Manly v R; Hussein v R; Barghachoun v R

Manly v R; Hussein v R; Barghachoun v R - [2014] NSWCCA 59 - NSWCCA 2014 case summary — Zoe

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Counts 1 and 2 19Evidence given by Adam Naje at a previous trial was read to the jury (commencing at T128). Mr Naje said that on the evening of 19 August 2011 he was at a BP Service Station in Silverwater filling his father's shuttle bus. Exhibit X (at AB218) is a map of the Silverwater area which shows the BP service station at the corner of Silverwater Road and Egerton Street. 20Mr Naje described (commencing at T128 L35) being approached by a person (who on the Crown case was Hussein) wearing a hooded top who asked him for the keys to the vehicle. Another person (on the Crown case Barghachoun) then jumped in the driver's side of the bus. Without handing over the keys, Mr Naje ran into the shop at the service station and locked himself in a room at the back (at T131 L5). He remained there for 10 to 15 minutes before coming out and calling 000 (Exhibit F). Mr Naje was not able to say what the first man who approached him was wearing on the bottom half of his body (at T129 L12). 21Having been unsuccessful in taking Mr Naje's vehicle, the persons alleged by the Crown to be Hussein and Barghachoun then turned their attention to a black BMW sedan which was in the forecourt of the service station being filled by Adrian So. Mr So gave evidence (commencing at T43 L1) that he saw two men approaching the service station. He said that he saw one of them approach the passenger's side of Mr Naje's bus whilst the other approached the driver's side. He said that both men were wearing dark "hoodies", and that one of them (on the Crown case, Hussein) was also wearing covering from the nose down (at T45 L9). He was not able to see what that person was wearing on his bottom half (at T45 L36). 22Mr So said that there was a sudden scream before he saw Mr Naje run inside the shop adjacent to the service station (at T44 L41 and following). He said that one of the men (on the Crown case, Hussein) then ran and attempted to gain access to the shop (at T45 L40-44). 23Mr So said that the other man (on the Crown case, Barghachoun) then approached him and asked him for his keys whilst trying to open the door of his car (at T45 L43). Mr So then said that the man who had the face covering came over and that he had a gun in his hand (at T47 L35). Mr So did not hand over his keys. He then observed the two men walk towards Egerton Street (at T 47 L32) before calling 000 at 9.19 pm (Exhibit A, T 49 and 481). 24The two service station attendants who were working on that evening, a Mr Shanmughanathan and Mr Devineni, gave evidence which was generally consistent with that given by Mr Naje and Mr So. In terms of the time at which the incident occurred, there was evidence that at 9.18 pm a call was initiated by a 000 operator to the service station which lasted 3 minutes and 54 seconds, concluding at 9.22 pm. On the evidence that was a call between the 000 operator and Mr So. A 000 call was received from Mr Naje at 9.25 pm and lasted for 4 minutes and 1 second, concluding at 9.29 pm. It follows that the incident occurred at or around 9.15 pm. 25CCTV footage of the incident was tendered by the Crown (Exhibit DD). The Court was provided with that footage and I have viewed it several times. It variously shows two men, both wearing hooded tops, walking across the forecourt of the service station and approaching Mr Naje's shuttle bus. One of them, alleged to be Hussein, is wearing camouflage pants, whilst the other is wearing dark pants which appear to have writing down one leg. Their faces are not clearly visible. Moreover in my view, it is not possible from the footage itself to determine what, if anything, the person alleged to have been Hussein may have been carrying in his hand. 26It was not suggested by the Crown that the CCTV footage depicted Manly and he was not otherwise identified as having been present at the service station. On the Crown case, Manly was nearby in his motor vehicle playing what was said to be a supportive role for Hussein and Barghachoun. In support of its case against Manly on these counts, the Crown placed particular reliance upon inferences to be drawn from a telephone call which was recorded as having been received at 9.10 pm on a mobile telephone used by Manly, and which had passed through a particular telecommunications tower. I have dealt with this issue in more detail below.

