Having been arrested on 13 February 2018, Mr Keleklio entered a plea of not guilty and was committed for trial 28 months later on 10 June 2020. He changed his plea to guilty on 16 April 2021, 38 months after his arrest. He asks that his sentence be reduced by 15% to reflect the utilitarian value of his plea of guilty. [42]
An affidavit by Mr Keleklio's solicitor described the history of his client's legal representation in the matter. It seems that the lawyers representing him from December 2019 had to deal with illness and being busy with other matters, and this contributed to the subsequent delay in entering the plea. An incomplete (and, with respect, unconvincing) explanation, not supported by any evidence, was advanced in oral submissions as to why a plea was not entered prior to December 2019. [43] There is no justification for more than a 10% reduction of sentence for the plea.
Mr Keleklio was born in New Zealand in 1980 and is now aged 42. He has a criminal history that commenced in the Children's Court in 1993. He was in quite a bit of trouble as a teenager with offences of violence and dishonesty, and he spent time in juvenile detention. As an adult he has convictions for offences including assault occasioning actual bodily harm; assault occasioning actual bodily harm in company; robbery; fraud; break, enter and steal; and break, enter and commit a serious offence while armed. He received his last sentence of imprisonment (5 years and 3 months) when he was aged 27 and was released on parole in early 2010. Given this history, it is notable that his last significant offending was over 15 years ago.
Mr Keleklio is of Samoan heritage. He is the youngest of two siblings and moved with his family to Australia when he was five years old. He experienced harsh, physical discipline at the hand of his father, and from the age of 10 he started to follow the lead of his brother in running away from home, associating with deviant peers and getting into trouble. He joined a gang at the age of 13 and was involved in serious criminal offending. He suffered sexual abuse in the form of inappropriate sexual touching by custodial officers in juvenile detention, which had a deleterious psychological effect upon him.
Mr Keleklio returned to live with his parents when he was released into the community in 2010, and from that point they shared a good relationship. He told the psychologist, Ms Bennett, that although his parents were initially shocked when he was charged with murder, they are currently good sources of emotional support.
Mr Keleklio has used drugs since the age of 12 but was abstinent for nine years, until a short relapse in 2015. He managed to resume abstinence for a further two years.
Mr Keleklio's education has been limited. He completed Year 10 while in juvenile detention and has since obtained vocational qualifications, including a forklift licence. He was employed from 2010 until he resumed using drugs (namely ice and heroin, daily) in 2017. He was dealing in drugs for the four months prior to his arrest in order to financially support himself and was associating with a criminal and drug-using network. I suspect he resorted to behaviours learned in his more distant past, probably ingrained in his formative years when he lacked mature judgment.
A former work colleague and friend, Ms Jennifer Ungaro, described the work performed by Mr Keleklio from 2010 to 2017 in very positive terms. This seems to have been a period in which his life had stability and purpose for the first time. It was unfortunate that he lost a full-time position working with her at the University of Sydney in 2016, when he was made redundant. Although she retained him as a part-time employee in her own business for another year, she had to let him go when he relapsed.
Ms Kelly Hong also spoke highly of Mr Keleklio in the context of her long-term friendship with him. She has known him since their teenage years and has only become estranged during periods in which he relapsed.
In her report, Ms Bennett noted that diagnoses had been made by Dr Andrew Martin, forensic psychiatrist, in a report of 24 April 2021 (which was not tendered), of substance use disorder, post-traumatic stress disorder and personality disorder with antisocial features.
As noted earlier, Ms Bennett administered two psychometric tests. One was the TSI-2 in which Mr Keleklio's responses were found to be exaggerated, suggestive of possible malingering. The other test was designed to assist in diagnosing depression and monitoring treatment. The results of that test were also questionable given the exaggerated responses to the TSI-2.
Ms Bennett suggested diagnoses of disorders associated with drug use as well as personality disorder with antisocial features.
[2]
Remorse
Mr Keleklio wrote a letter in which he set out a claim of remorse. Making full allowance for his modest skills in written English‑language expression, the letter is impressive up until the point at which he claimed:
"I honestly never intended to hurt anyone on that day. My thoughts and mental state were so affected that my motor skills and demeanour were almost automated leaving me vulnerable to my environment."
He wrote a further letter acknowledging that he had caused the death of Mr Ledinh and loss to the deceased's family and friends, which he read out when giving oral evidence. [44] He was not challenged about this in cross-examination by the Crown Prosecutor.
