R v Gattellari ; R v Kaminic

Supreme Court of NSW|2013-02-12|Before: Latham J

Solicitors Solicitor for Public Prosecutions - (Crown) Wyndham Prem Commercial Lawyers - (Offender) William O'Brien & Ross Hudson Solicitors - (Offender) File Number(s): 2010/339801, 2010/339798

SENTENCE

Fortunato (Lucky) Gattellari, appears for sentence with respect to the murder of Michael McGurk on 3 September 2009. He pleaded guilty on 7 September 2012 in this Court to murder on the basis of accessory before the fact to that offence, following rejection by the Crown of an offer to plead to a charge of solicit to murder. The offence carries a maximum penalty of life imprisonment and carries a standard non-parole period of 20 years' imprisonment.
Senad Kaminic, appears for sentence on a charge of accessory after the fact to the murder of Michael McGurk. That offence carries a maximum penalty of 25 years' imprisonment. He pleaded guilty on 16 August 2012 in the Local Court and has adhered to that plea.

The Basis of Gattellari's Liability, the Objective Gravity of the Offence and Assistance

Gattellari's liability for murder on the basis of being an accessory before the fact to that murder relies upon the following conduct :- 1. Approaching Safetli to carry out surveillance of the deceased at his home and office. 2. Receiving information and photographs from Safetli regarding the surveillance and passing this information on to Medich. 3. Instigating the recruitment of Safetli to murder the deceased in about March 2009 at the request of Medich. 4. Entering into an agreement with Safetli on Medich's behalf to murder the deceased and paying the money provided by Medich. 5. Informing Medich of the recruitment of Safetli and the amount of money requested by him. 6. Obtaining this money from Medich. 7. Storing the money in his own home. 8. Handing over the money as requested for the commission of the offence. 9. Placing the initial payment of $45,000.00 for expenses in a paper envelope and requesting Kaminic to give it to Safetli with the instruction that they needed to "start doing what they need to do" to commit the offence on behalf of Medich. 10. Passing on Medich's wishes that it was to be done in any way possible. 11. Meeting with Safetli to ascertain the progress of the planning of the murder. 12. Relating any information to Medich. 13. At the behest of Medich, constantly requesting Safetli to commit the murder as expediently as possible. 14. Sending a text message from China to Kaminic suggesting that it was an appropriate time to carry out the murder. 15. Providing information received from Medich to Safetli with regards to the deceased's trip to Jindabyne. 16. Passing on more money to Safetli for the purposes of following the deceased to Jindabyne. 17. Seeking alternative recruits when Safetli was unable to find someone willing to undertake the murder. 18. Facilitating the meeting between Safetli and the new recruit at Malabar RSL. 19. Determining that the new recruit was unsuitable.
The Crown acknowledges that there is no evidence of any direct and quantifiable financial benefit to Gattellari for his role in the murder. However, the Crown's contention is that this offender was considerably indebted to Medich in the sense that their long association and Medich's investment in the offender's business propositions effectively financed the offender, his family and his lifestyle. In these circumstances, it is said that the offender succumbed to pressure from Medich.
This is perhaps the most troubling aspect of the offender's role in the offence. The offender was at pains during his evidence on sentence to stress how "domineering" Medich was and how "totally obligated" he felt to Medich. The offender denied that his participation in the offence was motivated by the fear of personal harm or that it was in any way connected with his financial dependence on Medich. The offender maintained that he carried out Medich's wishes solely out of a sense of misguided loyalty, and only after attempting to dissuade Medich from adopting such a drastic course.
