R v Doudar

Supreme Court of NSW|2020-09-09|Before: Hulme J, Mr P, Legislation Amendment J

Solicitors: Solicitor for Public Prosecutions One Group Legal File Number(s): 2018/254011

Judgment

HIS HONOUR: Mr Ahmad Doudar is to be sentenced in relation to the murder of Mahmoud Hawi at Rockdale on 15 February 2018. Mr Doudar has pleaded guilty to the offence of being an accessory after the fact to that murder. Such an offence is punishable by a maximum penalty of imprisonment for 25 years. [1]

Facts

The following account of the offence is drawn from a Statement of Agreed Facts.
Mahmoud ("Mick") Hawi came out of the Fitness First gym in West Botany Street, Rockdale shortly after midday on 15 February 2018. He got into his Mercedes Benz AMG 4WD which was parked just outside the entrance. A man dressed in black and wearing a black balaclava approached the driver's side window and shot Mr Hawi multiple times in the head and upper body with a pistol.

Objective seriousness of the offence and the offender's moral culpability

The offence of being an accessory after the fact of murder entails a wide variation of degrees of objective seriousness and moral culpability. [2] In assessing the objective seriousness of the offence in this case and Mr Doudar's moral culpability, I am satisfied beyond reasonable doubt of the following matters.
The murder itself was horrifying. It was a dangerous and violent public execution. Mr Doudar knew this. His plea, and the facts with which he agrees, indicate that he knew that his friend, Yusuf Nazlioglu, was the brazen and brutal executioner.
The precise act, or acts, which constitute the offence are limited. Mr Doudar assisted in the disposal of a car in order to help Nazlioglu evade justice. However, there was more involved in his criminality than that bare act, and that succinctly stated motive.
The gravity of the offence is not minimised, as was suggested, by the fact that two other persons were present and involved in the removal of the car, or that it was one of those persons and not Mr Doudar who drove the tow truck away. Further, I do not accept the submission that it was an activity of a "menial nature".
Another submission on behalf of Mr Doudar was that the offence was "temporally very limited". That might be so in respect of what he did when he was at 28 Highworth Avenue but it does not account for whatever was involved in prior planning and arranging. It can be inferred there was some such activity. It is also relevant to note that the principal offender, Nazlioglu, was assisted in evading justice for the period in which the police were unable to locate the vehicle. As it turned out, it was not found for another month.
The written submissions on behalf of Mr Doudar also included that the offence was not committed "for personal gain, but rather because of a misguided sense of loyalty, given the fact that [Mr Doudar] was a 'close friend' of the principal offender". I do not accept this submission. It is true that it is an agreed fact that Mr Doudar and Mr Nazlioglu were "close friends". That does not necessarily mean that loyalty was Mr Doudar's purpose in assisting Nazlioglu to evade justice. The agreed facts are silent on the point. In relation to this and a number of other factors, the agreed facts conceal more than they reveal. For all I know, Mr Doudar may have been motivated by one or more other purposes; loyalty to Nazlioglu may well have been secondary. Unsurprisingly, the written submission as to motive was not maintained at the sentence hearing. [3]
Mr Doudar was aware that the murder was well planned by his criminal associates. Murders like this do not happen by chance, opportunistically, or impulsively. They require the involvement of multiple people. Various plans, arrangements and surveillance are required. Pertinent to Mr Doudar's involvement, arrangements were needed for a secondary getaway car to be obtained, placed in position, temporarily stored and later disposed of.
Mr Doudar was motivated to assist a vicious and cold-blooded murderer to evade justice. His morality was no better than the principal offender and the other(s) who were directly involved. His preparedness to assist Nazlioglu and others to evade justice demonstrated that he shared their arrogant and immoral belief that they had an entitlement to extinguish the life of another person.
Having regard to the variety of ways in which a person can assist the principal offender in a murder to evade justice, I am satisfied that this offence is of moderate objective seriousness. Having regard to the broader range of matters to which I have referred, I am satisfied that Mr Doudar's moral culpability is high.

