R v ElKerdi; R v Scicluna

They attended Fowler Street and parked in the vicinity of Fowler Reserve, where they walked through the reserve. Fowler Street runs parallel to Gregory Street. In my view, they were seeking to find a location in which the motor vehicle could be left while they carried out the firing into the unit. However, Fowler Reserve does not run from Fowler Street through to Gregory Street but is stopped by houses on Gregory Street, which back on to the reserve. They returned to the motor vehicle and drove away. At that time, they were not carrying anything with them. Sometime between about 7.45pm and 8.03pm on 27 May 2023, either Mr Elkerdi or Mr Scicluna fired around six shots into the Gregory Street unit. It cannot be determined on the evidence which of the two fired the shots, but I find beyond reasonable doubt that they both attended for that purpose as part of a joint criminal enterprise.

The sound of the shots was recorded by a local resident who lived opposite the target premises. The shots appear to have been fired as a continuous single sequence, allowing little time for the rifle to be transferred from one person to another. The neighbour who heard the shots, Lachlan Falato, who lived at 30 Gregory Street, phoned Triple-0 at 8.03pm to report the incident. At the time the shots were fired, the resident of unit 150, 25 Gregory Street was at home and asleep in bed. He did not give evidence in the trial, and the information was hearsay, given by a police officer as to what they had been informed when they spoke with him.

A subsequent police investigation identified six fired cartridge cases on the grass median strip and concrete footpath in front of the Gregory Street unit. One of those fired cartridges was in fact on a low brick wall between the footpath and the units. These were the cartridge cases ejected from the rifle when it had been fired upon the Gregory Street unit. Police identified damage consistent with bullet damage to the outside wall, window, living room and kitchen of the Gregory Street unit. There appeared to be at least four shots which had penetrated through the window as well as some damage to the brickwork. After firing on the unit, Mr Scicluna and Mr Elkerdi drove together to Campbelltown.

The rifle was hidden in a cupboard at 64 Farnsworth Avenue, and together with ammunition, was located during a later search. Mr Scicluna was responsible for placing the rifle in those premises. The premises were occupied by a female friend of Mr Scicluna. On 2 June 2023, police conducted a search of those premises. During the search, police located in the linen cupboard the 7.62 x 39-millimetre calibre Norinco SKS self-loading rifle. The rifle was one which is designed for military purposes and has attached to it a folding bayonet as well as a telescopic sight. DNA testing identified Mr Scicluna’s DNA on the rifle, including on the trigger and inside the trigger guard. His DNA was also found on the bag containing the gun as well as on the stock of the gun. Ballistic testing identified that the fired cartridge cases found in front of the Gregory Street unit had been discharged from the rifle. Also located in the linen closet, together with the bag containing the gun, was a further bag containing ammunition of the same type that had been fired at the unit.

There were 17 boxes of ammunition designed for use with that rifle. Each box contained 20 cartridges, with the exception that one box had one cartridge missing, and another box had two cartridges missing. That gives a total of 337 unused cartridges. In addition, there were two magazines suitable for use with the rifle.

No specific number was provided to the Court as a result of any inspection as to how many cartridges were contained in the magazines, although it appears from the photographs that were taken that one contained approximately 25 cartridges, being the smaller of the two magazines, and in one photo it can be observed that there are at least four cartridges in one magazine and four cartridges in the other magazine. That is because the magazines are spring loaded and feed unused cartridges up to the top for automatic insertion into the gun. It would appear that there were in the order of 400-odd unused cartridges. After the firing of the cartridges at the premises, the accused departed in the Holden Colorado, driving back to the Campbelltown premises of Mr Scicluna’s female friend.

His personal residence was also out towards the Campbelltown premises at which the gun and unspent cartridges were recovered. There was also a significant amount of communication between the offenders by way of mobile phone following the event and before the conduct of the search by police.

Both offenders entered pleas of not guilty in relation to the respective offences with which they were charged. The jury did not accept that they were not guilty and returned verdicts of guilty.

In the trial, Mr Elkerdi did not give evidence or call evidence. Mr Scicluna gave evidence which, to use an ancient expression, appeared to me as a litany of lies designed to explain all of the evidence against him as well as against the co-accused in such a fashion as to hopefully ask the jury to acquit them.

He had commenced lying to the police when initially denying knowing who had been using his motor vehicle and he continued by advancing on oath the false case that I have referred to, which, in short, was that he and Mr Elkerdi had been at Parramatta and travelled to Coogee, where Mr Elkerdi was dropped off, prior to anything happening, at a relative’s premises in the Coogee area. Mr Scicluna then continued with a pre-arranged plan to meet a man in the Coogee area that he refused to name or identify in any way, who came to the motor vehicle together with two bags, clearly one containing the rifle and one containing the ammunition. He was asked to drive around the area on the basis of some lame excuse which was designed to explain the presence of the car in Fowler Street, and the attempt to walk from Fowler Street through to Gregory Street through the park.

