R v Dion

Supreme Court of NSW|2021-08-09|Before: Beech-Jones J, McHugh J

Background

The following description of the offence is taken from the evidence adduced at the trial and is consistent with the jury's verdict. To the extent I make findings of fact adverse to the offender, then I am satisfied of the relevant fact beyond reasonable doubt. To the extent that I make findings of fact favourable to him then I am satisfied of the relevant fact on the balance of probabilities (see R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ).
On the evening on 6 June 2018, Mr Phetmang's body was located lying in a ditch in bushes just to the side of Homebush Bay Drive at Sydney Olympic Park. [1] His body was found underneath a white mattress cover and was wrapped in a black "corflute" style plastic sheet which was tied around him with string. [2] His mouth was gagged with a t-shirt. [3] A forensic pathologist, Dr Rebecca Irvine, performed an autopsy over the following two days. [4] Her evidence is further described below but she concluded that the cause of death was head injuries, a conclusion I accept.
At the time of his death, Mr Phetmang was of slight build and in good health. [5] He was married but lived separately from his wife and family who were in Wollongong. Instead, he predominantly lived in Guildford with his boyfriend. [6] For a number of years, he had been selling relatively small amounts of drugs including "ice" at a retail level. Since 2016, one of his associates was Farhad Ghahremani. [7]

24 to 27 May 2018

As I will explain, the offender's version was that in making contact with Mr Phetmang just prior to the latter's death, he was assisting in the pursuit of a plan conceived by Mr El‑Anani on the evening of 24 May 2018, to steal drugs from Mr Phetmang.
A series of text messages were sent between the offender's mobile phone and Mr Phetmang's mobile phone just after midnight on 24 May 2018. [11] There were further messages exchanged between them on 25 May 2018.
Closed Circuit Television ("CCTV") footage taken at 7.28pm on 25 May 2018 shows the offender and Mr Phetmang entering a "7 Eleven" store in south Hurstville, the offender unsuccessfully attempting to withdraw funds from an automatic telling machine ("ATM") and then leaving with Mr Phetmang in the offender's car. CCTV footage taken from a neighbouring property, shows that at around 7.57pm the offender drove his car into the underground parking area of the Belmore units. Mr Phetmang was in the front passenger seat.
CCTV footage taken from the neighbouring property also shows that at around 8.27pm Mr El‑Anani was seen to leave the Belmore units in his car. He travelled in the direction of Ms Simone's residence. [12] In her evidence, Ms Simone confirmed that Mr El‑Anani came to her residence for dinner that evening and did not appear disturbed or flustered when he arrived. [13] CCTV footage shows Mr El‑Anani returning to the Belmore units at around 9.50pm.
The Crown case was that on his arrival at the Belmore units at around 7.57pm that evening the offender drove his car to the carwash area on the second underground level and murdered Mr Phetmang there. Mr El‑Anani's evidence was that he parked in his regular parking spot on the first underground level and did not see the offender's vehicle when he left the Belmore units.
Later that evening, a number of SMS messages were sent from Mr Phetmang's telephone to Mr El‑Anani's phone. I am satisfied they were sent by the offender as part of some attempt to disguise the fact that Mr Phetmang was already dead. The Crown also contended that it was part of an attempt to implicate El‑Anani in his death, a matter I will return to. At the time the messages were sent, Mr Phetmang was dead and his body hidden in the carwash area of the Belmore units. The CCTV footage also shows that, after sending the messages, the offender left the Belmore units in his car and returned later. In his evidence, the offender said that he was searching for a location to dispose of Mr Phetmang's body. [14]
Tendered in evidence were a series of photographs taken from the offender's mobile phone. [15] They include self-taken photographs of the offender posing in a red singlet. [16] They have a "capture" time and date of 4.04am on 26 May 2018. [17] I am satisfied they were taken at that time.
CCTV footage and telephone records reveal that the offender left and returned to the Belmore units throughout Saturday 26 May 2018. The offender's evidence was that he did not dispose of the body that day as he was waiting until Mr El‑Anani returned from his work. [18]
The offender's vehicle left the Belmore units carpark at around 5.30am on Sunday 27 May 2018. [19] Just before 6.00am, his mobile telephone connected to a communications tower in the vicinity of Homebush. [20] In his evidence, the offender said that, around this time, he left Mr Phetmang's body at the point it was later found. I am satisfied that this is so. From that point he drove to a building site at a residence in East Killara where he and Mr El‑Anani had recently worked. At that location he left some of his own clothes and Mr Phetmang's clothing. [21]
The offender returned to the Belmore area sometime after 1.30pm. Before he did so, he made two telephone calls. First, he telephoned his ex-wife in the USA, Aycha El‑Lon, and told her he was worried about threats to his life from drug dealers. [22] She encouraged him to come to the USA. At around 1.10pm, she purchased him an airline ticket for a flight leaving that evening. [23] Second, at around 12.28pm, the offender telephoned triple-0 and reiterated his fears of being hurt by drug dealers and mentioned leaving for the USA. [24]
The offender returned to the Belmore units and then went to the airport shortly after 6.00pm. He left his vehicle parked at the Belmore units where it blocked access for some residents. The offender's flight departed later that evening. Before he left, he sent a number of texts from Mr Phetmang's telephone to Mr El‑Anani about a potential drug purchase that led to Mr El‑Anani travelling to Hurstville for a purchase that could not take place. [25] The Crown contended that he sent the text messages to create a ruse that Mr Phetmang was still alive and implicate Mr El‑Anani in his death. The following day Mr El-Anani discovered the offender's car in the carpark of the Belmore units. He noticed that the interior was wet from being hosed out. He later arranged for the car to be towed.

