R v Alkanaan

Supreme Court of NSW|2015-03-13|Before: Garling J

REMARKS ON SENTENCE

On 2 February 2013, Falah Alkanaan murdered Hussein Khanafer outside 20 Boldrewood Road, Blackett, New South Wales.
He did so by shooting him with a shortened, double-barrelled shotgun from a distance of about 1.5m. The shot passed through Mr Khanafer's head, severing his brainstem, and causing his immediate death.

Judicial Task on Sentencing

In the circumstances of this present case, it is appropriate that I remind myself and the community generally, of the judicial task on sentencing. That is, how a judge, in each individual case, must go about the task of fixing a sentence which accords with the legislation, the principles of the common law and one which is appropriate in the particular factual circumstances of this case.
In the present system of criminal justice, I must exercise a discretion as to what sentence should be imposed upon Mr Alkanaan by applying well‑identified principles of law to the process of fact-finding: R v MacDonell (NSWCCA, 8 December 1995, unreported) per Hunt CJ at CL at [1]-[2].
The principles of law are well established and can be conveniently summarised in the following way: "1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rests with the judge, and not with the jury…;
Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings …;
The primary constraint upon the power and duty of decision-making … is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict …;
A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt …;
There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender…. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender …". R v Isaacs (1997) 41 NSWLR 374 at 377-378; see also Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1.
It is no part of the sentencing function for me to attempt to discern the basis upon which the jury reached their verdict. But rather, in sentencing Mr Alkanaan, I am obliged to do so, upon findings of fact which I alone make, but with the constraint that those facts must be consistent with the jury's verdict.
I will apply these principles in the course of this sentence.

The Statutory Regime

The Parliament of New South Wales has determined the purposes for which a court may impose a sentence on an offender. Those purposes are to adequately punish an offender; to prevent crime by the deterrence of others generally, and the offender specifically; to protect the community; to make the offender accountable for their actions and to promote their rehabilitation; to recognise the harm done to the victim of the crime and the community; and publically to denounce the conduct of the offender.
These purposes obviously overlap and are in tension. Punishment and rehabilitation are not always compatible. None of the purposes can be considered in isolation.
The legislation also requires the Court to take into account, to the extent relevant, a number of aggravating and mitigatory factors. The legislation does not necessarily require that the Court increase or reduce a sentence because of these factors.

Principles of Sentencing

The courts have developed clear guidance for the exercise of the sentencing discretion by every judge. These common law principles are to be found in decided cases.
In summary, the common law principles include: 1. Proportionality - namely that the sentence should be proportionate to the gravity of the offences: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ; 2. Parity - namely, that any difference between sentences imposed upon co-offenders for the same offence, ought not be such as to give rise to a justifiable sense of grievance, and to give the appearance that justice has not been done: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617 per Dawson J, Gibbs CJ and Wilson J agreeing; 3. Totality - namely, that when a person stands for sentence for a number of offences, the Court must look at the totality of the criminal behaviour and determine what the appropriate sentence is for all of the offences: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; 4. Avoidance of double punishment - namely that a person should not be punished twice for the same conduct: Pearce v The Queen [1998] HCA 57 (1998) 194 CLR 610.
These principles have continuing relevance because s 21A(1) of the Crimes (Sentencing Procedure) Act preserves the entire body of judicially developed sentencing principles: Muldrock at [18]. As well, factors established by the common law as affecting sentence, such as whether prison may be particularly burdensome, are also to be taken into account: Muldrock at [19].
What the sentencing task requires of a judge is that they have regard to the legislation, here the purposes stated for sentencing, the statutory guideposts of the maximum penalty and the standard non-parole period, and the specific aggravating and mitigating factors. The sentencing Judge must also have regard to the common law principles. Against that legal framework, the sentencing Judge then has to find and consider all of the relevant facts about the offence and the offender. The sentencing Judge then undertakes an instinctive synthesis approach to the sentencing task.
Sentencing is not an exercise of mathematical precision leading to a single correct answer. Rather, having determined the appropriate facts which relate to the offence, the proper approach to sentencing is to identify all of the factors that are relevant to sentencing in this case, identify their significance with the particular circumstances of the offence and then to make a value judgment as to what is the appropriate sentence having regard to the purpose for which a sentence is to be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [26].
I will bear in mind the legislation by which I am bound and the principles which the Courts have determined, when proceeding on this task of sentencing Mr Alkanaan.

