R v El-Ahmad [2004] VSCA 93

10. The applicant was sentenced to 20 years' imprisonment with a non-parole period of 15 years being fixed. Upon their conviction by verdict of the jury Stocker was sentenced to 21 years' imprisonment with a non-parole period of 16 years and Donna Parsons was sentenced to 23 years' imprisonment with a non-parole period of 18 years.

13. The applicant seeks leave to appeal against sentence on two grounds. First, that the sentence was manifestly excessive and secondly, as to disparity between the sentence imposed on him and that imposed on the co-offenders Donna Parsons and Andrew Stocker.

16. The circumstances of the killing and of the roles of Parsons and Stocker are dealt with in detail in the judgment of the Court concerning the applications for leave to appeal they each brought[1]. When sentencing the applicant the sentencing judge did not have the benefit of the evidence which was to be called at the trial but no complaint was made before us that the findings of fact made by his Honour for sentencing purposes were not open to him.

19. The victim, Paul Parsons, was married to the co-accused, Donna Parsons, at the time of his death. During 2000 the applicant had commenced working with

Donna Parsons at the Altona Safeway Supermarket. The applicant had informed Donna Parsons of his great dislike of men who harmed women or children and she played upon his hostility in that regard by telling him that her husband had been abusing her and her two children. Parsons told the applicant that she wanted to have her husband killed and said that her husband had an insurance policy on his life from which proceeds she could pay someone to kill him. The learned sentencing judge found that the applicant agreed to kill Paul Parsons, both because of his obsession about violent men harming their family and also because he was interested in the prospect of making money. At the end of July 2000 Donna Parsons purchased a mobile telephone in her own name and gave the phone to the applicant in order that he could keep in regular contact with her in pursuit of the plan to have Paul Parsons killed. In the fifty days prior to the killing of Parsons, Donna Parsons and the applicant exchanged in excess of 200 telephone calls.

23. Donna Parsons was to be the sole beneficiary of Paul Parsons' estate and stood to benefit in the sum of $896,177 if his life insurance policies were paid out, but it was not established whether the applicant knew the approximate pay-out figure.

26. Donna Parsons pressed the applicant to perform the killing and complained about his delay. In a record of interview given by the applicant to police he admitted that prior to the death of Paul Parsons he had been involved in two earlier attempts on his life. On the first occasion he cut the brake lines on Paul Parsons' car but Parsons quickly discovered the defect and no harm befell him. A second attempt was made with the assistance of a friend of the applicant, one Edward Turner. The applicant arranged for Turner to drive the applicant's motor vehicle past Paul Parsons whilst the latter was riding his motorcycle. As they drew alongside the motorcycle the applicant leant out the window and pushed Parsons, causing him to fall off his motorcycle onto the road. Once again, Parsons emerged unscathed. The applicant then sought the assistance of another friend, the co-accused Andrew Stocker. He told Stocker that he would be paid for assisting in the killing of Parsons.

29. It was agreed between Donna Parsons, Stocker and the applicant that the killing would occur on 15 September 2000, at a time when Paul Parsons would be alone in his house. On that day Donna Parsons collected the applicant and Stocker in her vehicle and when they got near the home of Paul Parsons the men got into the back of the covered Rodeo utility. They put blankets over themselves so they could not be seen and Donna Parsons drove them to the house she shared with her husband. She backed the utility into the garage, where the applicant and Stocker emerged from the vehicle and remained in the garage when Donna Parsons departed. On a pretext that she had to visit someone Donna Parsons attended on a friend's house and asked her to mind the two children.

32. The judge found that at about 4 p.m. the applicant and Stocker entered the house, taking with them two crowbars which they had obtained from the garage. Once inside the house the applicant obtained a knife also. They then waited in the house for the return home of Paul Parsons. Parsons arrived shortly after 6 o'clock. In his record of interview the applicant said that Parsons had only taken a few steps inside his house when he was attacked. He was struck many times with one of the crowbars and with a knife. He died just inside his front door. The applicant and Stocker then attempted to make it appear as though there had been a burglary at the house, and as part of that ruse they removed a mobile phone belonging to the deceased.

