R v El-Chami

Supreme Court of NSW|2016-04-01|Before: Schmidt J

Judgment

Mr Basem Salameh was murdered at his home in Granville during the early hours of 14 August 2013, having been beaten to death with makeshift weapons, including a piece of timber and metal poles. The offender, Mr El-Chami and two co-accused were later each charged with his murder. Mr El-Chami did not deny having been at Mr Salameh's home before he was killed, but he always denied having been present, or involved in his murder. Accordingly, he pleaded not guilty to the murder charge.
At the commencement of the trial in November 2015, it was announced to the Court that Mr El-Chami had made an offer to plead guilty to a lesser charge, an offence under s 316(1) of the Crimes Act 1900 (NSW), which had been accepted by the Director of Public Prosecutions. He was then arraigned on that charge, to which he entered a plea of guilty. The charge to which the plea was entered was: "Whereas Ahmed Kaddour and Daniel Azar having committed the serious indictable offence of murder, Mohamed El-Chami between 13 August 2013 and 21 August 2013 at Granville in the State of New South Wales and elsewhere, believing that Ahmed Kaddour and Daniel Azar had committed that offence and knowing that he has information which might be of material assistance in securing the prosecution of Ahmed Kaddour and Daniel Azar for that offence, without reasonable excuse, failed to bring that information to the attention of a member of the Police Force."

