R v Danishyar

R v Danishyar - [2024] NSWSC 353 - NSWSC 2023 case summary — Zoe

[3]

Background

On 11 August 2023, the offender, Mirwais Danishyar, pleaded guilty to being an accessory before the fact to the murder of Michael Davey on 30 March 2016. The plea was entered on the basis that he handed over an encrypted BlackBerry to senior members of the "Sultani group" knowing that it would be used to lure the deceased out of his home on the ruse of a drug supply when in fact the principals intended to inflict grievous bodily harm on him. The offender was not present at the scene when the deceased was shot.
Following his plea of guilty, proceedings on sentence were listed on 22 September 2023. Since then, there has been some delay in this matter which needs to be explained.
At the conclusion of the proceedings on sentence on 22 September 2023, it was agreed between the Crown and the offender that I could not proceed to sentence him until his pending appeal to the Court of Criminal Appeal (CCA) had been finalised. As at 22 September 2023, Mr Danishyar was already serving an effective sentence of imprisonment of 15 years with a non-parole period of 11 years imposed by Fagan J on 17 December 2021 in connection to being an accessory before and after the fact to the murder of Pasquale Barbaro committed by the Sultani group in the same time period. The offender had appealed against both his conviction and sentence and the Crown had appealed against the manifest inadequacy of his sentence. Those appeals were heard on 21 April 2023 and that decision was still reserved as at 22 September 2023. It was agreed that this matter would be re-listed for mention once that decision was delivered.
The decision in Danishyar v R; R v Danishyar [2023] NSWCCA 300 (the offender's CCA decision) was delivered on 29 November 2023. The offender's appeals against convictions and sentence were dismissed. The Crown appeal was successful. The offender was re-sentenced to an effective head sentence of 20 years with a non-parole period of 15 years to commence on 29 November 2016 and expire on 28 November 2031 with a balance of term of 5 years to commence on 29 November 2031 and expire on 28 November 2036. In effect, the offender's head sentence was increased by five years.
The matter was re-listed before me on 7 December 2023. The parties both indicated that they wished to provide further written submissions following the CCA decision. A timetable was agreed upon. The offender's submissions were to be filed on or before 2 February 2024 and the Crown submissions on or before 11 March 2024. The Crown subsequently sought an adjustment to the timetable such that their submissions were due on 15 March 2024. Although the matter was initially listed for sentence at 2:00 pm on 22 March 2024, it has had to be stood over a number of times in the past few weeks so as not to interfere with closing addresses and the summing up of my then current (unrelated) murder trial.
I am now required to fix the appropriate sentence to be imposed on the offender for his role in Mr Davey's death. In addition to determining the facts in relation to which Mr Danishyar is to be sentenced, I am required to consider all other factors relevant to the sentence and ultimately make a value judgment as to the appropriate sentence given all the factors in the case. [1]
Murder is a crime contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and the maximum penalty is life imprisonment: s 19A(1) of the Crimes Act. That penalty extends to the offence of accessory before the fact to murder by virtue of s 346 of the Crimes Act.
Although a standard non-parole period ("SNPP") of 20 years' imprisonment is specified by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") for the offence of murder, there is conflicting authority as to whether that SNPP applies to an accessory before the fact to murder. [2] As McNaughton J (with whom Simpson AJA and Dhanji J agreed) observed in the offender's recent CCA decision, [3] it may be that the SNPP is not strictly applicable. [4] I propose to proceed in the way contended for by the Crown which is to adopt the cautious approach of R A Hulme J in R v Batak (No 5) [5] and treat the SNPP as indicating the attitude of the legislature to the offence of murder which the offender has been convicted of aiding, keeping in mind that the maximum penalty for both sentences is the same: life imprisonment.

[4]

The proceedings on sentence

Regrettably, these sentencing reasons are somewhat lengthy for two reasons: a considerable amount of documentation was tendered on sentence and nearly every issue relevant to the sentence was put in dispute. The numerous disputes that needed to be resolved included the factual basis of the plea, the objective seriousness of the offence, whether the offender's moral culpability was reduced on Bugmy principles, [6] whether the offender was a heavy user of drugs at the time, whether the offender was remorseful, whether the offender has post-traumatic stress disorder ("PTSD"), what his prospects of rehabilitation were, whether special circumstances should be found and the extent to which this sentence should be imposed to be served concurrently with the sentence the offender is already serving having regard to the totality principle.
At the sentencing hearing on 22 September 2023, the Crown tendered the Crown sentence bundle (Exhibit A), which comprised the Crown sentence summary, the indictment, the Agreed Facts signed on 11 August 2023, the offender's New South Wales criminal history, the offender's Australian Federal Police criminal history, the offender's custodial history, the sentencing decision of Fagan J in R v Sultani, R v Munshizada, R v Baines and R v Danishyar [2021] NSWSC 1654 dated 17 September 2021, the Agreed Facts signed by the offender on 21 February 2022 for the unrelated offence of unlawfully disposing of a corpse, and the Agreed Facts signed by the offender on 28 April 2023 for offences of participating in a criminal group, taking and driving a conveyance without consent and supply of a prohibited drug.
The Crown also tendered the report of Dr Stephen Allnutt dated 3 November 2021 (Exhibit B), BlackBerry messages relating to drug supply (Exhibit C); and the victim impact statement of William Davey dated 19 September 2023 (Exhibit D).
The following documents were tendered on behalf of the offender: A lengthy report of Alison Cullen, forensic psychologist, dated 14 September 2023 (Exhibit 1); a letter from the offender dated 11 September 2023 (Exhibit 2); the affidavit of Jessica Fahmy affirmed on 20 September 2023 with annexures A to J comprising a table of BlackBerry messages between the offender and Siar Munshizada between 27 and 29 November 2016, telephone intercept transcript on 29 March 2016, a copy of the transcript of the cross-examination of witnesses RS093 and RS670 on 5 March 2021, a copy of the Corrective Services NSW Home webpage, two newspaper articles in relation to statewide prisons lockdown due to COVID-19 (mentioning Parklea Correctional Centre specifically), a report from Dr Andrew Ellis, forensic psychiatrist, dated 9 April 2020, letters from Corrective Services in relation to the offender's protection and non-association status, a newspaper article in relation to a protest at the Parklea correctional centre in relation to the lockdown, and email correspondence between Ms Fahmy and the Parklea Correctional Centre between 5 and 13 August 2021 regarding the offender's placement (Exhibit 3).
The offender also relied on a letter from his sister, Hosna Danishyar, dated 13 September 2023 (Exhibit 4), a testimonial of Dr Jamal Danishyar (the offender's uncle) dated 17 September 2023 (Exhibit 5); and Department of Education records and summary and medical records relating to the offender's attention deficit hyperactivity disorder ("ADHD") (Exhibit 6).

