R v Koloamatangi; R v Popovic

R v Koloamatangi; R v Popovic - [2017] NSWSC 1631 - NSWSC 2017 case summary — Zoe

[5]

Events leading up to 7 September 2007

There was evidence in the trial that Mr Popovic and Mr Koloamatangi were acquainted prior to the murder. Angela Djuraki, the wife of Dusan Krstic, who was a friend of both Mr Sekuljica and Mr Popovic, gave evidence at trial that Mr Popovic had visited their house in 2007 with his friend "Doc" and asked if he could stay the night. There was no dispute at the trial that the person "Doc" was Mr Koloamatangi.
Snezana Sekuljica, the wife of Mr Sekuljica, gave evidence that the deceased and Mr Popovic had been friends for some time. She also gave evidence that her husband was a carpenter and did contract work in the building industry. Her husband carried out the construction of some units with Zoran Bubanja. There was subsequently a falling out between them over money owed by Zoran Bubanja to Mr Sekuljica. Zoran Bubanja is the father of Daki Bubanja.
There was evidence of increasing animosity between Mr Popovic and Mr Sekuljica in the weeks prior to the murder.
Mrs Djuraki gave evidence that she left to visit family in Serbia from May until early September 2007. Sometimes when she would telephone her husband the deceased would be with him and she would speak with him. On one occasion, the deceased told her that, "Zlatan is the biggest traitor in Serbian history after Novakovic." She explained in her evidence that Novakovic had betrayed the leader of the Serbian people to the Turks.
On Friday, 31 August 2007, a week before the murder, the deceased went to the North Wollongong Hotel. The Crown tendered CCTV footage of interactions between Mr Sekuljica, Zoran Bubanja and Daki Bubanja at the Hotel that afternoon. I am satisfied that the footage shows a reasonably heated discussion between Mr Sekuljica and Zoran Bubanja taking place some distance away from other patrons. Robert Freeborough, a friend of Mr Sekuljica who was also present at the Hotel, gave evidence that when the deceased returned to him after speaking with Zoran Bubanja he asked Mr Sekuljica whether everything was all right, but he just "shrugged it off."
Mrs Sekuljica gave evidence that her husband called her and asked her to pick him up from the North Wollongong Hotel that afternoon. When she picked him up, he asked her to drive him to Mamma's Pizza on Crown Street in Wollongong, which was owned by Mr Popovic's mother. He told her that Zoran Bubanja had turned up at the Hotel with his sons Marko and Daki and that they had an argument. He said that he wanted to look for Mr Popovic. He went into Mamma's Pizza, but Mr Popovic was not there. When he returned to his car, he received a phone call from Mr Popovic. Mrs Sekuljica gave evidence that she could hear them arguing. She heard her husband say, "You were waiting for me at the North Wollongong Pub." She heard Mr Popovic respond, "Come to Mt Keira and I'll fix you up there. Come and I'll meet you up there." Mr Sekuljica accused Mr Popovic of being a traitor during this telephone conversation.
A crucial witness in the Crown case was an indemnified witness who gave evidence at the trial under the pseudonym of Peter Taylor. By its verdict, the jury must be taken to have accepted it in crucial respects.
Mr Taylor gave evidence that he had known Mr Popovic for nine or ten years before the murder and was classed as a friend. He worked part-time as a delivery driver for the pizza shop owned by Mr Popovic's mother, Mamma's Pizza, and was seeing Mr Popovic three or four nights a week in August and early September 2007. He used his white Daihatsu Charade to make deliveries. Mr Popovic introduced Mr Taylor to "Doc" about two weeks prior to the murder.
Peter Taylor gave evidence that he had been present at a meeting at the Woolworths carpark in Wollongong with Mr Popovic, Daki Bubanja, Jason Hristovski, "Victor" and "Doc". The meeting took place a week or two before the murder. He gave evidence that, at that meeting, Daki Bubanja referred to Mr Sekuljica and Dusan Krstic as "dogs".
Mr Taylor also gave evidence that, on an occasion about two weeks prior to the meeting in the Woolworths carpark, Mr Popovic said to him, "It's war. Are you with me?" Mr Taylor replied, "You don't have to ask me." Mr Taylor said that he was always told "minimal information" and that he did not know what Mr Popovic was referring to.
A few days before the murder, Mr Taylor, Mr Popovic and his partner Emily Martin, Mr Koloamatangi and his partner Emma Barber, Daki Bubanja, and a person called Ali Nemr met at Collegians Rugby League Club in Wollongong. The men had a private conversation, but Mr Taylor stood back deliberately and tried not to hear what they were saying.