June 2018 to May 2019

The offender travelled to California and lived for a period with Ms El-Lon and their two sons. He took Mr Phetmang's credit and identification cards with him. [26] Between 11 June 2018 and 20 June 2018, he made a number of purchases and cash withdrawals in the USA using those credit cards. [27]
In the meantime, Mr Phetmang's body was discovered and the police investigation quickly focussed on the offender. Although it was not the subject of evidence at the trial, the evidence adduced at the sentence hearing reveals that he was arrested on 6 September 2018 for violating a restraining order. At the time of his arrest, he was in possession of Mr Phetmang's identity and credit cards. He remained in custody for the violation of the restraining order until 21 September 2018. However, he was also the subject of a "federal hold" from 11 September 2018 for extradition for the murder of Mr Phetmang. The offender was extradited to Australia in April 2019. He was briefly interviewed by NSW police on 9 May 2019.
From the time of his departure to the USA on the evening of 27 May 2018, up to and including his interview on 9 May 2019, the offender spoke to various people including NSW police about his knowledge of Mr Phetmang's death. In the summing up, I directed the jury about eight such statements, whether they were lies and, if so, whether they demonstrated a consciousness of guilt of killing Mr Phetmang on the part of the offender. [28] A similar direction was given in respect of his actions in departing for the USA; ie "flight". [29] It is unnecessary to outline the details of those statements other than to note that he gave differing versions of the events surrounding Mr Phetmang's death. Sometimes he stated that he had been threatened by and was fearful of drug dealers and either stated or hinted that they killed Mr Phetmang. [30] In his various discussions with Mr El‑Anani and NSW police officers, he modified this story and repeatedly sought to implicate Mr El‑Anani in the killing of Mr Phetmang while exonerating himself. [31]

