R v Hamdach

Statement of issues

1. The primary facts have largely been agreed and recorded in the Agreed Statement of Facts tendered as part of Exhibit A. Not all relevant facts were agreed and a CCTV compilation depicting the relevant events leading to Mr Houllis's death and an audio recording of the initial assault on him also formed part of Exhibit A.
2. Additionally and related more to the offender's subjective circumstances, at the sentencing hearing, I heard expert evidence from a neuropsychologist and two forensic consultant psychiatrists concerning the state of the offender's mental health. There were differences of opinion between them, which I will need to resolve. The offender, himself, chose to give oral evidence and subject himself to cross-examination. Much of his account was challenged. It should also be said that not all of his evidence was consistent with the agreed facts. No objection was taken on this basis, but it will be necessary for me to make findings where there are differences in the evidence and in the inferences for which the parties respectively contend.
3. When approaching these differences, I will bear in mind that it is for the Crown to prove the objective facts of the offending and any adverse or aggravating factors against the offender beyond reasonable doubt. Mitigating factors or other matters reducing moral culpability for the offending must be proved by the offender on the balance of probabilities. [1]
4. There was also a dispute between the prosecution and defence as to the applicable category of murder into which Mr Hamdach's offending falls. As will soon be apparent, Mr Houllis was killed in the course of a joint criminal enterprise carried out by the offender and another person whom the offender declined to identify, but who now has been identified by the verdict of a jury convicting him as Abdul Karaali. I interpolate that the offender's failure to disclose Mr Karaali's identity is irrelevant to the sentence to be passed upon him and I will not draw any adverse inference against him whatsoever on that score.
5. Mr I McLachlan of counsel, who appeared for the offender, principally contended that the basis of his criminal responsibility was constructive murder in accordance with the statutory equivalent of the felony murder rule. Perhaps somewhat controversially in the light of recent developments in Australian common law, [2] in Exhibit A, prepared in November 2022, at least for part of the assault on Mr Houllis, Mr McLachlan, and through him the offender, acknowledged legal responsibility on the basis of the doctrine of extended joint criminal enterprise. It will be necessary to explain these different concepts albeit briefly later in these reasons.
6. While not entirely eschewing the applicability of constructive murder, Mr P Hogan, Crown Prosecutor, contended that the whole episode was covered by the doctrine of extended joint criminal enterprise and from that later point in time, which I will clarify, the nature of the offender's responsibility was as a participant in a joint criminal enterprise to inflict grievous bodily harm upon Mr Houllis, causing his death. I should say that part of the reason for this apparent complexity is the common ground between counsel, reflected in the Agreed Statement of Facts, that the actions of Mr Karaali, not the offender, caused Mr Houllis's death.
7. Bearing in mind what I have said about the different onus of proof resting on each party for separate purposes, I remind myself that it is for the Crown to prove the facts of the offending beyond reasonable doubt. From the established facts the category of murder with which I am concerned will appear. Having said that, for sentencing purposes there is no hierarchy of objective seriousness constituted by considerations of legal categorisation. Each case depends upon its own circumstances and the objective seriousness of a given case of murder will depend upon what the Crown prove the offender actually did with what degree of intent. [3] I record that there is no principle that the offender is entitled to be sentenced on the available view of the facts most favourable to him. It all depends upon what is proved beyond reasonable doubt. To the extent to which there may be reasonable possibilities left open favourable to the offender, the strict application of the criminal standard of proof requires those matters to be counted in his favour.
8. With that introduction I will now turn to the resolution of the matters in dispute.

