Fact Finding on Sentence
16It falls to me as the trial Judge to determine punishment and, for that purpose, to make findings of fact relevant to sentencing. The primary constraint is that the view of the facts adopted by me for the purposes of sentencing must be consistent with the verdicts of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378.
17The Court may not take facts into account on sentence, in a way that is adverse to the interests of the offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which the offender relies upon to reduce penalty, it is enough if those matters are proved by the offender on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]-[28].
18The Crown submitted that the findings of fact can be identified readily from the verdicts of the jury, in light of the directions relevant to each charge. The Crown submitted that the Court should conclude that the jury accepted:
(a)the uncontested evidence of James Stiff, Maxine Rogers and Tracey Burgess;
(b)the evidence which implicated the Offenders given by Tamapua, Natuba and Eliza Brown;
(c)the evidence of Bautista, Kraak and Witness A to the extent that it supported the evidence of Tamapua, Natuba and Eliza Brown;
(d)telephone intercept evidence relevant to the conspiracy to murder and possess prohibited firearm counts against Khoury and Karimi (Counts 9, 11 and 12);
(e)evidence against Karimi of conversations recorded by listening devices located in the cells at the Liverpool Police Station on 4-5 July 2010.
19Put shortly, the Crown case involved a combination of direct evidence given by witnesses testifying as to the criminal involvement of the Offenders in the offences charged, CCTV and photographic evidence (from a variety of sources), records of telephone calls made from one number to another over a period of days and the locations of the calling and receiving telephones at the time, forensic evidence (including DNA, blood and fingerprint evidence) together with the telephone intercept and listening device evidence. In addition, the Crown relied upon inferences to be drawn from a variety of circumstances, which served to fortify the direct evidence implicating each Offender for each of the offences charged.
20Khoury gave evidence at the trial. His evidence supported the Crown case in a number of significant respects. To the extent that his evidence asserted innocent explanations for otherwise incriminating events, it is clear from the verdicts that the jury rejected it. This was understandable, as important aspects of Khoury's evidence were quite implausible. No other witness was called in Khoury's case.
21Karimi and Mir did not give evidence, nor were any witnesses called on their behalf at trial.
22In my view, the Crown case against each Offender was very strong. The verdicts of the jury were entirely understandable.
23Counsel for each of the Offenders did not contest that the following factual narrative arose from the verdicts of the jury, and could be found as facts for the purpose of sentence.
24I am satisfied beyond reasonable doubt of the following facts.
25In June 2010, Khoury was living with Walsh in a townhouse-style unit at Villawood. Living in another unit, at the same address, was Tuki and his partner, Kayla Rosso. The Villawood unit complex was referred to as "the Compound".
26In June 2010, Tamapua and his partner, Witness A, were residing at Claymore. Tamapua had been involved in robbery-type offences with other young men, some of whom came to be involved in the present offences. These included Vergara, Bautista, Kraak, MA and CB.
Khoury Meets Tamapua - An Alliance is Formed
27As at June 2010, Khoury was a drug dealer, dealing particularly in methylamphetamine (Ice). He was assisted by Karimi in his drug dealing. Khoury was also taking over shop premises at 182 Waldron Road, Chester Hill, to operate as a type of variety store.
28Prior to Khoury meeting Tamapua in June 2010, Khoury was looking to increase his drug supply customer base, and he had asked Manuel Puga to assist in finding customers. Mr Puga rented the Chester Hill shop which Khoury was taking over.
29In June 2010, both Khoury and Tamapua were independently associated with a drug dealer named Kevin, who resided in the western suburbs. A short time prior to 29 June 2010, Khoury and Karimi, together with another associate, Tuki, stood over Kevin, demanding money said to be owed to Khoury.
30Tamapua was present on this occasion. He intervened as he was receiving payment from Kevin to provide protection. In this way, Khoury and Karimi commenced their association with Tamapua.
31Tamapua was invited to Khoury's unit at Villawood (the Compound). At a meeting at the Compound, Khoury asked Tamapua what he did. Tamapua replied that he protected drug dealers and that a couple of his "boys" did home invasions. Khoury told Tamapua that he had some jobs in mind - shutting down drug dealers. Khoury encouraged Tamapua to bring his associates to participate in those jobs.
32In this way, an alliance was formed between Khoury (and his associates) and Tamapua (and his associates). It is clear that Khoury intended to utilise the services of Tamapua and his "boys" to carry out violent crimes on his behalf.
The Criminal Group Becomes Active
33Over the ensuing days, the goal of the criminal group (then including Khoury, Karimi, Tuki, Tamapua and others) included shutting down drug dealers so that Khoury could replace them with his own dealers. The home invasions which came to be undertaken on 29 June 2010 and 1 July 2010 were viewed by Khoury as tests, to see if the new recruits were capable of carrying out bigger jobs at a later time.
34Prior to the offences committed on 29 June 2010, Khoury introduced Tamapua to a man named Wally at the Compound. Khoury told Tamapua that Wally was someone he looked up to, and that Wally had links to the Bandidos Outlaw Motorcycle gang. Counsel for Khoury submitted that a finding should be made that Wally (not Khoury) was the head of the organisation to which Tamapua was recruited. The evidence of Wally's involvement is limited. It appears that he played a type of advisory role in events, but it was Khoury who was the effective leader and organiser.
35At a meeting at the Compound, Khoury told Tamapua to bring some of his associates the next day, as a person named Harry was to show him a house in Ashcroft thought to be occupied by a drug dealer.
Events on about 28 June 2010
36Shortly after, on about 28 June 2010, Tamapua attended the Compound with Vergara, Bautista, MA, CB and Ramos. Some of these persons had been involved in earlier criminal activity with Tamapua.