It is difficult however to disregard the fact that the offender was financially obligated to Medich. Of the various businesses recommended to Medich by the offender for investment by Medich, the offender himself invested no money. Rather, the offender's role was to turn the businesses into successful enterprises once they had been purchased by Medich. The offender received a weekly wage and a "guarantee that should things work out, that he would look after me." In other words, the offender acknowledged that if the businesses succeeded, he "expected to be compensated". The offender estimated that Medich had invested in the order of $15 million in business ventures proposed by the offender.
The offender agreed that he comprehended from the beginning that Medich was requesting that McGurk be killed. The offender had no direct relationship with McGurk and had only met him on a couple of occasions. Indeed, it seems that the offender knew very little about McGurk other than what Medich told him and what the offender gleaned via reports from Safetli. Notwithstanding that the offender has no relevant prior criminal history and is otherwise a person of good character, he performed a primary role in a sustained effort to execute a man on the say-so of his "employer". Ultimately, the offender was unable to explain why he was unable to resist Medich's request to have the deceased killed.
Central to the offender's senior counsel's submissions was the proposition that the offender was not to be punished for a "contract killing" because he was not to be rewarded financially. One compelling inference to be drawn from the evidence is that the offender acted at least in part in the belief that if he did not do Medich's bidding, he would be cut adrift from Medich's patronage and effectively left without any means of support. In that respect, the offence was to some extent financially motivated.
In any event, the offender's moral culpability is of a high order. It is not useful in the circumstances of this case to draw fine distinctions between direct or indirect financial benefit on the one hand and motives of loyalty on the other. At the end of the day, the Court must have regard to what the offender did.
It is entirely theoretical to speak of the offender's moral culpability relative to that of Medich, Safetli and Estephan, given that those persons are yet to stand trial. That said, I accept that the offender's moral culpability is of a lesser order than Medich's, although I would not distinguish it markedly from Safetli's or Estephan's.
Critical to the objective gravity of the offence is the offender's knowledge from the outset that McGurk was to be killed for money, his role in the negotiations with Safetli, his role in the transfer of money from Medich to effect the killing, and his ongoing encouragement of Safetli, all over a period of approximately six months. The offence stands towards the top of the range of objective gravity for such offences.
The contents of the confidential exhibits tendered in the proceedings, and the evidence of Detective Inspector Sheehy, establish that the offender's assistance to the authorities is of an exceptional nature. There is no need to canvass the nature of this assistance in detail. It is sufficient to note that the case against Medich, Safetli and Estephan hinges very substantially on the proposed evidence of this offender. The offender has provided many detailed statements to police over many days, totalling 550 pages. He has also assisted in his disclosures to the ICAC, thereby prompting further investigations and hearings. His assistance is significant, useful, apparently reliable, and timely. The Crown does not dispute the offender's entitlement to a discount at the top of the range. It is accepted that the offender indicated an intention to plead guilty at the earliest opportunity.
The bulk of the offender's assistance resides in his future evidence at the committal and trial of his co-accused. In these circumstances, a discount of 60%, representing the utilitarian value of the offender's plea and his assistance, ought be applied to the sentence that is otherwise appropriate. Of that 60%, 30% is attributable to the offender's future assistance and 5% is attributable to the offender's past assistance.