Background facts

1. I do not propose to simply recite the agreed of Statement of Facts. As I have said, this is not the only evidence before me about what happened to Mr Houllis and why. What follows are my findings based upon the whole of the evidence including the evidence of the offender where I have accepted it. I am not bound to accept the offender's evidence, but as he has given evidence, I am bound to consider and evaluate it like the evidence of any other witness. That he has given evidence does not alter in any way the onus or standard of proof imposed on the prosecution. However, conventionally, given the standard of proof, where the offender's evidence seems even a reasonably possible version of events, I should take it into account in my findings. But as with any other witness and any other court case, it is not necessary that I should either accept or reject the whole of his evidence. I am entitled to be selective according to the degree of reliability which I adjudge its different parts deserve having regard to the view I have formed with regard to the whole of the evidence.
2. To clarify a detail, while the indictment charged the offender with murder on 17 February 2020 when Mr Houllis died, the injuries from which he died were inflicted on 14 February 2020.
3. Tragic as it is, the senseless circumstances that led to Mr Houllis's death commenced with the sale by him to the offender of a non-genuine pair of what were purportedly Apple Air Pods on 13 February 2020. The offender initially contacted Mr Houllis inquiring about the proposed purchase on Facebook Marketplace. They later communicated by text message which exchange equipped each of them with the other's mobile phone number. I accept the offender's evidence that he was buying the Air Pods as a Valentine's Day gift for his partner, him having his own.
4. Mr Houllis was 28 years of age and the offender 27, both young men in the prime of their lives. They agreed upon a price of $150 and met on the evening of 13 February 2020 at Canley Vale Railway Station to complete the transaction. It is agreed that they were in each other's company for a few minutes, and I would infer during this time, the offender had the opportunity to inspect the air pods to satisfy himself of their genuineness.
5. It was not until the offender returned home that he realised that the Air Pods were not a genuine Apple product. I am prepared to accept his evidence that it was his partner who pointed this out to him. I do not accept, however, that it was his partner's goading that pushed him into embarking upon the course of criminal conduct which led to Mr Houllis's death. I reject his evidence in that regard. I am satisfied beyond reasonable doubt that the plan he hatched, and its implementation were solely down to him.
6. Once the offender realised his mistake, he attempted to telephone Mr Houllis, I have no doubt to demand a refund. I infer that when Mr Houllis recognised the number, he declined to take the call. This was at about 8:50 pm on the 13 February 2020. I am satisfied that over the next 40 minutes the offender conceived a plan to have his partner contact Mr Houllis on Facebook Marketplace on the pretext that she wished to purchase a set of air pods for her partner for Valentine's Day. This message was sent at 9:31 pm I am well satisfied beyond reasonable doubt that by that time at the latest, the offender had formed a plan involving the implementation of the following steps: 1. the offender's partner would continue to communicate with Mr Houllis under the offender's direction to lure Mr Houllis to a rendezvous after dark on 14 February 2020; 2. in the meantime, the offender would contact Mr Karaali to enlist his support at the rendezvous. The evidence is that Mr Karaali was the only person he contacted for support. Indeed, I am satisfied that Mr Karaali was enlisted as "muscle" for the meeting; 3. the need for "muscle" arose because it was the offender's intention not only to insist upon a refund, but also to "teach Mr Houllis a lesson" by beating him up. I am not satisfied beyond reasonable doubt that it was the offender's intention at any time, that Mr Karaali should inflict grievous bodily harm on Mr Houllis; 4. to avoid Mr Houllis evading his snare, the offender intended that the rendezvous should occur at a place where he could hide from view very nearby while Mr Karaali approached Mr Houllis. When Mr Houllis was within the snare, Mr Karaali would emerge from his hiding place, restrain Mr Houllis while Mr Karaali delivered the desired lesson with his fists and feet. In the event, each aspect went according to plan.
7. I should say at this juncture that the offender's version was different. In his evidence, it was his partner's idea as I have already said. He had no intention whatsoever of inflicting any personal violence in any degree upon Mr Houllis. All he wanted was a refund which he believed would not be forthcoming because Mr Houllis would refuse to deal with him as evidenced by him declining to accept the offender's call. The only purpose of enlisting Mr Karaali was to present a new face. The offender believed that if Mr Houllis saw him, he would turn on his heels and leave. He had no reason to want to hurt Mr Houllis because soon after the rendezvous, he agreed to provide the refund if the offender accompanied him home. He did not put a stop to Mr Karaali's unexpected and ongoing violent assault on Mr Houllis because he was afraid that Mr Karaali would turn on him.
8. The offender was a somewhat difficult witness. On the one hand, he was discursive to the point of garrulousness, and on the other, there were pronounced pauses in his evidence as though he was trying to think of the best thing to say rather than simply answering the question honestly and directly. I observe that he seemed to present in a similar fashion to Dr Stephen Allnutt on the occasion of his first consultation with that expert. So much so, that Dr Allnutt was concerned about his cognitive function. I accept that those concerns were assuaged by the neuro-psychometric tests carried out by Ms Lucienne Barhon at Dr Allnutt's suggestion. To be clear, I am not satisfied that there is any evidence of any cognitive impairment that would explain the manner of the offender's presentation in evidence as I have described it.
9. I have borne in mind that Mr Hamdach was standing for sentence on his plea of guilty to murdering Mr Houllis. It is well understandable that a person may seek to put his best foot forward even if his situation calls more for candour than caution. However, my view of the agreed facts, the CCTV compilation and the audio recording so far as it was decipherable are inconsistent with the offender's protestations of benign subterfuge for the sole purpose of facilitating a refund. Were his version true, it would hardly have been necessary to enlist Mr Karaali. After all his partner was the person who had been his agent in setting up the rendezvous. She presented as the female she was. Had the offender been proceeding as he claimed, she would have been the perfect foil for drawing Mr Houllis into the snare. Afterall, he was expecting to meet a female. I am affirmatively satisfied beyond reasonable doubt that the offender's version is not one that could reasonably be true. In making my findings of fact for the purpose of sentencing, I have put it entirely to one side. This does not mean that I have rejected everything he has said in mitigation, as I will come to. But I have rejected his explanation of his actions and some of what he said about his intentions in relation to the rendezvous with Mr Houllis.