Mr Keleklio made similar expressions of regret to Ms Bennett. She observed that his responses were "somewhat lacking in depth, particularly given the severity of the offence".
Mses Ungaro and Hong included in their affidavits that Mr Keleklio had made expressions of remorse in the course of their visits to him in custody. Mr Mikaele Piliae, a family friend who appears to have spoken to Mr Keleklio once about two years ago, also thought he was remorseful. Ms Susan Donevski thought he was "very contrite", but it does not appear she had spoken to him.
A submission was made that the plea of guilty is indicative of remorse. It is difficult to say whether that is so or if it was simply a recognition by Mr Keleklio that conviction was inevitable, particularly given his crime was recorded on CCTV.
I accept that Mr Keleklio acknowledges and regrets that his actions caused the tragic loss of Mr Ledinh's life and all that it entailed for Mr Ledinh's family and loved ones. However, I am not convinced on balance that he fully acknowledges the extent of his actions.
[3]
Prospects of rehabilitation and unlikelihood of re-offending
Ms Bennett found that Mr Keleklio's risk of future violent offending was "elevated", although there were some factors that were positive for his rehabilitation. [45] She recommended certain programs in custody that would address the risks of violence and substance abuse. Her report also includes discussion of assistance in transitioning to release in the community and subsequent relapse-prevention treatment.
Mr Keleklio has the benefit of support from Mses Ungaro and Hong, who appear to be supportive of him, when he is not using drugs. There is also support expressed in a letter from the family parish priest.
Given the period of stability Mr Keleklio achieved in his life from 2010 to 2017, there is cause for optimism that he might again do so in the future, particularly if he retains the support of those who now stand by him. The submission that there are at least reasonable prospects of rehabilitation is accepted. [46]
[4]
COVID-19 pandemic
The harsher-than-usual conditions that have been experienced by custodial inmates during the COVID-19 pandemic that I referred to in my sentencing remarks for Mr Sinai will also be taken into account in sentencing Mr Keleklio.
[5]
Special circumstances
No submission was made in support of a finding of special circumstances. I have nonetheless considered the issue but have concluded that no such finding should be made, essentially for the same reasons indicated in the case of Mr Sinai.
[6]
Parity
The sentencing principle of parity between offenders is well known and must be borne in mind.
There were competing submissions on the subject, but I have concluded that the starting point sentence for each offender should be the same. There are different aspects to their offending and different features in their subjective cases, but in the final analysis I fail to see justification for one receiving a sentence different from the other. The only distinction will be reduction of Mr Keleklio's sentence because of his plea of guilty.
[7]
Crimes (High Risk Offenders) Act 2006 (NSW)
The solicitors for each offender are asked to provide their client with information as to the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application to him.
[8]
Mr Sinai
Convicted.
Sentenced to imprisonment comprising a non-parole period of 22 years and 6 months and a balance of the term of the sentence of 7 years and 6 months, being a total sentence of 30 years.
The sentence is to date from 30 May 2019. Mr Sinai will become eligible for release on parole upon the expiration of the non-parole period, on 29 November 2041.
[9]
Mr Keleklio
Convicted.
Sentenced to imprisonment comprising a non-parole period of 20 years and 3 months and a balance of the term of the sentence of 6 years and 9 months.
That is a total sentence of 27 years. Without the plea of guilty it would have been a sentence of 30 years.
The sentence is to date from 13 February 2018. Mr Keleklio will become eligible for release on parole upon the expiration of the non-parole period, on 12 May 2038.
[10]
Endnotes
TT81.
Ex Q.
Ex Y.
Crown's written submissions, at par 8.
Ex E, images 261-266; Ex D, item 62.
Ex E, image 267; evidence of Det Freeman, TT67-68.
TT68-69.
T45, 13 December 2021.
Ex D, items 75, 77.
Ex F, CCTV footage extract.
Written submissions, at pars 9-10.
T19, 27 August 2021; T4.27, 13 December 2021.
T15, 27 August 2021.
T40, 13 December 2021.
T22, 27 August 2021.
T9-10, 27 August 2021.
T11, 27 August 2021.
Report of Ms Stephanie Bennett, at pars 51-55.
Ibid, at pars 45-47.
TT405.
TT333-334.
See written directions (MFI 18), at p 2; SU, at pp 7-10.
Ex E, still photographs 404-408.
TT258-259.