Mr Doudar's personal circumstances

Mr Doudar did not give evidence in the sentence proceedings. All of the information as to his personal circumstances is derived from the documents that were tendered by the parties.
He was born in 1980 and was aged 37 at the time of the offence.
He has a significant criminal history. It commenced with offending at the age of 18 (receiving stolen property and having custody of suspected stolen goods).
He was sentenced in the District Court on 10 November 2003 to a total term of 10 years and 3 months with a non-parole period of 6 years and 10 months for offences of maliciously inflicting grievous bodily harm and supplying a commercial quantity of a prohibited drug.
He was released on parole on 4 March 2009 but returned to gaol when his parole was revoked on 15 August 2009. He was re-paroled a year later (14 August 2010).
While still on parole, he committed offences on 11 April 2011 of breaking and entering with intent to steal, firing a firearm in a public place and assault. He received a total term of 2 years and 9 months with a non-parole period of 1 year and 9 months.
Mr Doudar was released on parole on 26 October 2013 but returned to custody on 27 June 2014 when his parole was revoked. The nature of the breach is not apparent from the material tendered. He was released on 29 October 2014 when the full term of his sentence expired.
On 29 March 2016, he committed offences of impeding the safe navigation of a vessel and resisting an officer in the execution of the officer's duty. He was fined and placed on a two-year good behaviour bond from 25 October 2016.
It was a condition of the bond that he continue counselling and treatment as recommended by his treating psychiatrist, Dr Olav Nielssen, and that he accept supervision by the Probation and Parole Service (as it was then known) and obey directions in relation to counselling, educational development and drug and alcohol rehabilitation. Curiously, there is no evidence about whether anything occurred or was achieved in relation to this supervision, counselling and treatment.
It was conceded that being in the community under a form of conditional liberty at the time of the offence is an aggravating feature. [4]
On 16 September 2019, Mr Doudar was involved in a violent incident at Shortland Correctional Centre. He was charged with assault and sentenced to 3 months' imprisonment. That sentence was quashed on appeal to the District Court; he was convicted but no penalty was imposed.
Two further matters of significance in relation to the criminal history may be noted. First, Mr Doudar has been held in custody for the vast majority of the period of 2002 to 2014 when he was aged 22 to 34. Secondly, his custodial history record shows numerous occasions of internal disciplinary infractions, including for violence. I accept the submission that there has been nothing since Mr Doudar was diagnosed with diabetes earlier this year, a matter I will discuss shortly.
A second-hand account of Mr Doudar's background is contained in a recent report of a psychologist, Professor Stephen Woods.
There does not appear to have been any particular aspect of his upbringing that is pertinent. He left school at the age of 16. The only employment history provided is that he established "stable employment in the area of furniture removal" in 2014/15. The psychologist refers to his "plan/hope" to resume such work when he is released. No further information is provided.
Mr Doudar is married with a three-year-old son from the six-year union with his wife. She lost her job at a beauty salon after his arrest; the reason is not stated. The psychologist reports that she had since found it necessary to relocate to less expensive rental accommodation and to rely on social security benefits as her sole source of income. Senior counsel for Mr Doudar accepted that this did not amount to hardship to a third party that could, by itself, mitigate the sentence. [5] Given the source and the paucity of the evidence, I do not think it can be taken into account at all.
A significant feature of the subjective case is that Mr Doudar was diagnosed with diabetes type 1 in early March 2020. He experienced a life-threatening event that brought about his hospitalisation and the diagnosis. He experienced significant distress in coming to terms with the fact that he had a life changing physical health issue. It took some time for medical staff to adjust his regime of treatment. He had to make lifestyle adjustments and experienced consequential psychological difficulties.
A bail application was brought in April 2020, largely upon a premise that the diagnosis adversely affected his conditions of custody, significantly because of a lack of appropriate treatment. Medical evidence was adduced but it was qualified to a significant extent by the evidence adduced by the Crown. Contrary to the way the application was first characterised, it was ultimately accepted by senior counsel for Mr Doudar that he was receiving the appropriate level of care in the custodial environment. The conclusion I reached in my judgment refusing the bail release application on the significance of diabetes was as follows: [6] "I accept that Mr Doudar has an elevated sense of anxiety and stress as a result of his diagnosis with type 1 diabetes. The evidence indicates that he is going through a period of stabilisation and that there has been improvement in that respect. He is receiving appropriate care that, in some respects, includes him receiving closer monitoring and supervision of his condition than a person might expect to receive in the community."
In the proceedings on sentence, some medical records and reports in relation to this issue were tendered. It did not advance in any material way the assessment I made at the time of the bail application in April 2020. It was not contended that I should now qualify or modify the conclusion quoted above. The principal submission was that Mr Doudar remained in a state of anxiety and distress which contributed to him experiencing, on a subjective level, more onerous conditions of custody than would otherwise be the case.
The basis for this submission was the account contained in the report of Professor Woods. I am concerned, however, that the professor based his opinions in part upon what Mr Doudar told him and in part upon the documentary material relating to the diabetes condition. There are two difficulties with this. Professor Woods is not an endocrinologist and is not qualified to express opinions about the appropriate level of care that Mr Doudar should be receiving for his condition. Secondly, Professor Woods refers to two reports that were relied upon in support of the bail application last April in which the authors referred to the level of care then as "suboptimal". It appears that this, in conjunction with what he understood from the history given by Mr Doudar, has led the professor to believe that "suboptimal" is the level of care that has continued to the present time. That was candidly disavowed by senior counsel. [7] It is accepted that Mr Doudar is being adequately treated.
The finding I made on the bail application - that Mr Doudar had an elevated sense of anxiety and stress because of his diagnosis with type 1 diabetes - was based upon events that were then recent. Five months have since elapsed. It may well be that the situation has stabilised, to some extent at least.
The evidence is not sufficient to support a finding that the applicant is experiencing more onerous custodial conditions as a consequence of his diagnosis with diabetes.
Another contribution to the assertion of more onerous custodial conditions was the current COVID-19 pandemic and the concomitant restrictions upon inmates in the correctional environment. It is well known that the restrictions include the cessation of face-to-face visits and substitution of video telephone contact with an inmate's family and friends. There is also the reduction in the availability of educational, vocational and other rehabilitative programs available to inmates. There is no evidence as to the effect these restrictions have upon Mr Doudar. I am not prepared to speculate or make assumptions in the absence of evidence.
Professor Woods wrote about certain risks, needs and "responsivity" under a heading in his report of "Risk Analysis and Treatment/Intervention Need". Unfortunately, he did not purport to provide any assessment of Mr Doudar's likelihood of reoffending or prospects of rehabilitation. He stated a belief that it was "critically important" that Mr Doudar receives treatment for his medical conditions and some appropriate psychological treatment which would be important to the question of the risk of reoffending. One of the problems with this is that I have no evidence that Mr Doudar would be prepared to engage with treatment. He was supposed to be doing that with Dr Nielssen pursuant to the good behaviour bond he received in 2016.
In the end, Mr Doudar does not really have anything to rely upon in terms of a subjective case except for his plea of guilty. He certainly does not claim to be remorseful. His prospects of rehabilitation are not positive. There can be little confidence that he will not re-offend.
I have considered what has been put in favour of there being a finding of special circumstances but in the end, and particularly because of the matters just mentioned, I am not persuaded that the circumstances are sufficiently special to justify it.