The offence

Mr El-Chami first signed a statement as to the evidence which he would be prepared to give, on 20 August 2013, after having been twice interviewed by police. They did not believe what he there said about not having been involved in Mr Salameh's killing, with the result that he was charged that day, initially with being an accessory to murder and then with murder. It was common ground, however, that CCTV footage soon came into the hands of investigating police, which supported what Mr El-Chami had said in his statement. Despite this, that footage was neither served on Mr El-Chami, nor considered by the Crown, until after he first made an offer in 2015, to enter a plea to a s 316 offence.
From the events which then unfolded, it became apparent that had the CCTV footage been examined earlier, Mr El-Chami would not have faced a murder trial.
There has never been any satisfactory explanation given to the Court as to how it came to be that the exculpatory CCTV footage was neither viewed by the Crown, nor served on Mr El-Chami, until shortly before the murder trial was due to commence.
On being charged with murder Mr El-Chami was bail refused. Given, even then, the apparent weakness of the Crown case, Johnson J later granted Mr El-Chami bail on strict conditions, notwithstanding the serious charge which he faced. Those conditions were later varied, in various respects, but it was not until after the entry of Mr El-Chami's plea to the s 316 offence, that onerous conditions such as to daily reporting and curfew were removed.
The parties reached an agreement as to other relevant facts and Mr El-Chami and Superintendent Scott Whyte also provided affidavit evidence. They were not required for cross-examination.
That evidence established that Mr Salameh's body was discovered by Housing Commission contractors at 9.30 am on 14 August 2013 at the complex managed by the Department of Housing, where he lived. That complex comprised a number of bed sit units and common recreational areas. Police, who were nearby, having responded to a complaint made by one of Mr Salameh's neighbours during the night, then began the investigation into the murder.
Mr El-Chami was soon identified to be one of the suspects. Mr El-Chami, Daniel Azar, and Ahmed Kaddour had often visited Mr Salameh at his unit and were well-known to other residents of the complex. Mr Salameh had himself called police at about 3:45 am on 13 August 2013, after a disturbance during which another resident, "Ray", had picked up a pot plant and thrown it through his glass window. "Ray" had apparently been involved in a fight or scuffle with Mr Salameh and Mr Azar.
Mr El-Chami was also at Mr Salameh's unit when police and an ambulance attended after this fight. "Ray" was then taken to hospital and arrangements were made for Mr Salameh to attend the police station the following day, to provide a statement, but he did not attend.
On 14 August 2013, police obtained statements from various neighbours which indicated that Mr El-Chami, Mr Azar and Mr Kaddour had all been at Mr Salameh's unit during the previous day. The sound of glass smashing had been heard and two of the young men had been seen climbing out of a window from Mr Salameh's unit, at about 8 pm the previous night. Sounds of a disturbance and hitting or banging in the early hours of 14 August, had also been heard. One resident had heard the window of his own unit being smashed during the night and then called police. They were attending that call when Mr Salameh's body was found.
On examination, Mr Salameh was found to have died as the result of multiple blunt force impacts to his head, which had resulted in fractures to the base of his skull and nasal bones; an acute subdural haemorrhage to the left side of his brain; and multifocal subarachnoid haemorrhage. There were also impact injuries to his neck, which had fractured the cricoid cartilage around his larynx; as well as multiple blunt force injuries to his trunk, resulting in numerous bilateral rib fractures. It was the injuries to his head which on later examination were found likely to have been fatal. The injury to Mr Salameh's larynx may also have contributed to his death.
In the opinion of the examining pathologist, whilst it was possible that all of Mr Salameh's injuries had been inflicted in a couple of minutes, the most likely scenario was that they were inflicted over a longer period of time, during a sustained attack.
Mr Salameh's body was found covered with a pile of linen and a piece of table top. His unit was in disarray and there was substantial blood staining throughout his apartment. Fingerprints and DNA samples were obtained from a number of items. A red handled hacksaw, a white piece of timber with two nails protruding and two bloodstained metal poles were found near his body. An unspent bullet had been placed in his mouth.
Shortly before midnight on 15 August 2013, police arrested Mr Azar and Mr El-Chami. They were taken to Parramatta Police Station, where a covert listening device was used to record a conversation during which Mr El-Chami said to Mr Azar that: "I didn't do nothing, it wasn't me bro." And: "I didn't do shit anyway, you know."