Gattellari's Subjective Circumstances

The offender was born in Italy and migrated to Australia with his family at the age of four years. He became an Australian citizen. He has 5 surviving brothers who remain supportive of him. His parents died when he was about 20 years of age.
The offender is presently 63 years of age and has been married 35 years. He has three children aged between 30 and 25 years of age. He has a close relationship with his wife and children, all of whom remain supportive and visit regularly, with the exception of the middle child who lives interstate. The publicity surrounding the offender's arrest caused a degree of emotional and financial stress to the offender's family.
The offender left school at the age of 14 years to work in the family fruit shop. He then undertook an apprenticeship with a fashion photographer, later worked as a copy boy for a newspaper and then as an articled clerk for a solicitor. He has also worked as a flight steward and was called up for National Service. He became a professional boxer and retired as the holder of the Australian featherweight title. He has been largely self-employed in his later working life. For a period of time he owned and ran a function centre and a winery.
The offender has otherwise lead an exemplary life. The number and quality of testimonials provided on his behalf, together with the evidence from his brother and other family and business acquaintances, confirm his contribution to his community through charitable works and his generosity of spirit towards others less fortunate than himself. This evidence of good character stands in sharp contrast to the criminality inherent in the offender's involvement in a murder.
The offender stated that he had suffered from anxiety associated with claustrophobia from a young age and would often abuse alcohol. The offender's wife confirmed that the offender's use of alcohol increases dramatically when he is stressed and that he had developed a tolerance to alcohol. Since his arrest he has benefited from psychiatric consultations and is currently prescribed an antidepressant. The offender also suffers from a number of other minor illnesses, including gout, haemorrhoids, tinnitus, arthritis and diverticulitis. He has appropriate medications for these complaints.
The various psychiatric reports tendered on sentence indicate that the offender's anxiety disorder has been exacerbated by his incarceration in the Special Purpose Centre of Long Bay gaol. The offender did not request protection, although he accepts that it is an inevitable consequence of his offer of assistance. Dr Nielssen in his report of 3 February 2013 states that the offender would be eligible for transfer to a lower security setting after he has completed giving evidence in the matter. That opinion appears to me to be consistent with current correctional practice. However, as Exhibit K makes clear, it is not possible to speculate when the offender might be removed from protection. To the extent that the offender ought receive some allowance for conditions of custody that are far more arduous than those experienced by the general prison population, that allowance applies in respect of the period since the offender's arrest and extends at least for a number of years into the future. It is a factor that is already reflected in the quantification of the discount for assistance.
The offender has expressed his contrition and remorse for the offence both to the Probation and Parole officer and in the course of his evidence during the proceedings. To the Probation and Parole officer he claimed that :- during the commission of the current offence he believed that his involvement was 'minuscule'. He justified his actions, stating that at the time of the offence he felt pressured by misguided loyalty and he believed that he could convince Mr Medich to change his mind if given sufficient time. He reported that he was unaware of the reality of his actions until after the victim was killed. Mr Gattellari stated that he continues to have difficulty coming to terms with the way in which the victim was killed. ... Despite Mr Gattellari stating that there was no financial gain from his involvement in the current offence, he acknowledged that his involvement ensured an ongoing business relationship with Mr Medich.
The latter part of this passage confirms the conclusions I have reached with respect to the offender's motives. It is difficult to accept that the offender was unaware that his actions were actively contributing to the deceased's death. I regard these statements as an attempt on the part of the offender to come to terms with his culpability. I accept however that his remorse is genuine.

Sentence (Gattellari)

But for the offender's past and future assistance, a sentence of 25 years' imprisonment is appropriate to the objective criminality of the offence, having regard to the offender's subjective circumstances. Applying the stipulated discount results in a sentence of 10 years' imprisonment. I decline to find special circumstances. A lesser non-parole period than that prescribed by the statutory ratio would be unreasonably disproportionate to the offence.
Fortunato Gattellari, you are convicted of the murder of Michael McGurk. You are sentenced to a non-parole period of seven (7) years and six (6) months to date from 13 October 2010, expiring 12 April 2018. The balance of term expires 12 October 2020. You are eligible for release on 13 April 2018.

The Basis of Kaminic's Liability, the Objective Gravity of the Offence and Assistance

