R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May

Supreme Court of NSW|2016-09-30|Before: Rothman J, Gleeson CJ, Dowd JJ

Solicitors: Office of the Director of Public Prosecutions (Crown) Alexander Lawyers (Co-offender, Azam Charbaji) Oxford Lawyers (Co-offender, Haysem Charbaji) Blair Lawyers (Co-offender, Jamieson) File Number(s): 2015/5665; 2015/5907; 2015/26215 Publication restriction: NON PUBLICATION ORDER IN RELATION TO INFANT SONS OF OFFENDER JAMIESON. NON PUBLICATION ORDER IN RELATION TO WITNESS CL: THE NAME OF THE WITNESS TO BE CALLED BY THE CROWN, THE ADDRESS OF THE WITNESS TO BE CALLED BY THE CROWN, OR ANY FAMILY OF THE WITNESS OR ANY MATTER THAT WOULD IDENTIFY THE NAME, ADDRESS OR PHONE NUMBER OF THE WITNESS OR HIS FAMILY, WILL NOT BE PUBLISHED AND THE WITNESS SHALL BE REFERRED TO AS CL.

remarks on sentence

HIS HONOUR: Azam Charbaji and Haysem Charbaji have each been convicted after trial of the murder of Dane McNeill. In the same trial, Lexy Jamieson was convicted of accessory after the fact to murder. The Court is required to impose sentences on each of the offenders.

The Process of Sentencing

Murder is the most serious offence in the criminal calendar. To those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. A court, in assessing an appropriate sentence, is required to assess the objective seriousness of the offence committed, within the range of conduct with which such an offence is concerned. Thus, even, as here, where one is dealing with murder (or accessory after the fact to murder), it is necessary to assess the conduct of each offender to determine where, in the range of seriousness with which that particular offence is concerned, this offence fits.
To the uninitiated, to speak of any murder as a "low-range offence" seems anathema. But such a comment relates to a comparison with other murders that may be committed and for which a sentence under the law must be imposed. A maximum sentence, which in the case of murder is a sentence of life imprisonment which, in NSW, is served without eligibility for parole, is reserved only for the worst category of offence. Nevertheless, whether a particular offence is in that category is not ascertained by imagining conduct that could be worse. Unfortunately, human imagination and ingenuity could always imagine a worse scenario. The Court must assess objectively the features of the offence and the circumstances of its commission, in order to determine whether it is in the category of a worst case or lower down the scale of seriousness within a notional range between the lowest level of culpability and the worst category of case.
The purpose of sentencing any offender is to resolve what are often, if not necessarily, conflicting sentencing objectives or purposes. In serious crimes such as murder, the importance of punishment and public deterrence loom large. Of importance are the protection of society, personal or specific deterrence (being the notion that the individual offender is to be deterred from future conduct of like kind), general deterrence (or public deterrence, being the deterring of others from committing similar offences), retribution and reform.
Each of these objectives, but particularly the protection of society, specific and general deterrence, punishment and the need for rehabilitation must be assessed having regard to the gravity of the circumstances, viewed objectively, within the range of offending comprehended by the offence charged. These point, most obviously, to the protection of society, deterrence of the offender and deterrence of others who might be tempted to offend, and to retribution.
Considerations of reform or rehabilitation of the offender may also be significantly affected by the objective circumstances of the offence, but they are more directly affected by the subjective circumstances of the offender and the capacity for the offender to be rehabilitated. The capacity for, and the likelihood, if any, of rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender.
After assessing the objective seriousness of the offence and dealing with the subjective circumstances of each offender, as an individual, the Court is required to impose an appropriate sentence by weighing each of these factors. The process is sometimes described as "intuitive synthesis" or "instinctive synthesis". Simply, it takes each of the objective circumstances of the offence and each of the subjective circumstances of each offender and synthesizes them to achieve the purpose of sentencing already described.
Every murder is serious. Most assistance given to persons who have committed murder is serious. Every murder involves the taking of human life by a person who has a state of mind that elevates the seriousness of the offence to that which is the most serious of crimes in the criminal calendar.
Murder is described as the most serious of offences because it involves the taking of human life with a state of mind that renders it the most serious and, in our society, the sanctity of human life is fundamental. The legislature has fixed a maximum sentence for murder of life imprisonment (which, in this State, means the person stays in prison for the rest of his or her natural life) and 25 years' imprisonment for accessory after the fact to murder. The standard non-parole period for murder is 20 years' imprisonment and there is no standard non-parole period for accessory after the fact to murder. The maximum sentence and the standard non-parole period, if any, act as guideposts in the determination of an appropriate sentence.
The Court should deal with one aspect, in particular. The Court has had the advantage of victim impact statements which have been tendered and read. First, those victim impact statements deal with material that, in my view, is impermissible, namely, the sentence that should be imposed: see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) ALJR 372. Secondly, understandably, the victim impact statements deal with the tragic loss of a son and sibling. The Court cannot turn back the clock in a way which relieves or ameliorates that loss. The objectives of sentencing have been outlined. It is those that dictate the course that the Court must follow.

