R v Jaghbir

The offending

1. The detailed facts of the offending are set out in my principal judgment but for the purposes of sentencing the offender, they may be summarised as follows.
2. The deceased lived at unit 6/8 Bennett Street, Mortlake. This was a security building which required an entrant either to have keys and/or a proximity key (or fob) to obtain access to the building, or to be buzzed into the building when contact was made with the occupier through an intercom system located at various places in and around the building. There were two buildings in the complex, one facing Bennett St, and one at the back facing the Parramatta River.
3. By February 2017 the deceased was under police surveillance, and a Firearms Protection Order had been served on him. At about 6:30am on 2 March 2017 police attended to carry out a search of the deceased's unit pursuant to the FPO. As the deceased was not at the unit, access was obtained by forcing entry through the unit door. In the process, the door and its lock were damaged such that the door could no longer be secured.
4. When the deceased became aware of the damage to the door and the lock he made contact with the offender through a friend, Esam Elkodat. Mr Elkodat asked the offender if he could replace the door for the deceased.
5. The offender arranged for some work colleagues to assist him in the task of replacing the door and installing a new lock. One of those colleagues, a Mr Ratinon, first patched up the door and installed a new lock on 2 March. He either gave a key to the new lock to the offender, or the offender collected one from the deceased that night when he delivered a new door to the deceased. There is no doubt that the offender had a key by later that night, because he sent a text to another colleague, a Mr Norton, who was to replace the new door the following day, saying that he had a key to let him into the unit.
6. The work was ultimately completed by Mr Ratinon when both the offender and the deceased were present on the evening of 3 March 2017. At that time the offender handed the deceased a key on a key ring. Later examination determined that that key had been duplicated. There was a second key to the unit, found by the first detective on the scene after the murder, Detective Scifleet. That key had not been duplicated.
7. At about 3:30am on 8 March 2017 four armed intruders gained access to the ground floor of the back block where the deceased lived. They were not, however, able to gain access to the higher floor in the block where the deceased lived. Whilst on the ground floor of the unit block they removed the handles to one of the security doors that gave access to the ground floor of the building. They subsequently left the area.
8. On 10 March 2017 at 2:19am four armed assailants wearing disguises were captured on CCTV footage walking along the southern side path of the unit complex. They entered the back unit block by the fire stairs door on the river side of the building. The deceased was asleep in bed with his partner, Fatima Hage. At about 2:30am Ms Hage was awoken by the assailants who had gained access to the deceased's unit, and were at the doorway to the bedroom. The assailants shot the deceased multiple times as he lay in his bed. The assailants then left the unit block, having been inside it for less than four minutes.
9. The getaway car was subsequently burnt out. When it was discovered, police found the burnt out handles which had been removed from the security door on 8 March 2017. It is likely, therefore, that the assailants were the same as those who had attempted to access the deceased's unit on 8 March 2017.
10. In my principal judgment, I found beyond reasonable doubt that the assailants entered the unit by unlocking the front door with a key which they had in their possession. I also found beyond reasonable doubt that the offender had either duplicated the key and provided it to somebody else or had provided a key so that it could be duplicated by somebody else. Ultimately a copy of it came into the hands of the assailants. In that way, the offender had aided the unknown persons to murder the deceased.