[6]

Agreed Facts

Apart from a few grammatical adjustments, the agreed facts below are extracted in full in their original terms.
It is the Crown case that during 2014, Sultani controlled and directed the activities of a sophisticated criminal group (hereinafter called "the group"). Various members of the group were involved in or contributed to the occurrence of criminal activity under the direction and control of Sultani.
The origins of the group are linked to Sultani's involvement with the Burwood Chapter of the Rebels Outlaw Motorcycle Group ("OMCG"), of which he assumed the role of "President" sometime in early 2014.
A number of Sultani's friends including Siar Munshizada, Seyed Hosseinishoja, [the offender], Joshua Barnes, RS888, RS670, RS093, Viliami Finau, Siaosi Mokofisi, Sayed Anoush Abdaly, Mustafa Shekeb, Xiu (Raymond) Yuan Zhu, Jared Prakash, Jung Hyun Donald Kang, Jung Hoon Alexander Kang and Sattar (Sass) Khamsi, also became members or associates of the group.
Sultani and Munshizada resided at Unit 2803 at 1 Australia Avenue, Sydney Olympic Park ("Unit 2803"). This residence was a frequent gathering place for members and associates of the group.
Members or associates of the group performed different tasks at the direction and control of Sultani. Although the group maintained a hierarchical structure, the offender did not have any recognisable role within it. He was the "gopher" of the group, was close to Sultani and was doing errands and running around for him. Sultani kept members of his group on a "need-to-know" basis, insulating his subordinates, and maintained absolute authority over the workings of the group.
To communicate with each other, members of the group, including the offender, commonly used encrypted communication devices, most commonly BlackBerry mobile phones. These BlackBerry devices were organized and provided by Sultani so that he could issue directions and receive information from members or associates of the group. Sultani established his own BlackBerry domain server called "ghostmessage.mobi". Each username or "handle" that was put through was arranged through Sultani, and he maintained direction and control of the domain server account.
BlackBerry devices were occasionally recycled or reissued between different group members, and group members would hold several BlackBerry devices at the one time.

[9]

Tuesday 29 March 2016

By March 2016, Sultani and his group were in possession of a number of vehicles, including two stolen vehicles, that are relevant to the manner in which Sultani carried out this murder.
The first stolen vehicle was a white Audi Q5 ("the Audi Q5") bearing false plates with the registration number DCI-34L. In January 2016, RS 670 had procured the false plates at the request of Sultani. The second stolen vehicle was a white Toyota HiAce van, also fitted with false plates.
A third vehicle was a Mazda van registered in the name of RS 670. Unlike the stolen vehicles, the Mazda van had a tracking device that had been covertly installed in it by police. As at 29 March 2016, this van was parked at Porter St, Ryde. An associate of the group by the name of Makinadjian resided on Porter St, Ryde.
At about 6:30pm on 29 March 2016, the tracking device on the Mazda van was activated by movement and the van began travelling from Ryde towards a warehouse in Hornsby where Sultani stored stolen vehicles. Shortly afterwards, the Mazda van was captured driving back to Ryde, now in convoy with the two stolen vehicles; the stolen Audi Q5 and the stolen Toyota HiAce van. The three vehicles parked on Porter Street Ryde at about 8:04 pm.
Meanwhile, the offender was seen to exit Unit 2803 at about 6:30 pm. He left the carpark at 1 Australia Avenue driving his black Audi, which he was the known owner and regular user of.
At about 7:03 pm, Sultani separately left Unit 2803 and exited the carpark driving his black Subaru WRX, registration CSZ24C (NSW).
At 7:36 pm and 7:38 pm respectively, the offender and Sultani separately returned to Unit 2803, 1 Australia Avenue.
Sultani entered the carpark on level B2, and the offender entered the carpark on level B4. Both men travelled to the ground floor where they met before they travelled together to level 28 and entered Unit 2803. Whilst in the lift, Sultani was captured looking into the backpack that the offender was carrying and lifting an item inside it.
The offender, at the request of Sultani, gave the "Ready2Rock" BlackBerry device to Sultani at this time. When the offender gave the phone to Sultani he knew that the phone would be used later that night to contact the deceased and lure him into the street near his home on the pretext of a drug deal (similar to that which had occurred a week earlier). The offender knew that it was the intention of Sultani to inflict very serious injury to the deceased. (Emphasis added.)
From 8:00 pm to 10:00 pm on 29 March 2016, there were further movements of people to and from unit 2803 at 1 Australia Avenue, including Munshizada, Sultani, Hosseinishoja, Abdaly, Finau, and the offender.
Between 9:49 pm and 10:04 pm, Sultani, Munshizada, Abdaly, Hosseinishoja, and the offender all left Unit 2803: 1. At 9:49 pm, Abdaly left the unit and travelled to the ground floor carrying a number of items including a white BlackBerry device. 2. At 10:03 pm, Hosseinishoja left the unit and travelled in the lift to the ground floor. Whilst in the lift, he is seen to be using a white BlackBerry device. 3. At 10:04pm, Sultani, Munshizada and the offender leave apartment 2803. Sultani and Munshizada exit the lift at the ground level whilst the offender exits separately on level B4.
All five men are seen to walk either together or separately across Australia Avenue towards Figtree drive. The offender walks separately across Figtree drive.
At 10:14 pm, a white Holden Commodore associated with the group is captured on CCTV leaving Figtree drive. At least Sultani and Munshizada were inside the vehicle.
Commencing at about 10:25 pm, the three vehicles that were parked earlier and stationary at Porter St, Ryde, began to proceed in convoy west towards Kingswood, along the M4 Motorway. The three vehicles travelled from the M4 in convoy onto Mamre Road, St Marys towards the Great Western Highway, but eventually separated from each other and travelled in separate directions: 1. Tracking data confirms that the Mazda van exited the M4 and came to rest in a car park at the rear of the "Westside Grill" at St Mary's. It does not leave this location for the remainder of the night. 2. The Toyota HiAce van, initially seen travelling with the other vehicles along Mamre Road, separates from the convoy and is not seen again that night. 3. The stolen Audi Q5 DCI-34L (NSW) continued onto Kingswood alone and was captured on CCTV about one block away from the townhouse where the deceased was residing. It is this vehicle that is used in the murder of the deceased. It is the Crown case that this vehicle was conveying Sultani and Munshizada.
The movements of the offender, Abdaly, and Hosseinishoja, are not known from the point in time at which they leave 1 Australia Avenue.