Facts

I will not deal in any great detail with the evidence, which was summarised by the Court in the course of summing-up. The facts may be stated shortly. In or about May or June 2014, damage was effected to Haysem Charbaji's car. It was damaged, inferentially, in the following circumstances, accepting, as I do, the evidence of Jade Patterson.
The damage to the car was approximately $4,300. It occurred when Jade Patterson was "invited" to assault a woman, who was pregnant, had been smoking ice, and, after refusing, rang the women's partner. There is no direct evidence of what followed thereafter but, it seems, that the partner attended on the car and Haysem Charbaji and kicked in the door or doors of the car and caused the damage.
The evidence of text messages and calls to Jade Patterson as to the debt was that $4,300 (approximately) was claimed against Jade Patterson, on the basis that it was she who caused the partner to attend. Jade, who was the deceased's girlfriend, understandably did not accept that she owed the money and claims were made against the deceased for the money. Claims were made for $4,300 on Facebook and in messages.
At one stage, Jade sought to purchase drugs for the deceased and paid $1,300 for some ice, but was given a bag of salt by Haysem. This occurred on the same night as the alleged damage to Haysem Charbaji's car in or about June 2014.
After the salt substitution incident, Jade Patterson and the deceased received messages from Haysem Charbaji raising the issue of money owed for the damage to the car which was said to be $3,000 (arising from the original $4,300 less the $1,300 received for the salt).
On 15 July 2014, the McNeill family returned from holidays in Forster. The deceased's ute was missing and, on the evidence before the Court, which the Court accepts, the ute was used to pay another debt owed by the deceased. The evidence was relevant because it disproved the motive of another that might otherwise have been suspected (and was originally the subject of some investigation).
On Wednesday 16 July 2014, the deceased left the family home and on that day or the day following went to stay with Chris Young, a friend. Shortly after starting to live at that home, Chris Young sent a text to Haysem Charbaji informing him that the deceased wanted drugs and that he, Chris Young, would cover any cost that the deceased could not.
On the morning of Thursday 17 July 2014, the deceased's mother called the deceased and made an appointment for lunch. On the same day, Peter Reid contacted the deceased to purchase ice from the deceased and the deceased asked him for a loan.
In the early hours of Friday 18 July 2014 (some time shortly after midnight on Thursday/Friday), Jade Patterson, who at this stage was not in a full-time relationship with the deceased, saw the deceased in Sadlier with Haysem Charbaji. Shortly after, at approximately 5am, Peter Reid met up with the deceased at McDonald's Casula and purchased the drug, ice, from him. He was in a Commodore (although described as black, the Court accepts as silver) in which there was another occupant. The occupant was described as having a tattoo under his left eye, which, in size, was less than a five cent piece. The tattoo accords with a tattoo on Haysem Charbaji. The deceased was wearing a white scarf and there is some photographic footage which discloses the passenger in the silver Commodore wearing an obviously white accessory around the neck.
Thereafter, still on the Friday, Chris Young received a text from the deceased saying he was waiting for Haysem Charbaji. It is necessary to refer to the evidence of Brendon Gallo, a school friend of Dane McNeill.
Mr Gallo met with the deceased that evening at a pub near the Heckenberg apartment and the deceased's mobile service was turned off at Bonnyrigg at 5.09pm. I should note that, when asked by his mother, the deceased, unusually, did not disclose, on the Friday, in whose company he was. I take the view that by Friday 18 July 2014 the deceased was in the company of Haysem Charbaji.
When Jade Patterson saw the deceased and Haysem Charbaji, a conversation occurred with her which reiterated issues associated with damage to a car.
On 17 July 2014, Brendon Gallo was residing with Haysem Charbaji and Lexy Jamieson in their apartment at Heckenberg. Lexy's son was also in residence. The apartment was close to the pub at which he met with the deceased. Brendon Gallo continued to reside at the premises for the whole of the time during which the murder occurred.
As earlier stated, Brendon Gallo met with the deceased on Friday 18 July 2014, at the pub near the Heckenberg apartment. Haysem Charbaji had organised with Brendon Gallo to meet with the deceased and that they were going to pick him up because "he needs help with money".
Mr Gallo walked to the pub with Azam Charbaji and met with the deceased outside the pub in the car park. The deceased was in his car, a Subaru hatch, and Mr Gallo and Azam Charbaji both entered the deceased's car. There they sat, talked for a bit and smoked ice. The deceased provided the ice that was smoked. They stayed there for approximately one hour and all of them went back to the apartment. When they returned, those in the apartment were Lexy Jamieson, her son, the deceased, Brendon Gallo, Azam Charbaji and Haysem Charbaji.
While, it seems, Azam Charbaji and Haysem Charbaji could not overhear the conversation, the deceased approached Brendon Gallo and asked "for money because he was going to get bashed over a debt that he owed".
Shortly after that conversation both Azam Charbaji and Haysem Charbaji commenced to "bash" the deceased. Mr Gallo saw them punch him repeatedly in the face, but cannot remember how many times.
The deceased was also stabbed in the back, according to Mr Gallo, who said that Azam Charbaji stabbed the deceased in the deceased's lower back, with a steak knife from the kitchen drawer. Mr Gallo saw Azam Charbaji get the knife from the kitchen. While Azam Charbaji was getting the knife, Haysem Charbaji was wrestling with the deceased. The deceased was defending himself requesting that each of them stop what they were doing.
When stabbed, unsurprisingly, the deceased screamed and there was blood visible. Haysem Charbaji grabbed Chux cloth and tried to stop the bleeding and taped the Chux onto the deceased. The deceased was screaming while Haysem Charbaji taped the Chux onto the deceased's wound.
The deceased was then force-fed Xanax, tied up with tape and put in the laundry. Mr Gallo was unable to recall who fed the deceased the Xanax. However, he knew it was Xanax, because he had seen the bottles, being two bottles, and he saw twelve tablets go into his mouth. He also saw the deceased swallow the tablets.
At that point in time, Mr Gallo was about two metres from the deceased in the lounge room and both Azam Charbaji and Haysem Charbaji were "right next to" the deceased.
As earlier stated, the deceased was tied up and placed in the laundry. He was tied with silver duct tape. Haysem Charbaji was the person who placed the deceased in the laundry in which there was only a washing machine and sink and the laundry door was closed. Mr Gallo was told to watch the door in case the deceased tried to come out, because, he was told, there was a baby in the house.
