R v Chamma; R v Hicks

Solicitors: Solicitor for Public Prosecutions (Crown) Ross Hill & Associates Lawyers (Chamma) Andrew Scali Solicitors (Hicks) File Number(s): 2021/319239 2021/354317

JUDGMENT

1. Late on Sunday 15 November 2020, in Toongabbie, 49-year-old Mr Warwick Hunter was tragically stabbed to death in his own home in the course of a robbery. Mr John Hicks ("the offender Hicks") and Mr Samir Chamma ("the offender Chamma") were charged with his murder. A trial by jury commenced at Darlinghurst Courthouse on 29 May 2023, and the jury retired to consider its verdicts on 15 June 2023. The deliberation took place over about a day and a half spread out over three days. Verdicts of guilty to murder were returned against both men on 19 June 2023, on which day they were both convicted.
2. The prosecution case was that the offender Hicks, the offender Chamma, and Mr Jonathon Salamie arrived together at Mr Hunter's house to commit a robbery. Within the course of only a few minutes, the offender Hicks had stabbed Mr Hunter and the three men left with around $9000. Mr Hunter died from his wounds a short time later after making his way out onto the street.
3. The offender Hicks' case was that he was not present at the robbery during which the killing occurred. The offender Chamma's case was that he was with the other men who attended Mr Hunter's house to sell drugs, but that he remained outside and he was not aware that anyone was carrying a weapon.
4. By its verdicts, the jury were satisfied beyond reasonable doubt that both offenders were guilty of murder. It is now my duty to determine the appropriate sentence for the offender Hicks and the offender Chamma.
5. The maximum penalty for the offence of murder is life imprisonment (Crimes Act 1900 (NSW), s 19A). A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence (Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"), s 61(1)). The Crown Prosecutor did not submit that life sentences should be imposed. I am not satisfied that a life sentence is appropriate for either of the offenders.
6. A standard non‑parole period of 20 years for the offence of murder has been specified by the legislature (Sentencing Act, s 54A).
7. Both the maximum penalty and the standard non-parole period are important statutory guideposts which need to be kept in mind when I consider all of the factors relevant to the sentencing task, assess their significance and then determine the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J).
8. It is my task to determine the degree of each of the offenders' culpability for the offending for sentencing purposes based on the facts that I find. I am to determine the facts relevant to sentencing each of the offenders based on the evidence at trial and any further relevant material put before me on the proceedings on sentence. My assessment of the facts must be consistent with the jury's verdict: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67.
9. To the extent that I make findings of fact adverse to each of the offenders, then I must be satisfied of the relevant fact beyond reasonable doubt. To the extent that I make findings of fact favourable to each of them then I must be satisfied of the relevant fact on the balance of probabilities (see The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)).
10. The Crown put the case of murder on alternative bases for the offender Hicks. As against the offender Hicks, the first basis was that he stabbed Mr Hunter with the intention to kill or inflict grievous bodily harm. The second basis against the offender Hicks, and the only basis for the offender Chamma, was that there was a joint criminal enterprise by the offenders to rob Mr Hunter whilst knowing the other was armed contemplating that the person with the knife might use the knife with the intention of causing at least grievous bodily harm and that death would occur. Either case is consistent with the jury's verdicts.
11. Consistent with the verdicts of the jury, and as outlined in more detail below, I find that the offender Hicks was the person who stabbed Mr Hunter, and the offender Chamma was party to an agreement, with the offender Hicks, to rob Mr Hunter knowing that the offender Hicks was armed with a knife, and contemplated that in carrying out the robbery the offender Hicks might use the knife with the intention of killing Mr Hunter or causing him really serious harm and that death would occur.
12. I will now turn to the details of the offending, including facts leading up to and following the offending. First, I will address matters that are not disputed, following which I will deal with some matters of controversy as they affect both the offender Hicks and the offender Chamma. I will then refer to the offender Hicks' personal circumstances as well as aspects of the assessment of the sentence to be imposed upon him. At some points in relation to dealing with the offender Hicks, I will specify the points at which my findings relate to both offenders. I will then discuss some more detail concerning the offender Chamma's offence and its seriousness before turning to his personal circumstances and sentencing considerations. I will then pronounce sentence on the offender Chamma and the offender Hicks.

Events leading up to the murder

1. Mr Hunter lived alone in a house on Wentworth Avenue, Toongabbie. On Sunday 15 November 2020, Mr Hunter spent part of the day with his wife, Ms Premila Devi, shopping, eating, and visiting friends. Whilst Ms Devi and Mr Hunter no longer lived together, they had had children together, and still socialised together regularly.
2. At about 11:30am on 15 November 2020, Mr Hunter called Ms Devi to pick him up from his house and take him to the shops to buy shoes. Ms Devi went to KFC to pick up some food for him and she arrived at around 3:09pm. When she arrived, Mr Hunter was outside his house dancing to music in the sunshine. She said that Mr Hunter was happy.
3. At around 3:45pm, Ms Devi and Mr Hunter left his home and drove to a shop in Prospect in Ms Devi's car. The shop was closed, and Mr Hunter then asked Ms Devi to drive him to Blacktown. While they were in the car, Mr Hunter told Ms Devi that he wanted her to return to him one of the rings on her hand and offered her around $940 to $950 for the ring. After Ms Devi agreed, Mr Hunter gave her some cash from his black bag where she saw "lumps of big money" and another piece of jewellery. She estimated there was about "10,000 [dollars], maybe more", in 50 and 100 dollar bills lying flat, and that the bundle of cash was around the height of a tissue box which held 200 tissues. It was only when she returned home that she counted the cash and saw that Mr Hunter had only given her $640.
4. At trial and on sentence, it was contested on behalf of the offender Chamma that Mr Hunter was carrying about $10,000 in cash. I will deal further with this issue below.
5. Later that afternoon, Ms Devi and Mr Hunter went to a friend's house in Pendle Hill. They then went to the Woolworths in Pendle Hill. After coming out of the Woolworths, Mr Hunter indicated that he had lost his house keys. Ms Devi drove Mr Hunter back to his house in Toongabbie, arriving at around 5:40pm with a tentative plan that Mr Hunter would try to climb through a window to gain entry to his house. Shortly after, Ms Devi left Mr Hunter at his house and went to see a friend in Constitution Hill. Upon her arrival at her friend's house, Ms Devi found Mr Hunter's keys in her car. Ms Devi and her friend drove back to Toongabbie to drop the keys off. When Ms Devi arrived at Mr Hunter's house at around 6:12pm, she saw Mr Hunter in the front yard of his home with a man she did not recognise. When she asked who this man was, Mr Hunter said he was "Mohamed's cousin". The description Ms Devi provided of this man, including the clothes he was wearing, combined with the CCTV footage and evidence from a witness known in the trial as Witness G (to which I shall come in detail) is such that I am satisfied that this man was Mr Jonathan Salamie. Ms Devi and her friend left at around 6:16pm.
6. Earlier that afternoon, the offender Chamma had met Witness G at the Doonside Hotel at around 4:50pm. There they played the gaming machines and left together in a red Honda Accord driven by the offender Chamma just before 5:30pm. The offender Chamma and Witness G drove around the suburbs of Blacktown, Doonside and Toongabbie delivering drugs until 7:54pm when they parked close to Mr Hunter's house. Mr Salamie left Mr Hunter's house at 7:55pm (where he had been since around 6:10pm) and walked towards the red Honda Accord, before the three men (Mr Salamie, Witness G and the offender Chamma) walked together into Mr Hunter's house at 7:57pm. CCTV footage showed that Mr Salamie, Witness G and the offender Chamma then stayed at Mr Hunter's house until 8:18pm (that is, for about 20 minutes) at which time they left the house and drove away in the red Honda Accord.
7. At around 8:42pm, in the vicinity of Witness G's home, Witness G left the red Honda Accord and walked towards his home. About three minutes later, he returned to the red Honda Accord where he talked to the occupants of that car for two and a half minutes. Witness G then left again and walked away in a different direction. After the red Honda Accord left that vicinity, Witness G walked towards his home. Later that evening, Witness G left his home and walked away at 10:54pm, returning at around 11:03pm.
8. Based upon the jury's verdict, I must find that the offender Chamma, the offender Hicks and Mr Salamie travelled together in the red Honda Accord to Mr Hunter's home arriving at around 10:08pm, where they parked across the road, remaining in the car for three minutes. I am satisfied beyond reasonable doubt that at 10:11pm, the two offenders and Mr Salamie left the car and headed towards Mr Hunter's house, and that shortly after the two offenders and Mr Salamie arrived, the offender Hicks stabbed Mr Hunter. I will consider below what findings I make about the offender Hicks, including his intention at the time of the stabbing, as well as the further facts I find in relation to the offender Chamma, and (to the limited extent it is relevant) Mr Salamie.
9. At 10:14pm, the two offenders and Mr Salamie ran back across the road from the direction of Mr Hunter's house to the red Honda Accord which sped away without the headlights activated. A minute later, that car turned out of Wentworth Avenue with its headlights activated, and a minute after that it was seen travelling away at speed.
10. Following the stabbing, Mr Hunter left his home, leaving a trail of blood, before collapsing on the ground on a neighbouring street. A resident of that street heard someone saying "help me" over again, like a whisper, and went outside to find Mr Hunter on the ground bleeding. An ambulance was called at 10:20pm and the neighbour performed CPR on Mr Hunter until the ambulance arrived. Mr Hunter was bleeding heavily from a number of stab wounds. Mr Hunter died at that location shortly afterwards.
11. The forensic pathologist who conducted the autopsy on Mr Hunter's body found that the cause of death was stab wounds to the chest. Mr Hunter had a body mass index of just over 18 and was described as skinny. There was a stab wound to the chest wall on the right front side of Mr Hunter's body, as well as a stab wound to the lower thoracic area on the right side of the body at the back. These two wounds were the fatal wounds. There was also a stab wound towards the front of the right shoulder and chest wall. The forensic pathologist also found a deep incised wound on the deceased's right knee, and some blunt force injury bruising on his head. The deceased also had a high level of methylamphetamine in his blood, enough to cause a negative effect on him. The negative effects which may have been caused included an increased heart rate, high blood pressure, and an increase in sweat, anxiety, and aggression.
12. CCTV footage from multiple locations detected the red Honda Accord driving around a number of suburbs later that evening. At 11:28pm, it was seen at a service station at Kings Park at which point Mr Salamie exited the rear left passenger seat and refuelled the car. The two offenders and Mr Salamie then drove away without paying for the fuel. At around 2:01am on 16 November 2020, the red Honda Accord parked near Witness G's house. At 2:02am, the offender Hicks ran towards Witness G's house, returning to the car only a minute later. The red Honda Accord was seen driving around various locations in Blacktown, Rooty Hill and Seven Hills until around 6:30am that morning.
13. An extensive crime scene examination was carried out. One of the items found in Mr Hunter's home was described by the Crown as a makeshift sheath for the knife consisting of two toilet rolls taped together with black tape - one inside the other - extending the length of the standard toilet roll length. The offender Chamma's left palm print was found on the exterior of the outer roll, his right palm print was found on the exterior of the inner toilet roll, and his right thumb print was found inside of the inner roll. DNA from both the offenders was also found on the makeshift sheath. Detective Technical Sergeant Kelly Paton of the New South Wales Police stated that she observed an arrow‑shaped slice or cut within that cardboard roll. I find beyond reasonable doubt that the effect of her evidence was that the slice or cut was consistent with a knife having been inside the roll.