[14]

How long was the offender involved in the planning?

The Agreed Facts comprise an admission that as at 29 March 2016, when the offender handed over the BlackBerry to Mr Sultani, he knew it would be used to lure the deceased into the street on the pretext of a drug deal but instead grievous bodily harm would be inflicted on him. The Agreed Facts do not contain any admission that the offender knew of this at any stage beforehand.
The offender relied on a passage in the report of Ms Cullen as follows: [11] "Mr Danishyar added 'Then the day of the murder, I was asked for my phone.' Mr Danishyar clarified that this phone had been initially provided to him by Sultani and so he readily complied with the request made. He indicated that at the time of handing over the phone to Sultani 'I realised the drugs I brought down were bad' and purported that Sultani wanted a means of communicating with the victim in relation to the same. Mr Danishyar acknowledged that 'I put it together myself that because the drugs were bad he was going to cop a hiding.' He recognised that 'if you do wrong by him (Sultani) you get a flogging. Half the names on this Facts Sheet have all been belted,' in the presence of Sultani at some stage. Mr Danishyar maintained that he had no knowledge of any intent to murder Davey, and reiterated 'you cross the boss, you get a hiding as every action has a reaction'."
The Crown submitted that I would not accept the offender's untested assertions on any of these issues.
The Crown submitted that I would find beyond reasonable doubt that the offender knew on 22 March 2016 when he participated in the purchase of the drugs from the deceased what Mr Sultani's ultimate plan was. It was submitted that such an inference could be drawn beyond reasonable doubt from the rest of the Agreed Facts as well as the earlier Agreed Facts dated 28 April 2023 containing admissions that the offender was a member of a well organised group involved in serious criminal activity including assault and commercial drug supplies.
It was submitted that the time and place of the 22 March 2016 meeting was replicated in the time and place of the 29 March meeting when the deceased was murdered participating in what he assumed was a similar and safe drug transaction.
The Crown further invited inferences to be drawn from the Agreed Facts that the offender was an active member, as a "gopher", of the Sultani crime group. The Crown submitted that even in the report of Ms Cullen the offender admitted that he was expected to run Sultani around and deliver drugs and other products to the "bikie crew". He was "the transport guy". He had to be available every day. He admitted to very regular commercial drug supplies. In that context, the Crown submitted that the fact that the supply to the deceased on 22 March 2016 was for a small amount and different to these other commercial supplies means that the court would reject the offender's submission that there was nothing unusual about this supply and it would not have stood out.
It was further submitted that the discrete small supply to the deceased was unusual and suspicious and could not have been for the purposes of Sultani acquiring drugs for re-sale. The Crown submitted that it is "unbelievable" that the offender could have thought the poor quality of these drugs was the motivation for the attack on the deceased; rather, the only rational inference is that the offender must have known as at 22 March of the real purpose of the transaction given the small amount and that it was a purchase not a sale.
Although it was accepted that the Agreed Facts include that Sultani kept the members informed only on a "need to know basis", the Crown submitted that this was so unusual and suspicious the offender "needed to know" why he was doing it. Further, it could be inferred that the reason that the offender "readily supplied" the BlackBerry to Mr Sultani on 29 March 2016 was because he knew what it would be used for.
On behalf of the offender, it was submitted that there was no evidence that at the time of the 22 March drug transaction the offender knew the meet-up was a necessary step in the eventual murder of the deceased nor is there any admission in the Agreed Facts that that was the case.
It was submitted that I would accept the untested version of what the offender told Ms Cullen on the balance of probabilities; namely, that he only pieced together afterwards that the drugs must have been bad and the deceased was going to "cop a hiding" for that reason.