Further Findings

At the trial it was ultimately not disputed that Mr Phetmang was killed on the evening of 25 May 2018 and his body was dumped near Homebush Bay Drive by the offender on 27 May 2018. As noted, the Crown contended that the offender lured Mr Phetmang to the carwash area of the Belmore units by arranging to meet him at the 7-Eleven store and then, being unable to withdraw cash from his ATM, convinced him to accompany the offender to the Belmore units. The Crown contended that once he was in the carwash area, he violently assaulted Mr Phetmang to steal his drugs and in doing so murdered him. Subject to what follows, I am satisfied beyond reasonable doubt of those matters.
In light of the issues raised on sentencing it is necessary to note the version of events given by the accused at the trial, some aspects of which have already been noted.
The offender said that on the evening of 24 May 2018 Mr El‑Anani suggested that they "rip off Mario" ie, Mr Phetmang [32] specifically, Mr El‑Anani, suggested that he would have sex with Mr Phetmang and take his drugs. [33] He said that Mr El‑Anani suggested that the offender would meet Mr Phetmang to arrange a purchase, attempt to withdraw money from an ATM and then they would travel to the Belmore units for Mr El‑Anani to take the drugs from him. [34] The offender said that he exchanged messages with Mr Phetmang throughout 25 May 2018 about Mr Phetmang supplying an "8 ball" of ice being 3.5 grams. [35] The offender recounted taking Mr Phetmang to a "7‑Eleven or just the supermarket" at Hurstville in an attempt to withdraw cash from an ATM. [36] He said that as part of the prearranged plan he spoke to Mr El‑Anani on speaker phone and asked him if he had cash, to which he agreed. [37]
The offender said that he then drove Mr Phetmang to the Belmore units and Mr El‑Anani met them at the entrance to the car park. The offender said that he then left the vehicle and went to his apartment while Mr El‑Anani drove Mr Phetmang to the underground carwash area. The offender said that he waited at the apartment for "between 15 to 10 minutes". Mr El‑Anani then came to their apartment and said that the attempt to take the drugs had gone wrong and he, Mr El‑Anani, had "lost my mind", punched Mr Phetmang and "hit him with a hammer". [38] The offender said they then smoked some ice and he, the offender, offered to help him cover the body after which Mr El‑Anani went to Katia Simone's place for dinner. [39] The offender said that upon his return they both agreed to make Mr Phetmang's death look like a robbery by tying his hands and legs and "dump[ing his body] somewhere". [40] The offender said that he tried to find a place to dump the body that evening but could not. [41] As noted, the offender said he did not dispose of Mr Phetmang's body the following day but instead waited until Mr El‑Anani returned from work at which time Mr El‑Anani suggested dumping the body and other items at the East Killara work site.
The jury was instructed that, if they accepted even the reasonable possibility that the offender's version of events was true, then they must acquit him. [42] It follows from the jury's verdict that it comprehensively rejected the offender's evidence at least so far as it exonerated himself for the murder of Mr Phetmang. Insofar as the offender's version asserted that Mr El‑Anani conceived of a plan to steal drugs, and then killed Mr Phetmang, while the offender was only a loyal friend prepared to take the extraordinary step of disposing of the body and absconding from the country, then it collapsed under the combined weight of the inconsistent statements noted earlier ([24]), Ms Simone's evidence as to the timing and appearance of Mr El‑Anani when he attended at her place for dinner on the evening of 25 May 2018 and its own implausibility. However, once the role of Mr El‑Anani is removed from the offender's version and the offender is substituted for him, the offender's evidence as to the killing is very much consistent with the Crown case, which is not surprising given that it was the offender who killed Mr Phetmang and knew how it occurred.
In considering how Mr Phetmang was murdered it is necessary to return to Dr Irvine's evidence. At the time of her post mortem examination Mr Phetmang's body had been subject to extensive decomposition. [43] While Dr Irvine referred to a strong possibility of an "asphyxial mechanism" contributing to Mr Phetmang's death, she identified the cause of death as "head injuries". [44] Dr Irvine said Mr Phetmang had suffered "fractures of the skull, a circular fracture of the right … side of the skull … shattered 'nasal fractures'" as well as a fracture of the proximal joint of the left thumb. [45] Dr Irvine also observed "at least 27 soft tissue defects on the head". Dr Irvine described a fracture to the front of the skull and the nasal area as "blunt force injuries". [46] She was doubtful that they could have been caused by punching but accepted they could have been caused by contact with a concrete floor. [47] Dr Irvine also found a fracture to the right side of the skull which she described as a "pattern injury" being caused by contact with an object with particular characteristics. [48] Dr Irvine accepted the possibility that it was caused by a hammer. [49]
Each of the Crown Prosecutor and Senior Counsel for the offender, Ms Avenell SC, made various submissions about what findings, consistent with the jury's verdict, should be made in relation to the murder of Mr Phetmang.
First, it was common ground that the evidence lead at the trial demonstrated that the offender intended to seize drugs from Mr Phetmang for his personal use (and perhaps that of Mr El‑Anani) and not for sale to others. The offender had started using ice relatively recently and there was no evidence that he had any means or intention to sell drugs to others. In fact, much of the offender's erratic behaviour in the hours and days following Mr Phetmang's killing is best considered in the context of the offender most likely consuming the ice he seized from Mr Phetmang. The apparently happy photograph the offender took of himself at around 4.00am on 26 May 2018 posing only eight hours or so after he had bludgeoned Mr Phetmang to death seems only explicable on that basis. [50]
Second, it was not contended that the killing of Mr Phetmang was premeditated in the sense that the offender planned to kill him to take his drugs. I am certainly not satisfied that he did. However, the Crown Prosecutor did submit that he sought to lure Mr Phetmang to take his drugs by attempting to withdraw funds from the ATM knowing that there were insufficient funds in his account. He also submitted that the offender had determined that, if Mr Phetmang did not hand over the drugs he was carrying, the offender "would use violence to obtain them". [51] Ms Avenell submitted to the contrary.