The Facts

I find the facts of the matter beyond reasonable doubt to be as follows.
Mr Alkanaan and the deceased, Mr Khanafer, had known each other for about 18 months or so prior to the death of Mr Khanafer.
Their relationship arose out of mutual drug dealings. Mr Khanafer would supply drugs to Mr Alkanaan. Mr Alkanaan would sometimes use those drugs, and sometimes sell them. From time to time, he paid money to Mr Khanafer. He did other jobs for Mr Khanafer.
Mr Khanafer was obviously addicted to drugs, in particular cocaine and methylamphetamine (Ice). He was injecting these drugs intravenously. The intake of these drugs clearly made Mr Khanafer, at times, unpredictable, violent and abusive.
As well, Mr Alkanaan and Mr Khanafer were accustomed to consult with an older man, described by Mr Alkanaan as being well respected, who was clearly the principal source of their drugs. Mr Alkanaan acquired from this person, for the purpose of self-protection whilst working in the milieu of drug distribution, the shortened shotgun which was used in the offence of murder.
Mr Alkanaan kept that shortened shotgun in a loaded state, concealed in the backseat area of his motor vehicle, a Jeep Cherokee.
On 31 January 2013, Mr Khanafer sent to Mr Alkanaan a text message which read "Cuz, call me before things get ugly, we need to talk". Whilst there was some communication after this point, there was clearly no payment of money.
On 2 February 2013, Mr Khanafer sent a further text message to Mr Alkanaan at 9.53am. It read as follows: "Good morning cuz. I need my today $4,500. I have to give it to my brother. I [borrowed] $ of him. So wat time can I pick it up. Thanks cuz."
This text message did not elicit any direct response from Mr Alkanaan.
In this process of finding the relevant facts, it is necessary for me to specifically record that I am quite unable to accept the truth of the evidence given by Mr Alkanaan as to what occurred on this day.
I found him to be a thoroughly unpersuasive witness. He made statements in evidence which were patently untrue, particularly about the contents of recorded telephone calls. He must have known when he gave his evidence, that such statements were untrue. He often answered questions by asserting that at the time he did things which clearly inculpated him in the offence, he was "not thinking". In fact, I am satisfied that Mr Alkanaan gave little, if any, truthful evidence, and I am unable to accept his version of events unless it constitutes an admission against his interests or unless it is independently corroborated.
On the morning of 2 February 2013, Mr Khanafer, together with his wife, Kelly Khanafer, and their 18 month old child, was driving from his home to Merrylands. After calling into the Lethbridge Park Pharmacy, and leaving there at about 12.30pm, they drove to Mr Alkanaan's house, and parked the car outside. Mr Khanafer went into the property to meet with Mr Alkanaan.
They were then in each other's company for about 30 minutes. During this time, they were seen to be conversing together at the front of the house, each speaking on their respective mobile telephones and, on one occasion at least, Mr Khanafer was seen to be speaking on Mr Alkanaan's telephone.
The evidence was that there were no raised voices heard, no apparent argument or other signs of any significant disagreement between them. Mr Alkanaan was seen to re-enter the house on a number of occasions and come back out to the front verandah.
However, I am not in any doubt that there was an ongoing dispute between the offender and the deceased over a few thousand dollars. The offender was unwilling to pay the debt, which Mr Khanafer claimed.
Shortly after 12.50pm, a silver Ford Falcon being driven by Mr Ben Toleafoa, arrived at the scene. It parked directly out the front of Mr Alkanaan's house, and behind the car in which Mr Khanafer had arrived, and in which his wife, Kelly Khanafer, was sitting. Mr Toleafoa was, at that time, a very large and physically intimidating man.
The timing of the arrival of that car was very shortly after a 23 second telephone call from Mr Alkanaan's mobile phone to Mr Toleafoa's mobile phone. Although Mr Alkanaan unconvincingly denied knowing Mr Toleafoa, I am satisfied beyond a reasonable doubt, that Mr Toleafoa and Mr Alkanaan were known to each other, Mr Alkanaan regarded Mr Toleafoa as "his man", and that it was he, Mr Alkanaan, who summoned Mr Toleafoa to his house. He summoned Mr Toleafoa to provide back up and, if necessary, assistance in the resolution of his ongoing discussions with Mr Khanafer.
After the silver Ford Falcon arrived, the deceased, Mr Khanafer, left the front of the house and walked out onto Boldrewood Road, and stood at the driver's side door of the silver Ford Falcon. He then spoke with Mr Toleafoa. I am not satisfied that there was any anger in that conversation. On the contrary, the evidence is that they were talking as though they were friends and, although Mr Khanafer was using his hands, I am satisfied that that was part of an ordinary, non-confrontational conversation.
