R v Abdallah

JUDGMENT 1On the 12th of March 2014, the jury found the offender guilty of murdering Neil Todorovski by shooting him on 4th January 2012 at Sans Souci. In bringing in this verdict the jury was satisfied beyond reasonable doubt that the offender: was not entitled to be acquitted by reason of self-defence; was not entitled to have the charge of murder reduced to manslaughter by excessive self-defence; and was not entitled to have the charge of murder reduced to manslaughter by provocation. 2The principles of law governing the sentencing of an offender who has been found guilty by the verdict of a jury are well known and require no exposition by me (see for example Chung v The Queen [2001] HCA 67; (2001) 209 CLR 1). It is my responsibility to determine the appropriate sentence. It is for me to make a decision as to the degree of culpability involved in the offender's conduct in this case, and about all other facts relevant to sentencing. In this particular case there were material differences amongst the various lay witnesses about the detail of what actually happened. By convicting the offender of murder, the jury must be taken to have been unanimously satisfied beyond reasonable doubt that the Crown proved the necessary elements of the offence of murder. But the process by which each of them reasoned to the guilty verdict may not have been the same. Some may have accepted one body of evidence, and others another. The jury's verdict decided the issue of the offender's guilt. It did not decide for present purposes why he was guilty. 3The conflicting versions of what happened largely fall into two broad categories. It is not in dispute that he offender fired seven shots on that day from a semi-automatic .32 calibre pistol. Six at Todorovski and the seventh into the ground to warn-off one of Todorovski's henchmen, Leger. The sequence and timing of the shots is disputed. Some witnesses describe a single volley of about six shots fired in fairly rapid succession followed by a short break and then one or two shots more. On this version the latter shot or shots are fired to warn off Leger. A Mr Boutsikakis describes an initial volley of one or two shots, the sound of "another couple" of gunshots several seconds later when the offender was out of sight, and yet "another couple" of shots into the now disabled Todorovski on the roadway when he returned. One has the impression from his evidence that this last episode of shooting was a coup de grâce. 4In the proceedings on sentence both counsel argued that to convict the offender of murder, the jury must have accepted the particular version of events given by Mr Boutsikakis which was supported (at least in part) by the evidence of a Mr Mataipule. I do not think that acceptance of one version in preference to another necessarily follows from the verdict of guilty. Accordingly it is necessary for me to decide the facts for myself. It would be wrong in principle for me to second guess the jury by attempting to reconstruct what I think must have been their reasoning process in arriving at their verdict (R v Isaacs (1997) 41 NSWLR 374). 5In deciding the facts, I will bear in mind that the Crown bears the onus of proving all matters adverse to the offender beyond reasonable doubt. Facts favourable to the offender offered in mitigation must be proved by him on the balance of probabilities (R v Olbrich (1999) 199 CLR 270).

Synopsis of basic fact 6It was not disputed at the trial that the offender gunned the deceased down on 4th January 2012, in broad daylight in a residential, suburban street at Sans Souci around midday. Selmon Street is closely settled and its built environment consists of a combination of blocks of home units and single dwellings. The shooting occurred on a summer's day. There were many people out and about on Selmon Street for social, domestic and work purposes. Many more people were at home in the surrounding dwellings when the shooting occurred. These circumstances explain the number of lay witnesses who either heard or saw the shooting. 7It is not in dispute that the shooting arose out of a confrontation between the offender on one side, and the deceased and two henchmen on the other. The offender did not have the gun on him at the commencement of the confrontation. But it was available nearby under the driver's seat of his double-parked four-wheel drive vehicle. I am satisfied that he had parked with the driver's door ajar for ready access to the gun should he need it. 8It is also not in dispute that the deceased and his henchmen were armed. One henchman, Leger, was wearing knuckle-dusters, the other, Lewis, carried a long-bladed knife. Todorovski himself was armed with a primed pistol. It was in his pocket but never drawn during the fight. Later, a police officer routinely collecting exhibits from his person at St. George Hospital found it on him. The Crown dispute that the offender knew Todorovski was armed with it. The offender says he saw it in Todorovski's hand when the latter approached him. 9It is not disputed that following a short verbal exchange Leger attacked the offender punching him hard with the knuckle-dusters he was wearing. The offender responded with violence and they fell to the ground wrestling and punching at each other. I accept that Todorovski and Lewis did not stand by watching, but rather assisted Leger by kicking the offender violently. The offender, a powerfully built, very tall man of great physical prowess was able to free himself from Leger's clutches and reach in through the open car door to retrieve his gun. 10The evidence of the offender was he did this because he believed that Todorovski meant to kill him. He said that during the earlier verbal exchange Todorovski had said, "Do you think I am going to let you get away with this?" "This" was said to be a reference to injuries inflicted in an earlier fight between them in which the offender certainly got the better of Todorovski. I will return to that. The offender said that during the struggle with Leger he heard one of the three say "shoot him, shoot him". He said Todorovski then said "you're fucking dead" and moved his hand as if to draw the gun which the offender said he knew was then in Todorovski's pocket. 11The offender said that on hearing this he got his gun and shot at Todorovski because he believed that Todorovski was going to kill him. He said "I was really, really scared for my life". 12I am constrained by the jury's rejection of the defence, and partial defence, of self-defence to reject the evidence I have just recounted about why the offender retrieved the gun and fired it, including his assertion that he feared for his life. Although Leger and Lewis were armed and the former attacked him with the assistance of Todorovski and Lewis, I think it unlikely that the offender saw Todorovski's gun on the day of the shooting and before it happened. It was not drawn but remained in his pocket. When the offender produced his own gun, Todorovski tried to turn and run without going for his gun. From evidence I will later recount the offender knew that Todorovski possessed a gun. 13I am satisfied that in retrieving the gun and firing it at Todorovski, the offender was acting not in self-defence but in retaliation for the assault on him. As the Crown concede, this may have involved some measure of provocation necessarily falling short of the partial defence of provocation (s 23 Crimes Act 1900; s 21A(3)(c) Crimes (Sentencing Procedure) Act 1999 (NSW)). 14The offender also gave evidence that he did not remember how many times he shot at Todorovski when he retrieved the gun from his car. He accepted that it might have been five or six times. The effect of his evidence (976.10T) was that he kept shooting until Todorovski fell down. I understood that it was implicit in this evidence that he wanted to stop Todorovski in his tracks to protect himself. He denied that he meant to kill him (1017.10T). He said more than once that his only intention was to stop Todorovski from killing him (1017.30T). He said he levelled the gun and started to fire until Todorovski fell to the ground and that he was not really aiming anywhere in particular (1020.15T). The offender said there was only one episode of shooting at Todorovski and it stopped when he fell. He denied delivering any coup de grâce. I am constrained by the jury's verdict to reject this exculpatory evidence. 15But it does not follow from my rejection of that evidence that there were two episodes of shooting. My finding that the offender retrieved the gun and fired at Todorovski in retaliation, and not in self-defence, is consistent with the jury's verdict of guilty of murder. This still leaves open a question relevant to the objective seriousness of this case of murder of whether the offender intended to kill Todorovski from the firing of the first shot, or only later as the defence contend. In this context, the question of whether the offender delivered a coup de grâce, to my mind may assume some importance. It seems to me that a man who guns another down in the street and then returns to shoot him, at very close range twice in the head and once in the neck may be taken to have intended to kill his victim. But obviously it might also be that a man who shoots another 6 times in a single volley intends to kill him. The question is important because the offender says for sentencing purposes, and having regard to the verdict, I should find his criminality is of a lesser degree because he initially acted in self-defence and only later formed an intention to kill when he returned and delivered the coup de grâce. The expression after all has its origin as the "mercy" Killing of the wounded on the field of battle. I will turn then to a review of the evidence.