[6]

The night of 7 September 2007

On the night of 7 September 2007, Mr Taylor had dinner at Kings Chinese Restaurant in Wollongong with Mr Popovic, Ms Martin, Mr Koloamatangi, Ms Barber, and a cousin of Mr Popovic - Zeljko Bjelicic - and his then girlfriend. Mr Taylor had been invited to attend by Mr Popovic. In the course of the dinner, Mr Popovic asked Mr Taylor to drop Mr Koloamatangi and Ms Barber off in Sydney after the dinner and then come back to Wollongong. Mr Taylor gave evidence that there was whispering between Mr Popovic and Mr Koloamatangi during the dinner.
Everyone left the restaurant at about 8pm. Mr Taylor drove Mr Koloamatangi and Ms Barber back to Sydney and dropped Ms Barber off at The Rocks. He and Mr Koloamatangi then returned to Wollongong. It took just over an hour each way. On their return to Wollongong, they went to Mr Popovic's unit on George Street. Mr Popovic was there with Emily Martin. Emily was asleep on the floor. Mr Taylor gave evidence that Mr Popovic and Mr Koloamatangi went into the kitchen and had a conversation about going to see a person by the name of "Dragan". He overheard that a crime was going to be committed against Dragan. They were told to go and pick something up from Jason Hristovski.
Mr Taylor and Mr Koloamatangi then went to Jason Hristovski's house in Warrawong. Mr Hristovski came out of the house and handed a rolled-up hessian bank bag to them. When Mr Koloamatangi opened the bag, Mr Taylor saw a gun. He described it as an Astra brand black snub-nosed pistol. Mr Koloamatangi said, "What the fuck is this? We were supposed to get something better than this." Mr Hristovski replied, "That's all I have."
Mr Koloamatangi and Mr Taylor then drove to Mr Taylor's place to get clothes for Mr Koloamatangi to wear as a disguise. His place was about 20 or 30 minutes away from where Mr Hristovski lived. Mr Taylor went inside and obtained long pants, steel-capped work boots, a beanie and a hoodie. His recollection was that Mr Koloamatangi had been wearing only a shirt and shorts, but he was not sure. Either he or Mr Koloamatangi cut holes in the beanie to make it into a balaclava. He gave evidence that the clothing would have been a large size.
After they had collected the clothing, they went straight to Splashes Nightclub. Mr Taylor gave evidence that Mr Popovic called either him or Mr Koloamatangi to them that Mr Sekuljica was at Splashes.
Mr Freeborough gave evidence that he had seen Mr Sekuljica at the North Wollongong Hotel on the afternoon of 7 September 2007. There was some discussion about playing cards at his place that night, but those plans were cancelled or postponed.
Mrs Sekuljica gave evidence that her husband had arrived home at about 8:30 or 9pm that night and had not planned to go out. He later received a telephone call from a friend, Nikola Vacic. Mr Vacic gave evidence that he had asked Mr Sekuljica if he wanted to go out. Her husband asked her whether she wanted to go too, but she declined. He left the house at a late hour of the night. That was the last time she ever saw him alive.
Mr Sekuljica travelled by taxi to The Brewery with Aco Stevceski, Mr Vacic and a man by the name of Yousef. They had a few drinks there and then went to the Harp Hotel before continuing on to Splashes Nightclub. CCTV footage shows the deceased arriving at Splashes Nightclub at the Novotel Hotel in Wollongong at 12:36am. Also present at Splashes were Daki Bubanja, Stanko Petrovic and Miodrag Milisic, known as "Big Mickey", who had been at Collegians Rugby League Club together before going on to Splashes. There was some evidence at the trial suggesting that the deceased had an argument with Daki Bubanja in the men's bathroom at Splashes.
Mr Taylor gave evidence that he drove Mr Koloamatangi to Splashes after collecting the firearm from Mr Hristovski. He did a couple of laps of the club and then parked in a carpark about 100 metres away. He pointed out to Mr Koloamatangi some bushes directly opposite the club in which he could wait and watch to see Mr Sekuljica when he left the club. He gave evidence that after about an hour or an hour and a half he heard three or four shots fired.
At around 3am, Mr Sekuljica telephoned a taxi. He left the nightclub with Daki Bubanja and Mr Milisic. The taxi driver gave evidence that he stopped outside Splashes Nightclub facing up the hill. He saw his intended passengers and gave them some time to cross the street. As they were approaching the taxi, he heard two loud cracks. He drove off as soon as he heard the noises. Mr Milisic gave evidence that he heard a couple of bangs and saw Mr Sekuljica running back inside the club, pursued by another man.