Events leading up to Mr Houllis's death

1. There was no response to the approach of the offender's partner until 3:55 pm on 14 February 2020 when Mr Houllis's brother, Matthew, replied providing Mr Houllis's mobile number as the contact. Apparently, the brothers were in this business together. After a series of text messages, the offender's partner arranged to meet Mr Houllis at around 9:30 pm at the carpark at the Wakeley shopping centre that night. While he was orchestrating these exchanges, the offender picked up Mr Karaali, who had been previously enlisted, from the latter's home in the Bankstown area and drove him to the corner of Goulburn Place and Bulls Road, Wakeley, a short distance from the carpark. Having parked the car they arrived at the carpark at 9:21 pm Mr Houllis was seen to enter the carpark at about 9:31. I interpolate he may have had some premonition about the arrangements because he had asked his brother to accompany him to this particular meeting, but he was unavailable.
2. As Mr Houllis approached, the offender hid himself behind a small truck and Mr Karaali approached Mr Houllis. While Mr Houllis's attention was focused on Mr Karaali, the offender emerged from his hiding place, grabbing Mr Houllis's arms and pulling them behind his back while Mr Karaali commenced to assault Mr Houllis by punching him about the head and body. During the assault the offender was yelling for his money in a loud aggressive and profane manner. The assault continued notwithstanding Mr Houllis's protestations.
3. During the fracas Mr Houllis dropped his phone before he was forced to the ground by the violence of Mr Karaali's assault. While he was on the ground the offender picked up Mr Houllis's mobile phone. As this was occurring, the CCTV footage shows that Mr Karaali was violently kicking Mr Houllis. It is difficult to see what contact was made with which part of Mr Houllis's body, but when he was dragged to his feet by the offender and Mr Karaali he definitely appeared "groggy" or unsteady on his feet. This is strongly suggestive of concussive blows to his head.
4. In his evidence, the offender stated that during this initial confrontation, Mr Houllis promised to give the offender a refund if he accompanied him to his nearby home where he kept his cash. From this point on, the original agreement between the offender and Mr Karaali appears to have expanded into one where they would forcibly take Mr Houllis to his home to collect the refund. I am satisfied that this is the case beyond reasonable doubt by what is then depicted on the CCTV compilation and also recounted in the agreed facts.
5. As I have said, when he regained his feet, Mr Houllis appeared "groggy" and unsteady. Each of the offender and Mr Karaali grabbed hold of one of his arms and more or less frogmarched him out of the carpark into Bulls Road and down Bulls Road in the general direction of Mr Houllis's home. On my assessment of the CCTV footage, Mr Houllis remained unsteady on his feet throughout. While the quality is not pristine, I formed a firm impression that he remained in a groggy or confused state from his appearance and the manner of his ambulation.
6. When the three men reached the corner of Goulburn Place and Bulls Road they paused, and a further conversation appeared to take place. It will be recalled that the offender's ute was parked there. The evidence does not make clear whether there was discussion about continuing the journey to Mr Houllis's home which was very nearby to the ute, as the offender contends, or some other issue arose. However, Mr Karaali recommenced his violence. In the presence of the offender, he ripped Mr Houllis's tee shirt from his back and with some athleticism kicked the standing Mr Houllis with what appeared to be significant violence to his head causing him to stumble and commencing to fall. Mr Houllis was able to regain his footing and attempted to flee, but Mr Karaali gave chase and caught him a short distance away, more or less tackling him to the ground. It is difficult to see what then happened because of an obstruction of the view provided by the CCTV footage. I would infer from the short delay evident from the footage that further violence was inflicted on Mr Houllis at that point. Mr Karaali again dragged Mr Houllis to his feet and frogmarched him back to the vicinity of the offender's ute. Mr Houllis was obviously by now in a very bad way. To my observation he seemed to have great difficulty with his balance from this point on.
7. When they returned to the corner, Mr Houllis was either thrown or fell onto the roadway where he lay for a period of time which may have been as long as one minute. He was unable to regain his feet. His attempt was unsuccessful, causing him to fall back down.
8. As the offender and Mr Karaali stood over Mr Houllis, a passing motorist with his family in the vehicle stopped to inquire after Mr Houllis's welfare. It is a matter of some significance that at that point when the violence could have been brought to an end, Mr Karaali lied saying Mr Houllis had had a drug overdose and that he and the offender were "looking after him". Apparently reassured, the motorist drove off.
9. It is obvious that then Mr Houllis was unconscious. The offender and the co-offender dragged him from the middle of the road to the southern edge of the carriageway where they again stood over Mr Houllis looking at him with some kind of contemplation. Suddenly, Mr Karaali violently stomped on Mr Houllis's chest, and it is notable that when eventually taken to hospital a CT Scan revealed left sided fourth and fifth rib fractures, a lung contusion and a pneumothorax on the intake of breath.
10. As it happened, another motorist drove by and stopped to inquire after Mr Houllis's welfare. He was highly suspicious of what he saw. Again, Mr Karaali made an excuse that Mr Houllis was intoxicated and encouraged the motorist to drive on. Mr Karaali then dragged Mr Houllis onto the nature strip at the corner of Goulburn Place and Bulls Road. As he lay there motionless, Karaali twice stomped on his head in quick succession in an obviously gratuitous, senseless and cruel manner. From the CCTV footage, I have drawn the inference that Mr Karaali was moving in for a third stomp when the offender came between him and Mr Houllis preventing Mr Karaali from inflicting further injury on Mr Hollis.
11. At this point, the offender and Mr Karaali quit the scene in the offender's ute. Two witnesses who had followed them from the carpark in their car called emergency services who attended the scene promptly.
12. Mr Houllis was conveyed by ambulance to Liverpool Hospital where investigations revealed a catastrophic brain injury with evidence of multiple intracranial haemorrhages, significant swelling and a consequent degree of brain herniation into the spinal canal. He died as a result of that catastrophic injury on 17 February 2020 when, with the consent of his family, life support was withdrawn.
13. The offender was arrested on 15 February 2020 and has remained in custody since. He had been identified by his work ute from CCTV footage collected by investigating police. Prior to his arrest he had telephoned his supervisor to inform him he would not be at work on Monday because he was "in a bit of trouble". He explained: "I went to buy some Air Pods with a mate. There was a disagreement because they were fake. We got into an argument with the guy and my mate got physical with the guy. Apparently, the guy is not well".