Objective seriousness

1. I accept that the offender's role in the crime came about fortuitously. He did not seek the role he played, but when the opportunity was presented by the request to replace the door and lock, he then took steps to assist those who were ultimately responsible for killing the deceased. I accept, therefore, that there was not extensive planning on the part of the offender. Nevertheless, the role that he played was not merely passing assistance but took place over a 24-hour period from the evening of 2 March 2017 to the evening of 3 March 2017. It involved the duplication of the key, or its provision and subsequent retrieval for duplication purposes, and the phone calls at significant times to Mr Sleiman.
2. Thereafter, the offender remained in contact with either one or more of the perpetrators or a person with whom the perpetrators had contact. That is clear because of the knowledge the offender had of the attempted break-in on 8 March 2017 by the way he looked at the door in the back building from which the handles had been taken. That took place at a visit to the deceased's unit which the offender himself requested on 8 March after the attempted break-in.
3. As to the role played by the offender, while I accept the submission of Mr James QC that the provision and use of a key was not essential for the murder to be committed, it enabled the murderers to enter the unit expeditiously, without warning to him and without, perhaps, alerting neighbours by breaking down the door. As the evidence of Ms Hage showed, the murderers managed to get to the door of the bedroom without the deceased or Ms Hage being alerted. That obviated the possibility that the deceased could attempt to flee out over the balcony, or be able to shoot at them first or at all. In that way, his role in providing the key was a significant one.
4. Further, it was aggravated because the offender knew that the shooting was to take place in the deceased's home. Although the offence was technically aggravated because weapons were used in the murder of the deceased, I do not consider that that aggravates the offence in the circumstances that the offender knew that he was providing a copy of the key so that the deceased could be shot.
5. The Crown submitted that the offence was aggravated because the offender was in a position of trust towards the deceased as a result of being asked to replace the damaged door and lock. Mr James submitted that s 21A(2)(k) of the Sentencing Act was concerned with persons who by their role or position are in a position of trust. In my opinion, that is too narrow a reading of that paragraph. In Karl Suleman v R [2009] NSWCCA 70 Howie J (McClellan CJ at CL and Hislop J agreeing) said: [22] This aggravating factor is not made out simply because the victim trusted the offender for some reason or other, such as because of the offender's standing in the community or he appeared to be a successful businessman. … The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to "a position of trust". It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings. … The relationship is one recognised by the common law as imposing upon one of the participants a particular responsibility not to act to the detriment of the other because of their peculiar relationship. [23] The position of trust recognised by the common law does not arise simply from a subjective state of mind of one of the members of the relationship. It is not enough that for some reason or another the victim trusted the offender not to act in a particular way: that state of mind might be irrational or without foundation. On the other hand a position of trust can arise irrespective of the state of mind of the victim, for example because the victim is a child or mentally disabled. But the offender would know, or should have known, that he or she is in a position of trust with respect to the victim.
6. Similarly, it was said in Lu v R [2014] NSWCCA 307 by McCallum J (as her Honour then was) (Price and R A Hulme JJ agreeing): [17] As contended on behalf of the applicant, the establishment of an aggravating factor of abusing a position of trust requires more than the fact that the victim trusted the offender in the ordinary sense of that word: cf R v Suleman [2009] NSWCCA 70 at [18] to [28] per Howie J; McClellan CJ at CL and Hislop CJ agreeing. The abuse of "a position of trust" invites consideration of the character of the relationship between the offender and the victim rather than the subjective state of mind of the victim.
7. I consider that the offender abused a position of trust in relation to the victim because he was a person known to the deceased at least as an associate and on the offender's account, a friend, and was asked by him to replace the door and lock on the deceased's door in circumstances where the offender knew that the deceased was very concerned for his safety. The position is no different to a tradesperson taking advantage of spending time in someone's home, and conveying the knowledge he or she learned there to a prospective burglar, concerning the layout of the house or the existence and location of valuable items.
8. Even if the circumstances are not within s 21A(2)(k), I consider that the offence is aggravated by the manner in which the offender took advantage of the position the deceased had placed him in to replace the door and lock to enable the deceased to feel he would thereafter feel secure.
9. In my opinion, the level of objective seriousness is just below the mid-range.