Whilst Mr Khanafer was standing on the road surface, Mr Alkanaan left the front verandah of his house, and walked to his Jeep Cherokee where he retrieved the shortened shotgun, which was already loaded. He then walked from the driveway where his Jeep Cherokee was parked, onto the road surface, around the front of the Ford Falcon and approached Mr Khanafer.
Mr Khanafer commenced to stand up from where he had been leaning on the vehicle talking to Mr Toleafoa when without any warning, or any communication at all, Mr Alkanaan pointed the shotgun at Mr Khanafer's head and discharged it. Mr Khanafer dropped to the ground. He died instantly.
The silver Ford Falcon driven by Mr Toleafoa then reversed so as to be able to drive in a northerly direction along Boldrewood Road without striking the body of the deceased, Mr Khanafer. As it drew level with the body, Mr Alkanaan opened the door and got into the passenger's side. At about that time he discharged his shotgun a second time.
Mr Toleafoa then drove off in a northerly direction along Boldrewood Road at a high speed. He turned right into Manifold Street and then proceeded to Carlisle Street. After about 250 or so metres, Mr Toleafoa stopped the Ford vehicle, and allowed Mr Alkanaan to escape along a network of footpaths in the Bidwell area. As he was doing so, Mr Alkanaan dismantled the shotgun and disposed of it by putting it into a drainage pit along the pathway.
Thereafter, Mr Alkanaan fled from the police and took refuge in the North Richmond area, at the home of two friends. He made arrangements to obtain an airline ticket from Sydney to Darwin. He made arrangements for accommodation at a house in Darwin, and set about disguising himself, and carrying false identification.
Unbeknownst to Mr Alkanaan, his telephone calls making these arrangements were lawfully intercepted by the police. They were present at Sydney Domestic Airport to arrest him when he attempted to flee NSW. He had adopted a rudimentary disguise.
Immediately upon his arrest, Mr Alkanaan gave an entirely false story to the arresting police, and then during a recorded interview later that evening at the St George Police Station, he persisted with a wholly concocted story, claiming that he was not involved at all in the shooting death of Mr Khanafer. This was a deliberate attempt to exculpate himself and to avoid responsibility for his conduct. His conduct in fleeing, and his lies to the police reflected a clear consciousness of his guilt of the offence of murder.
After being arrested and charged, Mr Alkanaan was remanded in custody. Whilst at the Metropolitan Reception and Remand Centre, his conversations with his girlfriend and her mother were lawfully intercepted and recorded.
It became apparent from those conversations that, although he denied any involvement to his girlfriend and her mother (which denial he accepts was entirely false), he procured their assistance to take steps to interfere with Mrs Khanafer and prevent her from providing a truthful account of the circumstances of the murder which would implicate him in any way.
Mr Alkanaan asked his partner and her mother to speak with an intermediary to get him to visit Mrs Khanafer. Mr Alkanaan wanted the intermediary to "… shut her up straight away". He wrongly thought Mrs Khanafer was the only witness to the shooting. He made it clear that he wanted Mrs Khanafer to change her account to the police and say that she was not sure that Mr Alkanaan was the person who fired the shotgun.
At one stage, during the course of these conversations, Mr Alkanaan told his partner that he was willing to pay $100,000 to the intermediary for him to carry out the task of persuading Mrs Khanafer to change her account of the shooting.
During the course of these intercepted telephone calls, Mr Alkanaan also revealed his close relationship with Mr Ben Toleafoa whom he described as "my man".
He also disclosed, in my view, the real truth about why he shot Mr Khanafer. In one of the phone calls to Ms Tamara Nash, a female acquaintance with whom he was on good terms, Mr Alkanaan told Ms Nash, and I accept truthfully, that: "Alkanaan: … I told everyone, don't go near my house or otherwise I will blow your fuckin head off … … Alkanaan: One piece of shit didn't listen. He copped it. Okay. … Alkanaan: That's the rule. No one comes near my mum's. Hey." "
In short, in the milieu of drug dealing, Mr Alkanaan formed the view that Mr Khanafer had overstepped the mark by visiting him at his house, where his mother and siblings lived, for purposes of debt collection. In those circumstances, Mr Alkanaan decided that the best method of repaying the debt and enforcing his "rule" was to kill Mr Khanafer. He did so deliberately, and, I am satisfied beyond reasonable doubt, with an intention to kill Mr Khanafer.
He then set about covering up his crime, by fleeing from the scene, lying to the Police and by engaging in the conduct which amounts to the conspiracy to which he has pleaded guilty. The aim of that conduct was to conceal his involvement in the crime and thereby escape punishment for it.