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Count 3 27By reference to Exhibit X, if one proceeds north along Silverwater Road from Egerton Street (i.e. from the location of the BP service station) the next intersecting street is Fariola Street which runs generally parallel to Egerton Street. Making a right hand turn from Silverwater Road into Fariola Street leads to Wetherill Street North (Exhibit M4; T463) where the Vittoria Coffee Warehouse marked on Exhibit X is located ("the warehouse"). 28On the evening of 19 August 2011 Kamel Bakri went to work as a security guard at the warehouse. He recalled arriving at about 9.00 pm in a silver Mazda vehicle which belonged to his business partner (at T403 L34). He explained that there was a sliding gate and a boom gate at the entrance to the warehouse premises (T405 L40). There was (inter alia) a lap top computer in the vehicle, along with an amount of cash. 29Mr Bakri gave evidence (commencing at T407 L12) that when he was waiting for the gate to open, someone knocked and opened the door of his vehicle saying "Leave your car, I need your car". He described hearing "the cracking of a gun" although he could not see what the person who spoke to him was holding (at T408 L45). Mr Bakri then got out of his car and the person jumped in and reversed straight away before driving off. 30Mr Bakri could provide little in the way of a description of the person who had ordered him from his car. He had a partial view of the person's cheeks, which he described as having "like pimples" (at T410 L22). He described the person (commencing at T421 L28) as wearing cargo pants which were light in colour. He said (at T422 L26) that he could not remember if the pants had a pattern but agreed (at T422 L29) that he said nothing about a pattern when he called 000 (Exhibit Y; T419; T480). He later viewed 20 photographs shown to him by police but was not able to identify the person who had ordered him from his car (at T425 L32-47). He also agreed (at T425 L16-30) that he heard the cracking of a gun but did not actually see any firearm. 31Mr Bakri also gave evidence (commencing at T412 L29) that he saw another car which had parked behind, and about 3 metres to the right of, his vehicle after he had stopped at the boom gate. On the Crown case, that was a blue Subaru vehicle driven by Manly. Mr Bakri was asked to describe that car and gave the following evidence (commencing at T412 L46): Q Can you describe that vehicle? A It was a dark blue colour. Q Yes? A And I don't know what model it was back then but I said it was like a Golf, a Volkswagen, like the new shape, the one ones because, and maybe it looks like a WRX. The both of them, these two cars, looked the same. Q Okay, well you just tell us what you remember? You remember it being a blue - a dark blue colour? A A dark blue colour. I don't know nothing else. I can't remember nothing. Q So you are not able to say what make it was? A No, they - because they drove off straight away. ... Q At the time when the blue car drove away -- A Have a big exhaust, sports exhaust. Q Okay, all right, it had a big sports exhaust? A Yes, its loud, sorry, yes. Q Is there anything else you remember about that car? A No, not really. 32When cross examined (at T430 L41) Mr Bakri agreed that he had told the 000 operator that the blue vehicle he had seen was a hatchback. When asked whether this reflected his initial impression of the vehicle, Mr Bakri said (at T430 L45): "Can't really say because I'm telling you it was wet like you saw, and dark so I couldn't see anything". 33When asked whether his initial impression was that the vehicle was more like a Golf than a Subaru, Mr Bakri said (at T431 L6): "Can't say anything but the thing is why I thought it's a Golf because the colour of it and I know someone that's got the same colour car you know what I mean, that's why I say it looked like a Golf, that's all". 34There was CCTV footage from the warehouse tendered before the jury in the form of two separate CDs which became Exhibits B and C (although it is noted that when the CDs were originally tendered (at T96 and T98 respectively) the transcript records them as having been marked Exhibits "2" and "3" which is obviously incorrect). Both were produced by Jodan Tran, the IT Manager at the warehouse. They were played to this Court in the course of the hearing and I have since viewed each of them several times. 35Exhibit B is of 3 minutes and 3 seconds duration. Bearing in mind the evidence given by Mr Tran and Mr Bakri when Exhibit B was played to each of them when giving evidence at the trial, what can be seen on the footage may be summarised as follows: (i)for the first 38 seconds the camera is trained upon a partially open roller door to the right of screen; (ii)at the 39 second mark a male in a yellow fluorescent vest (identified by Mr Bakri (commencing at T419 L15) and Mr Tran (at T95 L13) as a security guard) is seen to walk from right to left pointing towards something across to the left which is not in view. He then appears to pause, lift his right arm and point to the left before turning around and moving back from left to right and out of view; (iii)at the 47 second mark, a moving shadow can be seen on the left of the screen, consistent with the security guard having just opened a gate with a remote control; (iv)after the security guard disappears from view, the camera remains trained upon the view described in (i); (v)at 1 minute and 43 seconds Mr Bakri (who is identified at T419 L2) appears and walks from left to right speaking on a mobile telephone. The camera thereafter remains trained upon the view described in (i) until the end. 36Exhibit C is of 3 minutes and 1 second duration. The footage is taken from a still, but apparently elevated, camera and depicts (from a distance) a car park area described by Mr Tran (at T94 L41) as being located "just to the left" of the camera from which the footage in Exhibit B was taken. The footage in Exhibit C depicts the car park area in the foreground with two boom gates in the background, one to the left and another to the right. Wetherill Street (identified by Mr Bakri at T427 L39) runs behind the boom gates. What can be seen from viewing Exhibit C may be summarised as follows: (i)at the 14 second mark a car drives along Wetherill Street from left to right and turns into the driveway to face the boom gate on the right. The glare from the headlights, along with the circumstances in which the footage was taken, do not enable me to determine the colour, make or model of the vehicle, although other evidence establishes that it is the Mazda vehicle driven by Mr Bakri; (ii)at 1 minute and 32 seconds another car ("the second car"), alleged by the Crown to be the blue Subaru vehicle driven by Manly, travels along Wetherill Street from right to left before coming to a stop behind, but slightly to the left of, Mr Bakri's car which is still stopped facing the boom gate on the right; (iii)at 1 minute and 48 seconds the boom gate on the right is seen to rise, but Mr Bakri's Mazda remains stationary and does not enter the car park; (iv)at 2 minutes and 17 seconds the second car moves off to the left along Wetherill Street; (v)at 2 minutes and 22 seconds Mr Bakri's Mazda reverses on to the roadway and follows the second car; (vi)at 2 minutes and 27 seconds Mr Bakri is seen standing on the footpath before walking into the car park through the open boom gate and across to the right; (vii)at 2 minutes and 54 seconds the boom gate lowers, at which point a separate steel gate can be viewed closing simultaneously. 37Although it is possible to conclude from viewing Exhibit C that the car alleged to be that of Manly is blue, it is not possible to determine the make or model. Indeed, the Crown Prosecutor in his opening address said to the jury (at T25 L10 to L16): ".... the Crown case is that this was Mr Manly's blue Subaru WRX being driven by Mr Manly. Again the Crown does not say that you could identify it as that car based just on Mr Bakri's evidence or the CCTV footage, the Crown asks you to draw an inference based on all of the circumstances including all of the subsequent events and evidence that I will come to" (my emphasis). 38The Crown case was that having left the warehouse, the silver Mazda carrying Hussein and Barghachoun, and the blue Subaru driven by Manly, with (at some point) Riley as a passenger, commenced to travel north along the Pacific Highway to Bulahdelah. In order to establish that the two vehicles travelled to Bulahdelah, the Crown relied on the telephone evidence discussed below.