Subjective matters

1. The offender did not give evidence either at the trial or at the sentence hearing. The information about his subjective circumstances derives chiefly from two psychological reports. The first is from Ms Jessica Cortes of 26 February 2020 and the second from Mr Sam Borenstein of 31 October 2020.
2. The offender was born in March 1989 in Auburn. He is the youngest of four children. His father was born in Jordan and his mother in Lebanon. He described his childhood as good, normal and uneventful. He left high school two weeks prior to the Higher School Certificate in Year 12 following an argument with a teacher. He had earlier been suspended from time to time for truanting and from an altercation with a fellow student.
3. After leaving school he worked as an electrician's offsider. He learnt electricians' work on the job but never took up an apprenticeship nor qualified as an electrician. He worked for real estate and property managers, and contracted to work for the Department of Housing.
4. He lived at home until he married in September 2017. He and his wife have been together for six years and have two children, a daughter aged two and a half and a son aged nine months. His wife is pregnant with their third child.
5. He told Mr Borenstein that he had only ever been a moderate consumer of alcohol which he stopped completely in 2017. He told Ms Cortes that he tried alcohol for the first time around the age of 15, and said his drinking was "somewhat socially on weekends". He denied to Mr Borenstein any drug usage, but he told Ms Cortes that he tried ecstasy for the first time around the age of 18 and used it irregularly with no dependency. These inconsistencies, coupled with the absence of direct evidence from the offender, make it difficult to know what of the offender's self-reporting should be accepted.
6. He told Mr Borenstein that he had a wide circle of friends, "some of which he came to realise had criminal connections".
7. Ms Cortes administered a number of psychometric tests and assessed his risk of reoffending on the Level of Service Inventory-Revised. Ms Cortes concluded that the offender's general cognitive ability was within the borderline range of intellectual functioning. His overall thinking and reasoning abilities exceed those of only approximately 6% of individuals his age. Ms Cortes thought that his overall score on the Wechsler Adult Intelligence Scale had been inflated due to one particular subtest. She thought that meant that his level of reasoning ability was likely to be even lower than indicated. In particular she noted his verbal comprehension score was his weakest, and that indicated that his ability to comprehend verbal instructions, particularly complex verbal instructions and their implications, was poor. She said there was a possibility that he would display difficulties in his ability to understand, learn and retain verbal information as well as to use language to solve novel problems. Mr Borenstein said that his test results were consistent with those obtained by Ms Cortes.
8. Mr Borenstein said the offender's level of intelligence, borderline to low average, indicated that his ability to reason and anticipate the consequences of his actions was limited.
9. Whilst accepting the expertise of Ms Cortes and Mr Borenstein, and accepting their opinions in that regard, I had the advantage during the trial of seeing and hearing recordings made of conversations the offender had with various people including the police. What I saw and heard of the offender did not suggest difficulties in understanding verbal information. Nor do his referees, who include people who know him through his work, suggest any limitation in that regard. Of more significance is that neither of the psychologists relate the limitations they describe to his offending, although I note that Ms Cortes examined him in the context only of the offence of perverting the course of justice, and Mr Borenstein's opinion was given on the basis that the offender was denying having committed the present offence.
10. Ms Cortes also found that he fell in the low range for risk of recidivism and that he was a low risk for overall risk/needs. Mr Borenstein said that the offender's personality profile and risk assessment did not indicate that he was at risk to society, nor did it predict antisocial or criminogenic tendencies.
11. I have been provided with affidavits from two of the offender's siblings and from his wife. All point to his prioritising his family over everything else including care for his parents. His wife speaks of the need she has for the offender's emotional support and his support with looking after the children. She refers to a previous miscarriage that she had and stress that she is undergoing because of the offender's conviction. She says that that places her at risk for another miscarriage. She also refers to the fact that the children are constantly asking when their father will return.
12. I have also been provided with a number of references from friends and work colleagues of the offender. These referees speak highly of the offender's work ethic and his character. Each of them says that they are aware of what he is to be sentenced for and they consider that it is contrary to the view that they have formed of the offender over the many years they have known him.
13. The worth of those references is somewhat diminished as none of them discloses any knowledge of other offences in respect of which the offender has been convicted and sentenced.
14. On 13 March 2020 the offender was, after a plea of guilty, convicted of an offence of doing an act with intent to pervert the course of justice. For that offence, which took place on 16 October 2017, he was sentenced to imprisonment for one year and seven months with a non-parole period of ten months. Further, on 11 June 2020 the offender was convicted for sell/possess/import goods with false trademarks. An offence of dealing with property being the proceeds of crime was taken into account on a Form 1. The offender was sentenced to a recognisance for 18 months. These offences took place between July and November 2019 and must have been committed whilst the offender was on bail for the present offence.
15. At the time of the present offence, the offender had no criminal record. I take into account these subsequent offences only in relation to the question of rehabilitation and the likelihood of reoffending.