Specific Statutory Considerations

Section 21A of the Crimes (Sentencing Procedure) Act identifies a number of matters which the Parliament has provided as aggravating factors to which regard must be had in determining the appropriate sentence to be imposed. As well, there are matters in mitigation to which regard must also be had. It is appropriate to commence with the aggravating factors.
To the extent that any aggravating factor forms part of or is included in the elements of the offence, I do not have further regard to it. These various aggravating factors principally relate to the offence of murder. I will only consider them in relation to that offence.
The use of a weapon, namely, a shortened double-barrelled shotgun, is an aggravating factor to be taken into account. Not all murders involve the use of a weapon, but many do. In this case, this factor has some, not insignificant, weight: s 21A(2)(b) Crimes (Sentencing Procedures) Act.
If an offender has a record of previous convictions, particularly if the offender is being sentenced for an offence of serious personal violence, and has a record of a previous conviction for a serious personal violence offence, then that is a matter which is regarded as an aggravating factor: s 21A(2)(d) Crimes (Sentencing Procedure) Act.
Here, Mr Alkanaan has a record of previous convictions as an adult stretching back over about 10 years. Many of the convictions are minor in nature and can be disregarded. Some offences led to terms of imprisonment. However, on 25 August 2011 he was convicted of an assault occasioning actual bodily harm, and also of contravening an Apprehended Violence Order. He was given a sentence by way of a bond to be of good behaviour for each offence. On of the bonds was for a period of 2 years commencing on 25 August 2011. He was on that bond at the time he committed this offence. I will have regard as an aggravating factor to his previous conviction for the offence of assault, but Mr Alkanaan is not to be punished again for this previous offence.
Section 21A(2)(e), s 21A(2)(ea) and s 21A(2)(eb) Crimes (Sentencing Procedure) Act, each identify aggravating factors, namely that the offence was committed in company, in the presence of a child under 18 years of age and in the home of the victim or any other person. Each of these potentially applies here. Mr Toleafoa was present when the offence was committed, having been summoned to attend. Mr Khanafer's 18 month old child was present in the motor vehicle in the immediate vicinity of the shooting, and the shooting took place immediately in front of Mr Alkanaan's home in which his mother and siblings lived. In the particular circumstances of this case, where Mr Toleafoa was not involved in the crime, there is no evidence that Mr Khanafer's 18 month child was aware of what occurred, and the offence took place on the street outside the front of Mr Alkanaan's home - I do not think that these matters are properly to be regarded as aggravating factors, of any real weight. They can for practical purposes be put to one side.
It is an aggravating factor if an offence is committed while the offender was on conditional liberty in relation to an offence: s 21A(2)(j) Crimes (Sentencing Procedure) Act. Here, the offender was on conditional liberty being the bond which I have described above. I regard this as an aggravating factor of some real significance since it demonstrates that Mr Alkanaan was not deterred from committing this offence by a sentence previously imposed by a court.
There are a number of mitigating factors to which I am required to have regard and to which I do. Neither of the offences were part of a planned or organised criminal activity: s 21A(3)(b) Crimes (Sentencing Procedure) Act. The murder was a reaction to the unwelcome presence of Mr Khanafer at Mr Alkanaan's house and his demands. Whilst a visit was to be expected, I do not think that there was any degree of planning about what happened. The conspiracy offence was a reaction to being caught by the Police and confronted with the reality of what he had done. Although there was some planning involved, it was not such as to amount to a planned or organised criminal activity. These matters have some, but a limited, mitigatory effect.
Another specific mitigating factor, which relates only to the offence of murder, is whether the offender was provoked by the victim: s 21A(3)(c) Crimes (Sentencing Procedure) Act. Mr Alkanaan submits that he was provoked by the presence of the deceased and the demands for money. I do not accept this submission. I am satisfied that there was no provocation in any of the conduct of the deceased. True it is the deceased sought money from Mr Alkanaan, but it was money which the deceased thought was owed to him. I am not satisfied that this constitutes any mitigating factor at all.
If the Court is satisfied that an offender is unlikely to re-offend, or that he has good prospects of rehabilitation whether by reason of the offender's age or otherwise, then these are matters of mitigation: s 21A(3)(g) and (h) Crimes (Sentencing Procedure) Act. Here, senior counsel for Mr Alkanaan made no submission that the Court should find that Mr Alkanaan was unlikely to re‑offend, or that he has good prospects of rehabilitation. The evidence does not allow any finding at all about prospects of re-offending or of rehabilitation. There is no mitigation to be found here.
If an offender has shown remorse for the offence, then that can be taken into account as a mitigating factor. Here, initially, there was no remorse. On the contrary, Mr Alkanaan's reaction to being arrested was to lie about his involvement, and to attempt to secure through the perpetration of another crime, his freedom. Mr Alkanaan's evidence of his regret for his actions, even if accepted, falls far short of providing evidence that he accepted responsibility for, and acknowledged the consequences of, his actions. I do not find that he has shown any remorse.
Insofar as Mr Alkanaan has pleaded guilty to the conspiracy offence, that is a matter of mitigation, to which it is convenient now to turn.