The Crown tendered CCTV footage taken outside Splashes Nightclub in the early hours of 8 September 2007. At around 3:09am, the shooter, dressed in dark clothing and wearing a balaclava, can be seen chasing Mr Sekuljica back into Splashes. Very shortly thereafter, having shot and killed the deceased, he is recorded running at speed away from the nightclub and jumping over a security barrier. Consistent with the jury verdict, the shooter depicted in this CCTV footage is Mr Koloamatangi.
The shooter ran straight past the security guards stationed at the front of Splashes. Joseph Habak, a security officer, gave evidence that he saw Mr Sekuljica running back towards the club followed by the gunman. He heard a couple of shots in the foyer and two more shots inside the club. Mr Habak told his colleague Peter Sommerville to get into the corner and stay down. Moments later, he saw the gunman run straight past him and across the road. Mr Habak ran back inside the club, commenced first aid on Mr Sekuljica and called triple-0.
A number of people witnessed the shooting inside Splashes. Mr Harris, a security guard who had earlier observed Mr Sekuljica and another man engaged in a conversation in the bathroom, saw the gunman shoot the deceased and the deceased fall to the ground. The gunman then ran over, stood on top on the deceased, and shot him in the back of the head. Mr Harris thought it was a joke until he saw that there was a hole in the back of the deceased's head with blood coming out of it.
Robert Gyles was also working as a security guard at Splashes in the early hours of 8 September 2007. He was also shot by the gunman. Towards closing time, he was standing just inside the doorway to the club. He heard one of the wooden doors slam and noticed a man running. He grabbed hold of the man and said, "You can't come in here, mate." He noticed that the man was wearing what looked like a balaclava. He heard a loud noise and noticed a pain in his right arm that "folded him over". Mr Gyles then heard two or three further shots. When the shooter ran back out, he pointed the gun at Mr Gyles' head. At the first trial, Mr Koloamatangi and Mr Popovic stood trial on one count of shooting with intent to murder contrary s 29 of the Crimes Act in relation to the shooting of Mr Gyles, but were acquitted of that charge. In circumstances where the same jury convicted both offenders of the murder, it is to be inferred that the jury was not satisfied of the relevant element of intent. In any event, that charge is irrelevant to the consideration that I am to undertake.
I have included some of these eyewitness accounts in these facts in order to illustrate how frightening and shocking the incident must have been to the unfortunate staff and patrons who witnessed it. It is quite clear to me from their evidence at trial that some of them were deeply affected by having witnessed the shooting.
After hearing the shots, Mr Taylor moved his car to the entrance to the carpark and waited for Mr Koloamatangi to run back to the car, which he did within a couple of minutes. He drove back to Sydney and dropped Mr Koloamatangi off at his home in Mascot. That journey took between 45 minutes and an hour. During the trip, he asked Mr Koloamatangi, "Did you do what you had to do?" He replied, "Yes." Mr Taylor also had a telephone conversation with Mr Popovic in which he asked Mr Popovic whether he could get some money for Mr Koloamatangi. Mr Popovic said, "Go home and come and see me tomorrow." Mr Taylor arrived back at his home in Wollongong between 5 and 6am.
An autopsy was carried out on the deceased's body on 9 September 2007. The autopsy report indicated that the direct cause of death was multiple gunshot injuries. There were four gunshot injuries: one to the head, one to the trunk, and two to the right arm.
The next day, Mr Taylor went to get some money off Mr Popovic to give to Mr Koloamatangi. He estimated that he received about $15,000 on that occasion. He took it to Mr Koloamatangi in Mascot during the afternoon. The money was short and Mr Taylor said that he would relay the message to Mr Popovic. Mr Taylor gave evidence that, at some point in the days that followed, Mr Popovic told him, "The police are watching and it is red-hot and tell Doc to wait for the money." He took more money to Mr Koloamatangi on two or three other occasions. He did not count the money, but estimated it to be a bundle of $5,000 and a bundle of $2,000.
Mr Popovic later asked Mr Taylor to retrieve the gun from Mr Koloamatangi, but Mr Koloamatangi told Mr Taylor that he had disposed of it at Housing Commission premises in Surry Hills.