I am satisfied beyond reasonable doubt that the offender lured Mr Phetmang to the basement of the Belmore units to take his drugs and that, as part of his plan to do so, he attempted to withdraw funds from the ATM knowing that there were insufficient funds in his account to pay for them. Given his conduct in trawling for drugs over the days prior I am satisfied that he would have known precisely how much was in his own bank account. I am also satisfied beyond reasonable doubt that he was prepared to use violence if Mr Phetmang did not voluntarily yield the drugs. However, I am also satisfied that he did not anticipate that much force would be required given the difference in size between the offender and Mr Phetmang and the location the latter had been lured to.
Third, a determination of the manner in which the offender killed Mr Phetmang is not straightforward. Dr Irvine's evidence has just been noted. Her evidence confirms that significant force was repeatedly applied to Mr Phetmang's head. I am satisfied that at some point the attack on Mr Phetmang became very savage. A blood stain was found on the wall of the underground carpark area at the Belmore units, as was DNA matching both the offender and Mr Phetmang. [52] No weapon or instrument with a pattern matching the circular fracture found on the side of Mr Phetmang's head was located. As noted, Dr Irvine accepted that at least some of the serious fractures could have been caused by Mr Phetmang falling on concrete or more likely his head being bashed on concrete.
Given the circumstances that led to the killing, the most likely scenario appears to be one in which the offender initially used more violence than he originally anticipated, perhaps because of Mr Phetmang's resistance, and then, having seriously hurt Mr Phetmang, determined to kill him and use a weapon to do so. Although beyond that it is speculative to attempt to outline the course of the attack, I am satisfied beyond reasonable doubt that at some stage during the attack the offender formed the intention to kill Mr Phetmang. I am also satisfied that at some point he used a weapon or instrument to cause the fracture to the side of his skull, but I am left uncertain as to what point in the attack that occurred. I am also uncertain as to what that weapon or instrument was and whether it was taken to the scene as such to be used in case it was necessary or was just seized by the offender as his attack became more savage and he determined to end Mr Phetmang's life.
The Crown Prosecutor submitted that the use of the weapon occurred in circumstances where the offender was assaulting Mr Phetmang in the car and the offender retrieved the weapon from outside giving him time to reflect on what he had done. [53] There is too much speculation involved in that contention to conclude beyond reasonable doubt that the attack occurred in that way.
Further, in his written submissions the Crown Prosecutor noted that the offender's evidence was that Mr Phetmang was bound and gagged after he died to make it look like he had been robbed. In fact, the offender's evidence was that he bound Mr Phetmang's body but did not gag him. [54] Relying on Dr Irvine's evidence, the Crown Prosecutor submitted that it was open to be found that Mr Phetmang was still alive at the time he was gagged and bound. [55] I accept that there is a reasonable possibility that he was still alive at that time and died from his head injuries while gagged. However, even if that was so, I am not satisfied beyond reasonable doubt that the offender knew Mr Phetmang was alive when he bound and gagged him. By that time, it is most likely he had suffered head fractures and was immobilised. He was then left in the car or in the carwash area. I doubt that the offender would have left him if he thought it was possible that he was still alive.
Fourth, there was a debate about whether the offender's actions in texting Mr El‑Anani from Mr Phetmang's phone on the evening of 25 May 2018, leaving some of his own and Mr Phetmang's clothing at Killara on the morning of Sunday 27 May 2018 and sending further texts from Mr Phetmang's phone on the evening of 27 May 2018, were undertaken to implicate Mr El‑Anani in Mr Phetmang's death. The text messages were certainly sent in an attempt to create evidence that he was still alive when he was dead. Ms Avenell submitted that to suggest these acts were undertaken to implicate Mr El-Anani involves an analysis of the offender's actions in circumstances where he was behaving erratically during that period. Ms Avenell noted that the offender left his own clothes at Killara. There is considerable force in that submission, and I am left in some doubt about his actions until the afternoon of 27 May 2018. Nevertheless, I am satisfied beyond reasonable doubt that, by no later than the evening of 27 May 2018 when he sent the text messages to Mr El‑Anani from Mr Phetmang's telephone, the offender had formed the rudimentary intention to implicate Mr El‑Anani in the killing of Mr Phetmang. Hence, he sought to create a record of a supposed rendezvous between Mr El‑Anani and Mr Phetmang for a drug deal. However, I do not accept that his conduct in doing so adds to any assessment of the objective seriousness of the murder of Mr Phetmang although it does inform my assessment of other sentencing factors.
Fifth, one matter that does affect the assessment of the objective seriousness of the murder of Mr Phetmang is the manner of the disposal of his body (Knight v R [2006] NSWCCA 292 at [28] per McClellan CJ at CL). Both from a view of the scene and photographs, I was able to inspect the location where the offender left Mr Phetmang's body. As noted, the body was located in a ditch just adjacent to Homebush Bay Drive. Homebush Bay Drive is a very busy road. The body was left there by the offender on his journey on the morning of 27 May 2018 with about as much respect as would be afforded an item of rubbish thrown from a car. The thought of Mr Phetmang's body decomposing undisturbed in a ditch next to a busy suburban road for a week and a half must be especially painful for his family and loved ones. It was a sad and pitiful resting place. I consider it likely that the offender's decision to leave the body there and then was affected by his consumption of ice. Nevertheless, it was a contemptuous act and a factor that aggravates the seriousness of his offending (R v Dong [2021] NSWCCA 82 at [57] and [63]; "Dong").