The previous relationship between the offender and Todorovski 16To resolve this important question of intention, whether the offender intended to kill from the first shot, it is necessary to say something about the previous relationship between Todorovski and the offender. I accept that the offender and Todorovski became acquainted through their attendance at the gym. They would often exercise together and sometimes the offender would pick Todorovski up or drop him home before or after exercising. They moved in similar social circles and would bump into each other occasionally in the cafes and restaurants around the Brighton area. The offender's sometime girlfriend, Marni Scott (who gave evidence on his behalf at the trial) was a close friend of Todorovski's girlfriend, before the shooting. 17Through their interaction at the gym, the offender learned that Todorovski was a chief in the Lone Wolf bikie club. Todorovski would often be accompanied by other members of the club at the gym. It was clear to the offender that they deferred to him and acknowledged his seniority. The offender also said that Todorovski struck him as a violent man and the sort of person he would not like to get on the wrong side of. Todorovski had shown him a handgun in the change room at the gym once, stating that he had it to deal with some "drama". For reasons not satisfactorily explained by the evidence, there was a falling out towards the end of 2011. The offender blamed this on Todorovski. He denied he had given Todorovski any offence, specifically he denied the suggestion raised peripherally in some evidence that he owed Todorovski money (see Ms Julian (845.35 - 346.25T). 18The offender heard rumours that Todorovski had taken a set against him and concerned by these rumours he said that he decided the best way of approaching him would be to attempt to get Marni Scott's friend, Todorovski's girlfriend, to intercede with Todorovski on his behalf. 19His evidence was that when Ms Scott was slow to provide the telephone number of Todorovski's girlfriend he sent an angry text message demanding the "number now". By mistake he sent the text not to Ms Scott but to Todorovski whose number he had in his phone for the purpose of arranging their previous gym sessions. 20The offender's explanation was that Todorovski's number was in his dial list and it was "a terrible mistake" (962.5 - 20T). In any event, he said Todorovski took offence, accused the offender of being disrespectful and insisted in no uncertain language that the offender call upon him at his place of residence. The accused said he agreed to meet in the hope that he could explain his mistake and resolve whatever issue it was that had given rise to Todorovski taking a set against him. 21They met on 12th December 2011, outside Todorovski's unit block. Before the offender could say anything he said that Todorovski screamed at him "I'm going to fucking kill you, I'm going to shoot you" punching him in the face twice and knocking him over. However, as later occurred on the 4th of January 2012, the offender was able to recover from his position of disadvantage, regain his feet, pick Todorovski up, slam him to the ground and kick him to the face (964.30T). He inflicted very severe facial injuries on Todorovski including fractures of the bones forming his eye socket. He left Todorovski lying in the gutter and made good his escape before Todorovski's henchmen who had been standing by were able to retaliate. He ran to his car and drove off at speed. He denied making any loud threats to anybody before leaving. The evidence does not disclose whether the henchmen on this occasion were also Leger and Lewis. 22This fight was overheard by two independent lay witnesses, Ms Julian and Ms Bonaretti. Ms Bonaretti lived in the same block as Todorovski and knew his voice. She gave evidence that it was the offender, whom she did not know, who had said "I'll fucking kill you. I'll get a gun and shoot you". From cross-examination however, it became apparent that, soon after, she had given an account in an email to her brother in which she had identified Todorovski, whom she knew, and whose voice she had heard many times, as the person who screamed those words. 23Ms Julian lived in the block next door. She heard similar screamed threats. She was sure it was the voice of the man she saw fleeing the scene, i.e. the offender. 24A degree of plausibility is lent to the account of the offender that this fight was prompted by a misunderstanding about a text message by the contents of Exhibit MM, a recording of a legally intercepted telephone call after the event between Todorovski and one of his bikie associates. In the call Todorovski appears to refer to a misunderstanding about text messages. However, the words spoken by Todorovski appear to be, "Sent me messages that wasn't supposed to be for me he reckons" (my emphasis). This does not suggest to me that he was actually accepting that there was such a misunderstanding. From the contents of Exhibit MM it appears that Todorovski was uncertain of the origin of the dispute. 25I find the offender's account about this matter unsatisfactory and unconvincing. The only thing I am clear about is that I have not been told the whole story about the evident severe animosity between the offender and Todorovski. I do not accept it was a misunderstanding about a girlfriend's phone number, even if sexual jealousy sometimes might be a powerful motivation for the commission of serious crime. 26It seems logical that Ms Bonaretti, who knew Todorovski might have been correct in her first account that the voice she heard was his. The offender's account has Todorovski uttering the words Ms Bonaretti heard before the offender disabled him. It is highly unlikely that Todorovski could demonstrate such "Pythonesque" defiance from the gutter in his highly injured state. On the other hand, it is difficult to understand why the offender would have issued such threats in circumstances where he had so clearly vanquished his adversary. But as I will attempt to make clear the evidence establishes that it was the offender who sought out Todorovski again on 4th January 2012. 27There is no reason to doubt Ms Julian's account and she was adamant that the man who uttered the threat was the man who drove away in the car. She volunteered her name and address to the police who attended Selmon Street that night, but they did not take a statement from her until after the offender shot Todorovski in January. 28I am satisfied beyond reasonable doubt that the fight between the offender and Todorovski occurred on 12th December 2011 in Selmon Street, Sans Souci and the offender inflicted serious personal injury upon Todorovski. I think it more likely that the offender uttered the threatening words, but I am not satisfied beyond reasonable doubt that he did so, because of the conflicting evidence. I am satisfied that Todorovski started the fight by punching the accused. Whether or not the threat was made by the offender, in the end it is of no real moment. The Crown case has always been that the offender did not form an intention to kill until he pulled the gun on 4th January 2012.

