R v Hadchiti

Supreme Court of NSW|2014-02-21|Before: Schmidt J

Judgment 1On 13 November 2013, a jury convicted the offender, Michael Hadchiti, of the murder of Billy Mack, the boyfriend of his sister, Marian Roumanos, after a trial at which he gave evidence that he had killed Billy Mack in self defence, after Billy Mack attacked him with a knife, when he came to the defence of his mother, Sonia Hadchiti. 2He now stands for sentence for his offence.

This Court's task 3I will begin by explaining how the offender's sentence must be arrived at, by reference to what legislation enacted by the Parliament and binding case law requires in a sentencing exercise such as this. 4After a jury verdict, the sentencing judge must take a view of the facts relevant to sentencing which is consistent with the verdict which the jury has reached, with any reasonable doubt being resolved in favour of the accused (see Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14]). Disputes as to factual findings have to be resolved in the way discussed in The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270, where it was observed at [27]: "...that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities." 5The rules of evidence do not otherwise 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. 6The sentence imposed on the offender must 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. It must be determined in light of the maximum penalty imposed for the crime in question, which in the case of murder is life imprisonment (see s 19A of the Crimes Act 1900 (NSW)). Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires, however, that a sentence of life imprisonment only be imposed on an offender, if the Court is satisfied that the level of culpability in the commission of the offence is so extreme, that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. The maximum sentence of life imprisonment is thus reserved for extreme offences of murder. 7It is a matter for the Crown to establish that an offence falls within s 61(1). In this case the Crown did not seek to do so. I accept that this is not a case which warrants the imposition of such a sentence, notwithstanding its obvious seriousness. 8The Parliament has also imposed a standard non-parole period of 20 years imprisonment for an offence of murder falling in the middle of the range of objective seriousness of such offences, taking into account only the objective factors affecting the relative seriousness of the offence (see s 54A of the Crimes (Sentencing Procedure) Act). A non-parole period is the minimum period that an offender will serve in prison, before being eligible to be released on parole for the balance of the sentence imposed for the offence. 9Both the maximum penalty and the standard non-parole period are amongst the factors which must be taken into account on sentencing, as was discussed by the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 and is now provided in s 54B of the Crimes (Sentencing Procedure) Act. 10In arriving at a sentence the Court must also bear in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act. 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." 11The Court must also consider identified aggravating and mitigating factors revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of the offence (see s 21A of the Crimes (Sentencing Procedure) Act). The offender's moral culpability for the offence must also be taken into account (see the discussion in Muldrock and in Munda v Western Australia [2013] HCA 38; (2013) 302 ALR 207). Consideration must also be given to questions of general and specific deterrence. 12All of the relevant factors must be taken into account by way of the instinctive syntheses discussed in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]. That is, identifying all the factors that are relevant to the sentence, discussing their significance and making a value judgment as to what is the appropriate sentence for the offence. 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]). 13Regard 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. Whether special circumstances should be found in this case was also in issue between the parties. 14If 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). 15In this case, for reasons which I will explain, justice demands that a significant custodial sentence be imposed on this offender.

