R v Karaali

Fact finding principles

1. The principles informing fact finding relevant to the offender's offending after a jury trial are well known and do not require detailed exposition by me. [1] By their verdict, the jury has determined the offender's legal responsibility for the murder of Mr Houllis. It is for me to make the decision about the degree of the offender's culpability for the offending for sentencing purposes. The power and responsibility of determining the punishment to be visited upon the offender rests with me and not with the jury. I am to determine the facts relevant to sentencing him based on the evidence I heard during the trial and such further relevant material as was put before me on the proceedings on sentence. My assessment of the facts is constrained by the principle that my conclusions must be consistent with the jury's verdict. Having said this, it is not my task to attempt in some way to divine the pathway by which the jury reasoned to their verdict. Such an attempt could never rise above the realm of speculation, which has no place in the criminal court. More importantly, perhaps, any such attempt would impermissibly trespass upon the confidentiality of the jury room. Conventionally, the jury was instructed that while their verdict must be unanimous the path by which each of them reasoned to their single verdict need not. Different jurors may have formed different views about the importance of different aspects of the evidence in accordance with the direction, yet the whole jury were conscientiously able to reach a common verdict.
2. I must make my own decision about the facts of the offending. It is important that I remind myself that it is for the Crown to prove the objective facts of the offending and any adverse or aggravating factors relevant for sentencing purposes 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. [2]
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 some of which are favourable to the offender, the strict application of the criminal standard of proof requires those matters to be counted in his favour.