Mr Gallo said that he watched the door and did so because he was scared of the Charbaji brothers turning on him. During the time that Mr Gallo was watching the laundry door, Azam Charbaji, Haysem Charbaji and Lexy Jamieson went to sleep. Azam Charbaji slept on the lounge and Haysem Charbaji and Lexy Jamieson slept in their room. The child was asleep in his room. Mr Gallo sat on the floor in the hallway, outside the laundry. He stayed awake and he was "scared for his life". He did not hear Dane McNeill make any noise.
During the time that Azam Charbaji and Haysem Charbaji were performing the foregoing acts on the deceased, Lexy Jamieson was "just sitting there" and, according to Mr Gallo, said nothing. She was about two metres from the deceased during the beating and the administering of the first set of drugs.
The next day, the deceased was taken to Cartwright. Apparently, the deceased could walk with assistance. The deceased was limping, but was saying nothing. His face disclosed distress. Mr Gallo could not see bleeding, at that time.
The blood in the Heckenberg apartment was cleaned from the floor with Chux by Haysem Charbaji and Brendon Gallo. Mr Gallo was unaware whether anyone else assisted at that point.
The house at Cartwright was the house of Azam Charbaji. The four of them sat in the lounge room of the house and Azam Charbaji and Haysem Charbaji discussed with the deceased the debt that he owed. The deceased was going to his grandparents to ask for money. They all then smoked some ice, which had been in the possession of Haysem Charbaji. The deceased also smoked ice, at that point.
Mr Gallo recalls that the deceased said words to the effect that he would go to his grandparents' home and they would give him money and Haysem Charbaji confirmed that course by saying "alright, we'll do that". It was made plain during the course of that conversation that the money that was owed was for "damage that was done to a car".
Haysem Charbaji informed Mr Gallo of the damage to the car, in circumstances where Haysem Charbaji was at a pub and someone called a person, who apparently attended and kicked the car door. He does not recall the names of the people mentioned as to the damage. Nor does he recall being told how the deceased was connected to the damage.
Apparently, Haysem Charbaji said to the deceased: "we'll put you in the shower and you can have a shower and then you can go". After which, Haysem Charbaji and Azam Charbaji took the deceased to the bathroom and brought in a chair on which the deceased could sit. Mr Gallo remained in the lounge room.
When Haysem Charbaji and Azam Charbaji took the deceased into the bathroom, there was a scream from the deceased. It was about 30 seconds after they had entered the bathroom. Haysem Charbaji asked for some Chux and a plastic bag. Mr Gallo gave Haysem Charbaji the plastic bag and the Chux and went back and sat in the lounge room. The Chux was in a roll; and the plastic bag was sitting on top of the cabinet in the lounge room. The bathroom door was open, but Mr Gallo could not see into the bathroom and he did not hear a shower going. No one else was in the house and all three men were in the bathroom, while Mr Gallo was in the lounge room.
Mr Gallo thought about leaving, but was "too scared to move". He was scared of Haysem Charbaji and Azam Charbaji turning on him. Nor did Mr Gallo have a telephone.
Azam Charbaji and Haysem Charbaji were in the bathroom with the deceased for about five minutes before Haysem Charbaji came out to check if Mr Gallo was still there. After another five minutes they came out of the bathroom. In the meantime Mr Gallo heard the deceased screaming a lot and screaming out "help".
Haysem Charbaji came out of the bathroom and indicated to Mr Gallo that they would go back to the Heckenberg apartment and, once there, told Mr Gallo to go inside and grab the Xanax off Lexy Jamieson and come back to the car. Haysem Charbaji told Mr Gallo that they needed more Xanax, because the deceased was screaming and wouldn't stop.
Mr Gallo went inside and obtained a bottle of Xanax from Lexy Jamieson, walked back to the car and they both returned to the Cartwright house. Haysem Charbaji told Mr Gallo to run inside and give the Xanax to Azam Charbaji. He did so and was told to wait at the door, while Azam Charbaji spoke to Haysem Charbaji. Azam Charbaji then approached the car and seemingly spoke to Haysem Charbaji, but Mr Gallo could not hear what was said.
When Azam Charbaji returned, he had in his possession a ratchet (also described as a spanner and other terms) and, as Mr Gallo walked back to the car, he heard bangs and screams. He shut the door of the car and he and Haysem Charbaji drove off. He recognised the screaming as being the deceased's voice.
Relevantly, Mr Gallo slept on the lounge at the Heckenberg apartment, while Haysem Charbaji and Lexy Jamieson slept in their room. Azam Charbaji was not with them.
The next day Haysem Charbaji told Mr Gallo that he had to go and move the deceased's car. They went to Merrylands, did a petrol run, in which they obtained petrol but did not pay for it, and then went to a shop to purchase a suitcase which was said to be for Lexy.
During the petrol run, according to Mr Gallo, he was driving the deceased's car and Haysem Charbaji was driving the Lexus. It was Haysem Charbaji's idea to do the petrol run. It was also Haysem Charbaji's direction to buy the suitcase of a size that would be around Haysem Charbaji's size as if he "was to crouch down".
Mr Gallo bought the suitcase, while, according to Mr Gallo, Haysem Charbaji was in the car park, waiting. Evidence of the purchase (and shoplifting) of the suitcase was adduced and it is the suitcase that, inferentially, ultimately accommodated the deceased.
After purchasing the suitcase, they drove to the Heckenberg apartment and then to the house at Cartwright. At the apartment, Mr Gallo and Haysem Charbaji smoked more ice.
Mr Gallo took the suitcase into the house at Cartwright and, as he walked inside, could smell something. He then saw Azam Charbaji in the back room with the deceased in sheets and another suitcase. The deceased had already died. The suitcase that Azam Charbaji was then using was not big enough to fit the deceased's body and Azam Charbaji asked Mr Gallo to help him move the deceased's body from the first suitcase to the suitcase purchased by Mr Gallo. They moved the body into the suitcase.
They placed the suitcase into the boot of the car. When they were doing so, Haysem Charbaji was sitting in the car. They also placed a black jerry can in the boot. The jerry can was obtained from the house at Cartwright. They drove to the petrol station at Holsworthy to get fuel for the jerry can. Mr Gallo drove and Azam Charbaji was the passenger. Mr Gallo filled up the jerry can and paid for it in cash provided by Haysem Charbaji, who was, at that time, in the Lexus. They drove around looking for somewhere to dispose of the body.
They could not find a place that they considered appropriate to place the body. There were issues with police and an incident at the Menai shops. Azam Charbaji and Mr Gallo caught a taxi at Liverpool Train Station and met Haysem Charbaji at Casula. The Lexus was parked at Casula and Haysem Charbaji got into the taxi and they went to the Heckenberg apartment. At the apartment they saw Lexy Jamieson. They were at the apartment for about 15-20 minutes and caught another taxi to Cartwright. There, at the shops, Mr Gallo and Azam Charbaji purchased bleach and more Chux. They purchased around 5-6 bottles of bleach and a whole role of Chux. Azam Charbaji and Mr Gallo then cleaned the bathroom at Cartwright with the bleach.