The offence and its seriousness 16It was common ground at trial that it was the offender who had killed Billy Mack. 17The Crown's case was that Billy Mack was attacked, seriously assaulted and fatally wounded with a knife, shortly after he entered the front yard of the offender's home; that others present were involved; that the offender did not act in self defence; that he was not provoked by Billy Mack; that those involved later conspired to conceal how Billy Mack was killed; and that this eventually extended to influencing Marian Roumanos to depart in her evidence at trial from the accounts which she had given to neighbours and police on the night of Billy Mack's death and when she gave evidence at the committal hearing. 18The Crown's case was a circumstantial one. While it did not have to establish every particular fact on which it relied beyond reasonable doubt, it had to prove that the established facts, when viewed as a whole, established beyond reasonable doubt that the offender murdered Billy Mack. 19The jury convicted the offender of murder being satisfied, despite the evidence he and his mother gave, that the Crown had established all elements of the offence beyond reasonable doubt. 20The jury reached that verdict in the face of the evidence given by those who were present at the offender's home when Billy Mack was killed, apart from the offender's sister-in-law and four children. They were the offender's parents, Sonia and George Hadchiti, his brothers John, Mehriz and Rabih and a family friend, Bishawi Amin. Marian Roumanos and Billy Mack's niece TM, then aged 13, who were waiting together for Billy Mack on the road outside the yard where Billy Mack was killed, were also called. Applications under s 38 of the Evidence Act were granted without objection in relation to all these witnesses apart from TM. Those witnesses all received certificates under s 128. 21Evidence was also called from neighbours, police and ambulance officers who attended the scene, treating doctors and various experts. 22In convicting the offender the jury rejected the evidence given by the offender, Sonia Hadchiti and other witnesses present when Billy Mack was killed, when it conflicted with that given by TM, accepting the Crown case that there had been a successful attempt to interfere with Marian Roumanos' evidence prior to the trial. Her evidence, when it departed from accounts which she had earlier given to police and when she gave evidence at the committal hearing, which had supported TM's evidence, was also rejected. 23Despite the offender's resulting conviction, on sentencing, there was a considerable dispute between the parties as to the objective seriousness of his offence. The Crown's case was that it was a serious offence, falling above the mid-range of such offences. The offender contended that his offence fell at the lower end of the range of objective seriousness, because his attack on Billy Mack was unplanned and motivated by revenge for Billy Mack's attack on his mother. That, it was argued, would mitigate to a limited extent, the objective seriousness of his offence and would also reflect on his moral culpability, the need for personal deterrence and an assessment of his risk of re-offending. 24The offender's case was that the jury had concluded that he had acted in excessive self defence, self defence and provocation having been negatived beyond reasonable doubt. He also contended that on the evidence it was open to the jury to have reasoned that there was no prospect that an ordinary person in his position "could have formed the intent in the circumstances such as to excuse homicide/murder to one of manslaughter" because his response to the assault on his mother was wholly disproportionate. In the result he submitted that:

it was thus open to the jury to conclude that the incident between he and Billy Mack had started in the way he had described;
his motive was revenge for Billy Mack's attack on his mother; and that
the murder had not been planned. 25The offender accordingly submitted that it would be found that:
Given the conflict between the evidence of Marian Roumanos and Sonia Hadchiti, it could not be concluded that she was aware that Billy Mack was coming to collect the children before 9:07pm, despite their earlier telephone communication at around 5:30pm.
Even if that was rejected, the evidence did not establish that Sonia Hadchiti or George Hadchiti, who was in close proximity when Sonia Hadchiti spoke to Marian Roumanos, had told the offender that Billy Mack was coming.
In the result it could not be concluded that there was any planning.
Sonia Hadchiti had suffered musculoskeletal pain as the result of Billy Mack's attack on her.
Sonia Hadchiti's differing accounts of what had happened to her were the result of the shock which she had suffered.
The wound to the offender's wrist was not self-inflicted, but had been inflicted by Billy Mack.
The offender went to the defence of Sonia Hadchiti while Billy Mack attacked her.
Marian Roumanos had sought and obtained her parents' approval to return to their home on the Friday evening before Billy Mack's death.
The offender's motive was not disapproval of his sister's relationship with Billy Mack, but revenge for the attack on his mother. 26The Crown's position was that none of these findings were open. The jury had accepted TM's evidence. It did not leave open a finding that Billy Mack had attacked Sonia Hadchiti or that the offender had come to her defence. That was also negatived by the injuries which Billy Mack had suffered. The evidence which the offender had given about these injuries was fanciful. The jury had rejected his evidence and that given by the other members of his family as to what had happened that night. None of that evidence could account for the injuries which were inflicted on Billy Mack. Given the speed of the attack on Billy Mack by a number of people when he entered the yard where he was killed, it could also not be found that no planning was involved. What was planned was not sophisticated, but it was effective. 27The Crown also submitted that the findings sought by the offender had to be approached in light of the evidence which established that the offender's family had forced Marian Roumanos to change the accounts she had given to police and at the committal hearing. While initially denying contact with her mother prior to giving her evidence, the evidence established that they had been in recent phone contact at least 50 times. She had also been in contact with her two other brothers. In the result, it had to be concluded that parts of her evidence, such as that which she gave as to a visit to her family home on the Friday night before Billy Mack's death, was designed to hinder the Crown's case. 28That evidence was the result of the influence which had been brought to bear upon her by her family. That was submitted to be one part of a cover-up in which the offender had been involved and which still persisted, which reflected badly on him and other members of his family. The evidence given by the offender and the other family members would be found to have been untruthful in every respect. 29The issues lying between the parties have to be resolved in the face of the offender's conviction despite the evidence which he, his mother and various others present that night gave; the facts which were not in issue at the trial; and what the offender accepted on sentencing. 30Given the nature of those issues it is necessary to go to the detail of the evidence, to explain why the evidence given by the offender and his mother is not a reliable foundation for the findings which he sought on sentencing and why they are not available on the evidence on which he was convicted. 31The offender and his mother both gave evidence that they were alone in the front yard with Billy Mack; that Billy Mack first argued with Sonia Hadchiti and pushed her to the ground and then attacked the offender with a knife, injuring his wrist, when he went to his mother's aid; that Billy Mack was killed during their ensuing fight, in which only he and the offender were involved; and that after the fight ended, Billy Mack rolled over and tried to crawl away. 32The offender's evidence was that he had not intended to kill Billy Mack. He inflicted the fatal wound during a struggle over control of Billy Mack's knife, while Billy Mack was lying on his back on the ground and the offender was above him. 33The jury convicted the offender even though his self defence case was supported in various respects by the evidence given by his parents, his brothers, a friend and by some of the evidence given by his sister, Marian Roumanos. The jury rejected all of that evidence as not being an honest account of how Billy Mack came to die. The verdict reflected a conclusion that it was neither credible nor plausible, but rather designed to shield the offender from conviction and to conceal who else was responsible for Billy Mack's death. 34What was not in issue at trial included that Billy Mack drove to the offender's home to collect Marian Roumanos' two children, after dropping TM's friends at the station and stopping to buy something; that Marian Roumanos and TM waited for him on the road outside; that Sonia Hadchiti and the offender were in the front yard when he arrived; and that other family members and a friend Bishawi Amin were also at the house. 35On sentencing, the offender conceded that:

