HIS HONOUR: On 21 August 2019, the offender, Mr Naramsin Askarou, after a trial lasting twenty-two days, was found guilty by a jury of an offence of shoot with intent to murder. The maximum penalty for that offence is twenty-five years imprisonment and the offence is subject to a standard non-parole period of ten years.
I am required to find facts which are consistent with the verdict of the jury. Any facts adverse to the offender must be established beyond reasonable doubt, however matters in mitigation need only be proved on the balance of probabilities.
The facts about which I am satisfied are as follows. At the time of the offence the victim, Mr Zia Kryo and the offender had known each other for around fourteen years, the offender having been in the year above Mr Kryo at a high school in Greenfield Park. The two young men became friends, and remained friends for a period of time after leaving high school. However, according to the victim, they drifted apart from about 2012 and apart from an encounter in 2014 they saw little or nothing of each other thereafter.
On 28 July 2016 the victim arrived at his home at 5 Nugent Place, Prairiewood, about 5pm or shortly thereafter. Some time later he left the premises. While there was a good deal of cross-examination about his movements thereafter, during the trial, there is no doubt that at about 10.20pm that evening he reversed his Toyota Hi-Lux into the driveway of number 5 Nugent Place. Shortly after, Mr Kryo got out of his Toyota and approached the front door of his house. As he did so the offender, wearing a black face covering, approached the victim and shot at him three times from close range before running away. The victim was struck by one bullet which entered the left side of his body. The victim's mother, Mrs Janine Kryo was in the garage of the premises at the time and immediately ran to her son. Multiple witnesses in nearby houses contacted emergency services after hearing gunshots. A triple-0 call by Mr Roni Audisho was made at about 10.26pm which is consistent with the shooting occurring at about 10.20pm. After New South Wales Police and ambulance services arrived, a crime scene was established. At the scene police found a number of bullet fragments. Mr Kryo was taken in a critical condition to hospital and placed in an induced coma. A bullet was removed from his body which was found to have punctured his lung and severed his spinal cord. A ballistics expert identified the calibre of the bullet as nine millimetre. It is clear from the jury's verdict that they were satisfied not only that the offender was the shooter but that his intention was to kill. The fact that the victim was shot through the torso at close range and that a total of three shots were fired provided a clear basis for the jury to infer such an intention to kill. In any event I am of course bound by the verdict of the jury and I proceed on the basis that the jury was satisfied beyond reasonable doubt, both that the offender was the shooter and that he intended to kill.
It hardly needs to be stated that this type of offence is of the utmost seriousness given that it involves an intention to murder, and not only an intention to cause grievous bodily harm or some lesser form of harm.
The seriousness of the offence is also confirmed by the maximum penalty of twenty-five years and the standard non-parole period of ten years which are each Legislative guideposts to which I must have regard.
This was not an offence which resulted from a sudden loss of control in the heat of anger. The only conclusion, and one that follows in my view from the jury's verdict, is that the offender carried out an attempted execution of Mr Kryo. Furthermore the offence involved some planning. Whilst the precise details cannot be known, it is clear that the offender had prepared himself for the shooting by obtaining a firearm and had laid in wait for the victim. He had also taken steps to disguise himself by wearing some form of face covering, most likely a balaclava. It is clear from CCTV material played at trial that a getaway car was parked nearby in which the offender fled the scene. Whether he was the driver of that car or whether he was driven by an accomplice are not matters about which I can form any firm view on the evidence. Given that the weapon was not found when the offender was stopped by police shortly after midnight and that the weapon has never been found, it is clear also that the offender promptly took steps to dispose of it.
The Crown initially argued that the offence was aggravated because of an intention to kill, but ultimately, and appropriately, abandoned that submission given that an intention to kill is of course an essential element of the offence.
The offence is however significantly aggravated by reason of the consequences to Mr Kryo. After admission to hospital Mr Kryo was placed on a ventilator for some couple of weeks and was essentially in a coma for that period. More significantly however are the permanent consequences for Mr Kryo which are set out in the reports of Dr Shetty. In short, the spinal cord injury has resulted in a permanent loss of function of Mr Kryo's lower limbs including impaired control to his bowel and sexual functioning. He also requires intermittent self-catheterisation. Due to his loss of feeling in lower limbs, he is at ongoing risk of skin breakdown due to pressure, trauma or burns. Mr Kryo is now able to mobilise only with the assistance of a wheelchair and will require lifelong follow-up, and review to ensure that he does not develop bladder, bowel, respiratory or pain implications which commonly occur after spinal cord injury.
10 In a Victim Impact Statement admitted on sentence Mr Kryo confirmed these matters and explained the devastating consequences which he faces on a daily basis which not only affect him but, inevitably have had a very significant impact on his family. Given that the victim impact statement was not subject to testing by cross-examination I have exercised caution in my approach to it in accordance with authority. However, and as I have set out above, the undisputed consequences for Mr Kryo can only be regarded as catastrophic. As was appropriately accepted by counsel for the offender this must be regarded as a serious example of this type of offending, especially given the consequences for the victim. In my view the offence must be regarded as comfortably above the mid-range of objective seriousness and within the high range of seriousness. I note also that at the time of the offence the offender was subject to conditional liberty because he had been released on bail for charges of drug supply and possession. This is another matter which I must take into account which serves to aggravate his offending.