Events leading up to Mr Houllis's death

1. What follows is a narrative of the facts as I have found them to be applying the aforegoing principles. Following the jury's verdict there were few issues about the primary facts. Where they exist, I seek to explain how and why I have resolved them.
2. Improbable as it may seem, the chain of events which led to the murder of Ross Houllis commenced with the sale by him of what the purchaser, the co-accused Hamdach, believed were an inferior product passed off as genuine Apple AirPods. While it seemed to be accepted for the purpose of the trial that the AirPods were a non-genuine product, the assumption was never established one way or the other. But this matters not for my purposes. Proceeding on the assumption they were non-genuine, the fraudulent sale of a relatively inexpensive consumer product could not by any stretch of the bounds of rationality justify or even come close to explaining what happened.
3. Hamdach saw the sale advertised on Facebook Marketplace and contacted the advertiser who was using the identity of Mr Houllis's sister. But it was Mr Houllis who completed the transaction in the evening of 13 February 2020 at Canley Vale Railway Station. Before handing over his cash, Hamdach is seen on the video footage to apparently inspect the product, presumably to satisfy himself it was a genuine article.
4. Hamdach already owed a genuine set and had bought this pair as gift for his partner, Ms Kawtharani. It is not clear which of them decided at their home that night that the pair supplied by Mr Houllis were not genuine, but I infer from the evidence and course of subsequent events, especially the recording of the angry confrontation recorded and sent to Ms Kawtharani's phone (Exhibit G), that Hamdach felt mortified and humiliated by his mistake.
5. After his discovery, at about 8:50 pm, Hamdach had attempted to contact Mr Houllis, whose number he had obtained for the purpose of setting up the sale earlier in the day. It may well be that Mr Houllis recognised Hamdach's number because he appears to have declined to take the call.
6. After the failed call to Mr Houllis, I am satisfied that over the next 40 minutes he conceived a plan to teach Mr Houllis a lesson by exacting a degree of retribution from him for, as Hamdach saw it, tricking him. The plan involved Ms Kawtharani contacting the Facebook Marketplace address on the pretext that she wished to purchase a pair of AirPods as a Valentine's Day gift. Hamdach's plan was not without its complexities. However, under his direction, Ms Kawtharani would continue to communicate with Mr Houllis to arrange a rendezvous after dark on 14 February 2020. In the meantime, Hamdach contacted the offender for his support. I am satisfied that Hamdach envisaged employing Mr Karaali as the "muscle for the meeting". Hamdach required muscle because it was his intention to not only extract a refund, but also to teach Mr Houllis a lesson by giving him a beating. To avoid Mr Houllis evading the snare, Hamdach intended that the rendezvous should occur at a place where he could hide from view nearby while the offender made the first contact. When Mr Houllis was within the snare, Hamdach would emerge from his hiding place, restrain Mr Houllis while the offender delivered the desired lesson with his fists, and if necessary, his feet. Both the offender and Ms Kawtharani were willing accomplices in the implementation and execution of the plan.
7. That the offender was recruited by Hamdach as the muscle is established by the consideration that within 3 minutes of Ms Kawtharani sending her Facebook message Hamdach contacted the offender by telephone. The time was 9:33 pm on 13 February 2020. Four more calls passed between them over the following half an hour including one lasting over 2 minutes. The actual content of their communications was not proved at the trial because they were not available. But from subsequent events, I am satisfied beyond reasonable doubt that Hamdach was recruiting the offender and the offender was happy to oblige.
8. There was no response from Mr Houllis to Ms Kawtharani's message 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 business together. It is important to record my finding that while Ms Kawtharani was the one messaging Mr Houllis, she acted solely as Hamdach's agent and under his direction and control. This is more than evident given that each contact between her and Mr Houllis was bracketed by contact between her and Hamdach.
9. After a series of text messages, Ms Kawtharani, under Hamdach's instructions, arranged a meeting with Mr Houllis at around 9:30 pm at the carpark at the Wakely shopping centre that night. Mr Houllis had suggested a meeting the following morning, but this was not acceptable to Hamdach who seemed very keen to extract his refund and deliver the "lesson" through the offender. Had his intent been no more than to extract the refund with menaces he could readily have continued to use Ms Kawtharani as the decoy. Afterall, the pretext was that she was purchasing them as a Valentine's Day present and Mr Houllis was expecting to meet with a female.
10. While Hamdach was orchestrating the exchanges between Ms Kawtharani and Mr Houllis he drove to the offender's home in the Bankstown area, picking him up and travelling in Hamdach's work ute to the corner of Goulburn Place and Bulls Road, Wakely only a short distance from the carpark.
11. Hamdach and the offender arrived at the carpark at 9:21 pm. CCTV footage shows Mr Houllis entering the carpark at 9:31 pm. He may have had some premonition that trouble was afoot because he had asked his brother to accompany him to this particular meeting, but he was unavailable.
12. When he saw Mr Houllis approach, Hamdach hid himself behind a small truck and sent the offender forward to meet Mr Houllis. He may have been armed with a story about why Ms Kawtharani, whom Mr Houllis was expecting, was not there. While Mr Houllis's attention was focused on the offender, Hamdach emerged from his hiding place and restrained Mr Houllis by grabbing and pulling his arms behind his back while the offender commenced to assault him, 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 despite Mr Houllis's protestations.
13. During the fracas, Mr Houllis dropped his mobile phone just as he was forced to the ground by the violence of the offender's assault on him. When he was down, Hamdach disengaged from his part in the assault and went to pick up the mobile phone. The CCTV footage shows him examining the phone while the offender continued to violently assault Mr Houllis, kicking him while he was down. It is difficult to see from the footage what contact was made with which part of Mr Houllis's body, but when he was dragged to his feet by the offender and Hamdach, my firm impression is that he definitely appeared to be "groggy" or unsteady on his feet. This is strongly suggestive of concussive blows to his head.
14. I interpolate that Mr Wallach of counsel argued on behalf of the offender that the better view of the evidence is that both Hamdach and the offender were punching and kicking Mr Houllis while he was down. He relied on the evidence of an eyewitness, a Mr Frohreich, who appeared to say from his description of the assailants that it was Hamdach who was kicking Mr Houllis in the head while he was down. While Mr Frohreich was a patently honest witness, his recollection was not assisted by several viewings of the CCTV footage such as I have had. From my consideration of that evidence, I am persuaded beyond reasonable doubt that Mr Frohreich's recollection is erroneous. I am of the view that the offender was the man doing the kicking, which appeared to be vigorous, while Mr Houllis was down. Hamdach was distracted by the mobile phone. For what it is worth, I have also rejected the submission that no injury was done in the carpark. As I have said, I am satisfied that Mr Houllis had to be dragged to his feet and he was unsteady on them. I formed the view that he was suffering the effects of concussion then and that he did have some difficulty walking. At least his gait was not normal. It had altered from the natural stride he exhibited on CCTV footage as he walked from his nearby home to the carpark.