George Hadchiti

George Hadchiti told Senior Constable Bruzzone outside the house that he did not see what had happened, he was inside and that he had no idea who the person lying on the ground was. He had heard yelling but stayed inside. When inside the house in the presence of his sons and Bishawi Amin, he told Detective Sergeant Clarke that he did not know the man lying outside and did not know what had happened to him.
His evidence at trial was quite different. Then he said he had heard yelling and went outside where he saw his wife vomiting on the ground with her clothes torn. He saw the offender and Billy Mack grabbing hold of each other. They both had knives in their hands and fell to the ground where they struggled together. He did not get involved. When asked if he saw them stabbing each other he said, "Yes I saw them hitting each other", but he did not hear Billy Mack yell out "let me go you scumbags". He saw that the offender was covered in blood on his face and his clothes, including his top. That was not the state in which police found the offender.
He denied later speaking to Marian Roumanos on the phone and saying to her "eat shit" as Marian Roumanos had told her neighbour.

John Hadchiti

John Hadchiti also told Detective Sergeant Clarke inside the house, that he did not know the man outside on the ground and shrugged his shoulders when asked what happened to him.
His evidence was, however, that he was in the granny flat with his wife and the kids when he heard yelling outside. He did not go to investigate for some 10 minutes. When he did he saw his mother screaming on the ground, saying "help help", his brother sitting holding his arm, his father on the stairs and someone lying on the ground.
He denied being in the yard when Billy Mack arrived and saying in Arabic "fuck your mum".

Mehriz Hadchiti

Mehriz Hadchiti told Detective Sergeant Clarke inside the house, "Same, I do not know," when asked who the man lying outside was.
His evidence was, however, that he had heard his mother scream and saw her on the ground crying, his brother next to her, his father outside and something lying on the ground.

Rabih Hadchiti

Detective Sergeant Clarke also asked Rabih Hadchiti inside the house, if he knew the man outside, he just shrugged his shoulders.
His evidence was that he heard a loud scream from the front; he saw a bloke physically touching his mother in the chest and her fall and saw the offender and Billy Mack fighting, both holding knives. He did not watch any further and went back into the house and waited until police arrived because it was too dangerous and he did not want to get involved.
In his police statement he had said that his father was out there "trying to pull them apart". His evidence was that this was wrong.