37Ramos had not been involved in earlier crimes (and had no prior criminal history). It appears he was a friend of Vergara. Ramos' role was to act as driver, using his family's Tarago Van, which was capable of carrying several people. It would be used, as a people mover, to convey groups of persons to and from the scene of serious crimes in the following days.
38Also present at the Compound were Khoury, Karimi, Tuki and Walsh. Khoury told Tamapua that someone was coming over to show them the Ashcroft address, which was to be invaded by the group. Soon after, Harry arrived and was introduced by Khoury as the person who would take them to the Ashcroft address.
39Khoury gave a shortened .22 rifle to Karimi to take with him on the job. This was the same weapon which was utilised again in the offences contained in Counts 3, 9, 11 and 12. Tamapua got into Harry's vehicle, and Karimi (with the firearm) got into the Tarago Van with Tamapua's associates. The vehicles travelled to Ashcroft and Harry indicated the house. The job did not take place, as Harry was told (by way of a telephone call) that no one was at home and that the dealer was out on a "drop".
40The vehicles returned to the Compound. Khoury was informed that the job did not take place as no one was at home. Khoury said that they should return the next day to carry out the job.
41Tamapua told Khoury that he (Tamapua) had a machete and, at Khoury's request, the machete was left in Khoury's unit at the Compound. This machete was utilised in events giving rise to Counts 3 and 9.
29 June 2010 - Count 1: Conspiracy to Rob Ernesto Bertolli
42Tamapua and his associates returned to the Compound on 29 June 2010. Present at that time were Khoury, Karimi, Walsh and Tuki.
43A little later, Tuki left and took his partner, Kayla Rosso, to Liverpool Hospital. As it happens, Tuki became involved in the events of that night, when the badly injured James Stiff was taken to the same hospital.
44Meanwhile, at the Compound, Khoury told Tamapua that he had a job which involved invading the house of a relative of a former girlfriend to steal firearms. This was the home of Ernesto Bertolli. Khoury had visited the house, and been shown various firearms which Ernesto Bertolli stored lawfully at those premises.
45Khoury informed Tamapua that there were a number of firearms in the premises. Khoury had a particular desire to obtain a .357 Desert Eagle semi-automatic handgun, which he had seen on the premises. He told Tamapua and his associates that they would be paid the price obtained for any other guns taken.
46The plan was that Khoury and Walsh would travel to the location in Khoury's Holden Commodore, and the others would follow in the Tarago Van driven by Ramos.
47Before leaving the Compound, Khoury took the shortened .22 rifle and a satchel with bullets from a cupboard in his unit. He gave the firearm and satchel to Karimi, who loaded the weapon. Also placed in the Tarago Van was the machete left at the Compound the previous day by Tamapua.
48The Tarago Van was driven away from the Compound by Ramos, with Tamapua, Karimi, Bautista, Vergara, MA and CB on board. The Tarago Van followed the Holden Commodore (containing Khoury and Walsh) to an area near a service station. At that location, Khoury walked to the Tarago Van, located nearby, and pointed out the home of Ernesto Bertolli. Khoury and Walsh then left in the Holden Commodore.
49Ramos drove the Tarago Van and parked near the Bertolli premises. Vergara, Bautista, MA and CB were designated to carry out this home invasion. Karimi handed Vergara the shortened firearm, and one of the others had the machete. The plan was to threaten persons in the house with the weapons, so as to force them to open the gun safe and to take the guns.
50The four men (armed with the weapons) left the Tarago Van, but returned soon after without having entered the premises, as it was believed that no one was at home.
51Karimi told them to go back to the Bertolli premises because Khoury wanted the Desert Eagle handgun. The four young men again walked towards the Bertolli premises, but returned again without doing the job. Karimi told them to get back into the Tarago Van, and that they would be in trouble when they got back, because Khoury specifically wanted the Desert Eagle handgun.
29 June 2010 - Count 2: The Home Invasion at Ashcroft on the Premises of James Stiff
52The Tarago Van returned to the Compound, and the shortened firearm and machete were taken into Khoury's unit. Karimi informed Khoury that the job did not go through. Khoury said that because they did not do that job, they could make up for it by doing the Ashcroft job. This involved the same premises indicated by Harry the previous day. Khoury picked up the machete and asked which of the men was going to take it. Vergara said that he would take it, and it was handed to him.
53Ramos once again drove the Tarago Van away from the Compound, with Karimi, Tamapua, Vergara, Bautista, MA and CB on board. They travelled to a location near the address of James Stiff at Ashcroft.
54At about 10.40 pm, Vergara (armed with the machete) and Bautista, MA and CB went to the front door of the Stiff residence. One of these men was armed with the shortened .22 rifle. The front door to the Stiff home was closed. An outer screen door was also closed, but not locked.
55One of the young men called out. James Stiff opened the front door. He saw that the closed screen door had been opened, and was being kept open by one of the men. Vergara then came from around the corner, holding the machete. James Stiff put his arm up, and Vergara forcibly struck his left arm with the machete, cutting it open from the wrist to the elbow.
56The four invaders then entered the premises. Also in the premises at the time was James Stiff's partner, his teenage son, Kaerin, and two teenage daughters.
57Vergara ran down the hallway, striking the walls to terrify the occupants. One of the invaders held the shortened firearm, covered by a red bandana. This person forced James Stiff onto a lounge and said, "Get off the lounge and I'll kill all of youse". James Stiff shouted at his children to stay in their rooms.
58At this point, his teenage son, Kaerin, came out of his room into the hall and saw two men, one with a machete and one with the firearm. The invaders were demanding money and drugs.
59Kaerin Stiff was forced into the main bedroom. He took from a drawer a plastic container, holding about three grams of cannabis, and gave it to one of the invaders. Another invader took a laptop computer from a lounge and then left.
