[2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610
[1998] HCA 57
R v AC (No 7) [2016] NSWSC 404
R v Coskun (No 5) [2022] NSWSC 1216
R v Jacobs and Mehajer [2004] NSWCCA 462
R v Munshizada
R v Baines
Source
Original judgment source is linked above.
Catchwords
[2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57
R v AC (No 7) [2016] NSWSC 404
R v Coskun (No 5) [2022] NSWSC 1216
R v Jacobs and Mehajer [2004] NSWCCA 462R v MunshizadaR v Baines
Judgment (10 paragraphs)
[1]
Background and personal circumstances
Mr Batak was born in Australia in a Turkish family in 1992. He is the youngest of three children. His parents were older, worked hard and were not as available for their children as much as they might have wished to be. Mr Batak told Ms Cullen, psychologist, that he associated with older peers in his neighbourhood where there was a lot of drug use and fighting. [48]
Both his parents suffered significant health issues in 2019 and it has fallen to Mr Batak's sisters to care for them while he has been in custody. [49]
Mr Batak entered a relationship when he was in high school, and a son was born in 2013. The relationship broke down prior to the child's first birthday. Mr Batak remained close to his son but there were arguments over custody issues. He achieved custody only a short time before his arrest for the index offences. He claims his former partner denied him any access for the next 18 months. He subsequently had AVL contact. [50]
The child has been diagnosed with autism spectrum disorder and various aspects of this are described in Ms Cullen's report and in a letter from the child's mother, Hazel Jimenez. I accept that having only minimal contact with him is a source of distress and anxiety for Mr Batak. Ms Cullen also derives from the literature that there is potential for a longer term adverse impact upon a child with this condition. [51] The extent to which her discussion of this issue is helpful is limited by the fact she seems not to have had the opportunity to make a personal assessment of the child. Nevertheless, it seems clear that the impact upon the child is likely quite complex and Ms Jimenez's description indicates it is beset by some very practical problems. (No specific submission was made about how this issue should be taken into account other than it being a part of the offender's general subjective case.)
Mr Batak met his present partner in February 2019 and they married in July, the month before his arrest. She is said to have "stuck by" Mr Batak for the first six months but she was then charged with concealing a serious offence and was not allowed to speak with him. She was also concerned with custodial issues concerning her own son. [52] The current status of the relationship is not clear.
Secondary education for Mr Batak ceased when he was expelled in Year 11 after acting out behaviourally. He found work as a handyman, in warehousing and as a forklift driver. He obtained a licence to drive trucks and began his own business in 2018. His truck was sold after he entered custody. [53]
Mr Batak has no significant record of previous convictions; indeed, no prior convictions at all. His custodial history indicates no internal disciplinary infractions. He told the psychologist he had been appointed an Islamic delegate to liaise between inmates and officers and he had also mentored younger inmates. [54]
Mr Batak completed five months of a certificate course in personal training before COVID-19 restrictions intervened. He has attempted to gain access to other courses but COVID and being on remand have prevented this. He aspires to pursue further education so that he does not waste his time in custody. [55]
A letter from a prison chaplain attests to the diligence and responsibility Mr Batak has displayed in his work while in custody and the trust that he has of senior officers. It reflects positively on his rehabilitation prospects. Corrective Services NSW case notes (OIMS) provide some confirmation of Mr Batak's good conduct (a threat to assault a potential cellmate excepted: "if you put him in here, I'll pump him"). [56]
Cannabis abuse arose in Mr Batak's teenage years, but he ceased its use at age 18. He also gave up alcohol after the birth of his son. However, he was introduced to cocaine at age 23-24, and by the time of the offences he was using relatively small amounts of both cocaine and cannabis per week. He has remained abstinent since his arrest. [57]
Psychometric testing by Ms Cullen did not reveal anything of particular relevance for present purposes. His risk of recidivism was assessed at a low order, and various protective factors are cited in support of his prospects of rehabilitation. [58]
Ms Cullen did consider it likely that at the time of the offending Mr Batak was experiencing an adjustment disorder with a mixed disturbance of emotions and conduct, as well as comorbid substance use disorders (moderate cannabis use and moderate stimulant (cocaine) use). [59]
Ms Cullen also opined that drug use appeared to have contributed to poor decision making. This is based, however, upon an exculpatory version of events provided by Mr Batak, one that is inconsistent with the evidence at the trial, the verdicts of the jury, and my own findings of fact as set out above. [60] The same inconsistency affects Ms Cullen's opinion that Mr Batak demonstrated "(genuine) shame and contrition for his involvement in the index offence (despite maintaining his innocence)". [61]
An affidavit by the offender's solicitor includes material relating to the COVID-19 restrictions that have affected the conditions of the custodial environment during the pandemic era. They are matters that most inmates have had to endure and that render the experience of custody more onerous that it usually is. I have taken this into account.