Bishawi Amin

Bishawi Amin told Detective Sergeant Clarke "I am here visiting. I do not know him."
His evidence was that he heard a scream, went to the door and saw the offender and a man he did not know and Sonia Hadchiti between them. He said, "I saw two knives and mother in middle". He left and hid outside until police arrived. 77Those accounts were inconsistent with each other and the evidence which the offender and Sonia Hadchiti gave. They were rejected by the jury. 78Sonia Hadchiti's evidence also departed from other accounts she has given of what happened to her that night. She has never given any coherent account of what happened to Billy Mack, even at the trial. Like the offender, she then denied that anyone else other than the offender was present or involved. Sonia Hadchiti insisted that Billy Mack had injured her and that she saw the offender and Billy Mack fight, but she could give no clear account of how Billy Mack came to be killed, notwithstanding that she was in very close proximity. 79In her evidence Sonia Hadchiti claimed not to have a good recollection of these events, but she said that Billy Mack had come into the yard aggressively after dangerously braking the car, swearing and asking "Where are they you fuckin' grunts". After she asked him "What's going on, what's wrong with you, where's my daughter?", he grabbed her, as she was turning away, ripping her t-shirt and pushing her to the ground. He then began kicking her hard to the side and lower back, while she faced the ground and continued asking him, "What's wrong with you? Where's my daughter, where's my daughter?" She said that she did not scream initially, but could not get up and kept talking to him asking, "Why you doing this, what is going on, where's my daughter?" She began screaming when the offender tackled Billy Mack, after saying, "what's going on". As soon as they clashed she saw that Billy Mack had a blade in his hand. 80This evidence was inconsistent with that given by both TM and Marian Roumanos. It was also inconsistent with Billy Mack's injuries. 81As I have explained, Billy Mack received a number of injuries from the chair frame. The blow which at least stunned him must have been inflicted after he cried out repeatedly "let me go you scumbags." It is likely that that blow silenced him. Sonia Hadchiti, however, denied seeing anyone smash Billy Mack in the head with the chair frame, claiming that she saw him fall on the chair frame and crash into it, while he and the offender were tackling together, but she did not know if Billy Mack had hit his head on the chair frame. She said that he was aggressive and described him "falling to the ground and getting up and struggling with my son". The offender's uninjured state was entirely inconsistent with the struggle which Sonia Hadchiti described. 82Sonia Hadchiti also explained that she was in a bad state and did not know if she had passed out or not during this struggle. Nothing which either she or the offender described as having happened to her, or what later examination in hospital revealed, suggested any reason for Sonia Hadchiti to have been in such a state, other than the horror of what she was witnessing. 83Sonia Hadchiti denied seeing Billy Mack's throat being slit. She did see blood, but described that it was Billy Mack who was being very aggressive, going up and down with her son, while she was screaming "help help". She said that her husband had come outside and also began calling "help help" and "call the ambulance", but that he did not get involved in the fight, nor did any of her other sons. At one point she said that she had told her husband to get her phone and one of her boys brought it and she called 000. At another point she said that they only came out of the house when the police arrived. Later, that they had come out when she started screaming. 84Sonia Hadchiti also said that she did not want anyone to touch her, even when the ambulance arrived, because she was scared and in shock and very sore. She said she had no cuts, but described being in agony, lying on the ground vomiting and shivering, scared as to what was going to happen to her son, who had come to her defence. 85Sonia Hadchiti denied that her account was untrue, or that Billy Mack had been attacked by a number of people, that he had been smashed over the head when he entered the yard, or that he had called out "take your hands off me you scumbags". She agreed that both Billy Mack and her son had knives, but denied that her husband had a knife or that he had intervened in the fight. She also denied that her sons said anything when they came out at one stage, other than asking her if she was OK. She also denied that "shamouta's slut" was said. 86Sonia Hadchiti also denied Billy Mack punching her, despite an account she had earlier given police. She also denied saying that Billy Mack had stabbed her, despite what she told the 000 operator. Contrary to her evidence, she did not tell the 000 operator that her son had been stabbed. Sonia Hadchiti also denied lying and putting on an hysterical act in order to explain why she told police when they arrived, that she was still afraid of Billy Mack. Sonia Hadchiti claimed to have seen Billy Mack crawl away after her son got off on top of him. Given his injuries, that evidence was entirely implausible. She also denied later pressuring her daughter to give evidence to assist her brother, during their many telephone conversations. Given the alteration in Marian Roumanos' evidence, this too was difficult to credit. 87Sonia Hadchiti's evidence also departed from earlier accounts which she had given. 