote is not to be read as part of the judgment] On 16 March 2023, the applicant, Abdul Karaali, was convicted of the murder of Ross Houllis in February 2020 following a trial before Campbell J. On 24 July 2023, Campbell J sentenced the applicant to a head sentence of 28 years, to date from 13 July 2020, with a non-parole period of 21 years, which will expire on 12 July 2041. One of applicant's co-offenders, Sami Hamdach, was convicted also of murder on 25 July 2022, and was sentenced by Campbell J on 31 March 2023 to imprisonment for 16 years and 2 months, with a non-parole period of 12 years. Mr Hamdach purchased a pair of what he thought were genuine Apple AirPods, then advertised on Facebook Marketplace, from Mr Houllis on 13 February 2020. During that evening, Mr Hamdach became aware that the AirPods were not genuine, and attempted to contact Mr Houllis to no avail. Then, under Mr Hamdach's direction, Loubna Kawtharani contacted Mr Houllis via Facebook Marketplace on the pretext that she wished to purchase a pair of AirPods as a Valentine's Day gift. In reality, Mr Hamdach wished to exact retribution from Mr Houllis. In the meantime, Mr Hamdach contacted the applicant to assist in his plan. The following night, Ms Kawtharani arranged to meet Mr Houllis at around 9:30pm at Wakeley Shopping Centre carpark. It was not intended that Ms Kawtharani would attend the meeting; rather, her involvement was as a decoy, given that Mr Houllis was expecting to meet with a female. On Mr Houllis' arrival, Mr Hamdach moved out from behind a small truck and restrained him. The applicant then began to assault Mr Houllis. After some time, Mr Houllis, who was in a groggy and confused state, was then dragged by the applicant and Mr Hamdach from the carpark and into an adjacent street, where the assault by the applicant continued. Mr Houllis attempted to flee, but was tackled by the applicant a short distance away. Two separate passersby stopped to inquire into Mr Houllis' welfare, but both were sent away by the applicant and Mr Hamdach under the false pretexts. The applicant inflicted fatal injuries upon Mr Houllis, the most significant of which were incurred while Mr Houllis was unconscious. The applicant and Mr Hamdach then fled in Mr Hamdach's work ute, without any real attempt to render or obtain assistance for Mr Houllis. The primary judge was satisfied, given the continual escalation of violence throughout the course of the assault, that the applicant actually intended to kill Mr Houllis. His Honour found that the objective seriousness of the offending was above the mid-range, and was not satisfied that the applicant's subjective case was such as to reduce his moral culpability. Conversely, in relation to Mr Hamdach, his Honour found that the objective seriousness of his offence was low in the mid-range for constructive murder, and also found that Mr Hamdach's subjective case was more compelling. The applicant sought leave to appeal on three grounds. First, as to the primary judge's findings about the intention of the applicant at the time of the offence. Second, as to the disparity in the sentences imposed upon the applicant and Mr Hamdach. Third, as to the length of the sentence imposed. The Court held (Ward P, Wilson and Sweeney JJ agreeing), granting leave to appeal but otherwise dismissing the appeal: (1) Irrespective of whether the applicant was acting under the instruction of Mr Hamdach, he cannot have failed to be aware that Mr Houllis was (and had been for some time) lying prostrate and defenceless when the applicant administered some of the more significant blows. The continuation of the violence (and the significant nature thereof) makes overwhelming the inference as to the applicant's intent to kill: [81]-[86] (Ward P); [156] (Wilson J); [157] (Sweeney J). Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232; Azzopardi v R [2019] NSWCCA 306; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 cited. (2) The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by the application of objective criteria. The comparative exercise for parity purposes is conducted by reference to what the agreed facts in one offender's case demonstrate as that offender's culpability, and what the agreed facts in the co-offenders case demonstrate as that co-offender's culpability. A complaint of lack of parity is more difficult to sustain where one or more of the co-offenders have been dealt with by the same sentencing judge. Here, the sentencing judge was conscious of, and made direct reference to, the parity principle in finding that, although Mr Hamdach did instigate and promote this joint illegal enterprise, there were significant differences in the conduct, culpability, and the subjective cases between the co-offenders. These differences justified the disparate sentences: [110]-[116] (Ward P); [156] (Wilson J); [157] (Sweeney J). Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Lloyd v R [2017] NSWCCA 303; Martellota v R [2021] NSWCCA 168; Croke v R [2021] NSWCCA 294; Moran v R [2022] NSWCCA 217; Rosenberg v R [2022] NSWCCA 295; R v Dyson [2023] NSWCCA 132; Neale v R [2024] NSWCCA 159 cited. (3) To succeed on a manifest excess ground on a sentence appeal, an applicant must establish that the sentence was unreasonable or plainly unjust. The consideration of whether a sentence is to be regarded as such is undertaken in the context that there is no single correct sentence, and that sentencing is not a mathematical exercise, but rather that a sentence is reached by balancing many different and conflicting features, such that the sentencing judge is permitted as much flexibility as is consonant with consistency of approach and the applicable principles. In the present case, the offending conduct was senseless in the extreme, the applicant's subjective case was not compelling, and the need for denunciation and general deterrence was clear. In these circumstances, the sentence imposed was within the range of acceptable sentencing outcomes: [151]-[154] (Ward P); [156] (Wilson J); [157] (Sweeney J).

Judgment

WARD P: This is an application by Abdul Karaali (the applicant) pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against the sentence imposed on him for the murder of Mr Ross Houllis in February 2020.
The applicant was convicted of the murder of Mr Houllis on 16 March 2023 following a trial before Campbell J. On 24 July 2023, his Honour sentenced the applicant to 28 years' imprisonment (to date from 13 July 2020), with a non-parole period of 21 years, which will expire on 12 July 2041 (see R v Karaali (No 10) [2023] NSWSC 866) (Karaali). The head sentence will expire on 12 July 2048.
The applicant had two co-offenders: Sami Hamdach and Loubna Kawtharani (Mr Hamdach's partner).
Ms Kawtharani entered a plea of guilty to being an accessory before the fact to an offence of assaulting the deceased and occasioning actual bodily harm. On 17 May 2021 she was sentenced in the Local Court to an Intensive Corrections Order for 2 years (see Karaali at [5]).
Mr Hamdach pleaded guilty to the murder on the first day of his adjourned trial on 25 July 2022. Mr Hamdach was sentenced by Campbell J (on the basis of agreed facts) on 31 March 2023 to imprisonment for 16 years 2 months (to date from 15 February 2020), with a non-parole period of 12 years expiring on 12 February 2032 (R v Hamdach [2023] NSWSC 298) (Hamdach). His head sentence will expire on 14 April 2036.
The applicant seeks leave to appeal on the following three grounds of appeal, as set out in his Amended Grounds of Appeal: Ground One: His Honour erred in his findings about the intention of the applicant at the time of the offence, particularly in view of the findings of fact made in relation to the co-offender Hamdach. Ground Two: The disparity between the sentence imposed on the applicant and the sentence imposed on the co-offender is such as to leave him with a justifiable sense of grievance. Ground Three: The sentence imposed on the applicant was manifestly excessive.