60As a result of being struck with the machete, James Stiff had a large flap of skin and tissue hanging from his arm. After the invaders left, Kaerin Stiff wrapped his father's arm in a towel and drove him to Liverpool Hospital, arriving at 10.47 pm.
61At this time, Tuki was still at the hospital, and he observed the arrival of James Stiff. He associated the injured man with the home invasion planned for that night. Tuki made telephone calls on his mobile phone to Khoury, reporting on the arrival at hospital of the victim of the home invasion.
62Vergara, Bautista, CB and MA returned to the Tarago Van and, with Karimi, Tamapua and Ramos, they travelled back to the Compound. Whilst in the Tarago Van, Vergara told them how he hit the victim with the machete and there was blood everywhere.
Return to the Compound
63At the Compound, Karimi patted down the young men who had entered the house, to check that they were not concealing any of the proceeds of the offence. Karimi handed the proceeds to Khoury.
64Khoury asked what had happened. Vergara explained how he had struck the "fat boy" in the arm with the machete. He said there was blood on the machete. Khoury told the group of the call he had received from Tuki, in which Tuki had said that a man had come to the hospital and that his arm had just been chopped.
65Khoury weighed the cannabis taken from the Ashcroft house and gave it to the others to smoke. Karimi brought the shortened firearm into Khoury's unit at the Compound.
66Khoury and Karimi had not entered the Stiff house, although both played major organisational roles concerning the crime. The jury was satisfied that each of Khoury and Karimi was guilty of this offence by application of the principles of extended joint criminal enterprise, to which I will return later in these remarks.
67Tamapua remained at the Compound for a time after his associates left following the Ashcroft home invasion. Khoury spoke to Tamapua, in the presence of Karimi, of his plan to shut down drug dealers in south-western Sydney, so he could put in his own dealers to make money.
68Khoury told Tamapua that he should recruit more boys to assist in this process of shutting down dealers.
1 July 2010 - Counts 4, 5, 6 and 8: The Recruitment of Natuba, Mir Joins the Group, Two More Home Invasions and a Murder
69It was agreed that Tamapua would come to Khoury's shop at Chester Hill on 1 July 2010. Tamapua set out by train for Villawood with Vergara, Kraak and Witness A. Whilst travelling by train, Tamapua met Byquar, who agreed to accompany them. On arrival at Villawood, Tamapua received a telephone call from Tuki, who told them to go to Khoury's shop at Chester Hill.
70During the day on 1 July 2010, telephone contact took place between Karimi and his cousin, Mir. Eliza Brown (then 18 years old) was a friend of Mir. She had met Karimi through Mir.
71Eliza Brown had organised to meet Mir that day. During the afternoon, she received a call from Mir, asking her to pick up Karimi as well. She first picked up Mir and then Karimi. She was asked to drive them to Chester Hill.
72During the journey in Eliza Brown's vehicle, discussion took place in which Karimi said that he was part of a gang, and that Mir was going to join them. Mir told Eliza Brown that he was going to Chester Hill to meet other people who were part of the gang. Eliza Brown expressed concern to Mir, saying that this did not sound like a good idea.
73According to telephone records, Karimi, Mir and Eliza Brown arrived at Chester Hill at about 5.14 pm. They had something to eat and then attended Khoury's shop, where Eliza Brown saw persons, including Khoury and later Tamapua and his associates, after their arrival at the shop.
74At about 6.11 pm, Tamapua, Byquar, Vergara, Kraak and Witness A arrived at Chester Hill and went to Khoury's shop. At the shop, Tamapua was introduced to Mir by Karimi who said, "This is Mack, my cousin. He's joined in. He's with us now".
75Tamapua introduced Byquar to Khoury.
1 July 2010Count 4: Khoury Recruits Natuba
76Khoury asked Byquar if he had any other boys. He told Byquar about the gang (called the "United Brothers" or "United Brotherhood") and that he wanted to expand it. Byquar told Khoury that he had some boys in Doonside. Byquar had in mind his cousin, Natuba. Khoury told Byquar to contact persons to come down to the shop, and that he would put them through an initiation test.
77As a result of this conversation, a series of text messages passed between Byquar and Natuba, between 6.22 pm and 6.42 pm on 1 July 2010. The information in texts sent by Byquar included the following:
- "U want 2 recruit 2 united! don't call txt me"
- "New game cumin up! Connected to benditoz n that!"
- "cum meet some of the boiz, call me"
78Telephone contact followed between Byquar and Natuba, and Natuba agreed to come to Chester Hill.
79At Karimi's suggestion, some of the persons in Khoury's shop agreed to attend the nearby Chester Hill Hotel to await the arrival of Natuba.
80Shortly after 7.00 pm, Tamapua, Karimi, Mir, Eliza Brown, Byquar and Kraak entered the Chester Hill Hotel (with their arrival and subsequent movements at the hotel being captured on the hotel's CCTV). Whilst in the hotel, Karimi took Eliza Brown aside, and said that she should never tell anyone about what she had seen or heard, because he would not know what they would do to her if she did tell.
81Natuba arrived at the hotel at about 8.25 pm.
82At about 8.49 pm, Eliza Brown left the hotel with Mir and Karimi. They walked to her car. Mir said to Eliza Brown that he was going to stay with the boys. She asked him why, and he said so he could prove himself worthy to them. After Eliza Brown left in her vehicle, Karimi and Mir (now accompanied by Tuki) returned to the Chester Hill Hotel at about 9.12 pm. By that time, Vergara had also arrived at the hotel.
83At about 9.22 pm, Karimi, Mir and Tuki met up inside the hotel with Tamapua, Byquar, Vergara, Kraak and Natuba. Tuki told Tamapua to get the car ready and to ring Ramos. Calls were then made to Ramos on Vergara's phone.