More detail of Mr Batak's life story, including the difficulties he has faced and his various positive attributes, appear in the affidavit and letters from his sisters, niece, cousin-in-law, former partner Ms Jimenez, and others which I have read and considered.
[2]
Profound childhood deprivation?
At the beginning of the Crown Prosecutor's cross-examination of Mr Batak at the sentence hearing, he agreed unequivocally with a series of summary propositions about his background. [62] He was living with both of his mother and father at the time of the offence, and they had been loving parents as he was growing up. They were never violent towards him. His father worked, and at one stage had a business. His parents taught him the importance of work. He had jobs after he left school and was self-employed with his own truck at the time of the offence. He agreed he was able to manage his own affairs and he had been taught the difference between right and wrong by his family. He had a broad network of people that he knew, and he had friends and the support of people in the Turkish community. Mr Batak agreed that the choices that he made were his own and were not the product of any particular way that he had been raised.
In written submissions it was contended that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 had application in that Mr Batak's childhood was disadvantaged. [63] However, there is a considerable difference between the circumstances of his childhood and that which were considered in Bugmy. Mr Woods had to concede at the sentence hearing that "this is [not] a profound disadvantage case". He maintained, however, that "the proper way to approach that is to infer that my client, certainly by the time of his 20s, had some associations that were not good for him". [64] That observation is perfectly correct, but it is not a matter of mitigation.
[3]
Youth
Another contention advanced in the written submissions was that Mr Batak's "youth" should be taken into account because he was 26 years of age at the time of the offending. When asked about that submission at the hearing, Mr Woods responded: "It may be that it is not a matter of very significant discrete weight, but it is part of the general subjective circumstances that he is a young, Middle Eastern man, mid 20s, background certainly not one of profound deprivation or disadvantage … but … he is someone whose background, to some degree, explains why he might have been involved with persons like Mr Coskun". [65] These are matters that describe aspects of Mr Batak's life but they have little, if any, practical impact upon the assessment of sentence.
An allied submission was that the evidence demonstrated that Mr Batak acted naively and with a degree of immaturity. [66] I am not persuaded that is so.
[4]
Drug addiction
Mr Woods also contended in writing that drug addiction was relevant to the assessment of the objective seriousness of the offences. Some reliance is placed upon the opinion of Ms Cullen, but as I have indicated, it is an opinion based in part upon Mr Batak's account of his offending that I have rejected. For example, she wrote: "The nature of his drug use appears to have contributed to poor decision making insofar as offering to store the bag as well as the 'shit talk' he engaged in with associates related to the possession and ownership of the guns". [67]
I accept the evidence given by Mr Batak as to his background, including that he had been employed since leaving school and at the time of the offending operated a truck driving business. It does not appear that his life was so adversely affected by drug addiction that he was making poor decisions that led to his offending. It is not necessary to discuss whether counsel's submission is soundly based in principle except to say I am dubious. It must be rejected because it is not supported by the facts.
[5]
Remorse
Ms Cullen reported that despite maintaining his innocence, Mr Batak had told her: "I do feel remorseful". She does not report him saying anything by way of acceptance of responsibility for the tragic consequences of what occurred. To the contrary, he told her things such as, "I was trying to help someone and I've lost everything over this". [68] There is also a report of perceived remorse in a letter from Ahmed Kilani, the prison chaplain. Unfortunately what Mr Kilani wrote is so broad that it is hard to make a useful assessment of it.
Mr Batak said in his evidence on sentence that he felt terrible and sad for John Odisho. [69]
Counsel for Mr Batak accepted that there would not be "some unqualified finding as to remorse" but submitted that he had shown insight into the poor choices that he made and had shown a capacity for empathy. [70] The difficulty with this is untangling it from the continued maintenance of a false version of events first advocated to the jury through the testimony of Abdulsamed Sari, and again advocated for by Mr Batak at the sentence hearing. I accept that Mr Batak is regretful to some extent. How much of it is a genuine emotion arising from the death of John Odisho as opposed to concern about the predicament Mr Batak finds himself in is difficult to know.