Then, during a recorded interview Mr El-Chami was asked whether he had any knowledge about Mr Salameh's murder, which he denied. He told police that he had slept overnight at Mr Salameh's home and that he would smoke marijuana there, chill out and smoke bongs; that he had still been there the following day when Mr Salameh told he and Mr Azar to leave; and that "Biggie", whose name might be "Ahmed", also went to the unit.
When questioned about when he first became aware that Mr Salameh was dead, Mr El-Chami variously claimed to have been told by his mum; to have heard about it on the news; to not have realised that it was Mr Salameh (as opposed to "Ray") who had died, and to have only become aware when advised by police after his arrest. He also said "I didn't know nothing happened to Basem" and denied knowing who killed Mr Salameh.
During his interview Mr Azar admitted that he had been present at Mr Salameh's unit at the time of the altercation with "Ray" on 13 August 2013, but he denied having been present at the unit during the night of 13/14 August.
Both Mr El-Chami and Mr Azar were then released without charge.
Over the weekend of Saturday, 17 and Sunday, 18 August Mr Azar had a number of conversations with members of his family, during which he made admissions about his involvement in Mr Salameh's killing. Some of those admissions were made in Mr El-Chami's presence.
On 19 August 2013, various members of Mr Azar's family provided statements to police about his admissions. That afternoon he and Mr El-Chami were again arrested. Mr Azar then claimed that Mr Salameh had been assaulted by an unnamed person; that Mr El-Chami and Mr Kaddour had also been present; and that they had endeavoured to stop an unidentified fourth man from attacking Mr Salameh. He claimed, however, to have cut Mr Salameh's throat with a saw in order to, in effect, put him out of his misery. On autopsy, however, no evidence that Mr Salameh's throat had been cut was found. Mr Azar also claimed that after the attack, all four had left the unit. Mr Azar was then charged with the murder.
On 19 August police also requested that Mr El-Chami attend for further questioning. When he attended with his mother he was entered into custody as a volunteer and not under arrest. He was cautioned and consented to being further interviewed. A lengthy interview ensued, during which he told police about an interaction between Mr Salameh and Mr Azar at some time after the incident involving "Ray", during which Mr Azar had reacted angrily to a perceived suggestion of being gay and that he had punched Mr Salameh. It was then that Mr Salameh had told them both to leave the unit and they had subsequently met up with Mr Kaddour.
Mr El-Chami then gave an account which included that Mr Kaddour and Mr Azar had gone back up to the unit, while he waited in the street for 20 minutes to half an hour, before he went back to see what was taking so long and they left. He said that everything was then normal. He also told police: "If I, if I done something to my own fault I take the rap for it but not for anybody else. If they've done something that they've done they haven't told me …".
Mr El-Chami also said that he had not told police about the incident of Mr Azar and Mr Kaddour going back up to the unit, when he had first been interviewed because "I was zanied and I didn't remember and when I woke up clearly I did get a bit of memory back and yeah, that is correct. I was in the street for half an hour, twenty minutes. I went back up and I did, they exited the door". "And like I said between that time I do not know what happened in that unit."
Mr El-Chami then also denied any knowledge of what had actually happened to Mr Salameh; of having heard anything from Mr Azar about his knowledge as to what had happened; or of having seen Mr Salameh at the time that he went back to the unit door and the other two came out. He was specifically asked about a bowling ball which had been thrown through the next door neighbour's window and he denied any knowledge of that.
In the course of the interview police recounted to Mr El-Chami conversations which had been attributed to Mr Azar by members of his family. Conversations attributed to Mr El-Chami by Mr Azar's sisters were also put to him, but he persistently claimed to have been absent from the unit during the alleged prolonged assault.
At approximately 1:00 am on 20 August 2013, in the course of the recorded interview, Mr El-Chami was advised that he was under arrest and that he was going to be charged with Mr Salameh's murder. Towards the end of the interview, it was put to him that he had been lying throughout the interview.
It is these events which form the basis of the charge to which Mr El-Chami entered his plea.
After his arrest was processed, Mr El-Chami indicated to police that he was prepared to continue to be interviewed. He then described the initial interaction between Mr Salameh and Mr Azar, when Mr Azar's "arse" had been pinched and he described in more detail the events that followed when he, Mr Azar and Mr Kaddour had returned to the unit, after the initial altercation between Mr Azar and Mr Salameh.
Mr El-Chami described how Mr Kaddour had initiated the assault upon Mr Salameh and that both he and Mr Azar were hitting Mr Salameh.