88Her first account was in the 000 calls which were played at the trial. She was then agitated and at times hysterical. She told the operator that she had been stabbed. The explanation as to why it was she, rather than the others present with her and the offender who made those calls, which she and members of her family gave in their evidence, was implausible and inconsistent with her claimed state and theirs and what they each claimed to have observed that night. The Crown's case was that both these calls and what police found at the scene that night had been staged. 89The police arrived at about 9:19pm. Sonia Hadchiti was found lying on the ground, screaming, crying, moaning and clutching at her chest. Her t-shirt had been torn at the front, but no blood or other visible injuries were observed on her, inconsistent with the account that she had earlier given the 000 operator. When asked where she was hurt, she did not answer. She was yelling and heard to say things like, "help me, he is trying to attack me", "he's got a knife, he's going to kill me" and "please, please Michael, help me", even though on her own account and that of others present, she had not moved from the ground since she had been pushed there by Billy Mack. He was lying dead, face down on the ground in a pool of blood nearby. The offender was sitting nearby and her husband, sons and family friend were nearby. By that time, Billy Mack had been dead for some time, consistent with the account Sonia Hadchiti had earlier given the 000 operator as to his unmoving condition. 90The offender was sitting holding his wrist which had been wrapped up. Two knives were lying on the ground nearby. The others present were inside the house. The offender told police that Billy Mack had attacked his mum and stabbed him. When asked what happened to Billy Mack, he repeated, "He attacked my fucken mum". He began vomiting. 91Sonia Hadchiti was moaning and retching. She was assisted to her feet and sat on a chair. She was found not to have any visible injuries. When examined by attending ambulance officers, they found that her t-shirt was ripped and the centre clip of her bra had been cut almost all the way through, but she had no wounds, cuts or bruises. She was still crying and pointing at Billy Mack saying things like, "Is he going to get up and attack me again?". The notes made by ambulance officers recorded that she stated continuously that she was bleeding, but no injuries were found. She complained of pain in her hips and across her back. She continued retching in the ambulance, saying that she was scared, and asked whether "that man was coming to hospital". It was finally established at the hospital, that she was menstruating. 92The Crown's case was that not only was Sonia Hadchiti not telling the truth, her behaviour was not genuine. It certainly could not establish that Billy Mack had assaulted her as she claimed. Even if her behaviour was genuine, it was consistent with Sonia Hadchiti having observed the offender and others present severely assaulting and killing Billy Mack, in a most brutal fashion, consistent with TM and Marian Roumanos hearing her screaming while Billy Mack cried out repeatedly, "let me go you scumbags". 93While the objective evidence did not establish that Sonia Hadchiti had not been assaulted, it must be considered that her physical condition on later examination in hospital did not accord with several of her accounts. 94Dr Aljumha's notes recorded that she was examined for "alleged assault", having reported being pushed to the ground, trodden on, kicked with feet on her back and hips and suffering pain in the central back regions and to her left and right flank, as well as hip pain, light headedness and nausea. On examination, she was found to be clinically stable, with no apparent wounds, lacerations or bruises, but with tenderness in her thoracic spine, left shoulder and left and right hip and flank tenderness. The diagnosis after X-ray was musculoskeletal pain, which was treated with analgesics. Dr Aljumha's evidence was that on the history Sonia Hadchiti had provided her, she had expected to find some bruise or laceration. The expert evidence was that a bruise could take time to appear, but that does not explain why the serious assault she claimed to have suffered left her with no visible injury at all. 95Sonia Hadchiti had earlier given a different account to police. Then she said that when Billy Mack arrived he told her that her daughter was home sick and that he had shouted at her, "Why can't you give me the kids, what's the problem''. When she asked him, "Why you shouting" he launched at her and pushed her. She pushed him back and then he grabbed her and punched her and she fell to the ground and he began kicking her. She said to him, "What's wrong with you, have you had something to drink or something" and then the offender came to her assistance. 96The account which the offender gave police immediately on their arrival at the scene and later was that Billy Mack had attacked his mother. The offender heard his mother give evidence. He gave a different account to those which she gave the 000 operator and police, but it corroborated the account which she had given in her evidence. 97The offender described Billy Mack walking in towards his mother; being aggressive and yelling "where are the kids"; his mother looking puzzled and asking, "why are you going on about the kids"; and Billy Mack swearing and yelling, "where the fuck are the kids". He said his mother could not get a word in and Billy Mack then grabbed her from in front and pushed her to the ground, where he kicked her. He could not describe where the kicks landed. He then got up and said, "What are you doing?". 