The Offender's Subjective Circumstances, Remorse and Prospects of Rehabilitation

Some of the offender's personal circumstances were the subject of evidence adduced from him at the trial as well as from an affidavit from a family member that is the subject of a non-publication order. However, most of the evidence of his subjective circumstances was adduced through the reports of a psychologist, Ms Alison Cullen. As I will explain, the Crown disputed the reliability of some of that history.
As at the date of sentencing, the offender is 41 years of age. He was born and raised in Lebanon and is the youngest of three siblings. When he was one his father died. His mother remarried four years later but his stepfather passed away when he was 12. According to Ms Cullen's report, the family then endured extreme poverty [56] and hardship during the (second) Lebanese civil war. However, the report identifies the most traumatic experience of his youth as being a period of one year when he was sexually assaulted by a man who worked as a cleaner. [57] Having regard to the affidavit noted above, I am satisfied this occurred.
When he was 21 years old the offender met and then married his first wife who was then 35 years old. They had two sons. Around 2008, he travelled to the USA and met and married his second wife, Ms El-Lon. They had two children. In 2013 they divorced, although as is evident from the above, they remained close. At the request of his brother, Romell Segal, the offender came to Australia in 2015 to assist him in managing a restaurant in Melbourne on his behalf. [58] According to Ms Cullen's report, the offender suffered neck and lower back injuries in a motor vehicle accident in Victoria in July 2015. He subsequently lodged a claim for compensation which was unresolved as at the time he was arrested. Ms Cullen's report notes that after his accident his brother's restaurant failed.
Ms Cullen reported that, after the motor vehicle accident, the offender took Tramadol. As noted, he moved to Sydney in 2017. Ms Cullen reports him as having had no access to Tramadol in Sydney and having turned to methylamphetamine which "impaired his decision making with respect to engaging in gambling behaviours as well as the index offence". [59] Ms Cullen opined that, at the time he killed Mr Phetmang, the offender would have satisfied the diagnostic criteria for a Stimulant Use Disorder (Amphetamine Type Substance) with the relevant stressor being the motor vehicle accident. Ms Cullen considered that an instance of drug use by the offender in jail in September 2018 was symptomatic of that condition. [60] Ms Cullen administered an actuarial assessment tool to determine that the offender had a low risk of recidivism which she quantified at 11.7%. [61]
Ms El-Lon swore an affidavit describing how, even though they divorced in 2013, she and the offender remain close and regard themselves as partners. She said their children are aged 12 and 10, are close to their father and are distressed by his being in prison. They are able to speak to their father via video calls. She says the offender cries over the phone in conversations with her.
Leaving aside this matter, the offender has no convictions in Australia. In 2010 he pleaded guilty to assault in California. He was sentenced to 3 years of probation and fined. It is accepted that conviction concerned an assault on Ms El‑Lon. As noted above, in September 2018 he was arrested for violating a restraining order. He pleaded guilty and was sentenced to 30 days jail. Otherwise, his prison record is generally uneventful with the only matters of note being three administrative penalties, one for possession of some form of drug, one for failing a drug test and another for possession of a mobile phone.
In supplementary written submissions, the Crown referred to the contents of two psychiatric reports prepared for the purposes of the offender's insurance claim in Victoria that contained some differences in the account of his upbringing to that set out in Ms Cullen's reports such as the age his stepfather died and when he left school. [62] During submissions, Ms Avenell expressly disclaimed any submission that the offender's personal circumstances were such as to enable him to rely on the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. In those circumstances, and accepting that the offender is an unreliable historian, I do not consider it necessary to resolve the differences between the various versions of the applicant's upbringing. It suffices to state that I consider it likely he had limited schooling, that the family experienced hardship when his stepfather died and that growing up in Lebanon in the aftermath of the second Lebanese civil war would have been generally difficult. For the reasons already noted, I also accept that at some point in his youth the applicant was sexually abused by someone outside his family.
The Crown also referred to parts of a statement that the offender's brother, Romell Segal, provided to the police in July 2018 which referred to his involvement with other women since his arrival in Australia including his participation in marriage ceremonies and the absence of any statement by Ms El-Lon of her knowledge of that. The Crown effectively submitted that this undermined so much of Ms Cullen's assessment of the offender's prospects of rehabilitation that was dependent on an acceptance of his support from Ms El‑Lon and the importance he placed on family and fatherhood. I do not attribute much weight to this. In the context of a crime such as this one, an assessment of his fidelity to his ex-wife or partner is of little relevance to an assessment of whether he is of good character. It also has little relevance to an assessment of his prospects of recidivism on his release after serving a long sentence. I expect that Ms El‑Lon knows the offender as well as anyone and her support for him derives principally from her concern for her children. One way or another the offender has often been able to have supportive people around him except when he was in Sydney.
Ultimately, this inquiry is directed to the various matters that affect the sentencing exercise. One matter of relevance is whether I am satisfied that the offender is remorseful for his murder of Mr Phetmang. Ms Cullen reported that the offender said that he felt "guilty" for moving Mr Phetmang's body. [63] During the reading of the victim impact statements the offender was in tears. Ms Avenell sought to deploy the assistance and cooperation that was afforded during the trial as a matter also supporting the contention that the offender is remorseful. I will return to address that level of cooperation shortly, but it suffices to state that I am not satisfied on the balance of probabilities that he is remorseful for either dumping Mr Phetmang's body or killing him. His actions in dumping the body and absconding have already been described. There was not a skerrick of remorse apparent in his actions or in his statements to police and others noted above ([24]). From observing him give evidence I did not discern that either. Tears at the sentencing hearing are not sufficient to demonstrate remorse, at least in this case.
However, a lack of remorse is not necessarily fatal to a favourable finding about the risk of recidivism. Overall, Ms Avenell submitted that the killing of Mr Phetmang should be seen as a "singular isolated incident" in her client's life which was consequent on his developing an amphetamine addiction following the deterioration in his life after being in a car accident. [64] It was submitted that, given the support he will receive from his family, and allowing him scope to address his drug addiction, warrants a favourable finding in relation to his prospects of rehabilitation and the affording of a measure of leniency overall.
The Crown was critical of the basis of Ms Cullen's assessment of his prospects of rehabilitation noted above and queried the means by which it was determined. As noted, Ms Cullen used an actuarial based risk assessment tool which can be useful but has its limitations.
Although I do not completely accept the apparent attractiveness of a simple linear progression from car accident, to pain killer addiction, then to ice addiction and then to murder to obtain ice, it is nevertheless a timeline that has considerable force especially when considered against the absence of any serious criminality on the part of the offender prior to the killing of Mr Phetmang. Further, by the time he is released the offender will be considerably older and I expect he will still have some form of family support available to him. In those circumstances, I consider that he has reasonable prospects of not engaging in any serious criminality on his release. As for other forms of anti‑social behaviour, I consider his prospects are more guarded.