The Group Returns to Khoury's Shop - Agreement Concerning the Targets for Home Invasions and the Nominated Invaders
84By about 9.45 pm, all persons had left the hotel and had returned to Khoury's nearby shop, a few doors away in Waldron Street, Chester Hill. At the shop, Natuba was introduced to Khoury and discussion took place about the jobs for that night.
85Karimi asked Khoury, "Do you want us to do the Jacob job tonight?". Khoury replied, "Yes". This was a reference to Jacob Burgess, the brother of the deceased, Kesley Burgess. Karimi spoke of there being "ice", drugs and weapons at that house.
86Tamapua said, "I've got a drug dealer as well. His name is Beanie Boy. He lives in Warwick Farm". It was apparent from Tamapua's evidence that "Beanie Boy" was disliked by Tamapua, who was keen to include his premises as a target for a home invasion.
87At about 10.21 pm, Ramos and MA arrived at the Chester Hill shop in the Tarago Van.
88Discussion took place between Khoury, Tamapua and Karimi as to who would do the jobs. Karimi said that the newer people to the group had to prove themselves by doing a home invasion. Karimi suggested that Kraak should go. Kraak replied that he did not have to prove himself to anybody. Tamapua said to Khoury, "Do you reckon we should put these guys through initiation for the Jacob job and the Beanie job?". Khoury replied, "Yes - we want to see them in action, see if they've got the balls to do these types of jobs".
89It was decided by Khoury, Tamapua and Karimi that the persons to enter the houses that evening would be the new recruits, Natuba and Mir, together with Byquar and MA.
90Khoury's shop was being stocked with various items, including knives and meat cleavers. Khoury brought out four large Elephant brand meat cleavers, together with gloves. These were given to Natuba, Mir, Byquar and MA.
91At about 10.27 pm, the Tarago Van, driven by Ramos, departed with Tamapua, Karimi, MA, Natuba, Mir and Byquar on board.
1 July 2010 - Count 5: Home Invasion on Premises of Maxine Rogers - The "Beanie Boy" Job Goes Wrong
92The Tarago Van travelled to Warwick Farm, where Tamapua pointed out the unit complex where it was believed that "Beanie Boy" resided.
93Byquar, Mir, Natuba and MA, each armed with a meat cleaver, went to the front door of a unit occupied by Maxine Rogers (aged 41 years). The invaders believed, mistakenly, that "Beanie Boy" lived there.
94Maxine Rogers became aware of persons at her door and she opened it. As she did so, the invaders pushed open the door and entered the unit. At the time, Maxine Rogers' two young daughters (aged nine and 10 years) were also in the unit. Natuba stayed with Maxine Rogers, whilst the other three invaders searched the premises for drugs and money.
95One of the invaders held a meat cleaver to Maxine Rogers' throat, demanding to know the location of drugs and money. Whilst this was happening, the children told the invaders that they had the wrong house and that the place next door was the one they were after. A laptop computer and mobile phone were stolen from Maxine Rogers.
96The four invaders were heading to the next-door premises, but it was decided that they not do so, because the screaming from Maxine Rogers' unit would have alerted the occupants.
97On return to the Tarago Van, the invaders informed Tamapua and Karimi that they had entered the wrong premises.
98Tamapua then attempted a number of telephone calls, in an effort to locate "Beanie Boy".
Karimi Guides the Group to the Burgess House
99Back in the Tarago Van, after the botched home invasion of Maxine Rogers, Karimi said that the group should travel to Merrylands and pick up his cousin, who knew the address for the "Jacob job". Karimi directed Ramos to drive the Tarago Van towards an address in Wallace Street, Granville, where Karimi's uncle and cousins resided.
100Whilst travelling to this location, Karimi's telephone was used to make a number of calls, including a call at 11.08 pm to a phone associated with his cousin, Abdul Wahid Karimi. Mitchell Kearns gave evidence at the trial that he had previously informed Abdul Wahid Karimi, that the Burgess house at Lurnea was the place where (at a time before July 2010) he obtained cannabis.
101Near the address at Wallace Street, Granville, a white two-door Toyota Echo pulled up near the Tarago Van. Karimi and Tamapua got into the white vehicle, and Karimi introduced the driver to Tamapua as his cousin. As at 1 July 2010, a white two-door Toyota Echo was registered in the name of Karimi's cousin. Police later located that vehicle parked outside the premises at Wallace Street, Granville. I am satisfied that it was Karimi's cousin's vehicle which met the Tarago Van on the night of 1 July 2010.
102At about 11.11 pm, the Tarago Van and Toyota Echo pulled into a service station at Merrylands. Whilst at the service station, Karimi told persons in the Tarago Van to follow the white car. The two vehicles travelled in convoy to Lurnea, arriving at around 11.36 pm.
103The two vehicles drove down Clingan Avenue, Lurnea, and parked in a nearby street. A security camera at a nearby house in Clingan Avenue recorded the arrival and departure of two vehicles travelling together that night. These were the Tarago Van and the Toyota Echo approaching and then fleeing the Burgess house.
104Karimi got out of the Toyota Echo and spoke to the persons in the Tarago Van. He made sure that they knew which house was to be entered, and told them to grab drugs and money, and warned that there may be a shotgun, which they should also take.
1 July 2010 - Counts 6 and 8: Home Invasion and Murder of Kesley Burgess and Robbery of Tracey Burgess
105At some time after 11.15 pm, Byquar, Mir, Natuba and MA (each carrying a meat cleaver) went to the door of the Burgess residence.
106Inside the Burgess premises at the time were Tracey Burgess (47 years old), her son, Kesley Burgess (25 years old), his girlfriend, Kristal McLachlan (24 years old), and a family friend, Gary Venus (56 years old). Gary Venus was in the lounge room, and other members of the household were in their bedrooms. Jacob Burgess had left the house a short time before the home invasion.