98Billy Mack said nothing but turned around and swung at the offender with a knife. Initially, he thought he'd been punched, but then realised he'd been stabbed in the left wrist, which he'd raised to block the blow. He then swung back and he tried to grab Billy Mack's arm. He also had a knife in his hand and he tackled Billy Mack to the floor. He said that it was possible that Billy Mack had hit his head on the chair frame as he fell. The offender said "he pushed back" and the offender pushed him down and a struggle ensued. The offender said that he was in fear of his life. Billy Mack was going out of control and he was trying to do anything he could to keep him down and away. He could not remember touching the chair frame, but said that it was possible that Billy Mack hit the chair frame again later, when he retackled him. Billy Mack got up at least twice during the struggle and the offender tackled him back down. He described swinging the knife in his hand at Billy Mack and said that "it is quite obvious that my knife got in contact with his chest". He said that knife was still in his hand until the end of the fight, when they fought for control of the knife in Billy Mack's hand. 99The offender said that Billy Mack was still going crazy. He dropped his knife and got hold of Billy Mack's hand, while right on top of him. They were both on the ground. Billy Mack was on his back, pushing his arms up and the offender was pushing the knife down towards him, struggling for control of the knife. The offender did not get control of the knife. He had his hand on the knife, pushing it down until it went into Billy Mack's neck and then slid down and landed near his neck. The offender did not touch that knife again, but jumped off Billy Mack, who went forward, crawled onto his knees and his hands and collapsed in front of him face down. The offender then got up and walked around to see if anyone else was with Billy Mack, picked up his knife and sat down where he remained until police arrived. 100Despite this violent struggle during which he was fighting for his life and Billy Mack was left with significant injuries, lying dead in a pool of blood and despite his father's description of seeing him fighting covered in blood, when police arrived the offender had almost no blood on him or his clothing. 101Despite this, the offender denied anyone else being involved in this struggle or hitting Billy Mack with the chair frame; he denied that his account was a fabrication; he denied that Billy Mack said, "let me go you scumbags", and he denied killing Billy Mack by slitting his throat from behind, while he was unconscious, or doing so in a sawing motion, or that this explained why he had so little blood on him. When the police arrived, contrary to his father's account, he had some blood on his shoes and the bottom of his track pants and little on the front of his top. 102The offender's account of how he killed Billy Mack was rejected by the jury. It and the evidence given by Sonia Hadchiti were implausible. Their accounts were inconsistent with the objective evidence and the evidence given by Marian Roumanos and TM. Their evidence provides no credible basis for the findings which the offender seeks on sentencing, either as to the circumstances in which his fight with Billy Mack began or what motivated him to kill Billy Mack. In the result it cannot be found that such a fight as the offender described occurred, or that it was the result of any attack on Sonia Hadchiti, or that the offender went to her defence. 103The seriousness of this offence is established by the evidence which the jury accepted, which established beyond reasonable doubt that Billy Mack was set upon by a number of people, almost immediately upon entering the yard where he was seriously injured and killed. The evidence did not establish that Billy Mack's murder had not been planned, or that the incident began in the way the offender described, or that his motive was revenge for Billy Mack's attack on his mother 104A note written by Sonia Hadchiti was tendered on sentence. It said: "As a mother of seven children i am fully aware of the terrible price we have all paid for, what i believe was a "spare of the moment incident" At this time my thoughts are also for the future of my youngest child Michael who will pay the price for the tragedy i too am paying the emotional price for i accept the courts verdict as i must, my concern now is for the future of my son Michael and so i now look forward to his continued rehabilitation and sincerely believe that he will not reoffend and our family will continue to support him during his incarceration" 105That note is of no assistance to the offender. 106He admitted killing Billy Mack by inflicting a serious, fatal wound to his neck. He was convicted on evidence which established that this wound was inflicted from behind, during a vicious attack on Billy Mack carried out by a number of persons present when he entered the yard, some of whom restrained him. The result was that the only person seriously injured that night was Billy Mack. His repeated screams, demanding that he be let go before he fell silent and the extensive injuries which he suffered, show that he had been rendered incapable of defending himself against those who attacked him and inflicted the serious, painful knife wounds and other serious injuries which he suffered. 107For his part, the offender must now be sentenced on the basis that he did not act alone in this vicious, fatal attack and that it was he who inflicted the fatal knife wound, as was his evidence. Objectively, this was a most serious offence. In sentencing the offender it cannot be overlooked that he still actively persists in sheltering those involved with him from the consequences of their part in this terrible crime. It follows that his moral culpability for his awful offence is also high.