[16]

Mode of infliction of grievous bodily harm

The Agreed Facts state that the offender pleaded guilty on the basis that he knew that the principals intended to cause grievous bodily harm to the deceased. There is no mention in the Agreed Facts as to the means with which that grievous bodily harm was to be inflicted. The lack of specific mention led to another dispute concerning the Agreed Facts.
The Crown submitted that, despite the absence of any mention of the offender's knowledge of a firearm in the Agreed Facts, I would find beyond reasonable doubt that the offender knew that the grievous bodily harm would be inflicted with a firearm. The offender disputed this and relied upon the fact that Sultani was secretive about how he would carry out plans and that it is unlikely he would tell the offender given his role in the group. The offender also relied on the evidence of RS093 and RS670 that Mr Sultani was a man to be feared and obeyed and that the members of the group who did not comply with his orders would be beaten and punished.
The Crown submitted that I could be satisfied beyond reasonable doubt that the offender knew that a firearm would be used based on the Agreed Facts tendered in other proceedings when the offender admitted that he had helped dispose of Mark Easter's corpse. Mr Easter died from gunshot wounds. Although Mr Sultani has recently pleaded guilty to the murder of Mr Easter, the Agreed Facts in relation to the offender's role, which pre-date Mr Sultani's plea of guilty, specifically state the following at [2]: "The Crown cannot prove to the criminal standard, and there is no evidence, that the offender had anything to do with the shooting of the deceased, nor that the offender at any time had knowledge of who shot the Deceased." (Emphasis added.)
Again, although there is a strong suspicion that if the offender knew that Mr Sultani was going to inflict grievous bodily harm on the deceased it would be with a firearm, I cannot be satisfied of that fact beyond reasonable doubt based on the Easter facts and inferences about the criminal group generally.

[17]

Was the offender heavily under the influence of drugs on 29 March 2016?

Although it is not a mitigating factor that a person committed a crime whilst under the influence of drugs, it is necessary to resolve this factual dispute as well given that the offender relied on what he told his psychologist about the offending to reduce the objective seriousness of the offence. The Crown contended that I would not accept the offender's account.
In addition to the offender's account to Ms Cullen I have already referred to, the offender also relied on this passage in Ms Cullen's report: [13] "Mr Danishyar reiterated that around the time of the index offence 'I was on drugs and didn't know day from night. Everything is blurry. I don't understand what's going on until two (2) years later. I'm thinking normal now and I'm like 'okay wow fuck'. Mr Danishyar stated 'I blame myself. Everything that happened is my fault." (Emphasis added.)
The offender also relied on certain telephone intercept material on 29 March 2016 in which recent heavy drug use by the offender is discussed. That included the offender being captured describing his drug use generally to a friend including the observations that, "the way we take rack [cocaine]...the sleeping pills to mix with it…its very bad on the heart bro." [14] I note that this is a general observation by the offender and does not refer to drug use that particular day.
The offender also relied upon an extract of communications between members of the Sultani group in the days preceding his arrest on 29 November 2016 (in relation to other matters) which identified drug use by the offender. [15]
The reports of both Dr Allnutt and Ms Cullen included reportage by the offender of his drug use during that period but both experts qualified that aspect of their evidence in evidence before Fagan J. [16]
The Crown submitted that I would not accept the offender's assertions about drug use in the years prior to his arrest because the level of drug affectation alleged during this period is inconsistent with the objective circumstances of his involvement in contemporaneous offending including in the matter before Fagan J.
The Crown's position on this issue was somewhat inconsistent. It was disputed that the offender was under the influence of drugs during the relevant period but also disputed that he had ceased using drugs by the time he entered custody. Implicit in the Crown's latter position was an acceptance that the offender was a drug user before entering custody. The point of dispute appears to be the degree of that drug usage.
The offender was residing at home with his family through the period of his offending. The letter from his sister states that when the offender started associating with Sultani and others he was trying to impress his family and she was later shocked to learn of his charges. She makes no mention anywhere in her letter of ever seeing the offender to be drug affected even though they lived together throughout the entire period.
Given the Corrective Services evidence that he has been using drugs in custody, the self-reporting to the two experts and the intercepts referred to above, I am satisfied on the balance of probabilities that the offender was a regular user of illicit drugs during the relevant period. I am unable to make a finding that his level of drug use was as high as he now contends and nor do I accept his untested version provided to Ms Cullen on this issue.

[18]

Objective seriousness

My assessment of the objective seriousness of the offence falls to be made in the context of the Agreed Facts and the findings I have made on the disputed facts.
The Crown invited me to locate the offending as falling somewhere within the broad middle range of objective seriousness whereas the offender submitted that I would assess the objective criminality as towards the lower end of the range.
The Crown submitted that the offender's assistance in the murder of the deceased was an act of "gangland violence" which is an aggravating feature that applies in addition to the statutory aggravating feature that the offences were part of a planned or organised criminal activity, pursuant to s 21A(2)(n) of the Sentencing Act. [17]
The offender's submission that the objective seriousness is at the lower range for these types of offences relied on the fact that the offender was not involved in the provision of the murder weapon, nor in the planning or the coordination of the murder. The offender also relied upon the fact that his conduct occurred over a short period of time and involved a single act rather than a series of acts. It was submitted that the offender's act was not indispensable nor essential, nor a significant contribution to the commission of the principal offence.
I was also invited to find that the seriousness of the offence was mitigated because the offender acted entirely out of a misguided loyalty to Mr Sultani, obtaining no tangible benefit himself and instead blindly following instructions.
Having considered these competing submissions, I am not satisfied that the objective seriousness in this matter is as low as the offender contends. I have already found that the offender stands to be sentenced on the basis that he knew at the time he handed over the BlackBerry that it would be used to lure the deceased out of his home so that grievous bodily could be inflicted on him in some way. Further, he did so in the context of being part of a criminal group. Further, the death of Mr Davey could not have occurred unless a "gopher" such as the offender was willing to play his role in that criminal group when requested. I do not accept that his role was dispensable. Mr Davey would not have been lured to his death unless contacted through the relevant BlackBerry.
As for the reliance on the fact that the offender told Ms Cullen that "misguided loyalty" was the factor which "ultimately" led "to his involvement in the index offence", I am not satisfied that this reduces the objective seriousness in the circumstances of this case. The offender's loyalty was to the head of a significant criminal group. Most offenders who follow directions in the context of a hierarchal criminal group would do so out of misguided loyalty. I am not persuaded, on the facts in this case, that the finding of objective seriousness should be reduced on that basis.
Nor am I satisfied that the objective seriousness falls within the mid-range as contended for by the Crown. The mental element for murder that the offender pleaded guilty to was grievous bodily harm rather than death and his involvement was over a relatively short period of time.
I note the criticism of placing the finding of objective seriousness on a notional range [18] but I propose to do so in this case in order to respond to the respective submissions on this issue. I find this to be a relatively serious case of accessory before the fact to murder but below the mid-range of objective seriousness.