The intervening period 29The evidence of what occurred between 12th December 2011 and 4th January 2012 mainly comes from the offender. But he is corroborated in some material respects by Ms Scott and a Ms Melanie Salazaar. There was also a second recording of a lawfully intercepted telephone conversation between Todorovski and one of his bikie associates. The relevance of that, however, is simply to show that by the end of December 2011 Todorovski was much recovered from his injuries and was about to resume training. 30The accused's account is that he was conscious of being under threat of retaliation for having severely injured someone he knew to be a bikie chief. 31His fears were heightened when he read a news report online of a car similar to his being shot-up in the Rockdale area. He said that when he read that account he telephoned Todorovski, apparently no longer having any concern about contacting him directly. He tried to explain it was a misunderstanding. Todorovski said "I don't care", told him to stay out of the area, and said if he saw him in the area it would be over for him [968.10T] The offender understood this to be a threat on his life. 32Again there is some support for this further contact in Exhibit MM. The recording of the conversation is not perfect. (There is a transcript MFI 46). But, Todorovski seems to tell his associate that he had "a chat" with the offender on 15th December 2011. The exchange seems to have been as follows: Offender: Fuck, bro, I didn't mean all this fucking ... Todorovski: Well, bro, that's what happened. Offender: Yeah, but you smacked me out. You punched me a couple of times to the head. Todorovski: Well what do you expect? Offender: Well that's why I done that. Todoorovski: Well fuckin now we supposed to be mates again? Give it a couple of a couple of weeks, mate, fucking stay away from here. 33I might also say that the associate's chapter of the bikie club "were not happy" with what happened and said the offender better stay away from them. Todorovski expressed displeasure with the offender's tactics in the fight. Having said that Todorovski's recorded account is not consistent with him threatening the offender's death. He does seem to warn the offender off. 34Ms Salazaar, another friend of the offender, said that she had bumped into Todorovski in Coles at Ramsgate sometime in December 2011. It must have been after the fight because she noticed Todorovski's facial injuries. She said Todorovski asked if she still saw the offender. When she said "yes", he said "give him a message from me. Tell him I am after him and I'm going to get him." (1134.45T). 35Ms Scott said Todorovski was very, very angry and told her "it's not over". He showed her a handgun and said "this is for your fucking boyfriend". She was frightened and told the offender about it on 3rd January 2012. She said she urged the offender to try and sort things out because she was afraid for him. 36The Crown elicited evidence from these witnesses which suggested they are partisan. Ms Scott had been in a relationship with the offender sometime prior to 4th January 2011 and continues now to visit him whilst he was in custody. She apparently is no longer friendly with Todorovski's girlfriend. Ms Salazaar had a reason to strongly resent Todorovski. It was not made explicit in evidence, but I formed the impression that he broke up a serious relationship she was in with one of Todorovski's bikie associates. She made it quite clear that she was not an admirer of his. Neither of these witnesses had come forward to volunteer their information to the police during their investigation of the shooting of Mr Todorovski, although both knew of it. In fact, Ms Scott had arrived to visit her friend shortly after the shooting occurred. 37Notwithstanding these valid criticisms of the impartiality of these witnesses, having had the advantage of seeing and hearing them give evidence, I am satisfied on the balance of probabilities that they were telling the truth. I am satisfied that Todorovski was a violent man, and some kind of bikie chief. He obviously possessed a gun. The events of 12th December 2011 demonstrate he had a propensity for violence. Indeed the events of 4th January 2102 demonstrate he was prepared to arm himself for conflict with the offender. It is true that neither of the recordings of the telephone intercepts portray any expression by him of any determination to exact revenge for the beating he received at the hands of the offender, but he may have wished to downplay the significance of the matter to his bikie colleague, who seemed angrier about it than Todorovski . 38It seems consistent with the probabilities then that Todorovski would not shrug off the beating and its underlying cause, whatever that was. 39In response to reading about the shot up car, his belief that Todorovski was a threat, and the warning passed on from Ms Salazaar the offender took action. He did not receive Ms Scott's warning until the night before he murdered Todorovski but her warning prompted him to contact Todorovski again, a matter to which I will return. 40The action taken by the offender was, he says at the urging of a friend, to arm himself. He says, for his protection but I have rejected this explanation in conformity with the jury's verdict. I find that being forewarned of Todorovski's intentions he forearmed himself to leave his options open in the event of a further confrontation.

The events of 4th January 2012 41Having received Ms Scott's warning about Todorovski's intentions the previous night, the offender determined to contact Todorovski again to bring their dispute to a head. I accept he hoped to settle it once and for all. I do not accept that he genuinely thought this could be achieved amicably with a handshake. Some level of intimidation and violence was going to be necessary. 42In this context taking the gun portrays a level of planning or premeditation. I accept the argument for the Crown that the offender arranged the meeting with Todorovski and came to it having turned his mind to the fact that he might have to use the gun on the deceased, even if he hoped he could make Todorovski back off by physical initimidation. 43The evidence shows that it was the offender who demanded the meeting with Todorovski on 4th January. When he first called Todorovski's number he was already in the car driving to Sans Souci from Malabar where he was minding a house for a friend. At the time he called, Todorovski and his henchmen were in the process of inhaling or ingesting a cocktail of drugs. This is established by the physical evidence found by the police in their subsequent examination of Todorovski's unit and the toxicological tests carried out as part of the post mortem. 44Initially the offender spoke to Todorovski's girlfriend who discouraged the offender from coming and tried to avoid Todorovski talking to him. The offender, however, was persistent and called repeatedly. The last call was made from Selmon Street outside Todorovski's unit where the offender had double-parked his black Range Rover. A resident from across the street who was then backing her car out of her driveway found that he was blocking her way. She noticed that he was on the phone and from his body language formed the impression he was in a state of some agitation (Ms. Gorman at 278T). 45I infer that by showing up in Selmon Street, the offender intended to give Todorovski no option but to come out into the street and confront him. The offender did not intend to be in Selmon Street long. As I have said, he double-parked, effectively in the middle of the road. He got out of the car and stood on the driver's side with the door ajar so he could access his concealed gun if he decided circumstances warranted its use. This was to be no long-winded attempt at mediation. I do not accept that the offender said to Todorovski merely "I want to come and talk to you. We need to fix this issue between us [972.15T]". 46The offender was successful in forcing Todorovski's hand. When he emerged from the unit block he was wearing a Lone Wolf shirt and carrying a concealed weapon. His two henchmen were likewise wearing garments which identified them as members of the Lone Wolf bikie gang. I have no doubt that Todorovski and his henchmen would have been fired up by the drugs they had taken. As I have said all were armed and must have been expecting trouble for some reason not made explicit by acceptable evidence. 47I interpolate that leger and Lewis both refused to answer questions at the trial and were subsequently imprisoned by me for contempt of court. Their evidence doubtless would have made the resolution of disputed questions of fact easier, and might have cast light on the underlying reasons for the animosity between the offender and Todorovski. 48I have already stated the basic facts and I will not repeat them. The constraints imposed by the jury's verdict and the absence of acceptable evidence, make it impossible for me to make any finding about the nature and content of the underlying dispute; what was said in the short verbal exchange before the violence started; and the offender's true motive for shooting Todorovski. Motive, of course, is not an element of the offence. 49As I have stated my main purpose in reviewing the evidence so far has been to decide whether or not the Crown have proved beyond reasonable doubt whether or not the offender shot Todorovski in two discreet episodes, one of which was by way of coup de grâce. The importance of this, as I have explained, is what it says about the intention of the offender and in particular when he formed the intention to kill rather than to maim. Either intention is sufficient for the crime of murder. But the former involves a higher level of culpability than the latter for the purposes of the law of sentencing. To resolve the issue it is necessary to refer to the evidence of some of the independent witnesses.