The evidence at trial from Witness G relating to events prior to the murder

1. Witness G was an important witness called by the Crown. The account he gave was given without him having seen any CCTV footage. It was largely consistent with that footage.
2. Witness G had met the offender Chamma in 2017 and had known the offender Hicks since childhood. He had played football with the offender Hicks. On 15 November 2020, he had met the offender Chamma at the Doonside Hotel and asked him to drive him around while he delivered drugs. He remembered the car as a red Honda Civic. The meeting at Doonside and the driving is supported by the CCTV footage.
3. Witness G stated that at one point the offender Chamma received a phone call to the effect that a friend needed to be picked up near Toongabbie. Witness G said no at first as he wanted to get his deliveries done. Witness G said the offender Chamma stated that it was on the way, and would not take more than five minutes to drop in. Witness G said they proceeded to Toongabbie and picked someone up who had curly hair and was a bit taller than Witness G.
4. At the Toongabbie house (which he agreed was on Wentworth Avenue), the curly haired man and the occupant (the deceased, Mr Hunter) were drinking out the front. They were all invited inside the house by Mr Hunter who offered them a drink. Witness G had a bong and smoked two cones which did not really affect him as he was on ice. Mr Hunter offered them more drugs but Witness G said he was alright, as he had his own. Mr Hunter was drinking, and Witness G declined a drink but took some alcohol home for later. Mr Hunter was wearing an open shirt with a couple of long gold chains and he was "like, showing off sort of thing. He was out there […] I could tell he was a bit drunk and that". Witness G said they stayed in the house for about 15 minutes, up to a maximum of 20 minutes.
5. Witness G's account of his attendance at Mr Hunter's house along with the offender Chamma and Mr Salamie, including its duration, is supported by the CCTV footage.
6. In the car, after they left Mr Hunter's house, Witness G recounted that Mr Salamie said the following about Mr Hunter: "He said he was a bit out there, and he was pretty cashed and that. Because he was showing off like I said, he was pretty out there you know, and he'd just met him randomly, he was walking past or something, and he invited him in."
7. When asked to actually recount the words used by Mr Salamie, Witness G stated Mr Salamie said, "he had a wad of cash, and he had all these gold chains on and that". Witness G did not see the cash himself. The evidence about the cash is supported by the evidence of Ms Devi who had seen Mr Hunter with a lot of money that afternoon.
8. Witness G stated that the offender Chamma then stated that was "like a job, someone to go rob". In cross-examination, Witness G conceded that the word "rob" may not have been used. Witness G asked to be taken home because robbing was not something he wanted a part of - he was a drug seller. The offender Chamma drove him home. On the way home, Witness G was asked by the offender Chamma to "call Hicksy to be picked up" because the offender Chamma's phone was flat. That is a reference to the offender Hicks. Witness G says he rang the offender Hicks and told him, "Samir's going to come and pick you up". The offender Hicks asked, "what for" and the offender Chamma told Witness G not to say anything more, and that he would talk to him when he saw him. The offender Hicks replied, "okay". CCTV supports Witness G's account of being dropped home at a proximate time.
9. I note that Witness G's evidence of what occurred in the car is admissible only against the offender Chamma.
10. At this point it is convenient to record that I accept that Witness G was doing his best to tell the truth at trial. I also find that Witness G's evidence was essentially reliable given it was well supported not only by the CCTV evidence, but also by evidence of the burning by the offender Chamma of his white shirt, as discussed further below. In addition, the admissions said to have been made to Witness G, as also set out below, largely align with admissions recorded by way of telephone intercept to him and to others, as well as other objective evidence such as the location of Mr Hunter's wounds. My observations of him in court, including his concessions where appropriate, indicated he was a person who was neither prone to exaggeration nor manufacture. The suggested motive for him implicating the two offenders was not accepted by Witness G (that is, that he had a motive to lie in order to diminish the number and/or severity of unrelated charges he was facing), did not withstand scrutiny and did not persuade me he was concocting his evidence. Accordingly, in all the circumstances, I am of the view that I can accept Witness G's version of events.

Evidence of admissions after the murder

1. There were a number of admissions made largely by the offender Hicks after the murder which were captured by way of telephone intercept, each of which were only admissible against the offender who was party to the telephone call. There were also admissions made to other people, including Witness G, who gave evidence at the trial.