35. The applicant told police that the plan had been that the two assailants would leave the house by the front door and then go to an arranged location where they would be picked up. They were unable to adopt this plan because the next-door neighbour was on the roof of his house and would have seen them emerge from Parsons' home. The applicant, therefore, rang Donna Parsons and requested that she pick them up. Eventually, after considerable delay, she did so, they again getting into the back of the utility. They were driven to an arranged location where they transferred to a vehicle driven by one Justin Strunk. In the course of investigation over the next few days the police came across the applicant by virtue of his telephone number being found in a diary of Parsons.

38. The applicant was interviewed by police and admitted his involvement in the death. He was not entirely frank, however, saying that he had been present with a person named "Charles". Additionally, he did not tell them of the two previous murderous attempts. In his interview the applicant attributed all acts of assault to "Charles". The applicant said that his only role was that he held the knife and had lunged at the deceased with it, but had missed him, and that "Charles" had inflicted all of the injuries to the deceased, including subsequent lethal knife wounds.

41. The learned sentencing judge concluded that "Charles" was the co-accused Stocker and he did not accept the applicant's assertions that he, El-Ahmad, had played no role in physically assaulting or killing Paul Parsons.

44. Whilst acknowledging the plea of guilty the sentencing judge considered that the confession fell short of being a full and frank one as to his role in the killing. As his Honour also noted, the police had significant evidence against the applicant by virtue of the fact that on attending his home they found blood of the deceased on an item of the applicant's clothing. They also found items which belonged to the deceased in the home of the applicant. The police soon also obtained statements from Turner and Strunk which implicated the applicant in the killing.

47. The applicant was not called on the trial of Parsons and Stocker because in evidence given on the day on which he pleaded guilty he made it clear that he would decline to answer questions if called. On an earlier occasion when he had given evidence before the judge on a voir dire he maintained the fiction that "Charles" was not Stocker. On that occasion he was seeking to have his record of interview excluded from the trial and it was only upon that application being refused by the trial judge that the applicant pleaded guilty. His Honour noted that the applicant had told lies to police in the course of interviews and had given inconsistent accounts. Additionally, in giving evidence before the judge his Honour found that the applicant added to the list of lies that he had told, by then asserting that Donna Parsons had not been involved in the killing.

50. At the time of sentencing, the applicant was 25 years of age. He was the son of hardworking migrant parents. His Honour had regard to evidence of psychiatrist Dr Lester Walton and psychologist Mr Bernard Healey. His Honour found that in 2000 the applicant had caused concern to family members by acting strangely in that he claimed to have had contact with non-existent friends and expressed preoccupation with vigilante justice. His Honour found that this preoccupation with avenging wrongs made the applicant "more vulnerable to acting on what you perceived to be, in the case of Donna Parsons, a case of the maltreatment of a woman and children calling for retribution".

53. His Honour found there to be a significant number of mitigating factors, including the youth of the applicant, the prospects of rehabilitation (which his Honour said appeared to be good); the fact that he had no prior convictions; the indications that until the year 2000 he was not a person inclined to violence or to breaches of the law; that he had the support of a law-abiding family; that he had undergone courses in prison to assist in his rehabilitation. In addition, he made allowance for the plea of guilty, albeit that the allowance he gave for the plea of guilty was reduced by the factors earlier described and also by virtue of the fact that the evidence against him was very strong. His Honour also found that the applicant had "co-operated to a degree with the police". He noted that whilst his co-operation was not wholehearted the applicant had provided considerable information to police which was valuable and in many respects was very accurate and reliable. However, he could have provided even greater assistance had he chosen to do so, the judge said, and he had provided some misleading information to the police. His Honour said that the applicant would not be further punished by virtue of the fact that he declined to give evidence against the co-accused.

56. His Honour, of course, did not know what evidence would emerge in the trial and he sentenced the applicant on the basis that the main account of events was that provided in the applicant's statement. As to that account, he had said he was reluctantly involved and felt empathy for Paul Parsons. His Honour said he was not satisfied that that was the case, but added, "on the other hand I am not going to impose on you the added penalty that would have been appropriate if you had played the more brutal role that you attributed to the fictitious Charles". His Honour had regard to factors that the murder had been planned over several weeks, was committed for money, was the third attempt to achieve the death of Paul Parsons, was the result of a brutal plan which involved other persons who had been enlisted by the applicant and that the deceased was killed in his home in a particularly brutal way.