Plea of guilty

The sentence to be imposed has to be reduced because of the plea of guilty. The extent of the reduction is controversial. The Crown says that it should be by 10% while counsel for Mr Doudar say it should be by 25%.
The issue is governed by some provisions that were inserted into the Crimes (Sentencing Procedure) Act 1999 (NSW) by Parliament in 2018. [8] New s 25D provides that a court must apply a sentencing discount for the utilitarian value of a guilty plea if the offender pleaded guilty before being sentenced. Generally speaking, the discount will be 25% if the plea was entered in the Local Court, 10% if entered in the trial court at least 14 days before trial, and 5% in any other case.
Certain exceptions are provided, including for where an offender pleads guilty to an offence that is different to that for which he/she was committed for trial. The provisions of s 25D(3) and (4) are pertinent: (3) Discount variations - new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows - (a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender - (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply. (4) However, the discount in subsection (3) (a) does not apply if - (a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or (b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document.
The term "new count offence" is defined in s 25B. It is accepted that the offence of accessory after the fact to murder qualifies in this case as a "new count offence". Mr Doudar underwent committal proceedings in the Local Court on the charge of murder that was initially preferred upon his arrest on 17 August 2018. He was committed for trial on that charge. He pleaded not guilty upon arraignment in this Court and a trial was fixed for 27 July 2020. On that day, the Crown presented an amended indictment omitting the count of murder and substituting a count of accessory after the fact. Mr Doudar was arraigned and entered a plea of guilty.
It was stated in the Crown's written submissions, without dissent from counsel for Mr Doudar, that he had offered to plead guilty to the offence of concealing a serious offence [9] in the Local Court. The offer was not accepted by the prosecution. On 8 July 2020, he offered to plead guilty to the offence of accessory after the fact, with the offer being accepted by the Crown, culminating in the plea being entered on 27 July 2020.
The Crown submitted that s 25(3)(a) did not apply because of the provision in s 25D(4)(a). It contended that "the evidence establishing the new count are substantially the same as those contained in the brief of evidence". [10] It submitted that the appropriate discount was 10% pursuant to s 25D(3)(b)(i).
Counsel for Mr Doudar contended that s 25D(4)(a) did not apply because the "facts or evidence that establish the elements" of the offence of accessory after the fact are not "substantially the same as those contained in the brief of evidence" served in the committal proceedings relating to the murder charge. (There was no controversy about the second element of s 25D(4)(a), that the penalty for accessory after the fact to murder is "the same as, or less than" the penalty for murder.)
In oral submissions, the issue was crystallised as one concerned with a comparison of the content of the brief of evidence served at committal with the facts and evidence relevant to the charge to which the offender has pleaded guilty. Counsel for the offender contended that the focus is upon that part of the original brief that was concerned with the activity that is relevant to the offender's acts which constitute the accessory after offence. In short, the submission was that it was only a small proportion of the vast array of evidence contained in the original brief; a long way short of satisfying the description of being "substantially the same". [11]
The Crown, however, contended that the "facts or evidence that establish the elements of the new count offence" are substantially the same. The offence of accessory after the fact not only involves the facts concerning what an offender did to assist a principal offender to evade justice but also that there was a murder for which the principal offender was culpable. As I understand the submission, the Crown contended that the fact that a murder had been committed was a necessary element of the offence of being an accessory after the fact to murder. The brief of evidence served during the committal proceedings was in large part directed to proving the murder by proving the culpability of the principal offender (Nazlioglu). The fact that the involvement of the present offender in providing assistance to the principal offender after the murder only comprised a small proportion of the brief of evidence was, the Crown contended, not to the point.
The terminology in s 25D(4)(a) - "the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence … served … in committal proceedings relating to the original indictment" - is somewhat opaque when read on its own.
Section 25D(4)(a) must be read in light of s 25D(3)(a). That section preserves the full discount where an offender is confronted by and pleads guilty to a new offence. Section 25D(4)(a) qualifies that preservation where a new offence is founded on unchanged facts. Notably, the new offence must have the same or lesser maximum penalty than the original offence, suggesting a legislative reluctance for offenders to benefit from late negotiation of a lesser offence by receiving the full utilitarian discount.