Although it is unnecessary for the Crown to prove any motive for the offence, evidence given during the trial raised the suggestion that the motive for the shooting was the offender's belief that the victim robbed his house in 2012. Evidence was given by the victim that there had been a falling out between him and the offender from about 2012 as a result of the offender's suspicion that the victim was responsible for the robbery in which a safe belonging to the offender was stolen. According to the victim, on the evening following the robbery the offender asked him whether he had anything to do with it, which the victim denied. The victim gave evidence that there were "heaps" of conversations about this topic but that at some later stage when the victim again denied he was involved the offender said, "Okay I believe you.". However, the victim also recalled an incident which he said occurred in the winter of 2014 when the offender came to his house. He said the offender again accused him of breaking into the house in 2012 and stealing the safe. The victim said that an argument occurred and became heated and that the offender demanded that the victim pay him $20,000 in words to the effect of, "Give me twenty thousand or I will fucking kill you.". The victim said he laughed this off and told the offender to, "Fuck off.". The victim also said that his mother had overhead this conversation, and the threat, and that she came to the door and threatened to call police to which the offender responded, in words to the effect of, "I'm sorry I didn't mean to say that, I was just angry." The victim also said that after this he had no further contact with the offender and did not pay him any money.
I have exercised care in assessing the evidence of the victim Mr Kryo given the fact that after being shot he repeatedly, and for some weeks, falsely told police that he had no idea who shot him. This began to change about a month after the shooting when he told police he would think about whether he could assist them, or rather would assist them; and that the shooting related back to an incident three to four years earlier involving a person who used to live in the Greenfield Park area, a description I note which very broadly was consistent with the offender.
In September 2016 the victim told police that he had "known all along who shot me." And on 22 September 2016, he provided a statement in which he nominated the offender. In cross-examination he said his failure to previously nominate the shooter was due to his fears for the safety of himself and his family.
The victim's mother, Jinan Kryo, gave evidence during the trial which corroborated her son's version of this threat by the offender. She said she was at home in 2014 when the offender came to the door and said he wished to speak with her son. She said because she was a bit worried she remained in a position where she could listen to what was being said between the two men and that she heard the offender say, "If you don't bring the money I will kill you.". She said the offender sounded very upset and very angry and mentioned the sum of $20,000. She said that upon hearing this she opened the door and said words to the effect of, "Why are you threatening my son, I will call the police." and "If anything happens to my son I'll know it's you because you have just threatened him.". She said further that the offender begged her not to call the police, kissed her hand, and said he was just upset. She said she did not see the offender again after that occasion.
Evidence was also given at trial by a Mr Labib Warda who had known Mr Kryo since they were children. They had both also been friends with the offender, having attended the same high school. Mr Warda, at the time of the shooting, was a neighbour of the victim, and lived about seven houses from where the victim lived with his mother. Mr Warda said that some years earlier, when he was close friends with the offender, he became aware that the offender suspected the victim to have been connected with the burglary of his house. Mr Warda said he had many conversations with the offender about this topic and that the offender said he wanted to get back at Mr Kryo by shooting or stabbing, or perhaps torturing him. Mr Warda also said that the offender came to his house to drop off some keys between about 7pm and 9pm on the night of the shooting. He said that on that occasion the offender was wearing dark clothes and was wearing a beanie, but when questioned about it, the offender said was not a beanie but a balaclava. Mr Warda gave evidence that the offender then made "gun gestures" with his fingers and was pointing in the direction of Mr Kryo's house. Mr Warda gave evidence that after this the offender left and that not long after a friend named Roni Audisho arrived and that, while he was speaking to Mr Audisho on the front porch they both heard sounds like gunshots and that Roni then ran in the direction of Mr Kryo's house. Mr Warda said that shortly afterwards he too went to the victim's house where he saw the victim who was clearly injured being comforted by Mr Audisho and the victim's mother. Mr Warda said that the offender came to him the next day and asked what he had seen, and whether he had made a statement. Mr Warda said that the offender told him he had been driven by another person on the night of the shooting and had gone to the victim's house and was hiding behind Mr Kryo's car, apparently just before shooting him.
While I have taken care in assessing Mr Kryo's evidence about the alleged threat relating to the theft of the safe, his evidence is, in my view, corroborated by the evidence of his mother and also by that of Labib Warda. The verdict of the jury, by which I am bound, of course removes any doubt that it was the offender who shot Mr Kryo but the jury's verdict says little or nothing about any motive. Having considered all the evidence, I am satisfied that the shooting was motivated by the offender's long held belief that the victim was responsible for the theft of his safe and its contents in 2012.