Mr El-Chami said that he left the room at that point and went down to the street. When he returned, he observed that "Daniel was on his knees and he has a red tool in his hand". He thought that the object was a "hacksaw" and described how he had kicked it out of Mr Azar's hands. He also said that Mr Kaddour was then putting clothes on top of Mr Salameh in an attempt to "cover him" and that Mr Kaddour's shoes had blood on them.
Mr El-Chami also said that after they had left the unit, it was Mr Kaddour who had thrown the lawn bowl at the neighbour's window and that he had been absent from the unit for 20 minutes during the assault, before going back.
Police asked Mr El-Chami to confirm that he had been aware of everything he disclosed in the interview, since the time at which it happened, and had failed to tell police until that point.
Mr El-Chami agreed, but claimed that he "was scared, like even wha t… when told, like, from his, like his brother, Daniel's brother, you know? If it happens to him… you know? … And I've already been shot". Mr El-Chami continued to describe his fear, but also offered to "wear a wire" to have a conversation with Mr Kaddour and Mr Azar, separately.
It was then that a witness statement was prepared by police and signed by Mr El-Chami, which went to the matters that he had disclosed to police in his records of interview and to the matters in respect of which he was prepared to give evidence.
Despite what is now accepted, that Mr El-Chami provided a true statement, he was charged initially with being an accessory after the fact to the murder of Mr Salameh and then with his murder. He then remained bail refused for over seven weeks, until he was granted bail by this Court on 10 October 2013.
Mr Kaddour was arrested on 29 August 2013. He claimed in his interview to have left Mr Salameh's unit at about 7:30 pm on Tuesday 13 August 2013, and not to have returned to the unit thereafter. He denied having been called "Biggie" since he was younger and also denied any involvement in the attack on Mr Salameh.
All three accused were committed to stand trial for the murder of Mr Salameh in the Supreme Court, in a joint trial listed to commence on 9 November 2015.
It was on 2 November 2015, that Mr El-Chami's solicitors wrote to the DPP, indicating that he was prepared to plead guilty to a s 316(1) offence and to give evidence against Mr Kaddour and Mr Azar. It was that day that Mr El-Chami's solicitors were advised that CCTV footage had been located within the material held by the DPP, which had not previously been served.
That footage recorded vision of the driveway and car park area of the units where Mr Salameh lived, as well as the balcony area leading to unit 10. The images covered the relevant period between 1:30 am and 2:30 am on 14 August 2013. It corroborated Mr El-Chami's account that he had been physically absent from the unit for a period of approximately 20 minutes.
After viewing the CCTV footage the Crown accepted Mr El-Chami's offer to have the murder charge discontinued, and a plea was entered to concealing a serious indictable offence.
In Mr El-Chami's submissions, it is claimed that this CCTV footage was obtained by police shortly after the murder had occurred, but had not, until 2 November 2015, been disclosed to the defence.
On 9 February 2016, a further interview was conducted in which Mr El-Chami indicated that he had previously told the police the truth. A deal of liaison then took place between the Crown and defence representatives, which ultimately culminated in Mr El-Chami providing a further signed witness statement.
That statement was in evidence. It is not necessary to discuss its details. On the affidavit evidence of Superintendent Whyte, the statement is of assistance to the Crown in various ways there described, both to the investigation and the trial of the co-accused.
Mr El-Chami also swore another affidavit on 1 April 2016, in which he explained circumstances in which the residence condition of his bail had been varied by consent, to enable him to live at Newcastle, with his partner's aunt, in order to remove himself from certain negative influences.
Attached to the affidavit was a copy of posters which were put up at various public locations near that residence, a short time after he moved there. The poster not only contained his photograph, name and residence; under the heading "warnings" it also contained both true and false information about his background and record. It also said that he should be approached with caution and was likely to make indirect threats towards police. His charges and bail conditions, including the requirement to be of good behaviour, which was followed with the question "really?" were also there specified.
Mr El-Chami described the embarrassment and shame which he experienced after he saw these posters, published at a time when he had come to feel ashamed of his past, when he was endeavouring to comply with his bail conditions and to stay away from bad influences and to alter his life. Mr El-Chami said he had later been recognised in the street, with the result that his bail conditions were further varied, to permit him to move to Sydney, to live with his partner and her mother.
These events were accepted by the parties as being relevant to a determination of Mr El-Chami's sentence.