15. When Mr Houllis was on his feet, each of Hamdach and the offender grabbed one of his arms and more or less frogmarched him out of the carpark onto and along Bulls Road in the direction of its intersection with Goulburn Place, where Hamdach's work ute was parked. There was no evidence at the trial why this was so. Evidence about that matter had been led at the contested sentencing hearing on Hamdach's plea of guilty. But the offender was not represented there, and I have disregarded that evidence for present purposes. The direction of travel was also the general direction of Mr Houllis's home. It is apparent, as I have said, that Hamdach was very keen to have his money back and there was nothing on the CCTV footage of what transpired in the carpark, suggesting that Mr Houllis had handed it over there.
16. On my assessment of the CCTV footage, Mr Houllis remained unsteady on his feet throughout the short walk to Goulburn Place. He was mostly conducted along the footpath by the offender. While the quality of the CCTV footage is not pristine, I formed the firm impression that Mr Houllis remained in a groggy or confused state from his appearance and the manner of his ambulation.
17. When the three men reached the corner of Goulburn Place and Bulls Road they paused, and a further conversation appeared to take place. The evidence at the trial does not cast any light on the content of the conversation. However, the offender resorted again to violence. In the presence of Hamdach, he ripped Mr Houllis's t-shirt from his back and with some athleticism kicked the standing Mr Houllis with what appeared to be significant force to his head causing him to stumble and commence to fall. He was able to regain his footing and understandably it must be said, took flight. But the offender gave chase and caught him a short distance away just around the corner in Bulls Road, more or less tackling him to the ground. It is difficult to see what happened then because of the obstruction of the view provided by the CCTV footage recorded by a camera on a nearby house. I would infer from the short delay evident during which the offender and Mr Houllis were out of view, the offender was inflicting further violence on Mr Houllis. Once again, I reject the submission that Hamdach was a party to this instalment of the assault. Once again, he seemed to be enamoured by whatever was happening on his or Mr Houllis's mobile phone that he seemed to have retained in his possession. I accept that he took some steps in the offender's direction. But he did not inflict further violence on Mr Houllis.
18. The offender again dragged Mr Houllis to his feet and frogmarched him back to the vicinity of Hamdach's ute. By now, Mr Houllis was obviously in a very bad way. To my observation he seemed to have great difficulty with his balance from this point on.
19. When the offender took Mr Houllis back into Goulburn Place, the latter fell from the kerb onto the roadway where he lay for a period of time which may have been as long as one minute. He then attempted to regain his feet unsuccessfully before falling back onto the roadway.
20. As the offender and Hamdach stood over the prostrate Mr Houllis, a passing motorist with his family in the vehicle stopped to enquire after his welfare. It is a matter of some significance, at that point when the violence could have been brought to an end, the offender lied saying Mr Houllis had had a drug overdose, but that he and Hamdach were "looking after him". Apparently reassured, the motorist drove off.
21. It is obvious then that Mr Houllis was unconscious. The offender and Hamdach dragged him from the middle of the road to the southern edge of the carriageway where they again stood over him looking at him in some kind of contemplation. It apparently occurred to neither the offender nor Hamdach that Mr Houllis was in some kind of trouble medically speaking and needed medical help. Rather, suddenly, the offender violently stomped on the prostrate Mr Houllis's chest. And it is notable from the testimony of Dr Liston, a specialist in emergency medicine, that a CT scan taken at the hospital revealed left sided fourth and fifth rib fractures, a lung contusion and a collapsed lung. However, Dr Liston said those injuries, I infer in isolation, would have been "survivable".
22. As it happened, another motorist drove by and stopped to enquire after Mr Houllis's welfare. He was highly suspicious of what he saw. Again, the offender made an excuse; this time, that Mr Houllis was intoxicated and he encouraged the motorist to drive on. The offender then dragged Mr Houllis onto the nature strip. As he lay there motionless, the offender violently stomped on his head twice in quick succession in an obviously gratuitous, senseless and cruel manner. From the CCTV footage, I have drawn the inference that the offender was moving in for a third stomp when, too late to make any difference, Hamdach came between him and Mr Houllis, preventing the infliction of further injury.
23. At this point, the offender and Hamdach quit the scene in Hamdach's ute. They did so without any real attempt to render or obtain any assistance for Mr Houllis. They effectively left him for dead. Mr Frohreich and his partner, who had followed the offender, Hamdach and Mr Houllis from the carpark in their car called emergency services who attended the scene promptly. Mr Houllis was conveyed by ambulance to Liverpool Hospital where, according to the evidence of Dr Liston, 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. These injuries were not "survivable" according to Dr Liston. While Dr Liston was not asked about this, it seems to me that the constellation of significant brain injuries must have been the result of the application of very significant force to Mr Houllis's head. That on the evidence, Mr Houllis fell three times as a direct result of the assault on him in no way serves to reduce the causative potency of the direct application of force to his head by the kicks and stomps delivered by the offender.
24. As a result of his catastrophic injury, Mr Houllis died on 17 February 2020, when, with the consent of his family, life support was withdrawn.
25. It is also very pertinent to find that these events occurred on a Friday night in late summer in a suburb of Sydney. It was St Valentine's Day, which for many people is an occasion for the celebration of their relationship with their life partner. The CCTV footage shows that many people were out and about both in and around the carpark and passing through the intersection of Bulls Road and Goulburn Place. The deadly violence which was inflicted upon Mr Houllis was carried out in the full public view of passing motorists and pedestrians in brazen disregard of their presence and complete indifference to their safety or their natural concern for their own safety. These are matters of some significance to the assessment of the objective seriousness of the offender's criminality.