[19]

Victim impact statement

The Crown tendered a victim impact statement written by William Davey, the father of the deceased. Mr Davey read his statement to the court acknowledging the presence in the courtroom of the deceased's grieving mother and the mothers of his two now fatherless children. He described Michael Davey as a loving and caring father and expressed a deep sadness and anger about the cowardly manner in which he was taken from their family. He observed that his son will never be able to celebrate a birthday, Father's Day, or Christmas with his family again.
The Crown submitted that I would have regard to the effect of the offender's crime on both the victim and the community. He made an application that I consider and take into account the matters referred to in the victim impact statement on the basis that the harm to the deceased's immediate family comprises an aspect of harm done to the community.
Section 30E(3) of the Sentencing Act provides that a victim impact statement of a family victim may be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community, but only if the prosecutor applies for this to occur, and the court considers it to be appropriate.
The Sentencing Act does not explain how the court is to determine when it is "appropriate" to consider the impact of the offence on the deceased's family and as harm done to the community and when it is not. As McCallum J (as her Honour then was) observed in R v Halloun [19] , the provision cannot be taken to suggest that some lives are more valuable than others. Every unlawful death causes harm to the community and to the family of the person killed.
It is clear that the deceased's death has had a significant impact on those who loved him. On behalf the court, I extend my condolences to the family and friends of the deceased for their loss.

[20]

The offender's subjective case

The offender relied on what he told his psychologist Ms Cullen as well as his sister's letter to advance his subjective case. Ms Cullen's report referred to previous findings made by Dr Stephen Allnutt who had provided a report dated 30 September 2021 for the offender's proceedings on sentence before Fagan J. The Crown relied upon Dr Allnutt's report to suggest that the offender's account to Ms Cullen should not be accepted as it is inconsistent with his earlier account to Dr Allnutt. Having closely considered both of those reports I am satisfied that the offender's accounts have changed in certain respects over time. He has no doubt had considerable time to reflect on his life choices during the time he was involved with the Sultani group and over time clearly feels increasingly sorry.
The offender is the oldest of four children. His parents were born in Afghanistan and migrated to Australia. The offender was born in Australia. When he was in Year 1 his parents moved to the United States to be with other family. The offender's grandfather died at the offender's sixth birthday party. The family returned to Australia within the year.
The offender attended a number of schools and exhibited behavioural problems from an early age. A number of Department of Education records were tendered. The records show that the offender struggled to make friends at school and was expelled a number of times for severe behavioural problems. He was formally diagnosed with ADHD when he was in Year 8, but school records show he was exhibiting symptoms many years before that. He was prescribed Ritalin in Year 9 which worked well but he ceased using it as he did not like the side effects. In circumstances in which the historical records all confirm the ADHD diagnosis as did both experts I am well satisfied that this was a significant difficulty for the offender during his school years.
The offender's ADHD not only led to significant behavioural issues at school, it also led his parents to argue. They wanted him to study more and achieve at school. The offender's sister noted that his parents blamed the offender for their fighting and denigrated him.
The offender described his upbringing as difficult to both Dr Allnutt and Ms Cullen. In addition to his ADHD, his father worked long hours and he had little contact with him. The offender's mother suffered from both depression and post-natal depression and spent considerable time looking after her youngest child who was born with autism. The offender's poor relationship with his father resulted in three occasions where he was "kicked out" of home and experienced homelessness. The offender's father also assaulted him, and the offender would sleep in the car to avoid physical abuse. The offender's sister confirmed this account in her letter and there is a contemporaneous note in the school records which also confirms some of the physical assaults. She described "huge problems" between the offender and his parents, and that the offender was their "father's emotional punching bag".
The last occasion that the offender was expelled from school was in 2010 at the age of 17. After he left school, he met Mr Sultani through his cousin Mr Munshizada. It would seem that this was the first peer group who befriended him. The offender told Ms Cullen that meeting Mr Sultani was the worst day of his life. Mr Sultani was at that time working in a labour hire business in the construction industry. He arranged for the offender to work in the business as a payroll clerk. The offender was 19 years old at this time. After some time, Mr Sultani commenced to involve him in organised criminal activities. The offender told Ms Cullen he lost the payroll job due to his escalating drug use.
The Crown relied upon a number of inconsistences between what the offender told Dr Allnutt and what he more recently told Ms Cullen. The offender minimised his contact with Mr Sultani to Dr Allnutt but maximised it to Ms Cullen. He also gave differing versions about whether or not he was friends with members of the Sultani group, and his reasons for getting involved in the group. The Crown relied upon these alleged inconsistencies to submit that I would be guarded about the weight I gave to the offender's untested assertions to third parties including Dr Allnutt and Ms Cullen. [20]
I have compared the two expert reports and am satisfied that the offender has changed some of his account over time. Whether that is because he is being untruthful or whether he has persuaded himself that he is more victim than offender is difficult to assess in the absence of sworn evidence from him. I am prepared to accept those parts of his account which are supported by other contemporary documents or where he gave the same account to both Dr Allnutt and Ms Cullen but otherwise, I am unable to accept everything he says.
The Crown submitted that I would not accept the offender's claim to Ms Cullen that he was sexually assaulted one night when he was 16 in the Cobham Juvenile Detention Centre. He described this incident as a "strip search gone bad". It is difficult to assess this allegation given the offender did not give evidence. But he made the same disclosure to Dr Allnutt and Ms Cullen. Ms Cullen noted twice in her report that whenever the offender was asked to disclose details even marginally related to the sexual abuse the offender stuttered which she found to be of clinical interest. Despite the fact that there are some inconsistencies between the two reports, I am willing to accept on the balance of probabilities that the offender was sexually assaulted as he now alleges.