The Court's sentencing task

Mr El-Chami's sentence must be arrived at having regard to what legislation enacted by the Parliament and binding case law requires, in a sentencing exercise such as this.
The rules of evidence do not ordinarily apply at a sentencing hearing (see s 4 of the Evidence Act 1995 (NSW)), but nevertheless, the weight of the evidence which the parties then lead, must be critically assessed.
Any disputes about factual findings must be resolved in the way discussed in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. That is, facts may not be taken into account in a way that is adverse to an offender, unless they have been established beyond reasonable doubt. In the case of facts taken into account in favour of an offender, it is enough that they are proved on the balance of probabilities.
In arriving at the sentence the Court must bear in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
The sentence imposed on Mr El-Chami must be determined in light of the maximum penalty imposed for the crime in question, in this case 2 years imprisonment. It must also reflect the gravity of his offence, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354). That was in issue in this case.
In accordance with s 21A(1)(c) of the Crimes (Sentencing Procedure) Act, the sentence for Mr El-Chami's offence must be assessed by taking into account the objective and subjective factors affecting its relative seriousness, as well as identified aggravating and mitigating factors revealed by the evidence. Mr El-Chami's moral culpability for his offence must also be taken into account (see Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600). Consideration must also be given to questions of general and specific deterrence.
All of the relevant factors must be taken into account by way of the instinctive synthesis discussed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]. That requires the sentencing judge to identify all of the factors that are relevant to be considered on sentencing in the particular case, discussing their significance and making a value judgment as to what the appropriate sentence for that offence is. The sentence so imposed must ensure that there is a reasonable proportionality between the sentence and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15]).
If a term of imprisonment is imposed, regard must also be paid to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed on an offender must not exceed one-third of the non-parole period imposed, unless the Court decides that there are special circumstances which warrant a departure from that ratio.
If there is to be any such adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve for the offence he has committed (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628 - 629).
Section 5(1) of the Crimes (Sentencing Procedure) Act requires the Court not to sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
Even if the Court concludes that a custodial sentence should be imposed, it was common ground that alternatives such as a suspended sentence (under s 12 of the Crimes (Sentencing Procedure) Act), service of the sentence by way of intensive correction in the community, (under Part 5 of the Crimes (Sentencing Procedure) Act) and home detention (under Part 6 of the Crimes (Sentencing Procedure) Act) may also arise to be considered. Such sentences impose obvious leniency, which the Crown contended, was not warranted in this case. That was also in issue.

The seriousness of Mr El-Chami's offence

This was in issue.
The Crown contended that objectively, the seriousness of Mr El-Chami's offence was high, given that what he had concealed was Mr Salameh's murder, in circumstances where he was almost immediately aware, both of what had happened and of the identity of those who had murdered him. Even beforehand he was aware of the danger which Mr Salameh faced and he chose to stand outside, while Mr Salameh was beaten. When he returned he also failed to give him any assistance, in circumstances where he could easily have called an ambulance.
It was also submitted to be relevant that Mr El-Chami then chose to continue his association with Mr Azar and Mr Kaddour; he did not inform police of what he knew and even when interviewed, he did not comply with his legal obligation to report the murder. The proper inference was, it was argued, that had police not intervened and persisted in questioning Mr El-Chami, he would not have revealed what he knew.
In the result, it would be concluded that this was a very serious offence which, but for certain accepted mitigating factors, including discounts, warranted the maximum penalty being imposed on Mr El-Chami.
It was conceded that while other sentencing options, including imposition of an intensive correction order and home detention might be technically available sentencing options in Mr El-Chami's case, given the objective criminality of his offence, only a custodial sentence would adequately reflect the seriousness of his offence.
I cannot accept the Crown's case.
Mr El-Chami is not being sentenced for his callous behaviour to his friend Mr Salameh, who he did not assist, as he should have, when he left him to be beaten by Mr Azar and Mr Kaddour. Nor is he being sentenced for failing to assist him when he returned to find Mr Salameh seriously injured, other than by kicking away the hacksaw, with which Mr Azar was about to inflict further injuries.
What Mr El-Chami is being sentenced for is his concealment of the most serious of offences, murder, for a period of some six days, during an ongoing police investigation which had almost immediately identified the three suspects, who were soon charged with his murder. They were each not only known to have been frequent visitors to the unit, but were known to have been with Mr Salameh the day before his death, when police had attended his unit, after the altercation with "Ray".
By the end of the second interview, only six days after Mr Salameh's death, Mr El-Chami had not only given an accurate account of what had happened to Mr Salameh, but had offered to assist in the ongoing police investigation. That police did not avail themselves of that offer, even when the CCTV footage which corroborated what he had said in his statement was discovered, soon afterwards, does not detract from the fact that the offer was made.
Mr El-Chami's offence, it must be concluded on all of that evidence, does not fall at the upper end of seriousness of such offending, even though it was unarguably a serious offence. Mr El-Chami having failed to provide the information in his hands to police, as he should have, when he first left Mr Azar and Mr Kaddour on 14 August. He did not act then, nor did he tell police what he knew, when first interviewed by police on 15 August, or even initially on 20 August.
The catalyst for the provision of the information which he finally provided was undoubtedly the laying of the charges against him on 20 August.
I am satisfied that the evidence established beyond reasonable doubt that the proper inference is that but for that development, Mr El-Chami would not have provided the information which he had to police, about this most serious of offences, murder.