Available against the offender Hicks only

1. On 16 November 2020, the day after the murder, the offender Hicks participated in a telephone call between his mother, himself, and his brother (who was in jail). His mother stated that the offender Hicks "got a whole heap of money". When his brother asked the offender Hicks what he was doing, the offender Hicks stated, "just running amok lad" and then said, "I just robbed some motherfucker". When their mother came back on the phone, she stated, "he's got nothing", and "he's just a full-on wanker, it's not even his". The timing of this telephone call is clearly significant. When viewed in the context of all the other evidence, I am satisfied that these latter comments were an attempt to downplay the money issue as the brother was asking for some money from jail, and the mother was trying to deflect his request.
2. On 13 January 2021, the offender Hicks sent a text message to a person as follows: "Cuz I killed that cunt lad ya mad cunt".
3. Between 10 January 2021 and 5 February 2021, the offender Hicks and his girlfriend, Ms Abbie Kerrigan, exchange a number of text messages in relation to needing to hide and/or get rid of a "big knife". The messages showed the following: Ms Kerrigan thought the offender Hicks had "got rid off [sic] everything". The offender Hicks replied, "I did except for that big knife". The offender Hicks also stated, "U think I'm scared to kill another dog". Ms Kerrigan showed her exasperation with the knife still being in her house where her children resided and indicated that if the offender Hicks did not get rid of the knife she would.
4. On 15 March 2021, in a phone call with Witness G, the offender Hicks stated (in the context of them discussing other crimes in the area), "Oh yeah, I don't do break and enters, I do home invasions and kill cunts."
5. On 16 April 2021, the offender Hicks sent Witness G a text message as follows: "Tell them that U met the guy threw aye mate and U went to his house on the way home and had aye bong with him and then went home that's all".
6. On 16 April 2021, in a phone call with his father, the offender Hicks told his father how he was avoiding police as they were looking for him "for fucking the Toongabbie thing […] They want me for that, um, fucking murder". His father said to him that "doing a runner [...] makes you look guilty".
7. Also on 16 April 2021, the offender Hicks was recorded speaking to a man, Mr Glenn Hermes. The offender Hicks told Mr Hermes that the homicide police were looking for him and that he had evaded them on foot. He said "they want me" rather than the two "Lebos". He also stated, "Well, they took one of my boys this morning. Homicide woke him up and took em, took him". He said he was "laying low" and "just on the run". He then said that the homicide police "took my swab the other night, the other week and it all came back apparently". When Mr Hermes suggested someone was trying to implicate him, the offender Hicks stated, "I don't know if its him but fucking there's two or three of them gave me up bro".
8. Later that same day, in a call with another person, the offender Hicks spoke about Witness G having been picked up by homicide police that morning, and that "they're looking for me […] Because they know that I'm the … yeah". They shared their hope that Witness G was not talking to the police.
9. On 6 May 2021, the offender Hicks spoke to a friend indicating he was very upset with Witness G because "he rolled on me". The offender Hicks said "I'll be straight up with ya, […] 'cause he rang me yeah […] [a]nd he told, he told me, like he was with two of my boys, he rang me and goes, um, get ready, what do you mean get ready. […] What is this cunt talking about and the next minute, two of my other boys turned up yeah. […] We go do this thing. It went all wrong, it went all wrong."
10. On 21 May 2021, the offender Hicks again spoke to that friend and said that Witness G had visited him to talk to him in person, as he did not wish to talk over the telephone. The offender Hicks said: "[H]e goes bro, homicide knows everything, there's 16 witnesses. Oi. […] Yeah, there's 16 witnesses, I go what do you mean cuz. He just gave me g and I'm all psyched up. Ah fuck, I'm jumping around like a motherfucker. Um, yeah, fucking there's 16 witnesses. […] Yeah, he goes bro, like he goes, get ready to like take off. I go, what do you mean cuz? He goes, trust me, there's 16 witnesses. I go, there's no witnesses brother, there's no witnesses, there was no one there lad."
11. The telephone call continued with the friend stating, "Um, everyone needs, everyone needs to put their hand up for their part in it though […] Like, it's not just fucking you." The offender Hicks replied: "Yeah, I know, Witness G's like… bro… I can't handle this, ah. He goes, he goes, thing, he goes, there's 16, there's 16, they knew everything, they know everything. Like, everything he just told me is, is matched up, you know what I'm saying? […] Yeah, I don't want to say too much over the phone, but yeah. It's fucking, everything that he's saying is spinning me out 'cause everything is fucking, you know what I mean, is spot bang on the mark."
12. Again, the offender Hicks repeated "they know everything". He also stated, "I'm going to do life".
13. In the course of the telephone conversation, the friend also stated, "you're just going to have to tell your side of it and […] I hate to say it but you're going to have to tell, tell them everyone else's involvement in it, otherwise you're going to cop more fucking time".

Available against the offender Chamma only

1. There is only one recorded admission against the offender Chamma.
2. In a telephone call with Mr Nathan Yeend (also a witness in the trial) on 24 December 2020, in the context of discussing other crimes in the area, the offender Chamma stated "that's alright bra, I stabbed someone over nine grand and he died". I note at this point that in light of the weight of the evidence pointing to the offender Hicks as the person who was the 'stabber', I am satisfied that to the extent that the offender Chamma is claiming in this telephone call to be the 'stabber', that this is him 'big-noting' himself. However, the statement itself, together with the reference to the amount of nine thousand dollars, in the context of other evidence, indicates that the offender Chamma was closely involved in the murder.
3. The offender Chamma's counsel argued that this call could have been what is colloquially known as 'shit talk' and that the figure of nine thousand had no connection with the murder of Mr Hunter, and thus this so-called admission was not an admission at all. He argued, based on Ms Devi's evidence (who initially estimated that Mr Hunter had $10,000 on him when he gave her money in exchange for her ring) that Mr Hunter may have had significantly more than $10,000, and thus was not related to the offender Chamma's so-called admission.
4. In considering the evidence about this issue, I note the following. First, the denominations provided to Ms Devi by Mr Hunter must have included $20 (or even $10) notes because of the amount of cash with which she was provided (that is, an amount ending in $40). Although Ms Devi did not mention denominations other than $50 or $100, there was no suggestion Ms Devi helped to break any larger denomination. Second, Ms Devi gave no evidence as to the proportion of $50 notes as opposed to $100, $20 (or $10) notes. Third, even though in cross-examination Ms Devi qualified her initial estimate of the amount of cash by acknowledging that she did not count it and it could be more or less than $10,000 (agreeing it could even be significantly more), it must be remembered that Ms Devi's initial estimate of $10,000 was given in the context of Mr Hunter providing her a proportion of that total sum (which turned out to be $640). In other words, Ms Devi's estimate was not made in a vacuum, but rather in the context of a specified smaller sum of money (be it $940 or $640) as a reference point. Finally, the evidence in the trial was that cash in the sum of $2,450 was found in the breast pocket of a shirt near the taped toilet rolls in Mr Hunter's house, and that other than two $100 notes, all were in $50 denominations. In light of these factors, I am satisfied that Ms Devi's initial estimate of the cash Mr Hunter had on the day of his murder being "10,000, maybe more" was reasonably accurate, and that prior to providing the cash to Ms Devi, Mr Hunter had in the realm of $10,000, maybe up to around $13,000. Once an allowance is made for the money in the shirt pocket and the money given to Ms Devi, there was around $9000 missing from the money Mr Hunter had prior to the murder and robbery. I am therefore satisfied that the admission made by the offender Chamma is an admission to his involvement in the murder and robbery of Mr Hunter.

Admissions made to Witness G

1. Witness G gave evidence that on the night of the death of Mr Hunter, at around 11:00pm, the offender Chamma, the offender Hicks and Mr Salamie arrived at the back of his place in order to get drugs from him. During this encounter (in the presence of the offender Hicks), the offender Chamma said "Johnny fucked up" (meaning the offender Hicks), "someone got stabbed" and that it was "Hicksy" who had "stabbed the somebody". The offender Hicks is said to have made no comment or verbal reaction to that statement.
2. During that same encounter, Witness G said the offender Hicks said (in the presence of the offender Chamma) that he had "stabbed the bloke in the throat, in the body and leg". There is no evidence that the offender Chamma made any reply to that statement.

Admission made to Witness G

1. Witness G gave evidence that a few weeks after the murder, the offender Hicks came over to his house and they had a conversation in the kitchen. Witness G said the offender Hicks was talking to his partner and he "pretty much told [Witness G] exactly what was told [to him] the first time he came around" - that there was "an altercation, and he stabbed the bloke". Witness G also said that the offender Hicks had said "there were a couple of punches thrown, and then he got stabbed". Witness G assumed no money was taken because they asked for drugs on credit that evening - "for ticks". Witness G said the offender Hicks stated that it was he who had stabbed Mr Hunter.
2. Witness G also stated that the offender Hicks had said that when they went there the door was locked, "Samir grabbed the front screen door and ripped it off". I note that this evidence is only available against the offender Hicks.
3. Witness G further stated that he had asked the offender Hicks as to why there was no blood on him on the night after the stabbing and he replied that after the stabbing he had gone to Sharon's first to clean up and then came over to Witness G's house.
4. It is convenient to note at this point that Ms Sharon Kelly gave evidence that she lived in Seven Hills. She has known the offender Hicks since he was a child when he and his family lived across the road from her. She said that the offender Hicks was at her house on the day of the murder, and that the offender Chamma came to pick up the offender Hicks in the "early night". She saw the offender Hicks again later that night at around 11:00pm, and he only stayed for around five minutes. She heard, but did not see, the offender Chamma at that time.