See, for example, still photograph 408 in Ex E.
To minimise (though it is unlikely to eradicate) the scope for argument elsewhere, I mean above the mid-range but not in the high range.
T43, 13 December 2021.
It should be noted that the mother was in custody, while the offender was not, from 8 March 2018 to 7 September 2018, and the offender was in custody, while the mother was not, from 30 May 2019 until 16 December 2020 as well as from 17 September 2021 to this day.
Evidence of Mr Fetuiai Siloi, TT122-123, TT137.15; evidence of Mr Tolo Fiatau, TT379-380.
Written submissions, at par 33.
T25-26, 13 December 2021.
Ex Q.
T37.15, 13 December 2021.
T37-38, 13 December 2021.
Written submissions, at pars 39-42.
Written submissions, at pars 43-45.
Written submissions, at pars 98-100.
Written submissions, at par 102.
This additional information has not been taken into account in sentencing Mr Sinai.
Written submissions, at pars 5-8; T15-17, 13 December 2021.
As indicated earlier, I mean by this above the mid-range but not in the high range.
Written submissions, at pars 9-12.
T19-20, 13 December 2021.
T14-15, 27 August 2021.
Report of Ms Bennett, at par 67.
T21.38, 13 December 2021.
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Decision last updated: 05 April 2022
Mr Sinai's wife was initially charged with murder but the Crown ultimately accepted a plea of guilty to her being an accessory after the fact. She was sentenced to a term of imprisonment, which was reduced on appeal to 2 years and 1 month with a non-parole period of 1 year and 3 months: Ah Keni v R [2021] NSWCCA 263.
Conclusion as to intellectual capacity and mental condition
Mr Sinai bears the onus of proof (on the balance of probabilities) of establishing matters of mitigation. I am satisfied that he has a long history of experiencing significant anxiety and depression, and there are the diagnoses made by Dr Furst that I accept. I also accept that he has intellectual and cognitive abilities that are at a relatively low level. His attendance at special needs classes within his limited educational experience, and Dr Furst's clinical assessment of a well‑below‑average intellectual function (albeit probably above the intellectually disabled range), support that. I am not, however, persuaded that his abilities are at such a low level as Dr Pulman's attenuated testing indicated, which she ultimately conceded was not an accurate reflection of the true position. It is of note that there was no evidence from Mr Sinai, or anyone who provided testimonial support for him, of him struggling to cope with any day-to-day activities that require moderate intellectual input. There is also a shadow cast over the history Mr Sinai gave to the expert authors of reports in that it did not include some of the employment activities he claimed at trial to have engaged in.
It was submitted that Mr Sinai's intellectual capacity and mental condition are such that there should be a reduction of his moral culpability and of the emphasis to be given to general deterrence, retribution and denunciation. [35] That was in the written submissions, which were obviously prepared before hearing the concessions made by Dr Pulman in her oral evidence. I am not persuaded that these features contributed to the commission of the offence in a material way, but I am prepared to accept that the influences of general deterrence, retribution and denunciation on the assessment of sentence are somewhat less than they otherwise might have been. In relation to general deterrence, there is a particular need to retain emphasis in this case, in part to reflect the affront that crimes involving violence committed in public represent to the peace and good order of the community. Gun violence carried out in public with lethal intention and effect is abhorrent in our community, and courts must send a clear and consistent message of deterrence in their sentencing responses.
Finally in respect of Mr Sinai's intellectual capacity and mental condition, reliance was placed upon James v R [2021] NSWCCA 23, a case in which the Court of Criminal Appeal (Brereton JA and Campbell J; Bellew J dissenting) intervened by reducing a non-parole period to 40% of a head sentence of 4 years on account of the offender's mental conditions. It was submitted that the same approach to the assessment of the non-parole period should be adopted in the present case. [36] In my respectful view, one can only regard the decision in James v R as unique to its own facts; it provides no guidance, let alone precedential value.
Special circumstances
It was submitted there were special circumstances justifying a reduction of the proportion of the sentence represented by the non-parole period. [37] The submissions went so far as to invite double counting, an approach eschewed in R v Fidow [2004] NSWCCA 172 at [18]. [38] Each of the matters relied upon are relevant to the assessment of the overall sentence, and no justification was provided for them having additional significance to the non-parole period. I have nonetheless considered whether that is so but have concluded that the non-parole period I intend to set is the least that is appropriate to reflect all the circumstances, including the objective seriousness of the offence.