Aggravating factors

There was no suggestion that there were any relevant aggravating factors arising under s 21A(2) of the Crimes (Sentencing Procedure) Act to be considered in this sentencing exercise.

Mitigating factors

The mitigating factors specified in s 21A(3) of the Crimes (Sentencing Procedure) Act which must be taken into account in Mr El-Chami's favour, are that on the evidence, he has good prospects of rehabilitation (s 21A(3)(h)), given his age, his assistance and his compliance with bail conditions, notwithstanding the vigilantism he was wrongly subjected to. There was also evidence of genuine remorse, shown not only by his pleas, but also by his unchallenged evidence as to his deep remorse, which establishes, I am satisfied, that he has accepted responsibility for his actions and the injury they caused (s 21A(3)(i)).

Discounts

It was common ground that Mr El-Chami was entitled to a 25% discount for the entry of his early plea (see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383), as well as to the benefit of s 23 of the Crimes (Sentencing Procedure) Act, given the assistance he has already provided and that which he has further promised, which is to be encouraged in a sentencing exercise such as this (see R v Cartwright (1989) 19 NSWLR 243 at 252).
In the result I have concluded that he must receive a combined discount of 50%, 20% of which should be attributable to the future assistance Mr El-Chami has promised to give (see SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [44]). I note that if that assistance is not forthcoming, the Crown may appeal this sentence under s 5DA of the Criminal Appeal Act 1912 (NSW).

Deterrence

In all of the circumstances which I have discussed, general deterrence also has a significant role to play in the sentence imposed on Mr El-Chami. Offences such as this, committed by a person who has knowledge of the kind that Mr El-Chami had about Mr Salameh's murder, must result in a sentence which deters others from failing to abide by the obligation imposed on them to furnish such information to police.
I am also satisfied, however, that specific deterrence has a lesser role to play than it would have had, had Mr El-Chami on 20 August 2013 not only signed a witness statement on which the Crown was entitled to rely at the trial of his co-accused, but also offered to assist in the ongoing investigation. That the Crown did not avail itself of that offer, cannot result in a different conclusion.

Mr El-Chami's subjective circumstances

The evidence of Mr El-Chami's circumstances included letters from him, his mother, his partner, her mother, his aunt and a number of friends, as well as from a psychologist's report prepared by Mr Borenstein.
Mr El-Chami, a young man from an abusive background, with a limited criminal record, principally while a child, formed a friendship with Mr Salameh some 12 months before his murder, at a time when he was dealing with various ongoing mental health and other issues.
Mr El-Chami has had a somewhat troubled past. He has twice been the victim of a shooting. The first in 2010, when he was shot in the leg, requiring surgery. Afterwards he received psychological treatment for post-traumatic stress disorder and became housebound for about two years. In 2013 he was introduced to the drug ice.
The second shooting occurred in 2013, some two months prior to this offence, when he was at home, where he became the victim of a drive by shooting. He fainted and awoke in hospital some four days later, requiring surgery to his hand which left him after release some three weeks later, relatively incapacitated. He told Mr Borenstein that afterwards he was self medicating with marijuana and "a bit of ice", his PTSD having been magnified.
Mr Borenstein considered that Mr Salameh's death had re-traumatised Mr El-Chami and led him to fear even what friends could do to him. The delay in locating the CCTV footage which had exonerated him of murder, had also adversely impacted his mental health. He had feared being imprisoned for an offence which he had not committed. Mr Borenstein diagnosed him then to be suffering extremely severe symptoms of depression, anxiety and severe and chronic PTSD. He considered his prognosis to be guarded.
Since release on bail, Mr El-Chami has removed himself from his former lifestyle. The character evidence attests to steps he has pursued to alter the path of his life, including steps he has taken to provide voluntary assistance to persons with disabilities.
Mr El-Chami and his partner have now had a child. The stress of his circumstances has led to difficulties in their relationship, which they hope to resolve, once he has been sentenced. He has her continuing support, as well as that of members of his own family and hers.
It is also relevant that since the relaxation of his bail conditions, he has been able to find work.

