R v Carberry

[7]

The issues at the trial and the impact of the jury's verdict on the factual findings relevant to sentence

The prosecution case at trial was that Mr Carberry and two others (Ms Tearna O'Hanlon and Mr Honeysett) agreed to rob Mr Mousawi of his car. To that end, they lured him to a location in Griffith and Mr Carberry tried to take the car. When Mr Mousawi resisted the attempted robbery, a fight broke out. In the course of that fight, Mr Carberry produced a knife he was carrying and stabbed Mr Mousawi twice in the chest. I emphasise that this was the prosecution's case at trial. Mr Honeysett struck the victim with a metal pipe. The uncontested evidence was that either stab wound could have been fatal. One penetrated his lung and the other pierced his heart (or more precisely the right ventricle of his heart).
The case of murder was put to the jury on the simple basis that Mr Carberry stabbed Mr Mousawi deliberately, with intent to kill him or, at least, to inflict grievous bodily harm. An alternative basis of liability was that Mr Carberry killed Mr Mousawi while (or shortly after) committing a crime of attempted armed robbery with wounding, an offence that carries a maximum penalty of 25 years of life imprisonment. [5]
The defence case, reflected in Mr Carberry's evidence at trial, was that there was no plan to rob Mr Mousawi, that it was Mr Mousawi (not the offender) who produced the knife and that Mr Carberry acted in self-defence.
Manslaughter was left to the jury on two bases.
The first was that Mr Carberry did not have a murderous intent but that he was guilty of manslaughter on the basis of an unlawful and dangerous act. The jury were instructed that for an act to be "unlawful" it must be established (beyond reasonable doubt) that Mr Carberry did not act in self-defence, and relevantly, that his conduct was not a reasonable response in the circumstances as he perceived them to be.
The second basis upon which manslaughter was left to the jury was excessive self-defence. [6] That is, the elements of murder were otherwise established and Mr Carberry believed (subjectively) his actions were necessary to defend himself, but his conduct was not (objectively) a reasonable response in the circumstances as he perceived them to be.
The evidence and the jury's verdict established two things as a matter of certainty: 1. First, Mr Carberry deliberately stabbed Mr Mousawi. Mr Carberry admitted this in evidence. He said that he only remembered stabbing Mr Mousawi once but accepted, based on the pathologist's evidence, that he did so twice. 2. Secondly, Mr Carberry's conduct was not a reasonable response in the circumstances as he perceived them. Had the jury had a doubt on this issue, Mr Carberry would have been acquitted on either of the bases upon which manslaughter was left to the jury.
The verdict did not resolve, at least as a matter legal certainty, four important factual issues, namely: 1. Was there a plan to rob Mr Mousawi? 2. Who produced the knife? 3. Did Mr Carberry form a specific intent to kill or inflict grievous bodily harm at the time he stabbed Mr Mousawi? 4. Relatedly, what was the legal basis of the jury's verdict of manslaughter?
Before describing a narrative of the facts as I find them to be for the purpose of sentencing, I propose to resolve those issues and explain briefly my reasoning and the evidence upon which that reasoning is based.

[8]

Was there a plan to rob Mr Mousawi?