107Byquar knocked on the front door of the Burgess home whilst Natuba waited at the side. Gary Venus opened the door and was immediately pushed backwards onto the floor. Byquar, Natuba, MA and Mir then entered through the front door and moved to the lounge room, each armed with a meat cleaver.
108Tracey Burgess had heard the knock at the front door and emerged from her bedroom to see Gary Venus being knocked to the floor, and then kicked by one of the invaders. Tracey Burgess ran down the hallway towards the bedroom of Kesley Burgess.
109Natuba moved up the hallway and confronted Tracey Burgess with his meat cleaver, screaming that he wanted money and drugs. Natuba grabbed Tracey Burgess by her nightie and forced her into her bedroom, smashing items on her dressing table. They moved back to the hallway, where Natuba threatened to kill her if she did not give him what he wanted. Natuba then swung the meat cleaver which struck the hand of Tracey Burgess as she used her hand to cover her face.
110Kristal McLachlan was in the bedroom with Kesley Burgess. They had been watching television. She heard banging and screaming. Kesley Burgess left the bedroom and pushed his mother back into his bedroom.
111Kesley Burgess picked up a sword (which had been in the house) and told his mother and his girlfriend to stay in the bedroom. Both did so, and they heard screaming and banging coming from outside the bedroom.
112Natuba was in the hallway when Kesley Burgess emerged from his bedroom with the sword. Kesley Burgess struck Natuba to the shoulder, wounding him. Natuba backed away and he noticed Byquar, who had been in the kitchen, hit Kesley Burgess in the back a couple of times with his meat cleaver. Natuba also saw Mir hit Kesley Burgess with his meat cleaver a couple of times to the front of his body. Kesley Burgess fell to the floor. Natuba flipped over a coffee table and yelled, "Where's the drugs, where's the money?". Kesley Burgess replied, "We don't have any". Natuba then hit Kesley Burgess once to the leg with his meat cleaver.
113At one point, whilst the invaders were attacking Kesley Burgess with meat cleavers, Byquar swung his meat cleaver at Kesley Burgess, but missed, striking his own foot and thereby causing a deep cut which bled freely.
114By this time, Tracey Burgess had emerged from the bedroom. She saw three of the invaders standing over Kesley Burgess, chopping him with their meat cleavers. Tracey Burgess screamed out, "Kill me, kill me, not him. Kill me". She observed one of the men looking at her with what she described as a "half laugh".
115The fourth invader was in the kitchen. Tracey Burgess had fallen to her knees, but she rose and entered the kitchen, picking up a Jim Beam tin (in the shape of a racing car) which contained cannabis. She threw the tin at one of the invaders saying, "That's all we've got. Take this". This invader took the tin, and also a handbag and beach bag which were in the kitchen. One of the invaders yelled, "Let's go" and they left.
116Whilst the invaders were in the house, Tracey Burgess asked Kristal McLachlan to call "000" and she did so. During the call, one of the invaders entered the bedroom and demanded that she get off the phone or he would kill her. Kristal McLachlan threw the phone at this person, who put it in his pocket.
117After the invaders had left, Tracey Burgess screamed out to Kristal McLachlan to call an ambulance. Further "000" calls were made. The recordings of the "000" calls reveal the distressed sounds of the voices of Tracey Burgess and Kristal McLachlan calling for urgent assistance. The terror instilled in these persons, as a result of these vicious crimes, is manifest from the recordings of their calls for help.
118Tracey Burgess knelt beside her son. The ferocious nature of the attack (as described, in particular, by Tracey Burgess and Natuba) is supported by the crime scene photographs. Tracey Burgess attempted to stem the flow of blood by wrapping towels around the injuries to her son. The last words spoken by Kesley Burgess to his mother were, "I'm going to pass out Mum, I love you".
119Senior Constable Churchill, who attended the premises at about 11.50 pm, observed Kesley Burgess lying on the floor covered in blood. He observed a large wound to the left leg. The laceration to the left wrist had almost severed the hand.
120Ambulance officers attended and attempts were made to stem the blood loss. Kesley Burgess was conveyed to Liverpool Hospital. He passed away at 9.15 pm on 2 July 2010.
121Dr Wills conducted a post-mortem examination on 3 July 2010. Kesley Burgess died as a result of eight incised injuries. The combination of injuries, particularly where there had been underlying vascular damage, resulted in blood loss, hypotension and ultimately cardiac arrest, which was relatively prolonged, prior to cardiac output being re-established during emergency assistance. Hypoxic brain injury was sustained as a consequence.
122The incised defects in the bone to both wrists, and the posterior aspect of the left lower limb bones, indicated the application of severe force. The wounds to the upper limbs were defensive in nature, and indicated that Kesley Burgess was conscious and mobile for at least some time during the attack. The combination of the incised injuries indicated at least seven separate wounding actions.
The Invaders Flee the Burgess Home and Return to Khoury's Shop
123Byquar, Natuba, Mir and MA left the Burgess house. Mir entered the Toyota Echo in which Karimi and Tamapua were waiting with the driver. Mir climbed over Tamapua and sat in the back seat. Tamapua observed that Mir was holding a meat cleaver and was covered in blood. The other invaders entered the Tarago Van and the two vehicles returned to Khoury's shop at Chester Hill.
124On their return to the Chester Hill shop, it was observed that both Natuba and Byquar were injured. Khoury, Tuki, Vergara, Walsh, Kraak and Witness A were present in the shop. The four men who had invaded the houses entered the shop, as did Tamapua and Karimi. The property taken from the two home invasions was brought into the shop.
125The meat cleavers were also brought into the shop. I am satisfied that the meat cleavers remained at Khoury's shop for a period. As will be seen, three of the meat cleavers were discovered at Khoury's premises at Ingleburn when he was arrested on 29 September 2010.
