The Offences
3 An agreed statement of facts was tendered at the sentencing hearing. In addition, I have had regard to aspects of the evidence of witnesses given during the trial which were touched upon in submissions. The following account is drawn from the agreed statement of facts, except where reference is made to the transcript of evidence of particular witnesses.
4 The two offenders are brothers. Dror is 33 years old and Ezra is 32 years of age. Both are Israeli nationals as was the deceased, Mr Guelman.
5 The deceased was 38 years old at the time of his death. He lived at Bondi and frequented the Zinzana Café, which was located in Glenayr Avenue near the intersection with Curlewis Street, Bondi.
6 During the late morning of 5 August 2006, the deceased and Dror had an altercation in a shop in Hall Street, Bondi. During the argument, the deceased offended Dror by calling him "an Arab". The deceased threatened to kill Dror. The two men left the shop and crossed the road. As they approached the opposite kerb, the deceased punched Dror in the side of the head. They kept walking and the deceased pulled Dror's hair and tried to punch him again. At about that point, they were in the vicinity of Dror's car, a small red Mitsubishi. Dror pushed the deceased's head into the windscreen of the vehicle, cracking the windscreen.
7 After this incident, Dror drove to his home in Vaucluse. He related the incident to his partner, Michelle Stratford. She observed swelling on Dror's nose and a cut between his nose and left eye. He also had a bleeding thumb, but no blood on his clothes. These injuries were confirmed by a subsequent medical examination.
8 Dror left his home for several hours and returned in the late afternoon. He left the house that evening after receiving a call from Ezra, informing Ms Stratford that someone was threatening him and the family and the business and that he was going to see his brother.
9 Shortly after 9.00 pm, the deceased walked into the Zinzana Café. Dagan Arazi was seated at a table with his friend, Ilan Tzemach. The deceased appeared anxious and angry and told Mr Arazi about the earlier incident. Also in the café was Faig Nisanov. The deceased told Mr Nisanov that he would kill the Salah brothers. Mr Nisanov left the Zinzana Café and walked down Glenayr Avenue away from the intersection of Curlewis Street and Glenayr Avenue, Bondi. Mr Nisanov saw Dror driving a green Mitsubishi Pajero along Glenayr Avenue heading towards the Zinzana Café. Ezra was in the front passenger seat of the Pajero. Mr Nisanov told Dror and Ezra that the deceased was looking for them (T331) and confirmed that the deceased was at the Zinzana Café.
10 Dror drove past the Zinzana Café and he and Ezra looked into the café. The deceased ran into the kitchen of the café and grabbed a red-handled Victorinox knife. The deceased came out of the café with his hands under his shirt. Moshe Kahlon, the proprietor of the Zinzana Café, told the deceased to cross over Curlewis Street, but the deceased walked towards the intersection of Glenayr Avenue and Curlewis Street. Mr Arazi observed the deceased get the knife from the kitchen. Mr Arazi saw Dror and Ezra in the Pajero near the Zinzana Café. I am satisfied beyond reasonable doubt that Mr Arazi ran to the passenger side of the vehicle and warned Dror and Ezra with words to the effect "He just go to the kitchen, grab a knife, just get out of here" (T255) although the evidence is unclear as to whether the passenger window was open at the time.
11 Dror turned the Pajero left into Curlewis Street. He reversed slightly and then pulled in towards the kerb in Curlewis Street just outside the Glenayr Convenience Store. Mr Arazi ran to the Pajero and gave a second warning to Dror and Ezra, saying "Get out of here" in Hebrew (T256).
12 Soon after, at about 9.39 pm, the deceased walked the short distance to the intersection and turned left into Curlewis Street, so that he was immediately outside the Glenayr Convenience Store. He approached the Pajero. There was an altercation between the deceased and Ezra where the deceased closed the passenger door on Ezra's hand causing a fracture. Ezra left the Pajero and the deceased cut his hand with the knife. Subsequent medical examination confirmed a fracture to Ezra's right hand and an approximately three-centimetre wound to the left hand. Forensic examination of the Pajero confirmed the presence of Ezra's DNA profile on the inside of the front passenger doorframe.