The bathroom had already been cleaned, but Azam Charbaji told Mr Gallo to bleach all the walls and the floor. After sleeping at the house at Cartwright, they were driven back to the Commodore, which Mr Gallo then drove with Azam Charbaji as a passenger and the body in the boot of the car.
One or other of Lexy Jamieson or Haysem Charbaji told Azam Charbaji to buy some kerosene. Both Lexy Jamieson and Haysem Charbaji were heard in the phone call, but it is not clear which of the two directed Azam Charbaji to buy the kerosene. Therefore, I cannot take that direction into account against Lexy Jamieson.
Azam Charbaji and Mr Gallo then went and purchased kerosene for which Mr Gallo paid cash from the money given to them earlier by Haysem Charbaji. He had understood from the conversation in the car that the kerosene was for the purpose of pouring onto the suitcase and over the deceased in order to set it alight.
Azam Charbaji and Mr Gallo drove to a Reserve at Picnic Point and Mr Gallo and Azam Charbaji stepped over the gate. Mr Gallo dragged the suitcase, containing the body, to the point at which it was ultimately found. He poured the kerosene and petrol on the suitcase, having opened the suitcase, and poured the kerosene over the deceased, in accordance with directions given to him by Azam Charbaji.
The movements of the persons involved in this conduct is corroborated by significant evidence. Ultimately, the conduct of Azam Charbaji and Haysem Charbaji (and that of Lexy Jamieson) comes directly, and only, from the evidence of Mr Gallo. Mr Gallo was, plainly, on the foregoing account, involved in the conduct. If he were, as he says, the subject of significant duress (or perceived duress), he may well not be guilty of any criminal offence.
The jury were instructed that if they did not believe the account of Mr Gallo, beyond reasonable doubt, they could not convict either Azam Charbaji or Haysem Charbaji. They convicted each of them of murder.
They were addressed at length by counsel as to why they ought not believe Mr Gallo. Apart from the warnings given by the Court that were pre-empted by counsel for the accused, there was some inconsistency in the evidence of Mr Gallo. However, that inconsistency seemed to be confined to the timing of events. On Mr Gallo's evidence, he was consuming ice, sleeping at odd times and not sleeping during the night on at least one occasion. His timing of events, whether something occurred in the morning or afternoon, for example, is bound to be inaccurate. He also lied to Police in relation to a car and, initially, about these events. He also did not seek Police or other help on a number of occasions during these events. Nevertheless, the jury believed Mr Gallo and, in my view, rightly so.
Mr Gallo's demeanour was such that he was sobbing in evidence and could be heard sobbing uncontrollably outside the courtroom immediately after a break. He did have his head in his hands, from time-to-time. It was suggested by counsel that he was embarrassed as to his wrong-doing. That may be so. It may be that he was distressed at the requirement to retell the events. It matters not. His demeanour was such that he should be believed on all issues except timing.
The one qualification, which I make to the foregoing, is that it may be, consistent with the warnings that I gave the jury on at least two occasions, that Mr Gallo overstated the level of duress that he perceived or suffered. If so, he was involved more intimately in the joint criminal enterprise undertaken by Azam Charbaji and Haysem Charbaji. Again, it matters not. I do believe him on the essential matters relating to the infliction of the injuries (the knife wound and it seems the beating with the ratchet and the administration of an overdose of Xanax, each of which was a substantial cause of the death of the deceased).
The foregoing pays little attention to the role of Lexy Jamieson. The charge against Lexy Jamieson is a significantly less serious charge than the charge of murder. Further, the Crown has chosen not to charge Lexy Jamieson with accessory before the fact to murder (a charge more serious than accessory after the fact to murder). As a consequence, there are significant limitations on the material adduced against Lexy Jamieson. This, therefore, requires the Court to deal with the evidence of CL, a witness in respect of whom there continues to be an order supressing his identity.
CL knew Lexy Jamieson and had known her for approximately six years. He told Police in or about October 2014 that he had a conversation with Lexy Jamieson in July 2014 at McDonald's at Bass Hill. That conversation was had in the presence of Ahmed Khalil. Mr Khalil was not called by the Crown. CL's evidence in Court was most unsatisfactory. He made it clear that he was lying in evidence in Court and alleged that he was lying in the original statement made in October 2014. He alleges that the conversation, to which he attested in the statement of October 2014, that he said occurred in July 2014 "didn't take place". I do not believe him on that issue.
After examination and cross-examination (including cross-examination by the Crown under s 38 of the Evidence Act 1995), it was fair to say that the evidence was left in an unsatisfactory state. CL said that, concerning the truth of the statement given to Police on 29 October 2014, that "well half of it was lies" (Transcript, p 611). Further, he said that "I fluffed up a lot of the statement" (Transcript, p 621, line 44).
On 4 November 2014, CL wore a listening device in a conversation with two people, one of whom was Lexy Jamieson. The terms of that conversation cannot be denied (at least to the extent it can be heard). Some of that conversation confirms the terms of the conversation earlier said to have occurred in July 2014.
Given the timing of events, already adduced from other evidence, it is clear that Azam Charbaji and Haysem Charbaji changed their mind as to the manner in which they should dispose of the body. They did so after the conversation on the telephone in the car in which the direction was given to purchase the kerosene. Further, despite the fact that the bathroom had already been cleaned at the house at Cartwright, Azam Charbaji and Mr Gallo cleaned it again with bleach on both the floor and the walls. They used excessive amounts of bleach.
The method of disposal of the body and the use of bleach on the floor and walls is consistent with what was said by CL was the advice he and another gave to Lexy Jamieson in the July conversation. Nevertheless, it does not seem to me that I am entitled to draw from CL's evidence, other than that contained in the listening devices, material against Lexy Jamieson. I am satisfied Lexy Jamieson cleaned, with bleach, the affected areas at the Heckenberg apartment. This occurred after the murder. I am not satisfied to the requisite standard that she was involved in the cleaning of the house at Cartwright.
Two things should be noted. First, CL maintained he was terrified by Azam Charbaji and Haysem Charbaji. Secondly, CL, on leaving the witness box apologised to the Court (or at least to the Judge), although the apology was not recorded in the Transcript.