Plea of Guilty

When these proceedings were initially before the Supreme Court, and Mr Alkanaan was first arraigned, he pleaded not guilty to the conspiracy charge.
At a directions hearing in December 2014, his counsel indicated that it was unlikely that the conspiracy charge would be contested. However, a plea of guilty was not entered until Mr Alkanaan was first arraigned on 16 February 2015.
Section 22 of the Crimes (Sentencing Procedure) Act requires the Court to take into account, with respect to the conspiracy charge, the fact that Mr Alkanaan has pleaded guilty and the circumstances in which he indicated that intention. The section also provides that the Court may, but is not obliged to, impose a lesser penalty than it would otherwise have imposed. The section provides that the lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence.
The Crown case against Mr Alkanaan on the conspiracy charge essentially arose out of the intercepted and recorded conversations of Mr Alkanaan. Those conversations and their meanings were clear. There was no alternative explanation for them. The conversations were also to be tendered as evidence in the trial of the murder charge. The fact that Mr Alkanaan pleaded guilty at the late stage that he did, provided no real benefit to, or facilitation of, the administration of justice. At best, it saved the jury from the task of determining whether he was guilty of the offence or not. To that extent there was a minor benefit to the administration of justice.
A small discount is appropriate. That discount in my view ought be no more than 10%.

Mr Alkanaan's Criminality

It is appropriate to make an assessment of the objective criminality involving Mr Alkanaan's offences. This is to be assessed without reference to matters personal to Mr Alkanaan, and is to be assessed wholly by reference to the nature and circumstances of the offence: Muldrock at [27].
In my assessment, the criminality of the murder was very serious. In broad daylight, in a suburban street, in the presence of the deceased's wife and his 18 month old child, Mr Alkanaan has murdered Mr Khanafer in a violent manner by firing a shortened shotgun at him from a short distance away. There was no apparent reason for so doing other than to assert his own domination over Mr Khanafer. It was a senseless, brutal and wholly unnecessary killing.
I am well satisfied that Mr Alkanaan intended to kill Mr Khanafer. No less intention than that could be inferred from the fact that the shotgun was pointed directly at Mr Khanafer's head and was discharged from a close range of about 1.5m.
As best as can be discerned from all of the circumstances, I am persuaded beyond reasonable doubt that in assessing the objective criminality of Mr Alkanaan's conduct, he was attempting to "enforce" the rule that he had invented, which was that the business of drug dealing and debt collection ought not be conducted at his house.
Although senior counsel for Mr Alkanaan argued that the murder offence fell within the mid-range, I would assess the objective seriousness of this offence and the criminality involved as being above the mid-range of objective seriousness but not reaching the worst case category.
The conspiracy offence was a persistent attempt by Mr Alkanaan to secure his freedom. It fell into the mid-range for such offences.