126Khoury asked what had happened and Karimi said, "The job's done". Natuba told Khoury how he had injured his shoulder, as did Byquar, who said that he had attempted to hit the victim, missing him and striking his own foot. Mir also discussed what he had done, saying, "Did you see how I got the cunt" and "I got him in the arms". Blood was observed on Mir's clothing.
127Discussion took place concerning the need for Natuba to receive medical treatment. Khoury told Natuba not to go to Liverpool Hospital, as it was too close to the Burgess house, and that he should go to Bankstown Hospital instead. A false story was devised to explain how Natuba had come to suffer his injuries.
128It was agreed that Ramos and Vergara would take Natuba to Bankstown Hospital. Ramos drove them there in the Tarago Van, and Natuba and Vergara went inside.
129Mir called Eliza Brown asking that she pick him up. She collected Mir across the road from Khoury's shop. She noticed blood on Mir's pants. In the car whilst travelling to Granville, Mir told Eliza Brown that he had gone with a group of people to stop a guy from dealing weed, and that they had got into a fight and the guy had got cut and some other guy got the top of his shoulder cut and had to go to hospital. Eliza Brown asked Mir, "Why does it matter if someone deals weed?" and Mir replied, "Because that person wasn't dealing for the person who runs the area".
130Khoury's associate, Wally, arrived at the Chester Hill shop in the early hours of the morning of 2 July 2010. Khoury informed Wally that one of the boys had been sent to hospital. Discussion ensued in the presence of Tamapua, Kraak and others concerning future jobs. Wally enquired as to whether the boys were ready and Khoury responded, "Not now Monday". (The next Monday was 5 July 2010).
131Tamapua returned to the Compound and further discussion took place with Khoury and Wally. Wally said to Khoury, "These boys must be ready for the big jobs". In the course of discussion as to the nature of these jobs, Wally said in Khoury's presence, "Just stuff to do with money, extortion, kidnapping and stuff like that".
Police Speak to Natuba at Bankstown Hospital
132At about 1.15 am on 2 July 2010, police attended Bankstown Hospital for a purpose unrelated to this matter. Whilst there, police were informed that an injured man (Natuba) was in the Emergency Department. Police spoke to Natuba, who gave a false account as to how he came to be injured.
133At about 3.45 am, police again spoke to Natuba who continued to give a false account.
134At about 4.00 pm on 2 July 2010, a video interview of Natuba was conducted by police at Bankstown Hospital, at the commencement of which he was told he was under arrest for the home invasions of the Maxine Rogers unit and the Burgess house. At this point, Natuba told police that his earlier account was false and that he had been involved in these offences. Thereafter, Natuba co-operated with police in ways which proved vital to the shutting down of the criminal group.
135During 2 July 2010, police initiated telephone intercepts with respect to the telephones of Tamapua, Vergara, Natuba and Kraak.
Events on 3 July 2010
136A number of intercepted telephone calls involving Khoury, Tamapua, Karimi and others revealed an ongoing interest in drug supply on 2 and 3 July 2010. By way of example, in a conversation at about 1.30 am on 3 July 2010, Khoury informed Tamapua that he had not sold "Coca Cola" (cocaine) for five or six months, and that he was only stocking "Sprite" (ice) (Exhibit DA, Tab 7).
137On the morning of 3 July 2010, major media outlets reported that Kesley Burgess had died.
138On the afternoon of 3 July 2010, Khoury took part in a meeting in his unit at the Compound, attended by Tamapua, Byquar, Unasa and others. Unasa had been brought to the Compound by Byquar as a potential new recruit to the United Brotherhood. Khoury was described to Unasa as the ringleader. Unasa described Tamapua as being an imposing presence at this meeting as well. It was known by that time that Kesley Burgess had died as a result of the injuries sustained in the home invasion on 1 July 2010.
139It is noteworthy that this meeting took place at Khoury's premises, for the purpose of recruiting Unasa for criminal purposes, despite the fact that Khoury and others were well aware that the home invasions committed in the previous days had seen one man severely injured (James Stiff) and another man killed (Kesley Burgess).
140Knowledge of these consequences did not operate to deter the planning by Khoury (in particular) for further offences to be committed.
3-4 July 2010 - Counts 9, 11 and 12: Offences Committed by Khoury and Karimi Relating to an Event at Miller
141On the evening of 3 July 2010, Unasa and Byquar attended the Michael Wenden Aquatic Centre at Miller where a Polynesian night was to be staged to raise funds. About 350-400 people of Polynesian descent, including families and children, attended the event where food and alcohol were being consumed and security guards were provided.
142Late in the evening of 3 July 2010, an incident occurred which led Byquar to make phone calls, urgently summonsing assistance from members of the criminal group.
143The Crown case with respect to Count 9 (in particular) was based very largely on telephone intercepts between about 11.28 pm on 3 July 2010 and 1.25 am on 4 July 2010. This evidence graphically portrayed what was being said by relevant persons. It is fair to describe these events as a call to arms by Byquar, responded to quickly by Karimi, Khoury, Tamapua, Vergara and Tuki. Armed members of the group were deployed quickly to Miller to assist Byquar and Unasa.
144A selection of intercepted telephone calls provides a clear contemporaneous record of what was on foot. At about 11.28 pm on 3 July 2010, Byquar rang Karimi in a very agitated state, indicating that he needed "guns down here right now". Byquar said to Karimi, "We need guns here right now, bro ... because there's gonna be a killing spree and we're gonna look after one of your boys - remember the boy that came today?". This was a reference to Unasa, who had attended the meeting at Khoury's premises earlier that day and had been recruited to the group. Karimi said that he was going to, "call the boys".
145Soon after, at 11.38 pm, Tamapua rang Unasa, looking for Byquar.