Objective Seriousness/Subjective Circumstances

The evidence establishes, and the jury accepted, that the deceased was detained by Azam Charbaji and Haysem Charbaji for a period from Friday evening until sometime on Sunday, by which time he had died. During that time, the deceased was stabbed, beaten and administered a lethal dose of Xanax.
After beating, stabbing and force-feeding the deceased drugs, Azam Charbaji and Haysem Charbaji decided to place his body in a suitcase and burn it. They also decided to bleach all areas with which the deceased came in contact. These latter steps were taken to avoid detection.
Likewise, Lexy Jamieson cleaned with bleach the Heckenberg apartment, even though it had already been cleaned, in order to prevent one or both of Azam Charbaji and Haysem Charbaji from arrest or prosecution for the murder of the deceased.
The Evidence Act does not apply to sentencing proceedings (see s 4 of the Evidence Act), but I am required to be satisfied beyond reasonable doubt of any matter that I take into account against any of the accused, including Lexy Jamieson, for the purpose of sentencing. I am only required to be satisfied on the balance of probabilities of those matters that I take into account for their benefit.
While I am satisfied that Lexy Jamieson advised either or both Azam Charbaji and Haysem Charbaji of the need to burn the body and bleach the walls, I am not satisfied of those facts beyond reasonable doubt. I therefore do not take them into account.
Further, even though Lexy Jamieson was present during much of the criminal conduct of either or both Azam Charbaji and Haysem Charbaji at the Heckenberg apartment and was aware of the conduct, I do not take into account the supply by Lexy Jamieson of the Xanax tablets, which were ultimately administered to the deceased. Such conduct, given that the purpose of it was plain, would amount to accessory before the fact, a more serious charge than that with which Lexy Jamieson is faced and to take that supply of Xanax into account would contravene the principles in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
The Charbaji brothers detained, beat, tortured and killed the deceased. The Crown submits this is not in the worst-case category of murder. Certainly there are not multiple victims. Further, at least at the outset of the criminal conduct, it seems that the Crown is unable to prove an intention to kill, as distinct from an intention to cause grievous bodily harm.
By the time the suitcase was purchased by Mr Gallo, a time before the deceased had died, it was clear that the Charbaji brothers required the purchase in order to dispose of the body by dumping it somewhere. If there were an intention to kill at a time prior to the administering of the second dose of Xanax, it is difficult to describe the conduct as not in the worst category. The Crown's concession seems to be based upon the proposition that an intention to kill was not proved to be the original intent. Nor was the killing planned, in the sense that, at the time that their conduct commenced, there may well have been "merely" an intention to cause grievous bodily harm.
It would be most inappropriate for the Court to come to a conclusion that this conduct was in the worst category, in circumstances where the parties have conducted the case on the basis that the Crown was alleging otherwise. Nevertheless, the Court considers, measured by objective standards, that the offending conduct was well above mid-range in seriousness and approaching a worst case scenario. In the case of the two charges of murder, the only appropriate sentence is a full-time custodial sentence.
Given Lexy Jamieson's knowledge of what had occurred, the attempt to prevent one or other of Azam Charbaji or Haysem Charbaji or both from criminal prosecution renders the conduct more morally reprehensible. Despite that, I take the view that Lexy Jamieson was in a relationship with Haysem Charbaji and, in part, the offence was committed for other reasons, as well as the major or substantive reason of preventing their detection. Those other reasons were the relationship itself and support for her partner and the prevention of her own prosecution, albeit that the latter mentioned possibility would be remote.
In all of the circumstances, I consider the objective seriousness of the conduct of Lexy Jamieson to be slightly above the mid-range in seriousness and I will deal with whether a full-time custodial sentence is appropriate, after dealing with the subjective circumstances.