Admissions made to Abbie Kerrigan

1. Ms Kerrigan was the girlfriend of the offender Hicks shortly before the offence and at the time of giving evidence at the trial. She had broken up with him in between those times. She described her relationship at the time of the trial as "good". She had made an earlier statement to the police on 5 May 2021 which she largely failed to adhere to in court. The Crown was permitted to put the substance of the statement to her by way of cross-examination.
2. Ms Kerrigan's earlier account included that she had had a conversation with the offender Hicks on 19 November 2020 in which the following was said: Offender Hicks: "Did you hear about what happened the other night in Toongabbie?" Abbie Kerrigan: "What, about that guy who got shot or something" Offender Hicks: "Yeah, did you hear about it?" Abbie Kerrigan: "Yeah, I thought it was you at first" Offender Hicks: "I'll tell you about it later the police are after me."
3. Her earlier account also included that a week after that conversation, at around 11:00pm, the offender Hicks got dropped over to her house. She remembers because she did not want to see him because he was using ice. When he got inside, he was so paranoid she barely recognised him. He was skinny. She said he closed all her blinds and locked all the doors and windows thinking the police were after him. That night he asked her to break his phone and snap his SIM card, so she did. And she put them in the bin.
4. Ms Kerrigan's earlier account further included that at that time he moved back into her house for about three days and throughout this time they had many conversations. She remembered that she said: "'Are you going to tell me what happened with this Toongabbie thing?' [The offender] Hicks said, 'I was there with my mate at the guy's house. It was over drugs, and the guy died, and we took off in a car. We got some money.'"
5. She replied, "You wouldn't have done that, I know you." And the offender Hicks said, "I did, I did."
6. The account further included the following: Offender Hicks: "They're going to catch up with me." Abbie Kerrigan: "Whose car?" Offender Hicks: "No one's car. We just got the car. I wasn't driving." Abbie Kerrigan: "Who were you with?" Offender Hicks: "Well, my mate just sat there when I'd done everything."
7. Ms Kerrigan's earlier account also included the following: "Later that day when he got to mine I noticed that he had something in a yellow bag. I could tell the shape that it was a knife. And I remember the following conversation. I said, 'Why did you bring that here?' [The offender] Hicks said, 'Well, I can't leave it at my mum's house.' I said, 'You can't have it here. You need to get rid of it out of this house. My kids are here.' [The offender] Hicks said, 'Wait a couple of days until it rains and I will get rid of it. It should wash away.'"
8. Ms Kerrigan said in evidence in court that the knife referred to in the text messages was a different knife which the police only removed from her house the previous week (before the trial).
9. In Ms Kerrigan's earlier account she stated, "I remember [the offender] Hicks taking the knife out of the yellow bag it was wrapped in a black bandana. He tried to get me to hold it at one point". She said, "no way". She also stated in that earlier account that a few days later it was raining and it was late. At around 11:20pm, they had a conversation which included that the offender Hicks said he was going to get rid of it (meaning the knife), and that he knew a good drain to put it in where it should just wash away. When Ms Kerrigan asked where, the offender Hicks said "on Buckwells".
10. During her evidence in court, in the course of resiling from her earlier account, Ms Kerrigan stated that she had made up the name Buckwells, and that the offender Hicks had never said that. When it was put to Ms Kerrigan that she had said to police that Buckwell Drive was a street near her residence, and that she had given details in her statement of how to get there from her house, she still maintained that she was making it up.
11. Ms Kerrigan had also told police earlier that she had seen the offender Hicks get dressed and put dark clothing on, and a hoodie, and that he took the knife (which she had called a "machete" at that point in her statement) out of the house still wrapped in the bandana and in the yellow bag. Ms Kerrigan told police the offender Hicks was away for about 15 minutes, and when he came back he still had the yellow bag and the bandana, and he said it was gone.
12. Ms Kerrigan's earlier account included that sometime in early 2021, the offender Hicks received a phone call from his brother, telling him that "some car was on the news" and to look it up. Ms Kerrigan and the offender Hicks looked up "Toongabbie murder" on Facebook, and together viewed a video concerning a red car. The offender Hicks said, "[s]how me again […] I want to see if you can see me in the car because I was crouching down." Ms Kerrigan said that she did not want to hear about it anymore, and the offender Hicks said, "[y]ou can't see me".
13. In my view, Ms Kerrigan was reluctant to assist the Crown in court and was attempting to distance herself from her earlier truthful account in an attempt to assist the offender Hicks. I make this assessment not only as a result of the inherent lack of credibility of her evidence in court, but also in the context of the combination of other evidence available from witnesses, as well as from telephone intercepts, and text messages between her and the offender Hicks about the disposal of a knife to which I referred earlier.

Admissions made to Mr Yeend

1. Mr Yeend made a statement to police on 25 January 2022. In this statement, he said the offender Chamma had said to him on the phone "I can't talk on the phone, I've done something bad". When they spoke in person the next day, the offender Chamma said that he and the offender Hicks had "fucked up in Toongabbie". Mr Yeend asked, "what the fuck did you do", and the offender Chamma said, "someone died". Mr Yeend thought he was "talking shit". He also said that at the time of the visit the offender Chamma was wearing a "fresh Tommy Hilfiger jumper".
2. The Crown was permitted to cross-examine Mr Yeend. Mr Yeend claimed he could not remember what he had told the police, claiming that at the time he gave this account, he was being threatened by police, was under the influence of ice, and was caring for a newborn baby. He agreed at one point that he had told the police the truth, but at other times he appeared to distance himself from the earlier account. The Crown pointed to the level of detail in the statement, as well as the evidence of Detective Senior Constable Lisa Myers that Mr Yeend was not under the influence of drugs when she took his statement, and that she made no threats.
3. Given the level of detail provided, and when viewed in the context of other evidence in the case, I accept that Mr Yeend's previous account was truthful.

Consciousness of guilt evidence against the offender Chamma

1. The evidence against the offender Chamma also included footage from the Doonside Hotel on the day of the killing showing the offender Chamma wearing a white Gant shirt, evidence from CCTV showing the offender Chamma wearing a white shirt when he first visited the deceased, and the burning of a very similar white shirt the morning after the murder, captured by the offender Chamma on his mobile phone and shared by way of Snapchat.

The Crown's submissions

1. The Crown submits that I should find: 1. It was at the suggestion of the offender Chamma that the offender Hicks formed an intention to rob Mr Hunter. 2. The intended robbery came about somewhat opportunistically after Mr Salamie told the offender Chamma that Mr Hunter had a significant amount of money and jewellery in the premises. 3. Having received a telephone call made at the behest of the offender Chamma, the offender Hicks formed the intention to rob Mr Hunter in his home, whilst armed and in the company of others. 4. The offender Hicks was armed with a bladed weapon. This was demonstrated by the albeit reluctant evidence of Ms Kerrigan, and the text messages as to the disposal of the knife. 5. The offender Hicks intended to kill Mr Hunter. 6. A significant amount of the cash taken from Mr Hunter was kept by the offender Hicks, as shown from the phone call with his brother the following day.

The offender Hicks' submissions

1. The offender Hicks accepted that the first three propositions were made out. He further submitted: 1. The idea of robbing Mr Hunter was not the offender Hicks' idea and his role in the planning was extremely limited. 2. The Court could not be persuaded beyond reasonable doubt that the offender Hicks intended to kill in circumstances where he likely formed the intention to stab the deceased quickly and in circumstances where both parties, but importantly the deceased, were drug affected. In the circumstances, it may make very little difference. This is because there is no evidence as to what occurred inside Mr Hunter's home at the time of the assault, although it is very clear that Mr Hunter had a potentially toxic level of methylamphetamine in his blood, and this may have made him aggressive. At the time, the offender Hicks had also been using methylamphetamine and he may well have been acting under its influence. 3. In written submissions, it was put that there was no evidence that the offender Hicks arrived at the property with the knife in his possession, although in oral submissions, it was conceded that the Court could find this was made out beyond reasonable doubt. 4. The stabbing of Mr Hunter was not planned in any way, as shown by the phone call where he stated, "We go do this thing. It went all wrong, it went all wrong".