Victim Impact Statement

The Court has heard a statement read by Mrs Joanne Khanafer. Clearly this crime has touched the members of Mr Khanafer's immediate family, and his extended family, and I recognise that it has affected them all deeply.
Because of recent legislative amendments, I am entitled, if appropriate, to take into account this victim impact statement in the determination of sentence on the basis that the harmful impact upon Mr Khanafer's immediate family is an aspect of harm to the community. I consider it appropriate to take that harmful impact into account in this case.

Subjective Circumstances of Mr Alkanaan

Mr Alkanaan is now 30 years old. He was 27 when he murdered Mr Khanafer. He was born and raised in Basra in Iraq. He is the eldest of four children.
His early childhood in Basra was a time of political turmoil and civil unrest. Basra was the target of significant military action during the invasion of Kuwait by Iraq. Mr Alkanaan was exposed to the traumatic consequences of the war.
Eventually, Mr Alkanaan's family moved as refugees to Jordan where they awaited approval to come to Australia. During much of his early childhood, Mr Alkanaan had little, if any, contact with his father who, having been conscripted into the armed forces of Iraq, deserted and fled to Saudi Arabia. He had no formal education before coming to Australia.
Mr Alkanaan came to Australia at the age of about 11½. He attended school until mid-way through Year 9. His father left the family when he was 15 years old. His mother has brought him up since that time.
He then worked in a variety of occupations including on mine sites in Western Australia and as a labourer, a truck driver and, ultimately, a traffic control employee with the Roads and Maritime Services. He was unemployed at the time of the offences.
He has never been married although he has had a number of long term relationships.
Mr Alkanaan has a history of continuous illicit drug use since, at least, 2001. He commenced his drug addiction by using cocaine, and moved to consuming Ice. He was accustomed to using up to ½ a gram of Ice per day.
A recent test undertaken by Dr Reid, a clinical psychologist, has established that Mr Alkanaan is a man of limited intelligence with a full scale IQ of 75, which places him at the 5th percentile for people of a similar age. Earlier tests found that his IQ was 69. At that range of IQ (69-75), he may be described as falling within the borderline to mildly intellectually disabled category, but as Dr Nielssen said in evidence which I accept, a conclusion of mild intellectual disability involves a broader assessment than just an IQ score.
On a review of his life activities, and the things which he was able to do, I am satisfied that Mr Alkanaan knew perfectly well what he was doing when he committed both of these offences, and he knew perfectly well that what he was doing was wrong. I accept Dr Nielssen's opinion that Mr Alkanaan's low intelligence is likely to be associated with reduced impulse control, and a reduced ability to consider the likely consequence of his actions. However, I am not satisfied that this low intelligence is the explanation for the offence of murder.
Mr Alkanaan was able to take care of himself, to live and travel independently. He was able to develop intimate relationships and be a father to a number of children. He was able to work in a variety of, largely unskilled, jobs. Importantly, he was able to carry on an apparently successful drug dealing business. In other words, he could manage such arithmetic and monetary calculations as were necessary to deal in drugs.
He was also able to make arrangements to flee NSW after the murder and then, when arrested, to concoct and maintain a false account. He was also able to give evidence in the trial for a lengthy period. He did not seem to have any inability to understand the questions which were asked of him.
Even if his formal IQ assessment suggests a mild intellectual disability, I am not satisfied that such disability has any real or significant impact on his life, and any of his ordinary daily activities. It does not significantly affect his functioning. It does not impact in any significant way on an assessment of his moral culpability for these offences. Nor, in my assessment, is it such as to make Mr Alkanaan an inappropriate medium for general deterrence: cf Muldrock at [50]-[55].
Mr Alkanaan has a history of some mental health problems. These problems are not relied upon as explaining his offences. Rather, to the extent that they will bother Mr Alkanaan, even if he is medicated, I will have regard to them in the context of the need for specific deterrence and the impact upon his time in custody. I note that he requires ongoing and long-term psychiatric treatment for these mental health problems. However, there is no suggestion that such treatment is not adequately available to him in custody.