The evidence that Mr Carberry was involved in a joint criminal enterprise to rob Mr Mousawi came predominantly from the witness Ms Tearna O'Hanlon. Ms O'Hanlon was an unsatisfactory witness. The jury were provided with strong warnings about the dangers of acting on her evidence. However, without objection, two recorded interviews between Ms O'Hanlon and police were played to the jury. These were made on the day of the alleged offence. In the first interview, she told several discernible lies. She was clearly attempting to protect herself and hid the identity of both Mr Carberry and Mr Honeysett. It was only when she was confronted with a number of messages retrieved from Mr Mousawi's telephone that she provided a version of events that may have resembled the truth. This came in the second interview. Her evidence at trial bordered on farcical. She feigned an almost complete absence of memory and gave off an air of indifference and disinterest. She was not cooperative with either counsel who had the unenviable task of examining her. By contrast, her demeanour in the second interview appeared to demonstrate both a bewilderment as to her predicament and the enormity of what had happened. She expressed some genuine remorse. Even so, given her obvious motive to lie - to protect the discount she received for co-operating with the police - I would not act on her evidence where it is adverse to Mr Carberry, unless it is supported by independent evidence.
Ms O'Hanlon told the police in her second interview that there was a plan to rob Mr Mousawi. There was clear evidence that at 1.47am, on 11 September 2020, Ms O'Hanlon received a message from Mr Mousawi saying "wyd. Can French kiss your down under. I would love to". In her second interview, Ms O'Hanlon told police that Mr Carberry saw the message from Mr Mousawi and instructed her to tell Mr Mousawi to come over and pick her up, so that they could steal his car. Mr Carberry, Mr Honeysett and Ms O'Hanlon then discussed and planned the robbery.
Ms O'Hanlon's evidence (in the form of the second interview) received support from at least two independent sources of evidence.
First, the chronology of the messaging suggests that something happened or changed in Ms O'Hanlon's attitude to Mr Mousawi's advances. He had been offering her oral sex for some time, and repeatedly, but it was only after the message at 1.47am that she responded in a positive way. There were 17 unanswered messages from Mr Mousawi between 9.30pm on 8 September and 11.34pm on 10 September 2020. Her response to being offered a lift at that time was a monosyllabic "no". Two further messages were left unanswered before Mr Mousawi sent the message at 1.47am. Within a very short time after that message, she finally replied saying "Can I have a lift please [?]" She then told Mr Mousawi she was alone and provided him the address to pick her up. There is no doubt that Ms O'Hanlon was with Mr Carberry at that time and that Mr Honeysett was with them or nearby.
This evidence is capable of other explanation, but the chronology and content of the messages provides some support for the version Ms O'Hanlon gave to police, namely that she invited Mr Mousawi to the location as part of plan to take his car by threats and/or force.
The second matter of evidence that supports a finding that there was a plan to rob Mr Mousawi of his car and that there was a struggle when Mr Mousawi resisted the attempt to rob him, was the finding of a broken car key at the scene of the homicide. Again, it is possible to conceive of other explanations for this piece of physical evidence, but the most likely reason the key broke is that there was a struggle over the key. One of the things Ms O'Hanlon told police was that there was a "tug of war" with Mr Mousawi over the key. In the second interview, she identified Mr Carberry as the other participant in that tug of war.
A third aspect of the evidence that may also be capable of providing some support for the robbery theory involves the actions of Mr Honeysett. This is less strong, but the fact that he armed himself with some kind of metal pipe suggests some plan was afoot.
Mr Carberry denied that he planned to rob Mr Mousawi and denied that he tried to get the key. He did so in cross-examination almost in the same breath. I am satisfied that this part of his evidence must be rejected beyond reasonable doubt. Equally, I am satisfied beyond reasonable doubt that there was a plan to rob Mr Mousawi, that is to take his car by threats and/or force.

[9]

Who produced the knife?