The criminality of the offender Kaminic stands to be assessed on a charge of accessory after the fact to murder on the basis of the following conduct :- 1. Acting as a go-between at times for Gattellari and Safetli, thereby allowing Gattellari to remain at arms length from Safetli. 2. Secreting and then returning Gattellari's gun to Safetli, thus attempting to remove any association between Gattellari and Safetli. 3. Obtaining the final payment of the contract money from Medich at the request of Gattellari. 4. At regular intervals and over a period of months, passing on the contract money to Safetli at the request and direction of Gattellari, knowing that it was payment for the murder of the deceased and associated activities. 5. Assisting Gattellari at his request and direction in attempting to convince Safetli to assume sole responsibility for the murder of the deceased in return for financial assistance to Safetli's family, thereby seeking to remove suspicion from Gattellari and Medich.
It is apparent from the account of the offender's activities set out above that he was aware of the plan to murder the deceased long before it took place and that he took an active part in attempting to intimidate Mrs McGurk following her husband's murder. In that regard, the offender was indemnified by the Attorney-General on 5 July 2012 with respect to the charge of murder, accessory before the fact to murder and intimidation of Mrs McGurk. Accordingly, the offender's criminality for the purposes of sentence is confined to his activities post-dating the murder.
For these reasons, the objective criminality of the offence to which the offender pleaded is significantly different and of a lesser order than that of Gattellari. It is clear that Kaminic acted almost entirely at the direction of Gattellari and with the aim of protecting Gattellari as far as possible from any liability arising out of the murder of McGurk. In this respect, the offender's participation was integral to assisting Gattellari, and through him, Medich, in avoiding arrest and prosecution for the offence of murder.
That said, the offender did not provide the services he did in a spontaneous effort to prevent Gattellari's and Medich's arrest for the murder. He knew of the murder and the circumstances of its commission and he systematically set about covering the tracks that might have lead from Safetli to Gattellari and to Medich. Accepting that assistance in the disposal of a body generally signifies a high level of objective gravity, this offence falls below the upper range of objective gravity but not by much.
The offender offered to assist the authorities immediately following his release to bail on 18 November 2010. He had remained in custody since his arrest on 13 October 2010. His assistance is of a similar order to that of Gattellari, in that it appears he has co-operated fully in disclosing all that he knows, including linking Medich, Safetli and Estephan with the murder. The assistance in the form of the statement he has provided to police may not be as voluminous as Gattellari's but that is a function of Kaminic's lower rung on the nominal hierarchy. The preponderance of his assistance is yet to be provided by way of evidence at committal and trial of the co-accused. He has already assisted the ICAC by giving evidence and disclosing information that has assisted in new and ongoing investigations.
The application of the discount for assistance is predicated on a sentence of full-time imprisonment. It is urged upon the Court by the offender's senior counsel that a penalty less than full-time imprisonment ought be imposed in the particular circumstances of this case. In order to deal with this submission, it is necessary to turn to the offender's subjective case.