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Count 6 40Norman Evans gave evidence that he left a Bankstown freight depot in his truck on the evening of 19 August 2011 and drove north. His destination was Clybucca. When he reached the southern outskirts of the township of Bulahdelah he slowed down due to road works. At that time he noticed what he described as a small silver car parked at the side of the road (at T166 L15). As he entered the township of Bulahdelah the silver car then overtook him at a speed he thought was about 80-90 km/h. He could not see the occupants of the car (at T167 L20). 41Having passed through Bulahdelah, Mr Evans was descending a hill on the northern side of the town when the silver car which had earlier passed him pulled out from the left hand side and stopped directly in front of him (at T168 L4 to L33). Mr Evans said (commencing at T169 L2) that a man ran in front of the truck, opened the driver's side door and ordered him to get out. Mr Evans got out and went to walk around the back. He was directed to the front and got down on his knees, at which time the person who ordered him out fired a shot into the ground. On the Crown case, the person who fired the shot was Hussein. 42Mr Evans said (commencing at T169 L34) that when he got out of the truck he left the driver's door open, and that when he was down on his knees he heard what sounded like the door closing. He then heard the back doors of the truck opening (at T170 L5). Mr Evans looked towards the back of the truck and saw what he described as a "set of legs" between the tray of the truck and the roadway (at T170 L26 to 32). 43Mr Evans then noticed the headlights of cars that had pulled up behind his truck. He said (commencing at T170 L38) that the person who had directed him out of the truck "fired a couple of shots into the ground and told (the drivers of those other cars) to fuck off". The cars then left. 44Mr Evans said (commencing at T 171 L7) that he heard the back doors of the truck closing and (at T171 L24) that he "thought" that the man with the gun walked back down and entered the passenger side of the truck. He then heard the truck "kangarooing" down the street before hearing the sound of the back door swinging open and hitting the side of the truck. Mr Evans then gave evidence (commencing at T171 L34) that it sounded as if "the passenger had got out of the truck again, gone back to close the door and at the same time another couple of cars had pulled up behind the truck again ..... he has fired another couple of shots into the ground and told them to leave abruptly .... And then they closed the door, he has come back down, they left, he has come back down, got in the truck and then they left". 45It should be noted that the Crown case was that Hussein fired the shots but that Mr Evans' truck was driven away carrying Barghachoun and Riley. Mr Evans' evidence (in [44] above) that the man who had fired the shots entered the truck immediately before it was driven away was not consistent with the Crown case. 46Mr Evans was not able to see the face of the person who had ordered him out of the car. He described him as wearing a "hoodie", along with a scarf which covered from the bottom of his nose downwards, and carrying a greyish coloured gun in his right hand. He was not able to see what the person was wearing on his bottom half (T172 L28 to T 173 L29). 47One of the vehicles which pulled up whilst Mr Evans was on the ground was driven by Robert Frame, who gave evidence that as he was travelling north along the Pacific Highway he saw a white truck, behind which a silver Commodore vehicle was stopped. Mr Frame stopped behind the Commodore and noticed that the back doors of the truck were closed (at T83 L45). He described (at T83 L48 to T84 L40) two men jump out of the back of the truck, one of whom was carrying a pistol in his right hand (at T85 L18). He said that this man ordered him away and fired three shots, one into the air and two into the ground (at T85 L46). He described the man with the gun as wearing camouflaged jeans (at T 85 L17). 48Mr Evans left the scene immediately upon the shots being fired (at T85 L45 to T86 L 3). He was not in a position to see where the person with the gun may have gone after the shots were fired. 49Another of the motorists who stopped behind the truck was Glenn Hannaford. Mr Hannaford gave evidence (commencing at T199 L9) that he and his wife had been driving through Raymond Terrace earlier in the evening at which time a silver Mazda sedan had overtaken them at an estimated speed of 150km/h. Mr Hannaford was not able to see the occupants. He said that he then passed what he thought was the same car stopped by the side of the road further north along the highway (at T199 L36-40) after which it passed him again at about the same speed. He was again not able to see the occupants (at T200 L35). 50Mr Hannaford said (commencing at T 200 L45) that when he reached the northern side of Buladelah he saw a white truck stopped in the middle of the road and the silver Mazda which had earlier passed him parked in front of it. He stopped his vehicle immediately behind the truck. He saw that the doors were closed but said (at T201 L30 to 40) that he saw a leg come out of the back of the truck and then go back in, from which he concluded that there was someone inside. He then saw another person get out of the passenger side of the truck and approach his car. According to Mr Hannaford, that person produced a gun and fired it before ordering him away (at T202 L1-13). He described the gunman (commencing at T 202 L25) as being covered from head to toe wearing a hooded jacket, with something dark covering his face from the nose down, and cargo type pants with green army camouflage. 51As was the case with Mr Frame, Mr Hannaford left the scene as soon as the shots were fired and could not determine where the person with the gun may have gone. 52Mr Hannaford's wife also gave evidence (commencing at T 217). Her account of the silver Mazda passing their vehicle was consistent with that of her husband. However according to Mrs Hannaford, when she and her husband stopped behind the truck the left rear door was open and she saw a man running from the right side of the truck and then get into the back (at T 219 L44 to T220 L14). She said (commencing at T 221 L25) that she then saw another man come from the right hand side towards her vehicle. The man was completely covered and when he had reached a point approximately 3 metres from her vehicle, he pulled out a gun and fired a shot into the ground before ordering her and her husband away (at T222 L8-27). She could not further describe him.

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Other evidence 61The Crown called John Abassi, a self employed truck driver, who gave evidence (commencing at T 339 L1) that he had known Barghachoun for between 3 and 9 months. He said that Barghachoun had asked him about "collecting a load that he needed picked up" and that they spoke on 19 August, when Mr Abassi asked whether Barghachoun wanted to come with him to Grafton, suggesting that they could collect Barghachoun's goods on their return. According to Mr Abassi, Barghachoun had said he was "busy". Mr Abassi made the trip but encountered difficulties with his truck overheating, which resulted in him making numerous calls to Barghachoun during the course of the evening of 19 August 2011. 62Soil samples were taken from various locations including the inside of Mr Evans' truck, the area where his truck was found to be parked, the area in which the spent cartridges were found and the area in which the gun was found. These were compared with samples taken from soil on the underside of (inter alia) Hussein's shoes which were taken from him at the time of his arrest. Professor Robert Fitzpatrick gave evidence (commencing at T587) of his analysis of these various samples and his results were recorded in a summary which was tendered (Exhibit UU). His conclusions included the following: (i)there was a limited degree of comparability between the soil found on Hussein's shoes, and that found on the shoes of Barghachoun and Riley; (ii)there was a limited degree of comparability between the soil found on Hussein's shoes and the sample taken from the access road where Mr Evans' truck was located; (iii)there was a very strong degree of comparability between the soil found on Hussein's shoes and the sample taken from the area in which the gun was located; (iv)there was a very strong degree of comparability between the soil found on Hussein's shoes and the samples taken from an area near where the gun was found, and an area near to that in which the silver Mazda was found to be burned out. 63Police executed a search warrant at Manly's home on 11 October 2011. They found a certificate of registration for a 1999 Subaru vehicle in Manly's name. Also tendered in the Crown case was a document certifying that the vehicle was a blue sedan. The transfer history of the vehicle established that it had been acquired by Barghachoun and then transferred to Manly on 5 July 2011.