Victim Impact

Victim impact statements were read to the Court on behalf of Mr Phetmang's mother, aunt, sister and wife.
His mother, Vipada Phetmung, told the Court of how her heart broke on hearing the tragic news of her son's death. She described her son as polite, good hearted and with a bright future. She describes her life now as "just a nightmare" and how she has to "breathe to survive".
Mr Phetmang's aunt, Tipawan Lee, told the Court how she encouraged her nephew to come to Australia after he graduated from university to continue his education. When he arrived, he obtained full time work and then permanent residency. She said he was planning to pursue further study. She describes her pain that his life "ended in such cruelty" and how sorry she feels that she encouraged him to come to Australia.
In her victim impact statement, Mr Phetmang's sister, Walapa, described how close she was to her brother. She said they had the same group of friends and worked at the same café. She said her brothers' death has left her "lonely and isolated". She says she has "lost faith in mankind and no longer sees the world as a safe and predictable place". She resigned her job rather than face questions about the fate of her brother.
Mr Phetmang's wife, Rujira, told the Court that she was married to Mr Phetmang for 7 years and that in "a relationship between us could be anything [there] are no limits of the word love". She says that she will never forgive whoever took her husband's life.
The Court is obliged to consider these statements (s 30E(1)(a)). They paint a picture of a strong family who loved and supported Mr Phetmang and who are grief stricken at his death. The Court extends its condolences to Mr Phetmang's family and loved ones.

Aggravating and Mitigating Features, Objective Seriousness and Sentencing Factors