Offending conduct

The following summary of events that gave rise to the applicant's conviction is drawn largely from the sentencing judgment (Karaali) though, as I note in due course, the Court was in a position itself to view the CCTV footage (and has done so), which forms the basis for a number of the conclusions formed by the sentencing judge as to what had occurred on the evening in question.
Mr Hamdach saw some Apple AirPods (small wireless earphones or earbuds) advertised on Facebook Marketplace under the identity of Mr Houllis' sister. Mr Hamdach, who already had a pair of (genuine) Apple AirPods, wanted to buy a pair for his partner, Ms Kawtharani. Mr Hamdach contacted the advertiser for that purpose (see Karaali at [11]-[13]).
In the evening on 13 February 2020, Mr Houllis met Mr Hamdach at Canley Vale railway station. CCTV footage showed that, at that meeting, Mr Hamdach inspected the earphones before handing over a sum of cash ($150) (Karaali at [11]).
After the purchase, Mr Hamdach became aware that the earphones were not genuine "Apple" brand AirPods. The sentencing judge inferred (from a recording sent to Ms Kawtharani's phone - see Exhibit G; and from the evidence and course of subsequent events) that Mr Hamdach was mortified and humiliated by his mistake (i.e., his mistake as to the genuineness or otherwise of the product he had purchased) (Karaali at [12]).
At about 8:50pm on 13 February 2020, Mr Hamdach attempted to contact Mr Houllis but Mr Houllis apparently declined to take the call (Karaali at [13]). The sentencing judge found that after the failed call to Mr Houllis, over the next 40 minutes Mr Hamdach "conceived a plan to teach Mr Houllis a lesson by exacting a degree of retribution from him for, as Hamdach saw it, tricking him" (Karaali at [14]). Mr Hamdach's plan was that, under his direction, Ms Kawtharani would contact Mr Houllis via the Facebook Marketplace address on the pretext that she wished to purchase a pair of AirPods as a Valentine's Day gift; and would continue to communicate with Mr Houllis to arrange a rendezvous after dark on 14 February 2020. In the meantime, Mr Hamdach contacted the applicant for his support (Karaali at [14]). The sentencing judge was satisfied that Mr Hamdach envisaged employing the applicant as the "muscle for the meeting", his intention being not only to extract a refund but to teach Mr Houllis a lesson by giving him a beating.
The sentencing judge found (Karaali at [14]) that: I am satisfied that Hamdach envisaged employing Mr Karaali as the "muscle for the meeting". Hamdach required muscle because it was his intention to not only extract a refund, but also to teach Mr Houllis a lesson by giving him a beating. To avoid Mr Houllis evading the snare, Hamdach intended that the rendezvous should occur at a place where he could hide from view nearby while the offender made the first contact. When Mr Houllis was within the snare, Hamdach would emerge from his hiding place, restrain Mr Houllis while the offender delivered the desired lesson with his fists, and if necessary, his feet.
His Honour found that both the applicant and Ms Kawtharani were willing accomplices in the implementation and execution of Mr Hamdach's plan (Karaali at [14]).
At about 9:31 pm on 13 February 2020, Ms Kawtharani, using the name "Elle Kay", contacted Mr Houllis by Facebook, asking "Is this still available? Please very interested for valentines" (Statement of Agreed Facts, p 2).
At 9:33 pm, shortly after Ms Kawtharani sent the message to Mr Houllis, Mr Hamdach telephoned the applicant. This appears to have been the applicant's first involvement in the matter. There were four more calls between Mr Hamdach and the applicant over the following half hour and, although the content of the communications was not proved at trial, his Honour was satisfied beyond reasonable doubt from subsequent events that Mr Hamdach was "recruiting" the applicant and that the applicant was "happy to oblige".
There was no response from Mr Houllis to the Facebook message until 3.55pm on 14 February 2020 when Mr Houllis' brother replied, providing Mr Houllis' mobile number.
The sentencing judge emphasised (Karaali at [16]) that while Ms Kawtharani was the one messaging Mr Houllis, she acted solely as Mr Hamdach's agent and under his direction and control. His Honour said that this was more than evident given that each contact between her and Mr Houllis was bracketed by contact between her and Mr Hamdach.
After a series of text messages, Ms Kawtharani (under Mr Hamdach's instructions) arranged to meet Mr Houllis at around 9:30pm that night at the Wakely Shopping Centre carpark (Karaali at [17]). It was not intended that Ms Kawtharani would in fact attend the meeting; rather, her involvement was as the "decoy", so that Mr Houllis was expecting to meet with a female (Karaali at [13]; [14]; [17]).
Mr Hamdach picked the applicant up from his home in the Bankstown area and drove him in Mr Hamdach's work ute to the corner of Goulburn Place and Bulls Road, Wakely, only a short distance from the carpark (Karaali at [18]). Mr Hamdach and the applicant arrived at the carpark at about 9:21 pm. Mr Houllis entered the carpark at about 9:31 pm (Karaali at [18]-[19]).
When he saw Mr Houllis approaching, Mr Hamdach hid behind a small truck and sent the applicant forward to meet Mr Houllis (Karaali at [20]). While Mr Houllis' attention was focussed on the applicant, Mr Hamdach emerged from his hiding place and restrained Mr Houllis by grabbing and pulling his arms behind his back, while the applicant commenced to assault Mr Houllis, punching him about the head and body. During the assault, Mr Hamdach yelled for his money in a "loud, aggressive and profane manner". The assault continued despite Mr Houllis' protestations (see Karaali at [20]).
During the fracas, Mr Houllis dropped his mobile phone just as he was forced to the ground by the violence of the assault on him. While he was on the ground, Mr Hamdach picked up Mr Houllis' mobile phone and examined it while the applicant continued violently to assault Mr Houllis, kicking him when he was down on the ground (Karaali at [21]).
The sentencing judge noted that it was difficult to see from the CCTV footage what contact was made with which part of Mr Houllis' body but he said that it was his firm impression that when Mr Houllis was dragged to his feet by the applicant and Mr Hamdach, Mr Houllis "definitely appeared to be 'groggy' or unsteady on his feet… [which was] strongly suggestive of concussive blows to his head" (Karaali at [21]).
The sentencing judge was persuaded beyond reasonable doubt that the applicant was kicking Mr Houllis vigorously when he was down on the ground (while Mr Hamdach was "distracted" by the mobile phone); and rejected the submission that there was no injury done in the carpark (Karaali at [22]). His Honour was satisfied that "Mr Houllis had to be dragged to his feet and was unsteady on them"; and said that he formed the view that Mr Houllis was suffering the effects of concussion and had some difficulty walking (Karaali at [22]), adding that his gait was not normal and had altered from the natural stride exhibited on the CCTV footage as he walked from his home to the carpark.
Mr Hamdach and the applicant each grabbed one of Mr Houllis' arms and "more or less frogmarched" Mr Houllis out of the car park, onto and along Bulls Road, in the direction of the intersection of Bulls Road and Goulburn Place, where Mr Hamdach's work ute was parked; which was also the direction of Mr Houllis' home (Karaali at [23]). His Honour noted that there was nothing on the CCTV footage from the carpark that suggested that Mr Houllis had handed over any money there.
His Honour observed that Mr Houllis was unsteady on his feet throughout the short walk to Goulburn Place, saying that he was mostly conducted along the footpath by the applicant; and his Honour formed the firm impression from the CCTV footage that Mr Houllis remained in a groggy or confused state from his appearance and the manner of his ambulation (Karaali at [24]).
The three men paused at the corner of Goulburn Place and Bulls Road where a further conversation appeared to take place (as to the content of which there was no light shed at the trial) (Karaali at [25]). The applicant then, in the presence of Mr Hamdach, ripped Mr Houllis' T-shirt from his back and "with some athleticism" kicked Mr Houllis (who was then standing) with significant force to his head, causing him to stumble and commence to fall (Karaali at [25]).
Mr Houllis was able to regain his footing and "took flight" but the applicant chased him and caught him a short distance away just around the corner in Bulls Road, "more or less tackling him to the ground" (Karaali at [25]). The sentencing judge noted that it was difficult to see what happened then because the view provided by the CCTV footage was obstructed. However, his Honour said (Karaali at [25]) that: I would infer from the short delay evident during which the offender and Mr Houllis were out of view, the offender was inflicting further violence on Mr Houllis. Once again, I reject the submission that Hamdach was a party to this instalment of the assault. Once again, he seemed to be enamoured by whatever was happening on his or Mr Houllis's mobile phone that he seemed to have retained in his possession. I accept that he took some steps in the offenders direction. But he did not inflict further violence on Mr Houllis.
The applicant again dragged Mr Houllis to his feet and "frogmarched" him back to the vicinity of Mr Hamdach's ute (i.e., toward Goulburn Place). His Honour found that at this stage, Mr Houllis was "obviously in a bad way" and seemed to have great difficulty with his balance from this point on (Karaali at [26]).
When the applicant took Mr Houllis back into Goulbourn Place, Mr Houllis fell from the kerb onto the roadway where he lay for a period which may have been as long as a minute. Mr Houllis attempted to get to his feet again but fell back onto the roadway (Karaali at [27]).
His Honour said that as the applicant and Mr Hamdach stood over the prostrate Mr Houllis, a passing motorist with his family in the vehicle stopped to enquire after the welfare of Mr Houllis (on the Crown case, that motorist was Mr Riaz Ali). His Honour attached significance to the fact that, at the point when the violence could have been brought to an end, the applicant lied, saying that Mr Houllis had had a drug overdose, but that he and Mr Hamdach were "looking after him"; and the motorist, apparently reassured, drove off (Karaali at [28]).
The sentencing judge said that it was obvious then that Mr Houllis was unconscious (Karaali at [29]). The applicant and Mr Hamdach dragged Mr Houllis from the middle of the road to the southern edge of the road where they again stood over him looking at him "in some kind of contemplation". The applicant then "suddenly" violently stomped on the prostrate Mr Houllis' chest (Karaali at [29]). His Honour noted that the medical evidence was that the injuries, presumably sustained from the stomp to Mr Houllis' chest, would have been "survivable".
Another motorist drove by and stopped to enquire after Mr Houllis' welfare (on the Crown case, that motorist was Mr Rohit Prasad). The applicant told this motorist that Houllis was intoxicated; and encouraged him to drive on; and the motorist drove off (Karaali at [30]).
The applicant then dragged Mr Houllis onto the nature strip. Mr Houllis lay there motionless, face down. The applicant then "violently stomped on his head twice in quick succession in an obviously gratuitous, senseless and cruel manner" (Karaali at [30]). The sentencing judge drew the inference from the CCTV footage that the applicant was moving in for a third stomp when Mr Hamdach came between the applicant and Mr Houllis, preventing the infliction of further injury (Karaali at [30]).
The applicant and Mr Hamdach then left the scene in Mr Hamdach's ute (Karaali at [31]) without any real attempt to render or obtain assistance for Mr Houllis, effectively leaving him for dead. Mr Houllis remained unconscious on the grass. A witness and his partner who had followed the three men from the carpark in their car called emergency services who attended the scene promptly and took Mr Houllis to Liverpool Hospital (Karaali at [31]).
Mr Houllis suffered a catastrophic brain injury that was "not survivable", with evidence of multiple intracranial haemorrhages, significant swelling and a consequent degree of brain herniation into the spinal canal (Karaali at [31]). Mr Houllis also had injuries to his chest including rib fractures, lung contusion, and a collapsed lung (Karaali at [29]). Mr Houllis died on 17 February 2020 when, with the consent of his family, his life support was withdrawn (Karaali at [32]).
The applicant was arrested on 13 October 2020. At the time of the offence, the applicant was on parole for possession of an unauthorised pistol (Karaali at [67]).