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The telephone evidence 64As I have previously Call/text by: Call/text to: Manly Barghachoun Barghachoun - Smithfield - 1 Manly Barghachoun Manly Barghachoun Manly Barghachoun Riley Barghachoun Barghachoun - Greystanes East-3 Barghachoun Manly Manly Barghachoun Barghachoun Manly Riley Barghachoun Riley Barghachoun Riley Barghachoun Riley Barghachoun Unknown Manly BP service station Panic Riley Barghachoun Barghachoun - Silverwater Nth-1 Mr So 000 Mr Bakri 000 Mr Naje 000 Manly Barghachoun Manly Barghachoun Barghachoun - North Asquith-2 Barghachoun Manly Manly Barghachoun Barghachoun - Ourimbah-1 Manly Barghachoun Barghachoun - Lisarow-900-1 Manly Barghachoun Barghachoun - Lisarow-900-1 Manly Barghachoun Barghachoun - Jilliby Manly Barghachoun Barghachoun - Ryhope Manly Barghachoun Barghachoun - Killingworth Barghachoun Manly Mrs Hannaford 000 Manly Barghachoun Barghachoun - Buladelah-1 Manly Barghachoun Barghachoun - Buladelah-1 Manly Barghachoun Barghachoun - Buladelah-1 Manly Barghachoun Barghachoun - Buladelah-1 Manly Barghachoun Barghachoun - Buladelah-3 Barghachoun Manly Manly Barghachoun Manly Barghachoun Manly Barghachoun Manly Barghachoun Barghachoun Manly Barghachoun Manly Barghachoun Manly Barghachoun Manly Barghachoun Manly Manly Barghachoun Manly Barghachoun Barghachoun Manly Manly Barghachoun Manly Barghachoun Barghachoun Manly noted, the Crown relied upon evidence of telephone contact between the four offenders in support of its circumstantial case. That evidence is summarised in the following table, which includes the evidence of the various 000 calls, and which was compiled in part from the telephone records produced by various witnesses: Date time: Details Tower(s): 19.8.11, 12:56 am 28 second call Manly - Merrylands 19.8.11, 1:19 am Text, "K , im in da garage" 19.8.11, 3:44 pm Attempted call, did not connect 19.8.11, 3:45 pm Attempted call, did not connect 19.8.11, 6:11 pm 43 second call Riley - Blacktown South 19.8.11, 7:00 pm Attempted call, did not connect Barghachoun - Greystanes East-3 19.8.11, 7:03 pm Text, "K" 19.8.11, 7:15 pm 4 seconds, goes through to voicemail 19.8.11, 8:38 pm Attempted call, did not connect 19.8.11, 8:39 pm Attempted call, did not connect 19.8.11, 8:51 pm Attempted call, did not connect 19.8.11, 9:05 pm Attempted call, did not connect 19.8.11, 9:10 pm 5 seconds, goes through to voicemail Manly - Ermington button and security call to police 19.9.11, between 9:12 pm and 9:19 pm Counts 1 and 2 19.8.11, 9:19 pm 12 second call Riley - Pennant Hills 19.8.11, 9:19 pm Count 2 19.8.11, 9:21 pm Count 3 19.8.11, 9:25 pm Count 1 19.8.11, 9:39 pm 4 seconds, goes through to voicemail 19.8.11, 9:40 pm 56 second call Manly - Mooney Mooney 19.8.11, 9:51 pm 34 second call Barghachoun - Cowan North 19.8.11, 10:07 pm 9 second call Manly - Ourimbah 19.8.11, 10:07 pm 14 second call Manly - Ourimbah 19.8.11, 10:07 pm 14 second call Manly - Ourimbah 19.8.11, 10:25 pm 43 second call Manly - Mt Nellinda 19.8.11, 10:42 pm 13 second call Manly - Beresfield 19.8.11, 10:45 pm 55 second call Manly - Beresfield 19.8.11, 11:14 pm 12 second call Barghachoun - Karuah 19.8.11, 11:29 pm Count 6 19.8.11, 11:42 pm 5 second call Manly - Bulahdelah 19.8.11, 11:43 pm 12 second call Manly - Bulahdelah 19.8.11, 11:44 pm 7 second call Manly - Bulahdelah 19.8.11, 11:49 pm 27 second call Manly - Bulahdelah 19.8.11, 11:52 pm 33 second call Manly - Bulahdelah 20.8.11, 12:01 am 52 second call Barghachoun - Bulahdelah-3 20.8.11, 12:05 am 34 second call Manly - Nerong 20.8.11, 12:21 am 8 second call Manly - Nerong 20.8.11, 12:34 am 64 second call Manly - Bulahdelah 20.8.11, 12:40 am 32 second call Manly - Bulahdelah 20.8.11, 12:43 am 11 second call Barghachoun - Bulahdelah-3 20.8.11, 12:46 am 8 second call Barghachoun - Bulahdelah-3 20.8.11, 12:53 am 1 minute 17 second call Barghachoun - Bulahdelah-3 20.8.11, 12:55 am 7 second call Barghachoun - Bulahdelah-3 20.8.11, 12:58 am 11 second call Barghachoun - Bulahdelah-3 20.8.11, 12:59 am 30 second call Manly - Bulahdelah 20.8.11, 1:07 am Attempted call, did not connect 20.8.11, 1:19 am 4 seconds, goes through to voicemail Manly - Bulahdelah 20.8.11, 1:29 am Attempted call, did not connect 20.8.11, 2:27 am Three attempted calls, did not connect 20.8.11, 2:27 am 41 second call Barghachoun - Elizabeth Beach

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Specific telephone evidence relevant to Manly 65I have already noted (at [26] above) the nature of the Crown case against Manly in respect of counts 1 and 2. There was no direct evidence of Manly's presence at the BP service station. The Crown sought to infer his presence, and his commission of those offences, from the following facts: (i)at 9.10 pm on 11 August 2011, Manly received a telephone call from an unknown source; (ii)the call was of 5 seconds duration and was diverted to voicemail; (iii)the call was logged as having passed through a tower nominated as "Ermington"; and (iv)that tower was proximate to the BP service station. 66In the course of the hearing of the appeal, senior counsel for Manly addressed the Court at some length in relation to this evidence. However, it became apparent that senior counsel (who did not appear at the trial) may have been mistaken in his understanding of what the evidence actually demonstrated. It also transpired that submissions which had been advanced by the Crown in relation to such evidence may have been based upon an incorrect premise. In these circumstances, the parties were asked at the conclusion of the hearing to give further consideration to the matter with a view to communicating an agreed position to the Court. A further document was then provided to the Court in which the parties, by agreement, drew attention to evidence given by two particular witnesses, namely Detective George, the officer in charge of the investigation, and Petine Tuhukuva, an analyst from Vodaphone Telecommunications. 67The evidence of Detective George to which the Court's attention was drawn may be summarised as follows: (i)in cross-examination (commencing at T751) Detective George said (at T752 L6) that there were three mobile telephone towers located in Ermington; (ii)on a document which became Exhibit M3, he marked each of those towers with the letter "X" (at T752 L11); (iii)one of those towers which was near the intersection of Silverwater Road and Victoria Road, and which was the southernmost tower of the three, was additionally marked by Detective George with a circle (at T752 L23); (iv)there were three towers in Silverwater, each of which was located to the south of the towers at Ermington, and each of which was marked by Detective George on Exhibit M3 with the letter "S" (at T752 L30-39); (v)Detective George was then shown three further documents (commencing at T753 L5) which became Exhibit M4; (vi)by reference to one of the documents in Exhibit M4 (reproduced at AB 463) he identified the locations of the two northernmost towers at Silverwater as: (a)Newington Road, near Holker Street; and (b)Day Street, North Silverwater. 68Petine Tuhukuva produced various call charge records which were marked Exhibit XX. To the extent which is relevant for present purposes, those records are summarised in the table at [64] above. The evidence of Ms Tuhukuva to which the Court's attention was drawn included the following: (i)towers are ascribed a name according to the suburb in which they are located (at T704 L29-34); (ii)there are two towers in Ermington (at T709 L22); (iii)there are two towers in Silverwater, one nominated as "Silverwater" and the other nominated as "Silverwater V" (at T709 L25-34). 69However Ms Tukuhuva also gave the following evidence (at T704 L13-21): Q The time zone code, what does that relate to? A That relates to the time zone that we have recorded and the local call start time, so where it's New South Wales it's in New South Wales local time, where it's STD it's eastern standard time which does not include daylight savings. Q Does that necessarily correlate - we're going to get to the tower that the call went through, does that necessarily correlate with the tower that the call went through? A Not necessarily, no. 70The last question in that passage was wholly confusing. Along with the answer, it conveys two possible conclusions, namely: (i)that a particular call did not necessarily pass through the stated tower at the nominated time; or (ii)(ii) that the tower which is nominated was not necessarily the tower through which the call passed. 71Whichever of those two conclusions might be reached, an issue as to the reliability of this evidence necessarily arises. 72Quite apart from the question of reliability, the evidence of Detective George on the one hand and Ms Tukuhuva on the other, was contradictory in two particular respects. Firstly, the evidence of Detective George was that there were three towers in Ermington. According to Ms Tukuhuva, there were two. Secondly, Detective George gave evidence that there were three towers in Silverwater. Again, according to Ms Tukuhuva, there were two. None of these issues were further addressed. 73I have already noted the significance, from the point of view of the Crown case against Manly, which attached to the evidence surrounding the call received on Manly's telephone at 9.10 pm on 19 August 2011. That evidence was left in a most unsatisfactory state, to the point where a serious issue arises as to whether it was capable of sustaining the inference that the Crown sought to draw. I have discussed this further below.