The lay evidence 50Mr Mark Sua was one of a team of tree loppers whose car had broken down on their way to a job. They were waiting at the western end of Selmon Street near its intersection with Rocky Point Road. Mr Sua heard screaming and shouting then gunshots. When he looked to where the shots were coming from he saw two people running off. These were Lewis and Leger. The offender was chasing leger in the direction of the units. When he returned from the chase the offender got back in his car and "just sped off" [688.5]. Mr Sua gave no evidence of any coup de grâce. He said after the shooting that the offender was yelling out "do youse want some more?" He heard four or five shots in a single volley. After the offender went out of view between the unit blocks he heard another shot. I interpolate, this was a shot fired to warn Leger off. There were no further shots. 51Another of the tree loppers was Mr Leutogi. His attention was attracted by hearing a shot. He said he heard a total of five shots two of which were fired after the offender had gone out of view chasing Leger. He heard no further gun shots and gave no evidence of any coup de grâce. He said he heard the offender yelling at Leger to "get the fuck back here". 52Mrs Kiel lives across the road from where the shooting occurred. She was at home with her mother-in-law and her children when it happened. She heard some loud bangs, which her mother-in-law said sounded like gunshots. She went to her front door to investigate and saw the offender firing a gun over a fence up a driveway across the road. This was the shot to warn Leger off. She then went to check on her children and when she returned to the door she saw the offender drive off. She did not give any evidence of hearing further shots which might have been attributable to a coup de grâce. ([743.35T]). 53Mrs Alexander had just pulled up in Selmon Street very near where the shooting occurred. She was coming to visit her parents. She noticed the offender's double-parked vehicle when she parked. It was about 4 or 5 car lengths ahead of her. She got out of the car to walk around to remove her infant from the child restraint in the back seat. Mrs Alexander was conscious of scuffling going on near the double-parked car as she was attending to her daughter. She then heard a bang which frightened her because she knew it was a gunshot from previous experience. She got back into the driver's position of the car and got low in the vehicle trying to "quieten" her daughter [712.50]. She heard a succession of bangs which identified as gunshots totalling six "or it could have been seven" [715.5T]. She heard swearing then she heard a car drive off. She kept her head down because she did not want to be seen. She did not see the shooting. After she heard the car drive off, she got out of her car and saw Todorovski on the ground writhing in pain. She thought wrongly, as it happens, that he had been shot in the leg [716.30T]. Understandably Mrs Alexander was very upset by being in close proximity to these dire, frightening events. And for that reason she was not confident in her recall. In cross-examination she agreed that the shots she heard were in quick succession. Her evidence does not support the execution of a coup de grâce. 54Mr Baker was a resident of the unit block where Mrs Alexander's parents lived. He had police and military experience and was familiar with firearms. He heard "approximately" five gunshots in quick succession. He wasn't prepared to concede it could have been six, as he counted them. However the forensic evidence in the case establishes that there were six spent cartridges found on Selmon Street from which I infer six shots were fired. Notwithstanding his intransigence about the number of shots, I found Mr Baker to be an otherwise impressive witness. He said the gunshots happened in quick succession within about 5 or 6 seconds. It was not as long as 10 seconds. When he heard the gunshots he went to a window overlooking the street and looked out. He saw the Range Rover and noticed the driver's door was open. He also saw the offender. By this time the offender must have returned from chasing Leger. He saw the offender walk to the front of his vehicle looking at the ground. I infer he was looking at Mr Todorovski on the ground. Mr Baker heard no further gunshots at that time. Mr Baker's evidence does not support the coup de grâce. He rang 000 and went outside to investigate when he came across Mrs Alexander in a panic and her child. He took them into her parents' home. 55I will now deal with the evidence which supports the offender delivering a coup de grâce to the disabled Todorovski. Mr Thompson was at home in his Selmon Street unit watching the cricket on television. He heard some loud bangs which he initially thought might have been a car backfiring. He didn't take too much notice until he heard a few more. His best recollection was that he heard five to seven shots in all. They were not all consecutive shots. He heard three and after a gap of 15 to 20 seconds he heard the rest. After hearing the second series he went out on his balcony to investigate. When he got to a vantage point on his balcony. He saw the offender's vehicle swerving to the right and "taking off" [865.15T]. He was unshaken from this account in cross-examination, but said a period of "30 seconds maximum" had elapsed from the last shot to when the offender's car drove away. Accepting that estimates of time made by lay witnesses who have no reason to clock it may be inaccurate, 30 seconds seems a long time between any coup de grâce and the departure of the offender. 56Mr Mataipule was one of the tree loppers. He was near his broken down car looking towards Rocky Point Road. He heard some gunshots and turned around. He saw the offender standing in the middle of the road yelling and screaming "who's next" [603.15T]. He then saw the offender disappear to the left, obviously in pursuit of Leger. He said "a minute" later he came back and stood over the person that was on the ground, obviously Todorovski, and drove off. He was asked: Q. Did you see him do anything when he came back? A. He was yelling and screaming. When asked: Q. Can you say what it was you saw him do? What did you see him do? There was a long pause and he was visibly upset. After the pause, he said: A. I saw him shoot a man. Mr Mataipule clarified that when he looked up he saw the offender shoot Todorovski and yell out "who's next" [606.5T]. He saw someone, obviously Lewis, running away towards the intersection of Selmon and Campbell Streets, to the east [607.15T] and another person, obviously Leger, running off towards the units [607.30T]. Todorovski who had been shot was on the ground. Mr Mataipule rang 000 on his mobile phone. He said whilst he was on the phone he walked down to where Todorovski was lying. When he got there he was still breathing and he noticed two gunshot wounds to his head. 57Further evidence was sought to be elicited from Mr Mataipule about the sequence of events. With respect, his account was somewhat confusing. He was asked (unhelpfully) whether Todorovski was shot in the head before or after the car drove off. Of course, he answered "before" [610.10T]. He was then asked whether it was before or after the offender disappeared from his sight the first time. Whilst the prosecutor was withdrawing that question, the transcript shows the witness answered, "it was before" [610.20T]. A further series of questions themselves suggested that the shots to the head occurred when the offender returned from his pursuit of Leger. However, he was then asked this question [610.40T]: Q. And when he fired into the head of the man, where was the man that he shot. A. He dropped to the ground. He was standing conversating (conversing) with him (sic). And then [611.5T]: Q. Was he shot when he was on the ground. A. Yes. Overall this sounds like Mr Mataipule might have witnessed a coup de grâce, but that is far from clear. 58Initially in cross-examination he said his attention was attracted by the sound of two shots only. He denied it could have been six [614.35T]. Just before the luncheon adjournment, he agreed that he had told the Magistrate at the committal proceedings that when the offender came into view after his pursuit of Leger he went straight to his driver's door, got in and drove away. He said that evidence was correct [617.45T]. After the luncheon adjournment he reaffirmed that evidence and said that he heard one gunshot when the offender was out of view. He was then reminded that in chief he had said that he saw the offender shoot Todorovski on the ground before leaving. He said "I'm probably confused or had it the wrong way around" [625.5T]. He was taken to the statement he made on the 4th of January 2012 when one would suppose the events were fresh in his mind. In that account he said he heard the initial two shots, the offender scream "who's next", another two shots coming from the front of the car, saw the offender disappearing, coming back and firing another two shots from the front of his car. This first account of course suggests the coup de grâce. Yet again, he was cross-examined about his evidence at the committal. It was drawn to his attention that he did not mention the coup de grâce shots in that evidence. Reviewing the transcript of the Trial, it's not clear at all to me that Mr Mataipule accepted his evidence at the committal was the most accurate version. Indeed, from the transcript he seems to be saying that he regarded his original statement as being consistent with his evidence at the committal (639.5 - .30T). 59I should say that Mr Mataipule struck me as an unsophisticated young man with limited experience of life. His account is somewhat confusing as to whether there was a coup de grâce or not. At best it can be said that parts of his evidence support that version including his first account. 60The principal witness who put forward evidence supporting the coup de grâce version is Mr Bill Boutsikakis. Mr Boutsikakis had been down at the eastern end of Selmon Street, inspecting a car he was interested in purchasing. His own car was parked next to the kerb on the northern side of the road facing west. In other words, it was parked with the driver's side nearest the kerb. Looking west a utility vehicle with a tabletop load space surrounded by low side-boards and tailgate obstructed his vision to where the confrontation took place, to some extent. So he was not able to see everything that transpired. But because the offender's vehicle was double-parked and the offender, Todorovski and his henchmen were standing on it's driver's side, he was able to see much of what occurred. 61He saw the circle of men talking "and then all of a sudden it broke into a fight" [481.15T]. He saw Leger punch the offender. They then fell to the ground rolling around wrestling. He saw Todorovski and Lewis move to where the scuffle was, but he could not see what they were doing. When the offender freed himself from the fight he saw him go around the rear of his vehicle to the passenger side where he was out of sight. When he re-emerged he had a gun in his right hand (the offender is left handed). He saw the offender start to fire and Lewis and Leger run away. Todorovski fell to the ground. He then saw the offender chase Leger. When he re-appeared he fired "another couple of shots" into Todorovski [484.15T]. 62I think it important to record that Mr Boutsikakis gave the coup de grâce version of events to the emergency services operator when he dialled 000 on his mobile phone (Exhibit P). During that call he said the offender had "shot one bloke and the others ran away and then [he] came back and emptied a few more rounds". In evidence he said the offender emptied a few more rounds into Mr Todorovski. 63Mr Boutsikakis gave the coup de grâce version of events to police officers that very day. But an issue about his evidence is that he was asked to make a number of statements on different occasions and inevitably inconsistencies have crept in. Not only did he make a statement early in the afternoon of the shooting. He was brought back for a second statement later that day and underwent a police walk through some weeks later which was recorded on DVD. With great respect, these processes did not assist in the maintenance of the clarity of Mr Boutsikakis' account. During cross-examination he was taken through all of these various versions and tested about the various inconsistencies they contained. Moreover, the account he gave at the committal contained yet further inconsistencies. I will not detail all of them. It is worth recording that from the excerpt of the DVD of the walkthrough that was played in cross-examination, it is relatively clear that Mr Boutsikakis described something like a coup de grâce as part and parcel of the original shooting rather than as something which occurred after the pursuit of Leger. 64In a long, thorough and skilful cross-examination, Mr Boutsikakis was taken through the various inconsistencies and the significant disadvantages of his position to observe what was going on by reason of the distance, the position of his car, and his difficulty hearing because his car windows were up and the air conditioning was on. He was also taken through his evidence in the committal in detail. It is fair to say that in the course of that he accepted it was possible that he was mistaken about the sequence of events and all of the shots may have been fired in a single volley [564.45 - 566.5T]. However, I think that, basically, he adhered to his original version that there was a coup de grâce, although his confidence about that may have been shaken. 65I permitted the Crown prosecutor to re-examine him under s 108, Evidence Act 1995 (NSW) on his police station statement of 4th January 2014, containing his original version, which he maintained was true.