Sentencing judgment (Karaali)

His Honour was satisfied beyond reasonable doubt that, from the nature of the applicant's acts in the continuum of ongoing violence, that at least from the time that the applicant kicked the standing Mr Houllis in Goublurn Place until he delivered the second of his stomps to the still-prostrate Mr Houllis' head, the applicant actually intended to kill Mr Houllis (Karaali at [41]-[42]).
At [42], his Honour said that, while the high kick to the head (involving significant force) might not on its own justify to the criminal standard an intent to kill, the violence soon escalated. His Honour said that chasing Mr Houllis, tackling him and further assaulting him demonstrated a determination to go on with the attack and that the applicant was "not yet done with injuring Mr Houllis".
At [43], his Honour said: Whether Mr Houllis fell onto the roadway or was thrown down, it must have been obvious to the offender that he was in a very bad way. Had the offender taken the intervention of either of the passing motorists as a reality check to urgently seek assistance for Mr Houllis, perhaps the inference of a more serious intent could not have been drawn as the only rational inference available in all the circumstances established by the evidence. However, stomping on Mr Houllis's chest as he lay prostrate, completely defenceless on the ground, to my mind, is indicative of an intent that goes beyond even the desire to injure him really seriously, even accepting that that trauma did not contribute to death. And then twice stomping heavily on the head of a young man who is already obviously very seriously injured, in the light of what had gone on before, speaks of an entirely higher order of murderous intent. Those head stomps had about them, to my mind, the flavour of the so-called coup de grace. Frankly, in my judgment, the only inference open is that those acts were done for the purpose of finishing Mr Houllis off. I am well satisfied beyond reasonable doubt that those blows were delivered with the intent to kill Mr Houllis.
Pausing here, I note that the applicant points to the finding by his Honour that it was Mr Hamdach who conceived the plan to teach Mr Houllis a lesson; and that the applicant was a willing accomplice (Karaali at [14]). The applicant points out that, in sentencing Mr Hamdach, his Honour said (Hamdach at [46]): I emphasise this [i.e., that Mr Hamdach's criminal responsibility was for constructive murder] because on the findings that I have made, the offender [Mr Hamdach] did not intend to kill Mr Houllis, nor did he intend to inflict grievous bodily harm upon him or even foresee that Mr Karaali would form and act upon that intention. and that his Honour also observed that (Hamdach at [8]): While not entirely eschewing the applicability of constructive murder, Mr P Hogan, Crown Prosecutor, contended that the whole episode was covered by the doctrine of extended joint criminal enterprise and from that later point in time, which I will clarify, the nature of the offender's responsibility was as a participant in a joint criminal enterprise to inflict grievous bodily harm upon Mr Houllis, causing his death.
However, any suggestion that his Honour was not well aware of the fact that the applicant was not the instigator of the original agreement to confront Mr Houllis cannot be sustained (Karaali at [45]).
Having taken into account a number of factors relevant to the determination of the objective seriousness of the offending (Karaali at [45]-[49]), his Honour concluded that the objective seriousness of the offending was above the mid-range (Karaali at [50]).
The matters that his Honour took into account in this regard included the following. First, that the offence was committed with the intention to kill, which was generally regarded as more serious than the intention to inflict grievous bodily harm (Karaali at [41], [42]-[43]). Second, that; while the applicant was not the instigator of the original agreement to confront Mr Houllis, he was a willing recruit and had plenty of time to consider the ramifications and pull out; but instead he escalated the confrontation to extreme physical violence. Further, the applicant killed the deceased with his bare hands and feet which required determination to go on with the offending given it is no easy thing to kill an adult by punching, kicking and stomping (Karaali at [45]).
Third, his Honour said that the apparent brazenness of the offending added to its seriousness, being extreme violence committed in public, during the mid-evening when other members of the community were out and about (Karaali at [46]).
Fourth, that the applicant had no personal quarrel with Mr Houllis over the non-genuine electronic earbuds but was nevertheless "prepared to engage in egregiously retaliatory acts over a consumer dispute that most people would regard as trivial", which was "a flagrant example of taking the law into one's own hands" (Karaali at [47]).
His Honour also took into account that: the assault which caused death was relatively prolonged in separate locations (Karaali at [48]) and that Mr Houllis was deprived of his liberty between the different locations and must have been very afraid (Karaali at [48]).
The sentencing judge said that the objective seriousness was increased because the applicant twice directly denied Mr Houllis the opportunity of receiving assistance for his injuries, by persuading passing motorists (who had stopped to ask about his welfare) to move on; and his Honour said that the applicant left Mr Houllis on the side of the road when he must have known "he was, to say the least, in a very bad way indeed" (Karaali at [49]).
His Honour then addressed the victim impact statement by Mr Houllis' mother before turning to the applicant's subjective case.
As to the subjective case, his Honour referred first to the applicant's family background (from [53]), noting that: the applicant was born in Lebanon in 1994; the applicant was 26 years old at the time of the offence and 29 years old when he was sentenced (Karaali at [53]); the applicant had a disadvantaged upbringing, his father having substance abuse issues involving alcohol and drugs, which led to the breakdown of his parents' marriage when he was around 8 years old. His Honour noted that the applicant's mother's evidence was that under Lebanese law a father has custody of children over the age of 7 (Karaali at [54]). When his parents separated in 2002 his father took the applicant (who was then aged 8) and his older brother to Australia, leaving his mother and sisters in Lebanon. His Honour noted that the applicant's father continued to have substance abuse issues in Australia, and that his brother also suffered from an addiction to illicit drugs (Karaali at [56]; [63]).
The applicant's mother said that during her visits to Australia to see her sons, she witnessed her ex-husband using corporal punishment on the applicant; and she believed that things were worse in the home when her ex-husband remarried and started a new family with his new wife (Karaali at [59]).
The applicant disclosed for the first time to the psychologist who examined him prior to the sentence proceedings that he had been sexually assaulted on one occasion after arriving in Australia by a man in the toilet block of the primary school he was attending (Karaali at [55]). The psychologist Dr Furst described the longtime effect of child-sex abuse on the mental health of survivors (Exhibit 1 in the sentence proceedings was Dr Furst's report dated 28 May 2023). The applicant completed his high school and subsequently completed a computer aided drafting course at TAFE (Karaali at [56]).
The applicant began smoking cannabis when he was around the age of 14 or 15, and this became a regular habit. The applicant began using methylamphetamine at the age of 19, and this became a daily habit in his twenties. The applicant used cocaine in his twenties approximately twice a week (Karaali at [58]).
At the age of 20, the applicant formed a relationship with a younger girl. She moved into his family home and became pregnant with the applicant's son, who was born in 2014. She later left them. The applicant's mother said that the applicant had difficulty coping with this setback. The applicant's mother believed that neither the applicant nor the child's mother was capable of looking after the child and, with their consent, she took the child with her back to Lebanon and raised him for 4 years. In early 2020, the applicant's mother returned to Australia with the applicant's son, with the idea that the parents would then resume care of the child. However, two weeks after she returned to Australia with the child, the applicant was arrested for this offending and the applicant's mother resumed caring for the child. While at times the child has been cared for by the applicant's stepmother, the applicant's mother expressed her concern that, as at the time of sentence she was aged 60, the child will be left without anyone to look after him if the applicant has to serve a long period of incarceration (Karaali at [60]).
The sentencing judge accepted that the applicant's upbringing was not free of care or from psychological challenges and accepted that the instance of childhood sexual abuse could not be overlooked. However, his Honour was not persuaded that it was the kind of profound childhood deprivation described in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy) which has the effect of reducing his moral culpability for this offending (see Karaali at [61]-[62]).
At [63], his Honour considered the evidence of substance abuse and at [64] the evidence of the applicant's mental health. His Honour noted that Dr Furst had diagnosed a substance abuse disorder and a panic disorder with agoraphobia (the symptoms of the latter first being noticed during an earlier period of incarceration and continuing during his current incarceration). Noting that there was no independent evidence of any treatment being sought for any psychiatric illness while the applicant was in the community, and that the Court was dependent entirely on the applicant's untested accounts to Dr Furst, his Honour considered it difficult to afford much weight to matters relayed to the Court solely through the history given to medical experts engaged for the purpose of giving evidence in sentencing proceedings. His Honour said that it did not appear that the applicant's mental health condition was such as would tend to reduce his moral culpability or render him a less suitable vehicle for general and specific deterrence.
His Honour next turned to the applicant's criminal history. His Honour said that the applicant's previous criminal record was "not very extensive" but that it was sufficient to disentitle him to any claim of leniency (Karaali at [65]). His Honour noted that there was little by way of violent offending on the applicant's record, other than: a conviction for common assault in 2018, for which he was sentenced to prison for 3 months; resisting police; and an aggravated break and enter (in company) to commit a serious indictable offence committed on 20 April 2013. His Honour noted that there were a number of driving whilst unlicensed or disqualified offences, usually taken to be evidence of an attitude of disregard for the law; but no arrest warrants for non-attendance at court or offences of breaches of bail on his record (Karaali at [65]).
His Honour noted that the applicant had served concurrent prison sentences for the common assault committed in August 2018 and for possessing an unauthorised pistol and of not safely keeping the firearm, and had received an earlier suspended sentence for supply of a prohibited drug. His Honour noted that, when he committed the present offence, the applicant was on parole (having been released to his parole about 6 weeks earlier). His Honour noted that the fact that the murder occurred while he was on conditional liberty was a significant aggravating factor for sentencing purposes (Karaali at [67]).
The applicant's parole for possession of an unauthorised pistol was revoked when he re-entered custody on 26 February 2020. His Honour noted that, with adjustment by the State Parole Authority, his sentence for that offence expired on 13 October 2020 and from that date the applicant had been in custody solely by reference to the murder of Mr Houllis (Karaali at [67]).
In written submissions, the applicant points to a Corrective Services print out, which appears to be dated 19 June 2020, which he says reflects an unblemished record of prison disciplinary offences. His Honour made no reference to this in the sentencing reasons and this Court was not taken to any more up to date record of his behaviour in custody.
From [68], his Honour addressed remorse, rehabilitation and risk of re-offending. His Honour noted that the applicant had expressed no remorse, only expressing resentment towards his co-offenders (Karaali at [70]). His Honour said that the absence of remorse made it difficult to express any confidence about the applicant's prospects of rehabilitation (Karaali at [71]). His Honour said that it was not very encouraging that the applicant had reverted to substance abuse following his release to parole and had not acted upon referrals he had received to "various services to address his criminogenic needs" by the time he had offended (Karaali at [71]). His Honour said that it was evident that the applicant was yet to get his drug abuse under control even in custody and his Honour was not so sure that his mental health issues were of a magnitude where they constitute an indicator for future offending one way or another. His Honour was only able to say that the applicant's prospects of rehabilitation were "probably guarded", and that, while recidivism for murder was rare, his general risk of reoffending could not yet be rated as low (Karaali at [72]).
His Honour took into account in the applicant's favour that justice was facilitated by the way the trial was conducted (the applicant not having raised any false issue; the only issue being whether he was the second person involved) (Karaali at [73]).
His Honour accepted that the applicant's incarceration would be a circumstance of hardship affecting the applicant's son; and took into account the evidence that the child had largely been raised by his grandmother and step-grandmother but, while regretting the hardship suffered by any child, the sentencing judge was not satisfied that the circumstances were exceptional such as to entitle him to take that matter into account in mitigation (Karaali at [74]).
The sentencing judge then turned to the issue of parity (from [75]), concluding that the markedly different treatment of the applicant and Ms Kawtharani was justified in circumstances where she had been charged with a different, less serious offence which did not involve any complicity in the murder of the deceased or any knowledge or foresight of the possibility of a fatality; and further that she had a very compelling subjective case (Karaali at [76]).
As to Mr Hamdach, his Honour considered that there were differences between the applicant and Mr Hamdach's case which were significant for sentencing purposes: although Mr Hamdach had been the instigator of the confrontation of the deceased, his criminal responsibility for murder was essentially (even if not entirely) derivative from the applicant's primary responsibility; different findings were made as to the objective seriousness, with Mr Hamdach's matter being assessed as low in the mid-range for constructive murder; Mr Hamdach also had a more compelling subjective case including a significant psychiatric illness that reduced his moral culpability, good prospects of rehabilitation and was unlikely to reoffend. On this basis his Honour considered that different outcomes were required in the respective cases (Karaali at [77]).
Having regard to the facts, matters and circumstances relevant to sentencing outlined in the reasons, his Honour accepted that each of the purposes of sentencing was in play (Karaali at [78]). His Honour considered that, given the nature of the offending, the purposes of sentencing that loomed large were retribution, denunciation and deterrence, noting the callous, cruel and violent way in which Mr Houllis was murdered; and that the taking of Mr Houllis' life, and the taking of the law into the applicant's own hands in a friend's cause, which was so grossly disproportionate to the consequences of his actions required denunciation (Karaali at [78]).
His Honour said that the applicant's subjective case was not compelling "or even very persuasive" (Karaali at [79]). His Honour considered that at the age of 26 at the time of offending the applicant was "certainly well past maturity" and that, from the experience of previous terms of imprisonment he must have been well aware of the consequences of criminal behaviour. While the sentencing judge was not confident about the applicant's prospects of rehabilitation and his risk of reoffending in a general way, he had taken the promotion of his rehabilitation into account in fixing the sentence (Karaali at [79]). The sentencing judge was not satisfied that special circumstances justifying an alteration of the statutory relationship between the non-parole period had been established in the present case and said that the required statutory structure of the sentence would allow adequate time for rehabilitation and reintegration into the community after his release, assuming the applicant would be able to establish eligibility for release at the first available date (Karaali at [82]).
His Honour sentenced the applicant accordingly.