Victim Impact Statement

1. A Victim Impact Statement was read by Ms Gabriella Martin who was a sister of the deceased. Although she said that she and the deceased had gone down different paths in life for the last few years, she had always hoped that they would come back together, but now, she says, she will never know. She also speaks in that statement of the effect that the deceased's death has had on their mother. The deceased apparently kept in regular contact with his mother by telephone. Ms Martin says that she does not think her mother will ever get over the loss of the deceased.
2. The Crown asked, pursuant to s 28(4) of the Sentencing Act (as it then was) that I take the Victim Impact Statement into account when determining the punishment for the offence. Mr James QC did not submit that I could not take the Victim Impact Statement into account in that way. He submitted, however, that the statement itself showed that the deceased had become detached from his sister and to a considerable degree from his mother. He also pointed out that the impact referred to by Ms Martin from media interest in the matter was outside the consideration of the harm I could take into account. Finally, Mr James submitted that the offender has only been found guilty of being an accessory before the fact to the murder. He was never charged as a principal in the first or second degree, and it was never alleged that he was a party to a joint criminal enterprise.
3. Although, as I have said, Mr James QC did not dispute that I could take the Victim Impact Statement into account in the way the Crown asked, I have some doubt that the requirements of s 28(3) are met, in that there must be some doubt that it can be said the deceased died as a "direct result" of the offender's assistance. The offender was not one of the persons who killed the deceased, and was not charged as being part of a joint criminal enterprise to do so. Nevertheless, I consider that I should receive the Statement. In the light of what is disclosed in the Statement concerning the separate path in life that the deceased had taken which had set him apart from his sister, in particular, and also other members of his family, and in the light of the offence with which the offender is convicted, I do not consider it is appropriate to take it into account in connection with the determination of the punishment for the offence under s 28(4). In coming to that view, I do not by that mean to diminish in any way the impact of the deceased's death on his sister, his mother and other members of the family. I again extend my condolences to the members of the family for the loss of the deceased.

Remorse, rehabilitation and reoffending

1. The offender continues to deny his involvement in the offence, and in that way I cannot find any remorse on his part. I note the views of the psychologists who assess him at a low risk of reoffending. However, the fact that he has subsequently been convicted of offending, including but not limited to doing an act with intent to pervert the course of justice, which is a serious offence, causes me to have some reservations about his prospects of rehabilitation and the likelihood that he will reoffend. In the light of those offences and his relationship with various people with criminal convictions and who move in the criminal underworld, as he has admitted, I consider that there is some risk that he will continue to offend, although I do not consider it is a high risk.

Special circumstances

1. Mr James QC submitted that special circumstances should be found to reduce the statutory ratio. This was because it was said to be his first fulltime lengthy period in custody. Secondly, it was said he will be on protection whilst in gaol which will make custody more onerous for him. The third matter put forward was that it was said he has behaved well in gaol and was previously a sweeper.
2. As I have already noted, this is not the defendant's first time in custody. In any event, the Court of Criminal Appeal has repeatedly said that an offender's first time in custody is not, without anything more, a matter that amounts to special circumstances.
3. The only evidence of how the offender has progressed whilst in custody is that he has not been found guilty of any prison offences until 30 May 2020 when he was punished for intimidation.
4. Mr Borenstein's report discloses that the offender elected to go into protection on the recommendation of a prison officer because his was a high profile case. Mr James informed me from the bar table that the offender is going to be on protection because he is or might be at risk in the context of the retaliatory killings I referred to in my principal judgment. It was suggested that this might also be related to Mr Sleiman's belief that the offender was responsible for Mr Sleiman's shooting.
5. The difficulty with all of this is that there is a paucity of evidence about all of these matters. Certainly, the recorded conversation of 22 July 2017 pointed firmly to Mr Sleiman believing at that time that the offender was involved in his shooting. Mr Elhallek and M1 spoke in that conversation of someone assuring Mr Sleiman that the offender was not involved in the shooting. There was no evidence about what Mr Sleiman's current belief might be in that matter. Further, there was no direct evidence that the offender would be at risk because of his conviction for this offence.
6. Nevertheless, there was evidence at the trial of retaliatory killings, and evidence that might have suggested the deceased was on the opposite team to the offender in that regard. However, I am prepared to accept, on the balance of probabilities that the fact that the offender is in protection is likely to be related to the offence for which he has been convicted. I consider also that in the light of the offender's recent offending and the company he keeps, a longer period under supervision is likely to minimise the risk of reoffending. Accordingly, I find special circumstances.

Denunciation and deterrence

1. Murder is the most serious of crimes. Those who engage in conduct which assists or facilitates murderers, even if they themselves are not present at the murder, must also be punished severely. As mentioned earlier, the punishment prescribed is the same as for the principal murderers. General deterrence is of some significance. Although what the offender did was not indispensable to the carrying out of the murder, it significantly facilitated it. In the light of what the psychologists say about the risk of reoffending, and despite my reservations about the offender's rehabilitation, specific deterrence is not a significant matter in the present case.