Subjective Circumstances of Azam Charbaji

Before the Court is a report of a Forensic Psychiatrist, Dr Richard Furst, on Azam Charbaji relating to his mental condition as at present and a report of 2014 relating to his mental condition at a point in time relating to another offence. The earlier proceedings were proceedings relating to assault occasioning actual bodily harm and the report is dated 6 December 2014. The latter report is dated 30 November 2016.
The report describes Azam Charbaji as a 26 year old single Lebanese male, although I had understood and continue to understand that Azam Charbaji is Australian. I shall assume the reference to Lebanese relates to his cultural background.
Azam Charbaji was born in Sydney, has two brothers and four sisters. He attended school and was expelled in year 11, whereupon he attended senior college. He had a history of poor attention in class and restlessness. He struggled with impatience and would often get irritated or angry if he had to wait for things or if things were not done the way that he wanted.
Azam Charbaji described himself as being bullied at school and being picked on by his teachers. He was not diagnosed with ADHD. The bullying, according to Azam Charbaji, caused him to "fight back"; starting in about year 9, continuing into year 10 and then to year 11. He developed an interest in Thai kickboxing. His father owned two gyms. His father died in 2013.
His mother, who had previously worked as a hairdresser, was in custody for over five years and was released in approximately 2014. He was raised by his oldest sister after his mother had abandoned the family in 2003, when Azam Charbaji was about 13 years' of age. He worked as a welder in construction and did bricklaying from the age of 15 or 16 years until about the age of 22. He is religious, attends the Bankstown Mosque on a daily basis and is devout.
The Psychiatrist's report indicates that Azam Charbaji gave evidence of being "secretly watched" and "protected from bad people", which the psychiatrist described as highly suggestive of paranoid thinking. These, according to Azam Charbaji, commenced when he was a child.
Azam Charbaji does not consume alcohol. He has used cannabis and did so from about the age of 16 years into his early 20's. At that time he was smoking up to 14 grams of cannabis per day but ceased in the early months of 2014. He has a history of abusing OxyContin and Xanax and was using 25-50 tablets of Xanax per day prior to his arrest. He smoked ice from about 2014 and had used heroin for about 2½ years prior to his arrest. He also used Ecstasy (MDMA), but only occasionally and participated in consuming GHB at parties about once per month. He has never been involved in drug and alcohol counselling or rehabilitation. He is currently medicated on Seroquel (800mg daily, orally), Zoloft (200mg daily, orally) and Avanza (15mg daily, orally).
Apparently, Azam Charbaji described the conduct in which he engaged and for which he has been found guilty of murder as him having done "something that led to [the deceased's] death; it was an accident". He went on to describe to the psychiatrist that "it's not good. It's ruined my whole life. This poor bloke. The effect on his family."
In the opinion of the psychiatrist, Azam Charbaji meets the criteria for diagnosis of schizophrenia; substance use disorder (in remission); persistent neurocognitive disorder (acquired brain injury); and anti-social personality traits. Azam Charbaji has only limited insight into the schizophrenia and has significant functional impairment as a consequence of the foregoing, combined with the acquired brain injury, substance use disorder and his underlying emotional/personality disorder, being the anti-social traits earlier mentioned. He is, according to the psychiatrist, likely to remain chronically impaired in this respect.
It was suggested, in submissions on sentencing, that the psychiatric assessment satisfied the test for substantial impairment. However, substantial impairment must be a matter raised during the course of the trial as to guilt. If it were truly substantial impairment, then the mental condition would be assessed, by the jury, to be such as to have affected his capacity to be found guilty of murder. The jury have found him guilty of murder.
Lest it be thought that this was an oversight, it is clear from the interlocutory proceedings that the issues of substantial impairment were a matter discussed with the accused, Azam Charbaji, at that time and the decision taken not to pursue that defence. The issue seemed to have led to a change in legal representation.
Despite the lack of a finding of substantial impairment and despite the finding of a verdict of murder, it is clear that Azam Charbaji suffers from a mental illness, being schizophrenia and the other disorders mentioned.
Azam Charbaji submits that his moral culpability is substantially reduced on account of the psychiatric disorders and the need to denounce the crime is, thereby, reduced. Further, it is said, on his behalf, that as a consequence of the psychiatric disorders, Azam Charbaji is not an appropriate vehicle for general deterrence and, as a consequence, general deterrence plays a less significant role in fixing a sentence for him.
There is no evidence that a custodial sentence will weigh more heavily on Azam Charbaji than it would any other prisoner. It is said that the psychiatric issues have been stabilised. It is also submitted that specific deterrence would be reduced on account of the psychiatric matters and that his dangerousness to the public is diminished on account of the stabilisation of the disorders with medication and treatment.
It is not necessary to reiterate the many ways in which psychiatric illness or disorder is taken into account in the sentencing process. The criminal law depends upon humankind having a free will and the capacity rationally to choose between right and wrong. To the extent that an underlying psychiatric illness undermines that capacity, it affects various aspects of the purposes of sentencing including moral culpability, the appropriateness of utilising a sufferer of such illness as an example for general deterrence and the need for general punishment.
Nevertheless, the psychiatric disorders outlined in the report of Dr Furst require some qualification. Largely, the diagnosis depends upon a belief that the history given by Azam Charbaji is accurate. I have little confidence of that matter.
Secondly, even if the diagnoses are correct (and there has been no independent testing), they point markedly to an anti-social behavioural pattern and cognitive disorder, which, ordinarily, would require condign punishment in order to provide specific deterrence. A person with significant cognitive disorder may, often, need greater punishment in order for them to understand, without having to utilise rational choice, that conduct of that kind is unacceptable and prohibited. Nevertheless, I accept that, as a consequence of psychiatric disorders, Azam Charbaji is not an appropriate example for general deterrence and has less moral culpability than a person engaging in this conduct without such disorders. Further, the psychiatric illnesses or disorders suffered by Azam Charbaji point, markedly, to the need for a sentence to be imposed that takes account of the real need to protect society.
Having made those statements, it is clear that the offending was done in company, was extremely violent and involved a cruelty beyond that which was necessary to occasion the death of the deceased.
As the evidence discloses, Azam Charbaji has a significant criminal history which, unsurprisingly, given the psychiatric conditions, involves violence. Azam Charbaji has previously been convicted of robbery in company and assault occasioning actual bodily harm and the possession or use of a prohibited weapon without permission. Each of those offences involved a sentence of imprisonment.
As to remorse, the Court has no direct evidence expressing any remorse for the conduct involved in these events. The statement to the psychiatrist, which, at its highest, may disclose some remorse, is essentially and primarily self-centred and selfish. The primary concern seems to have been that it has ruined his life although there is some expression given to the psychiatrist about the victim.
Further, Azam Charbaji's demeanour in Court, during the course of evidence that has been adduced, and during the trial generally, except when the jury is present (and even then there were lapses) causes the Court to discount any expression of remorse, if there were any, given by Azam Charbaji to his psychiatrist. He has poor prospects for rehabilitation.