[6]
Delay
It was submitted that the three years that have elapsed since the offending is a further mitigating factor. The only specific way in which it was said to be so is because Mr Batak has throughout that period been held in the more restrictive confinement of remand. The period of time that this case has taken to be finalised is not out of keeping with the general experience through the pandemic period, but it is nevertheless a matter of some mitigating weight.
[7]
Special circumstances
It was submitted that there should be a finding of special circumstances so as to vary the ratio between the head sentence and the non-parole period. It was contended that the special circumstances were (a) this was Mr Batak's first time in custody; (b) during his confinement he has not incurred any disciplinary infractions and has been a well-behaved, productive, and compliant inmate; and (c) a longer period of supervision on parole would foster his further rehabilitation in various ways.
The first two matters augur well for Mr Batak's prospects of rehabilitation. Under the terms of the sentence I propose there will be ample opportunity for supervision to assist him in establishing a productive and law-abiding life if that is the path he chooses to take.
[8]
Other matters relevant to the assessment of sentence
It is necessary to have regard to the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act. General deterrence is particularly important in relation to crimes of violence involving the use of handguns. It is also important to provide adequate punishment for and denunciation of the offending conduct, and to make Mr Batak accountable for his actions.
Rehabilitation of Mr Batak is an important matter as well. It is to be hoped that the progress he appears to have made in custody to date will continue. I have taken this progress and potential into account, but I am unable to find in mitigation that his prospects of rehabilitation are "good" (let alone "very good" as was submitted by Mr Woods [71] ). Nor can I find that he is unlikely to re-offend. [72] My view on this is largely a result of the revelation in his evidence on sentence of the previously undisclosed extent of his criminal interests. The sources of evidence reflecting positively on these subjects (Ms Cullen, the offender's various family members and friends, and the prison chaplain) have obviously not factored this into their opinions.
In sentencing Mr Coskun I referred to there being additional criminality in the attempted robbery offence, primarily by virtue of it including that Sargon Odisho was shot twice in the arm. In sentencing Mr Batak, however, I am not persuaded there is any additional criminality; it is entirely subsumed within the criminality involved in the accessory before murder offence. It was not a requirement for the jury to determine whether Mr Batak contemplated the possibility of anyone being wounded during the attempted robbery, so I am doubtful about imposing additional punishment in respect of it.
In applying the principle in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [49] (as reviewed recently by Beech-Jones CJ at CL in Darcy v R [2022] NSWCCA 54 at [9]) and to avoid double punishment for the attempted robbery which was also the foundational offence for the murder, I propose to assess a sentence for the attempted robbery offence that is nowhere near what would normally be appropriate if sentencing for that offence alone. It will be a fixed term of imprisonment because there is no utility in nominating part of it as a non-parole period.
Mr Batak was arrested on 21 August 2019 and has been held in custody since. His sentence will be backdated to allow for this.
[9]
Sentence
Convicted.
Accessory before the fact to murder: Sentenced to a term of imprisonment comprising a non-parole period of 10 years and 6 months with a balance of the term of the sentence of 3 years and 6 months. That is a total sentence of 14 years. The sentence is to date from 21 August 2019 and expire on 20 August 2033. The non-parole period will expire on 20 February 2030 whereupon the offender will become eligible for release on parole.
Accessory before the fact to attempted robbery whilst armed with a dangerous weapon: Sentenced to a fixed term of imprisonment of 2 years dating from 21 August 2019 and expiring on 20 August 2021.
Crown "Facts Contended For Sentence After Trial", p 12
Exhibit BN
Exhibit BP
Evidence of Detective Sergeant Phillips, T714.5
Defence closing address, T1368.40
Exhibit BZ
Exhibit CF
Exhibit CO
Cullen report, tender bundle p 8
27.4.22, T488-491
For example, Exhibit CO, (p 3)
Annexures B and C to the affidavit of Ms J Fahmy of 1 September 2022
4.5.22, T793; 817
The first three items in Exhibit 1 on sentence; the latter at 5.9.22, T16.48-33.24
Cullen report, tender bundle p 8 (3rd para). See similarly, 5.9.22, T31-32
Statement of Detective Sergeant Phillips 16 August 2022 (at [5]) and see annexed investigator's notes.