Expert evidence 66Before making a decision on the facts, I think it necessary to discuss some of the expert evidence from Mr Van der Walt, a ballistics expert, and Associate Professor Orde, a forensic pathologist. In truth little of their evidence was really in dispute, simply because neither of them could cast any light on the sequence of events. In particular, although both were able to give valuable evidence about the range at which the bullets inflicting Mr Todorovski's wounds were fired, neither of them was able to say directly, obviously, what the sequence of their infliction was and whether there was a coup de grâce. 67It was clear that Mr Todorovski sustained six gun shot wounds to various parts of his body and that six spent cartridges were recovered from around the carriageway of Selmon Street in close proximity to where the shooting occurred. From this it can be said that each of the shots fired by the offender at Todorovski on Selmon Street found its mark. 68There were three wounds to the left side of Todorovski's head and neck. One of the head wounds, that closer to the front of the head, was marked by "gunshot tattooing" as a result of either hard or loose contact indicating that the nozzle of the pistol was no more than 10 millimetres from the wound [357 and 437T]. The second head wound and the neck wound also had a degree of tattooing. According to Associate Professor Orde, the maximum range at which these were inflicted was between 30 to 60 centimetres. Of the three other wounds, one was to Todorovski's left index finger involving entry and exit wounds caused by one bullet. Another entered his back more or less centrally. And a sixth wound entered the right side of his back and travelled from right to left and back to front in a slightly upward trajectory. It tracked through his right posterior chest space, through the diaphragm, through upper part of the liver and into the bottom end of the heart piercing the right ventricle. This injury led to an accumulation of blood, which Professor Orde said, "can have catastrophic effects on the function of the heart". This bullet continued until it came to rest just beneath the skin on the left side of the chest [450.35 - 451.10T]. 69The professor said not all of the injuries would necessarily have proved fatal, especially those to the hand or neck, unless he bled to death from them. He said: I think the most logical conclusion is to say that death would be due to the combined effects of these injuries, primarily the two to the front of the head and the one to the heart. Any of those could have been capable of causing death in isolation. The fact that there was an accumulation of blood around the heart suggests that perhaps that injury had occurred in a matter of seconds or minutes perhaps prior to death. The accumulation of the volume of blood was of a degree that such death may have been due to that. [453.20T]. 70Professor Orde also said that the injury to the left hand could have been a defensive injury. Professor Orde said that the injuries to his back and hand were inflicted whilst Todorovski was standing and the injuries to the head and neck were inflicted whilst he was on the ground. That was one possibility. In cross-examination he agreed that another possibility was that the head injuries were inflicted at very close range whilst Todorovski was standing and in the process of turning to go to his right to run away. He accepted that after the infliction of the head wounds it was possible that he might stumble a step or two, still turning, and that the wounds to the back were then inflicted "if they had been in rapid succession" [471.5T]. He did add the rider if the shots to the head were inflicted first, he would expect the victim to fall rapidly. 71Both experts agreed that as there was an exit wound from one of the headshots and the neck shot, had those shots been fired whilst Todorovski was on the ground some mark of their exit might have been made on the road. No such marks were found by the police crime scene examiners. 72As I have said the expert evidence is incapable of resolving the issue. The overall effect of it is that either of the competing versions is consistent with the objective scientific evidence. The absence of a record of gunshot marks on the road is in my judgment neither here nor there. Notwithstanding the careful examination by the crime scene investigators and other experts on 4th January 2012, of the crime scene such matters may well have been missed. This is especially so as there was a puddle of blood on the roadway that had flowed from the head and neck injuries.