Maximum penalty

1. The maximum penalty for murder is imprisonment for life. [3] As with all offences, the maximum penalty is reserved for those offenders whose offence falls into the worst category of case. Moreover, a life sentence is mandatory if the Court is satisfied that the level of culpability of the person convicted of the murder is so extreme that the community interest can only be met through the imposition of that sentence. [4] The Crown do not contend that this case falls in either the worst category of murder or that the offender's culpability rises to being "so extreme". As serious as this case is, I agree that it is not one calling for the imposition of a life sentence or where a life sentence is required by law. Accordingly, it is necessary for me to impose a sentence of imprisonment for a specified term. [5]
2. The law requires me to pass a sentence consisting of a non-parole period which is the minimum period justice requires the offender to serve in full time custody and a balance of term during which the offender is eligible for release on parole. [6] Special circumstances aside, the balance of the sentence must not exceed one-third of the non-parole period.
3. Murder is also a standard non-parole period offence. The standard non-parole period specified for the offender's offending is 20 years. [7] The standard non-parole period represents the non-parole period for the offence of murder, taking into account only the objective factors affecting the relative seriousness of the offence that is in the middle of the range of seriousness. [8] In Muldrock v The Queen, [9] a unanimous court of all seven justices of the High Court of Australia observed that meaningful content could not be given to the concept of "an offence in the middle of the range of objective seriousness" by taking into account characteristics of the offender. Their Honours continued: "The 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. Application of the standard non-parole period where applicable is not mandatory. The court is entitled to set a non-parole that is longer or shorter than the standard non-parole period. [10] The standard non-parole period is one factor to be taken into account when fixing a sentence. [11]
5. In Muldrock v The Queen the High Court said a sentencing court is required to take into account all matters, facts and circumstances relevant to fixing a sentence which is appropriate for the offence and for the offender. In adopting this approach, the maximum sentence and the standard non-parole period are legislative guideposts of which the Court must be mindful.
6. I will take into account the maximum term and standard non-parole period in sentencing the offender.

Assessment of objective seriousness

1. In Muldrock v The Queen, the High Court said nothing in the sentencing legislation creates the need for a sentencing judge to classify the objective seriousness of the offending. [12] However, in my opinion, it is not impermissible, and it is sometimes helpful to do so provided one bears in mind that such a classification or assessment is not determinative of the sentencing exercise. An assessment of objective seriousness is central to the principle of proportionality: the punishment must fit the crime. But it is far from being the only fact, matter or circumstance relevant to sentencing.
2. The legal elements of murder are clear. For present purposes it is sufficient to say a person is guilty of murder where by his act the offender has caused the death of another person and the fatal act was done with intent to kill or inflict grievous bodily harm, inter alia, on the deceased. The only issue at the offender's trial was whether he was the person who was with Hamdach, in the carpark and at the corner of Goulburn Place and Bulls Road who inflicted the fatal violence upon Mr Houllis. There was no issue that that violence was inflicted with murderous intent. However, for sentencing purposes, the Crown have submitted that I should be satisfied beyond reasonable doubt from the nature of his acts in the continuum of ongoing violence, that at least from the time that the offender kicked the standing Mr Houllis in Goulburn Place until he delivered the second of his stomps to the still-prostrate Mr Houllis's head the offender actually intended to kill Mr Houllis. Mr Wallach submitted, while that may be a possibility, the intent to kill had not been established beyond reasonable doubt and I should only find that the offender acted with the somewhat lesser intent to inflict grievous bodily harm. This issue is relevant to the assessment of objective seriousness. While there are no hard and fast rules, the intention to kill is generally regarded as connoting a more serious offence than the intention to inflict grievous bodily harm. However, no one factor is paramount.
3. From my findings of primary fact, I am satisfied beyond reasonable doubt that the Crown's contention has been established. As I have indicated in my findings of primary fact, when they arrived at Goulburn Place, Mr Houllis remained unsteady on his feet from the consequences of the earlier assault in the carpark. While there was no evidence at the trial of the content of the conversation at the corner of Goulburn Place and Bulls Road, the offender's act in ripping Mr Houllis's t-shirt from his back was an extremely aggressive one. The high kick to the head involved not only athleticism, but significant force. Perhaps on its own, that would not justify to the criminal standard an intent to kill. However, the violence soon escalated. Chasing Mr Houllis, tackling him and further assaulting him demonstrates a determination to go on with the attack. This indicates that the offender was not yet done with injuring Mr Houllis.
4. Whether Mr Houllis fell onto the roadway or was thrown down, it must have been obvious to the offender that he was in a very bad way. Had the offender taken the intervention of either of the passing motorists as a reality check to urgently seek assistance for Mr Houllis, perhaps the inference of a more serious intent could not have been drawn as the only rational inference available in all the circumstances established by the evidence. However, stomping on Mr Houllis's chest as he lay prostrate, completely defenceless on the ground, to my mind, is indicative of an intent that goes beyond even the desire to injure him really seriously, even accepting that that trauma did not contribute to death. And then twice stomping heavily on the head of a young man who is already obviously very seriously injured, in the light of what had gone on before, speaks of an entirely higher order of murderous intent. Those head stomps had about them, to my mind, the flavour of the so-called coup de gràce. Frankly, in my judgment, the only inference open is that those acts were done for the purpose of finishing Mr Houllis off. I am well satisfied beyond reasonable doubt that those blows were delivered with the intent to kill Mr Houllis.
5. Given the extensive nature of the catastrophic brain injury described by Dr Liston, I am also satisfied that those blows in fact, while not the sole cause, of themselves substantially contributed to Mr Houllis's death.