Ground One: Finding as to the applicant's intention at the time of the offence

Applicant's submissions

The applicant accepts that this ground of appeal involves a challenge to the finding of fact by the sentencing judge as to the intention of the applicant at the time of the offence, namely that there was an intention to kill (Karaali at [43]). In light of the amendment to this ground of appeal there is now no challenge to the factual finding made in the sentence proceedings in relation to the intention of Mr Hamdach, namely, that he did not intend to kill or inflict grievous bodily harm on Mr Houllis nor did he even contemplate the possibility that the applicant would assault Mr Houllis with the intention to inflict grievous bodily harm upon him (Hamdach at [46]). Reference is, however, made in the context of the applicant's appeal to the finding made by his Honour as to the credibility of Mr Hamdach's evidence (see 9/8/24 at AT 3.43), namely, his Honour's rejection of the account that Mr Hamdach gave (that account being that he had no intention of inflicting violence on Mr Houllis; that all he wanted was a refund; that he had no reason to inflict harm as Mr Houllis had agreed to provide the refund if he accompanied him home; and that he did not put a stop to the applicant's unexpected and ongoing violent assault on Mr Houllis because he was afraid that the applicant would turn on him) (Hamdach at [17]).
The applicant notes that, in the trial, the issue was one of identity (i.e., whether he was one of the attackers) and that, in the sentence proceedings, there was very little dispute about details of the assault (the issue there being as to his intention in the attack on Mr Houllis). The applicant says that the critical (and most reliable) evidence about what happened in the attack on Mr Houllis was the CCTV evidence (Exhibit A) (see 9/8/24 at AT 3-4), though he also calls in aid a sound recording taken during the initial incident at the car park (on Ms Kawtharani's phone (Exhibit G)). The applicant did not give evidence at the trial, nor did he give evidence on sentence; and he did not make any admissions. The applicant therefore submits that his Honour had no advantage over this Court in determining the issue of intention; the only evidence as to that issue being the evidence of what the applicant actually did.
The applicant submits that the following factors suggest that he did not have an intention to kill Mr Houllis: that he was not apparently armed; that he did not attempt to mask his face; that the vehicle used to drive to the scene (Mr Hamdach's work ute) was readily identifiable; that the offence was committed on a busy intersection with plenty of potential witnesses; and that there was no attempt made to conceal the body of Mr Houllis.
The applicant submits that it was not open to his Honour to find that there was no reasonable possibility that the intention of the applicant was no more than to inflict grievous bodily harm on Mr Houllis.