For example, in R v Lawrence [2019] NSWDC 666, an offender pleaded guilty to entering a dwelling house and committing a serious offence instead of the charge on which he had been committed for trial, specially aggravated break and enter. The facts being substantially the same, 25D(4)(a) operated to prevent the full discount being allowed (at [9]).
Recourse to the second-reading speech of the Attorney General provides limited assistance on the intended function of the provisions: [12] "There is also a variation to allow a person to receive a higher discount where the prosecutor lays a new charge by way of ex officio powers and there were no prior committal proceedings, or if the prosecutor adds a new offence to the indictment, where the facts and evidence that establish the new offence are substantially different from those contained in the brief of evidence for the committal proceedings. The higher discount is allowed because the accused person will not have had an earlier opportunity to consider a guilty plea to the new charges. The variations represent a careful balance between the need to provide a strict sentence discount scheme, and the practical realities of criminal offences and trials."
The second-reading speech made clear that the rationale was that "certainty about the discount that will apply is fundamental to creating a strong incentive for early guilty pleas", it being a matter of apparent concern that under the prevailing system, large discounts of up to 25% were being given for guilty pleas even as late as the first day of trial. The Attorney General added: [13] "Certainty about the discounts that apply is reinforced by only allowing for limited variations and exceptions to the sentencing discount scheme proposed."
Recourse to the Explanatory Note is unhelpful. It speaks of the issue being "if the elements of the new offence are substantially the same as the elements of the offence contained in the original indictment". The issue is concerned with the substantial similarity (or not) of the "facts or evidence that establish the elements", not the elements themselves. If anything, this reinforces that the provision is intended to preserve the discount for entirely new offences, not reconfigured offences on similar facts.
The new provisions partly enact the recommendations of the NSW Law Reform Commission in Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014). There, the issue of late plea negotiations resulting in charge variations was specifically raised and sought to be discouraged on the basis that offenders would have ample and early opportunity, under the reforms, to negotiate a plea on the facts and evidence (9.61-64).
I construe the legislative intention to have been to foreclose on large sentencing discounts being available in cases where there was earlier opportunity for pleas to have been offered and negotiated. In the present case, there was a brief of evidence served during committal proceedings from which the possibility of a plea to accessory after the fact could be raised. All of the facts and evidence pertinent to the murder and the acts which could establish culpability as an accessory after were laid out. It was certainly viable for the prosecution to offer acceptance of such a plea to the accused, or for the accused to propose the same to the prosecution. It would be inimical to the principle objective of the early appropriate guilty plea scheme to allow for the maximum discount to be available at this stage of the proceedings where there has been ample opportunity for the prospect to be explored long ago.
"Substantially the same" in s 25D(4)(a0 should be given its natural and ordinary meaning. "Substantially" invites both a qualitative and quantitative analysis. [14] Here, the essence of Mr Doudar's act founding the new offence is the same as was present in the old offence - he assisted Nazlioglu to evade detection following the murder of Mick Hawi.
The quantity of evidence founding the offence is substantially similar when regard is had to the fact that the majority of the evidence in the original brief went to the commission of the principal offence by the principal offender. The commission of the principal offence was a necessary and implicit part of the new offence. The Crown's contention to this effect should be accepted.
My knowledge of the committal brief of evidence is primarily derived from my having read the Crown Case Statement filed in this Court. It makes apparent that the brief was compiled so as to establish that various people were complicit, proved by their activities prior to, at the time of, and subsequent to the murder. Four accused were committed to this Court for trial based upon this brief of evidence. Mr Doudar was alleged to have been the principal organiser; Yusuf Nazlioglu was alleged to have been the shooter; Jamal Eljaidi was alleged to have been the getaway car driver; and Moustafa Salami was alleged to have been an accessory after the fact. Some of the evidence was relevant to establishing the involvement of only one, or some of the accused, but proof of the murder generally was relied upon by the Crown in relation to each of the accused, including the present offender.
It is tempting but artificial to conclude that simply because there has been a narrowing of the offender's role, the facts and evidence of the offending are substantially different. The new offence occurred within substantially the same factual and evidentiary matrix as the original offence.
Accordingly, I propose to allow for a reduction of sentence of 10%.