Other factors relevant to the determination of the objective seriousness of the offending.

1. I bear in mind the starting point for the assessment of objective seriousness is that Mr Houllis's life was unlawfully cut short. While the offender was not the instigator of the original agreement to confront Mr Houllis, restrain him, demand a refund and teach him a lesson by inflicting actual bodily harm upon him, he was a willing recruit and he had been recruited 24 hours before the rendezvous in one of the telephone calls with Hamdach the night before. He had plenty of time to consider the ramifications of Hamdach's plan and pull out. I infer he knew that his part in the plan was to be the enforcer; he was the one who was to mete out the punishment that Hamdach considered due to Mr Houllis and he did so by escalating, in the end, extreme physical violence using his bare hands and feet. While the absence of a weapon may ordinarily reduce objective seriousness, it is no easy thing to kill another adult human being by punching, kicking and stomping. It requires a determination to go on with it.
2. As I have said, the extreme violence was committed in public, during the mid-evening on a summer's night when other members of the community were out and about. Its apparent brazenness adds to its seriousness.
3. Although the offender had no quarrel with Mr Houllis over the supply of the non-genuine electronic earbuds, he was prepared to engage in these egregiously retaliatory acts over a consumer dispute that most people would regard as trivial. The offender allowed himself to be drawn into Hamdach's plan for exacting retribution from Mr Houllis and did so with apparent warmth for the task. This involved a flagrant example of taking the law into one's own hands, which can never be tolerated, let alone condoned.
4. I also bear in mind that the assault was relatively prolonged in separate locations between which Mr Houllis was also deprived of his liberty. Given these factors Mr Houllis must have been very afraid.
5. To my mind, the seriousness of the offending is also increased by the consideration that the offender directly, by persuading the well-intentioned passing motorists to move on, twice denied Mr Houllis the opportunity of receiving assistance for his injuries. To this should be added a consideration that Mr Houllis was left for dead when the offender must have known he was, to say the least, in a very bad way indeed.
6. I am of the view that the objective seriousness of this offending is above mid-range.

Victim impact statement

1. I have had the benefit of receiving a victim impact statement by Mr Houllis's mother, Janet Houllis, which she courageously read aloud in court. 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. It is obvious that the whole family suffer profound loss and ongoing grief. In particular, 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. No doubt they are exacerbated by the consideration that the 14th of February is her wedding anniversary and 14 February 2020, the eve of a planned family holiday that could never eventuate. 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 as a representative of the wider community.
2. On the application of the learned Crown prosecutor, I consider it appropriate to take her 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.