Crown submissions

The Crown submits that the finding that the applicant had an intention to kill Mr Houllis (at the time that he stomped on his chest and head) was well open to the sentencing judge on the evidence in the trial, including the CCTV footage (Exhibit A) and the evidence of those motorists and passersby who had stopped to check on the welfare of the deceased. The Crown notes that the sentencing judge recognised that the applicant's intention was required to be proven beyond reasonable doubt (Karaali at [7]; [42]).
The Crown points to the escalation of violence that occurred. The Crown notes that when the applicant kicked Mr Houllis in the head (with significant force) at Goulburn Place, Mr Houllis was already so affected by the assault that he was visibly unsteady on his feet (Karaali at [42]); and that after that kick to the head the applicant chased, tackled and further attacked him (which his Honour found demonstrated that the applicant had determination to persist in the attack of the deceased, and that he "was not yet done with injuring" the deceased) (Karaali at [42]).
The Crown points to the sentencing judge's conclusion that when Mr Houllis fell or was thrown to the roadway it must have been obvious to the applicant that Mr Houllis was "in a very bad way" (Karaali at [43]), but that the applicant refused to allow Mr Houllis the assistance and intervention of passing motorists (deceiving those persons with reassurances so as to encourage them to move away from the scene - see Karaali at [28]-[30]).
As noted earlier, the sentencing judge was satisfied beyond reasonable doubt that the acts of the applicant "stomping on the chest of the deceased as he lay prostrate, completely defenceless on the ground" could only be indicative of an intent that went beyond the desire to injure him really seriously and that the applicant must have intended at that stage to kill Mr Houllis (Karaali at [43]). The Crown emphasises that, at that stage, prostrate on the ground, Mr Houllis was already really seriously injured.
The Crown submits that the finding of intention to kill was the only inference that was available from all of the evidence. The Crown argues that, having regard to the vulnerability and state of Mr Houllis at that time (i.e., that he was seriously injured already and prostrate on the ground, defenceless) and that the applicant had further escalated his violence, notwithstanding that he had already achieved the infliction of serious injury, and stomped on Mr Houllis' chest and heavily (twice) on his head, is conduct that can only be reconciled with an intent to kill Mr Houllis. The Crown says that that conclusion is reinforced by the applicant's deliberate attempts to deceive the passersby who checked on the welfare of Mr Houllis so as to thwart their attempts to render some assistance to him.
The Crown says that the applicant's contention that it was not reasonably open to the sentencing judge to exclude that his intention had been only to inflict grievous bodily harm overlooks that at the time that the applicant stomped on Mr Houllis' chest and then his head, it must have been evident to the applicant that he had already inflicted grievous bodily harm.
The Crown points to the following aspects of the CCTV footage: that at 9:42 pm Mr Houllis managed to get to his feet, but that he was unsteady and fell back onto the road; that from 9:43 pm Mr Houllis does not appear to move again; that the applicant and Mr Hamdach lean over him several times, appearing to be inspecting him and the applicant then delivers another forceful strike to Mr Houllis' torso area. The applicant and Mr Hamdach then try to drag Mr Houllis off the roadway while he remains limp and unmoving.
The Crown emphasises that by the time the applicant stomped on the chest of Mr Houllis (at 9:45:30 pm), Mr Houllis had been unmoving (either unconscious or entirely limp) for over two minutes; that at about 9:47:28 pm the applicant appears to try to turn Mr Houllis (who is then face down) over by kicking him but he remains unmoving; and that the applicant and Mr Hamdach continue to stand around Mr Houllis' body looking at him and leaning over him. The Crown notes that at about 9:47:44 pm, Mr Hamdach leans over Mr Houllis and bends down; and that he appears to have an arm reaching down toward Mr Houllis' head or neck area. The Crown submits that it could be inferred that he was checking Mr Houllis' pulse (but it is not necessary to draw such an inference) (see 9/8/24 at AT 16.47). At the time that the applicant delivers the two heavy stomps to Mr Houllis' head at 9:48:02 pm, Mr Houllis had been limp and unmoving for approximately five minutes.
Thus, the Crown says that the state of Mr Houllis was such that there is no doubt that the applicant must have been aware that Mr Houllis was already seriously injured at the time he delivered the further blows to his chest and head; and that in all of those circumstances, it was well open to the sentencing judge to find that the only rational inference was that those further acts of the applicant in stomping on Mr Houllis' chest and head can only have been acts done with the intention to kill the deceased.

Determination

The nub of the applicant's submission on this amended Ground 1 appears to be that at all times he was acting under the instructions or direction of Mr Hamdach, the applicant pointing to the CCTV footage which indicates that Mr Hamdach moved his body in between the applicant and the deceased which prevented a third stomp to the head and noting that there was thereafter no further attempt by the applicant to cause any harm to Mr Houllis (9/8/24 at AT 3.33-43). The difficulty with that submission is that, as the Crown submits, it fails to grapple with the fact that at the time the final blows were administered by the applicant he must have been aware that Mr Houllis had been limp and unmoving for some five minutes (and appeared not to be conscious) and thus he must have been aware that Mr Houllis was already seriously injured.
In those circumstances, the finding that the applicant had the requisite intention to kill Mr Houllis was well open to the sentencing judge on the evidence before his Honour (that being the test to be applied in determining whether there was appellable error in that factual finding - see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, Beech-Jones CJ at CL (as his Honour then was) at [131], N Adams J and Cavanagh J agreeing, citing Azzopardi v R [2019] NSWCCA 306 at [36]-[39] per R A Hulme J, Bathurst CJ and Fullerton J agreeing; and see also Ocek v R [2023] NSWCCA 308, N Adams J at [116] (with whom Stern JA and I agreed)).
Whether or not the applicant was acting under the direction of Mr Hamdach, it remains the case that he cannot have failed to be aware that Mr Houllis was (and had been for no little time) lying prostate and defenceless; yet he administered three stomps with significant force (one to the chest and two to the head) to Mr Houllis. It certainly cannot be said that the finding of intent to kill was not reasonably open to the sentencing judge. The evidence points clearly to such an intent.
Even if the applicable test were to have been that suggested in Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232 by the applicant (which was not accepted in the authorities referred to above), there would not be appellable error in the present case. A viewing of the CCTV footage in my opinion makes very clear that at the time of the administration of the last of the stomps (twice directly to the victim's head) Mr Houllis was seriously injured. The continuation of the violence (and the significant nature of that violence), which followed the applicant falsely dissuading assistance from passersby, makes overwhelming the inference as to the applicant's intent to kill. This is clear from the CCTV footage, which the applicant accepts this Court is in as good a position to review as the sentencing judge was.
The factors relied upon by the applicant as suggesting lack of an intention to kill Mr Houllis (summarised above) do not alter the conclusion that the finding of intent to kill was reasonably open to the sentencing judge; those factors being consistent with the intention to kill being formed during the course of the prolonged attack (and after the initial confrontation at the carpark). The suggestion that, by the time of the stomps to the head that were delivered to Mr Houllis' prostrate body on the nature strip, there could not be excluded any intention beyond an intent grievously to injure Mr Houllis is risible.
No error has been demonstrated as contended by Ground 1.