Findings in relation to the offender Hicks

1. As to the first three findings contended for by the Crown, and not opposed by the offender Hicks, I make the following findings beyond reasonable doubt. Based on the evidence of Witness G, together with the evidence showing the movements on the day of the murder of Mr Hunter, the offender Chamma and Mr Salamie, and the admissions made by the offender Hicks, first, I find that the offender Hicks formed an intention to rob Mr Hunter at the suggestion of the offender Chamma. Second, I find that the intended robbery came about somewhat opportunistically after the offender Chamma learnt from Mr Salamie (and in part from what he saw Mr Hunter wearing) that Mr Hunter had a significant amount of money and jewellery on him or at his house. Third, I find that having received a telephone call at the behest of the offender Chamma, the offender Hicks formed the intention to rob Mr Hunter in his home, whilst armed in the company of others.
2. Next, I turn to the matters of fact in contention. On the basis of the combination of text messages between the offender Hicks and Ms Kerrigan about the need to dispose of the knife, together with Ms Kerrigan's original account to police, and the short length of time (only three minutes) between the three men leaving the car and then returning to the car during which the offender Hicks stabbed Mr Hunter, I find beyond reasonable doubt that Mr Hicks came to Mr Hunter's house armed with a bladed weapon.
3. Without more, the nature and extent of Mr Hunter's fatal injuries may indicate the offender Hicks had an intention to kill, even if the fatal acts were, as I accept, conducted in the spur of the moment, with no premeditation. In this case, however, there is also other evidence which complicates the situation.
4. The level of methylamphetamine in Mr Hunter's blood at the time of his death was such that I cannot exclude the reasonable possibility that Mr Hunter was agitated and aggressive when confronted with the offender Hicks wielding a knife and robbing him. There is also evidence that the offender Hicks was also affected by methylamphetamine that evening. It is likely that the fatal wounding took place over a couple of frenzied and chaotic minutes. In these circumstances, I am unable to find beyond reasonable doubt that there was an intention to kill on the part of the offender Hicks, but rather I can only be satisfied that he had an intention to cause grievous bodily harm.
5. However, in the particular circumstances of this case, I accept the fair submission made on the offender Hicks' behalf that in this case such a finding makes very little difference to the objective gravity of the offending. This was a sustained, ferocious and vicious attack on a man in his own home where he was entitled to feel safe and secure (Sentencing Act, s 21A(2)(eb)). Instead, he was attacked and left to die, dying shortly thereafter after leaving his home, whilst gravely injured, to try to find assistance. "Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case": R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252 at [16]. This case is an instance of where the general proposition does not apply. In all of the circumstances, my finding that there was an intention to cause grievous bodily harm rather than an intention to kill makes very little difference to the objective criminality of the offending.
6. The last point of contention is whether a significant amount of cash was taken from Mr Hunter during the incident. On his behalf, the offender Hicks points to the evidence that the men got drugs "on tick" from Witness G shortly after the murder, and that they did not pay for petrol later that evening. The Crown points to the offender Hicks' conversation with his brother the following day where he admits to robbing someone. In my view, this admission, together with the evidence of Ms Devi about how much cash she estimated Mr Hunter had on him only hours before the murder, and the cash found in his shirt pocket, persuades me beyond reasonable doubt that a significant amount of cash was taken.
7. I also take into account that the offending involved the use of a weapon (Sentencing Act, s 21A(2)(c)). In my view, however, for a count of murder, the presence of a weapon (whilst typical) is likely to have little, if any, effect on the objective seriousness of the offending by that fact alone.
8. Whether death is caused by a gun, a car being used to mow someone down, a knife, or with no weapon such as in death by asphyxiation, by strangling, by a 'king hit', or by extended bashing, makes little difference to the objective seriousness of the offence of murder. Whilst the presence and nature of a weapon may go to the issue of the extent of planning or may impact upon the awareness of a victim prior to being killed, thus increasing their fear by instilling terror before they die, in and of itself it is unlikely to make the objective seriousness of a murder charge more or less serious.
9. In this case, that the death was caused by a weapon as opposed to no weapon has little impact on my assessment of the objective criminality. I do, however, take into account the suffering that the infliction of the knife wounds must have caused Mr Hunter between the time they were inflicted and the time he died given that his death was not immediate.
10. Further, it was suggested at the sentencing hearing that the fact that the weapon was a knife rather than a firearm reduced the objective seriousness of the offending because of its limited range of lethality and that other people were less likely to be killed accidentally. I have not been directed to any authority which supports that proposition in relation to murder, and I am not persuaded of the argument. Factors pointing the other way include that using a knife to kill may require more personal effort at the time of an attack than using a firearm. In my view, that a knife is inherently less lethal than a (loaded) firearm is of no import where a serious stabbing results in death within a short amount of time.
11. Whether or not the offender Chamma and Mr Salamie (indeed, one or both) were present at the time of the murder is also relevant to the objective seriousness of the offending, as it goes to the extent of aggravation in s 21A(2)(e) of the Sentencing Act (that the offence was committed in company). I find beyond reasonable doubt that the offence was committed in company of the offender Chamma but cannot find beyond reasonable doubt that Mr Salamie was present inside the house at the time of the murder, albeit he was no doubt very close by. Both men had been at Mr Hunter's house earlier that day. The offender Hicks was unknown to Mr Hunter. The offender Chamma and Mr Salamie were no doubt utilised as a means of facilitating entry to Mr Hunter's home. They were all seen to run together from the car, towards the house, and shortly afterwards together back to the car.
12. However, there is no forensic evidence putting Mr Salamie inside the house, and importantly, unlike against the offender Chamma there is no other evidence satisfying me to the requisite standard that he was present with the offender Hicks at the time of the murder.
13. The offender Chamma, on the other hand, made admissions, or was present when admissions were made, indicating his close involvement with the offender Hicks and the stabbing. These admissions (set out above) provide cogent evidence, together with the CCTV evidence, the forensic evidence, and the burning of the white shirt, that the offender Chamma saw what occurred. Consistent with the jury's verdict, I find beyond reasonable doubt that the offender Chamma was present.
14. I find that his presence was such as to have a potential effect on Mr Hunter by way of intimidation and emboldening and supporting the offender Hicks: White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302 at [94] (Simpson JA). The additional presence of the offender Chamma and the nearness of Mr Salamie not only would have heightened the fear instilled in Mr Hunter, but would have also facilitated the commission of the robbery.
15. I also take into account that the course of offending involved the discrete, but itself serious, crime of armed robbery (Sentencing Act, s 21A(2)(m)). I take into account that so far as the offender Hicks was concerned, there was very limited planning in relation to the robbery albeit it was not spontaneous. It can be remembered that he drove with the offender Chamma and Mr Salamie to Mr Hunter's house and he was armed with a knife in a home-made sheath made in part by the offender Chamma. I note that the timing of the making of the sheath is unknown. The Crown does not submit that the planning was such as to amount to an aggravating factor, and I do not treat it as such.
16. I accept that the evidence shows that Witness G was dropped back to his house at around 8:42pm. Prior to that time, the arrangement must have been made to pick up the offender Hicks. The offender Hicks must have been picked up around about 9:00pm from Ms Kelly's house at Seven Hills. The stabbing occurred at around 10:11pm. I accept the infliction of the wounds leading to the death was spontaneous, and that the offender Hicks' involvement in the whole criminal venture was likely only a couple of hours in total. I take into account that the offence was committed for financial gain (Sentencing Act, s 21A(2)(o)).
17. The offender Hicks has a criminal history involving offences of violence (Sentencing Act, s 21A(2)(d)), albeit these offences occurred some time before the present offending and were all prosecuted in the Local Court, which indicates their relatively lesser seriousness. His criminal record disentitles him to leniency.
18. The Crown submitted that the offending is properly characterised as a grave example of murder, or within the middle range of seriousness and is of a higher order than the offender Chamma. The offender Hicks (ultimately) submitted that the objective seriousness is about the mid-range. Taking into account all of the above matters, I find that the objective seriousness of the offence in relation to the offender Hicks can be characterised as a grave instance of murder.

Moral culpability

1. As set out below, evidence was tendered on the offender Hicks' behalf outlining his background, illicit drug use, alcohol use from the age of 12 years old, and including that he suffers from a mild range intellectual disability, personality disorder and substance abuse disorder. Dr Richard Furst observed that his cognitive impairment may have been linked to his conduct in stabbing Mr Hunter in so far as it may have had a bearing on his capacity to control himself at the time of the offending.
2. The defence pointed to the evidence in the trial of Witness G, Mr Alex Rogers and Ms Kelly, which indicated that the offender Hicks was using a substantial amount of methylamphetamine at the time of the offence, including the night of the offence.
3. Whilst acknowledging that I cannot take into account self-induced intoxication as a mitigating feature (see Sentencing Act, s 21A(5AA)), the defence submit that there is a distinction between using evidence of drugs or alcohol as a mitigating factor generally and using it to reduce the offender's moral culpability as part of a general mix of factors which are intrinsically connected - involving early exposure to alcohol, drugs and violence. The defence point to Hamill J's comments from R v Johnson [2015] NSWSC 31 at [79] in which his Honour stated that whilst self-induced intoxication was not a mitigating feature, an offender's early exposure to both domestic violence and drug and alcohol abuse operated to reduce that offender's moral culpability and capacity to control his emotions. As also mentioned by Hamill J, such early operative factors have been recognised as important by the High Court in cases including Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43] ("Bugmy"): "The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending."
4. As can be seen from the material from Dr Furst and Dr Travis Wearne below, the evidence of serious deprivation of the kind referred to in Bugmy is not completely clear. However, in my view, it is sufficiently clear that the offender Hicks was exposed to some real level of violence, criminality and alcohol abuse in his environment from an early age and took up early alcohol use. These factors would have affected his capacity to exercise good judgment and to make prosocial choices. Other factors in the offender Hicks' case are the consistent evidence of his learning difficulties, mild intellectual disability and behavioural difficulties throughout his life, as well as a cognitive impairment identified at the time of the offending, which Dr Furst opined may have had a bearing on his capacity to control himself at the time of the offending. In my view, the combination of these factors is such as to reduce the offender Hicks' moral culpability for the offending.