[22]

The submissions on behalf of Manly 75The fundamental proposition advanced by senior counsel for Manly was that there was no evidence which established Manly's presence at the scene of any of the offences, and that the Crown case was essentially based upon suspicion. 76Bearing in mind that the Crown advanced a circumstantial case against Manly, senior counsel submitted that the evidence relied upon by the Crown in support of that case did not exclude the reasonable hypothesis that Manly had simply been asked to meet Hussein for what he (Manly) thought was an innocent purpose. He submitted that the evidence was incapable of establishing, beyond reasonable doubt, Manly's presence at the scene, his knowledge of the offences or his participation in them. 77In oral submissions, senior counsel placed particular emphasis on what he submitted was the lack of evidence to establish Manly's commission of the offences in counts 1 and 2. He highlighted, in particular, the absence of any identification of Manly or his vehicle at the BP service station, and submitted that when properly analysed, the evidence of the telephone call received by Manly at 9.10 pm tended completely against the proposition that he was nearby. Senior counsel also submitted that if the evidence was not sufficient to establish Manly's commission of the offending in counts 1 and 2, it followed, because of the way in which the Crown put its case, that the Crown was not able to establish the commission, by Manly, of any of the remaining offences with which he was charged. 78In terms of count 3, senior counsel emphasised the shortcomings of the evidence of Mr Bakri in terms of his identification of the second car which arrived in Wetherill Street. He also relied on the evidence of Mr Reddon that the Subaru observed in Buladelah had gold wheels, and submitted that the CCTV footage from the warehouse showed a vehicle with silver wheels. As to that second submission, I should say that having viewed that CCTV footage on several occasions, and in circumstances where it was taken in an elevated position, from a distance, and at night, it is impossible to reach a conclusion about the colour of the wheels on the second car. 79In terms of counts 6 and 9 senior counsel again emphasised that there was no direct evidence which placed Manly at the scene of the commission of either offence. He submitted that the mere fact that Manly was found in the nearby area in his vehicle a short time later, even when combined with the other circumstances upon which the Crown relied, was insufficient to establish his commission of those offences.

[24]