Exhibits CN/CO
5.9.22, T27
5.9.22, T19-20; 6.9.22, T50-2
Statement of Detective Sergeant Phillips, 16.8.22
6.9.22, T52-4
T22; 58-64; 129-131. See also affidavit of Ms Fahmy 10.9.22 and annexed photographs of Mustapha Batak in disturbing displays of handling a revolver and other handguns in an apparent domestic setting.
5.9..22, T30
6.9.22, T78-9
Exhibit BP (p 4)
12.5.22, T1214.30
5.9.22, T23.22
6.9.22, T60.2
5.9.22, T24; 6.9.22, T64; 75
6.9.22, T112
For example in relation to a person referred to as Rami who had been "ripped" (T112-3)
7.9.22, T124.25, 143.15, 144.28, 147.15
Defence written submissions at [20]; 7.9.22, T158
Exhibit BP (p5)
Defence written submissions 9, [33], [43]-[47]; 7.9.22, T137
Corrective Services Case Note Reports, tender bundle pp132-143, but see p141 entry of 6 June 2021
Cullen report, tender bundle, p4
Ibid, pp5-6,10
Ibid, p9
Ibid, p9
Ibid, p10
5.9.22, T38-40
Defence written submissions [79]
7.9.22, T145-7, 148.45
7.9.22, T145-6
7.9.22, T145
Defence written submissions pp35-36
Cullen report, tender bundle p9 (1st para)
5.9.22, T35.10; 40.45
7.9.22, T144.35
Final defence written submissions, 11.9.22, [9]
Crimes (Sentencing Procedure) Act, s 21A(3)(g) & (h)
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: 16 September 2022
A number of sentencing decisions have referred to a single sentence in a Court of Criminal Appeal judgment by Hodgson JA in 2007 as "holding" that the standard non-parole period does not apply to an accessory before the fact to murder: Aoun v R [2007] NSWCCA 292 at [27]. In the course of dealing with a ground of appeal asserting that a sentence was manifestly excessive, and after referring to the standard non-parole period prescribed by s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour said:
"The trial judge rejected a submission for the Crown that this provision applied to the applicant, and I agree with the trial judge on this matter."
The submissions of counsel for Mr Batak contend that this Court should "follow the reasoning" in that judgment. (It is difficult to accept that what Hodgson JA said amounts to "reasoning".)
The Crown contended that the standard non-parole period for murder should be taken into account, noting that s 346 of the Crimes Act was amended in a significant respect shortly after judgment was delivered in Aoun v R.
Section 346 presently provides:
"Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not." (Emphasis added)
An amendment effected by the Criminal Legislation Amendment Act 2007 (NSW), which took effect on 15 November 2007, substituted the words emphasised above in lieu of the previous wording: "same punishment as the principal offender". Judgment in Aoun v R had been handed down shortly before, on 16 October 2007.
Standard non-parole periods were first inserted in the Crimes (Sentencing Procedure) Act 1999 (NSW) with effect from 1 February 2003. [3] Nothing was said in either the Explanatory Note accompanying the Criminal Legislation Amendment Act or in the second reading speech of the Attorney General on 7 November 2007 about the decision in Aoun v R, or generally about standard non-parole periods applying to accessories before the fact (or aiders and abettors in respect of which an identical amendment was made to s 351B).
The Court in Aoun v R made no reference to s 346; however, that section and related provisions were referred to in SAT v R [2009] NSWCCA 172. In that case the Court was concerned with whether standard non-parole periods applied in the case of an aider and abettor. In a considered decision, Budden J (Grove and Howie JJ agreeing) referred to a number of cases and concluded that "the issue which has been raised remains to be authoritatively determined". That said, he saw no reason for departing from the approach taken in two other cases in the Court in which the standard non-parole period was regarded as applying without any issue having been raised as to whether or not it applied: R v Merrin [2007] NSWCCA 255; DJB v R, R v DJB [2007] NSWCCA 209.
Davies J in R v Jaghbir (No 4) [2020] NSWSC 1704 referred to s 346 but preferred to follow Aoun v R, noting that this had been done by other judges who had made reference to it: R v Kirchner [2011] NSWSC 1516 at [5] (Schmidt J); R v AC (No 7) [2016] NSWSC 404 at [4] (Hamill J); R v Proud [2017] NSWSC 286 at [6] (Harrison J); R v Zanker (No 2) [2017] NSWSC 1254 at [6] (Fagan J). See also R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654 at [9] (Fagan J).