The offender Hicks - background, psychiatric and psychological history

1. The offender Hicks is 34 years old and was 31 years old at the time of the murder. The offender Hicks' background and psychological history was put before the court by way of two reports, one by Dr Richard Furst, Forensic Psychiatrist, dated 7 March 2023, and one by Dr Travis Wearne, Neuropsychologist, dated 28 April 2023.

Dr Furst's report

1. Dr Furst had previously assessed the offender Hicks in 2011 and 2014 for previous court matters, and also assessed him in November 2022 in relation to his fitness to stand trial for the present offence. The report tendered on sentence had been prepared in relation to the offender Hicks' fitness to stand trial, and as to whether he had any mental health defences open to him.
2. The offender Hicks has two children with his ex-partner, aged 10 and 9, and is currently in a relationship with Ms Kerrigan who has two children from a previous relationship. He has a mother, a grandmother, a younger sister and two younger brothers. The offender Hicks was in receipt of a Disability Support Pension. He previously worked marking lines on roads in 2013.
3. The offender Hicks' mother gave birth to him at the age of 16. She was emotionally immature and unstable in her teenage years. His father suffered from mental illness, was unstable in his mood and drank alcohol excessively. He was raised by his mother and grandmother after his parents separated when he was 3 years of age due to domestic violence. In 2009, at the age of about 20, the offender Hicks moved in with his father.
4. The offender Hicks has a history of learning difficulties and behavioural problems. He was suspended from school for fighting. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was 14 years of age. His grandmother reported that his emotional problems and learning difficulties had been persistent throughout his childhood and adolescence. He had a history of anxiety and attempted suicide in 2010 and 2011. His symptoms of anxiety improved in his early to mid-20s.
5. Auditory hallucinations in 2009 led to a diagnosis of schizophrenia, but their short-lived nature indicated that they were probably best attributed to the effect of methylamphetamine use.
6. He was sentenced for a domestic violence incident in 2013 and served time in custody in 2014 to 2015. Whilst undoubtedly serious, the current offending is clearly of an entirely different scale to his previous violent offending.
7. Attempts at mood stabilisation by way of medication failed and he did not take any anti-depressant medication or antipsychotic medications from 2015 onwards, and had little medical, psychological or psychiatric follow-up over the last few years.
8. The offender Hicks has an extensive history of substance abuse. He was binge drinking alcohol from the age of 13 to 14 years until his later teens or early 20s. He smoked cannabis from the age of 13, which increased to daily use from the age of 15. His cannabis use decreased and was only sporadic by his mid-20s. From about the age of 16, he started to use methylamphetamine ("ice") on a daily basis and then Ecstasy (MDMA) on weekends throughout his early 20s.
9. His use of ice continued as his main drug of abuse throughout his 20s and he was using as much as an "8 ball" (3.5g) of ice every one to two days between 2016 and 2017, in the latter months of 2020, and in 2021. He also used gamma-hydroxybutyrate (GHB), Xanax and heroin to help him "come down" off ice and was hanging around drug-using peers.
10. He was referred to the Parramatta Drug Court in 2009, as well as the MERIT Program around that time. Around 12 years ago, he was also provided treatment through a local drug and alcohol clinic, which involved treatment with Methadone and some drug and alcohol counselling. More recently in about 2019, he completed the EQUIPS (Foundation) and EQUIPS (Addiction) programs.
11. His family psychiatric history included his father who suffered from bipolar disorder and was often violent. His grandmother was mentally ill, and his younger brother is intellectually disabled.
12. In the months leading up to the offence, the offender Hicks was released from custody on 24 April 2020 and was initially living with Ms Kerrigan, his girlfriend, at Mount Druitt. At times he stayed with his grandmother in Toongabbie.
13. He said to Dr Furst that he was initially clean from drugs in 2020 before relapsing in the latter months of 2020. As at the date of the offence, he claimed he felt "good", and denied hearing any voices, experiencing delusional ideation or having a severe mood disturbance.
14. In 2012, the offender Hicks was assessed as having a full-scale IQ in the borderline to mild intellectual disability range, and impairment in his adaptive behaviours was noted. Also noted was a history of severe trauma, including regular physical abuse at the hands of his father.
15. Dr Furst opined that the offender Hicks meets the criteria for Substance Use Disorder (methylamphetamines), Personality Disorder (borderline and antisocial features) and Intellectual Disability (mild range). As a result of his intellectual disability, at the time of the murder he was suffering from a cognitive impairment, but not such as to provide him with a defence that he was not criminally responsible for his actions. Dr Furst stated, however, that it may have had a bearing on his capacity to control himself at the time of the offending.

Dr Wearne's report

1. Dr Wearne's report was prepared in relation to whether the offender Hicks was fit to be tried. Dr Wearne assessed the offender Hicks for about three hours via audio-visual link, during which he completed about two hours of psychometric testing.
2. As to the offender Hicks' background information, Dr Wearne reported that the offender Hicks said he had loving relationships with his mother and his grandmother and denied any history of neglect, abuse, criminality or substance use under their care. He said he did not have a relationship with his father, stating that his father was incarcerated during his early life. He also said that he was raised in an environment where criminality and violence was common and did not have a positive childhood. He is the eldest of six children (his mother having four children, and his father having two children from a subsequent relationship).
3. The offender Hicks' two children with a previous partner have been adopted and he has no relationship with them. His current relationship with Ms Kerrigan started about three years ago, and he considers his relationship with her two children as positive, considering himself to be their step-father.
4. He told Dr Wearne he struggled to learn to read and write but denied any issues with literacy today. He had a history of detentions and suspensions for behaviours that included fights with other students, damaging school property, truancy and general disruptive behaviour. He left school in Year 9 to join the workforce but had had no employment since 2013, citing his history of incarceration as a factor.
5. The offender Hicks provided a history of his drug use to Dr Wearne, broadly similar to the one provided to Dr Furst, adding that in the months leading up to the murder he also had a four-week period of consistent usage of cannabis. He told Dr Wearne that he had never had treatment for his substance usage. He was placed on a Buprenorphine program approximately eight months before his assessment by Dr Wearne, which he found beneficial and he does not believe he needs any further support for his substance usage.
6. During the testing, Dr Wearne noted the offender Hicks was susceptible to distraction (fidgety and constantly looked around), showed relatively limited social skills and was somewhat childlike in his presentation. The testing of his immediate auditory-verbal attention span was in the "borderline" range (i.e., 2nd percentile) while his working memory and ability to sequence information was in the "low average" ranges (i.e., 16th and 25th percentiles respectively). His speed in performance of a complex task of mental processing was in the "extremely low" range (i.e., 1st percentile). His general intellectual functioning was in the "extremely low" (i.e., 2nd percentile) range, consistent with an Intellectual Disability. His executive abilities were variable, performing within normal limits in his learning and memory for unstructured information and high-order executive skills. Dr Wearne stated that while his intake of information could be limited, his retention of this information, if sufficiently learned, was preserved.
7. Dr Wearne stated, "[h]is background and previous reports would suggest that his intellectual difficulties are accompanied by deficits in his adaptive behaviour throughout his developmental history (e.g., academic and literacy issues and placement in special needs classes). He may therefore satisfy criteria for a Mild Intellectual Developmental Disability (DSM-5) and cognitive impairment under section 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. However, Mr Hicks would need an assessment of his adaptive functioning via an informant report for the diagnosis of an intellectual disability to stand."
8. Dr Wearne opined that the offender Hicks was fit to be tried but that he would benefit from extra consideration during the trial, including extra explanations of what was happening and affording him extra breaks.

Other matters

1. I take into account in the offender Hicks' favour the manner in which the trial was conducted by his counsel. The efficient running of the trial on the offender Hicks' behalf facilitated the course of justice (Sentencing Act, s 22A).
2. I also take into account that the offender Hicks' mental impairment means general deterrence is to be given less weight in the sentencing exercise. Balanced against this, however, is the offender Hicks' likely reduced capacity to control himself and his emotions. This factor means that on his release, absent meaningful therapy or other intervention, he may present more of a danger to the community (Sentencing Act, s 3AI) and accordingly, specific deterrence has a greater part to play in the overall sentencing exercise (Sentencing Act, s 3A(b)).
3. It is of course necessary to ensure the offender Hicks is adequately punished (Sentencing Act, s 3A(a)), he is held accountable and denounced for his actions (Sentencing Act, s 3A(e) and (f)), that the harm done to the victims and the community is recognised (Sentencing Act, s 3A(g)), and his rehabilitation is promoted (Sentencing Act, s 3A(d)). As to rehabilitation, however, I note that there is no evidence of remorse. This lack of remorse goes to the offender Hicks' prospects of rehabilitation. I am also mindful that where there are lengthy terms of imprisonment, the prospects of rehabilitation may well take on less significance. In this case, there is no basis to find the offender Hicks' prospects for rehabilitation anything other than guarded.
4. I accept the offender Hicks' submission that I should make a finding of "special circumstances" under s 44(2) of the Sentencing Act to take account of the offender Hicks' cognitive impairment and to assist in his reintegration to the community.