Applicant's submissions

In relation to parity, the applicant refers both to the objective gravity of the offence and to his subjective case compared to that of Mr Hamdach.
As to the former, the applicant in oral submissions argued that there were factors that took this case away from the worst class of case - in particular, from his point of view that it was Mr Hamdach who was both the instigator and director of what happened; and that Mr Hamdach was in a position to stop what was happening at any time but did not do so (9/8/24; AT 5.12-20). The applicant also pointed to the fact that there was no weapon used as a matter that amounted to an absence of an aggravating factor (9/8/24; AT 5.20).
There does not appear to be a challenge by the applicant to the finding by the sentencing judge that the objective seriousness of his offending was above the mid-range (Karaali at [50]). Rather, the applicant submits that, in terms of parity, the fact that Mr Hamdach was sentenced on the basis of constructive murder does not necessarily mean that the objective gravity of his offending was to be regarded as being reduced (the applicant referring to R v Jacobs; R v Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462 at [332] Wood CJ at CL citing R v Mills (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Cole JA and Sperling J, No 60306 of 1994, 3 April 1995) and R v JB [1999] NSWCCA 93).
As to the respective subjective cases, the applicant's subjective case has been set out earlier in these reasons. As to Mr Hamdach, the applicant concedes that Mr Hamdach had a better subjective case but says that this was "not by a great degree" (9/8/24; AT 6.39). Mr Hamdach's subjective case was summarised as follows.
Mr Hamdach was born in Lebanon in 1992 and was 27 or 28 at the time of the offence. Mr Hamdach's mother had been born in Australia and, when she was aged 13, she returned to Lebanon for an arranged marriage (Hamdach at [53]). Mr Hamdach gave a history of being the victim of violence at the hands of his father (who was also a perpetrator of domestic violence directed at Mr Hamdach's mother). The family migrated to Australia when Mr Hamdach was 12 years old. The violence from Mr Hamdach's father continued in Australia, including the imposition of "military-style discipline" (including tying him up and locking him in the bathroom). Mr Hamdach was diagnosed as suffering from PTSD and Dysthmic Disorder at the age of 15 (Hamdach at [55]-[56]).
Mr Hamdach's mother ultimately left his father, taking the children with her. Mr Hamdach completed the HSC, and qualified as a tradesman carpenter. He was employed until the time of his arrest (Hamdach at [55]; [57]).
Mr Hamdach was in a stable relationship at the time of his arrest and had three children, at least one of whom had been diagnosed with autism and attention deficit disorder (see Hamdach at [55]-[57]; cf 9/8/24; AT 6.45).
Mr Hamdach had three matters on his record, which did not involve personal violence (Hamdach at [58]), but the applicant submits that Mr Hamdach's record was not much different to that of his own (9/8/24; AT 6.48).
Two psychiatrists who had examined Mr Hamdach (Dr Nielssen and Dr Allnutt) gave evidence. Dr Nielssen was of the view that Mr Hamdach suffered from a schizo-affective disorder. Dr Allnutt was sceptical about this because of his concerns about the genuineness of Mr Hamdach's presentation (Hamdach at [65]; [67]). His Honour said that, "while not thoroughly convinced", he accepted that on the balance of probabilities Mr Hamdach suffered from a schizo-affective disorder (Hamdach at [70]).
His Honour found that Mr Hamdach's expressions of remorse were sincere (Hamdach at [72]) and that it was highly unlikely that he would re-offend (Hamdach at [73]).
His Honour indicated that, but for Mr Hamdach's plea of guilty, he would have imposed a sentence of 18 years' imprisonment. However, applying a discount of 10% for the plea of guilty, and rounding down, his Honour fixed a head sentence of 16 years 2 months imprisonment. His Honour was not satisfied that special circumstances had been demonstrated, so he applied the statutory ratio between the head sentence and the non-parole period of 75%, giving a period of 12 years and 6 weeks. His Honour again rounded this down, and fixed a non-parole period of 12 years (Hamdach at [89]-[91]).
It is submitted by the applicant that the objective gravity of the offending by the two was very similar, saying that on any view, realistically, this was a joint enterprise (9/8/24; AT 7.12-13). Indeed, the applicant argues says that the culpability of Mr Hamdach was greater, he having recruited the applicant and having "instigated, organised and directed the offence" (9/8/24; AT 7.15).
The applicant concedes that a difference between his position and that of Mr Hamdach was that Mr Hamdach had pleaded guilty, albeit at a late stage; and that he (the applicant) had a more serious criminal record, and was on parole at the time of the offence. However, it is submitted that otherwise the subjective cases of the two men were very similar, noting that they had similarly disadvantaged backgrounds.
The applicant submits that, even taking into account the plea of guilty by Mr Hamdach, there is a stark contrast between the sentences imposed on the two men. The applicant emphasises that the head sentence imposed on him was 10 years greater than the starting point for the head sentence imposed on Mr Hamdach (i.e., the head sentence for the applicant was over 50% more than that imposed on his co-offender); and that the non-parole period fixed for Mr Hamdach was 12 years compared to the non-parole period fixed for the applicant of 21 years (i.e., the non-parole period imposed on the applicant was 75% more than the non-parole period fixed for the co-offender).
The applicant submits that the disparity between the sentence imposed on him and that imposed on Mr Hamdach, is such as to leave the applicant with a justifiable sense of grievance (citing Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46).

Crown submissions

The Crown notes that a complaint on appeal about parity proceeds on the assumption that the sentence imposed on an applicant is otherwise appropriate, including any finding about the objective seriousness of the applicant's offending.
The Crown notes that the sentencing judge expressly considered the application of the parity principle (Karaali at [75]ff) and determined that there were significant differences between the applicant and Mr Hamdach ([77]). The Crown submits that the relevant differences between the applicant and Mr Hamdach well justified the different sentences imposed.
The Crown submits that the fact that Mr Hamdach's criminal responsibility was on the basis of constructive murder was a relevant difference (being derivative from the applicant's primary responsibility) (citing Rosenberg v R [2022] NSWCCA 295 (Rosenberg) and Moran v R [2022] NSWCCA 217 (Moran)). The Crown says that the CCTV footage demonstrates that the applicant's involvement in the physical violence that caused the death of Mr Houllis was far greater than that of Mr Hamdach; and that differentiation in their sentences is consistent with an assessment of their relative criminality in the murder.
The Crown notes that different findings were made as to the respective objective seriousness of each of their crimes based on the evidence and findings in each case: in respect of the applicant, the objective seriousness of the applicant's crime was above the mid-range for offences of its type whereas the objective seriousness of the offence committed by Mr Hamdach was said to be low in the mid-range for constructive murder (Karaali at [77]).
The Crown also points to substantial differences in the respective subjective cases. It is noted that the sentencing judge described Mr Hamdach's subjective case as being "more compelling" than that of the applicant (Karaali at [77]; cf the applicant's subjective case being "not compelling or even very persuasive" at [79]); that his Honour found that the moral culpability of Mr Hamdach was reduced by reason of a significant psychiatric illness, whereas there was no reduction or diminution of the applicant's moral culpability for the offence; and that Mr Hamdach had the benefit of a plea of guilty and a 10% discount for the utilitarian value of that plea. The Crown also points out that his Honour found that Mr Hamdach expressed sincere remorse, had good prospects of rehabilitation and was very unlikely to reoffend.
As to their respective criminal records, the Crown says that the applicant also had a more serious criminal record than Mr Hamdach; and that the sentencing judge found that Mr Hamdach's criminal record was not such as to disentitle him to leniency, whereas the applicant's criminal record was such as to disentitle him to leniency (Karaali at [65]). The Crown notes that a further matter of differentiation was that the sentencing judge found it a significant aggravating factor that the applicant committed the offence while on parole (Karaali at [67]).
In response to the arithmetical calculations in the applicant's written submissions (at [58]), the Crown points out that these involve a comparison between the applicant's non-parole period and the discounted non-parole period imposed on Hamdach (rather than the notional non-parole period prior to application of any discount) but in any event, the Crown submits that the relevant question is whether the degree of differentiation in the sentences was open to the sentencing judge in the exercise of his discretion (having regard to the particular findings made in each of the proceedings relating to the co-offender and the applicant).
The Crown submits that the applicant has not demonstrated that the differences in the sentences was not related to relevant different findings or circumstances, or any disparity which is "gross, marked or glaring" such as to warrant appellate intervention. The Crown submits that the differentiation made by the sentencing judge was one that was open to his Honour in the exercise of his discretion.

Determination

As the Crown has noted, the sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria (see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, per the plurality (French CJ, Crennan, and Kiefel JJ) at [31]); the comparison for parity purposes being between what the agreed facts (or evidence in the trial) in one offender's case demonstrate was that offender's culpability and what the agreed facts (or evidence in the trial) in the co-offender's case demonstrate was the co-offender's culpability.
The sentencing judge, having considered the similarities and differences in the respective cases, concluded that the substantial differences in the circumstances of the applicant and Mr Hamdach were such that very different outcomes were required in each case (Karaali at [77]).
In the present case, I am not persuaded that the disparity between the sentences (stark as it is) is not justified by the differences between the applicant and Mr Hamdach in terms of the objective seriousness of their respective offending and their respective subjective cases; nor am I satisfied that the degree of the disparity in the sentences was not a proper exercise of the sentencing discretion.
As noted earlier, his Honour took into account that Mr Hamdach was the "undoubted instigator and promotor of the joint illegal enterprise" but considered that there were significant differences between Mr Hamdach and the applicant. His Honour noted that he had formed the view, when sentencing Mr Hamdach, that his criminal responsibility was essentially derivative (Karaali at [77]). As the Crown has noted (see Martellota v R [2021] NSWCCA 168, Moran, Rosenberg and R v Dyson [2023] NSWCCA 132), the applicant's appeal against his own sentence is not a means of challenging the findings of fact made in a co-offender's sentence or alleging in error in the sentencing judgment of a co-offender. (Hence the amendment to the applicant's grounds of appeal in the present case.)
It is also relevant to note that a complaint of lack of parity is more difficult to sustain when one or more co-offenders have been dealt with by the same sentencing judge who has recognised the parity principle and given effect to it (see Neale v R [2024] NSWCCA 159 per Sweeney J at [66] citing Croke v R [2021] NSWCCA 294). As R A Hulme J observed of a parity claim in Lloyd v R [2017] NSWCCA 303 at [96]: It is a basic principle of appellate review of sentencing that 'there is no single correct sentence' and 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies' ... That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise. In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?
In the present case, there were indeed significant differences between the offenders both as to the role each played in the murder of Mr Houllis and in their subjective cases (including the applicant's more serious criminal record, and lack of contrition or remorse; as well as the different assessment of the offenders' prospects of rehabilitation and likelihood of re-offending).
Ground 2 is not made good.