Aggravating factors 108The various aggravating factors specified in s 21A(2) of the Crimes (Sentencing Procedure) Act relevant to this sentencing exercise are: (c) the offence involved the use of a weapon, (e) the offence was committed in company. 109I have already discussed these seriously aggravating factors and need say no more about their impact on this sentence.

Mitigating matters 110The mitigating factor specified in s 21A(3)(e) of the Crimes (Sentencing Procedure) Act which it was agreed by the parties was relevant to this sentencing exercise and which I have taken into account is that the offender does not have any record of previous convictions. 111The offender also submitted that the following factors would be taken into account in his favour, namely that: "(b) the offence was not part of a planned or organised criminal activity, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,"

Planning 112As I have already explained, the evidence did not establish that there was no planning involved in this offence. This factor cannot be taken into account by way of mitigation.

Good character and youth 113The offender was 20 years old at the time of his offence and 22 on sentencing. The evidence established that up until the time of this offence, he was a person of good character. Various character references in evidence attested to his character. He had no prior criminal record. 114There was also evidence that when released on bail, the offender worked to complete his trade qualifications and to advance himself in his trade. He has pursued a similar approach, with success, while in custody. 115I have taken these matters into account by way of mitigation.

Re-offending and rehabilitation 116It is more difficult to come to a positive conclusion as to the likelihood of the offender re-offending, notwithstanding his youth, his prior good record, his pursuit of his education and a trade, and what he told the psychologist, Mr Borenstein, about his regret at having caused Billy Mack's death. 117That is because the offender has never admitted the serious offence which the evidence established he committed in company and not in self defence. It also reveals his ongoing participation in steps pursued since Billy Mack's death to shield him from conviction and to conceal the others who were involved. 118 After conviction, the offender gave an account to Mr Borenstein, consistent with the evidence which he gave at trial. He also told Mr Borenstein of his ongoing struggle with the consequences of his self defence. He had been treated for anxiety and depression prior to going into custody at a time when he found his circumstances difficult to handle. He had no prior history of psychiatric disorder or substance or alcohol abuse, although there was some family history, his sister having been treated for pre and post natal depression. After Billy Mack died, the offender suffered sleep disturbance, weight loss and panic attacks, and became socially withdrawn. His symptoms continued in custody where he received further treatment. 119While not accepting responsibility for Billy Mack's murder, the offender told Mr Borenstein of his struggle with being responsible for Billy Mack's death "day by day knowing a life was taken". He also told Mr Borenstein "I was acting in self defence, but I still struggle ... it's hard to live with. I was only trying to defend myself and my mum, I was really scared for my life". By that account the offender maintained what he accepted on sentencing the jury had rejected, including that he did not act alone in the events which led to Billy Mack's death. 120Mr Borenstein found that the offender prided himself on his strong family values and ideals and considered that he was genuinely remorseful, notwithstanding that he continued to claim that he acted in self defence and that he did not mean to cause Billy Mack any harm. 121While there is a foundation for other opinions which Mr Borenstein expressed, I can find no basis in the evidence upon which this impression can properly be accepted. 122The evidence established that not only was Billy Mack's death the result of a terrible, fatal wound inflicted by the offender with a knife from behind, it was inflicted during an attack by a number of people, some of whom were restraining him. His attackers inflicted other serious knife wounds. Other terrible injuries were inflicted when he was hit repeatedly with a metal chair frame. The offender's persisting claim, in the face of the evidence, that he acted alone and in self defence, not intending to inflict any harm, is entirely inconsistent with him being genuinely remorseful for either the fatal wound which he admits inflicting, or the other serious injuries which Billy Mack suffered during the attack in which he participated. 123That the offender is sorry that Billy Mack is dead may well be accepted, given the consequences which he now faces from the death which he caused. That he is remorseful for his offence is a different matter. That has not been established. 124The evidence established that the circumstances of Billy Mack's death were truly awful. His final moments of life, when he was screaming to be released, were filled with pain and terror. The offender has shown no true remorse for his offence and must be sentenced accordingly. 125It is settled that in order for it to be established that an offender has good prospects of rehabilitation, it is not necessary that the offender acknowledge his guilt and that offenders found guilty after a trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt (see Alseedi v R [2009] NSWCCA 185 at [65]). The difficulty in this case is the evidence of the steps pursued by the offender and other members of his family, not only to shield the others involved with him from detection, but also to protect him from conviction and punishment. While the latter failed, the former is still pursued. In those circumstances, I am not satisfied that the offender has established that he does have good prospects of rehabilitation and that he will not offend again. 126His conduct involves more than failing to accept his guilt for his offence, or to feel remorse for what he has done. He continues an active pursuit of steps taken to protect others responsible for Billy Mack's death from detection and punishment for their crime. 127In these circumstances, it must be concluded that these mitigating matters have not been established.

Deterrence 128It is unquestionable in the circumstances which I have discussed that both general and specific deterrence have a significant role to play in the sentence imposed on this offender.