Starting date of the offender Hicks' sentence

1. The offender Hicks was already serving a sentence when he was charged with murder. It was put on the offender Hicks' behalf that s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) makes it a requirement for a person who is subject to a sentence of 3 years or less, being a sentence for which a non-parole period has been set, being effectively entitled to automatic release at the end of the non-parole period if they are otherwise eligible for parole. But for the offender Hicks being in custody and bail refused, he would have been released to parole on 29 October 2022. Mr Hicks' counsel submits that the time from 29 October 2022, at least, should be credited towards his sentence, and further, based on totality, even more time should be credited. I will commence the offender Hicks' sentence on 29 October 2022. The issue of totality will be reflected in the final sentence I have determined to be appropriate.

The Crown's submissions

1. The Crown submits that I should find: 1. It was at the suggestion of the offender Chamma that the offender Hicks formed an intention to rob Mr Hunter. 2. The intended robbery came about somewhat opportunistically after Mr Salamie told the offender Chamma that Mr Hunter had a significant amount of money and jewellery in the premises. 3. It was the offender Chamma who constructed the toilet roll sheath. This is clear from the evidence of his fingerprints on both inner and outer rolls and on the inside of one of the rolls. 4. The offender Chamma knew that the offender Hicks was armed with a bladed weapon at the time entry was forced. 5. The sum taken from Mr Hunter was in the order of $9000 as indicated to Mr Yeend on 24 December 2020.

The offender Chamma's submissions

1. The offender Chamma accepts that the jury must have accepted, at least: 1. That there was joint criminal enterprise between the offender Chamma and the offender Hicks to rob Mr Hunter, with the offender Chamma having knowledge that the offender Hicks was armed with a knife. 2. That during the course of the robbery, the offender Hicks thrust the knife into the chest of Mr Hunter intending to kill him or cause him grievous bodily harm. 3. That the offender Chamma contemplated in carrying out the joint criminal enterprise of robbing Mr Hunter whilst armed with a knife, the offender Hicks might use the knife with the intention of killing him or causing him grievous bodily harm.
2. Accordingly, in light of the above, the offender Chamma accepts for the purposes of sentencing, that the intended robbery came about somewhat opportunistically after Mr Salamie told the offender Chamma that Mr Hunter had a significant amount of money and jewellery in the premises, and that the offender Chamma knew that the offender Hicks was armed with a bladed weapon at the time entry was forced.
3. It is contended, however, that the Court should reject the other propositions contended for by the Crown on the basis that: 1. There is no direct evidence that it was at the offender Chamma's suggestion that the offender Hicks formed an intention to rob Mr Hunter. 2. Witness G is the only source of evidence that Mr Salamie told the offender Chamma that Mr Hunter had jewellery in his home and his credibility is questionable. 3. There is no direct evidence that the toilet roll sheath had any role to play in the offence. 4. There is no reliable evidence as to whether any money was taken from Mr Hunter's home.

Findings in relation to the offender Chamma

1. I have set out above (when dealing with the offender Hicks) my reasons for forming the view that Witness G was an accurate and reliable witness. Accordingly, in light of that finding, and also in light of inferences which inevitably flow from Witness G's evidence, I find beyond reasonable doubt it was at the offender Chamma's suggestion that the offender Hicks formed an intention to rob Mr Hunter. I also note Witness G's evidence that he observed Mr Hunter wearing gold chains, and that the gold chains could be seen by the offender Chamma during his first visit.
2. Further, I am satisfied beyond reasonable doubt that the toilet roll sheath had a role to play in the offence, specifically as a sheath to protect and conceal the knife used to kill Mr Hunter, given the combination of the following factors: its size and shape (two toilet rolls taped together to extend the length of the sheath); the location in which it was found (inside Mr Hunter's house); the arrow‑shaped slice or cut found within the sheath; and the forensic evidence linking it to the offenders and offending, especially the offender Chamma's fingerprints, both offenders' DNA as well as Mr Hunter's blood. It is clear that the offender Chamma was involved in the construction of the sheath.
3. I take into account that the course of offending involved the discrete, but itself serious, crime of armed robbery (Sentencing Act, s 21A(2)(m)). I take into account that the offence was committed for financial gain (Sentencing Act, s 21A(2)(o)), on the basis I have set out above.
4. The offender Chamma has a limited criminal history including an offence of violence (Sentencing Act, s 21A(2)(d)), although I note this offence was dealt with to finality in the Local Court, thus giving an indication as to its seriousness. His criminal record disentitles him to leniency.
5. As with the offender Hicks, I accept that there was limited planning involved in the robbery, albeit I find that the offender Chamma had an essential role in bringing the offender Hicks into the plan, thus instigating the chain of events which led to the murder. I also take into account that the attack upon Mr Hunter took place over a very short period of time.
6. The aggravating factors conceded to apply in the case of the offender Chamma are: 1. The use of a weapon (although as I set out above, such a factor has little work to do in this case) (Sentencing Act, s 21A(2)(c)); 2. The offence took place in company (Sentencing Act, s 21A(2)(e)). As set out above, I find that the offender Chamma was with the offender Hicks when the stabbing occurred; 3. The offence took place in the home of Mr Hunter (Sentencing Act, s 21A(2)(eb)); 4. The offence was committed while the offender Chamma was on an Intensive Correction Order (Sentencing Act, s 21A(2)(j)).
7. Submissions in relation to objective seriousness were made to the same effect as those made in relation to the offender Hicks. I find that the objective seriousness of the offence in relation to the offender Chamma can be characterised as a grave instance of murder.

Moral culpability

1. It was not in dispute at sentence, and I have found beyond reasonable doubt, that the offender Hicks stabbed Mr Hunter. The jury must have found the offender Chamma guilty of murder on the basis of joint criminal enterprise. I have found beyond reasonable doubt that the offender Chamma was present and that his presence assisted the offender Hicks by intimidating Mr Hunter and emboldening and supporting the offender Hicks. Ordinarily, a participant in such an enterprise who carries out the stabbing would have a greater moral culpability than one who merely stood by ready to assist.
2. As discussed above, I have found the offender Hicks' moral culpability to be reduced on the basis of a combination of exposure to violence and criminality from an early age, clear learning difficulties throughout his life and a cognitive impairment at the time of the offending.
3. The offender Chamma can point to no such factors in his life. I take into account, however, that he was not the person who stabbed Mr Hunter, and thus his moral culpability is reduced.

The offender Chamma - background, psychiatric and psychological history

1. The offender Chamma is a 30 year old man, who was 28 years old at the time of the murder. The offender Chamma's background and psychological history was put before the Court by way of a report prepared by Dr Paul Pusey, Clinical and Forensic Psychologist, dated 22 July 2023.
2. The offender Chamma has a nine year history of criminal offending prior to the current charge, including driving charges, drugs charges and firearms charges, some of which resulted in full-time custody. He has a limited history of violent offending. He was still subject to an Intensive Correction Order for an offence of stalk and intimidate when he committed the present offence.
3. The offender Chamma is the second of four children. His parents' marriage ended when he was 16 to 17 years old. He said he had a good upbringing, at the same time as stating his father was a little violent to them and the Department of Community Services (DoCS) was called because of this. He denied being exposed to antisocial behaviour or drug use. His father was a strict Muslim so there was no drugs or alcohol around.
4. The offender Chamma left school at Year 10, leaving school to support his ex-wife and their child when he was 15 to 16 years old. Following school, he commenced a mechanic apprenticeship which he left after two years. His last period of sustained employment was a long time prior to his most recent arrest. He found it difficult to get a job without a driver's licence.
5. At the time of his offence, he was associating with people he had met in jail. He said he initially did the right thing, hanging out with his foster brother and working, but then "I met some boys from jail I know, and it all went downhill, because I started using and selling drugs".
6. After the offence and prior to his arrest almost a year later, he told Dr Pusey that he stopped those associations and started hanging out with his new partner. He stopped using drugs and started hanging out with his family and seeing his children. This continued until his arrest.
7. He told Dr Pusey he has been with his current partner for three and a half to four years, and for half of that time he has been in jail. He said that she keeps him out of trouble. He also has a good relationship with the mother of his children. She is a correctional officer, and he still considers her to be one of his best friends. The offender Chamma has three children aged 13, 10 and 8, who live with their mother.
8. At the time of his assessment, the offender Chamma said he was free of illicit substances and had been on the "bupadiol program" in custody for eight months, his first such engagement with treatment for drug dependence. He claims to have been "clean since about one month after the murder".
9. He stated to Dr Pusey that two or three months prior to the murder he had started to use ice again, as well as some cocaine. Dr Pusey opined that at the time of the offending the offender Chamma would have met the diagnosis of Substance Use Disorder.
10. As to his mental health, he had been diagnosed with depression and anxiety in custody and has been prescribed medication. He attributed the cause of these conditions as being "the trial, my conviction of murder despite not doing it, what happened and not knowing the length of my sentence".