Category of legal responsibility and assessment of objective seriousness

1. I have already expressed the view that determining the category of murder into which an offender's legal responsibility falls is not either essential or necessarily a reliable guide to the assessment of the objective seriousness of the offending at hand. What matters is the nature of the offender's part in the offending by reference to the acts and omissions attributable to him. It should also be borne in mind that by pleading guilty, the offender has admitted all of the essential elements of murder. Objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. [4] In my opinion, matters personal to a particular offender, including his moral culpability for the offending and other aspects of his personal circumstances which may tend to either aggravate or mitigate the appropriate sentence.
2. Assessment of the objective seriousness of the offending is necessary for two reasons. First, as murder is a standard non-parole period offence, there is a statutory requirement that assessment be undertaken as part of taking into account the full range of factors in determining the appropriate sentence for the offence and the offender. [5] Secondly, while not determinative, the assessment of objective seriousness is central to giving effect to the principle of proportionality in sentencing, i.e. that the sentence fit the crime.
3. To the extent to which it may be necessary for me to say so, for reasons I will explain, I am satisfied that the basis of the offender's criminal responsibility for murder is constructive murder. The elements of constructive murder are prescribed by s 18 Crimes Act 1900 (NSW) in the following way: "Murder shall be taken to have been committed where the act of the accused… causing the death charged, was done … during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years."
4. If I have not already made it clear, I am satisfied beyond reasonable doubt that the acts which caused the death of Mr Houllis were the acts of physical violence committed on him by Mr Karaali. The evidence does not enable me to pinpoint precisely which of the various acts of violence perpetrated on Mr Houllis by Mr Karaali caused the massive brain injury from which Mr Houllis died. It is an agreed fact that the chest injury was "survivable". As the evidence stands, the only finding I can make beyond reasonable doubt is that Mr Houllis's death was caused by the cumulative effect of all of the trauma inflicted to his head from the initial assault in the carpark to the final stomping at the corner of Goulburn Place and Bulls Road, Wakeley. Were it necessary to say so separately, I am satisfied beyond reasonable doubt that the high kick to the head and the stomping to the head which occurred at the corner of Goulburn Place and Bulls Road very substantially contributed to Mr Houllis's death.
5. Not only was the offender not the person whose act caused Mr Houllis's death, but I am not satisfied beyond reasonable doubt that at any time from his conception of his plan on 13 February 2020 to his leaving the corner of Goulburn Place and Bulls Road on 14 February had the offender formed any actual specific intention that either he or Mr Karaali should assault Mr Houllis with the intention of killing him or inflicting grievous bodily harm upon him. But his liability does not depend upon him having formed the requisite intention for murder or having himself performed the murderous act. Neither of these things are necessary for constructive murder. It is sufficient that his agreement with Mr Karaali extended to the deliberate infliction of violence upon Mr Houllis's person.
6. The law of criminal complicity applies to the planned offending and persons who have entered into a joint criminal enterprise are equally guilty of the offence regardless of the part that each has played in the conduct that constitutes the physical component of the offending. [6] The act of one is attributed to the other.
7. In Miller v the Queen the High Court of Australia said: "The law, …. is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime ("the incidental crime") committed by a co-venturer that is within the scope of the agreement ("joint criminal enterprise" liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ("extended joint criminal enterprise" liability). These principles relating to accomplices apply equally to all offending, not only murder. However, I am not persuaded beyond reasonable doubt that the offender is a participant in "a joint criminal enterprise" either to murder Mr Houllis or that Mr Houllis's murder was an incidental crime within the scope of the agreement between the offender and Mr Karaali.
8. To be clear, I am not satisfied that at any time the offender agreed to the infliction of grievous bodily harm upon Mr Houllis. I am not satisfied beyond reasonable doubt that he foresaw that Mr Karaali would intentionally inflict grievous bodily harm upon Mr Houllis until it actually and obviously occurred at the corner of Goulburn Place and Bulls Road. While his evidence was in many respects unsatisfactory, I accept his evidence in this regard (95.40 - 96.28T). I accept his evidence that he did not agree to the infliction of serious bodily harm upon Mr Houllis. I am also of the view that by the time he realised that Mr Karaali had inflicted grievous bodily harm upon Mr Houllis, the latter had already suffered a very serious brain injury of such an extent that he was unable to stand. While the subsequent stomping on Mr Houllis's head no doubt played a part in his demise, I am of the view that from the time of the high kick and whatever additional violence was then inflicted on Mr Houllis by Mr Karaali which was not captured by the CCTV footage, because the camera's line was obstructed, his injuries were life-threatening. Those events were themselves a significant cause of his death.
9. I appreciate that these findings are somewhat inconsistent with the acknowledgment made on the offender's behalf by his counsel and recorded at paragraphs [66] and [67] of the Agreed Statement of Facts. As I have said, in this case the agreed facts are only one part of the evidence and evidence has been admitted to some extent inconsistent with them. Given that the parties have allowed the evidence to run beyond the facts as agreed, it is my obligation to decide the facts in accordance with so much of the whole of the evidence as I find persuasive.
10. I am satisfied beyond reasonable doubt that the agreement between Mr Karaali and the offender involved luring Mr Houllis to the rendezvous where he would be set upon and detained by the offender restraining him for the purpose of Mr Karaali inflicting violence upon him in reprisal for selling the offender fake Air Pods and for the purpose of extracting a refund from him. It was not part of the agreement that grievous bodily harm would be intentionally inflicted upon him. Nor was it within the contemplation of both the offender and Mr Karaali that the intentional infliction of grievous bodily harm was a possible incident of the performance of their agreement.
11. The scope of the agreement expanded somewhat when it became evident that Mr Houllis did not have the cash on him. While taking and detaining are not necessarily separate concepts in law, by their conduct, Mr Karaali and the offender agreed to take Mr Houllis from the carpark to his home to retrieve the money. That their purpose in that regard was interrupted at the corner of Goulburn Place and Bulls Road, possibly because Mr Karaali lost interest and wished to go home as the offender said in evidence, does not affect the legal analysis of the offending.
12. This agreement and the offender's and Mr Karaali's performance of it, I am satisfied beyond reasonable doubt, constitutes the specially aggravated form of kidnapping proscribed by s 86(3) Crimes Act. The elements of this form of kidnapping are the taking or detaining of a person without the person's consent with the intention of obtaining an advantage, in company and at the time of or immediately before or after the commission of the offence, actual bodily harm is occasioned to the alleged victim. This is the foundational offence for the offender's guilt of constructive murder. It carries a maximum penalty of imprisonment for 25 years. When this form of offending is considered in the light of the elements of constructive murder to which I have already referred, it can be readily appreciated that Mr Karaali's acts which caused Mr Houllis's death were done during the commission of this offence. It does not matter that their agreement to engage in this joint criminal enterprise did not contemplate the infliction of a really serious injury on Mr Houllis as the occasioning of actual bodily harm upon him, a lesser form of harm than grievous bodily harm, need only be a mere incident of the actual offending. It is enough for the purpose of the offender's liability for constructive murder as a secondary participant in a joint criminal enterprise to commit this foundational offence for the agreement between him and Mr Karaali to contemplate the use of some physical force or violence against Mr Houllis in the commission of the foundational offence. [7] As I have made clear, teaching Mr Houllis a lesson by beating him up was expressly part and parcel of the agreement between the offender and Mr Karaali.
13. Moreover, I am also of the view that the recent decision of the High Court of Australia in Mitchell et al v The King [8] clarifies the common law of Australia in a meaningful way relevant to Mr Hamdach's legal responsibility for murder. While the decision was made in the context of the South Australian statutory form of constructive murder, [9] it is apparent to me that it clarifies the common law in relation to extended joint criminal enterprise, which applies in each Australian jurisdiction. The doctrine of extended joint criminal enterprise does not operate in the context of statutory forms of constructive murder where a secondary party, here the offender, has participated in the execution of an agreement to commit the foundational offence with nothing other than foresight of the possibility that the primary party, here Mr Karaali, might intentionally inflict grievous bodily harm as an incident of carrying out the agreement. [10] Given my findings of fact, it is pointless for me to expand further on this question of law.
14. I turn then to the assessment of the objective gravity of the offending. While it is not determinative, it is important to bear firmly in mind that the offender's criminal responsibility is for constructive murder. I emphasise this because on the findings that I have made, the offender did not intend to kill Mr Houllis, nor did he intend to inflict grievous bodily harm upon him or even foresee that Mr Karaali would form and act upon that intention. In accordance with the language of s 18 Crimes Act, the act causing Mr Houllis's death was done by the offender's accomplice, Mr Karaali, during the commission by them of the foundational offence. Murderous intent as to kill or inflict grievous bodily harm is not an element of constructive murder. To the extent that the assessment of objective seriousness for the purpose of ss 54A and 54B of the sentencing legislation involves an appraisal of the offender's offending in comparison with or by reference to the array of possible offending for murder, the absence of murderous intent or even foresight of Mr Karaali's murderous intent as a possibility is a factor which reduces objective seriousness.
15. Even so, the starting point for the assessment is that Mr Houllis's life was unlawfully taken. Moreover, the offender was the instigator of the criminal agreement to commit the foundational offence. He planned it 24 hours in advance, and this equates to a high degree of pre-meditation in relation to the foundational offence. He recruited Mr Karaali to the intent that Mr Karaali should inflict physical violence upon Mr Houllis and actively participated in that aspect of the agreement by physically restraining Mr Houllis from defending himself during the initial confrontation in the Wakeley shopping centre carpark.
16. The objective seriousness of his offending is enlarged by the consideration that the foundational offence was conceived and committed in retaliation for the sale by Mr Houllis of something as trivial as non-genuine electronic earbuds. That is to say, the offending was a flagrant example of the offender taking the law into his own hands, which can never be tolerated, let alone condoned. The violence that was intentionally inflicted upon Mr Houllis was inflicted in public at a time, as the evidence demonstrates, when other members of the community were lawfully going about their business in and around the carpark and the corner of Goulburn Place and Bulls Road.
17. The seriousness of the offending is also increased by the consideration that the offender failed to take the opportunity twice presented to seek assistance for Mr Houllis from well-intentioned passing motorists who had stopped to inquire after his welfare. The seriousness of the offending is also increased by leaving Mr Houllis for dead, effectively, at the intersection of Goulburn Place and Bulls Road when the offender and Mr Karaali left the scene. According to the admissions the offender made in cross-examination, he was by then well-aware that Mr Houllis was in a very bad way indeed.
18. I am of the view that the objective seriousness of this offending falls squarely in the mid-range, although somewhat low in that range.

