Mir v R

Delay and extension of time

1. The case has an unusual and unfortunate history. It is now almost 12 years since the offences were committed and almost 9 years since the sentence was imposed.
2. A notice of intention to appeal ("NIA") against conviction and sentence was lodged on 23 December 2013. The NIA was extended on four occasions. The application for leave to appeal against sentence came before the Court (Bathurst CJ, Walton and Price JJ) on 20 March 2017. Mr Dalton SC appeared for the applicant and sought an adjournment to allow Mr Mir to appeal against a decision of the Legal Aid Commission refusing legal aid to appeal against the conviction. Following submissions on that application, Mr Dalton indicated that the application would be withdrawn at that time to enable the applicant to pursue his legal aid application in relation to the conviction appeal. While nothing that was said was binding on the Court as presently constituted, it was implicit that the applicant would not be prejudiced by withdrawing his appeal.
3. However, the explanation for the delay since 20 March 2017 is rather opaque. Mr Mir's current solicitors were approached in around November 2019. It is assumed that Mr Mir obtained advice in the meantime and that his application for legal aid to appeal against the conviction was declined. Why it took 2½ years before his current solicitors were retained is not explained. Thereafter, there was a delay in obtaining the file and a delay in getting a legal aid grant to print the file to brief Senior Counsel. Mr Odgers was briefed and legal aid funding was approved in August 2021. Other delays were caused by the fact that many of the lawyers were working remotely and there was serious illness in the solicitor's family.
4. It is significant that the ground of appeal to be pursued when the matter was listed for hearing in March 2017 was a parity ground, presumably in much the same form as the present ground. That ground is arguable, and the sentence is very long.
5. Despite the extensive delay and some unsatisfactory aspects of the explanation for the same, I would extend time to allow the applicant to make his application for leave to appeal against the sentence.

The sentences imposed and relevant facts

1. The following table sets out the sentences imposed on the three offenders for the individual offences, with the offences common to all three shaded:
2. In each case, the sentencing Judge, applying the principle of totality, made the individual sentences partially concurrent and partially cumulative. In the result, the total effective sentences were:

• John Khoury: 40 years with a non-parole period of 32 years (expiring 28 September 2042).
• Mohamad Karimi: 37 years with non-parole period of 30 years (expiring 3 July 2040).
• Mahdi Mir: 31 years with a non-parole period of 24 years (expiring 21 July 2034).

1. There is no suggestion that these total effective sentences failed to reflect the principle of proportionality. Any suggestion that the individual sentences for the murder count offended principles of parity was not pressed. As I have said, the sole argument is that the sentences for the common robbery counts (5 and 8) offended principles of equal justice.
2. It will be seen that all three offenders were sentenced to the same sentence for count 5 (10 years with a non-parole period of 7 years).
3. As to count 8, the applicant and Mr Khoury received the same sentence (11 years with a non-parole period of 7 years) while Mr Karimi received a lesser sentence (10 years with a non-parole period of 7 years).
4. The applicant's submission is that the sentences imposed for the two common robbery offences offended the principles of parity or equal justice because the differences between the individual cases meant that he should have received a substantially shorter sentence for those offences.
5. The factual circumstances of count 5 are set out in the sentencing judgment at [92]-[97]. It was a "botched" home invasion because the four robbers, including the applicant, entered the wrong premises. They believed they were entering a house where a drug dealer known as "Beanie Boy" lived. Each was armed with a meat cleaver and pushed into the unit occupied by the victim Maxine Rogers and her two young children (aged 9 and 10 at the time). One of the offenders held a cleaver to Ms Rogers' throat while others searched the premises for drugs and money. The children told the offenders they had the wrong house. They stole a laptop and a mobile telephone and left.
6. Johnson J described the events that followed, which encompassed the robbery in count 8 and the murder of Kesley Burgess (count 6), at [99]-[122]. After a discussion that they had invaded the wrong house, the group travelled around, changing personnel and vehicles, before committing the robbery of Tracey Burgess and murder of Kesley Burgess. Three offenders entered her premises armed with meat cleavers and demanded money and drugs. Kesley Burgess picked up a sword and struck one of the robbers with it. A number of the offenders then attacked him with the meat cleaver. He died of "eight incised wounds" which resulted in "blood loss, hypotension and ultimately cardiac arrest" and hypoxic brain injury. Tracey Burgess had fallen to her knees and threw a tin containing cannabis at the assailants saying "this is all we've got". The offenders took the cannabis, a handbag, a beach bag and a mobile phone and then fled the scene.