Consideration and conclusion 83In determining the appeal brought by Manly (as well as the appeal against conviction brought by Hussein) the question for this Court is whether, upon the whole of the evidence, it was open to the jury to be satisfied of the commission of the offences in question beyond reasonable doubt. The approach to be adopted in determining this question was set out by the High Court in M v R [1994] HCA 63; (1994) 181 CLR 487 at 493 and following: ".... The question which the court must ask itself if whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must be pay full regard to those considerations. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt". 84The test in M (supra) was restated by the High Court in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. The application of such test requires this Court to make an independent assessment of the totality of the evidence, both as to its sufficiency and its quality (see Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326 at [37] per Johnson J, Macfarlan JA and Garling J agreeing). Bearing in mind that the Crown case was a circumstantial one, the evidence must, as the Crown submitted, be considered in its totality and not in a piecemeal fashion (see R v Hillier [2007] HCA 13; (2007) 228 CLR 618). 85For the reasons that follow, I am not satisfied that it was open to the jury to be satisfied beyond reasonable doubt that Manly committed any of the offences alleged against him. 86In terms of counts 1 and 2, I am not able to accept the Crown's submission that the evidence supported a conclusion that Manly was in the vicinity of the BP service station at the time of the offending. On the contrary, in my view an analysis of the evidence tends completely against that proposition for a number of reasons. 87To begin with, and for the reasons I have already expressed, there is a serious issue as to the reliability of the evidence surrounding the call received on Manly's phone at 9.10 pm on 19 August 2011, in terms of the time of the call, and/or the location of Manly's telephone when the call was received. However, even if I was prepared to accept that the evidence was reliable in either or both of those respects, the evidence does not, on a close analysis, sustain that the inference that Manly was in the vicinity of the BP service station at the time of the commission of the offending in counts 1 and 2. 88Accepting the evidence given by Detective George, all of the three towers in Ermington are, by reference to Exhibit M3, located generally to the north of the BP service station, which is at Silverwater. The agreed position of the parties is that of those three towers, the call received by Manly at 9:10pm did not pass through the southernmost tower, that being the tower marked with an "X" and a circle on Exhibit M3. The two remaining Ermington towers are located further to the north of, and some distance from, the BP service station. The evidence does not enable me to reach a conclusion as to the precise distance but it is evident from Exhibit M3 that it is not insubstantial. 89Further, and again accepting the evidence of Detective George, the three towers in Silverwater are all far closer to the BP service station than any of the towers in Ermington. As a matter of common sense, if Manly was in fact in the vicinity of the BP service station at the time alleged by the Crown, a call to his phone would have been expected to pass through one of the towers identified by Detective George as being located in Silverwater, rather than through one of two towers located some distance to the north in Ermington. 90In these circumstances, the Crown's submission that the evidence connects Manly to the commission of the offences cannot be accepted. The evidence tends entirely against the proposition that Manly was in the vicinity of the BP Service Station in a supportive role when the call was received on his phone at 9.10 pm. To the extent that the evidence is capable of sustaining any inference (bearing in mind my earlier observations as to its general unreliability) it is that at the material time, Manly was in Ermington, not Silverwater. 91In terms of count 3, and in respect of the identification of the second car, the evidence establishes nothing more than the presence of a blue car at the warehouse. The Crown can draw no comfort from the evidence of Mr Bakri in this regard. He initially described the vehicle as a Golf. He gave evidence that "maybe it looks like a WRX". He said at one point it was a hatchback (a completely different shape to the vehicle which was later seen to be driven by Manly). He then agreed in cross-examination that the prevailing conditions were such that "he couldn't see anything". 92Further, and in any event, there was no evidence which placed Manly at the scene of the offending in count 3, much less evidence which established participation in the commission of that offence. In particular, and leaving aside the fact that the evidence did not establish the make or model of the vehicle, and also leaving aside the fact that one of the descriptions of Mr Bakri of the vehicle's shape (i.e. a hatchback) was inconsistent with the shape of the vehicle in which Manly was stopped by police later in the evening, there was no evidence of who was driving the blue vehicle at the time of the offending in count 3. The evidence did not exclude the possibility that it was being driven by Barghachoun. The fact that Manly was seen to be driving a blue vehicle with a loud exhaust some hours later does not lead to a conclusion that this was the same vehicle present at the offending in count 3 or, if it was, that Manly was driving it at the time. 93Finally, there is no direct evidence which supports the presence of Manly at the offending in counts 6 and 9. The mere fact that there is evidence that Manly effectively travelled in convoy to Bulahdelah with Barghachoun and Hussein, and that he was found by police in Hussein's presence in the township of Bulahdelah early on the morning of 20 August 2011, falls substantially short of sustaining an inference that Manly was even present at the time of the commission of counts 6 and 9, much less that he participated in that offending. 94In my view, at its highest, the evidence against Manly established the following: (i)Manly was known to one or more of his co-offenders; (ii)a blue vehicle with a loud exhaust was seen at the warehouse; (iii)Manly travelled towards Buladelah at or about the same time as his alleged co-offenders; (iv)a blue Subaru with a loud exhaust was seen driving in Buladelah late on the evening of 19 August 2011; (v)Manly and Hussein, whilst in a blue Subaru vehicle, were spoken to by police in Buladelah in the early hours of 20 August 2011. 95It may be that those circumstances arouse suspicion. However in my view, they fall short of establishing, beyond reasonable doubt, the commission of any offence by Manly. 96Given the view that I have reached it is not necessary to consider the appeal by the Crown against what was said to be the manifest inadequacy of the sentences imposed upon Manly.

[26]

The submissions on behalf of Hussein 98Counsel's written submissions commenced with a consideration of the evidence to support count 4. It was submitted that although the telephone evidence, and in particular the evidence as to communications between Barghachoun and Manly, was capable of supporting that they travelled north from Sydney at about the same time with Hussein, there was no evidence which established which of the two vehicles Hussein was travelling in at the time. Counsel submitted that even if an inference were drawn that the Subaru vehicle driven by Manly continued to travel north when the silver Mazda stopped at the F3 café, there was no evidence to establish that Hussein was even travelling in the Mazda. Counsel further submitted that even if such an inference were somehow drawn, there was simply no evidence to establish that Hussein was responsible for the theft of the number plates. 99In respect of counts 7 and 8, counsel submitted that the primary issue was whether or not the evidence established that Hussein was the person who was described as wearing camouflage pants. He submitted that if this conclusion could not be reached, it followed that Hussein was not the person responsible for discharging the firearm. It also followed, counsel submitted, that there was no other evidence of Hussein's involvement in the offences other than the fact that he was present in Manly's vehicle after such offences had been committed. 100Counsel also made particular reference to the evidence of Mr Evans, Mr Frame and Mr Hannaford. He submitted that such evidence did not exclude, as a reasonable possibility, the presence or involvement of a fifth person who had escaped apprehension altogether. 101In oral submissions, counsel argued that it was significant, in circumstances where it was the Crown case that Hussein was wearing the camouflage trousers at the BP service station and at the time of the robbery of Mr Evans, that he was not dressed in that way when spoken to by police shortly after the offences were committed. Counsel also pointed out that there was no evidence of camouflage trousers being found, burned or otherwise, at the time of the search of Manly's vehicle or anywhere in the vicinity of the commission of the offences. 102Finally, counsel made reference to the evidence given by Mr Evans that the person who had fired the gun had gone back into the truck when it was driven away. He pointed out that the Crown case was that it was Hussein who fired the gunshots, but that it was Barghachoun and Riley who had driven away in Mr Evans' truck. Counsel submitted that the evidence failed to exclude, as a reasonable possibility, a conclusion that the man wearing the camouflage pants and who had fired the shots had entered the truck and driven off. He submitted that in these circumstances, it was not open to the jury to convict Hussein on counts 7 and 8.

[28]