[7]

Other evidence at the trial

The evidence of Mr Taylor was supported by other evidence in the Crown case.
A ballistics expert, Timothy Berry, gave evidence at the trial. He gave evidence that microscopic examination of the rifling characteristics of the four bullets recovered from the body of the deceased allowed him to determine that they were all fired by the same firearm. The bullets displayed rifling characteristics of six lands and six grooves with a right-hand twist. He said that the gun was likely to be a revolver and, based on the rifling characteristics of the bullets, they was consistent with having been fired from one of three types of revolver: an "Astra" revolver (as described by Mr Taylor), manufactured in Spain, a "Rossi", manufactured in Brazil, or a "Hi-Point", manufactured in the Unites States. Those three companies produce revolvers with the same land and groove impressions of the same dimensions.
An ex-girlfriend of both Jason Hristovski and Peter Taylor also gave evidence of the trial. She was in a relationship with Mr Hristovski and was living with him in Warrawong at the time of the murder. She began work at Mamma's Pizza. After the end of her relationship with Mr Hristovski, she formed a relationship with Mr Taylor. She gave evidence that Mr Hristovski had two handguns. She described one of the guns as a silver revolver. She gave evidence that she woke during the night of 7-8 September 2007 to find Mr Hristovski gone.
A detailed schedule of telephone calls was tendered at the trial. It included all calls made and received by Mr Koloamatangi, Mr Popovic, Mr Taylor and others during the lead up to and after the shooting. Although there were some significant discrepancies as to the times that various events as recounted by Mr Taylor took place, the table overall confirmed his evidence in a number of significant respects. In addition, it revealed a considerable amount of telephone contact between Mr Koloamatangi, Mr Popovic and Mr Taylor at the relevant times.
Calls to and from the numbers subscribed to Mr Koloamatangi and Mr Taylor confirmed that they moved from Wollongong to Sydney and back between 9pm and 1am. By 12:46am, a phone call to Mr Taylor's phone was received through a tower called Wollongong-1. At 1:15am, Mr Koloamatangi made a call to Mr Popovic. At 2:30am, Mr Popovic called Mr Hristovski. At 2:59am, Mr Popovic called Mr Koloamatangi but the call was diverted to voicemail. At 3:11am, shortly after the murder, there was a call from the number used by Mr Koloamatangi to Mr Popovic that lasted 20 seconds. At 4:31am, there was a call from Mr Koloamatangi to Mr Popovic that lasted 45 seconds. At 5:29am, there was a 65-second call from Mr Koloamatangi to Mr Taylor.
A second indemnified witness gave evidence at the trial under the pseudonym "Johnny Radz". He gave evidence of admissions made by both offenders to him as follows.
Mr Radz gave evidence that he had known Mr Popovic since 2000 and had lived with Daki Bubanja for a period of time in 2007. He said that Mr Popovic had offered him the "contract" to kill Mr Sekuljica in April 2007. He said that Mr Popovic told him that, "…him and Zoran have been speaking and they want - that Zoran had a hard on for Dragan and that they both wanted me to believe that I should be the man for the job to kill him for money." He declined because he had a lot of "drama" at the time, his wife was pregnant, and he did not want to get involved. In June 2007, Mr Radz went back into custody for breaching his parole.
Shortly after his release from custody in October 2007, Mr Radz met with Mr Popovic again at his unit in the Wollongong CBD area. The two men went for a walk to a nearby park. Mr Radz gave evidence that, "He was telling me how, um, if I knew or have heard who did it, and he told me that it was an islander, an islander did it, and I asked him 'who?', and he goes 'It was Doc'." He gave evidence that Mr Popovic told him that Mr Taylor was driving.