The offender's personal circumstances 129Consideration must also be given to the evidence of the offender's personal circumstances, disclosed by Mr Borenstein's report and by a number of references which attested to his past, his prior good character and his remorse. 130The offender is experiencing the psychological consequences of what he did to Billy Mack. After he was released on bail he was diagnosed to be suffering from depression and anxiety. He regularly consulted his family doctor, but not a psychologist. He described the symptoms which he suffered, to include pain and heaviness in his chest, heart palpitations, low mood and depressed appetite. 131He reported working hard while on bail and finishing his apprenticeship. He socialised only with relatives and attended church and became socially withdrawn. He is now a regular church goer. In custody he has been performing work which he wishes to pursue. 132He continues to suffer sleep disturbance, worsening depression and anxiety, and suffers panic attacks, for which he is receiving treatment. He is scheduled to see a psychiatrist. 133The offender is unmarried and has no partner. He lived at home prior to this offence and had no history of violence or aggression or psychiatric or psychological disturbance. He consumed alcohol socially, did not take illicit drugs and did not smoke. He was in excellent health prior to the offence. There was little family history of psychiatric disorder. 134The offender has five brothers and a sister. His parents, who were born in Lebanon, had their children in Australia, where they were raised. He described a close knit family and good childhood, not marred by any violence. He completed his Higher School Certificate but was not academically ambitious. He had no behavioural problems but was bullied in primary school, where he was the victim of racial taunting, to which he never fought back. 135He reported having the ability to make friends, participating in sport and having casual work while at high school. He had never been involved in fighting and only got aggressive on the football field, on which he had suffered a number of injuries, from which he had completely recovered. 136Mr Borenstein found no evidence of any serious psychiatric disorder and found the offender cognitively intact. There was nothing to predict his violence and aggression, which the offender still claims to be the result of self defence. There was nothing in his history which indicated him to be overly reactive or to experience problems with anger management. He was diagnosed to be suffering an adjustment disorder with mixed anxiety and depressed mood consistent with the events which led him to be charged and convicted of murder.

Special circumstances 137The offender sought a finding of special circumstances warranting a departure from the ordinary statutory ratio established by s 44 of the Crimes (Sentencing Procedure) Act. 138I am satisfied that in this case, the statutory ratio provides an appropriate period of supervision for this offender prior to the expiration of his sentence, given the non-parole period to be imposed upon him and that his circumstances do not warrant any departure from that ratio.

Victim Impact Statement 139A victim impact statement by Billy Mack's father was tendered without objection at the sentencing hearing. Mr Mack there described Billy Mack's troubled life and the ongoing, painful impact of his death upon him, Billy Mack's siblings and his nieces and nephews. 140From what I have said about the awful circumstances of Billy Mack's death, it is obvious that what is said by the Court in these remarks can give little comfort to his family and friends. 141I do hope, however, that these remarks will help them all gain some peace of mind and an understanding of what the evidence has revealed about how Billy Mack came to be murdered and how our society and its criminal justice system has to this point dealt with this awful crime. 142For my own part, I extend to all of his family and friends, my very deepest sympathy for his death, the loss which they have suffered and the difficult, ongoing impact which that has upon them.

The sentence 143The parties agreed that the sentence imposed must commence 30 days before his conviction on 13 November 2013, to reflect the time the offender has already spent in custody. The sentence will thus commence on 14 October 2013. 144I have considered all of the matters I have mentioned and have concluded that the offender must be sentenced to a term of 29 years imprisonment for this offence. The application of the statutory ratio results in a non-parole period of 21 years, 9 months and a balance of term of 7 years, 3 months. This means that the earliest date that the offender will be eligible for release is 14 July 2035. That will depend on him convincing the Parole Authority that he should be then released on parole. The sentence will expire on 13 October 2042. 145It is finally also necessary to mention the effect of the Crimes (High Risk Offenders) Act 2006, which applies to "serious violence offences", which include the offence of murder (see s 5A). The effect of this Act is that the State can apply to the Supreme Court for an order that the offender continue to receive supervision or remain in detention (see s 5E). If the Court is then satisfied, to a high degree of probability, that the offender would be a "high risk offender", that is an offender who poses an unacceptable risk of committing a serious violence offence if not kept under supervision, it may make an order for extended supervision (see s 5F). An order for continuing detention may be made if the Court is then satisfied that adequate supervision will not be provided by an extended supervision order (see s 5G).

Orders 146Michael Hadchiti you are convicted of the murder of Billy Mack. 147You are sentenced to a term of imprisonment with a non-parole period of 21 years, 9 months commencing on 14 October 2013 and expiring on 13 July 2035. I set a balance of term of 7 years, 3 months, which is to commence on 14 July 2035 and to expire on 13 October 2042. The earliest date that you will be eligible for release on parole is 13 July 2035. Your sentence will expire on 13 October 2042.

Amendments 28 August 2017 - Publication restriction lifted 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: 28 August 2017

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