146About a minute later, Byquar again rang Karimi, with Byquar explaining, "Guns, knives or anything, bro. We need it down here now". Byquar stated, "we're gonna fucking kill these cunts, bro". The conversation continued (Exhibit DA, Tab 21):
Byquar - "Oy, he's our boy [Unasa]. He's our family, remember?".
Karimi - "Yeah, yeah. Yeah, relax. I'm coming, I'm coming".
Byquar - "Lad, tell them: bring, bring knives, guns or anything, bro. We're, we're ...".
Karimi - "All right".
Byquar - "... gonna kill them tonight. Yeah?'.
Karimi - "All right, no worries. Yeah ...".
Byquar - "All right?".
Karimi - "... yeah, yeah, all good. All right, all right".
147At 11.42 pm, Tamapua rang Vergara, indicating that Byquar was in trouble and that he should hurry up.
148At 11.43 pm, Tamapua rang Unasa, attempting to locate Byquar. Unasa said that Byquar was "gathering up all the boys".
149At 11.47 pm, Byquar again rang Karimi to emphasise the need for immediate action.
150In subsequent telephone calls involving Tamapua and others, Tamapua stated that he was "going to go fuckin' shut these cunts up", and there was discussion concerning the picking up of items for that purpose.
151At 11.56 pm, Byquar spoke to Karimi again concerning the despatch of persons to assist Byquar. The conversation included the following (Exhibit DA, Tab 28):
Byquar - "Bro, you got the choppers and shit? You got the choppers?".
Karimi - "I got it - brother! Just give me ten minutes, man. I'll call you back".
152In a conversation between Tamapua and Byquar at 00.07 am on 4 July 2010, Byquar explained that persons were waiting outside for Unasa so as to "jump him", and that Byquar was "waiting for youse boys so you can come down we'll just chop the fuck out of all of them". There was discussion as to what was being brought for this purpose, with Tamapua saying, "I'm not bringing the slicing, I'm bringing the other one". Byquar replied, "... bring my slice for me so I can just slice one cunt".
153At 00.11 am on 4 July 2010, Byquar spoke to Karimi by telephone, with Khoury being present at Karimi's end of the line. Khoury spoke to Byquar directly and asked him what was going on. The conversation included the following (Exhibit DA, Tab 35):
Khoury - "Sonny [Byquar], what's going on?".
Byquar - "Yeah, bro, we're on a (unintelligible). Few cunts try and jump and the other boy that come today?".
Khoury - "Can't hear".
Byquar - "You know the boy, the boy that came today? You know one of, one of the boys that came today? John-John [Unasa]".
Khoury - "Yeah, yeah".
Byquar - "Yeah, yeah. They're trying to jump him outside. We want to kill these cunts outside, bro. We want to kill them. (Unintelligible). Samoan like, it's like they're celebrating something to help some poor kid but these cunts are trying to fuck, you know fuck with them. So we will, soon as you get here, bro, we're just going to kill the cunts".
Khoury - "All right".
Byquar - "Yeah?".
Khoury - "All right, no worries. It's all ready to rock and roll".
Byquar - "Make, make sure you call me like five minutes before, yeah?".
Khoury - "So anyway, listen, listen, listen".
Byquar - "Yeah".
Khoury - "You're all right but, yeah?".
Byquar - "Yeah, I'm sweet, I'm sweet. I'm fucking, I'm ready to fucking kill these cunts, bro".
Khoury - "Yeah, all right, no worries. That's all good".
Byquar - "Want to slash a (unintelligible) fuck going to kill him, bro".
Khoury - "All right, bye".
Byquar - "All right. (Sounds like) Eetsway, call me, call me soon as, soon as you get here".
Khoury - "Yeah, yeah, they're all getting off too".
Byquar - "Yeah, yeah five minutes before you get here, [sounds like] eetsway, eetsway".
Khoury - "All right, all right".
154At 00.12 am, Tamapua spoke to Vergara by telephone with Khoury in the background. There was discussion about picking up the "ungay" (gun) with Vergara stating that they were "leaving now".
155Whilst these telephone conversations were taking place, Tuki and others had set off in a Ford Laser owned by Tuki's partner. The vehicle travelled to Claymore to pick up Tamapua. Thereafter, the Ford Laser headed for Miller, driven by Tuki and with Karimi, Tamapua and Vergara in the vehicle. Also in the vehicle was the shortened .22 calibre long rifle (Counts 11 and 12) which had been collected from Khoury's unit. In addition, a large machete owned by Tamapua was in the vehicle. This machete had been used to attack James Stiff at the Ashcroft home invasion on the evening of 29 June 2010. The shortened .22 rifle had been used in that offence as well.
156As the Ford Laser drew closer to Miller, further telephone conversations took place.
157At 00.48 am, Byquar spoke to Karimi by telephone. Karimi explained that they were close but enquired as to whether there were any "oppercays" (coppers) in the vicinity. Byquar confirmed that there were and suggested that they ".. wait up the road and hide the ungay". Karimi said, "All right, I'm going to go, I'm going to go up the road, hide it and then walk down". Karimi enquired again as to how many police were in the vicinity to which Byquar responded, "There's heaps". Karimi said, "Fuck me dead. How the fuck are we going to do this, bro?". Shortly after, Karimi handed the telephone to Tamapua (also in the Ford Laser) and Tamapua and Byquar discussed the precise location.
158Further calls ensued between Unasa or Byquar (on the one hand) and the occupants of the Ford Laser.
159At about 1.15 am on 4 July 2010, police stopped the Ford Laser in Miller. Tuki, Tamapua, Karimi and Vergara were removed from the vehicle. By that time, there was understandable concern on the part of police, who were monitoring the telephone calls, that very significant acts of violence would occur if the four men in the Ford Laser joined up with Byquar at Miller. Located in the vehicle were the machete in a sheath and the shortened .22 calibre long rifle, together with a knife.