Subjective Circumstances of Haysem Charbaji

For obvious reasons, there are some similarities in subjective circumstances. The background of Haysem Charbaji is similar to that of Azam Charbaji. Haysem Charbaji, also, has a significant criminal history, although, a number of the offences are vehicle related (drive while disqualified etc.). Nevertheless there are acts of violence for which Haysem Charbaji has previously been convicted, including robbery, assault, stealing from the person, multiple offences of assault occasioning actual bodily harm in company, stalk and intimidate, assaults on police officers, contravention of an AVO (domestic) and offences involving dishonesty such as dishonestly obtaining property by deception and giving a false name.
In the case of both Azam Charbaji and Haysem Charbaji, I have not taken account of drug offences, either possession or the factors associated with supply. Neither Azam Charbaji or Haysem Charbaji is entitled to the leniency associated with a first offender. Nor are either of them entitled to any consideration on account of any suggestion that this was their first time in prison.
Haysem Charbaji has submitted a report of a clinical psychologist, Mr Sam Borenstein. Like his brother, he was born in Sydney and his family situation is the same as his brother. Haysem Charbaji was 10 when his parents separated and his mother remarried at the age of 16. He had a positive relationship with his step-father. Further, there was no history of physical or sexual abuse or domestic violence. Haysem Charbaji did witness his parents using drugs and understood that his father dealt in drugs. He attended school in Sydney and was expelled at the age of about 15.
The psychologist described him, including his tattoo under his left eye, as distracted and agitated and indifferent during assessment. He was, according to the psychologist, a poor historian and very guarded in his responses. He is cognitively intact. His cognitive intelligence is estimated at no better than low-average as is his emotional intelligence.
The psychologist described Haysem Charbaji's circumstances in the following manner: "Mr Charbaji's beginnings provided a very poor template and set the scene for a life defined by Substance Use Disorder and associated criminogenic and antisocial behaviours. Mr Charbaji says he dealt drugs in order to supply his daily drug habit at a cost of approximately $800 per day. Mr Charbaji abused 'ice', heroin, marijuana and also used Xanax and/or Valium 'to come down'. Mr Charbaji would be awake for days on end due to 'ice'."
Haysem Charbaji has a strong work ethic and stated to the pschologist a motivation to change direction in his life for the welfare of his children and to abstain from drugs. He has had longstanding behavioural problems and, in particular, sufferred from impulsivity, resulting in him acting without considering the consequence of actions.
Like his brother, Haysem Charbaji has not expressed true remorse and I do not take it into account. He also has poor prospects for rehabilitation.

Subjective Circumstances of Lexy Jamieson

The Court has been provided with a pre-sentence report for Lexy Jamieson and a psychologist's report of Ms Anne Lucas, Consultant Forensic Psychologist, of 30 November 2016. The pre-sentence report and the psychologist's report are, generally, consistent.
Lexy Jamieson is a 26 year old woman, with two young children. She told her psychologist and Ms Tucker, Senior Community Corrections Officer, that she was the subject, in her childhood, of ongoing domestic violence and emotional abuse.
Her biological father was not seen often and her mother's relationship with another person was required to be kept secret from her maternal family. Lexy Jamieson described that as creating significant anxiety.
Moreover the mother's partner was extremely violent to her mother and physically and sexually assaulted her mother in front of Lexy Jamieson and her sister. Further, he threatened Lexy Jamieson's mother that he would "rape" the children if she ever tried to leave him.
Lexy Jamieson ran away from home on a number of occasions, commencing at about the age of 16. This partner to her mother left the relationship when Lexy Jamieson was in her late teens.
Lexy Jamieson fell pregnant when she was 21. The child is healthy and happy. She has no ongoing contact with the child's father, who offers no child support. Lexy Jamieson had a second child, who is now 18 months' old. This child is the product of the relationship between Lexy Jamieson and Haysem Charbaji. That relationship commenced about 3 years ago.
Lexy Jamieson described the relationship to her psychologist in a somewhat inconsistent manner that, on the one hand, Haysem Charbaji was a caring parent but, on the other hand, Haysem Charbaji engaged in physical, coercive and controlling violence towards her. It became obvious to the psychologist that the majority of Lexy Jamieson's relationships involved partners who were physically abusive.
Lexy Jamieson had a troubled school career. She described being embarrassed at the obvious abuse her mother had suffered and which other school children noticed. She started avoiding school and left during term 2 of year 9. She gained employment as a sales assistant and worked in a variety of customer service roles.
Lexy Jamieson is in fairly good physical health with no medical or diagnosed psychological conditions. However, Lexy Jamieson started using illicit substances (cannabis) towards the end of 2013 and her drug use has escalated to the use of ice. At the time of the offence, Lexy Jamieson was reported regularly as using a combination of Xanax, Rivotril and ice.
The psychologist engaged in testing, the results of which disclosed her to be extremely sensitive in social interactions and to perceived rejection. Her clinical profile suggested a general pattern of chronic maladjustment in social relationships and the combination of impulsivity, anger and dysphoria places her at increased risk for self-harm or acting-out behaviour.
The psychologist diagnosed that Lexy Jamieson may be suffering from Post Traumatic Stress Disorder (PTSD), Major Depressive Disorder, Substance Use (Amphetamine) Disorder; and certain characteristics of personality disorder.
It seems that the PTSD is a consequence of the early domestic violence and gives rise to increased aggression and anti-social behaviour. The psychologist recommends treatment.
Lexy Jamieson continues to assert her innocence and has displayed no remorse for any of her conduct. I am sceptical of the statement to the psychologist that gave rise to the psychologist's view that Lexy Jamieson was seeking to break free from her behavioural issues and her current lifestyle. Nevertheless, there are more avenues for rehabilitation, particularly if further testing and treatment occurs within the prison system. I doubt, if left to her own devices, Lexy Jamieson would complete such a course. Lexy Jamieson is not suitable for Community Service, on account, at least, of her continuing drug dependency.
There is no suggestion that Lexy Jamieson cleaned the house at Cartwright. Nevertheless, Lexy Jamieson was, it seems, fully aware of all of the circumstances leading to the death of the deceased. The conduct commenced in her apartment. She has two children: a four year old and an 18 month old, the existence and care of which is important in understanding, possibly, some part of the motivation associated with her assistance to Haysem Charbaji and it is said, on her behalf, that the relationship with Haysem Charbaji, together with the earlier domestic violence, explains her behaviour.
The Court can understand her behaviour and the debilitating and disempowering effect of such an upbringing. Ultimately, the Court must impose a sentence that is appropriate to all of the circumstances. A custodial sentence is appropriate. Should it be full-time?
While a sentence that is not a full-time custodial sentence may, in certain circumstances, be adequate for the offence of accessory after the fact to murder, in my view, a full-time custodial sentence for Lexy Jamieson is warranted.
I have been provided with a schedule of select cases involving sentences imposed for accessory after the fact to murder in contravention of s 349 of the Crimes Act 1900. Consistency in sentencing is obtained by a consistent application of the principles involved in sentencing and not by some process of numerical equivalence. The same principles of sentencing apply, whether the offence for which a sentence is being imposed is murder or accessory after the fact to murder (or, indeed, any other offence). The sentences for accessory after the fact to murder vary significantly from non-custodial sentences to prison sentences that are not full-time to full-time custodial sentences.
As earlier stated, I do not and cannot have regard to the conduct of Lexy Jamieson in providing the drugs or in providing advice, which, on the lower standard, I would accept she did, about burning the body and cleaning the premises with bleach. I do take account of the fact that Lexy Jamieson cleaned the premises with bleach, subsequent to its initial cleaning. The premises to which I refer are the premises at Heckenberg.
I also take account of the circumstance that Lexy Jamieson will be in prison for the first time in her history, although, she does have a criminal history, including a history involving prior acts of violence, including assault of an officer in the execution of duty. Lexy Jamieson is not entitled to the leniency normally afforded a first time offender. She has some prospects of rehabilitation but only if proper treatment is afforded in prison.