Consideration and conclusion 106In my view, the submissions made by counsel for Hussein as to the lack of evidence to support count 4 must be accepted. The telephone evidence was capable of inferring that all four offenders travelled north from Sydney at or about the same time. However, what vehicle Hussein may have been travelling in at the time was a matter of conjecture. I am not persuaded that the only rational inference was that he was travelling in the Mazda. However, even if that conclusion were reached, a conclusion that he was responsible for the theft of the number plates is, in my view, based largely on conjecture. 107In terms of counts 7 and 8, and as I have noted, the Crown case was that Hussein was responsible for discharging the firearm, but that Barghachoun and Riley were responsible for driving Mr Evans' truck away from the scene. There were four persons who gave evidence of seeing and/or hearing the gunshots, namely Mr Evans, Mr Frame, Mr Hannaford and Mrs Hannaford. However, only one of those persons, namely Mr Evans, gave evidence of seeing the gunman after the shots were fired. He said (as noted in [44] above) that the gunman got back into the truck, following which he (Mr Evans) heard it being driven away. It was no part of the Crown case that Hussein drove away in the truck. Significantly, the evidence of Mr Evans was the only evidence given as to the path taken by the gunman after the shots were fired. 108When this issue was raised in the course of the hearing before this Court, the Crown's response was to submit that the evidence of Mr Evans was "wrong". Such a response fails to address the issue. Given the case brought against Hussein, it was incumbent upon the Crown to exclude, as a reasonable possibility, that the gunman entered the truck. Far from excluding such a possibility, the evidence of Mr Evans, which was the only evidence on the issue, not only raised such a possibility it but squarely suggested that it had in fact occurred. No other evidence was adduced by the Crown to contradict the evidence of Mr Evans. Those circumstances, in my view, were fatal to the Crown's case against Hussein on counts 7 and 8. Further, and whilst it is not necessary for me to express a concluded view, such circumstances may lend some weight to the hypothesis advanced by counsel for Hussein that there was, in fact, a fifth person involved in the robbery who was not apprehended. 109Further, the Crown's position is not saved by the fact that the gunman was identified wearing camouflage pants. There was no evidence which supported the Crown case that the man wearing camouflage pants, who was the gunman, entered the Mazda vehicle. The fact that there was an opportunity to do so does not overcome the fact that on Mr Evans' evidence, the gunman entered, and left the scene in, another vehicle altogether. Moreover, and in any event, Hussein was not dressed in that way when spoken to by police a short time later and there was, as counsel pointed out, no evidence of a pair of camouflage pants having been disposed of or destroyed. 110For these reasons, I am not satisfied that it was open to the jury to be satisfied, beyond reasonable doubt, of Hussein's commission of the offences in counts 4, 7 and 8. It follows that his appeal against those convictions must be upheld, and the convictions quashed.

[30]

The findings of the sentencing judge 113The principal findings of the sentencing judge in respect of Hussein's commission of the offences in counts 1, 2, 3, 6 and 9 may be summarised as follows: (i)Hussein was the offender who took the most active role in relation to the various robberies (at ROS [30]); (ii)the fact that the offending in count 3 involved (inter alia) extensive planning and was committed in company rendered it "significantly more serious" than the circumstances discussed in R v Henry (1996) 46 NSWLR 346 (at ROS [34]); (iii)the value of the damage resulting from the offending in count 9 must have been considerable, although the evidence did not establish beyond reasonable doubt the identity of the offender who actually lit the fire (at ROS [37]). 114Her Honour considered Hussein's subjective case. She noted (at ROS [38]) that he had a record for juvenile offending in respect of matters of a relatively minor nature. She made reference to his disturbed upbringing in Iraq (at ROS [40]) and his history of epilepsy (at ROS [42]). 115One of the significant aspects of Hussein's subjective case concerned his mental health. Tim Watson-Munro, a Clinical Psychologist, prepared a report of 11 December 2012 following his examination of Hussein on the same day. He noted a history of psychotic illness referable to a diagnosis of paranoid schizophrenia in 1998/1999. He also identified longstanding symptoms of anxiety, depression and low self esteem. 116In addition, a report of Dr Stephen Allnutt, Psychiatrist, was before the sentencing judge. Dr Allnutt concluded that Hussein met the criteria for a diagnosis of chronic psychotic disorder, including paranoid schizophrenia and schizoaffective disorder, characterised by auditory hallucinations, referential ideas and mild paranoid ideation. Dr Allnutt also diagnosed a depressive disorder and a post traumatic stress disorder. Because Hussein maintained his innocence at the time of the examination, Dr Allnutt was unable to express an opinion with regard to any nexus between the documented symptoms and the offending. 117The sentencing judge made reference to Hussein's depressive state (at ROS [45]) and to the fact that he had been diagnosed with a chronic psychotic disorder (at ROS [46]). Her Honour described Hussein's mental health and related matters as constituting "strong subjective circumstances". However, her Honour concluded (at ROS [47]) that those matters did not directly lessen Hussein's moral culpability or render him an inappropriate vehicle for general deterrence, although they did have the effect of making imprisonment more difficult. It is evident that such matters, in combination with others, formed the basis of her Honour's finding of special circumstances (at ROS [51]).

[31]

Consideration and conclusion 118It follows from the conclusions that I have reached that Hussein's overall criminality is less than that for which he was sentenced at first instance. Specifically, whilst he does not take issue with the jury's verdict of guilty in respect of count 6, he must now be sentenced on the basis that he was not responsible for the possession or discharge of a firearm in the course of that offending. 119I do not agree with the observation of the sentencing judge in respect of count 3 that the offending was "significantly more serious" than the circumstances discussed in Henry (supra). But for the value of what was taken, the features of the offending might be regarded as being similar in many respects. In particular, and whilst there was obviously some planning involved, the extent of it was largely unknown. 120Further, her Honour appears to have accepted the evidence that Hussein was mentally ill but concluded that this did not render him an inappropriate vehicle for general deterrence. Her Honour did not express her reasons for reaching that conclusion. In my view, the conclusion reflects error. 121The fact that there was no established nexus between Hussein's mental state and his offending did not, of itself, mean that such mental state was not relevant to the question of general deterrence. Whether it rendered Hussein an inappropriate vehicle for general deterrence depended upon an assessment of the circumstances of the case (see Iskandar v R [2013] NSWCCA 235 at [27]-[30], citing R v Engert (1995) 84 A Crim R 67 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. Her Honour did not engage in such an assessment. 122The mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to sentence (see De La Rosa (supra) at [178] per McClellan CJ at CL). In the present case, there was evidence that Hussein was suffering from more than one diagnosed psychiatric illness. Paranoid schizophrenia, which was one of the diagnoses reached by Dr Allnutt, is an obviously serious psychiatric illness. In Hussein's case, it was also one of long standing, and manifested itself in a number of different ways. In my view, all of these factors combine to render Hussein an inappropriate vehicle for general deterrence.