An important issue to determine, if it can be determined, is whether Mr Mousawi produced the knife or whether Mr Carberry armed himself with the knife to commit the robbery.
Ms O'Hanlon's evidence as to who produced the knife was utterly inconsistent. In her first interview Ms O'Hanlon said that "the man" (who she did not identify until later) approached the car holding a 15cm knife. She said Mr Mousawi and "the man" then wrestled for the knife, before Mr Mousawi was stabbed. In her second interview, Ms O'Hanlon told police she did not see Mr Carberry with the knife before the robbery but only saw him with a 10cm knife when she ran back to the car, just before Mr Mousawi was stabbed. In her evidence in chief, Ms O'Hanlon stated that she could not remember seeing the knife. She maintained that version in cross examination. She said she could not remember the knife, who produced it and whether Mr Mousawi said, "I will fucking stab you" to Mr Carberry.
Mr Mousawi's brother, Mr Sayed Zaker Mousawi, gave evidence at the trial that around two or three months before the offence he found a kitchen knife in one of the two cars that he owned, one being the Honda that Mr Mousawi drove on the night of the offence. However, he said he threw that knife away after he found it.
Mr Carberry gave evidence that Mr Mousawi produced the knife after telling Mr Carberry that he was going to stab him. Mr Carberry tried to take the knife off Mr Mousawi and in the process of doing so cut his pinkie finger. He said he disarmed Mr Mousawi who kept fighting and that is why he stabbed him. Mr Carberry denied in cross examination that he was the one who brought the knife to the fight.
I would not act on Ms O'Hanlon's evidence on this issue. It is not supported by any independent evidence. I give the evidence that Mr Mousawi previously had a knife in his brother's car little weight, but I accept, as submitted by senior counsel, that it has some relevance. How it is not tendency or coincidence evidence of some kind, I do not know. The provisions of the Evidence Act 1995 (NSW) do not apply to the sentencing hearing and the evidence was before the jury. It has some capacity to impact on the probability of who produced the knife, albeit it could not have been the knife that Mr Mousawi's brother saw weeks earlier. That is because Mr Zaker Mousawi said he had thrown that knife away.
Ultimately, based on Mr Carberry's evidence, I am satisfied on balance that Mr Mousawi produced the knife.
That finding, which is based on my own analysis of the evidence and the impression Mr Carberry made on me while explaining to the jury what happened, is also consistent with the jury's verdict.
In making this finding, I am conscious of the fact that I have rejected Mr Carberry's evidence in other respects, but also conscious of the fact that I am entitled to accept some parts and reject other parts of any witness' evidence.

[12]

Narrative of the offence

Based on the evidence at the trial, the material in some of the reports to which I will presently turn and giving voice to the factual findings I have just made, Mr Carberry will be sentenced on the following factual narrative. Where appropriate, based on the issues joined at the sentencing hearing, I will indicate whether this was a mitigating or aggravating feature of the offending.

Mr Carberry and Ms O'Hanlon were involved in an intimate relationship. Mr Carberry was friends with Mr Honeysett. The three were together in the early hours of 11 September 2020.
Ms O'Hanlon was friendly with Mr Mousawi. They occasionally acquired drugs from each other and she would also use him to get a lift in his car. Mr Mousawi had a sexual interest in her which does not appear to have been reciprocated. Mr Mousawi had met Mr Carberry at least once before and there seems to have been no love lost between them. However, there is little evidence that their relationship was particularly hostile or that Mr Carberry had any great animus towards Mr Mousawi.
In the days and hours leading up to his killing, Mr Mousawi sent several messages to Ms O'Hanlon, some of which offered her sexual favours and most of which went unanswered. Mr Carberry became aware of the messages, or at least the last couple. The extent to which he was aware of the detail of the messages was not clear.
Mr Carberry and Ms O'Hanlon hatched an ill-considered plan to rob Mr Mousawi of his car. To this end, Ms O'Hanlon responded to one of the messages asking if she could get a lift. She lied to Mr Mousawi and said she was alone whereas, in truth, she was with Mr Carberry and Mr Honeysett. Her purpose, shared with Mr Carberry, was to lure Mr Mousawi to their location. Contrary to the submissions of senior counsel for Mr Carberry, the fact that Mr Carberry was part of a plan to rob the victim and lured him to the address for that purpose is relevant to an assessment of the objective gravity of the offence. To be plain, it makes it objectively more serious. I do not accept that, because the case is one of excessive self-defence, that detail is unimportant or can only be considered to place the subsequent events in context. That may be the case in the factual circumstances of some manslaughter cases, [7] but it is not the case here. [8]
At the time this plan was hatched, Mr Carberry had no intention to injure Mr Mousawi seriously. I find his intention was to take his car by threat and, if necessary, some force or physical violence. I am certain the plan was not thought through to any significant degree.
Around the time of Ms O'Hanlon's text messages giving Mr Mousawi the address, Mr Honeysett was enlisted and agreed to provide some back-up. At some stage, Mr Honeysett armed himself with a metal pipe. The fact that the robbery was intended to be, and was, committed in company is an aggravating feature of the offence. [9]
Once Mr Mousawi arrived, in circumstances which are far from clear on the evidence, Mr Carberry attempted to take possession of the car. Mr Mousawi fought back and there was struggle between the two men. Mr Mousawi had the better of that fight and I would infer at that stage, Mr Honeysett struck Mr Mousawi with the metal pipe, causing distinctive linear bruises to his back. The men were fighting over the car key and it broke.
Mr Mousawi produced a knife and the men then struggled over the knife. Somehow, Mr Carberry managed to get hold of the knife and he may have received a small cut to his hand in doing so.
Once Mr Mousawi had possession of the knife, Mr Carberry had options. The most obvious option was to run away. However, Mr Carberry decided in the heat of the moment to stab Mr Mousawi and he did so twice with an intention to injure him really seriously. When he did this, Mr Carberry believed his conduct was necessary to defend himself. However, considered objectively, this response was disproportionate to the danger that Mr Carberry then faced. By that stage he had taken possession of the weapon and could have fled the scene. While the fact that the offence involved the use of a weapon is an aggravating factor, that circumstance must be considered against my finding that Mr Mousawi produced the knife. However, Mr Carberry's co-offender Mr Honeysett was also armed.
While the robbery was planned, the unlawful killing was neither planned nor premeditated.
After the killing, Mr Carberry fled the scene, leaving Mr Mousawi to die. I am unable to make a finding whether at some stage he intended (as he said) to drive Mr Mousawi to hospital, but I do not accept, as was suggested in cross-examination, that he intended to drive off to dump the body. I accept his instinct was to assist Mr Mousawi, but he panicked and fled the scene instead.