[21]

Mental health

It was common ground that the offender has suffered from ADHD since childhood. That history is well documented. Dr Allnutt has suggested it has attenuated with age and both experts accepted it was treatable in custody. The offender has recently been prescribed non stimulant medication for his ADHD in custody. Beyond that clear diagnosis of ADHD, the expert evidence put before the court about the offender's mental health history was detailed and conflicting at times.
There was evidence that he suffered depression after he was prescribed Roaccutane as a teenager to treat his acne. Ms Cullen noted a borderline personality disorder and, in addition to ADHD a childhood history of oppositional defiant disorder, Dr Allnutt suggested in 2021 a diagnosis of either a chronic adjustment disorder or a persistent depressive disorder. At one stage, the offender was said to hear voices, but he no longer does.
One area of dispute was that Ms Cullen diagnosed the offender with PTSD on the basis of the alleged sexual assault, whereas Dr Allnutt did not. I was provided with both of their reports and also the offender's recent CCA decision which noted that both Dr Allnutt and Ms Cullen gave evidence at the proceedings on sentence before Fagan J. Ms Cullen accepted in that evidence that the PTSD diagnosis was based on self-reporting.
I have considered the expert evidence and, like Fagan J and the CCA, I am unable to find on the balance of probabilities that the offender has PTSD as there is insufficient material before me to do so.
Notwithstanding the Crown's acceptance that the offender's history of mental health difficulties is relevant to the overall instinctive synthesis process of sentencing, it was submitted that these diagnoses did not reduce his moral culpability regarding the murder.
The Crown submitted that the offender's willing and active involvement in the criminal organisation and his well-equipped capacity to do so would lead the court to conclude that his sentence should not be reduced due to his mental conditions.
The offender submitted that his moral culpability was reduced because his conditions relate directly to his vulnerability to be accepted by Mr Sultani and to commit criminal activity as directed by him. [21] It was submitted that he was not an appropriate vehicle for general deterrence. The Crown disputed this and submitted that there was no link, relationship or connection between the offender's mental conditions and his involvement in the murder of the deceased.
I have had regard to the competing submissions on this issue. The evidence does not satisfy me that the offender suffers from PTSD, and I am otherwise not satisfied that there is any link between his mental health issues identified by the experts and the commission of this offence. I do not propose to reduce his moral culpability on this basis.

[22]

Bugmy

It was submitted on behalf of the offender that Ms Cullen's findings regarding the abuse he suffered as a child and his exclusion from the family unit may properly be described as a "deprived upbringing" so as to mitigate the sentence by reducing his moral culpability. [22]
Although the Crown initially submitted in writing that I would find the Bugmy principles were not enlivened in this matter, [23] it was subsequently conceded that the Bugmy principles were enlivened "to some extent" in this matter. [24] It was submitted that I would not find that the offender's moral culpability was reduced on account of his childhood but, rather, I would have regard to it as part of my "instinctive synthesis".
As the High Court held in Bugmy, "full weight" should be given to an offender's deprived background in every sentencing decision. [25] It is well established that engagement of the Bugmy principles does not depend on the establishment of a causative link between the circumstances of deprivation and of the offending. Full weight could be given in the instinctive synthesis process to the effects of childhood deprivation in ways other than by reduction of moral culpability. [26]
The offender's childhood was characterised by a strict father who could not cope with the offender's behavioural issues caused by his ADHD. His parents wanted him to succeed and were clearly frustrated by his inability to study and focus. His father resorted to disciplining him physically. No doubt his parents did not properly comprehend that ADHD can be a significant learning disability and instead viewed his misbehaviour as deliberate. His father's poor coping skills in this regard appear to be the result of his own unfortunate childhood in which he was captured and tortured as a child for two years in Afghanistan. It would appear that did not equip him to later deal with a child with a behavioural disability. In this respect, I accept that the offender would appear to have had fewer emotional resources to guide his behavioural decisions. [27]
I note that the offender did not submit before either Fagan J or the CCA that he had a childhood of profound deprivation such as would reduce his moral culpability. That does not prevent a different case from being put before this court, but I note that the offender's descriptions of the degree of childhood disfunction as reported to Ms Cullen and Dr Allnutt have increased over time.
I am satisfied that the offender had a dysfunctional childhood and I have taken that into account as a mitigating factor in this sentencing exercise.