160Subsequent forensic examination of the machete revealed a DNA profile of James Stiff. Khoury's DNA was located on the shortened .22 calibre long rifle.
161Tuki, Tamapua, Karimi and Vergara were all placed under arrest.
162At 1.25 am, Khoury spoke to Byquar by telephone. Khoury enquired as to what was happening, observing, "They should've been there ages ago. What's going on?". The conversation continued (Exhibit DA, Tab 49):
Byquar - "Well, that's, that's the thing, bro. I'm waiting for youse here. Where are youse?".
Khoury - "What do you mean, brother? All the boys, with Terra [Tamapua] and that all fucking rang me up half an hour ago from ah, Miller".
Byquar - "Yeah, that's sweet. Can you call him and tell him to call me?".
Khoury - "I've been trying to get through to them, none of them are answering their phone".
Byquar - "Yeah, no-one's answering their phone, bro. That's the thing 'cause its 'cause there's heaps of oppers here. That's why I, we got to move out of this area and then so they can pick me up somewhere".
Khoury - "All right. All right, bye".
163Khoury and Byquar were unable to make telephone contact with the occupants of the Ford Laser because the police had intercepted the vehicle and arrested its occupants.
164The contemporaneous content of these telephone calls, which I have recited in some detail, demonstrates the serious criminal intent of those involved, including, for present purposes, a clear agreement on the part of Karimi and Khoury with others to murder a person on the other side of Byquar's dispute at Miller. Both Khoury and Karimi demonstrated a consistent preparedness to send armed reinforcements to assist Byquar, in the knowledge that lethal force was intended to be used. All of this, of course, occurred in the context of concern for Unasa, who had been recruited to the criminal group effectively run by Khoury just hours before these events.
165At about 1.30 am, police approached Byquar in Miller and placed him under arrest.
29 June 2010 - 4 July 2010 - Counts 11 and 12: Possession of Shortened Firearm by Khoury and Karimi
166In relation to Count 11, the jury was satisfied that Karimi was in possession of the shortened firearm that was to be used at Miller, having picked it up from Khoury at Khoury's premises at the Compound.
167The Crown case in support of Count 12 was that between 29 June 2010 and 4 July 2010, Khoury possessed the shortened .22 calibre long rifle at his Villawood premises. In this respect, I am satisfied that the jury accepted the evidence of Tamapua and Bautista concerning the location of this firearm at Khoury's premises, taken with the DNA evidence that indicated that Khoury had held it, and the telephone intercept evidence of events in the late evening of 3 July 2010 and the early hours of 4 July 2010, where the firearm was collected from Khoury's premises for the purpose of it being taken to Miller, to be used in this planned violent confrontation.
Listening Device Evidence Against Karimi
168Following the arrests at Miller in the early hours of 4 July 2010, Karimi, Vergara, Tamapua, Tuki and Byquar were taken to Liverpool Police Station. Listening devices used lawfully under warrant were located in the cells at the Police Station. Conversations were recorded on 4 and 5 July 2010. This evidence was admitted at trial against Karimi only.
169Over a period of time, Karimi discussed with one or more of the others how they came to be arrested, and how the police could link them to the home invasions on 1 July 2010. Karimi and others concluded that Natuba must have been assisting police with telephones being tapped.
170At one point, Karimi enquired of Tuki, "Didn't you call any of the brothers" and there was discussion that "the Compound" had been watched.
171In a context relating to the Lurnea matter, Karimi said to Tuki, "I'm goneski".
172A little later, Karimi told Tuki that he was "fucked sideways ... for the ungay", a clear reference to the shortened firearm.
173Karimi and Tuki discussed the "Lurnea" job in a manner indicating clear knowledge on Karimi's part of that offence (the Burgess home invasion).
Further Investigative Steps on and After 4 July 2010
174On 4 July 2010, police executed a crime scene warrant at Khoury's shop, and forensic examination of the premises proceeded over the next three days. This examination found several sources of human blood and extensive evidence of blood clean up. Subsequent analysis identified the blood as being that of Natuba and Byquar.
175The Jim Beam tin taken from the Burgess home was found by police inside Khoury's shop with blood smears on it. Fingerprints belonging to Karimi, Khoury and Walsh were identified on the tin, as well as the DNA and fingerprints of Kesley Burgess.
176Fingerprints belonging to Khoury, Tuki, Vergara, Karimi, Walsh and MA were found at different areas in Khoury's shop.
177The search of Khoury's shop revealed boxes of Elephant brand meat cleavers, of the type used in the offences committed on 1 July 2010.
178Forensic examination of the Burgess home found the blood of Natuba on a coffee table in the lounge room where Kesley Burgess had been attacked.
179Tamapua told police that he had taken Kesley Burgess' mobile phone with blood on it. After Tamapua's arrest, Kraak placed the mobile phone inside a sock and secreted it at the rear of a neighbour's property in Claymore. Police attended that location and found the mobile phone, with subsequent analysis identifying Kraak's DNA and Byquar's blood on the mobile phone.
180On 22 July 2010, police mounted a large-scale operation where Mir, Ramos, MA, Tamapua and Byquar were arrested and charged with the murder of Kesley Burgess.
181On 29 September 2010, police arrested Khoury and Walsh at Khoury's premises at 7/48 Lancaster Street, Ingleburn. A search warrant was executed at those premises, and a bag was located which contained three Elephant brand meat cleavers wrapped in a towel.
182Forensic analysis of those meat cleavers identified Tuki's fingerprint on the blade of one, Tuki's DNA on the handle of a meat cleaver and Kesley Burgess' blood on the blade of one of the meat cleavers.