The sentence

1. There are not many cases which provide guidance when sentencing an offender for being an accessory before the fact to murder. Cases involving contract killings are not comparable because they lie in the upper range of objective seriousness of this offence.
2. In R v Proud Ms Proud was approached by Ms Evans to engage her then partner Mr Spicer in a criminal enterprise to murder another woman. The sentencing judge found that she was a willing and enthusiastic contributor in the plan to cause grievous bodily harm to the deceased. However, her role was limited to introducing Ms Evans to Mr Spicer. She was not present at the scene of the crime and was uninvolved in the planning of the murder or in the carrying out of it. The murder in that case involved Ms Evans and Mr Spicer pouring or throwing petrol around the deceased's bedroom and lighting the petrol. The deceased was burnt to death.
3. Justice Harrison found that the offence fell towards the low to moderate end of seriousness for offences of its type. He considered that her role was minor. The offender was sentenced to a term of imprisonment of ten years with a non-parole period of six years. In my opinion, the present offender's role was a greater one than Ms Proud's role.
4. R v AC (No 7) involved rival portions of the Brothers for Life gang. The offender, who was charged with two offences, one of which was being an accessory before the fact to the murder of Mahmoud Hamzy, told a Mr Qaumi that she had heard that Mohammed Hamzy was planning to "get Mr Qaumi". She repeated that information to other members of BFL Blacktown. She also told Mr Qaumi what Mohammed Hamzy's bail conditions were, particularly that he was required to be at home before midnight. She knew where he lived and she drove the shooters to his house. The killers then went in to kill Mohammed Hamzy but he escaped and they killed Mahmoud Hamzy by mistake.
5. The offender received a 50% discount for plea and assistance. Justice Hamill said that prior to the discount the notional starting point would have been 16 years' imprisonment. The offender was accordingly sentenced to imprisonment for eight years with a non-parole period of five years. The offender's role in that matter exceeded the role of the present offender in relation to the murder.
6. In R v Zanker (No 2) the offender was found guilty after a trial by jury of being an accessory before the fact to the murder of a Mr Munro with whom he had disputes arising out of a drug cultivation. Only one particular of assistance was put forward by the Crown to constitute his accessorial participation; that was digging the grave prior to the murder of Mr Munro. He knew that when he took part in digging the grave that the person who assisted him to do so intended to have Mr Munro killed. He was sentenced to imprisonment for 12 years with a non-parole period of six years and eight months. In the light of Mr James' submission that the present offender's role was not essential for the murder to have been committed, I similarly note that digging a grave in advance of a murder is not essential for the murder. The present offender's role in providing a key to the deceased's unit was more significant.
7. In R v Nathan John Blundell the offender was found guilty after a trial by jury of being an accessory before the fact to the murder of a Mr Power. Prior to the offending in question the offender and a co-offender had broken into premises and stolen a vehicle and some tools. They then drove to an address and left the tools with the deceased. The deceased sold the tools and did not account to the offender and his co-offender in the robbery for the amount received from the tools.
8. The offender and the murderer exchanged a series of messages where they expressed resentment towards the deceased and his failure to pay the money. They discussed assaulting the deceased. The co-offender, by pretending to be somebody else on a Facebook account, lured the deceased to a location where he killed him. The Crown case was that the offender knew that the co-offender was going to inflict grievous bodily harm on the deceased and encouraged him to do so and/or assisted him to do so. He also assisted the co-offender to carry out the assault upon the deceased by informing him of the deceased's location. He was sentenced to a period of ten years' imprisonment with a seven year non-parole period. I accept that the sentencing judge considered that the standard non-parole period applied. Nevertheless, the sentence is within the range of the other cases, and significantly less than other cases such as Nikolovski.
9. The present offender spent 16 days in custody after his arrest until granted bail on 23 November 2017. He was returned to custody after a successful detention application on 28 October 2020, 36 days ago. The sentence will be backdated by 52 days and will commence on 10 October 2020.
10. Ahmed Jaghbir, I convict you of the offence of which I have found you guilty and I sentence you to a non-parole period of six years and six months commencing 10 October 2020 and expiring 9 April 2027 with a balance of term of four years and six months expiring 9 October 2031. You will be first eligible for parole on 9 April 2027.

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