[25]

Plea of guilty/remorse

The offender pleaded guilty two weeks before the trial was due to commence. He is entitled to a discount of 10% under s 25D(3)(b) of the Sentencing Act.
Counsel for the offender submitted that the guilty plea is demonstrative of the offender's remorse. I was invited to consider the report of Ms Cullen in support of this inference. Counsel for the offender also relied on the letter written by the offender's sister in which she details conversations with her brother where he has expressed remorse and guilt over his involvement in the murder of the deceased.
The offender wrote a letter to the court in which he expressed his "sincerest apologies" for his actions and apologised to the victim and his family. He stated that he had spent time in gaol thinking about the pain caused to the family of the victim and thought about what he has to change when he is eventually released.
The Crown relied upon the observations of Fagan J where, based on the earlier reports from Ms Cullen and Dr Allnutt, his Honour assessed the offender as "not having exhibited remorse". But I have not found that to be of assistance in the present matter because the offender denied his guilt at that trial and continued to do so on appeal.
Remorse is available to be taken into account as a mitigating circumstance in sentencing on the basis that genuine remorse is indicative of rehabilitation and the unlikelihood of further offending. [31] Acceptance of responsibility must entail something more than a plea of guilty [32] and there is a difference between regret for the consequences of conduct and contrition for the conduct. [33]
I am satisfied that the offender deeply regrets becoming involved with the Sultani group, but he continued to minimise his criminality in his consultation with Ms Cullen and blame others for his own conduct. I am unable to find he is genuinely remorseful on the material before me although I am satisfied that he has exhibited considerable regret and some limited remorse.

[26]

Prospects of rehabilitation/risk of re-offending

The offender committed this offence in 2016 when he was 23. He is now 31 years old. He has been in custody since late 2016.
The offender told Ms Cullen that he had been abstinent from substances in custody. The Crown identified four instances where the offender was caught in possession of prohibited drugs whilst in custody. Those instances were in 2017, 2018 (twice) and 2021. The offender has 30 institutional offences listed in his custodial history, most of which are for offences of violence or intimidation, four of which are drug-related, and some of which are for possessing an offensive weapon. The most recent offences, in 2023, are for "intimidation" and "assaults". He explained these matters as being the result of the gaol environment that "is not like the normal world".
The offender has been on remand for a significant portion of his time in custody. I accept that this has reduced his capacity to undertake courses. The offender contended that he has undertaken a number of courses whilst in custody. When the Crown disputed this further evidence was adduced on behalf of the offender in the form of a document created by Corrective Services NSW, [34] detailing the offender's eligibility for, and attempts to engage in, courses, programs and education in custody. The report shows the offender's participation in the Working Together intervention, the Intervention based on strength program, and other interventions. It also details the offender's interest and referral to vocational training and tertiary education programs.
The Crown also disputed the offender's assertions about his efforts while in prison to work and complete courses. This also led to evidence being adduced which showed his daily routine of participating in Custody Employment in the MNC Furniture Workshop, commencing from 14 July 2023.
Both Dr Allnutt and Ms Cullen expressed opinions as to the offender's risk of re-offending.
In Dr Allnutt's opinion the offender falls into a group of offenders with mental illness who pose a moderate risk of future aggression if they maintain contact with antisocial associates and engage in substance use, with that risk being "low-moderate" in the absence of such contact and substance use.
In Ms Cullen's opinion the offender's sustained remission from drug taking and other protective factors [35] reduce his risk of recidivism leaving no identifiable factors that would destabilise his prospects of rehabilitation should his ADHD (and comorbid PTSD) be treated.
Although I do not accept all of the assumptions on which Ms Cullen's conclusion was derived, I am prepared to accept that the offender has some prospects of rehabilitation. I accept the evidence of his sister that he has spent his "20's watching life go by and regretting every action of his own" and would like to "turn back time and do things differently". He is significantly older than when this offence was committed. That is a further relevant factor in this regard.

[30]

Comparable cases

I have had regard to the statements of principle concerning sentencing for accessory before the fact to murder in the offender's CCA decision. The CCA found in that matter that the offender had played an integral role in the murder with full knowledge of the fact that the enterprise involved the deliberate and planned cold-blooded execution of another human being. I am satisfied that the objective seriousness of that offence was higher.
I was also referred to a number of other cases either relied upon as comparable or distinguishable.
Both parties relied upon the decision in R v Jaghbir [43] . While the offender's counsel suggested that that case involved a higher level of objective seriousness than the present case, the Crown submitted instead that it involved a lower level of objective seriousness. Mr Jaghbir received a sentence of 11 years with the opportunity for parole at 6 years and 6 months. The offender in that case duplicated a key for the deceased's unit and provided it to the murderers to enable them to access the deceased's home without warning so that he could be killed. The role that Mr Jaghbir played occurred over a 24-hour period, in circumstances where he knew of a prior attempt by the assailants to gain access to the deceased's home.
In Aoun, Gabriel v R [2007] NSWCCA 292 the applicant was found guilty following trial of the offence of accessory before the fact to murder. He prepared a stolen car to be used in a drive by shooting. His sentence of 17 years and 3 months' imprisonment, with a non-parole period of 13 years was described as a "heavy one" but not manifestly excessive.
The offender relied on the two decisions of Crane [44] which concerned two co-offenders convicted of being accessories before the fact to murder. James Crane assisted his brother to locate the victim and was sentenced to 6 years imprisonment whereas his brother Colin who organised the attack received a term of 16 years imprisonment. In R v Zanker, [45] the offender dug the deceased's grave with the principal in anticipation of the killing. He was sentenced to 12 years imprisonment after trial. I have also had regard to the decision in Blundell v R. [46]
It is well established that the results in other cases do not establish a range [47] but I have had regard to the principles derived from those decisions. I have also had regard to the fact that the maximum penalty for the offence is life imprisonment.