Davies J noted two cases in which the standard non-parole period had been taken into account but in which there had been no reference made to Aoun v R: R v Blundell [2016] NSWSC 1810 at [6] (Hall J); R v Robert Nikolovski [2018] NSWSC 1147 at [1] (Latham J).
The Crown in the present matter also identified two further cases concerning accessories before the fact in which the standard non-parole period had been applied without any specific consideration of the issue: Corda v R [2014] NSWCCA 281 at [32]-[39] (Schmidt J); Lambkin v R [2020] NSWCCA 327 at [4] (Bellew J).
I note that standard non-parole periods are said not to apply to an attempt to commit an offence and aiding and abetting an offence according to Criminal Practice and Procedure NSW, Lexis Nexis, at [5-s 54B.1].
It is not clear to me that the 2007 amendment to s 346 effected any relevant change from the position that existed at the time of Aoun v R. The Crown referred to a report by the NSW Sentencing Council: Whether 'Attempt' and 'Accessorial' Offences Should Be Included in the Standard Non-Parole Sentencing Scheme (March 2005). That report recommended that accessorial offences should not be included in the standard non-parle sentencing scheme. There is no indication that the Council's consideration and report was taken into account in formulating the amendment to s 346 (and related provisions) two years later. The Attorney General's description of the amendment made by the Criminal Legislation Amendment Act in his second reading speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 November 2007 at p 2) provides no assistance at all as to the applicability of standard non-parole periods to accessorial offences. The Attorney Generally merely explained the purpose of the amendment to as follows:
"The amendment clarifies that it is the accessory's criminal record, not the principal offender's, which determines the maximum penalty that may be imposed."
If I were to apply the standard non-parole period in my assessment of the appropriate sentence in this case, that would be done in the manner described in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act. (As to the latter, see Tepania v R [2018] NSWCCA 247 at [110] (Johnson J).) Given its role as a guidepost, reasonable minds might differ as to whether there is much difference in the approach of taking the standard non-parole period into account in the usual way, and taking it into account in the manner described by Hodgson JA in Aoun v R at [27], which is the approach adopted by Fagan J in Zanker v R at [6], Hamill J in AC (No 7) at [4], and Davies J in Jaghir (No 4) at [8]. Namely, treating the standard non-parole period as a matter which indicates "the attitude of the legislature to the offence of which the [offender] has been convicted of aiding, and it being kept in mind that the maximum penalty for both sentences is the same".
Ideally, this controversy should be resolved once and for all in an appropriate case by the Court of Criminal Appeal, or perhaps even by Parliament. Until then, it seems the prudent course for me is to follow the Aoun v R line as various others have done at the first instance level.
The offences
Cem Batak had known the principal offender, Cengiz Coskun, since school. They had mutual friends and were both part of the Turkish community in the Auburn area. Mr Batak was aware that Mr Coskun had recently been imprisoned, and in a covertly recorded conversation on 23 July 2019 [4] Mr Batak was heard saying that "once he came out" he (Coskun) was associating with "a whole new bunch of people, no-one knew them". (Detective Sergeant Phillips confirmed that, in respect of the sentence most recently served by Mr Coskun, he had been on parole for about two years which expired on 8 January 2019. [5] )
In the period immediately prior to the murder there was contact between Mr Batak and Mr Coskun at least as early as 16 March 2019, when a mutual acquaintance, Abdulsamed Sari, provided Mr Coskun with Mr Batak's mobile number. At least from that point the pair were in regular contact and met on a number of occasions. Suggestive of something malevolent was the fact that their meetings would occur in parks, and at night. [6]
The Crown pointed to there having been only a few other numbers Mr Coskun called using his mobile phone service ending in 397. Mr Coskun also called Mr Batak from another of his multiple phones, a service ending in 685, in the lead up to the murder. There was a considerable amount of contact on 20, 21 and 22 March 2019, and on the morning of 23 March 2019 when Mr Coskun's phone interacted with a tower in Five Dock.
John Odisho and Sargon Odisho lived in a first-floor apartment at 50-52 East Street, Five Dock. On the night of 1-2 April 2019, Sargon Odisho was in possession of a substantial quantity of cocaine, a quantity of MDMA, two handguns, a shotgun, ammunition, and a taser.
Cengiz Coskun and an unknown male entered the apartment at about 3.45am on 2 April 2019. They gained entry by scaling a fire hydrant shelter and climbing onto the balcony of the apartment, before entering the living space via an unlocked sliding door. They were each armed with a handgun. Coskun was wearing a hi-vis shirt, gloves, and a partial face covering.