Other matters relevant to the assessment of sentence

The purposes of sentencing are set out in the sentencing legislation and are well known. Making the offender accountable for his actions; denouncing his conduct; and deterring him from further offending are particularly pertinent in this case. Deterring others who might be minded to assist criminals to escape detection, arrest, prosecution and punishment for serious acts of violence is equally important.

Family victim impact statements

Statements by the deceased's wife, Ms Carolina Gonzalez, one of his sisters, Ms Zeinab Hawi, and his parents, Mr Ahmad and Mrs Nahda Hawi, were read at the sentence hearing. They each provide very moving accounts of the loss and the grief that has resulted from the taking of their loved one in the most horrendous of circumstances.
These statements were not admissible and cannot be taken into account in the way provided for in the sentencing legislation, but there was no objection to them being received and acknowledged nonetheless. [15]
I am grateful to Ms Gonzalez, Ms Hawi, and Mr and Mrs Hawi, and commend their courage and fortitude in giving voice to the various ways in which a crime such as the murder of a loved one can have such a terrible impact upon so many people. Sincere condolences go to all who mourn the loss of Mr Hawi as a member of their family, or as a friend.

Sentence

Ahmad Doudar has been convicted of being an accessory after the fact to the murder by Yusuf Nazlioglu of Mahmoud Hawi at Rockdale on 15 February 2018. [16]
He is sentenced to imprisonment comprising a non-parole period of 3 years and 4 months and a balance of term of 1 year and 2 months.
The total sentence is one of 4 years and 6 months. If not for the offender's plea of guilty, the sentence would have been one of 5 years.
The sentence is to date from 17 August 2018. The non-parole period will expire on 16 December 2021. The offender will thereupon become eligible for release on parole.

Endnotes

Crimes Act 1900 (NSW), s 349(1)
See, for example, R v Stanford, Marcus [2016] NSWSC 1174 and R v Johnson [2014] NSWSC 1254
Tcpt 9.9.209 at p5
Email from senior counsel for Mr Doudar, 9 September 2020, 4.39pm.
Tcpt 9.9.20 at p15
Doudar v Director of Public Prosecutions (NSW) (unrep, Supreme Court NSW, 17 April 2020) at [26], cited in written submissions on sentence.
Tcpt 9.9.20 at p8
By the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW).
Crimes Act 1900 (NSW), s 316(1), which at the relevant time carried a maximum penalty of imprisonment for 2 years
Crown written submissions at p2
See, for example, Tcpt 9.9.20 at p12 l25
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 282
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 281
Oxford English Dictionary "substantially" (def 1b, 3); see for example Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280.
See the reasoning of Davies J in this regard in R v McCloskey (No 5) [2020] NSWSC 1087 at [37].
Tcpt 27.7.20 p8 l26 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: 17 September 2020

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017(NSW)

By the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017(NSW)

(1999) 106 LGERA 298

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