59. Mr McLoughlin, for the applicant, argued the two grounds together. He submitted, by reference to a chart of 118 cases of murder sentences since 1998, that the sentence imposed on the applicant was one of only two cases in that period where (with respect to a single death) a sentence of 20 years or more was imposed after a plea of guilty had been entered.

62. Upon analysis of the 118 cases, in two instances sentences of life imprisonment without parole were imposed; in eleven cases sentences of life with a non-parole period being fixed were imposed; in thirty seven cases the head sentence was 20 years or more and in sixty eight cases the head sentence was less than 20 years. Of the thirty seven cases where head sentences of 20 years or more were imposed, counsel submitted that sixteen of those cases were of a particular order of seriousness involving, for example, multiple homicides, recidivism and/or other aggravating features. As to the remaining twenty one cases where head sentences of 20 years or more were imposed, in all but one instance the accused had pleaded not guilty.

65. Mr McLoughlin submitted that whilst recognising that this could be described as a contract killing the sentence was excessive having regard, in particular, to the fact that the applicant did plead guilty. Furthermore, he did co-operate with the police, his co-operation being of vital importance to the Crown notwithstanding the fact that he did not give evidence in the trial of the co-accused; and his Honour had accepted that the evidence had significant value. Mr McLoughlin accepted that the full weight which might have been attached to the plea of guilty was reduced to some extent by virtue of the fact that the applicant only pleaded guilty at the last minute and declined to give evidence, but it nonetheless remained a factor of importance, one which was undervalued, he submitted.

68. The applicant, so counsel submitted, was a person who was living in a fantasy world. Although the murder could be described, in one sense, as a vigilante killing, that overstated the reality of the situation. The applicant was a person whose mental condition was disordered and he had been manipulated by Parsons, counsel submitted.

71. Although the applicant relied on reports from both a psychologist and a psychiatrist his Honour noted that the applicant was less than frank with those experts. He told Mr Healey, for example, that he had made a full and frank record of interview with police, which was not the case. Mr Healey noted that in the record of interview the applicant had said that he was troubled by guilt over what he had done and was suffering nightmares and insomnia. He considered that the applicant's record of interview was consistent with the applicant having drifted into a fantasy world where he imagined himself remedying injustices. Mr Healey, however, accepted at face value that a "Charles" existed and that it was "Charles" who performed all the acts which caused the death.

74. Mr Healey concluded that the applicant had been in a state of distressed disturbed emotionality in his last 18 months prior to the killing and was leading a directionless, energy-depleting, lifestyle. He concluded that the applicant had made suicidal attempts at times of stress in his life and had a disruptive schooling but was of average intellectual capacity. Nonetheless, he displayed considerable thought confusion, a paranoid trend, schizoid features, a hypomanic trend, anxiety and vulnerability to substance abuse. Mr Healey concluded that the applicant did not have a psychiatric illness and that he manifested no clear psychosis, but said "one is drawn to the view that he has been a distressed, disturbed young man for a number of years, functioning (sic) that became more pronounced in the eighteen months or so prior to his offending in the context of a meaningless, disintegrated, existence, without employment." He said the applicant had followed a bizarre lifestyle with episodic alcohol abuse, and lived in a fantasy world with some "odd sexual deviancy". He was a person who always sought the approval of others.

77. Dr Lester Walton had also been given an account of "Charles" performing all of the acts which caused the death. He noted a previous incident of self-inflicted wounding in 1997, under the effect of alcohol, and said that the applicant described himself as having a split personality and that he could be taken over by one-half of his personality. It was the other person, "Jack", whose character took charge of the applicant and acted in anger. The applicant told Dr Walton that he did not lay a hand on the victim. Dr Walton concluded that he had been cajoled into participation in a contract killing for reasons which were obscure and which perplexed the applicant. He had no mental illness. Dr Walton said "albeit in a rather emotionless fashion, Mr El-Ahmad does make some expression of remorse to police, and he remains thoroughly sorrowful and regretful of his actions at this point."

80. In a second report Dr Walton again noted that the applicant insisted that "Charles" was not the co-accused Stocker and asserted that he had never been a violent person.