Applicant's submissions

The applicant referred to various cases as being comparable sentencing cases insofar as they involve a similar fact situation (someone being beaten to death) and young offenders. (The Crown cavils with the description of the applicant as a young offender.) Those cases were: R v Kaewklom (No 3) [2013] NSWSC 59 (Kaewklom); R v Tafuna Taumalolo [2021] NSWSC 1412 (Taumalolo); and R v Lamb & Thurston [2002] NSWSC 1025 (Lamb & Thurston). In summary, the sentences in those cases were as follows.
In Kaewklom, an 18 and a half year old offender with a relatively minor record, who pleaded guilty in the course of the trial, received a head sentence (after a "minor" unquantified discount) for murder of 20 years with a non-parole period of 13 years 6 months. The applicant notes that the sentencing judge was satisfied that there was at least an intention to inflict very serious grievous bodily harm and that it was not necessary to make a finding as to whether an intention to kill ought be inferred to the criminal standard from his actions, the case being one where there was little difference in moral culpability of the offender flowing from his intention. The applicant argues that what his Honour (Johnson J) said in that case (at [104]) is very apposite to the present case. It is accepted that Kaewklom was a younger offender (than the applicant), but the submission is made that there is an enormous difference between that sentence and the present case where there is a head sentence of 28 years (see 9/8/24 at AT 10.3).
In Taumalolo, an 18-and-a-half-year-old offender with no prior criminal history (but who had been punished for assaults while on remand), who pleaded guilty to murder after his committal and was found to have demonstrated contrition, and whose intention was found to be to inflict grievous bodily harm (not to kill) received a head sentence (after a 10% discount) of 18 years 10 months, with a non-parole period of 14 years 1 month. The starting point for the head sentence before discount was indicated to be 21 years. Again, the applicant accepts that the offender in this case was younger than him, but he compares the starting point in that case of 21 years compared to the starting point in his case of 28 years.
In Lamb & Thurston, the two offenders (Lamb 25 when sentenced; Thurston 27 when sentenced), both with prior criminal history and both indigenous with disadvantaged backgrounds, received sentences for murder respectively of 18 years, with a non-parole period of 13 and a half years (Lamb) and 17 years imprisonment, with a non-parole period of 12 years 9 months (Thurston). There was no finding as to the intent of the offenders. The applicant's submission was that in the case of Lamb there were similar objective facts but a much less powerful subjective case; and in the case of Thurston, who was very similar to the applicant's age when sentenced, the applicant again draws a comparison between the starting point in that case (17 years) and the starting point in his own case (28 years).
In response to the Crown's submissions criticising the use of comparable cases (see below), in oral submissions the applicant referred to Moodie v R (2020) 284 A Crim R 87; [2020] NSWCCA 160 where Bell P (as the Chief Justice then was) said (at [83]) that the proper and careful use of comparative sentences played an important role in promoting consistency of sentencing.
The applicant submits that the cases to which he has referred are very similar in relation to the objective gravity of the offences (since they involved a kicking and a stomping) (see 9/8/24 at AT 8.36ff), whereas the Crown's summary of the cases to which it points is incomplete particularly in relation to the aggravating subjective factors for those offenders.
As to the cases to which the Crown draws attention (set out in the summary below of the Crown's submissions), the applicant points to the following additional matters: in R v Sione; R v Dawson [2024] NSWSC 84 (Sione), Sione's significant criminal history and the sentencing judge's rejection of evidence as to a psychiatric condition; and in R v Latu (No 3) [2019] NSWSC 951 (Latu), the evidence of previous violence and the sentencing judge's reference to "a sickeningly repeated pattern of physical subjugation" (at [61]), as well as previous convictions of maliciously inflicting grievous bodily harm and assault on a stranger, and a specific finding that prospects of rehabilitation were poor. The applicant submits that Latu clearly had a much less favourable subjective case (9/8/24; AT 12.3).
As to R v Tangi (No 12) [2020] NSWSC 547 (Tangi), the applicant distinguishes this case by pointing to the finding of significant planning and premeditation; the offender's lengthy criminal history; and the assessment of his prospects of rehabilitation being neither good nor even reasonable, together with the psychologist's assessment of him in the high range of risk of future violence. The applicant says that Tangi had a much worse subjective case than him.
As to R v Erdogan [2023] NSWSC 101 (Erdogan), which the applicant submits was in terms of objective gravity "a worst case", the applicant emphasises the features of the murder and the history of convictions for assault and contravening a domestic violence order; as well as the finding that his prospects of rehabilitation were guarded (see 9/8/24 at AT 12).
Finally, as to King v R [2015] NSWCCA 99 (King), the applicant draws attention to the evidence of the extreme force that must have been used and the circumstances of the killing; as well as the fact that there was a previous history of violence including towards a stranger in the street (see 9/8/24 at AT 13). These cases will be addressed further below in the context of the Crown's submissions.
The applicant maintains that, even taking into account all the cases to which the Crown has referred (see below), the sentence imposed on him of 28 years with a non-parole period of 21 years was manifestly excessive.