Mr Radz was in custody from July 2008 until May 2009. At Parklea Correctional Centre, he saw Mr Koloamatangi. He gave evidence that he and Mr Koloamatangi had a conversation about what had happened to Mr Sekuljica in which Mr Koloamatangi admitted that he had shot Mr Sekuljica. He said that Mr Koloamatangi had complained that he was not paid and that he was only given a "shitbox" car for it.
Mr Radz gave evidence that he saw Mr Koloamatangi at Parklea again in October 2013. He asked Mr Koloamatangi whether he had been paid, and Mr Koloamatangi responded that he had not. He also described a conversation with Mr Popovic that took place at Parklea in 2013, in which Mr Popovic called Mr Taylor a "dog".
Mr Radz was indemnified for a range of offences unrelated to the murder of Mr Sekuljica in exchange for giving evidence. He admitted that he had been associated with a number of outlaw motorcycle gangs and other criminal groups, including the Brothers 4 Life.
With one exception, it is not necessary for me to make any finding as to whether I would accept the evidence of Mr Radz beyond reasonable doubt because acceptance of his evidence, which was largely of admissions, does not change the relevant facts. Although it was necessary for the jury to accept Mr Taylor's evidence in order to convict the offenders, the same conclusion does not apply to the evidence of Mr Radz. The only aspect of his evidence directly relevant to the facts I would find on sentence is the question of whether Mr Popovic offered for him to kill the deceased in April 2007. Mr Brasch submitted that I would not be satisfied of this beyond reasonable doubt based on the evidence of Mr Radz alone.
There was no evidence at the trial of any animosity between the deceased and Mr Popovic until the weeks leading up to the murder. On the contrary, the evidence of Mrs Sekuljica was that they were previously friends. On this basis, I am not satisfied beyond reasonable doubt that Mr Popovic approached Mr Radz in April 2007 and offered him money to kill the deceased. I am thus not satisfied that the murder had been planned as early as April 2007.
Overall, and consistent with the jury's verdicts, I am satisfied that Mr Popovic agreed to have Mr Sekuljica killed. He was planning this in the days leading up to the shooting, but no specific plan was reached. At some time after Mr Taylor dropped Mr Koloamatangi's girlfriend back to The Rocks, Mr Popovic became aware that the deceased was out for the evening and a plan formed to shoot him that night. Mr Popovic also became aware that the deceased went to Splashes and passed this information on to Mr Koloamatangi and Mr Taylor. Mr Popovic remained at home with his girlfriend Emily. He arranged for Mr Taylor to drive Mr Koloamatangi to get the weapon and some clothing and they drove to Splashes.
Given the time of certain of the telephone calls between Mr Popovic, Mr Koloamatangi and others on the night, as well as the approximate locations from which these calls would have made based on the cell tower location evidence, I am not satisfied that Mr Taylor's evidence as to how long certain events took is accurate. For example, his evidence was that he and Mr Koloamatangi were waiting outside Splashes for over an hour. The telephone records suggest the time would have been much less. As Mr Taylor stated in his evidence at the trial: "If you are sitting in the car with no 'phone and you are waiting for someone to get shot how fast or how slow do you think time goes if your life is on the line and if you do get caught you will go to gaol could it be quick or slow?"
I am satisfied that when Mr Koloamatangi saw the deceased leave the club he shot him once or twice outside the club and then chased him into the club, where he shot him in the head. He then fled the scene and was driven away by Mr Taylor, who drove him back to Sydney that night.
These are the facts upon which I am to sentence the offenders. I shall return to consider my findings regarding the objective gravity of the murder later in these reasons.