83. Although sentencing statistics such as those helpfully provided by Mr McLoughlin are not without value, they can have only limited use, particularly when considering the crime of murder which is constituted by such a wide range of diverse conduct. In the course of argument a number of instances of the offence were discussed. Mr McLoughlin cited cases where the offending appeared to be more serious than that of the applicant but where the penalty did not reflect that. But for each such case another can be cited to different effect.

86. In R. v. Holt and Merriman[2] Callaway, J.A. considered an application for leave to appeal against sentence for the applicant Holt who was described as the principal in the first degree in a murder for which he was sentenced to life imprisonment with a non-parole period of 16 years. Callaway, J.A. described the killing as "an execution in cold blood of an innocent victim in the security of his own home" and said that the sole motive was pecuniary gain and that the murder was professionally planned and carried out. Holt had a criminal history.

89. In R. v. Chatzidimitriou[3] the applicant had been convicted of murder on a joint trial with the wife of the deceased. The applicant had been hired by the wife to murder her husband in return for payment. The applicant was 50 years of age and had no prior convictions but Cummins, A.J.A., with whom Phillips, C.J. agreed, concluded that a sentence of 22 years' imprisonment with a non-parole period of 17 years (that being the same sentence for each) was "well within range for what his Honour described as `a contract killing done with extensive planning and premeditation, in cold blood, of an innocent citizen and father'".

92. As I have said, limited value is gained from an examination of other cases of murder.

95. I discern no error in the weight the judge gave to the plea of guilty. The factors that a sentencing judge might take into account with respect to a plea of guilty are very broad and the discretion in assessing the weight to be attached to a plea of guilty is a wide one that will not be readily interfered with.[4] The assessment of the appropriate discount to be given for a plea of guilty will vary greatly according to the circumstances including the strength of the case against the accused.[5] The stage at which the plea is entered is expressly made relevant by s.5(2)(e) of the Sentencing Act 1991.

98. In having regard to assistance given to authorities a substantial discount may be allowed. The fact that the assistance did prove effective may be taken into account in favour of the offender, but the fact that the assistance provided did not, objectively, turn out to be effective would not prevent a discount being given: see R. v. Su[6]; R. v. Evans and Tsagaris[7]. As Brooking, J.A. noted in Evans and Tsagaris[8] a substantial discount could be given notwithstanding that the information given proved not to be effective. In that case had it not been for the assistance provided by Evans, even though he did so through mixed motives and did not properly disclose his own role, no-one else might have been brought to justice for the killing.

101. The complaint as to disparity as between offenders is not made out simply because disparity is apparent in the sentences imposed. The complaint will be upheld if the disparity between the sentences imposed on co-offenders is so manifestly excessive as to engender a justifiable sense of grievance or if the disparity creates the appearance that justice has not been done. Where, however, the circumstances of the offenders are different, then different sentences might be justified: Lowe v. The Queen[9], R. v. Taudevin[10]; R. v. Cardona[11].

104. In this case the applicant, who was the first offender sentenced, received a lesser sentence than the two co-offenders, but he contends that having regard to the differences in their respective circumstances greater disparity ought to have been accorded so that his sentence was significantly less than that imposed on the two other offenders. In the result, he complains, it was too close to the sentences of his co-offenders to reflect the appropriate level of disparity.

107. The fact that Donna Parsons was sentenced to 23 years' imprisonment with a non-parole period of 18 years for procuring the applicant to commit the murder suggests that a substantial reduction was given to the applicant on account of his plea of guilty and such other mitigating factors as his Honour found to properly apply. It would have been reasonable to assume that both Parsons and the applicant would have received the same sentences, having regard to the particular roles they played in the killing and their respective motives. The complaint about disparity must primarily relate to the sentence imposed on Stocker. Stocker did not appeal his sentence.

110. Both Stocker and Parsons pleaded not guilty and contested the trial, whereas the applicant, by his plea of guilty and by the finding made by the judge, exhibited some remorse, albeit limited, as his Honour also found. However, such differences as there were in the respective positions, in my view, were reflected in the sentences imposed upon each. Whilst it is also true that Parsons undoubtedly manipulated the applicant he was willingly involved, bringing to the killing his own motives of greed and a distorted notion of vigilante justice.