[34]

The findings of the sentencing judge 126Her Honour reviewed (commencing at ROS [6]) the facts of the offending before turning to consider (commencing at ROS [15]) Barghachoun's background. Having noted his criminal history, her Honour rejected (at ROS [16]) a submission that there was a causal connection between Barghachoun's drug addiction and his offending, before finding (at ROS [17]) that there was some evidence that he was "capable of remaining crime-free for an extended period". 127Her Honour then considered the nature of the offending. She found (at ROS [18]) that all offences committed by Barghachoun prior to the robbery of Mr Evans' truck were part of an overall plan and were not committed impulsively. She found that Barghachoun was "very much involved in the planning" and that he was a participant from the outset. 128Her Honour then considered the individual offences and made the following findings: Counts 1 and 2

the offending was committed in company with Hussein and for that reason was potentially more frightening from the perspective of the victims (at ROS [19]). Count 3
Barghachoun was not the principal offender and was guilty because he was part of a joint criminal enterprise (at ROS [20]);
although he was involved in the planning of the robbery it was "probably very last minute planning" necessitated by the "failure" of the offending in counts 1 and 2 (at ROS [20]);
he was present at the scene of the robbery, inferentially a matter of metres away from Hussein, and was available to assist Hussein (at ROS [20]). Count 4
The offending was "a relatively minor matter" (at ROS [21]). Count 6
the offending was an objectively serious armed robbery which was planned (at ROS [22]);
those involved were prepared to drive a considerable distance to rob the truck (at ROS [22]);
the offence was committed in company (at ROS [22]);
although Mr Evans suffered very serious emotional harm, the evidence did not establish beyond reasonable doubt that such emotional harm was significantly worse than would ordinarily be expected to stem from an offence of this nature (at ROS [23]);
other relevant aggravating features included the fact that the offence was committed in company, that Barghachoun was on bail at the time and that he had a history of serious offences of dishonesty (at ROS [24]); Count 10
The offending was unplanned and opportunistic (at ROS [25]). 129Her Honour concluded (at ROS [26]) that in respect of the offending in counts 3 and 6 it was necessary to consider the guideline judgment in Henry. She found (at ROS [26]) that the offending in count 3 was more serious than was the case in Henry. She also found (at ROS [26]) that the offending in count 6 was "much more serious" than that in Henry. She then imposed (at ROS [27]) the sentences I have previously outlined.

[35]

The submissions on behalf of Barghachoun 130Senior counsel argued that the criminality exhibited by Barghachoun in the offending the subject of 1 and 2 was less than that of Hussein. This, it was submitted, was demonstrated by (inter alia) the following: (i)although both wore hoods, Barghachoun did not cover his face with a scarf; (ii)the acts of Barghachoun were limited to attending the service station, demanding the keys from Mr So, and being present as a support for Hussein. 131Senior counsel also pointed, in respect of counts 1 and 2, to the fact that (inter alia) no person was placed in danger by any act of Barghachoun and that the offences were of limited duration. Whilst acknowledging that the plan to use the stolen vehicle to drive to a crime scene necessarily elevated the level of criminality, senior counsel submitted that the sentence imposed was indicative of greater weight having been given to the objective criminality than was warranted. He also submitted that even allowing for the fact that Hussein's subjective case was stronger, the differences in objective criminality favoured Barghachoun and that there was an undue disparity in the sentences which were ultimately imposed. 132As to count 3, senior counsel submitted that Barghachoun's criminality was far less than that of Hussein, but that this was not reflected in the sentences which were imposed. It was further submitted that the offending should be viewed as opportunistic and impromptu. Senior counsel further submitted that Barghachoun's role was limited to one of being available to assist Hussein. 133As to count 6, senior counsel pointed to the fact that by reference to sentencing statistics, the sentence imposed was at the high end of the range. He submitted that Barghachoun's role was substantially less than that of Hussein. It should be noted that senior counsel also submitted that Barghachoun's criminality in respect of count 6 should be regarded as being less than that of Hussein because of Hussein's possession and use of a firearm. In light of the conclusions I have reached in relation to counts 7 and 8 against Hussein, that submission is rendered nugatory. 134Finally, senior counsel submitted that the overall sentence imposed failed to give proper weight to the principle of totality, and was manifestly excessive when consideration was given to Barghachoun's criminality.

[37]

Consideration and conclusion 139I am not able to accept the entirety of the submissions which were advanced by senior counsel in support of Barghachoun's position. In particular, I am not able to draw any real distinction between his offending and that of Hussein in respect of counts 1 and 2. The proposition that a distinction arises from a difference in their form of disguise relies upon a circumstance which, in terms of the overall offending, is of limited significance. 140Similarly, I am not able to accept that reference to sentencing statistics demonstrates that the sentencing judge erred. This Court has said, on numerous occasions, that such statistics are of limited utility (see for example R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J). Consistency in sentencing is not demonstrated by, and does not require, numerical equivalence (see Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49]; 535; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 at [40]). 141However, the central proposition advanced by senior counsel was that when the offending was viewed both individually and overall, Barghachoun's criminality was less than that of Hussein and that this was not properly reflected in the overall sentences which were ultimately imposed. Whilst I am not able, for the reasons advanced, to distinguish between their criminality in respect of counts 1 and 2, there is merit in the submission advanced by senior counsel that when the sentences are viewed overall, the differences in criminality in some of the other offending has not been properly reflected. 142In terms of count 3, Barghachoun's role was generally supportive of that of Hussein. The fact that Hussein's role was greater was acknowledged by the Crown. Similarly, in terms of count 6, Barghachoun's role was predominantly that of driving the truck away from the scene. He was not positively identified as performing any other function. 143In KR v R [2012] NSWCCA 32 Latham J (with whom Whealy JA and Harrison J agreed) observed (commencing at [19]) that the participants in a joint criminal enterprise are equally responsible for all of the acts which were committed in the course of carrying out the enterprise, irrespective of by whom those acts were committed, and that a particular participant's level of culpability was to be assessed by reference to his or her particular conduct. Her Honour went on to observe (at [20]) that such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his or her culpability, before saying (at [21]): "Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting the offence. 'The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability': R v O'Connor [1980] HCA 17 at [20]; 146 CLR 64 at 72 per Barwick CJ. [22] Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry and Ors. [1999] NSWCCA 111 at [254]; 46 NSWLR 346; 106 A Crim R 149". 144I am satisfied that Barghachoun's criminality was less than that of Hussein in an overall sense. That was not reflected in the sentences which were imposed and I am left to conclude that error has been established, and that lesser sentences are warranted in law. However in re-sentencing, two matters must be borne firmly in mind. The first is that Hussein's subjective case was much stronger than that of Barghachoun. In particular, Hussein was not on conditional liberty at the time and did not have a record for similar offending. The second is that as a consequence of the conclusions I have reached in relation to Hussein's appeal against conviction, the overall criminality for which he is to be sentenced is lessened. However, that of Barghachoun is not. It follows that resultant differential between the respective sentences that I propose will be narrower than might otherwise have been the case. 145Finally, I note that following the conclusion of the hearing an affidavit sworn by Barghachoun on 1 April 2014 was received which the Court was asked to take into account, should it come to the question of resentencing. In that affidavit, Barghachoun details various courses he has undertaken since being in custody, including those directed at addressing gambling and substance abuse. He is presently employed as a wing sweeper and enjoys the support of his family. I have taken all of these matters into account in the orders that I propose. 146Finally, I note that the sentences that I propose for both Hussein and Barghachoun will give effect to the finding of special circumstances made by the sentencing judge in each case.

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