The roles of the offenders, their personal circumstances, and the parity argument

1. Johnson J discussed the role played by each offender at [84]-[91], [190]-[195] and [299]-[304].
2. Mr Khoury was "the head of the criminal group" and its "leader". During the events giving rise to the two common robberies, he remained at his shop in Chester Hill but was the organiser of the activities. His shop had the equipment which was used in the home invasions and robberies. The perpetrators set out from the shop and returned there after the home invasions and murder. Mr Karimi was described as a "trusted lieutenant to Khoury" and at "the second tier of the hierarchy". [3] He played "a significant organisational role" in the events giving rise to the offences. He recruited the applicant who was his cousin. During the events of 1 July 2010, he remained outside but organised things when events went wrong and, after the failed attempt at the Rogers' home, guided those who ultimately entered the Burgess' residence to the correct premises. The applicant was "one of the invaders, armed with meat cleavers, who entered the premises" and committed the armed robbery. His Honour said at [304]: "Mir and others were the foot soldiers who carried out home invasions. To so describe them is not to minimise their role and responsibility. It was they who wreaked havoc and terrified persons, using force, including lethal force."
3. Once the group was back at Mr Khoury's shop, where the meat cleavers were then hidden, the applicant was heard to say "[d]id you see how I got the cunt" and "I got him in the arms." [4]
4. The applicant submitted that the more senior roles occupied by Mr Khoury and Mr Karimi ought to have resulted in higher sentences in relation to the robbery charges. It is to be observed that the applicant's involvement "began and ended on 1 July 2010". [5] On the other hand, the sentencing Judge assessed the objective gravity of his offending as "high". [6]
5. The applicant also relied on differences in the subjective cases of the three men.
6. The applicant was 20 years old at the time of the offences and had experienced trauma while growing up in war-torn Afghanistan as a member of the persecuted Hazara minority. The death of his father during his early teen years was found to have negatively destabilized Mr Mir, leading to antisocial associations and drug and alcohol abuse. He had a limited criminal history and Johnson J found "there are prospects for his rehabilitation" based on his youth, his conduct on remand and intention to pursue education. [7] More detail can be derived from the sentencing judgment at [264]-[282].
7. Mr Karimi was 22 at the time of the offences and, like the applicant, grew up in Afghanistan. He had a limited criminal history. There was evidence that he suffered from a psychiatric illness which was described in various ways. It included anxiety, depression and possible auditory hallucinations. His Honour found his time in custody may, therefore, be more onerous "at the present time" but did not accept that it would continue to be so. [8] More detail of Mr Karimi's subjective case can be found at [244]-[263] of the sentencing judgment.
8. Mr Khoury was a little older, being 29 at the time of the offences. His criminal history was confined to a driving offence dismissed without conviction. He had a couple of minor infractions while in custody and was being managed as a "protection-limited association inmate" due to concerns for his safety. His father had died while he was in custody. In spite of his lack of criminal record, Johnson J was cautious in assessing his prospects of rehabilitation because of his role in the criminal group and the number of charges for which he was to be sentenced. [9] Mr Khoury's personal case was referred to by the sentencing judge at [235]-[243].

Resolution

1. The principles to be applied are not in dispute and are well established. [10] In Postiglione v The Queen (1996) 189 CLR 295 at 301-302; [1997] HCA 26, Dawson and Gaudron JJ put it in the following way: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." (footnotes omitted)
2. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Crennan and Kiefel JJ said at [32]: "A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders."
3. Johnson J was aware of the requirement to achieve due proportion between the sentences. He referred to the sentences previously imposed on the co-offenders, noting a number of significant differences in their objective involvement and personals circumstances. His Honour said: "With these very significant qualifications, I have kept in mind issues of parity and proportionality for the purpose of sentencing each of the present Offenders." [11]
4. While that remark was directed towards the offenders who had already been sentenced, it is clear from the judgment that his Honour made individual assessments and findings in relation to each of the offenders and remained conscious of the need to achieve equal justice by reference to the fact that the offenders were joint parties to each of the crimes, while giving adequate weight to the differences in their cases.
5. The fact that Mr Khoury and Mr Karimi were more senior in the organisation had to be balanced against the fact that the applicant played an active role inside each of the premises which were targeted in the home invasions. He wielded a meat cleaver, threatened the occupants, and there was evidence from several witnesses that he boasted about it afterwards. The differences in the subjective cases were not so great as to warrant any substantial difference in the sentences imposed for the two counts of robbery. The slightly shorter head sentence imposed on Mr Karimi on count 8 may be explained by his psychiatric condition or by his slightly different role.
6. I am unable to discern error in the decision to impose the same individual sentences on the three offenders for the first of the robbery counts and close to the same sentence for the second offence. Further, as the respondent submitted, these individual sentences, and the complaint made on the appeal, must be viewed in the light of the total effective sentences imposed on each co-offender. That exercise required the application of the totality principle, of which his Honour was also aware.
7. I am not satisfied that the lack of disparity in the sentences for the two robbery offences gives rise to a justifiable sense of grievance in the applicant. I am unable to accept that the ground of appeal is established.

Orders

1. I would make the following orders: 1. Extend the time within which to seek leave to appeal. 2. Grant leave to appeal against the sentence. 3. Dismiss the appeal.

Endnotes

1. R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761 at [304].
2. Appeal Tcpt, 6 June 2022, p 2.
3. R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761 at [302].
4. Ibid at [126].
5. Ibid at [335].
6. Ibid at [337].
7. Ibid at [339].
8. Ibid at [330].
9. Ibid at [319].
10. See, for example, Lowe v the Queen (1985) 154 CLR 606; [1984] HCA 46, Postiglione v the Queen (1996) 189 CLR 295; [1997] HCA 26 and Green v The Queen; Queen v The Queen (2011) 244 CLR 462; [2011] HCA 49.
11. R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761 at [291]. 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: 17 June 2022