113. A complaint about disparity is like a complaint that a sentence is manifestly excessive, it is a matter which does not admit of much elaboration. In my opinion, the judge was not obliged to act on the assumption that the applicant played less of a physical role in the killing than "Charles" (or Stocker). The judge was not obliged to accept the self-serving statements contained in the applicant's record of interview and having regard to the fact that it contained many lies his Honour was entitled to conclude as he did that he was not satisfied that the limited and reluctant role which the applicant attributed to himself at the time of the killing was accurate. The judge was entitled to conclude that the applicant and Stocker were equally responsible for the viciousness of the killing.

116. Given that it was the applicant who brought Stocker into the plan to kill the victim, and that he had planned the killing over a long period, the judge concluded the applicant's role was more serious than Stocker's and equally serious as that of Parsons. I am not persuaded that the disparity in the sentences that were imposed was so limited as to engender a justifiable sense of grievance on the part of the applicant that the circumstances pertaining to him were not fairly reflected thereby. The complaint as to parity has not been made out.

119. I turn then to the complaint that the sentence was manifestly excessive. Not only was this case akin to a contract killing the motive of misguided vigilante justice does not assist the applicant's cause either. In DPP v. Whiteside and Dieber[12] Brooking, J.A. held:

"Vigilante enterprises must be suppressed, as appellate courts have made clear. Where four men, acting on `rumour and innuendo', assaulted a fifth for `messing with kids', the Court of Appeal endorsed the judge's description of the `vigilante action' and said that it called for serious reaction from any court anxious to preserve the rule of law: R. v. Sheekey. Similar offences committed by only one or two offenders have, as one would expect, drawn the same response: Re Attorney-General's Reference (Nos 17 and 18 of 1994) (`That is what this case was about, people taking the law into their own hands. It has to be stopped'); R. v. Kennedy (`vigilante enterprises of this kind are simply not tolerated by the community'); R. v. Demittis (`The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever. It is not the view adopted in this court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community.'); R. v. Brelsford (`Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice.') (Citations omitted.)

123. Mr McLoughlin submitted that his Honour failed to give appropriate weight to the fact that the applicant was, as he said, very disturbed psychologically, and was vulnerable to the manipulation of Donna Parsons. It seems to me that his Honour was very conscious of that issue and recognised that he had to weigh competing considerations of the need for general deterrence and denunciation, on the one hand, and the impact of the applicant's mental disorder, on the other hand. As has been recognised by the Court, this is a difficult balancing exercise, but in my opinion this was an instance where a sentencing judge was entitled to conclude that the former

consideration outweighed the latter[13].

127. The sentence is indeed severe, as the review of past sentences demonstrates. It is, however, a crime at the highest level of seriousness and notwithstanding the plea of guilty and the personal circumstances and antecedents of the applicant it has not been shown to be manifestly excessive. In my opinion, that ground also fails.

130. I conclude that the application for leave to appeal against sentence should be dismissed.

135. I agree that the application for leave to appeal against sentence of Belal El-Ahmad should be dismissed, substantially for the reasons advanced by Eames, J.A.

[1] See R. v. Parsons and Stocker [2004] VSCA 92

[2] (1996) 87 A.Crim.R. 82 at 90 (Southwell and Smith, A.JJ.A. agreeing).

[3] [2000] VSCA 91; (2000) 1 V.R. 493 at 503, 509.

[4] R. v. Gray [1977] VicRp 27; (1977) V.R. 225 at 232; R. v. Donnelly (1997) 91 A.Crim.R. 550 at 553 per Charles, J.A. (with whom Winneke, P. and Hedigan, A.J.A. agreed).

[5] See Donnelly at 553; R. v. Hall (1994) 76 A.Crim.R. 454 at 469-470.

[6] [1997] 1 V.R. 1 at 78-79.

[7] (2000) 112 A.Crim.R. 234 at 239 per Brooking, J.A.

[9] [1984] HCA 46; (1984) 154 C.L.R. 606

[10] [1996] VICSC 7; [1996] 2 V.R. 402.

[11] [1998] 2 V.R. 126

[12] [2000] VSCA 142; (2000) 1 V.R. 331 at [24].

[13] See R. v. Cardona [1998] 2 V.R. 126, at 136-137, per Batt, J.A.