Victim impact statement

Without objection, a victim impact statement was provided by Mr Salameh's twin brother. There he described Mr Salameh, his difficult life and the sad impact of his death upon him.
Mr El-Chami is, of course, not responsible for that loss. His offence is a different one, as I have discussed.
In those circumstances, while under s 28(4) of the Crimes (Sentencing Procedure Act, on the application of the prosecutor and if the Court considers it appropriate to do so, such a statement may be considered and taken into account on sentencing, it is not appropriate to take this statement into account in sentencing Mr El-Chami, other than by way of background, shedding further light as it does on why general deterrence must play a role in a sentencing exercise such as this.
The impact of Mr Salameh's death on his immediate family, is an aspect of the harm done to the community. The real and ongoing grief Mr Salameh's death has caused is acknowledged and must result in very deep sympathy for his brother's loss and what he must continue to bear, as the result of how his brother's death was brought about.
In due course it is to be hoped that these sentencing proceedings and how our system of justice otherwise deals with Mr Salameh's murder, will give his brother some small measure of comfort, by revealing how our society has dealt with the awful offence which Mr Salameh's killing involved.

Conviction and sentence

The parties referred to a number of authorities where offences under s 316 have arisen for sentencing, as well as sentencing statistics. Those cases are limited. They each turn on their own facts and do not disclose any relevant sentencing range.
As discussed in R v Crofts (Court of Criminal Appeal (NSW), 10 March 1995, unrep) by Gleeson CJ, also a case involving a failure to provide information to police about a murder, the evaluation of an offender's culpability for offences of this kind, can be extremely difficult. There the sentence imposed was a fixed term of 6 months, where the original charge laid was an accessory offence, in circumstances where a contract shooting had resulted in the wrong victim being killed. The shooters were only identified after the accidental discovery of the pistol used and listening devices were deployed. On appeal the sentence was found to have been comparatively lenient, but within the permissible range.
In R v CQD [2002] NSWSC 732, Hidden J sentenced an offender who was a juvenile at the time, who was also charged with a detain for advantage offence, for which a sentence of 5 years was imposed before reduction by 40% for plea and assistance, to an additional undiscounted sentence of 6 months, where the delay between the murder and the initial interview with police was some 3 months.
In R v Newbold [2008] NSWSC 942, Fullerton J imposed no sentence for an offence found to fall at the lowest order of objective criminality, on an offender who had spent over 12 months in custody, by dealing with the offence under s 10 and recording no conviction. There the offender's act of concealment had lasted no longer than half an hour, but he had not been believed by police and so charges of assault occasioning actual bodily harm and concealment were preferred. Her Honour observed at [21] - [22]: "21 I am compelled to add that I have persisting doubts as to whether the charge of conceal serious offence, or a charge of assault occasioning actual bodily harm, would ever have been preferred against Mr Newbold were police to have taken the view that he was in fact telling them the truth and were they to have offered him the opportunity to sign a witness statement against Kutschera. While I accept that this was not a view that commended itself to police either on the 21 July 2007 or as the investigation proceeded, the simple fact is that Mr Newbold spent 400 days in custody as a remand prisoner facing a murder charge - a charge which he denied on the night of his arrest, that he has persistently denied throughout successive arraignments and a denial that the Crown ultimately accepts as true. 22 I acknowledge, of course, that our system of criminal justice has as its pinnacle the jury system as the established mechanism by which the guilt of those charged with serious indictable offences is determined. Nonetheless, the responsibility for ensuring that only those against whom a positive case of guilt can be mounted ought to be put to their trial rests first with the investigating police and then with prosecuting authorities in the independent exercise of their statutory powers. In my view, the need for judgments made at the point of arrest and charge to be reviewed on an ongoing basis and well in advance of trial is essential, especially where the person arrested and charged voluntarily participates in a recorded interview and gives an exculpatory account that is neither inherently improbable nor, in the context of other evidence, plainly untenable. In my view this case falls squarely into that category."