Victim Impact Statement

1. I have had the benefit of receiving a Victim Impact Statement from Mr Houllis's mother, Janet Houllis, which she had the courage to read aloud in court. May I say with respect, she gave a very detailed and articulate account of her loss and the loss experienced by the immediate members of Mr Houllis's family. I found her account very moving. I acknowledge that a mother's grief over the loss of the life of her child taken in his prime is never likely to entirely subside. I accept that there will be constant reminders reinvigorating that grief in all aspects of Mrs Houllis's daily life. I offer the condolences of the Court to Mrs Houllis and to all members of the Houllis family. I thank her for being prepared to share the family's loss with me on behalf of the wider community.
2. On the application of the prosecutor, I consider it appropriate to take the Victim Impact Statement into account on the basis that the harmful impact of Mr Houllis's death upon his mother and immediate family is an aspect of the harm done by the offender's offending to the broader community.

Subjective circumstances

1. The offender was born in Lebanon in 1992, the eldest of the three children of his parents' union. His early life was difficult because his father was a perpetrator of domestic violence directed at both the offender's mother and the offender. His family life was fractured by this circumstance and his father's violence continued after the family migrated to Australia when the offender was 12 years old. His mother had been born in Australia and lived here until she was aged 13 when she was returned to the family's native Lebanon for an arranged marriage.
2. The offender's father followed the family to Australia and his emotional, verbal and physical abuse continued in this country. The offender again was also a target of his father's violence.
3. After his mother left his father, the family lived in a refuge for a period before finding secure accommodation. His father had served in the military in Lebanon and imposed military style discipline on the offender for even what must be regarded as the most minor misbehaviour, if it was misbehaviour at all. He was forced to do push ups and other military style fatigue punishments. At times he was tied up and locked in the bathroom and on one occasion he was forced into the boot of his father's car for a journey home for accidentally dropping chocolate on his clothing. The father blamed the offender for the trouble in his marriage.
4. As a result of the father's treatment of him, he developed aggression and anger that he had difficulty controlling. He also developed anxiety over the safety of his mother, his siblings and himself because of his father's violence. As a result of this, the offender was diagnosed as suffering from Post-Traumatic Stress Disorder and Dysthymic Disorder at the age of about 15. The symptoms of PTSD persist, according to the opinion of Dr Allnutt.
5. The offender also experienced learning difficulties in the form of dyslexia, but it is to his credit that he completed his Higher School Certificate, qualified as a tradesman carpenter and reliably worked in his trade up until his arrest on 15 February 2020. From the evidence before me, he was well regarded by his supervisors. He formed a long term and stable personal relationship with his partner with whom he has 3 children, the youngest of whom was born two months after his arrest. Each of the children has been diagnosed with autism and ADD. They exhibit extremely challenging behaviour and disrupted sleep. The older two children are on medication. Life is very difficult for his partner and his family due to his incarceration, and of course, the loss of the financial support he provided to his family as the principal breadwinner. I accept life has been difficult for his family since his arrest.
6. The offender has no criminal record to speak of. And certainly not one disentitling him to whatever leniency may properly be extended to him in a serious case like this. There are but three matters on his record as an adult, none of them serious in the overall scheme of things and none of them involving any personal violence. In 2011 there were two matters, one of shoplifting and another of damaging property for which he was given the benefit of a s 10 bond with no conviction recorded. In 2013 there was an offence of driving whilst his licence was suspended and again, he was given a s 10 bond involving no conviction.
7. I must say, one of the confounding aspects of the offender's offending has been the difficulty of understanding how a young man, with no real criminal record, living an otherwise productive life came to be involved in the murder of Mr Houllis over such a trifling matter as the supply of non-genuine earbuds. I do not pretend to have found the answer to that question in the evidence I have reviewed so far. Although his exposure to violence and aggression from a young age at the hands of his father may in part explain him resorting to violence as a means of dealing with setbacks and frustrations. However, his behaviour was not impulsive, but planned, as I have said. It may well be that this is part of his makeup, but there is no suggestion of it having previously manifested itself in criminal behaviour. [11]