However, the unidentified man with no name indicated that he had taken him to the wrong place, and they got back into the car and they drove around some more before he was asked to stop. Mr No-Name got out of the car, then took the gun from the bag, approached the premises and fired the shots with Mr Scicluna not being aware of anything until the shots were fired, and the man returned to the car with the gun and persuaded him to drive to Campbelltown, both by referring to Mr Scicluna as “a girl” and declining to explain in any way what he had just done. They drove to Campbelltown and Mr Scicluna went to the female friend’s premises rather than his own home because he did not want Mr No-Name to know where he lived. The female friend not being home, he had obtained the key from under an object in the garden.

They entered the home, and he was then persuaded by Mr No-Name to go back out to the car and collect the rifle with the bag of bullets and bring them into the residence to hide until such time that Mr No-Name was able to arrange for someone else to come and retrieve them. Of note is the very large amount of ammunition together with two magazines. Apart from Mr Scicluna’s DNA being found on the items I have already referred to, his DNA was also found in the creases of each of the two magazines. I note that as he had been subject to a firearms prohibition order from 24 November 2016, he was not to acquire, possess or use a firearm or to acquire or possess ammunition.

I note that subject to the order, a police officer may exercise the powers as reasonably required for the purpose of determining whether a person subject to an order has committed an offence against s 74(1), 74(2) and 74(3) of the Firearms Act 1996 and detain the person the subject of the order, enter any premises occupied by them or under their control or management, and may stop and detain any vehicle, vessel or aircraft occupied by the person the subject of the order or under their control or management, and conduct a search of the premises, the vehicle, the vessel or aircraft for any firearms, firearm parts or ammunition.

It defies common sense that Mr No-Name, if he existed and was setting off to fire on this unit, would have taken with him not only two magazines of ammunition but the large quantity of suitable ammunition contained in the bag.

The only evidence of the ammunition being at the scene comes from Mr Scicluna by way of his unsuccessful defence, blaming Mr No-Name. It is unlikely that he would have desired to keep a military rifle, magazines and ammunition at his personal residence, where he resided with a schoolteacher of 20 years’ experience, and his young children, which, of course, could have been the subject of a random search at any time by police. It would seem most likely that both the gun and the ammunition were in fact stored at the female friend’s premises for some time prior to this event, and that the recovered rifle and a sufficient amount of ammunition - perhaps one magazine only – were taken to Gregory Street to commit the offence. They were going to fire on a residential premises, not conduct a war. Cartridges in the range of 400 were entirely unnecessary to that purpose.

This was a high-powered military rifle. While there is no evidence of trajectory provided by an expert, it is evident from the photographs of the internal damage to the unit that the bullets were fired on a slightly upward inclination, four penetrating the loungeroom window, two of those travelling on, with at least one of them striking through the door frame to a kitchen area and lodging in cupboards above the refrigerator space. Two other bullets passed through the window at the other end and penetrated through an internal door which, from the photographs, apparently led to the bedroom. It does not require an expert to work out that the trajectory was one which, depending on how far an individual was standing from the window when the bullets entered and passed through the room, would have either struck any person there in the upper chest or head.

There is, of course, no evidence that anyone was present in the room at the time the bullets were fired. The resident claimed to have been asleep and not to have noticed. Also of note is that the window was covered by blinds and a curtain and taped on the inside of the window, covering the glass, were sheets of cardboard, or in one case a painting. The resident was either desirous of a high degree of privacy or anticipated that he might be the subject of some form of violence from the outside.

Offences such as this have become common in the last ten to 15 years and are normally associated with organised criminal gangs fighting over drugs, money or power. There is no evidence in this matter as to what the cause of the shooting was. That may have been available not simply from the accused, but from the victim, but he declined apparently to say anything much more than that he was asleep at the time.

The discharge of a firearm towards a house with reckless disregard to the safety of others is a dangerous antisocial act. The seriousness of such offences is indicated by the fact that it has a maximum penalty of 14 years’ imprisonment and a standard non-parole period of five years. It has been remarked that offences of this kind require condign punishment; see Powell v The Queen (2014) NSWCCA 69 at 38. It is relevant in relation to such offences to take into account the number of shots fired, the power of the weapon, the offender’s role and the offender’s knowledge about the presence of persons inside the premises as well as any planning. As I have indicated, in my view, the offence was clearly planned. There were at least six shots fired and they were fired at a time of night when it could reasonably be expected that there would be persons present in the premises.