Kaminic's Subjective Circumstances

The offender was born and raised in a village in the former Yugoslavia. He is presently 45 years of age. He has no criminal history. He and his family identified as Herzegovinian, from the southern region of former Yugoslavia. His parents identified as Muslim even though they were not practising. He was one of five children in a family which was financially constrained. His father mainly worked in Germany for about six years during the offender's childhood in order to support the family. He was raised on a farm almost exclusively by his mother, with whom he enjoyed a close relationship.
Following the outbreak of ethnic conflict in the early 1990s, the offender was exposed to significant trauma and witnessed a number of atrocities over the course of the Croatian and Bosnian wars. He was captured as a civilian in 1993 and placed in a Croatian concentration camp over a four-month period. After his release from this camp, he went into hiding in a Croatian friend's home. He was eventually able to travel to Germany in November 1993 where he resided for two years and attempted to gain residency. The offender, his wife and young son emigrated to Australia as asylum seekers in December 1995.
The offender continued to experience psychological distress and symptoms of a post-traumatic stress disorder following his arrival in Australia. These psychological and physical health problems have persisted over the past 17 years. The offender's father died in 2004, compounding the offender's unresolved symptoms. The offender has been estranged from his brothers since about 2008 and is also now estranged from his mother.
He was educated to the age of 14 and then trained as a metal machinist until he was approximately 17 years of age. He completed one year of compulsory military training at the age of 19. He worked as a truck driver for approximately two years before the wars in Croatia made that work too dangerous. He struggled with obtaining and maintaining employment in Australia as a result of language difficulties, psychological difficulties and physical health issues. He studied English between 1998 and 2000 in Australia. He obtained a security licence in 2000.
As a result of obtaining the security licence, he began to work in security and debt collection and came into contact with his co-offender, Gattellari. The offender carried out infrequent debt collection services for Gattellari from around 2005. His longest period of full-time employment was for 21 months as Gattellari's driver from about mid-2008. He was available to Gattellari at any time of the day or night until he lost his driver's licence in March 2010. He has been unemployed and receiving a Centrelink disability support pension since mid-2010.
The offender has been diagnosed with post-traumatic stress disorder, a major depressive illness and an alcohol abuse disorder. This diagnosis largely arises out of the offender's exposure to war and the traumatic events of the Croatian Bosnian conflict. The offender's physical ailments consist of a genetic heart condition which results in an irregular heartbeat. The offender's incarceration in a concentration camp resulted in a significant loss of weight and other physical ailments affecting his back, neck and hands. He reports experiencing chronic pain.
The offender first consulted a psychiatrist in about 1997. He was prescribed psychotropic medication but had ceased taking medication in around 2000. The offender renewed his contact with his treating psychiatrist in mid 2010. He is currently medicated with an antidepressant and anti-anxiety drug which he finds helpful.
On being taken into custody, the offender was assessed as at risk of self harm. The Corrective Services records indicate that the offender was fearful of officers in uniform, reluctant to mix with other inmates, and his appearance was dishevelled and unwashed. He was fearful of having a shower because of his perceived vulnerability to attack. The offender reported visual and auditory hallucinations. It is accepted that the experience of custody weighs more heavily on the offender because of the association with the offender's experiences as a prisoner of war. This is a factor which is to be weighed in the sentencing exercise in addition to the likelihood that any further period of custody will necessarily be served in protection, with the consequent hardship that that status entails.
The offender did not give evidence on sentence. However, in the course of numerous consultations with psychiatric professionals, the offender explained his involvement in the offence in terms of his loyalty and sense of obligation to Gattellari. The offender has always considered himself a poor employment prospect. It is said that his capacity to exercise sound judgment in this context was compromised by his poor psychosocial functioning and his reliance upon Gattellari as a friend and employer.
The offender expressed his remorse for his involvement to his family members, consulting psychiatrists and psychologists. The quality of that remorse is difficult to determine in the absence of evidence from the offender.
A number of testimonials from members of the offender's family and friends confirm that the offender is a person of good character who has experienced a great deal of hardship in the course of his life. They speak of the dramatic change wrought in his appearance and personality by the experience of custody.
It may be accepted that the offender's history and all of the afflictions from which he suffers go some way towards explaining his participation in the events following the murder. Yet it is an unsatisfactory explanation in some respects because the offender's aversion to violence (according to the testimonials and psychiatric reports) does not sit easily with the course of conduct underpinning the offence, particularly when these activities were carried out in the knowledge that a man had been gunned down in cold blood in the presence of his son.
I am not persuaded that the offender's subjective circumstances can stand in the way of appropriate punishment, which can only be a sentence of full- time imprisonment. The structure of that sentence will however take account of the offender's particular vulnerabilities in the context of protective custody.
Before passing to a consideration of the extent of the discount to be applied in order to reflect the factors in s 23(2) of the Crimes (Sentencing Procedure) Act 1999, it is pertinent to note that the provision of the indemnity to the offender notionally comes within the meaning of "benefit" in s 23(2)(f). The offender's senior counsel referred the Court to R v Bourchas [2002] NSWCCA 373 at [111] in support of the submission that the indemnity was of little or no relevance in the quantification of the discount, for the reason that the motive for the assistance is not the focus of the exercise.
Bourchas did not grapple with the terms of s 23. Leaving that to one side, I have determined that there is no evidentiary basis upon which it can be concluded that the offender was granted an indemnity "by reason of the undertaking to assist". The offender provided his undertaking to assist on 11 February 2012, whereas the indemnity was granted five months later. An inference may be available that the latter was granted because of the former, but it is no more than that.
The offender is entitled to the full discount for his early plea of guilty. The discount for his past assistance is assessed at 5%, while the discount for his future assistance is assessed at 20%. A combined discount of 50% applies to the sentence to be imposed.

Sentence (Kaminic)

But for the application of the combined discount, a sentence of 9 years' imprisonment ought be imposed. A finding of special circumstances is warranted in view of the offender's fragile psychological state. The non- parole period will also take account of a period of one month and four (4) days that the offender has already served.
Senad Kaminic, you are convicted of accessory after the fact to murder. I impose a non-parole period of two (2) years and six (6) months to date from today, 10 May 2013, expiring 9 November 2015. The balance of term is two (2) years expiring 9 November 2017. You are eligible for release on 10 November 2015.

Amendments 03 May 2018 - Judgment restricted during co-offender's trial, which is now complete. 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: 03 May 2018

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