This was submitted to be a similar case.
There are obvious similarities but in this case, I consider that Mr El-Chami's offence was more serious, albeit that there were also significant problems in the police approach to the investigation and the Crown's approach to his prosecution, which I have already explained, given what happened to the exonerating CCTV footage.
In Mr El-Chami's case, I am satisfied that a sentence of imprisonment is warranted, given the nature and seriousness of his offence, notwithstanding his personal circumstances and the mitigating matters I have discussed.
But for the discounts for his early plea and assistance, I consider that the appropriate sentence would have been 6 months imprisonment. As I have explained, there must, however, be a combined discount of 50%, attributable to the plea and the assistance Mr El-Chami has already given and further promised to give. That results in a sentence of 3 months' imprisonment.
I am also satisfied that the term of that sentence must be suspended in accordance with s 12 of the Crimes (Sentencing Procedure) Act.
In determining what sentence should be imposed, a sentencing court can take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.
In this case in resolving the question of whether a non-custodial sentence would properly reflect the required proportionality between Mr El-Chami's serious offence and his sentence, three relevant matters must be taken into account. Firstly, the fact that Mr El-Chami has already spent some 7 weeks in custody, bail refused, after his arrest on 14 August 2014 when he was charged with murder, in the circumstances I earlier discussed.
Secondly, that Mr El-Chami then spent considerable time on bail, subject to stringent bail conditions, including daily reporting and curfew, which would either not have been imposed upon him at all, or at least would not have continued as long as they did, had the CCTV footage been examined and served, as it ought to have been. Had that occurred, the abandonment of the pursuit of the murder charge and acceptance of his plea to the s 316 offence, would also have occurred long before December 2015, when those conditions were relaxed.
Thirdly, Mr El-Chami was also subjected to the extra curial punishment inflicted by those who wrongly posted information in public places about his alleged offending, bail conditions and the alleged risks which he posed. That, I am satisfied, was punishment wrongly meted out by others, in order to extract retribution or revenge for the alleged commission of a murder, which it is common ground Mr El-Chami did not commit. I am well satisfied that it is appropriate to take this punishment into account in arriving at Mr El-Chami's sentence for the lesser offence which he actually committed (see R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at [62]).
In all of these circumstances I am satisfied that the suspended sentence which will be imposed on Mr El-Chami will fulfil all of the purposes of punishment I have earlier discussed, for the offence which it is common ground that he actually committed.
The sentence which will be imposed on Mr El-Chami is accordingly a sentence of 3 months imprisonment, which will be suspended, subject to him entering into a good behaviour bond for a term of 3 months and providing the assistance he has promised.

Orders

Mohamed El-Chami you are convicted under s 316(1) of the Crimes Act 1900 (NSW) of knowing that you had information which might be of material assistance in securing the prosecution of Ahmed Kaddour and Daniel Azar for the murder of Basem Salameh, without reasonable excuse, you failed to bring that information to the attention of the Police Force.
For that offence you are sentenced to a term of imprisonment of 3 months, commencing 19 April 2016 which is to be suspended, subject to you entering into a good behaviour bond for a term of 3 months and providing the assistance you have promised.

Amendments 24 May 2017 - Publication restriction removed 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: 20 April 2018

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