As I have previously indicated, it is not possible to discern who was in fact responsible for firing the rifle, but it was fired as part of a joint criminal enterprise and each is equally responsible. In the circumstances, the objective seriousness of the offence of firing the firearm with reckless disregard is above the mid‑range of objective seriousness, as there were six rounds discharged from what was a high-powered self-loading rifle designed for military purposes and the shooting took place from a residential street between 7.45pm and 8.03pm on a Saturday night. There is no evidence that they knew that someone was home but whether someone was or was not home, in the circumstances of this matter, is unlikely to have been discernible because of the coverings of the window by blinds, curtains and cardboard panels.

The offenders travelled from Campbelltown, at least taking the rifle with them and sufficient ammunition to fire six shots. It was in my view a deliberate and considered course of conduct. Counts 2 and 3 on the indictment related only to Mr Scicluna. Count 2 was the offence of possess unauthorised prohibited firearm. That is a separate offence from the offence of firing the firearm. The possession of an unregistered firearm is of itself serious because of the potential for misuse. Actual misuse brings significant additional criminality; Rickaby v Regina [2007] NSWCCA 288 at 18. Count 3 was possessing the unauthorised prohibited firearm which relates to his having it in his possession at his female friend’s premises at Campbelltown. It again is a distinct offence. In relation to that offence and Mr Scicluna, I accept that Mr Scicluna’s possession of the powerful rifle and the cache of ammunition represented a clear and profound threat to the safety of the community. In Chandab v The Queen (2021) NSWCCA 186, Wilson J said:

As to the subjective matters before the Court in respect of Mr Elkerdi, there are JusticeLink printouts in relation to his conditions of bail in relation to this matter, he having spent some 18 days in custody before being granted bail. It is submitted on his behalf that these conditions were onerous or stringent and should operate to reduce the sentence imposed on him as a result. He was arrested on 2 June 2023 and received bail on 19 June 2023. He remained on bail until the conclusion of the trial when he returned to custody. During that time, his conditions variously included such requirements as a residential location and variations from not leaving those premises unless in company with a named person, complying with a curfew condition and presenting himself at the door when police attended, or being varied to allow daily reporting and curfew except for medical emergencies.

There was some gradual relaxation to the terms; however, considering the nature of the charges against the offender, the ordinary and expected price of being allowed to remain in the community was the imposition of bail conditions which might allow the community to believe that he was being sufficiently controlled so as not to commit further offences while in the community. In my view none of the bail conditions were either onerous or strenuous, although I will, to a degree, take them into account in determining the sentence. Although I will backdate the sentence and take into account time in custody, I will not backdate it to further to take into account what I do not regard as onerous or stringent bail conditions. As to subjective matters, the offender is now some 33 years and 11 months of age, turning 34 on the 30th of this month.

The offender did not give evidence at trial or call evidence, and he has not given evidence on sentence before me. His self-serving statements made to a psychologist, Sam Albassit, and a single letter from the Lavender Midwifery Group Practice at the Royal Hospital for Women, dated 18 August 2025 in respect of his partner, Montanna Geraghty, indicates that she was on 18 August 2025 currently pregnant with an estimated due date of delivery in early to mid-November 2025.

Mr Albassit’s report of 21 May 2025 indicates that the offender attended South Coogee Primary school from kindergarten to Year 6 before transitioning to Randwick Boys High for Year 7, before going to Marrickville Boys High for Year 8. He attended a number of high schools, apparently not through choice but rather due to erratic behaviour, thus not completing his school certificate. He described his behaviour at school as erratic and uncontrollable. He has referred to having been told by teachers at school that he had ADHD but there was no formal diagnosis, and, similarly, Mr Albassit has not actually diagnosed ADHD but said that the offender has symptoms consistent with it.

He apparently struggled academically, physically and socially at school, had few friends and was a loner who was always in trouble. He had difficulty listening, he lacked guidance and found the older crowd accepted him and gave him misguided confidence. By 13 years of age, he was associated with an antisocial crowd, and by 15 years of age he had graduated to the use of pills and cocaine, using drugs and alcohol regularly and excessively.

He did not have a close relationship with his father, who, in any event, passed away when he was 16 years of age, leaving him with his mother who had mental health issues. His parents divorced when he was 2, with his mother remarrying shortly after. He has two brothers and one sister from his mother’s second marriage. For a period of time he was essentially living on the streets, an experience that led to a destabilised and deprived upbringing without a stable home. He has attempted a number of courses, including Certificate III and IV in Youth Work and a personal training course but has not completed any of the courses. He described drugs as having taken over his life and struggling to remain employed. He informed Mr Albassit that the longest he had been absent from prohibited drugs between the ages of 16 and 32 was for six months. I note that in the Sentence Assessment Report he now claims to have been absent from prohibited drugs for a period of two years.