Conclusion

Azam Charbaji has been found guilty of murder. The murder is one which is well-above the mid-range in objective seriousness. He has significant subjective factors which cause me to qualify, to some extent, his moral culpability. Nevertheless, those same subjective circumstances create a problem for him which the Court must weigh in protecting society from him and in imposing a sentence that is sufficiently condign to ensure that, given his cognitive difficulties, he understands that conduct of this kind cannot be performed without serious consequences.
Azam Charbaji was the person who inflicted the knife wound and was the offender who, over and above his brother, inflicted the beating (either by hand or by use of the ratchet) that caused further, unnecessary pain to the deceased. His involvement in the "torture" seems greater than that of Haysem Charbaji.
On the other hand, Haysem Charbaji seems to be the instigator of the joint criminal enterprise. The debt was "owed" to Haysem Charbaji and it was he who lured the deceased to the pub and brought him back to the Heckenberg apartment. As a consequence, it seems that their culpability (leaving aside the subjective aspects of the circumstances of Azam Charbaji) are similar, albeit that different conduct was occasioned by each of them. Azam Charbaji was the more violent, but both occasioned harm and both administered drugs. As a matter of law, given the joint criminal enterprise, each is responsible for the other's conduct.
I do not find special circumstances, in the case of either Azam Charbaji or Haysem Charbaji. I do recommend, in the case of Azam Charbaji, that Corrective Services conduct further psychological testing and treatment for the issues described by the medical evidence.
In the case of Lexy Jamieson, as earlier stated, in all of the circumstances, I consider a full-time custodial sentence appropriate. I do consider that there are special circumstances associated with the care of her children but, it must be said, I have some doubt as to whether her children would be, unless she was rehabilitated significantly, able to continue in her custody.
Because accessory after the fact is not always the subject of full-time custodial imprisonment, it is necessary to explain that even though part of the motivation of Lexy Jamieson may have been her relationship with Haysem Charbaji, the offence of accessory after the fact puts offenders and their interest ahead of those of any victim and the public interest, together with the interest in the administration of justice. It is essential, in a democracy such as ours, that persons involved in a relationship do not harbour or assist their partners in order for the partner to avoid prosecution, in circumstances where they know, fully, the circumstances of the offending.
The delay, in apprehending Azam Charbaji and Haysem Charbaji between July, when the murder occurred and the body recovered, and October, the date of their apprehension, speaks of a significant effect that Lexy Jamieson's conduct had on the apprehension of the principal offenders.
As I commented in R v Fennell [2011] NSWSC 489, sentences in this area seem to be significantly lower than the maximum imposed by parliament. While the penal servitude is for 25 years, there is, as stated by the Court of Criminal Appeal (R v Farroukh [NSWCCA, Gleeson CJ, Levine and Dowd JJ, 29 March 1996, unrep]), a wide variation in the possible degrees of moral culpability of persons convicted of this offence.
The community has an interest in ensuring that offenders who have committed serious crimes be brought to account and punishing those who seek to assist such offenders from avoiding detection. The circumstances of this offending is similar, in many ways, to that which Grove J described in R v Wells [2008] NSWSC 206, in that, Lexy Jamieson has assisted her male partner (and his brother) conceal an offence for a period of months; observed the damage initially done to the victim and was aware at the time it was being administered of the fatal administration of drugs; and sought to prevent detection through scientific methods of the conduct that occurred in her apartment, thereby disposing of what may have been incriminating evidence.
In no case is there a reason for a discount associated with any plea or assistance to the Court. Each sentence imposed takes account, by backdating of the time already served. In the case of Haysem Charbaji, it runs concurrently with the period of an earlier sentence for which he was eligible for parole, to take account of the totality principle.
Azam Charbaji, please rise: 1. You are convicted that, between the 18th day of July 2014 and the 20th day of July 2014, at Cartwright in the State of New South Wales, you did murder Dane McNeill. 2. You are sentenced to a non-parole period of 24 years' imprisonment commencing on 7 January 2015 and concluding on 6 January 2039, with a remainder of term of 8 years concluding on 6 January 2047. 3. You are first eligible for parole on 6 January 2039.
Haysem Charbaji, please rise: 1. You are convicted that, between the 18th day of July 2014 and the 20th day of July 2014, at Cartwright in the State of New South Wales, you did murder Dane McNeill. 2. You are sentenced to a non-parole period of 27 years' imprisonment commencing on 14 February 2016 and concluding on 13 February 2043, with a remainder of term of 9 years concluding on 13 February 2052. 3. You are first eligible for parole on 13 February 2043.
Lexy May Jamieson, please rise: 1. You are convicted that, between the 18th day of July 2014 and the 22nd day of July 2014, at Heckenberg in the State of New South Wales, knowing Azam Charbaji and Haysem Charbaji did between those dates murder Dane McNeill, you did receive, harbour, maintain and assist the said Azam Charbaji and Haysem Charbaji, in other words, you have been found guilty and are hereby convicted of accessory after the fact to murder. 2. You are sentenced to a non-parole period of 2 years' imprisonment which, taking into account the four months and six days' imprisonment already served, shall commence on 14 August 2016 and conclude on 13 August 2018, with a remainder of term of 2 years, concluding 13 August 2020. 3. You are first eligible for parole on 13 August 2018.

Amendments 22 December 2016 - Typographical error corrected in [7] 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: 22 December 2016

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