[8]

General sentencing principles

The maximum penalty for the offence of murder is life imprisonment: s 19A(1) of the Crimes Act 1900 (NSW). A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life: s 19A(2) of the Crimes Act. Section 21(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") provides: "If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term."
Section 54A of the Sentencing Act specifies a standard non-parole period of twenty years for the offence of murder.
Section 61 of the Sentencing Act relevantly provides: "(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." … (3) Nothing in subsection (1) affects section 21 (1)".
In determining the appropriate sentence for an offence, I am to take into account any relevant aggravating and mitigating factors in s 21A of the Sentencing Act as well as any other objective or subjective factor that affects the relative seriousness of the offence and any other matters that I am either required or permitted to take into account under any other Act or rule of law. I am also to have regard to the purposes of sentencing set out in s 3A of the Sentencing Act.
An additional guidepost in this matter is the sentences previously imposed on the offenders by RS Hulme AJ.
In sentencing the offenders I am exercising a discretionary judgment. The exercise of that discretion is subject to both the applicable statutory provisions and judge-made law: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2. Having regard to all of these factors, my task is ultimately to undertake a process of "instinctive synthesis", whereby I am to make "…a value judgment as to what is the appropriate sentence given all the factors of the case": Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].

[11]

Subjective circumstances of Mr Koloamatangi

Mr Koloamatangi did not give evidence on sentence. Tendered on his behalf was a psychological report under the hand of Danielle Hopkins dated 10 May 2011. There was no challenge to the contents of that report at the hearing. Although the report is over six years old and was prepared in relation to a different offence, there was nothing put before me on sentence to suggest that his circumstances have changed in any relevant way since 2011. Mr Koloamatangi has been in custody continuously since 31 May 2009.
I have taken the following background material from Ms Hopkins' report.
Mr Koloamatangi was born in 1972 and was 35 years old at the time of the offence. He is now 45 years old.
Mr Koloamatangi was born in Tonga and was the youngest of four children. He reported to Ms Hopkins that he was raised by his grandparents and believed them to be his parents, although his biological mother lived in the same house. His biological mother remarried following the death of his father and that relationship produced two half-siblings. Mr Koloamatangi reported that his stepfather was an alcoholic who physically abused his mother. He said that he felt a "bond" with his mother even though she did not show any attention or affection towards him. It was only in his late twenties that his sister confirmed that this woman was in fact his mother.
Mr Koloamatangi reported that his grandmother was a strict disciplinarian who often "belted" him for reasons that were not clear to him. At the age of 7, he and his brother were sent to live with his uncle in Sydney. His uncle was physically abusive and denied the children food and other essentials, such as school shoes. He was homeless from the age of 13, at which time he started to come into contact with increasingly delinquent peers and to escalate his use of illicit drugs. He told Ms Hopkins, "I felt dirty around people that weren't criminals." He ceased all education at the age of 16.
After moving to Sydney, Mr Koloamatangi did not subsequently have consistent contact with his family members in Tonga. Ms Hopkins opined that: "…such a lack of early secure attachment to a significant care giver often results in a pattern of unstable intimate and peer relationships and poor psycho-social functioning throughout the lifespan and this appears to be the case in regards to [Mr Koloamatangi]."
Mr Koloamatangi reported that he had been engaged in three significant relationships with women. Those relationships were marred by his violence.
It was noted by Ms Hopkins that Mr Koloamatangi has been in custody for the majority of his adult life. She described his history of substance abuse and observed: "[Mr Koloamatangi] has chronic polysubstance abuse issues associated with poor impulse control and behavioural dysregulation problems. His substance use appears to be associated with his offending behaviour in that it often appears he offends in order to procure money to finance his substance use. [Mr Koloamatangi's] use of substances at these levels is of concern and he seemingly uses drugs and alcohol to medicate past traumas, feelings of abandonment, low mood and other emotions [sic] problems."
Mr Koloamatangi tested in the borderline to low-average range of intelligence, outperforming 5% of the normative population for his age. Ms Hopkins considered that the combination of his traumatic childhood, low intelligence, ready use of aggression and substance abuse has resulted in a maladaptive development of personality, such that he shows traits of both anti-social personality disorder and borderline personality disorder. She opined that his prognosis is "guarded" unless he receives psychological intervention and treatment for his substance abuse issues.
Apart from the identification by Ms Hopkins of these personality disorders, Mr Koloamatangi does not report any other physical or mental health problems. It is clear that Mr Koloamatangi's unfortunate childhood led to his drug addiction, which he supported through a life of violent crime. As a result, he has spent most of his adult life in custody.

[12]