In his submissions, the Crown Prosecutor identified three aggravating features of the offending for the purposes of s 21A of the Sentencing Act, namely the use of a weapon (s 21A(2)(c)), [65] that the offence was part of a planned or organised criminal activity (s 21A(2)(n) [66] and was committed for financial gain, namely methylamphetamine (s 21A(2)(o)). [67] The factual basis for these submissions has been addressed above and in broad terms is established. However, the fact that the offence is murder means that the use of a weapon does not add much to an assessment of objective seriousness (Milat v R; Klein v R [2014] NSWCCA 29 at [95]) and that is especially so given the uncertainty about what weapon was used and how and when it was used. The use of a weapon by the offender in this case has not made any material contribution to my assessment of the objective seriousness of the offence. The planned nature of the criminal activity that led to the murder and the suggested gain are very much the same matter in this case and affect the assessment of objective seriousness but not to a great extent.
In terms of mitigating factors, the findings I have made mean that, at least to a limited extent, the mitigating factors specified in s 21A(3)(e) (no significant criminal record), s 21A(3)(f) (good character), s 21A(3)(g) (unlikely to re-offend) and s 21A(3)(h) (prospects of rehabilitation) are established.
Further, it was common ground that the degree of pre-trial disclosure by the defence and their cooperation in the conduct of the trial is a mitigating factor in this case (s 21A(3)(l)). In particular, s 22A(1) of the Sentencing Act provides that a court may impose a lesser penalty than it would otherwise impose on an offender "having regard to the degree to which the administration of justice has been facilitated by the defence". It is not necessary to specify the level of discount (Droudis v R [2020] NSWCCA 322 at [105]) and the discount must not result in the imposition of an "unreasonably disproportionate" sentence (s 22A(2)).
Reflecting the outcome of a comprehensive investigation undertaken by the informant and those who assisted him, it was accepted that the material served in support of the Crown case was vast. The offender and his legal team absorbed the material and facilitated the course of justice by outlining in advance of the trial the real issues in dispute. Instead of a long trial, what emerged was a focussed defence which from the outset accepted that the offender disposed of Mr Phetmang's body but contended that someone else killed him. In the end result, the trial occupied six weeks with any delays only being the result of pandemic restrictions and juror illness. Absent those matters the trial would have been much shorter. In determining the offender's sentence, I have taken this co‑operation into account.
The parties debated the objective seriousness of the offender's crime and proffered various classifications by reference to the middle of the range of objective seriousness of the offence of murder. Such an assessment is to be undertaken "without reference to matters personal to a particular offender or class of offenders …[and]… it is to be determined wholly by reference to the nature of the offending" (Muldrock at [27]). Given that I am not satisfied that the killing was premeditated, although it was the result of a plan to rob Mr Phetmang most likely with minimal violence, and given the contemptuous treatment of his body, I consider that this crime lies at the middle of the range of objective seriousness for the offence of murder.
Section 3A of the Sentencing Act specifies the various purposes of sentencing, namely, ensuring the offender is adequately punished, general and specific deterrence, the promotion of rehabilitation, making an offender accountable for his actions, denouncing an offender and recognising the harm done to the victim of the crime and the community. Each of these are engaged in the case of this crime and this offender. This is not a case where there is either a reason to give diminished weight to general or specific deterrence or additional weight to the need to protect the community from the offender (cf Dong at [48]).
The Crown referred the Court to four cases in which sentences were imposed for murder which were said to be comparable to this one. One of those cases is the subject of appeal and I will not discuss it further (R v Ly & Ngo [2019] NSWSC 502). Another case was Dong in which the offender was resentenced on a Crown appeal to 21 years imprisonment with a non-parole period of 15 years and 8 months after allowance for a 25% discount on account of his plea of guilty. Prior to allowance for the discount the total sentence was 28 years imprisonment. The offender murdered his flatmate and disposed of her body in bushland. The killing was premeditated (Dong at [25]). The offender was a 19 year old foreign student who had a long standing condition of schizophrenia (at [34]) which was causally related to his offending (at [52]). This warranted reduced consideration of general and specific deterrence (at [52]) but particular consideration of the need to protect the community from him (at [53]).
I was also referred to R v White [2012] NSWSC 1573 ("White") in which the offender was convicted after a trial of robbing and killing a drug dealer. The murder involved "considerable violence" (at [12]), an intention to kill (at [11]), the robbery involved a plan to inflict significant violence (at [14]) and there was an undignified disposal of the body (at [15]). It was described as a "serious case of murder" with a high level of "moral culpability" (at [16]). The offender was sentenced to 32 years imprisonment with a non-parole period of 24 years.
The fourth case I was referred to was R v Cavanagh, McIvor and O'Keefe [2021] NSWSC 746 ("Cavanagh") in which three offenders were sentenced after being convicted of murder following a trial. They engaged in a joint criminal enterprise to assault the deceased but contemplated the possibility that grievous bodily harm would be inflicted (at [16]). The victim was stabbed once, bashed and left dead by the side of a road. The offence was found to be "just below the mid-range of objective seriousness" (at [32]). Each of the offenders was in their 30s with complex subjective cases involving repeat offending, drug addiction as well as mental illness or impairment (at [33] to [85]). Two offenders received a sentence of 21 years imprisonment with a non-parole period of 15 years and 9 months while the other offender was sentenced to 20 years imprisonment with a non-parole period of 15 years.
These cases are only of assistance to the extent that they show the interplay between an assessment of objective seriousness of the crime of murder, including such matters as the level of premeditation, an offender's subjective case, including any relevant mental illness, the maximum penalty and the standard non-parole period. The murder in Cavanagh was of lesser objective seriousness compared to this case as there was no finding of an intention to kill or any planning. The murder in White was more serious given the planning and premeditation involved. Similarly, the murder in Dong was more serious given that the killing was premeditated but the offender's schizophrenia affected the sentencing process.
Lastly, I note that Ms Avenell submitted that the Court should make a finding of special circumstances under s 44(2A) of the Sentencing Act and as a consequence reduce the ratio between the non-parole period and the total sentence below three quarters. Ms Avenell submitted that was warranted to facilitate his supervision on parole. The Crown submitted that was not warranted given that the offender was likely to be deported upon the expiry of his sentence. Leaving aside whether the likelihood of deportation upon the expiry of his non-parole period is a matter than can be considered, I will not make a finding of special circumstances. The period of supervision that will be available under the sentence I will impose will be sufficiently long to facilitate his rehabilitation and a reduction in the non-parole period might result in a disproportionately lenient sentence.