Family background

1. The offender was born in Lebanon in 1994. Accordingly, he was 26 when he murdered Mr Houllis and is now 29.
2. He was born the youngest of the four children of his parent's union. His mother's evidence is that he was a pleasant, kind, friendly and quiet child. His father had substance abuse issues involving alcohol and Benzodiazepines, which made him very agitated. Due to his father's substance abuse, his parents' marriage broke down when the offender was aged around 8 years. According to his mother's evidence, under Lebanese law, a father has custody of children over the age of 7. After the breakdown of the marriage, his father took the offender and his brother with him when he migrated to Australia, leaving his former wife and his daughters resident in Lebanon.
3. The offender told Dr Furst, whose report of 28 May 2023 was tendered as Exhibit 1 on the proceedings on sentence, that he had been sexually assaulted on one occasion after arriving in Australia in the toilet block of his primary school. He had not previously reported that trauma. Dr Furst described the long-time affect of child-sex abuse on the mental health of survivors.
4. While his father continued to have substance abuse issues and remarried in Australia, the offender completed high school obtaining his Higher School Certificate. He apparently completed a computer aided drafting course at TAFE after leaving High School.
5. Dr Furst said that there were no indications of intellectual disability, ADHD or any other condition requiring psychotropic medication during adolescence. But the offender reported irritability and anger in his teenage years.
6. The offender began to smoke cannabis around the age of 14 or 15, which grew into a regular habit. He commenced using methylamphetamine at the age of 19 which developed into a daily habit in his twenties. He used cocaine in his twenties approximately twice per week.
7. The offender's mother said that during her visits to Australia from Lebanon to see her sons, she witnessed instances of her ex-husband using corporal punishment on the offender. She felt that things were worse in the home when her ex-husband remarried and started a new family with his new wife.
8. At about the age of 20, the offender formed a relationship with a younger girl. She moved into the family home and became pregnant with the offender's son who was born in 2014. She later left them. His mother said the offender had difficulty coping with this setback. She travelled to Australia to see them and formed the view that neither father nor mother had the ability to look after a child. With their consent she took the child with her back to Lebanon and raised him for 4 years. In early 2020, she returned to Australia with the offender's son, the idea being that the parents would resume care of the child. However, the offender was arrested two weeks later for this offending and the offender's mother has resumed caring for his son. While at times the child has been cared for by the offender's stepmother, his mother is concerned as she is now aged 60 that the child will be left without anyone to look after him if his father has a long period of incarceration.
9. Dr Furst regarded the offender's childhood as "unfortunate and unsettled" (Exhibit 1, p 6). He regarded the circumstances that I have narrated above as "representing the type of disadvantage and negative role-modelling elucidated as a causative and mitigating factor by the High Court of Australia in [("Bugmy v The Queen")]". [13] While I accept the offender's upbringing was not free of care or from psychological challenges, and in particular, the instance of childhood sexual abuse cannot be overlooked, I find it hard to accept that it is the kind of profound childhood deprivation described by the High Court in Bugmy which has the effect of reducing his moral culpability for this offending. There is nothing in the narrative to suggest exposure to extreme violence and alcohol abuse during his formative years. Frankly, there is nothing in his criminal record, which I will come to in a moment, which suggests a pattern of violence based upon an inability to control violent impulses borne of his childhood experience. While the courts accept that the effects of child sexual abuse may have a long tail, there is no history of any psychological symptoms until his first period of incarceration in about 2015, which was largely relieved following his release from prison, although the offender gave Dr Furst a history of ongoing panic attacks on occasions.
10. Acknowledging that the offender's life may not have been an easy one, I am not persuaded that his experience constitutes the type of profound childhood deprivation which serves to attenuate moral culpability.

Substance abuse

1. Dr Furst diagnosed a substance use disorder in the offender. The offender told Dr Furst that he had been using non-prescribed Subutex (buprenorphine), illegally obtained in custody from other inmates when it was available, as a stress relieving mechanism. He had also been receiving prescribed buprenorphine injections every month as treatment for his addiction. It is apparent he continues to have substance abuse problems even in custody. Dr Furst also said that there was a large genetic component to his addiction, having regard to his father's history of alcohol abuse and a brother's addiction to illicit drugs.

Mental health

1. In addition to substance abuse disorder, as I have already indicated, Dr Furst has diagnosed a panic disorder with agoraphobia. The symptoms were first noticed during an earlier period of incarceration and symptoms have continued apparently during his current incarceration. There is no independent evidence of any treatment being sought for any psychiatric illness while the offender has been at large in the community and one is dependent entirely upon his accounts to Dr Furst, which are untested. I acknowledge that an offender has a right not to give evidence, but that decision can make it difficult to afford much weight to matters relayed to the Court solely through the history given to medical experts engaged for the purpose of giving evidence in sentencing proceedings. This is not to criticise either the offender or the expert. There is certainly nothing about the offender's conduct as shown in CCTV footage on 14 February 2020 which would support the diagnosis or suggest his condition contributed to his offending. Having said so, I acknowledge that mental illness may make one's experience of custody more difficult and panic attacks in the custodial environment where escape is not possible may increase the burden. I must say, it does not appear to me that the offender's mental health condition is such as would tend to reduce his moral culpability or render him a less suitable vehicle for general and specific deterrence.

Criminal history

1. The offender has a previous criminal record. It is not very extensive, but it is sufficient to disentitle him to any claim of leniency. There is little by way of violent offending other than a common assault conviction, for which he was imprisoned for 3 months relating to offending on 2 August 2018, resisting police and an aggravated break and enter to commit a serious indictable offence committed on 20 April 2013. The circumstance of aggravation seems to have been that he was in the company of another person at the time of the offending. There are a number of offences of driving whilst unlicensed or during disqualification, usually taken to be evidence of an attitude of disregard for the law. However, there are no arrest warrants for non-attendance at court or offences of breaches of bail on his record.
2. He has served gaol sentences in the past including for the common assault to which I have referred. He was convicted of taking part in the supply of a prohibited drug on 1 April 2014, receiving a suspended gaol term subject to supervision. For reasons that are not quite clear he was called up on that suspended sentence in May 2015 and sentenced to a term of imprisonment of 2 years duration concluding on 21 May 2017 with a non-parole period of 1 year.
3. When he was sentenced for the common assault, the offender was also sentenced in the Bankstown Local Court on 12 December 2018 for two firearms offences. The first was possessing an unauthorised pistol and the second of not safely keeping the firearm. The total effective sentence was one of 2 years commencing on 3 October 2018 and expiring on 2 October 2020 with a non-parole period of 15 months. He was first eligible for parole on 2 January 2020. He was serving the balance of his sentence on parole in the community when he murdered Mr Houllis. He had been released to his parole about 6 weeks earlier. That the murder of Mr Houllis occurred while the offender was on conditional liberty is a significant aggravating factor for sentencing purposes. His parole was revoked upon his reintroduction to custody on 26 February 2020 and with adjustment by the State Parole Authority, his sentence expired on 13 October 2020. From this date, the offender has been in custody solely by reference to the murder of Mr Houllis.