[32]

Totality principle

The totality principle loomed large in this matter and is the reason for the delay in sentencing the offender. The offender's existing sentence has been increased and he is currently serving a period of 20 years' imprisonment, with a non-parole period of 15 years for an offence committed during the same period.
Counsel for the offender submitted that I would adjust the commencement date of this sentence with significant concurrency to the offender's previous sentences to ensure the resulting sentence is not "crushing". Counsel for the offender submitted that a sentence with substantial concurrency would achieve a sufficient balance between the competing sentencing principles in s 3A of the Sentencing Act whilst also allowing for the offender's rehabilitation and providing him with a sense of hope that he may rejoin the community.
The Crown acknowledged that the offender is already serving a lengthy sentence of imprisonment but submitted that the significant further criminality involved in the commission of the offence, the further moral culpability, the different victim, and the harm to more innocent family members and friends warrants a significant period of accumulation of this sentence upon the sentence the offender is currently serving.
I am satisfied that the sentence I impose should be partially accumulated onto the non-parole period he is currently serving. The difficulty is, as I have already noted, the timing of this sentencing exercise. The sentence I propose to impose is shorter than that he is currently serving. Had I been sentencing the offender for both sentences at the same time I would have imposed this sentence to precede the longer sentence or imposed an aggregate sentence. As it is, even allowing for both concurrence and accumulation, if I do not significantly vary the ratio between the non-parole and head sentence the result will be an effective term with a non-parole period greater than 75% of the total effective sentence. I see no basis to do that.
The result is that it may appear that the offender has not received any significant additional time for this offence, but that is the product of the timing of the proceedings on sentence and the proper application of the totality principle.
As I have already stated, I have applied the 10% discount for his late plea of guilty to the sentence. But for that plea I would have imposed a sentence of 12 years imprisonment. The plea of guilty has reduced that sentence to one of 10 years and 9 months (adjusted slightly).
It was not suggested that any of the period spent on remand was solely attributable to this matter.

[34]

Endnotes

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J; confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].
R v Robert Nikolovski [2018] NSWSC 1147; R v Nathan John Blundell [2016] NSWSC 1810.
Danishyar v R; R v Danishyar [2023] NSWCCA 300 at [71].
Aoun, Gabriel v R [2007] NSWCCA 292. See also R v Crane [2022] NSWSC 1545; R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654.
[2022] NSWSC 1217 at [18].
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] per French CJ, Bell, Keane and Nettle JJ.
Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29 at 480.
Ibid at 487-8.
Report of Ms Alison Cullen dated 14 September 2023 at [4.6].
See [41] above.
Report of Ms Alison Cullen dated 14 September 2023 at [4.8].
Annexure B to affidavit of Jessica Fahmy sworn 20 September 2023.
Annexure A to affidavit of Jessica Fahmy sworn 20 September 2023.
Danishyar v R; R v Danishyar [2023] NSWCCA 300 at [86]-[87] per McNaughton J.
Quami v R [2020] NSWCCA 163 at [405] per Johnson J; R v Doudar [2020] NSWSC 1262 at [19] per Hulme J.
DH v R [2022] NSWCCA 200; R v Walker [2023] NSWCCA 219.
[2014] NSWSC 1705 at [46].
Imbornone v R [2017] NSWCCA 144.
Offender's written submissions dated 20 September 2023 at [29].
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Crown written submissions dated 21 September 2023.
Crown written submissions dated 15 March 2024.
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44].
Dungay v R [2020] NSWCCA 209 at [153].
R v Millwood [2012] NSWCCA 2 at [69].
Victorian Sentencing Council: Rethinking Sentencing for Young Adult Offenders.
Regina v GDP (1991) 53 A Crim R 112 at 116.
Kaanan & Others v Regina [2006] NSWCCA 106 at [277].
Stojanovski v R [2013] NSWCCA 334 at [41].
Brzozowski v R [2023] NSWCCA 129 at [3].
Ibid at [58].
Annexure 1 of the 25 January 2024 Jessica Fahmy affidavit.
Ms Cullen listed those factors as: demonstrated insight into his criminogenic needs; shame and contrition; proactive help seeking while in custody; demonstrated resourcefulness; demonstrated capacity to establish a routine and work for the majority of his time in custody; the strengthening of his familial relationships; his future orientation; his distancing from antisocial associates; his improvement in depressive symptomology and the development of an antidrug attitude.
Report of Ms Alison Cullen dated 14 September 2023 at [27].
Crown written submissions dated 21 September 2023 at [57].
Crown written submissions dated 21 September 2023 at [106].
Offender's written submissions dated 20 September 2023 at [44]-[49].
Salvatore v R [2009] NSWCCA 104 at [25] per Howie J; PH v R [2009] NSWCCA 161 at [32] per Howie J.
Offender's written submissions dated 20 September 2023 at [45].
Crown written submissions dated 21 September 2023 at [107].
R v Jaghbir (No 4) [2020] NSWSC 1704.
R v James Crane & Ors [2022] NSWWSC 1545; R v Colin Crane [2022] NSWSC 1545.
R v Zanker (No 2) [2017] NSWSC 1254.
R v Nathan John Blundell [2016] NSWSC 1810.
R v Pham (2015) 256 CLR 550; [2015] HCA 39.
Harris v R [2023] NSWCCA 44.
Sentencing Act s 44(2). 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: 10 April 2024

At a glance

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Judgment (34 paragraphs)

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Legislation Cited (3)

Cases Cited (39)