A scuffle with Sargon Odisho ensued in the hallway. John Odisho and his girlfriend, Larissa Mitchell-Wiszniewski, were in the main bedroom and were woken by the noise. John Odisho went to the closed and locked bedroom door to investigate. One of intruders forced the door open, causing significant damage to it. John Odisho went out to the hallway while the unknown male entered and threatened Ms Mitchell-Wiszniewski by pointing his gun at her. He then exited the bedroom, following which Ms Mitchell-Wisniewski heard immediate gunfire.
John Odisho and Sargon Odisho were in the 2nd bedroom and ten shots were fired into that room by one of the intruders. Sargon Odisho fired six rounds of shotshell out of the bedroom toward the intruders, with one striking Cengiz Coskun in the left flank. Sargon Odisho was struck by two .40 calibre bullets to his upper and lower left arm. John Odisho received a .40 calibre bullet wound to the head from which he later died. The intruders fled immediately after the gunfire.
Objective seriousness
It was uncontroversial between the parties that the criminality of an accessory before the fact is fixed at the time of commission of the act(s) rendering the person liable as such an accessory. [43] There was, however, still debate as to whether aspects of what occurred at the commission of the crime also bore upon the objective seriousness of Mr Batak's offending. For example, there was uncertainty about the significance of whether it was Mr Coskun or the unknown intruder who fired the .40 calibre rounds.
It may be accepted that Mr Batak did not intend that anyone would be shot at the time he provided the gun to Mr Coskun. Nonetheless, provision of a loaded self-loading pistol for use in a "drug-rip" style home invasion armed robbery constitutes criminality of a high order. Mr Batak enhanced the firepower of the weapon by providing it with an "extended clip". The fact that the target was a drug dealer, and the intended proceeds were drugs and/or money, meant that there was a significant possibility of resistance. In that event, there was a strong possibility that the pistol could be discharged, the consequences of which could be fatal.
I am satisfied beyond reasonable doubt that Mr Batak was aware of these potential consequences. His covertly recorded conversations in the weeks and months that followed betray that awareness.
I accept the significance of the fact that there was no actual intention by Mr Batak that the gun be fired, nor was there an intention or any foresight on his part that it would be fired with an intention to kill or to inflict grievous bodily harm. However, the rationale for the constructive basis of murder is that legal culpability should lie equally for those who are responsible for a death occurring during the commission of a very serious offence as it does for those who kill with an intention of causing death or grievous bodily harm.
It has been held that it is not necessarily the case that constructive murder is less serious than murder committed with intent to kill or cause grievous bodily harm: R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452 at [332] (Wood CJ at CL [332].
R v Mills (Court of Criminal Appeal (NSW), 3 April 1995, unrep) concerned an attempted armed robbery at a liquor store by an offender who was armed with a shortened shotgun. Cole JA described what happened:
"His Honour found beyond reasonable doubt that the weapon discharged when the trigger was pulled by the appellant in the excitement or panic of the moment when, in an agitated and nervous state, he was endeavouring to persuade the deceased to hand over the contents of the cash register, by means of the shotgun levelled and held close to his torso. His Honour also found that the appellant had deliberately and consciously brought to the scene of the crime and presented to the deceased a weapon in a loaded state, in pursuance of a design to commit an armed robbery and in circumstances where resistance or spontaneous or unwilled discharge of the weapon must have been in contemplation.
In those circumstances the learned trial judge found and convicted the appellant of felony murder. It is apparent, from what I have said, that the objective circumstances of the crime are of a most serious nature."
Cengiz Coskun was tried before a jury and found guilty of attempted robbery whilst armed with a dangerous weapon and constructive murder. He was sentenced yesterday: R v Coskun (No 5) [2022] NSWSC 1216.
Cem Batak was tried separately. He was found guilty of being an accessory before the fact to the offences for which Mr Coskun was convicted. There was evidence admitted in his trial that was not admitted in Mr Coskun's trial and vice versa. I am presently required to confine my consideration and judgment to evidence that was admitted in Mr Batak's trial.
Mr Batak's accessorial liability arose from his provision of a handgun and a "hi vis work shirt" to Mr Coskun a few hours before the home invasion at Five Dock. He was subsequently recorded saying that the gun was a "mini-Glock" with an "extended clip". [7] Ten fired cartridge cases from the rounds discharged by an intruder were found to have a rectangular "Glock-type" firing pin impression.