Mental illness

1. As I have indicated earlier in these reasons, I received a deal of evidence about the offender's mental health. Since he has been in custody, he has been diagnosed by Justice Health as suffering a psychotic illness, which was previously undiagnosed in the community. Apparently, the symptoms have been successfully controlled by the prescription of anti-psychotic medication with which he has been compliant.
2. I heard oral evidence from Ms Barhon, the neuropsychologist, Dr Nielssen and Dr Allnutt. As I have said, the main thrust of Ms Barhon's evidence was that the offender performed poorly on preliminary neuro-psychometric testing designed to assess his motivation in relation to, and compliance with the substantive tests. Ms Barhon considered that his results on these tests were such that it was pointless to administer further testing in relation to his cognition which Dr Allnutt was concerned about. The results suggested a degree of symptom simulation which in turn raised questions about the offender's reliability as a medical historian.
3. Dr Nielssen, who interviewed the offender on 7 December 2022 by audio-visual link considered that his presentation was consistent with the condition diagnosed. At that stage he was on a regular dose of Olanzapine, an anti-psychotic, to which he was responding well. The doctor diagnosed the offender as suffering from a persistent psychotic illness in the form of a schizo-effective disorder with features of both schizophrenia and bipolar disorder. The offender's history was also consistent with a substance use disorder in remission while in custody. The relevant substances were daily use of cannabis and regular use of Methamphetamine or ice in the period leading up to the commission of the offence. He also abused Alprazolam, which I understand to be a form of Benzodiazepine. The Court often sees medication of that type abused in association with Methamphetamine.
4. Dr Nielssen did not regard the psychotic illness as substance induced because his symptoms persisted in custody after the likely effects of drugs would have worn off. There is also a family history of psychotic illness.
5. Dr Nielssen was not of the view that the condition was such to raise a question about the availability of complete or partial mental illness defences. He was of the view that the diagnosed condition played a part in the offender's offending. In particular, he was of the view that the manic symptoms of the disorder are associated with increased confidence and assertiveness, but not typically with serious violence.
6. Dr Allnutt's position was rather more complex. Dr Allnutt interviewed the offender twice, on 6 June 2022 and 5 October 2022. Because of Dr Allnutt's concerns about the genuineness of the offender's presentation, which he felt could only be consistent with a cognitive impairment, he recommended the neuro-psychometric testing, subsequently partly undertaken by Ms Barhon. Dr Allnutt acknowledged a report of symptoms commonly found in people with schizoaffective disorder, and the question of a chronic psychotic disorder was raised. However, he thought that the offender's symptoms were in some respects atypical. Dr Allnutt also excluded the possibility of a defence of mental illness or substantial impairment. And because of Ms Barhon's results he doubted the veracity of the offender's self-reporting. Given there had been no diagnosis in the community, Dr Allnutt refrained from making the diagnosis at that time. However, he did accept the pre-existing diagnosis of PTSD and was of the view that the symptoms of PTSD could account for the offender's failure to protect Mr Houllis from assault, if the offender's account in that regard was accepted.
7. Following his second interview, Dr Allnutt moderated his opinion somewhat. He maintained his opinion about the diagnosis of PTSD and like Dr Nielssen thought there was a history of substance use disorder in remission while in custody. Apparently, the offender's presentation was better on that occasion and Dr Allnutt was impressed by the consideration that the Justice Health psychiatrists, who had seen the offender more frequently than him had made the diagnosis of schizoaffective disorder. Like Dr Nielssen, Dr Allnutt seemed to express the view that the offender did indeed suffer from schizoaffective disorder with some symptoms like bipolar-affective disorder. He said, "I am now accepting of that diagnosis".
8. However, when he gave oral evidence (concurrently with Dr Nielssen) he expressed "scepticism" about the validity of the diagnosis. This seemed mainly to relate to his original concerns. But apart from expressing his scepticism, Dr Allnutt was not prepared to completely reject the diagnosis.
9. Dr Allnutt accepted that despite his concerns about the absence of a diagnosis in the community prior to arrest, people suffering from psychotic illness "are often missed in the community which is often why they arrive in prison, and then they are first diagnosed in prison" (49.50T). Dr Nielssen agreed with that. While Dr Allnutt was sceptical about the diagnosis, he said that he could not "rule it out" (49.1T).
10. Obviously to the extent to which an active mental illness may be a mitigating factor for sentencing purposes, the offender carries the onus of establishing it to my satisfaction on the balance of probabilities, rather than beyond reasonable doubt. Were I, like Dr Allnutt, sceptical about it, that state of mind would not be inconsistent with proof on the balance of probabilities.
11. While not thoroughly convinced, I am actually persuaded on the balance of probabilities that when the offence occurred, the offender suffered from schizoaffective disorder with symptoms of mania involving over-confidence and assertiveness. I have arrived at this conclusion for a number of reasons, including the opinion of Dr Nielssen, Dr Allnutt's inability to "rule it out", the implied opinion of the Justice Health psychiatrists who are prescribing antipsychotic medication with which the offender is compliant and to which he apparently has been responding. His age at the time of offending of 27 years is, according to the experts, within the range of the age of onset of psychotic illness in males. And there is the family history.
12. I do not accept the complete accuracy of the history given to each of the doctors, but in substance, I do not reject it out of hand. As I have already said, I think there is an aspect of the offender attempting to put his best foot forward for sentencing purposes, rather than being completely candid with either the experts or with the Court. That does cause me a degree of concern. However, it may be that the psychotic illness is additional evidence which might make his offending more explicable given the symptoms of mania even if violence is not normally associated with that aspect of his clinical presentation. He inflicted very little violence himself. I stress, however, that the elevated mood involved in mania may be aggravated by substance abuse. By his own account, he was using ice on a regular basis at the time of the offending. I emphasise that substance abuse is not a mitigating factor and to the extent to which mental illness may be, its mitigating effect may be diminished by the added effect of substance abuse.