[15]

The offender's personal circumstances

Mr Carberry is a man of Indigenous and Pacific Islander descent. He experienced a deprived and disadvantaged childhood and adolescence and was exposed to drugs, alcohol abuse and violence at a young age. He was 21 years old at the time of the offence and is 23 now. His personal history was set out in a report by psychologist Travis Wearne dated 1 May 2023. Dr Wearne had also provided an earlier report in September 2019, which was tendered as part of the prosecution bundle on sentence. The evidence also included a psychiatric report by Dr Richard Furst dated 18 April 2022 and a parole report by Lisa Matthews dated 21 June 2021. While there are minor inconsistencies in the details within these reports, I accept that the contents of the reports accurately reflect Mr Carberry's personal history and what follows is derived from those documents.
Mr Carberry was born and raised on an Aboriginal mission outside of Griffith. His parents separated when he young and he was reared up by his mother, with whom he had a close relationship. He was also raised by his grandmother, who passed away in 2020. Mr Carberry's father moved away when he was very young, and Mr Carberry does not have consistent contact with him. Mr Carberry has nine siblings. His sisters provide stability and pro-social support. He witnessed considerable drug use during his childhood, including by his mother, who was often absent. He saw family members regularly getting into trouble with police. Mr Carberry said he often had to take care of himself and was consistently moved between family members.
Mr Carberry denied experiencing or witnessing any physical or emotional abuse during his early childhood.
Mr Carberry was regularly abused sexually by two teenage boys from the age of six, before suffering similar indignity at the hands of a teenage girl at the mission. He was sexually abused by guards when he was in a boys' home at the age of 16. He said that he "vacillates between extreme anger and emotional numbness" as a result of this sexual abuse. Dr Wearne said the sexual abuse "served as a catalyst for dysregulated emotional experiences throughout his life". [12]
Dr Wearne found that his "absent and/or insecure attachments to his primary caregivers, together with his history of sexual trauma and abuse, have ultimately led to the development of an unstable personality structure … and difficulties with emotional and behaviour regulation." Dr Furst observed that "[Mr Carberry] witnessed frequent alcohol and substance abuse throughout his childhood, suggesting that the Bugmy principles are likely relevant in relation to [him] and that he has a biological disposition towards addictive disorders".
Mr Carberry attended primary school and started high school in Griffith. He struggled with literacy and numeracy, exhibited behavioural issues and described himself as dyslexic. He would get into fights with other students, damage school property and break school rules. He was suspended from school many times. He stopped attending school in year 8 and instead engaged with the "Boys to Men" residential program for two terms. Since then, he has not returned to school or had any consistent employment.
Dr Wearne noted that Mr Carberry had little support to shape his social development in a positive way growing up. He was exposed to considerable alcohol and substance use and violence when socialising with older cousins. Mr Carberry described his current peer network as negative influences who regularly engaged in criminal activity and substance use. Mr Carberry also said that he was a negative influence on his peers at school as he did his "own thing", and people would follow him.
Mr Carberry reported regular, at times daily, drug and alcohol use from the age of 13. He began smoking cannabis when he was 13 and began drinking alcohol and taking methamphetamines when he was 14. He started using opiates recreationally during a previous period of incarceration and continued to smoke heroin when he was released. He was admitted to a rehabilitation centre in 2014 but left after six days. He was using methamphetamines, ice and heroin daily in the lead up to his arrest for the current offence. Mr Carberry said he had been using methamphetamines on the day of the offending but said that he did not believe that it was a factor in his decision-making. He was placed on the opioid replacement program when he re-entered custody in 2021 and has not used any substances for approximately 18 months.
Dr Wearne was of the view that Mr Carberry "has been self-medicating his negative feelings and emotions with substances throughout his life … [t]his has exacerbated his emotional and personality difficulties and brought him into contact with anti-social peers, who have supported his offending, normalised his use of violence and crime, and desensitised him to the antisociality of his criminal behaviours".
Mr Carberry was diagnosed with attention deficit hyperactivity disorder ("ADHD") when he was 11. He was prescribed Ritalin but stopped taking it after returning from the Boys to Men program when he was 16. He does not believe having ADHD is a significant issue for him and does not take medication for it in custody. He reported suffering from anxiety from early childhood and was prone to catastrophising, rumination and paranoia. He has not seen a psychologist and is on the waitlist to see one in goal.
When assessing Mr Carberry in February 2022 for his fitness to stand trial, Dr Furst diagnosed Mr Carberry with a substance use disorder (predominantly methamphetamines and opiates), ADHD and conduct disorder. He concluded that Mr Carberry was not suffering from a mental health or cognitive impairment, within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), at the time of the offence and was fit to be tried. Dr Furst said: "[H]is mental immaturity, ADHD and related impulsive tendencies and his addiction issues to which he is genetically predisposed and to which his ADHD and social background also contributed to, would be the main factors for the court to consider in relation to potential mitigation or moral culpability".
Mr Carberry performed within normal limits in most of his intellectual and cognitive functioning assessments but was in the low or borderline range in several areas. He demonstrated weaknesses in attention, concentration, self-monitoring and cognitive control, which is consistent with his diagnosis of ADHD. Mr Carberry also showed mild symptoms of depression and severe symptoms of anxiety and stress at the time of his assessment. Dr Wearne concluded that he has sufficient cognitive resources to engage in reasoned and rational decision making and to appreciate and understand the consequences of his actions.