Decision about whether there was a coup de grâce 73The question is whether I am persuaded beyond reasonable doubt that the acts of the offender which constitute murder included firing three shots in a coup de grâce. Having further reviewed the evidence myself for the purpose of sentencing the offender, I am not so satisfied. That is, the evidence leaves me in doubt as to whether the offender did return from his pursuit of Leger and fire three shots into Todorovski's neck and head at very close range. 74As the expert evidence is essentially neutral on this issue, the question must be decided by reference to the lay witnesses. Of all the lay witnesses who gave evidence relevant to this question only Mr Boutsikakis and Mr Mataipule support that version of events, and the latter only in part. I accept that each of them was a truthful witness doing his very best to give an accurate account of what he saw and heard. I also accept that a coup de grâce, being a cold blooded act, is likely to impress itself upon one's memory. However, it is well known that even in a case of traumatic, memorable events, people's perception is not always reliable. 75I accept that Mr Boutsikakis is entirely genuine in what he says he saw and his evidence is made impressive by the fact that he gave that account from the very outset when he made the 000 call. Mr Mataipule's evidence is also supported by an early consistent statement but that suffered from his tendency to distinctly vacillate in the witness box. My impression on the whole was that Mr Boutsikakis did not. 76The real difficulty I have with accepting that account is the body of lay evidence which stands against it. I am very conscious that mere weight of numbers need not carry the day. Quality, rather than quantity is the most significant consideration. However, I was impressed by Mr Baker. Although he was somewhat inflexible about whether it could have been six shots, rather than five, he struck me as a very careful witness. His great familiarity with firearms because of the nature of his work suggests to me that he would recognise a gunshot as soon as he heard it and I was left with the impression that he paid close attention to them once he heard the first. Mrs Alexander was a very nervous witness. Understandably, of all the lay witnesses I am sure she had gone through the most frightening experience. She gave the impression of being primarily reliant upon her statement, rather than her memory. Mrs Kiel was impressive and gives no evidence consistent with the coup de grâce. Mr Thompson's evidence can be taken as supporting either version. The initial gap he speaks of was consistent with the coup de grâce, but the gap before the departure of the offender is not. None of Mr Mataipule's colleagues who were with him at all times give an account like his. Obviously, a coup de grâce could have occurred, but I am not persuaded to the requisite degree that it did. I find that the offender shot Todorovski in a single volley of six shots fired in rapid succession.

What was the offender's intention 77I return to the central question, what was the offender's intention? Did he intend to kill Todorovski from the first shot? I do not accept the arguments of counsel that the single volley of six shots version is inconsistent with the jury's verdict of guilty. I have found, consistently with that verdict, that the offender did not act in self-defence in retrieving the gun, but acted purely in retaliation. On the version I have accepted, as I have commented before, all six shots fired by the offender at Todorovski found a mark. No less than three of the six caused his death. The first shots were fired at his head and neck, indeed the very first shot was into his head at very close range as Todorovski was turning to his right to flee with his henchmen. As Todorovski started to tumble and fall the offender continued to fire. I am not persuaded that the wounds to the left hand are defensive wounds. Rather, I think it more likely that they were inflicted with the wounds to his back as the offender continued to fire as Todorovski fell to the ground. 78As I find that: the offender went to Selmon Street to confront Todorovski; that he did so with a degree of premeditation implicit in bringing a gun he was prepared to use if necessary; when attacked he pulled the weapon at the earliest opportunity; his first shots were fired at point blank range; and he continued to fire an additional five shots, each of which struck its target, I am satisfied beyond reasonable doubt that the offender, from the first shot, fired his gun at Todorovski intending to kill him.

Victim Impact statement 79As is now well known, the impact of a death on the family of a deceased is irrelevant to the length of the sentence imposed. The loss of one human life cannot be considered more serious than the loss of another (R v Previtera (1997) 94 A Crim R 76). Because it is relevant to understanding what happened, I have referred to the circumstance that Todorovski during his life was a bikie chief. Notwithstanding that circumstance it is well to state that the law values all human life equally. As Adams J has expressed it (R v Dang (1999) NSWCCA 42 at [25] - [26]): The reason why a victim's impact statement cannot be taken into account where a person dies may easily be demonstrated. Assume the deceased was friendless; assume the deceased had no family, it would be monstrous to suggest that that meant for some reason killing her should attract a lesser sentence than would be the case if, as is the situation here, she had a loving family and grieving relatives. Essentially, then, the reason that victim impact statements in cases involving death are not taken into account in imposing sentence is that law holds, as it must, that in death we are all equal and the idea that it is more serious or more culpable to kill someone who has or is surrounded by a loving and grieving family than someone who is alone is offensive to our notions of equality before the law. In my view it is equally offensive to our notions of equality before the law to treat the death of Todorovski as unimportant in terms of the maintenance of peace and good order in our community. Many would disapprove of Todorovski's activities but that is not to the point. 80Moreover, Todorovski had family who cared about him. I had the benefit of hearing his sister read a family victim impact statement at the proceedings on sentence. I have no doubt that she, like others who have suffered the same loss, carries the burden of it very heavily. I express my condolences to her and to the other members of the family of the deceased.