Remorse, rehabilitation and risk of re-offending

1. The offender has never given an account of his part in the offending. I, of course, accept he was entitled to exercise his right to silence when police requested an interview, at his trial and for the proceedings on sentence. There is no penalty for exercising one's legal rights. Everyone charged with a criminal offence is entitled to the right to silence and to require the Crown, if it can, to prove its case beyond reasonable doubt. Even so, that he has chosen not to give an account makes it difficult, if not impossible, to make favourable findings in relation to the important questions for the purposes of mitigation of remorse, prospects of rehabilitation and the risk of reoffending.
2. Dr Furst did not seem to receive or at least did not record much of a history at all as to why the offender became involved in Mr Hamdach's plan or his own account of his part in it. The best that can be deduced is that since his release from custody on 2 January 2020, he had resumed daily consumption of cannabis and the consumption of ice and gamma-hydroxybutyrate every 3 or 4 days. He may also have been using his father's benzodiazepines from time to time. This suggests the possibility of illicit drug intoxication which is not a mitigating factor. [14] Intoxication by the voluntary consumption of illicit substances may help explain offending conduct, which on the face of it, is otherwise inexplicable, but the evidence here is most indirect and even on the balance of probabilities it is difficult to find that the offender was intoxicated when he murdered Mr Houllis, but it is a possibility.
3. Otherwise, far from expressing any remorse or even regret, the offender expressed only resentment towards his co-offenders, Hamdach and Ms Kawtharani. He had known Hamdach since high school. He said that they set up Mr Houllis and that he had nothing to do with the set up. So far as it goes, I accept that.
4. The absence of remorse makes it difficult to express any confidence about the offender's prospects of rehabilitation and therefore about the risk of re-offending. When in custody for the firearms offences, the offender completed three modalities of the EQUIPS rehabilitation program, including that related to addiction. One must assume he was unsuccessful given the history he gave to Dr Furst about his reversion to substance abuse following his release to parole. Moreover, while he initially reported to Community Corrections as required the day after his release in January 2020, he did not act upon the referrals he received "to various services to address his criminogenic needs", by the time he reoffended. None of this is very encouraging.
5. Dr Furst, a very experienced consultant forensic psychiatrist has stated that the risk of the offender reoffending "largely relates to his capacity to achieve abstinence from drug abuse and to engage meaningfully in assertive mental health treatment". To a large extent this is probably correct. It is evident that he is yet to get his drug abuse under control even in custody. I am not so sure that his mental health issues are of a magnitude where they constitute an indicator for future offending one way or the other. I can only say that at this stage, the offender's prospects of rehabilitation are probably guarded. While recidivism for murder is rare, his general risk of reoffending cannot yet be rated as low.
6. I acknowledge that justice was facilitated by the way the trial was conducted. The only issue was whether the offender was the second person involved and no false issue was raised. I will take this into account in his favour.

Hardship

1. I accept that his father's incarceration will be a circumstance of hardship affecting the offender's son. However, I also take into account the evidence that the child has largely been raised by his grandmother and his step-grandmother, given his parents inability to cope with the demands of parenthood at the age they were when he was born. While one regrets the hardship suffered by any child, I am not of the view that the circumstances are exceptional as required to entitle me to take that matter into account in mitigation.