[18]

Regret and remorse

Dr Wearne expressed the opinion that Mr Carberry exhibited genuine remorse and regret and accepted responsibility for the offence. Mr Carberry told the psychologist: "Someone lost their life …it makes me very sad for him and his family. Everyone who is involved… His family and his mum. … I couldn't imagine what the mum is going through… I feel very sad and I think about it all the time. I feel like that somehow, someway, I have to repay this bloke. I am truly sorry for what I had done."
The parole report however said that Mr Carberry demonstrated limited insight into the factors that led to his offending and the potential long-term impacts of his offending behaviour on the victim and the community. Mr Carberry initially minimised his behaviour by saying "I only punched him in the chest once", but then expressed remorse for the victim by saying "it gives him anxiety" to think about the situation and he feels bad that the victim was innocent.
Mr Carberry was also asked during his evidence in the trial whether he regretted his actions and he told the Court "100%".
The prosecution submitted this might be regarded as a "ritual incantation of remorse and contrition" and distinguished regret from genuine contrition and insight. It was noted that the expressions of remorse to Dr Wearne were not made on oath and subject to cross-examination. As to the evidence he gave at the trial, the Prosecutor submitted (in my view correctly) that the trial was concerned with other issues and was not the appropriate forum in which to challenge his answer to a leading question that he 100% regretted what had happened.
My tentative finding is that Mr Carberry does feel some regret and remorse for his role in Mr Mousawi's death. However, his denial of the plan to rob his victim undermines the suggestion that he has, at this stage, any real insight into his responsibility. I accept the Prosecutor's submission that the evidence falls short of the kind of acceptance of responsibility required to establish a mitigating feature under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, I think he is sorry for what he did and that feeds into the question of his prospects of rehabilitation.