During the trial the offender called alibi evidence from his friends, Samantha Rahal and Daniel George, who claimed that the offender was with them at Ms Rahal's home at the time of the shooting. A number of photos, videos and text messages were tendered in support of this alibi. However, several messages found in reverse call charge records were not found in the defence expert's extraction of data from the phones of Ms Rahal and Mr George. The expert accepted that this might be explained in a number of ways, one of which was that some messages may have been deleted. The Crown submitted to the jury that potentially incriminating text messages may have been deleted deliberately; that the alibi evidence had been manufactured and that the jury would reject it beyond reasonable doubt. I also directed the jury that in order to find the accused guilty, the jury would need to reject the alibi evidence beyond reasonable doubt. The jury's verdict clearly shows that it did reject the alibi evidence beyond reasonable doubt and that the jury obviously were satisfied that the offender was not with Ms Rahal and Mr George at the time of the offence.
It was submitted by the Crown that I should find that the false alibi was, in effect, set up by the offender prior to, and as part of his planning for the offence. However, I do not consider that the evidence permits me to make a finding beyond reasonable doubt that the offender engaged in such planning prior to the offence. I am however satisfied, based largely on the jury's rejection beyond reasonable doubt of the alibi evidence, that it amounted to a deliberate attempt, to which the offender was a party, to present false evidence that the offender was with Ms Rahal and Mr George at the time that he shot Zia Kryo. While I do not treat this as a matter aggravating the offence, it is relevant in my consideration of his prospects of rehabilitation, the need for personal deterrence and community protection, and whether there is any evidence of contrition. See R v Gonzales [2004] NSW SC 822, per James J at para 65.
The offender is currently twenty-eight years of age and was twenty-four at the time of the offence. His criminal history, although not extensive, dates back to 2012 and essentially includes drug offences and an offence of behaving in an offensive manner and having custody of a knife near a school. The offender's subjective circumstances are in part set out in a psychological report. He was born in Australia and is of Assyrian heritage. He is the youngest of three children and grew up in a loving and supportive family. Although he reported being a good student during primary school it appears that in high school his focus on studies waned somewhat, although he did complete his HSC. After leaving high school, he commenced a TAFE course but dropped out because he did not like it and started an apprenticeship in mechanics. He apparently completed this apprenticeship while employed in his father's automotive business where he worked up until the time of his arrest for this offence.
The offender reported having experimented with the use of cannabis from his early teens and that from the age of about seventeen he commenced using ecstasy for a number of years and also used cocaine which he would consume mainly on weekends. The psychologist's assessment of the offender indicated a relatively unremarkable psychological profile other than some history of anxiety and the onset of depressive symptoms in the past. The psychologist also indicated that in the two week period prior to testing the offender experienced depressive symptoms although some of this was attributed to his current incarceration and the fact that he is awaiting sentence. He has, however, no history of admission to any mental health facilities.
In the proceedings on sentence the offender called an impressive array of character evidence from family, friends, and associates. Each of these witnesses, most of whom were cross-examined, spoke in elaborate and glowing terms of a man who they described as "extremely generous and responsible", "a man with strong family values" and as "someone who had never demonstrated an inclination towards violence". The offender is, according to his family and friends, a most widely-read young man with a passion for historical, religious and classical texts. Although many of these witnesses were cross-examined about the offender's criminal history, they steadfastly maintained their high opinions of him and clearly do not believe he is capable of committing the offence for which he must be sentenced. I do not doubt that the views expressed by these character referees are genuinely held. However the weight I can give to their evidence is limited, given the jury's finding that the offender intentionally shot Mr Kryo intending to kill him. I have found it difficult to reconcile the man described by friends and family with the man who has been found guilty of this most serious offence. The conclusion I have formed is that he is a complex man of many facets and that there are aspects to his character that he keeps largely to himself.
As was conceded by counsel for the offender, there is no contrition or remorse, and the offender maintains his innocence. This makes it difficult to assess his prospects of rehabilitation and risk of re-offending. In his favour there is the fact that on release from prison he will likely have access to employment in his father's business and will have a great deal of social support from family and friends. However, given the cold-blooded nature of this offence and his history of drug offences I would describe his prospects as guarded.
23 There is no doubt in this case that a sentence of full-time imprisonment is the only appropriate penalty. In imposing sentence, I have given considerable weight to the importance of both personal and general deterrence, that is, the need to deter this offender, and others, as well as the other purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
While I have found that the offence is in the high range of objective seriousness and must receive a stern sentence, I have, in setting the terms of that sentence, endeavoured to avoid imposing a sentence which might be regarded as crushing, especially on a relatively young man who is serving his first, and hopefully last, term of imprisonment. I intend to find, and have found, special circumstances for some variation in the normal ratio between non-parole period and head sentence. Special circumstances are made out in this case in my view by the offender's relatively young age and the fact that this is his first time in custody.
Mr Askarou can you please stand while I announce the sentence? I impose a head sentence of fifteen years and six months and a non-parole period of ten years, six months. Each of those is to date from 12 January 2018. The head sentence will expire on 11 July 2033 and the non-parole period on 11 July 2028.
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Decision last updated: 31 March 2020