13 Dror left the Pajero, carrying a length of metal vacuum cleaner pole, in an effort to go to the assistance of Ezra. The vacuum cleaner pole most likely comprised two extensions joined together. The deceased brandished the knife at Dror and tried to stab him. Dror hit the deceased on the head and body with the vacuum cleaner pole at least four times, pushing him back towards the wall of the convenience store. Part of the vacuum extension came loose and fell onto the ground as Dror struck the deceased. This part remained at the scene and was recovered by police who attended within minutes of the Salahs leaving the scene.
14 Dror grabbed the knife from the deceased. In doing so, he sustained a 28 mm "y-shaped" laceration between the thumb and forefinger of his right hand. This injury was confirmed in a subsequent medical examination.
15 Dror then stabbed the deceased six times in a struggle. Five of those stab wounds were to the front of the deceased's body, in the area of his left chest, upper right thigh and left leg. The sixth wound was in the back upper-left abdomen. Two of those wounds were immediately life threatening. One stab had punctured the aorta, and another cut the femoral artery. The latter cut caused immediate and massive bleeding, pooling at the deceased's feet. Dror stepped back and the deceased collapsed to the ground. Dror picked up the knife and pole from the ground. Ezra and Dror ran to the Pajero and Dror drove off. The pole was located later by police in the Pajero.
16 The deceased was close to death as he lay on the footpath in Curlewis Street. He had suffered massive blood loss. An ambulance arrived within minutes. The deceased was taken to St Vincent's Hospital, Darlinghurst, arriving at 10.05 pm. Surgery was undertaken. The deceased had suffered cardiac arrest from multiple stab wounds and active bleeding from the right groin. An unsuccessful attempt was made to repair the large femoral artery which had been completely transected. Following surgery, massive blood transfusions continued. However, the deceased did not improve and treatment was withdrawn. He died at 4.10 am on 6 August 2006. The pathologist who conducted a post-mortem examination concluded that the deceased died from shock and haemorrhagic complications arising from the six stab wounds.
17 After leaving the scene of the stabbing, Dror drove the Pajero to nearby Gilgandra Road, North Bondi. The vehicle was left there due to mechanical failure. Dror threw the knife in a nearby storm drain, but it was caught in the grate of the drain. At about 7.00 pm on 6 August 2006, police located the Pajero in Gilgandra Street, North Bondi. Shortly after 7.50 pm, police located the bloodstained Victorinox knife at the top of the storm drain on the southern side of Gilgandra Street about 50 metres west of its intersection with Niblick Street.
18 After leaving the Pajero in Gilgandra Road, North Bondi, Dror returned to his house in Vaucluse. Ms Stratford put the bloodstained clothes of Dror and Ezra in a plastic bag, which was placed in a spare room. The clothes were later recovered by police from a vehicle in which Ms Stratford was a passenger. At the time, Ms Stratford was acting on Dror's instructions to take the clothes to the police station.
19 Dror handed himself in to police at about 7.00 pm on 7 August 2006. In a recorded interview conducted that evening, Dror admitted involvement in the fatal altercation but denied that he had stabbed the deceased. He gave an account of events earlier in the day. Ezra handed himself in to police at about 1.10 pm on 8 August 2006. No interview was conducted by police with Ezra.
20 Both the Crown and senior counsel for Dror submit that this is a case of manslaughter by way of excessive self defence: s.421(2) Crimes Act 1900. By his plea on this basis, Dror admits that, at the time of the fatal stabbing, he intended to inflict (at the least) grievous bodily harm to the deceased. The maximum penalty for manslaughter is imprisonment for 25 years: s.24 Crimes Act 1900.
21 The liability of Ezra as an accessory after the fact to manslaughter is based upon his leaving the scene of the stabbing immediately with Dror, his non-disclosure of the whereabouts of the Pajero and the bloodstained pole used in the offence and his giving to Dror for disposal Ezra's bloodstained clothes which might be linked to the offence. Ezra's assistance continued until the clothes and vehicle were retrieved by police in the two days following the fatal incident.
22 The maximum penalty for being an accessory after the fact to a serious indictable offence (in this case, manslaughter) is imprisonment for five years: s.350 Crimes Act 1900.
23 Dror has been in custody since 7 August 2006. Ezra was taken into custody on 8 August 2006 but, as will be seen, his custodial history since then has involved a combination of prison custody or immigration detention whilst on bail.