[21]

Equal justice

Both Ms O'Hanlon and Mr Honeysett have been sentenced for their role in the offending on 11 September 2020. The Prosecutor helpfully provided the material relevant to their sentencing proceedings and accepted that, despite the manifest differences in the cases, the parity principle of equal justice has some application. In short, I must consider the sentences imposed on the co-offenders and ensure the sentence I impose on Mr Carberry does not leave him wearing "the badge of unfairness" or harbouring a "justifiable sense of grievance." [14]
Ms O'Hanlon was arrested on 11 September 2020. She pleaded guilty to robbery in company and was sentenced on 25 February 2022. She gave an undertaking that she would give evidence against Mr Carberry, and I expect Mr Honeysett, in the trial and received a discount of 15% for giving evidence and 10% for assisting police. She was sentenced to a 12 months Intensive Corrective Order.
Mr Honeysett was to stand trial with Mr Carberry but pleaded guilty in the course of the pre-trial hearing to an offence of attempted robbery in company. I sentenced him in Wagga Wagga on 14 February 2023. He received a 25% discount from the otherwise appropriate sentence and had a compelling subjective case along with a pretty bad criminal history. He was sentenced to 18 months imprisonment with a non-parole period of 12 months. In settling on that sentence, I was influenced by the need to achieve parity or due and proper proportion with the sentence imposed on Ms O'Hanlon. [15]
Neither Ms O'Hanlon, nor Mr Honeysett, were sentenced for an offence which encompassed the unlawful killing of Mr Mousawi. It may be that Mr Carberry would have a sense of grievance based on the fact that only he has been prosecuted for homicide. However, that grievance - however genuine it may be - is not a "justifiable" one for the purpose of the application of the parity principle. [16] I have taken the sentences of the co-offenders into account and have tempered the starting point of Mr Carberry's sentence to a very minor degree. However, this is not a case where principles of equal justice have a significant role to play.

[23]

Commencement of sentence

Mr Carberry has been in custody, bail refused on the present offence since his arrest on 13 September 2020. However, his parole was revoked, and the revocation was backdated to date of this offence, that is the 11 September 2020. That means that he has been serving a sentence for the unrelated robbery offence for most of his period of remand. According to the balance of parole report, that sentence expired on 30 January 2022.
This gives rise to an issue as to the appropriate date upon which to commence the sentence I am about to impose. Section 47(3) of the Crimes (Sentencing Procedure) Act requires that pre-sentence custody must be taken into account and the best approach according to the cases is to back-date the sentence. [18] Complications arise where, as here, the pre-sentence custody is not solely referable to the offence for which an offender stands to be sentenced. On one view, the period up to 30 January 2022 was custody referable to the earlier robbery offence. However, it cannot be assumed that Mr Carberry, in the absence of the present homicide charge, would not have been again released to parole during the balance of term for the robbery offence. [19] In fact, the likelihood is that he would have been granted parole during that period. The breach was the direct result of the current allegation.
Section 47 provides a sentencing court with considerable flexibility in deciding an appropriate commencement date. The earliest date the sentence could commence was the day Mr Carberry was arrested (that is 13 September 2020). The latest would be the date the robbery sentence expired (being the 30 January 2022). There is no magic formula or science to this, it is a matter of achieving fairness in the circumstances of the case.
I have decided that the sentence should commence on 13 January 2021, that is four months after he was taken into custody.
This means, in effect, that this sentence will have been served partially and concurrently with the sentence (that is, the balance of term) imposed for the robbery offence. This is based on the likelihood that Mr Carberry would have been given another opportunity on parole. There is also a small period of effective accumulation, recognising that this was separate offending but also taking into account that Mr Carberry had served the non-parole period settled upon by the District Court for the earlier robbery.

R v Carberry - [2023] NSWSC 523 - NSWSC 2023 case summary — Zoe

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