Crown submissions

The Crown emphasises that the sentencing judge found that the applicant's offending fell above the mid-range for offences of this type; and notes that the maximum penalty for this offence was life imprisonment, with a standard non-parole period of 20 years. The Crown submits that a comparison between the finding as to objective seriousness and the legislative guideposts of the maximum penalty and standard non-parole period does not support the applicant's contention that the sentence was unreasonable or plainly unjust.
The Crown says that the violence was extreme, gratuitous, brutal and extended, noting that the applicant actively took steps to prevent Mr Houllis from being given any medical assistance. The Crown says that the applicant's subjective case did not operate to mitigate the penalty to be imposed in any significant way, noting that: there was no factor that reduced his moral culpability; the applicant's criminal record disentitled him to leniency; the applicant had committed the offence while on parole; the applicant demonstrated a striking absence of any remorse or contrition in respect of the offending; and the sentencing judge was unable to make any positive finding regarding the applicant's likelihood of reoffending or prospects of rehabilitation.
The Crown points out that the murder was one committed in retribution for perceived offending committed against the co-offender (Mr Hamdach) and submits that the law does not tolerate vigilante justice (the offence therefore calling for strong denunciation). The Crown submits that the sentencing judge's observation as to the need for general deterrence and denunciation in such circumstances was orthodox and particularly apposite.
The Crown says that there is little assistance gained in assessing whether a sentence is manifestly excessive by comparison to one or two cases bearing some objective or subjective similarities to the matter under appeal; rather, that the applicant is required to establish that the sentence is so far outside the range available to the discretion of the sentencing judge as to be clearly wrong. In particular, the Crown says that reliance on a small number of sentencing judgments in other matters is not a useful means of establishing a benchmark against which the reasonableness of a sentence for an offence of murder is to be measured; as murder is a protean offence and each case depends on its own facts (citing King at [80]).
As to the comparative cases relied upon by the applicant, the Crown says that the objective criminality and offenders' subjective cases in those matters offer no close correlation with that of the applicant. In that regard, the Crown points to the following.
First, that none of the three cases relied upon by the applicant involved a finding that the offender had an intention to kill the deceased. Second, that the applicant was not sentenced on the basis that he was "a young offender", noting that the sentencing judge found that "[a]t age 26 at the time of the offending, he was certainly well past the age of maturity and from his experience of previous terms of imprisonment, must have been well aware of the consequences of criminal behaviour" (Karaali at [79]). In that regard, the Crown notes that Kaewklom and Taumalolo involved offenders who were 18 years old.
Third, the Crown emphasises that, unlike the present case, Kaewklom and Taumalolo involved matters where the offender had entered a plea of guilty. Fourth, that in both Taumalolo, and Lamb & Thurston, the offenders had expressed remorse; and in Lamb & Thurston the offender had himself telephoned an ambulance to assist the deceased (whereas here the applicant had dissuaded others from assisting Mr Houllis).
Fifth, that in Lamb & Thurston the offenders were both indigenous men from deprived backgrounds and the sentencing judge found that the principles discussed in R v Fernando (1992) 76 A Crim R 58 were applicable, whereas in the present case, the sentencing judge found that the background was not of such deprivation as to give rise to the principles in Bugmy.
Finally, the Crown notes that the offender in Taumalolo also had a neurocognitive disorder.
The Crown for its part referred to the following cases as matters with some similarity to the present, namely where a sentence was imposed after a trial for murder where the death is occasioned through physical assault or extreme violence: Sione; Latu; Tangi; Erdogan; King.
In summary, the sentences in those cases were as follows (and I have added into this summary the matters to which the applicant drew attention in oral submissions).
In Sione, the offender Sione (who was 32 years at the time of the offence) was sentenced to 32 years imprisonment (with a non-parole period of 24 years) as party to a joint criminal enterprise to inflict grievous bodily harm on a 16 year old boy (as punishment for an alleged theft of electronic earbuds belonging to another offender, Dawson). The applicant notes that the attack took placed over 33 minutes and Sione initiated the attack. Sione was 32 pyears old at the time of offence and had a "significant criminal history", having served prison sentences for robbery and he was on parole at the time of the murder. The sentencing judge did not accept that Sione had a psychiatric condition which reduced his moral culpability because the judge was not satisfied of the reliability of the account he gave to his psychiatrist. There was no diminution of Sione's moral culpability for the offence (see 9/8/24 at AT 11.16-31).
In Latu, the offender, who was 31 when sentenced, was found to have an intent to cause grievous bodily harm, not an intent to kill. He was sentenced to 28 years imprisonment (with a non-parole period of 21 years) after conviction at trial (the sentencing judge finding the objective seriousness of the offence, one of domestic violence, to be well above midrange). Latu had a criminal record and was found to have a tendency to be violent towards women. The offence took place while he was subject to a good behaviour bond. The sentencing judge found that his prospects of rehabilitation were poor. (See 9/8/24 at AT 11.33-12.3.)
In Tangi, the offender (28 years old at the time of offence) was sentenced to 30 years imprisonment (with a non-parole period of 22 years 6 months) after conviction at trial. The offender was found to have had an intention to cause grievous bodily harm (not an intention to kill). The offence was assessed as above mid-range; and the offender had expressed no remorse. There was no assessment report because he declined to be interviewed. A psychologist assessed him in the high range for risk of future violence. The sentencing judge assessed his prospects of rehabilitation as "neither good nor even reasonable" (at [64]) (see 9/8/24 at AT 12.5-21).
In Erdogan the offender, who was 19 and a half years old at the time of the offence, was sentenced to 35 years (with a non-parole period of 24 years) after trial for the murder of a 17 year old victim (who the offender and his co-offenders believed had gone through the offender's possessions). The offender had arranged to "soundproof" the house (to avoid detection) and changed into work boots to kick and stomp the victim. The offender was found to have formed the intention to kill the deceased; there was no remorse; prospects of rehabilitation were guarded; and the offender had long-standing mental health issues. The assault upon the victim extended for approximately two hours. Erdogan was found to be the instigator of the murder. The sentencing judge found that there were features of gratuitous cruelty which amounted to torture. The offender had a minor criminal record but convictions for assault and contravening a domestic violence order.
Finally, in King, the offender (aged 27 when sentenced) was sentenced to 32 years (with a non-parole period of 24 years) after trial for the murder of his former girlfriend. The objective seriousness of the offence was found to be above the mid-range. The assault took place over a half hour period (following previous threats and some failed attempts to gain entry to the deceased's apartment). The forensic pathologist, Dr Brouwer, said that the injuries the deceased suffered must have involved an extreme amount of force (and that, in her 20 years' experience, apart from high velocity motor vehicle accidents, she had never witnessed blunt force injuries of the kind sustained by the deceased). The sentencing judge was satisfied that there was an intention to kill. The offender had a record of violence; he was on parole and a good behaviour bond at the time of the murder. The offender had expressed remorse. The Crown notes that, on appeal, the sentence imposed was not disturbed.
Insofar as the applicant points to the sentence imposed on Mr Hamdach for comparison purposes, the Crown notes that in dispute at his sentence proceedings was whether Mr Houllis was killed as part of a joint criminal enterprise to inflict grievous bodily harm (as the Crown contended) or (as Mr Hamdach accepted) Mr Houllis was killed during the course of a joint criminal enterprise to take and detain him, in company with the applicant (contrary to s 86(3) of the Crimes Act 1900 (NSW)), and immediately before that offence had inflicted actual bodily harm (i.e., that he was guilty of murder on the basis of constructive murder). After application of the discount for his plea of guilty, Mr Hamdach was sentenced to imprisonment for 16 years and 2 months (with a non-parole period of 12 years).
The Crown does not suggest that any one of the cases to which it drew the Court's attention was on all fours with or shares the entirety of the objective and subjective features of the present case but the Crown points to these as examples of similar matters in order to indicate that the range of sentences is somewhat different from the range suggested in the three cases to which the applicant referred (those three cases involving significantly younger offenders with, the Crown says, significantly better subjective cases) (see 9/8/24 at AT 13.48-14.10).
As to the applicant's submission that the subjective matters in each of the cases to which the Crown referred were significantly worse, primarily by reference to the offenders' criminal records and other offending, the Crown points out that in most of those cases a finding was made that the offender's particular history disentitled him to leniency but in no case was there a finding that the history aggravated the offending in the matter to be sentenced (see 9/8/24 at AT 14.12ff). The Crown points out that the exact finding was made in the applicant's case (i.e., that his record disentitled him to any leniency).
Insofar as the applicant has pointed to the fact that in some of the matters to which the Crown referred the offenders were on conditional liberty, the Crown points out that so was the applicant in the present case. The Crown accepts that the records of the offenders in the cases to which it has referred were not identical to that of the applicant, but it points to the similar findings in those cases as to objective seriousness of the offending, and the similarity as to the mode of death.
As to Erdogan and King, the Crown accepts that there were additional aggravating factors in the former but points out that those two cases were the only two in all the comparative cases here being considered (including those raised by the applicant) where it was found that there was an intention to kill (AT 14.37-50).
The Crown emphasises that the sentence imposed was on the basis of a finding of intention to kill and where the objective seriousness of the offending was above the mid-range. The Crown argues that in those circumstances the standard non-parole period after trial has some weight; and that when a comparison is made of the standard non-parole period and the sentence imposed, the Crown says that it is difficult to sustain an argument that it is an unreasonable sentence (see 9/8/24 at AT 15.16-19).
Thus, the Crown maintains that the sentence was neither unreasonable nor plainly unjust.

Determination

As the Crown submits, to succeed on a manifest excess ground on a sentence appeal, the applicant must establish that the sentence was "unreasonable" or "plainly unjust". The Crown points out that consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence; that sentencing is not a mathematical exercise but, rather, a sentence is reached by balancing many different and conflicting features; and that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle.
In the present case, the applicant has not demonstrated that the sentence imposed on him is unreasonable or plainly unjust. In my opinion, the sentence was one that was open to the judge in the exercise of his sentencing discretion.
Here, as is clear from the CCTV footage, the attack on the nature strip where the victim lay prone face down was violent and perpetrated on a defenceless (indeed, apparently unconscious) victim. It was an attack instigated (by the co-offender, Mr Hamdach) for the purpose of retribution for a relatively minor offence albeit one in which the sentencing judge found the applicant to be a willing accomplice. It was senseless in the extreme. On the sentencing judge's unchallenged findings (and on the finding of an intent to kill which has not been successfully challenged), the need for denunciation and general deterrence was clear. The fact that, on his Honour's findings, there was no compelling subjective case is also significant. There was no plea of guilty; no contrition; no remorse; the applicant's prospects of rehabilitation were guarded; and the likelihood of co-offending not low. The objective seriousness of the offence was understandably found to be above the mid-range for an offence of murder; and also to be taken into account was the fact that the applicant twice had the opportunity to cease the violence and to permit the victim to obtain assistance (and to do so at a time when Mr Houllis' injuries were considered likely to have been "survivable").
In all the circumstances, and having regard to the range of sentences in and circumstances of all of the cases put forward as comparable, the sentence imposed was in my view within the range of acceptable sentencing outcomes. Ground 3 is not made good.

Conclusion

Accordingly, I would grant leave to appeal but would dismiss the appeal.
WILSON J: I agree with Ward P.
SWEENEY J: I agree with Ward P.

Amendments 27 August 2024 - amendment to headnote 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: 27 August 2024

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (33)

Cited By (1)