Subjective circumstances 81The offender was born on 19th June 1986. He was 25 at the date of his offending and is now 28. 82He was educated to Higher School Certificate level and played rugby and water-polo at school. He has not received any tertiary education. Since leaving school he has worked in the construction industry and at times managing a bar. He is unmarried and has no dependent children. 83His local criminal record is not such as to cause concern for present purposes. There is one offence of supplying a prohibited drug when he was 17 years of age for which he received a bond. The few other matters are of no moment. He has never been convicted in New South Wales of a crime of violence. 84Of more concern is a conviction for kidnapping in New Zealand in 2006 when he was 20. He went to New Zealand with a friend whose wife had left him. They were there for four days when they kidnapped the man with whom the wife was living. The offender was instrumental in this. As I have said, he is a very tall, strongly built young man. He approached the victim in the garage of his home and "asked" him to come with him to talk to the husband. He guided the victim to the car where the husband was waiting by placing his right hand on the victim's left shoulder. He put the victim in the back seat of the car and sat there beside him. The victim was then driven to another address. When the offender left the premises to obtain food, the husband bound the victims hands. Upon the offender's return he cut the bindings from the victim with a Stanley knife, accidentally cutting his hand. I infer that the offender persuaded the husband to release the victim and they then drove him to a nearby taxi stand, dropped him off and offered him money for the cab. The offender was sentenced to a term of imprisonment of three years. The kidnapping offence involved no overt violence. The period of detention of the victim was relatively short, being around one and a half hours, but doubtless he would have been very afraid. The worrying aspect of that offending for present purposes is, like the present case, it involves the offender seeking to settle disputes by taking the law into his own hands. This evinces an attitude of disregard for the law. 85I received a pre-sentence report which has been amended since the details of the offender's New Zealand conviction have been obtained. Knowledge of that matter has not caused the author of the report to alter the opinions originally expressed. The offender gave a history of the offending broadly consistent with his evidence at the Trial. This involves adherence to the view that he acted in self-defence which I have said more than once I am constrained to reject. He has been assessed as at a low/medium risk of re-offending. No matters requiring rehabilitation whilst in custody were identified. He might benefit from a violent offender's program. The author of the report expressed the view that he was unlikely to benefit from any extended period of supervision by Corrective Services on release. 86I have received a report of Dr Olav Nielssen which, by leave, was later amended and is now dated 29th May 2014. Once again, the offender gave Dr Nielssen a history of the offending consistent with his evidence at the trial. Once again, I must reject that account. Dr Nielssen was of the view that he suffered from no psychiatric disorder nor was there any form of developmental delay, learning disorder, brain injury, psychotic illness or severe mood disorder. His level of substance abuse was not considered sufficient to justify the diagnosis of a disorder. Dr Nielssen points out that "homicide recidivism is rare". 87When giving evidence, the offender was asked about how he felt about the fact that he killed Todorovski. He said: I'm really sorry for it. I'm terrified, I really didn't want this to happen [956.45T]. He told the community corrections officer that he was shattered and upset that Todorovski had died. He spoke to Dr Nielssen of "his sadness at having caused... Todorovski's death". I am not satisfied on the balance of probabilities that these expressions of regret constitute evidence of remorse. Remorse normally involves acknowledgment of guilt, an acceptance of responsibility for one's own actions, and the demonstration of a determination to change. None of these things can be persuasively shown whilst the offender, effectively, maintains his innocence on the basis of the self-defence the jury have rejected. 88The rejection by the jury of self-defence and provocation "does not necessarily mean that the accused cannot get the benefit, as a mitigating factor, at least to some extent, of the factual basis upon which they rested. If a sentencing judge is satisfied from the credible evidence in a case that there was a degree of provocation, he may taken it into account as a mitigating factor". (R v Bell (1985) 2 NSWLR 466 at 485 per Lee J; R v Heffernan [2005] NSWSC 739 per Hoeben J (as his Honour then was)). 89From the jury's verdict, and facts as I find them to be, I am not satisfied that the offender acted in any way in self-defence. However, I accept, as the Crown concede, that there was a degree of provocation offered by Todorovski in setting his henchmen upon the offender and in joining in the attack and I will take that factor into account by way of mitigation to a degree. 90A number of character references were tendered from family, friends and neighbours, all of whom appear to be persons of good character who spoke highly of what they knew of the offender's character. Amongst them was the Muslim chaplain from Corrective Services, who informed me that the offender regularly attends chapel and speaks with him. He has impressed the chaplain as a man who is sincere in his eagerness to live life according to the teachings of his faith. 91The offender's sister spoke of him as a gentle giant who was non confrontational and reserved. He has helped with her children following the death of her first husband and her divorce from her second. He expressed to her his deep regret for getting dragged into the confrontation. I accept that he is a contributing member of the family, but his sister's assessment about what happened, and why, is different from mine. 92A neighbour, whose disabled child the offender has assisted and otherwise shown kindness to, spoke of him as very gentle and kind. She said the offending was completely out of character. A family friend who is in business said the offender was of good repute in his local neighbourhood. Again, however, the remorse the offender has expressed to this referee is couched in the language of justification by reason of self-defence. He described him as a very good person with a soft heart. 93A former girlfriend described him as loyal and respectful and as showing patience, kindness and love to her son. Again, her view of things is affected by her unreserved acceptance that the offender acted in self-defence. 94Other supporters also speak highly of the offender and describe him as gentle. They say that violence or aggression is alien to his character. Again, however, the weight that can be given to these statements is reduced by the firm, and no doubt genuine, belief of the supporters that the offender must have acted in self-defence. 95The New Zealand offending; the reduced weight to which the references are entitled because they proceed on an erroneous view of the facts; and the offender's engagement in the fight of 12th December 2011, taken together make it difficult to accept unreservedly that the offender was a person of good character. There is no doubt he enjoyed a good reputation amongst his family, friends and neighbours. 96I accept the evidence of the Community Corrections Officer and Dr Nielssen. This suggests that he is unlikely to commit a similar offence in the future. However, the propensity to take the law into his own hands remains a concern. This somewhat reduces what otherwise appears to be his good prospects of rehabilitation. 97I am asked to consider imposing a lesser penalty than I otherwise would, by having regard to the degree to which the administration of justice has been facilitated by the defence within the meaning of s 22A Crimes (Sentencing Procedure Act) 1999 (NSW) (Sentencing Act). 98When the matter was first mentioned before me on 7th February 2014, Mr Dalton of Senior Counsel informed me that there would be no issue that the offender shot and killed Todorovski. The only issue would be that he did so in self defence. In this regard, I understood that the offender would admit that in shooting Todorovski he intended to inflict really serious personal injury,not necessarily to kill him. The Trial was run on this single issue of self-defence only. Moreover, the defence attempted to further reduce necessary hearing time by seeking agreement on the facts that could be proved by the expert witnesses (see R v Abdallah (No. 3) [2014] NSWSC 267). The learned Crown Prosecutor exercised his right not to agree to this course, even though the ballistic experts reached agreement between themselves. The defence's offer in this regard, if accepted, would have reduced the time taken up by the Trial. The concessions made and accepted were valuable in as much as they eliminated the need for the Crown to identify the offender as the killer and would otherwise have reduced the length and complexity of the trial. Notwithstanding these concessions, the Crown was entitled to attempt to prove the higher level of culpability involved in an intention to kill. However, the degree to which the administration of justice has been facilitated should be recognised and I will take it into account when fixing the sentence.

Principles relevant to sentencing in this case 99I am required to impose a sentence of imprisonment for life on a person who is convicted of murder if I am satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution or punishment, community protection and deterrence can only be met through the imposition of that sentence (s 61 Sentencing Act). Bad as this offending is, I am satisfied that it does not fall into that very extreme category and I record that it was not suggested by the Crown that it did. I can move on from this consideration. 100Even so, it remains important to bear in mind that life imprisonment is the maximum punishment for the crime of murder: s 19A Crimes Act 1900 (NSW). However, I am authorised by law to impose a sentence of imprisonment for a specified term: s 21 Sentencing Act. Murder is also an offence for which Parliament has fixed a standard non-parole period, in this case, of 20 years (Division 1A Sentencing Act). The maximum penalty and standard non-parole period provide important guideposts for fixing the appropriate penalty. 101The nature of the sentencing task is to fix the appropriate sentence for the offence and the offender, having regard to all relevant facts, matters and circumstances. A sentence must fit the offending having regard to its objective seriousness; that is the offender must be adequately punished for his offending. At the same time, a sentence should not exceed what is proportionate to the crime. 102As is often said, after treason, murder is the most serious offence known to our law. It must always be viewed as an objectively serious crime. But an assessment of all the circumstances informing the objective seriousness of the particular offending must be made as that evaluation is relevant in assessing the degree of moral culpability involved 103It goes without saying, that in any case of murder no penalty other than a long period of imprisonment is appropriate. As I have decided that this is not a very extreme case of murder, I will impose a sentence for a specified period of years, which will also legally require me to fix a non-parole period. The non-parole period is the minimum period of time that justice requires the offender to serve in prison. Unless I find special circumstances, by law the additional term during which the offender may be eligible for parole must not exceed one-third of the non-parole period. It should not be assumed, however, that an offender is automatically released on the first day on which he is eligible for parole. Again by our law, an investigative process is undertaken by the executive branch of government, not the Court, to determine whether a given offender should in fact be released on parole. 104Sentencing is not a purely logical exercise. Its purposes are various, overlapping and competing. They include the protection of society; retribution and denunciation; general and specific deterrence; and reform and rehabilitation: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; s 3A Crimes (Sentencing Procedure Act) 1999 (NSW). And increasingly, the recognition of the harm done to victims and the community. 105Mitigating factors must be given appropriate weight. But they must not be allowed "to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence" (Munda v Western Australia [2013] HCA 38; 87 ALJR 1035 [53]; Veen at 477). 106It is necessary to "recognise the longstanding obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community." (Munda at [54]). 107That the offender, by his violent conduct took a human life, is a consideration "with a very powerful claim on the sentencing discretion" (Munda at [55]). It is necessary that violent offending be justly punished to vindicate the human dignity of the victim, to protect the community and to deter the offender and others.