He commenced a relationship in 2022 which apparently has been continuing despite his incarceration and, of course, as I have referred to, there is now an expected birth of a child in the near future. While on bail in relation to this matter, he was engaged in some employment and apparently complying with his bail conditions. While he presents with the symptomology of ADHD, there is no formal diagnosis, and he apparently has a substance use disorder referred to by Mr Albassit as being in remission. He is said to have otherwise exhibited the symptomology of a major depressive disorder for most of his life. I note of course that, as I have referred to, all of that information comes solely from the offender, and he did not give evidence on sentence so that any of the assertions could be challenged or examined.

He has a number of convictions for offences involving violence, such as resisting an officer in the execution of duty, or assault officer in the execution of duty, assault occasioning actual bodily harm, affray, participate in a criminal group contribute criminal activity, demand property in company with menaces with intent to steal, and possess or use a prohibited weapon without permit. However, he has spent little time in custody as a result of his past criminal offending. In addition to those convictions in New South Wales, he was convicted in Queensland for possessing utensils or pipes for use resulting in a fine and a recorded conviction. He has a number of drug-related offences in New South Wales in addition. There is a Sentence Assessment Report which refers to his history of antisocial behaviour as:

He was arrested and charged with the current offence on 2 June 2023. He was then on parole for offences of aggravated dangerous driving occasioning grievous bodily harm and hindering the apprehension of a person who committed a serious offence. He was bail-refused for those offences.

On 21 June 2023, the State Parole Authority revoked Mr Scicluna’s parole. 27 May 2023 was to be treated as the date of revocation. The reason given for the revocation of parole was the allegations in the present matter. The balance of parole expired on 2 December 2023. He was held in custody from 3 June 2023 to 4 July 2024. He was granted bail on 4 July 2024. Of serious concern is that his bail was revoked on 12 July 2024, when he went back into custody.

The reason for the revocation of bail is that he was charged with the offences committed on 11 June 2024 of be carried in a conveyance taken without consent, and larceny, for which he subsequently received a Community Corrections Order. That is, he was granted bail on 4 July 2024 and committed further offences seven days later. He has been in custody from 12 July 2024 until today. That is a total of 813 days, comprising 516 days only in relation to these offences, and 184 days serving the balance of parole for the offences of dangerous driving causing grievous bodily harm and hindering the apprehension of a person who committed a serious offence, and 113 days in custody for both of these current offences and other offences dealt with at Burwood Local Court on 1 November 2024 (carried in conveyance taken without consent, and larceny), and, of course he has been in custody since the conclusion of the trial.

He has spent a number of periods in custody between 2010 and today and he apparently has problems abiding by gaol restrictions and regulations. There have been some 23 breaches during that period of time, both in relation to violence, disobeying directions and unlawful use of phone or fax and physically fighting, intimidation and failing prescribed drug tests. At least from January of this year, he appears to have behaved himself. He also has an offence in the Northern Territory of drive a motor vehicle while unlicenced, and in Queensland of making a false statement. The Sentencing Assessment Report under the hand of Jessica Ryan, dated 20 May 2025, confirms that his partner has indicated she will continue her support and is willing to assist his reintegration into the community.

He is said to have had consistent employment in the community. His recent employment is referred to in the reference of Mr Bakouris, although there is no indication in the letter from Mr Bakouris that he understands the purpose for which the reference was required. According to either Mr Rowe or Mr Abbott, his legal representatives, Mr Bakouris was aware. The assessment report refers to his criminal history beginning in 2001 and consistent convictions ranging from serious driving matters, drug offending, possession of firearms and ammunition, and assault. His offending history reflects a pattern of behaviour fuelled by his antisocial influences, substance use and antisocial attitudes.

As to “Attitudes,” he apparently blames his offending on antisocial associates and stated that he was unaware of his associate’s intention to offend. By that, from his evidence, I take it to mean that he is referring to Mr No-Name, who he declined to identify rather than Mr Elkerdi, who he claimed to have been dropped off prior to the offence. He also denied any knowledge of the firearms or ammunition prior to the offences and explained his refusal to disclose himself as the driver of the vehicle as being an attempt to avoid penalty and incarceration. I note, of course, that when asked in interview about who had been driving the vehicle, his interviewer produced a photograph of the front of the vehicle showing clearly himself as the driver and Mr Elkerdi as the passenger. He denied being able to recognise either himself or the passenger, and otherwise, when asked to identify who had been using his vehicle, simply said that he could not remember whether he had used it, or that it may have been used by someone; he could not remember.