Sentencing

In considering the appropriate sentence to be imposed on Mr Alkanaan, I commence with the reminder that murder involves a criminal taking of a human life. It is a violation of the sanctity of human life, which is a concept at the heart of a civilised community.
A conviction for murder warrants a substantial sentence because the demands of punishment and the deterrence of the broader community against similar conduct are of significant importance. In Mr Alkanaan's case, because of the fact that the offence was committed whilst he was on a good behaviour bond for a serious personal violence offence, attention must necessarily be paid to specific or personal deterrence. That attention is tempered by his personal history and circumstances.
In my view Mr Alkanaan's easy resort to the use of a loaded shortened shotgun to deal with Mr Khanafer's claim for money, and his "inappropriate" visit to Mr Alkanaan's home, is conduct, the lawlessness of which would make any right thinking person shudder with horror. It is conduct which simply cannot be accepted or tolerated in a peaceful democratic society. The use of guns to settle personal differences is conduct which is to be firmly denounced and deterred.
I am not satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crimes (Sentencing Procedure) Act. In my view, the usual period of parole will be adequate to assist Mr Alkanaan to reintegrate into the community at the completion of his non-parole period.
The offence of conspiracy is one which strikes at the heart of the administration of justice. It is a serious offence. However, it does appear that Mr Alkanaan's conduct here was driven out of circumstances in which he found himself after being arrested, and was reactive to that situation. Nevertheless, the offence represents another example of Mr Alkanaan turning his face against the law, and engaging in conduct which he sees as being to his advantage.

Sentence

I have now discussed all of the facts which are relevant to the decision, including the relevant subjective circumstances of the offender, and it is now necessary to make a value judgment as to what the appropriate sentences are. The murder was a serious offence which falls above the mid-range of objective seriousness. The victim, who was unarmed, was confronted by Mr Alkanaan with his loaded, shortened shotgun. Rational behaviour was completely ignored. There is nothing which adequately justifies the conduct of the offender.
I determine that the appropriate overall sentence for the murder to be one of 28 years imprisonment. Of that sentence, I determine that Mr Alkanaan must spend 21 years in jail before being eligible for parole.
With respect to the conspiracy charge, I would ordinarily have imposed a term of imprisonment of 2 years. However, having regard to Mr Alkanaan's plea of guilty, which merits a discount, I would impose a sentence of 1 year and 10 months. I decline to fix a non-parole period.
To recognise the separate criminality involved in the two offences, it is appropriate to provide for a modest measure of accumulation of the sentences. Accordingly, the sentences will be accumulated by a period of 9 months.

Commencement Date

Mr Alkanaan was taken into custody on 8 February 2013, and his sentences would usually commence on that date. However, for the period between 8 February 2013 and 6 August 2014, Mr Alkanaan has been serving the non‑parole period of a term of imprisonment imposed for a conviction in the District Court for the offence of supplying a prohibited drug. That offence has no direct relationship to the offences being considered here.
It will be appropriate for the sentences for these offences to commence on a date after Mr Alkanaan's arrest so as to take account of this sentence. The appropriate date for the commencement of the first of these two sentences will be 9 months after being taken into custody, that is, 8 November 2013.

Offence of Serious Personal Violence

I am required to warn Mr Alkanaan, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offence of murder of which he has been convicted, and for which he is about to be formally sentenced. At some future point in time an application may be made that, notwithstanding the completion of his sentence, he nevertheless ought be detained in ongoing custody, or else ought be the subject of an extended supervision order impacting upon his liberty.

Sentence

Mr Alkanaan, for the offence of conspiracy, I sentence you to: 1. A fixed term of imprisonment of 1 year and 10 months commencing on 8 November 2013 and expiring on 7 September 2015.
Mr Alkanaan, on the charge of murder I sentence you to: 1. (2) A non-parole period of 21 years commencing on 8 August 2014 and concluding on 7 August 2035. 2. (3) A balance of term of 7 years commencing on 8 August 2035 and concluding 7 August 2042.
You will not be eligible to be released before the expiry of your non-parole period.

Amendments 28 October 2016 - Restriction lifted as per orders of Garling J on 28/10/2016. 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: 28 October 2016

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Judgment (17 paragraphs)

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Cases Cited (18)

Cited By (2)