Remorse and prospects of rehabilitation

1. When the offender gave evidence, he read a letter he had composed apologising to the Houllis family for his actions and expressing remorse. He was cross-examined to suggest that the expressions of remorse were insincere. Notwithstanding my reservations about aspects of his evidence, and indeed rejection of some aspects of his evidence, I formed the view that his expressions of remorse were sincere and should be given appropriate weight in the sentencing process. However, given that he has sought to downplay his central, indeed leading role in the foundational offending, it is apparent that he is yet to accept full moral, as opposed to legal, responsibility for the offending. Notwithstanding his remorse, he will need to come to terms with the full measure of his own part in the killing of Mr Houllis before his otherwise good prospects of rehabilitation can come to fruition.
2. Having said that, given his prior good character evidenced by his more or less clean record and his pro-social life as a productive and contributing member of the community, I regard it as highly unlikely that he will offend again.
3. His time in custody has been spent in productive ways and he has been permitted to occupy positions of trust within the prison system. He has only minor or insignificant violations of prison discipline on his custodial record. Given the nature of his offending, he will need to sustain his positive efforts and good conduct over a long period of time, which will no doubt test him.

Plea of guilty

1. The offender first offered to plead guilty to murder on 8 July 2022. Obviously, this was not the first available opportunity for him to indicate his willingness to plead guilty. Still, I am satisfied that his offer to plead guilty had utilitarian value and also indicates his willingness to accept legal responsibility for his offending for which he is entitled to some credit.
2. There is a dispute about the amount of the discount the offender is entitled to. The reason for this dispute is that when the offer to plead guilty was first made, the offender advanced the offer on the basis that his criminal responsibility was for constructive murder, rather than any other basis. This view of the facts was unacceptable to the Crown, who contended that his liability should be adjudged on the basis of joint criminal enterprise liability or alternatively extended joint criminal enterprise liability. For this reason, the Crown submitted that the relevant date for assessing the offender's entitlement to a discount is the first date of the adjourned trial when an "unqualified" plea of guilty was entered on arraignment. Mr McLachlan submitted that the discount ought to be 10 percent.
3. An offender's entitlement to a discount for a guilty plea is now regulated by statute. [12] By s 25D(2)(b) of the sentencing legislation an offender is entitled to a reduction of 10 percent in any sentence that would otherwise have been imposed if the offender was committed for trial, complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender. The language is obscure, but the pre-trial notice requirements involved no more than an offender serving a notice on the prosecutor at least 14 days before the first day of trial offering to plead guilty to the offence. And there is no doubt that the offender did so. The issue is whether conditioning the offer on a basis limited to constructive murder deprived his pre-trial notice of its legal effect for the purpose of s 25D. I am not persuaded that it did. First, I have found that constructive murder is the basis of the offender's criminal responsibility for the murder of Mr Houllis. Secondly, I accept Mr McLachlan's legal argument that as a matter of statutory construction, it is enough if the offender offers to plead guilty to the offence of murder. Murder is the offence the subject of the charge. It is not limited to a particular category of murder. The offer is not deprived of its legal effect because the offender proposes a particular factual basis of his criminal responsibility. Disputes of fact on sentencing are not unusual. A plea is not deprived of its utilitarian value because some even important matters of fact remain in dispute to be determined by the sentencing judge on evidence led by the parties at the proceedings on sentence. The case at hand is a good example. While the proceedings on sentence took two days, the trial of the offender would have taken much longer as the trial of Mr Karaali establishes. But whether I am right or wrong on this question of interpretation, given the facts as I have found them, the offender's offer was compliant. There's no doubt that the first day of trial was the first day available to the offender to enter his plea after his offer was made. Accordingly, I am satisfied that the offender has a statutory entitlement to a discount on sentence of 10 percent for his guilty plea.