Conclusion

One constant in all the descriptions of Wachira Phetmang, was that he was a peaceful and non‑violent person. From the time he realised that he had been lured into a trap in the underground car park until when he lost consciousness, he would have been terrified. His murder and the suffering of his family and loved ones was made worse by the contemptuous manner in which his body was disposed of by the offender, that is, on a busy road almost as an afterthought. The events that led the offender to commit such a brutal crime point significantly towards his recently acquired addiction to, or at least use of, methylamphetamine as part of the explanation for why it occurred. That is neither an excuse nor even a mitigating factor. Nevertheless, as I have explained, the killing was not premeditated, and I do not accept that serious violence was contemplated before events unfolded in the underground car park. While all the sentencing criteria are engaged in this case, general deterrence, retribution and denunciation are the dominant sentencing factors.
I consider the appropriate head sentence for the offender is 25 years imprisonment. The non‑parole period will be 18 years and 9 months imprisonment which is just less than that required by the statutory ratio referred to in s 44(2) of the Sentencing Act.
It was common ground that the sentence should commence from the date a "federal hold" was placed on the offender while in custody in the USA, namely 11 September 2018. [68]
Alex Dion, the offence of murder is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006. The Court is obliged by s 25C of that Act to advise you of the existence of that legislation and of its application to the offence you have committed.
Alex Dion, for the murder of Wachira Phetmang you are convicted. You are sentenced to a term of imprisonment of 25 years commencing on 11 September 2018 and expiring 10 September 2043, with a non‑parole period of 18 years and 9 months expiring on 10 June 2037. You will be first eligible for release on parole on 11 June 2037.

Endnotes

T 58.47; T 60.5.
T 61.10; Exhibit AE.
T 62.12.
T 504.
T 505; T 510.
T 338.
T 337.
T 344.
T 340.
T 223 to T 224.
Exhibit Y.
Exhibit C.
T 381.
T 705.
Exhibit Z.
Exhibit Z at p 25.
Exhibit Z at p 25,
T 710.
Exhibit C; Exhibit D.
Exhibit Y.
Exhibit U at pp 4 to 7.
T 723.1.
Exhibit AC at p 7.
Exhibit AN at pp 2 to 3.
Exhibit G at pp 59 to 60; Exhibit Y.
Exhibit AM at p 11.
Exhibit AC at p 2.
Summing up 12/03/2021 at pp 24 to 48.
Summing up 12/03/2021 at pp 48 to 50.
Exhibit AK (14 September 2018).
T 77 to T 81 (20 June 2018), Exhibit O (27 June 2018), Exhibit AF (28 June 2018), Exhibit R (29 June 2018), T 487 (12 April 2019) and Exhibit AB (9 May 2019).
T 664.1.
T 686.
T 665.21.
T 668 to T 670.
T 676 to T 677.41.
T 678 to T 679.
T 683.10.
T 683 to T 694.
T 696.30.
T 710.
Summing up 12/03/2021 at p 23.
T 505.49.
T 505.6.
T 506.3.
T 512.20.
T 517.21; T 516.6.
T 512.20; Exhibit AE at p 19.
T 517.16.
Exhibit Z at p 25.
Crown submissions at [5] and [10].
Exhibit U at p 3 re R39 and R41.
Crown submissions at [19].
T 701 to T 703 esp T 703.25.
Crown submissions at [22].
Psychological Report of Ms Alison Cullen dated 2 August 2021, Exhibit 1, at p 1-2; "Cullen 1".
Cullen 1 at p 2.5.
Cullen 1 at p 4.2.
Cullen 1 at p 10.7.
Cullen 1 at p 11.2.
Cullen 1 at p 7.1.
Report of Dr Raid Al Humrany dated 11 December 2015 (Exhibit C on sentence) and Report of Dr Ash Takyar dated 11 December 2017 (Exhibit D on sentence).
Cullen 1 at 9.9.
T 09/08/2021 at p 16.
Crown submissions at [18].
Crown submissions at p 27.
Crown submissions id.
Email from the parties dated 10 August 2018.

Amendments 27 August 2021 - Third sentence of [35] previously read: "Two blood stains were found on the wall of the underground car park area at the Belmore units with one stain matching the offender and the other Mr Phetmang." 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: 27 August 2021

Approach to Sentencing

The maximum penalty for the offence of murder is life imprisonment (Crimes Act, s 19A). A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence (Crimes (Sentencing Procedure) Act 1999, s 61(1); the "Sentencing Act"). The Crown Prosecutor did not submit that a life sentence should be imposed. I am not satisfied that a life sentence is appropriate in this case.
Section 54A of the Sentencing Act specifies a standard non‑parole period of 20 years for the offence of murder. In fixing a sentence, I am required to be mindful of the maximum sentence of life and the standard non-parole period (Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]; "Muldrock"). However, I am not required to undertake the sentencing exercise by asking whether there are reasons for not imposing the standard non-parole period (Muldrock at [25]). Instead, bearing in mind those two legislative guideposts, I am required to identify all the factors relevant to the sentencing task, consider their significance, and then assess the appropriate sentence (Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J; Muldrock at [26]).

At a glance

Court

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Catchwords

Judgment (10 paragraphs)

Parties

Cases Cited (15)

Cited By (2)