Parity

1. I referred earlier in this judgment to the sentences received by the offender's co-offenders. That the category of Hamdach's legal liability for murder was different from the offender's and Ms Kawtharani's conviction was for an entirely different offence does not nullify the possible application of the parity principle in this case. Parity is an aspect of the norm of "equality before the law" or "equal justice". Those principles require identity of outcome in cases that are identical and different outcomes in cases that are different, for sentencing purposes. [15]
2. In my judgment, Ms Kawtharani's case can be immediately put to one side. She was charged with a different and lesser offence, which did not involve any complicity in the murder of Mr Houllis. Moreover, she doubtless had a very compelling subjective case. As I remarked in my judgment when sentencing Hamdach, [16] she was essentially Hamdach's dupe in luring Mr Houllis to the fatal rendezvous. She had no knowledge or foresight that the fatality was likely, even as a possibility, and as I have said, was not charged on that basis. Given that she was a mother of three young children, each of whom had diagnosed health issues and who would be orphaned if their mother as well as their father were gaoled, extreme hardship to her family may well have loomed large as a significant mitigating factor. Her case is quite unalike the offender's case and even markedly different treatment of them is well justified.
3. While Hamdach was the undoubted instigator and promoter of the joint illegal enterprise, there are differences between him and the offender, which are significant for sentencing purposes. On my findings when I sentenced Hamdach, I formed the view that his criminal responsibility for murder was essentially, even if not entirely, derivative from the offender's primary responsibility for Mr Houllis's murder. I found that Hamdach was responsible for constructive murder, the foundational offence for which was the taking of Mr Houllis from the carpark and conveying him to the corner of Goulburn Place and Bulls Road before and after which this offender inflicted violence upon him. Hamdach effectively had no criminal record. He had previously lived a significantly pro-social life and generally had a more compelling subjective case. I also found that he suffered a significant psychiatric illness which reduced his moral culpability, the objective seriousness of the offending was low in the mid-range for constructive murder and I found that his prospects of rehabilitation were good and he was very unlikely to reoffend. While I will bear the relativity between the offending of Hamdach and the offender in mind, I do not regard their cases to be anywhere near identical for sentencing purposes. They are different and a different outcome is required.

Sentencing

1. Having regard to each of the facts, matters and circumstances relevant to sentencing I have outlined in these reasons. I accept that each of the purposes of sentencing articulated in s 3A of the sentencing legislation is in play. [17] In particular, given the nature of the offender's offending, retribution, denunciation and deterrence must loom large. Retribution for the callous, cruel and violent manner in which Mr Houllis was murdered. Denunciation, not only of the taking of Mr Houllis's life, but also for the taking of the law into his own hands in a friend's cause, which was so grossly disproportionate to the consequences of the offender's actions. And deterrence of others and of the offender from acting in the same way in the future.
2. I regret very much to say that the offender's subjective case is not compelling or even very persuasive. At age 26 at the time of the offending, he was certainly well past the age of maturity and from his experience of previous terms of imprisonment, must have been well aware of the consequences of criminal behaviour. As I have said, I am not confident about his prospects of rehabilitation and his risk of reoffending in a general way, but I have taken the promotion of his rehabilitation as well as the need for him to be accountable for his actions into account in fixing the sentence. As I have said already it will be necessary for me to sentence the offender to a term of imprisonment. It goes without saying that no other sentence could possibly be appropriate. The sentence will consist of a non-parole period and an additional term. As I have said, 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 including the steps he takes towards rehabilitation.
3. I am required by s 25C Crimes (High Risk Offenders) Act 2006 (NSW) to advise the offender that the 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, even 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.
4. I will not accede to the submission that I should backdate the commencement of the sentence to the date of the offender's arrest on 25 February 2022. As I have said, his previous sentence remained current, and his parole was revoked. After adjustment, the previous sentence did not expire until 13 October 2020. However, it seems to me that the application of the totality principle suggests that the proper approach to sentencing in the present case is to partially accumulate the sentence I will impose upon the balance of that term. He served an additional period of about 8 months in custody, and I propose to accumulate the sentence I am about to pass on the last 4 months of that sentence. I will commence the sentence for murder on 13 July 2020.
5. I am not satisfied that special circumstances justifying an alteration of the statutory relationship between the non-parole period and the additional term have been established in this case. [18] The required statutory structure of the sentence I am to pass will allow adequate time for rehabilitation and reintegration into the community after his release assuming that the offender will be able to establish eligibility for release at the first available date.
6. I have borne in mind both the maximum sentence and the statutory non-parole period.
7. Mr Karaali the jury convicted you of the murder of Ross Houllis. I sentence you to a term of imprisonment of 28 years, having a non-parole period of 21 years commencing on 13 July 2020 and expiring on 12 July 2041 with an additional term of 7 years commencing after the expiration of the non-parole period and expiring on 12 July 2048. You will be first eligible for release on parole after the expiration of the non-parole period on 12 July 2041.

Endnotes

1. R v Isaacs (1997) 41 NSWLR 374 (at 377-378); Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29.
2. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
3. Crimes Act 1900 (NSW), s 19A.
4. Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"), s 61.
5. CSPA, s 21(1).
6. CSPA, s 44.
7. CSPA, table appearing at the end of s 54D.
8. CSPA, s 54A(2).
9. (2011) 244 CLR 120; [2011] HCA 39 [27].
10. CSPA, s 54B.
11. CSPA, s 54B(2).
12. Muldrock v The Queen at [29].
13. (2013) 249 CLR 571; [2013] HCA 37.
14. CSPA, s 21A(5AA).
15. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]-[32].
16. [2023] NSWSC 298 at [85].
17. CSPA, s 3A.
18. CSPA, s 42(2). 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: 24 July 2023