Sentencing

1. Quite clearly no penalty other than a sentence of full-time imprisonment is appropriate in the circumstances of this case and it was not argued otherwise. [13] I firmly bear in mind the purposes of sentencing; [14] adequate punishment for the offence; general deterrence; personal deterrence; protection of the community; rehabilitation; holding the offender to account; denunciation of the conduct of the offender; and recognition of the harm done to Mr Houllis and the community. I accept that each of these considerations has some part to play in fixing the appropriate sentence for this offending and this offender.
2. It is appropriate, however, that I record that given my findings concerning the offender's childhood deprivation and his mental illness at the time of the offending, in accordance with well-established principle, his moral culpability for the offending was somewhat reduced justifying a somewhat lesser sentence than might otherwise have been passed. For this reason too, the significance of both general and specific deterrence is attenuated to a degree.
3. As I have already remarked, the starting point must be the unlawful taking of Mr Houllis's life. The offender was the progenitor of the joint criminal enterprise which produced that result. The punishment imposed must fit this crime. I have also already recognised that Mr Houllis's death was the result of the offender taking the law into his own hands in a manner which must be roundly denounced. General deterrence remains important in this regard. Others must be deterred from doing likewise.
4. Apart from the reduction in moral culpability, my finding that the offender is very unlikely to re-offend in the future and subject to one qualification has good prospects of rehabilitation serves to reduce the significance of community protection from this particular offender.
5. While I have assessed the objective seriousness of the offending as low in the mid-range, I do not regard it as a matter appropriate for the imposition of the standard non-parole period, having regard to the reduction in his moral culpability and the other matters to which I have referred of a subjective type including the offender's prior good character, remorse and the unlikelihood of him reoffending.
6. I should also say that the principle of parity may have a role to play in sentencing this offender. There are, of course, conceptual difficulties in as much as Mr Karaali has only recently been convicted and has yet to be sentenced. Clearly on the evidence led here, he is the primary offender responsible for the death of Mr Houllis and the offender's responsibility is essentially, not entirely, derivative. But obviously I have not heard argument on Mr Karaali's behalf about what should be made of his criminality. There is of course no evidence before me in these proceedings of the strength of his subjective case. It is simply impossible for me to make any comparison for the purpose of this sentence and I will not attempt to do so.
7. The offender's wife was sentenced in the Local Court on 17 May 2021 for her part in the offending to a term of imprisonment of 2 years to be served in the community by way of an Intensive Correction Order. She was charged with the much lesser offence of being an accessory before the fact to assault occasioning actual bodily harm contrary to s 59(1) of The Crimes Act. [15] I do not have either the sentencing magistrate's reasons or the material relied upon by the parties on the proceedings on sentence. That she was charged with a lesser offence does not of itself make the question of parity irrelevant. [16]
8. There are possible features of her case which make it quite unlikely that there is any true parity between her case and that of the offender. On the view of the facts that I have formed, the offender's partner was essentially his dupe in luring Mr Houllis to the rendezvous. Moreover, she undoubtedly had a very compelling subjective case given she was a young mother of three young children, each of whom has diagnosed health issues. Given that their father was in custody with no prospect of an early release, extreme hardship to the offender's partner's family may well have loomed large as a significant mitigating factor. Their cases in many ways are quite unalike and differential treatment of them according to the differences between them is well justified.
9. Mr McLachlan made available to me copies of nine comparatively recent cases which he submitted were comparable to the offender's case and which would, in his submission, provide guidance as to the appropriate pattern of sentencing applicable to the offender's case. Mr McLachlan also provided a very helpful summary by way of written submission. I have had regard to that material. However, it is unnecessary for me to refer to any of the individual decisions in detail. Each case, of course, necessarily turns on its own facts. For what it is worth, none were examples of constructive murder. I find myself unable to take them into account except in a general way.
10. As I have said at the outset, it is necessary for me to pass a sentence which has a non-parole period and an additional term. The non-parole period is the minimum period that justice requires the offender to serve in prison for the offence. However, no one, least of all the offender, should assume that he will be automatically released when first eligible. Release on parole requires the decision of the independent State Parole Authority. It is not a decision made by the Court. Doubtless, the State Parole Authority's decision will in part be influenced by the offender's conduct in prison, serving the sentence I will impose.
11. I am required by s 25C of the Crimes High Risk Offenders Act 2006 NSW to advise the offender that that Act applies to the offence for which he has been convicted. This means that an application may be made by the Attorney General for his continued detention or extended supervision after the completion of the sentence I impose. While it is not for me to say whether an application will be made in due course, that may depend upon the offender's continued good conduct in custody and his willingness to engage with such courses of rehabilitation as may be made available to him during his time in custody.
12. But for the utilitarian value of the offender's plea of guilty, I would have imposed a maximum sentence of 18 years imprisonment. With some rounding down, the discount to which the offender is statutorily entitled reduces the head sentence to one of 16 years and 2 months. Mr McLachlan relies upon a combination of factors to argue that I should make a finding of special circumstances justifying a reduction of the statutory ratio between the maximum sentence and the non-parole period. The factors relied upon are: this is the offender's first time in prison; the offender's mental health condition makes his time in custody more onerous than normal; and an extended parole period would be beneficial to his rehabilitation. He has also pointed out that due to the delays in his matter coming to completion because of the effects of the COVID pandemic on the criminal justice system, some leniency is warranted. It is also submitted that COVID restrictions in custody have made prison more onerous than normal for all inmates.
13. I am not satisfied that special circumstances have been established. That an offender is serving his first sentence does not of itself constitute special circumstances. Moreover, although a mental health condition can increase the burden of imprisonment, in the offender's case, his condition is well-managed in custody and he has done well, for which he is to be commended as I have previously remarked. I accept that uncertainty has been an added burden because of Covid delays in the finalisation of his case. Again, this has been an added burden for all inmates and it does not constitute something special in the offender's case.
14. Seventy-five percent of the head sentence produces a figure of about 12 years and 6 weeks. While it may not be much, to avoid the artificial appearance of arithmetical precision I propose to impose a non-parole period of 12 years, eliminating the artificial six weeks.
15. Mr Hamdach on your plea of guilty you are convicted of the murder of Ross Houllis. I sentence you to a term of imprisonment, having a non-parole period of 12 years, commencing on 15 February 2020 and expiring on 14 February 2032 with an additional term of 4 years and 2 months commencing at the expiration of the non-parole period and expiring on 14 April 2036. You will be first eligible for release on parole after the expiration of the non-parole period on 14 February 2032.

Endnotes

1. The Queen v Olbrich (1999) CLR 270; [1999] HCA 54
2. Mitchell v the King [2023] HCA 5; 97 ALJR 172
3. R v Isaacs (1997) NSWLR 374 at 381
4. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
5. Sections 54A(2) and 54B(2) Crimes (Sentencing Procedure) Act 1999 (NSW)
6. Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 at [4]; McAuliffe v the Queen (1995) 183 CLR 108.
7. Decision Restricted [2023] NSWSC 222 at [48] - [55]
8. [2023] HCA 5; 97 ALJR 172
9. s 12A Criminal law Consolidation Act 1935 (SA).
10. Mitchell at [34], [43] - [45], [47], [97] and [104]
11. Bugmy v the Queen (2013) 249 CLR 570; [2013] HCA 37 at [43] - [44].
12. Division 1A Crimes (Sentencing Procedure) Act 1999 (NSW)
13. s 5 Crimes (Sentencing Procedure) Act 1999 (NSW)
14. s 3A Sentencing Procedure Act
15. s 346 Crimes Act 1900
16. Green v the Queen; Quinn v the Queen (2011) 244 CLR 462; [2011] HCA 49. 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: 31 March 2023