In sentencing Mr Coskun, despite submissions to the contrary, I found beyond reasonable doubt that both intruders were armed with a handgun and that it was Mr Coskun who fired the ten .40 calibre rounds. [8] There was the same basis for this finding in the evidence before the jury in Mr Batak's trial; indeed, the Crown made that argument in closing address. [9]
I make the same finding in Mr Batak's case that both intruders were armed and that it was Mr Coskun who discharged the firearm, fatally wounding John Odisho and twice wounding Sargon Odisho. The inference that he was the shooter is even stronger with the additional evidence in Mr Batak's trial that Mr Batak had provided Mr Coskun with a mini-Glock. However, in Mr Batak's trial it was not necessary for the jury to determine which intruder fired the ten rounds; it was simply necessary that they were satisfied beyond reasonable doubt that the accused realised, at the time he provided the assistance to Mr Coskun, that the discharge of a gun was a possible occurrence in the attempt to commit the armed robbery. Mr Batak's culpability, both legal and moral, is the same whichever of the intruders fired the fatal shot.
Mr Coskun and the other intruder fled via the balcony and ran to their respective cars to make their getaway. Mr Coskun rang Abdulsamed Sari and arranged to meet him at Auburn Hospital. When he arrived at Auburn Hospital he left his gloves, hi-vis shirt, black jumper and shoes in the car, as well as his Ciphr phone and another mobile phone. He left the key to the car on the rear nearside tyre and entered the hospital without any identification.
Mr Sari went to the hospital and asked to see Mr Coskun, however police prevented them meeting. Police soon found the car parked outside with the incriminating items inside. Mr Sari later saw Mr Coskun after he was transferred to Westmead Hospital. He contacted Mr Batak and met with him later in the day.
On the afternoon of 2 April 2019, Mr Batak turned his phone off. He met with Mr Sari and another man. He subsequently told one person that on that day he was "cleaning the house" and another person that he was "emptying out the house". [10] There is merit in the Crown's submission that he was referring to having removed incriminating evidence and firearms from his home. [11]
I am satisfied beyond reasonable doubt that Mr Batak would have realised at the time he supplied a gun to Mr Coskun for use in the proposed robbery that it would be used, if necessary, to overcome any resistance by an occupant of the home. Mr Batak had some knowledge about the commission of "drug rips" involving significant quantities of drugs and/or money. He was captured discussing proposed drug rips in intercepted telephone conversations that occurred in weeks and months following the incident at Five Dock. One venture he discussed concerned a "florist" and involved a sum of $300,000, and another related to 2 kg of drugs in the possession of a Persian person who sent amounts of $100,000 overseas at a time. A component of the discussions was an assessment of the risks involved if the targeted premises were occupied. The conversations indicate Mr Batak and the other speaker were astute to consider the prospect of violence that might be encountered. Naturally, they would not pursue a prospective target if the risk was too great.
I am satisfied that Mr Batak was acquainted with quite some level of detail of the home invasion that Mr Coskun was proposing, including that the proceeds were likely to be sizeable. (They were, but there is no evidence that Mr Batak was aware of the fact that there were drugs worth close to half a million dollars in the apartment at Five Dock.)
Police covertly recorded conversations involving Mr Batak in the months up until his arrest on 21 August 2019. This provided the material upon which the Crown relied to establish a tendency "to plan and participate in the robbery of drugs from others being held in safehouses (colloquially known as 'drug rips') for the purpose of profit". The recordings also provided admissions made by Mr Batak to others that established the Crown case at trial. They included the following.
Gleeson CJ agreed and added:
"The major premise underlying the argument of counsel for the appellant was that cases of felony murder involved a lower level of culpability than cases of murder involving intention to kill and therefore should receive a lower level of sentence than applies to intentional killing.
I would reject that premise. Indeed, it would be difficult to select a better case than the present for the purpose of demonstrating its falsity. This was a case where a young man with an appalling history of criminal offending used a loaded gun in an armed robbery. He came to close quarters with the surprised victim. As is highly likely to occur in such circumstances, the weapon discharged. For the sake of the appellant's determination to get his hands on a few hundred dollars, an innocent person lost his life. This is a case of murder involving a very high degree of seriousness."