Other matters

1. I also take into account in the offender Chamma's favour the manner in which the trial was conducted by his counsel. The efficient running of the trial on his behalf facilitated the course of justice (Sentencing Act, s 22A).
2. It is of course necessary to ensure the offender Chamma is adequately punished for the offence (Sentencing Act, s 3A(a)), that the sentence deters him and others from committing similar offences (Sentencing Act, s 3A(b)), the community is protected (Sentencing Act, s 3A(c)), he is held accountable and denounced for his actions (Sentencing Act, s 3A(e) and (f)), that the harm done to the victims and community is recognised (Sentencing Act, s 3A(g)), and his rehabilitation is promoted (Sentencing Act, s 3A(d)).
3. As to rehabilitation, the offender Chamma continues to deny the offending, and has no remorse. He points to the positive changes in his life made shortly after the murder and up until his arrest. Even though he maintains his innocence, he has expressed some appreciation of the tragedy involved in the death of Mr Hunter. In my view, the insight he seems to have developed in relation to his drug use and criminal associations are such that if he were able to maintain abstinence from drug use and continue his positive associations with his family and partner, despite the maintenance of his innocence and lack of remorse, there are some indications that he may have some real prospects of rehabilitation. However, I note again, in cases such as this involving lengthy terms of imprisonment, prospects of rehabilitation take on less significance.
4. It was submitted on the offender Chamma's behalf that I should make a finding of "special circumstances" under s 44(2) of the Sentencing Act to take account of the offender Chamma's risk of institutionalisation and to assist his reintegration to the community. I decline to make such a finding given the length of the non-parole period which flows from the statutory ratio which will give him ample time to assist his reintegration to the community.

Victim impact

1. In the course of the sentencing proceedings, the Court received a number of victim impact statements. Mr Hunter's sister, Ms Karien L Hunter, was one of the authors and she read her statement in open court. The other statements were read by a volunteer.
2. Pursuant to s 30E(3) of the Sentencing Act, I consider that it is appropriate to take these statements into account. I do so on the basis that the harmful impact on the family of Mr Hunter is an aspect of the harm done to the community as a whole by the actions of both the offenders.
3. They are very moving accounts of the unfathomable sadness and loss that they have suffered as a result of the brutal taking of Mr Hunter's life. Mr Hunter's wife, Ms Devi, described Mr Hunter's love for his children, family, music, and dancing. Her family had been broken by the death of her husband, and as a result of the trauma associated with his death, she often gets sick. Ms Devi's children miss their father. He will not get to be there for all their significant moments in their lives and laugh and cry with them.
4. Mr Hunter's older brother, Mr Shayne Hunter, on behalf of his family, described his "baby brother" as fun, cheeky and a strong supporter of his family. He was a gifted and kind man who gave to his community. Mr Shayne Hunter stated his "children no longer have their generous uncle to call and talk to, to send over gifts and the friendly fierce banter he was known for." The health of his parents has suffered as a result of Mr Hunter's death, they are now a "mere shadow of what they used to be".
5. Mr Hunter's mother, Ms Latta Hunter, explained that Mr Hunter was born three months premature, he was a fighter with a strong desire to live, destined to achieve great things. She described her son as an adventurer who loved nature, animals, birds, and monarch butterflies. Her son was a "peacemaker" who "campaigned for togetherness". He thrived amongst his community and was loved by his family. Mr Hunter adored his mother, and she adored him. The loss of her son has terrified and traumatised her, impacting upon her health. She suffers with the knowledge her son "suffered brutally" and is overwhelmed with pain and grief.
6. Mr Hunter's father, Mr Ronald John Hunter, reflected fondly on Mr Hunter's childhood, and described his passion for music, dance, animals, and plants. The death of his son has destroyed his world, he has suffered from "extensive medical problems" leading to hospitalisation.
7. Mr Hunter's younger brother, Mr Lee J Hunter, reminisced on Mr Hunter's surprise visits from Australia, his talent for dancing and their joint love for fishing. He shared the pain of being robbed of his fishing partner and closest family member.
8. Ms Karien L Hunter, the sister of Mr Hunter, explained that a few months before Mr Hunter was killed, she had moved to Sydney to be near him. It was impressed upon the Court how painful it was for her to lose her "dearly loved and cherished brother" and how his death has fractured their family. She explained that she is sickened when imagining the horror and pain her brother experienced as the attack unfolded. Since the death of her brother, she has developed post-traumatic stress disorder and suffers from debilitating tremors and anxiety.
9. The victim impact statements were powerful and gave the Court a better understanding of who Mr Hunter was and how deeply his death impacted his family and loved ones. I am fully aware that no mere words, nor the sentences I impose, can mitigate their loss or assuage their grief. But it is important that the impact of the offenders' crimes upon the loved ones of the victim be recognised and never forgotten. On behalf of the Court, I extend my sincere condolences.

"Comparable cases"

1. The parties referred me to a number of cases said to be relevantly comparable. I have considered each of them together with some additional cases. [1] My attention was also drawn to sentencing statistics of both head sentences and non-parole periods for the offence of murder following a plea of not guilty.

Parity

1. The sentencing principle of parity between offenders is well known and must be borne in mind. It was common ground between the Crown and the offenders that absent other factors, the offender Hicks' culpability was greater than that of the offender Chamma. However, the offender Chamma committed the offence whilst on conditional liberty, and unlike the offender Hicks, did not suffer from any cognitive impairment. In the case of the offender Chamma, I have not made any finding of special circumstances. The final sentences imposed reflect these differences.

Sentence for the offender Chamma

1. Taking into account all the matters I have referred to above, I impose a sentence of 21 years' imprisonment. I impose a non-parole period of 15 years and 9 months with the sentence to commence on 10 November 2021.
2. Samir Chamma, the offence of murder is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and its application to the offence you have committed.
3. Samir Chamma, for the murder of Warwick Hunter I sentence you to imprisonment for 21 years. Pursuant to s 44(1) and (2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I set a non-parole period of 15 years 9 months commencing on 10 November 2021, and an additional term of 5 years 3 months commencing on 10 August 2037 and ending on 9 November 2042.

Sentence for the offender Hicks

1. Taking into account all the matters I have referred to above, I impose a sentence of 23 years' imprisonment for the offender Hicks. Reflecting the finding of special circumstances, I impose a non-parole period of 16 years with the sentence to commence on 29 October 2022.
2. John Hicks, the offence of murder is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and its application to the offence you have committed.
3. John Hicks, for the murder of Warwick Hunter I sentence you to imprisonment for 23 years. Pursuant to s 44(1) and (2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I set a non-parole period of 16 years commencing on 29 October 2022, and an additional term of 7 years commencing on 29 October 2038 and ending on 28 October 2045.

Endnote

1. R v Carbone [2022] NSWSC 373; R v Keleklio; R v Sinai [2022] NSWSC 62; R v Burns (No 2) [2022] NSWSC 140; R v Cavanagh, McIvor & O'Keefe [2021] NSWSC 746; R v Dion [2021] NSWSC 1043; R v Fletcher [2020] NSWSC 1478; R v Hickson (No 4) [2020] NSWSC 340; R v Fadi Shamoun [2012] NSWSC 716; R v Karimi; R v Khoury; R v Mir (No. 11) [2013] NSWSC 1761; Mir v R [2022] NSWCCA 132; R v Lockett [2013] NSWSC 1555; R v Brown [2013] NSWSC 1557; Brown v R [2015] NSWCCA 11; R v Marwan Jubraeel [2014] NSWSC 838; Jubraeel v R [2015] NSWCCA 131; R v Ethan McKellar; R v Bevan McKellar [2014] NSWSC 1243; R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764; R v Colin Maxwell Farrow (No 3) [2015] NSWSC 323; R v Kelsall [2015] NSWSC 480; Kelsall v R [2017] NSWCCA 240; R v Katsis [2015] NSWSC 1890; R v Swan; R v Kimura (No 2) [2016] NSWSC 1819; R v Evans (No 3) [2017] NSWSC 1523; R v Petryk, Daniel [2018] NSWSC 119; R v Afu; R v Caleo (No 17) [2018] NSWSC 1127; R v Jaghbir (No 4) [2020] NSWSC 1704; R v Dukagjini (No 2) [2021] NSWSC 1668; R v Garvey; R v Jones [2021] NSWSC 1147; R v Coskun (No 5) [2022] NSWSC 1216; R v Batak (No 5) [2022] NSWSC 1217; R v Douglass (No 2) [2023] NSWSC 465. 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: 01 September 2023