Objective seriousness of the offending 108As murder is an offence which carries a standard non-parole period, I am required to assess the objective seriousness of this offending without reference to matters personal to the offender. My sole regard is the nature of the offending. (Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27]). 109As I have said, the degree of moral culpability in this offending was high. The offender shot his victim with a deadly weapon intending to kill him. There was an element of planning and premeditation involved in the offending. He obtained the gun and took it with him having in mind that he was prepared to use it if things turned violent as they may well, and in fact did. 110The shooting occurred in broad daylight in a residential, suburban street in southern Sydney. It was a holiday time of year and many people were about, including a mother and her child, a citizen looking for a new car, and workmen whose car had broken down. Additionally, many residents were at home. There was a high level of actual public danger involved in this offending. 111Gun crimes have certain prevalence in Sydney, sufficient to cause public concern about the threat they pose to public safety and the maintenance of peace in our society. The use of guns to settle personal differences tears at the fabric of our society. The use of a gun to settle a difference is a serious crime because the offender is putting himself above the law by taking it into his own hands. 112As I have said, murder is always serious. The seriousness of this particular offending is emphasised by the elements of the threat to public safety, defiance of the law and the degree of planning I have identified.

Mitigation 113I have dealt with the mitigating factors in this offending when I dealt with the offender's personal circumstances. There was a degree of provocation falling well short of the legal requirements of the partial defence, which prompted the actual use of the gun. 114The absence of a frank acknowledgment of responsibility, and the failure to disclose the true reasons for his offending, mean the weight that might otherwise be due to the positive factors I have identified is reduced. Without a full acknowledgment of responsibility, one can only prognosticate in a guarded way about what might otherwise be apparently good prospects for rehabilitation and the unlikelihood of future offending. Then there is the propensity to take the law into his own hands, demonstrated by this offending, and the previous New Zealand offending. 115These considerations lead me to conclude that notwithstanding the positive things that might be said in the offender's favour, he has not established a strong case for leniency.

Comparable sentences 116I was referred to a number of cases said to provide a yardstick against which the sentence to be imposed in this case could be measured. I bear in mind that what is required is consistency of principle, not numerical equivalence: (Hili v The Queen; Jones v The Queen [2010] HCA 45, 242 CLR 250). Previous decisions may establish a range of sentences actually imposed; they do not establish the correctness of the range: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 1994; (2010) 79 NSWLR 1 at [303] - [305]. 117The offender laid special emphasis upon R v Fahda [2013] NSWCCA 86. The family of the offender and his victim were feuding. After a chance encounter with the victim, who threatened the offender's life, the offender retrieved the gun he habitually carried and fired twelve shots at the victim who was sitting in his car. Seven bullets found their mark. He intended to kill. The Court of Criminal Appeal dismissed a Crown appeal from a 20 year sentence consisting of a non-parole period of 14 years and an additional term of 6 years. The offender was of limited intellectual ability and suffered from mental illness. The mental health issues in part explained the offending. 118In R v Hamzy [2004] NSWCCA 243, the offender was convicted of a number of offences including murder. The dispute originated from an argument in a nightclub. It was continued on a footpath outside the club and the offender chased the fleeing victim shooting him twice at close range in quick succession. For the murder the offender was sentenced to a term of imprisonment of 20 years having a non-parole period of 15 years and an additional term of 6 years. The offender was 19 years of age, had an unfortunate background and benefited from the leniency normally extended to youthful offenders. The sentencing Judge found that the offender shot to kill. A severity appeal was dismissed. 119The offender in R v Linard Shamouil; R v Steven David [2009] NSWSC 24 was sentenced to a term of imprisonment of 19 years having a non-parole period of 14 years and 6 months and an additional term of 4 years and 6 months. He received a discount of 15 percent for a late plea. The offender was a 20 year old with a bad criminal record. He shot a 21 year old who had slighted his younger female relative. They met to talk, a scuffle broke out and the offender produced a gun, which after some hesitation he fired 3 times in rapid succession. Each shot found its mark, one fatally. There was a need to accumulate the sentence on sentences for other offending and the principle of totality applied. But for the plea, the sentencing judge would have imposed a sentence of 22 years. 120In R v Nguyen; R v Pham; R v Vu; R v To [2005] NSWCCA 362 the Court of Criminal Appeal quashed a sentence of 25 years with a non-parole period of 20 years imposed on an offender who had shot his victim 3 times in a laneway behind some shops. He was re-sentenced to a term of imprisonment of 20 years with a non-parole period of 16. The Court held that the sentencing discretion miscarried by failing to afford some limited mitigation on account of the offender's youth. 121In R v Taylor [2003] NSWCCA 194, the Court of Criminal Appeal dismissed a severity appeal from a term of imprisonment of 18 years having a non-parole period of 14 years and an additional term of 4 years. The offender was aged 24 when he shot his former partner's new boyfriend out of a jealous desire for revenge. The shooting occurred in his forme partner's home and she was present when it occurred. He had taken the gun with him, but the sentencing Judge found that he had not formed an intention to kill the deceased prior to the confrontation in the home. On the break-up of a previous relationship, the offender had engaged in aggressive behaviour involving the use of a firearm. But he had no other relevant offending. 122As the High Court of Australia has recently emphasised (Barbaro v the Queen; Zirilli v the Queen [2014] HCA 2 at [44] - [49]) sentences imposed in previous cases do not fix the bounds of a permissible range within which a sentence should fall. Sentencing is not a mathematical exercise. It requires consideration of all of the circumstances of the offence and the offender. More than one view may be open but the judge is required to fix a single sentence. 123From my consideration of these cases, I have not identified any particular guiding principle which governs their outcome and should be applied in the present case. I have borne the decisions in mind and derived some guidance from them. But it is difficult to form the view, notwithstanding superficial factual similarities, that these six cases provide an appropriate yardstick by which to measure the sentence I will impose. The sample is too small, and each case turned upon its own facts.

Sentence 124I have borne in mind the principles of law I have referred to and all of the facts, matters and circumstances discussed in this judgment. The circumstances of this case engage the obligation of the state to denounce the offender's crime and to deter others from operating outside the law or taking it into their own hands. Vindication of the value of human life is also of central importance. 125Were it not for the facilitation of the course of justice in the conduct of the Trial, I would have imposed a term of imprisonment of 28 years. When one has regard to the range of discount conventionally available for a late plea of guilty, the discount allowed cannot be great, but something in the order of 12 months seems to me appropriate. 126I am not satisfied that special circumstances have been established justifying a variation of the statutory relationship between the non-parole period and the additional term. I have taken into account the offender's subjective circumstances. The evidence before me does not suggest any particular need for supervision in the community if the offender is released on parole over and above that which may be necessary in any case after service of a long term of full-time custody. The sentence I will pass allows for that. 127The offender has been in custody since his arrest in Western Australia on 12th January 2012 and his sentence will commence on that date. 128Tarek Abdallah by its verdict the jury have convicted you of the murder of Neil Todorovski on 4th January 2012. I sentence you to a term of imprisonment having a non-parole period of 20 years commencing on 12th January 2012 and expiring on 11th January 2032, with an additional term of 6 years and 8 months commencing on 12th January 2032 and expiring on 11th "September 2038. The first date upon which you will be eligible for release on parole is 11th January 2032.

Amendments 23 June 2014 - The word "bikkie" replaced with "bikie" Amended paragraphs: 17 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: 23 June 2014