The jury were not required to be satisfied beyond reasonable doubt that Mr Batak was aware that a gun would in fact be discharged during the attempted armed robbery. It was sufficient for the Crown to prove that, when providing the assistance that rendered him an accessory before the fact, Mr Batak was aware that this was a possibility. The provision of a handgun for use in an attempted armed robbery with this awareness is a crime of considerable seriousness.
It must be acknowledged, however, that as he was not at or anywhere near the crime scene, Mr Batak had no control over or input into what eventuated. His criminality is to be assessed on the basis of what he did and what he knew or foresaw as a possibility at the time he provided the assistance constituting him as an accessory before the fact. That is only subject to the fact that he is also liable for what actually occurred, principally that John Odisho was killed.
The jury found that Mr Batak foresaw the possibility of the gun being discharged. I am satisfied that he was aware that the intended victim of the proposed robbery was a criminal involved in drug dealing who would not willingly hand over his drugs or money. Having regard to this, coupled with the nature of the gun Mr Batak provided (including that it was loaded with an extended clip), the prospect of serious harm being caused must also have been foreseen.
I am also satisfied that Mr Batak knew Mr Coskun was proposing an armed home invasion that would be committed by two offenders. Initially the second offender was to be Mr Batak but after he changed his mind about participating, and before Mr Coskun departed his home, he was aware that another person had been engaged to take his place. Mr Batak did not seek to withdraw his assistance, nor did he counsel Mr Coskun to desist after he had told Mr Batak that he had found someone else (and that Mr Batak would still "get something out of it"). [44]
The evidence does not establish that Mr Batak knew who the second offender would be, or that he would also be armed, but that does not diminish his culpability.
There were submissions about the absence of some matters that would or may otherwise have aggravated the seriousness of Mr Batak's offending. The degree to which he was aware of or involved in the planning and surveillance that was carried out on the Five Dock premises prior to the attempted robbery is not clear. The evidence raises a suspicion about a series of contacts and meetings with Mr Coskun, but it does not go further than that. This issue is not aggravating but nor am I satisfied on the balance of probabilities that it is a mitigating factor.
A point that was repeated a number of times in the submissions for Mr Batak was that the meeting with Mr Coskun at Mr Batak's home in the early hours of 2 April 2019 only lasted for about 10 minutes; that is, it was not very long. When it was suggested to counsel that whether it was 10 minutes or 30 minutes did not seem significant, he accepted "that may well be so". [45] I remain of that view, but the observation must be made that it would not have taken all that long for the pair to discuss the details of the proposed robbery if it had been the subject of previous conversations. Further and ironically, Mr Batak's version of events, which I have largely rejected, is to the effect that Mr Coskun must have been at Mr Batak's home that morning for more than a mere 10 minutes.
The finding I have made, that it was Mr Coskun who fired the shots that killed John Odisho and wounded Sargon Odisho as opposed to the unknown intruder, has little, if any, bearing upon the seriousness of Mr Batak's crimes (despite the submission of counsel for Mr Batak that it would operate in aggravation [46] ). Mr Batak's accessorial acts, his intention, his contemplation, and his overall culpability for assisting in the commission of an armed and violent home invasion are the same no matter which of the two intruders fired the shots.
It was contended on behalf of Mr Batak that he did not stand to gain anything from the robbery. [47] That issue is neutral as I am not satisfied of this contention on the balance of probabilities. It seems reasonable that he did not do what he did for nothing, but I am not satisfied of that beyond reasonable doubt.
There may not have been an attempted armed robbery, with a wounding and a killing occurring in the course of it, had Mr Batak declined to supply a loaded pistol to Mr Coskun. As I have described above, I am satisfied that Mr Batak appreciated the risks at the time he supplied the weapon. This crime of being an accessory before the fact to murder is above the mid-range of objective seriousness. It is, however, a less serious crime than the principal offence committed by Mr Coskun.
The same assessment of the level of objective seriousness (above the mid-range) applies to the offence of being an accessory before the fact to an attempted robbery whilst armed with a dangerous weapon. Mr Batak placed in the hands of the principal offender, Mr Coskun, the means by which he came to be armed with a dangerous weapon. It was "dangerous" in both the technical legal sense and, most obviously, in the practical sense. The jury were satisfied beyond reasonable doubt that Mr Batak intentionally assisted Mr Coskun knowing that he intended to steal property from someone by threat of force while armed with a handgun.
More will be said later on the subject of whether the criminality of the accessory before the fact to the attempted robbery offence involved more than that which was subsumed within the accessory to murder offence.