He also indicated, in relation to the social influences, that he was a member of the Hells Angels motorcycle gang until 2014. Although he is no longer a member, he disclosed that he still associated with members regularly. One of those was obviously Mr Elkerdi, at least up until two weeks before, when he claims to have retired from the Hells Angels motorcycle gang. He indicated a need to avoid these connections post-release, but as is noted in the report, records indicate Mr Scicluna has advised this previously, however he continues to offend in their company, and he is yet to display any real commitment to disassociate with negative peers.

As to substance use, he claims to have consumed an unknown amount of alcohol and cocaine prior to the offences, but that really has no relationship to this matter because he claims that he did not commit the offences, although he reported that his intoxicated state contributed to his inability to make good decisions. He denied knowledge of the firearm; however, he accepted responsibility for his actions in trying to conceal the weapon to avoid apprehension and incarceration. He is said to have shown an understanding of the impact of his behaviour on the victim, who was, of course, not his victim, according to him. He verbalised that the victim would have been scared, would have had ongoing emotional trauma and did not deserve to be offended against. He also described the impact of his actions on his family and the greater community.

He was assessed as a medium risk of re-offending according to the level of the LSI-R. His partner, Ms James, gave evidence on sentence, and provided to the Court a letter from her, dated 15 May 2025, a report from the Gregory Hills Public School in relation to Elijah Scicluna, and a report from Macarthur Paediatric Occupational Therapy, also in relation to Elijah Scicluna. I note Ms Michelle James’ letter indicating the significant impact of the offender’s incarceration has had on her and their children. Both apparently have significant problems, and she now has the unfortunate task of having to look after them on a daily basis with no assistance or support. I note that when she gave evidence, she expressed the view that the offender had given no consideration to her or his children at the time of committing the offences.

Both Elijah and Noah have a number of problems which require ongoing medical/expert specialised treatment. When he has been at home, he has been involved in many aspects of their life. She states the mental toll that his incarceration has had for his two older children is insurmountable. Both Mackenzie, a daughter from an earlier marriage that he has access to, and Elijah accessed mental health providers as they both perceived his absence as a sense of abandonment by their father that they somehow caused. I note that in her oral evidence on sentence she accepted that before entering into a relationship with Mr Scicluna, she was aware that he was a criminal or at least had previously committed criminal offences. Despite that knowledge, she has entered into a relationship with him, which has now extended for over ten years and resulted in the birth of two children.

I accept as she states that children need to have the influence of a father. However, the influence of a father needs to be not simply present and able to take them to medical appointments or matters of that nature, but to encourage them to develop to obey the law, and it is evident that Mr Scicluna, by his repetition of criminal offending, could only operate as a bad role model. Their problems are being dealt with in the community by way of the provision of NDIS support, and Ms James, to her own detriment, providing to the extent that she can, support and assistance in obtaining support from community organisations. I feel sorry for her and for their children but this was very serious offending by an offender who should have known better and should have taken into account the likely effect on his family and children before embarking on such a serious offence.

A sentence of imprisonment is something that he must have realised if he were caught would be inevitable, and the effects on his partner and children inevitable and understandable because of his past service of time in custody. He ignored their problems, and ongoing problems, and now effectively asks the Court to ameliorate the proper sentence out of sympathy for his partner and children in regard to whom he had no concern. I note that in the report from the psychologist, it is stated:

In relation to the matter contained in the 166 certificate, s 17(1) of the Law Enforcement (Powers and Responsibilities) Act 2002, of failing to identify the driver, the indicative sentence is six months’ imprisonment. Taking those matters into account and allowing for the time in custody including the loss of potential parole at one stage during his time, I intend to back date the sentence by a period of two years to take into account all of the past custody and potential loss of parole. The sentence will be ten years with a non-parole period of seven years, six months. I have backdated it from the conclusion of the trial on 17 March 2025 by two years, so it will commence on 18 March 2023. He will be first eligible for parole on 17 September 2030. The balance of term is two years, six months commencing on 18 September 2030. The balance of term will expire on 17 March 2033.

I should just return to Mr Elkerdi’s sentence to indicate that I have back dated it from 17 March 2025 by 18 days to account for time spent in custody. So, the non-parole period is five years commencing on 17 March 2025, back dated by 18 days. It commences on 27 February 2025, and he will be first eligible for parole on 26 February 2030. The balance of term is three years commencing on 27 February 2030 and expiring on 26 February 2033.