Criminal history

Mr Koloamatangi has a significant criminal history including previous convictions for violence and the use of firearms.
Between 1985 and 1991 he received good behaviour bonds and fines for assaults and drug possession. He received his first term of imprisonment in 1993 at the age of 21 when he was convicted of a number of offences, including two armed robberies, robbery with wounding, and possession of shortened firearm. He received an effective term of imprisonment of eight years with a non-parole period of five years. He was in custody from 26 March 1993 until 25 March 1998.
Upon his release in 1998 he was convicted of various driving offences for which he again received fines and a good behaviour bond.
In 2002 he was convicted of a number of offences, including possession of an unauthorised firearm and aggravated break and enter (knowing that the person was present) for which he received an effective term of imprisonment of four years and six months with a non-parole period of 18 months. He was released from custody on 28 May 2004.
In 2005 he was convicted of assault charges, including assaulting police and assault occasioning actual bodily harm. He received an effective term of imprisonment of four years with a non-parole period of 21 months. His non-parole period expired on 28 February 2007, at which time he was released. This was just over six months before the murder. He was thus on parole for this offence at the time of the murder.
In 2011, following the commission of the murder, he was sentenced by Sweeney DCJ in relation to a number of serious offences committed in two separate incidents in 2009. They include two counts of detaining a person in company with intent to obtain advantage, one count of shoot with intent to murder, two counts of robbery while armed with dangerous weapon, one count of aggravated break, enter and steal and one count of wound with intent to resist arrest. The total sentence imposed was imprisonment for 15 years, with a non-parole period of 11 years.
The Crown appealed to the CCA against the inadequacy of the sentence. The appeal was upheld and he was re-sentenced to an effective term of imprisonment for 17 years and four months, with a non-parole period of 14 years to expire on 30 May 2023: R v Koloamatangi [2011] NSWCCA 288.
Insofar as the mitigating factors in s 21A(3) of the Sentencing Act are concerned, none were relied upon. I am unable to find that the offender is unlikely to re-offend or that he has good prospects of rehabilitation. Mr Koloamatangi will be 53 years old before he finishes serving the non-parole period of his current sentence. Consistent with his plea of not guilty, he has not expressed any remorse in this matter. This makes it difficult to have regard to whether his drug use played any part in his offending conduct. The offences for which he is currently serving a sentence were committed under the influence of a drug and in order to obtain money to buy drugs. Although it could be inferred that the same may have applied to the murder, I am unable to make any positive finding in that regard.
Although the evidence contained in Ms Hopkins' report was untested, none of it was disputed by the Crown. I have regard to what the High Court has said in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [36]-[44]. I am unable to find that Mr Koloamatangi's moral culpability is reduced to any significant degree by his violent upbringing. This was not an offence of violence caused by the offender resorting to violence when frustrated; it was a contract killing. Despite this, I have had regard to this material concerning his unfortunate upbringing. While the offender's experiences in early life might justifiably evoke sympathy and are a proper basis upon which to ameliorate the sentence to a degree, it is nonetheless necessary for the sentence that I impose to be proportionate to the gravity of the crime and to reflect the purposes of sentencing.

[13]

Subjective circumstances of Mr Popovic

The transcript of the proceedings before RS Hulme AJ was tendered on these proceedings. Mr Popovic gave evidence on that occasion. In his evidence, Mr Popovic stated that when he saw the psychologist Dr Lennings in 2014 he told the truth and he indicated some small corrections to that report. He gave evidence in which he denied the offences, pointed to deficiencies in the Crown case and expressed sympathy to the deceased's family. He also explained that his weapons conviction in 1993 pertained to a .22 calibre firearm with which he used to go hunting. RS Hulme AJ did not accept this evidence given the nature of the firearm. To the extent that it is necessary for me to make any finding on this issue, I do not accept it either for the reasons provided by his Honour. Mr Popovic was cross-examined by the Crown Prosecutor at the first proceedings on sentence.
Mr Popovic gave evidence again before me in similar terms. He again expressed sympathy for the family of the deceased and indicated that he had relevant information to assist police to locate the true culprits. When he commenced to give evidence as to why the telephone records tendered at the trial were wrong, objection was taken by the Crown Prosecutor on the basis of relevance. I explained to Mr Popovic that I was obliged to sentence him in accordance with the verdict of the jury.
A written character reference dated 27 October 2017 was provided by Nikolai Jankovic, a civil engineer by profession, who had known Mr Popovic since 2000. He described him as a good father to his two children and a person with a "big heart" who has helped many people for no personal gain. He asked the Court to consider that Mr Popovic had already been punished by missing out on five years of his sons' lives as well as not being able to say goodbye to his wife, whom he lost as a result of the investigation in this case. No issue has taken by the Crown that Mr Popovic is not a loving father, but although I have given this reference some little weight it needs to be viewed in the context of the other material before me.
The report of Dr Christopher Lennings dated 15 August 2014 sets out the personal circumstances of Mr Popovic in some detail. I have taken the following information from that report.
Mr Popovic reported a dysfunctional childhood associated with the separation of his parents in 1976 when he was three years old. He was an only child. His father remarried and went to Serbia that same year and Mr Popovic remained with his mother. They lived in a housing commission area. It was an environment in which he was exposed to negative influences.
He reported difficulties with adjustment to his early education, with those difficulties continuing through high school. He went to live with his father in Serbia when he was 14 years of age he and remained there for six years. He made a good adjustment there. At the encouragement of his uncle, to whom he was very close, he came back to Australia to visit just before the war in Yugoslavia broke out in 1991. He decided to stay in Australia after his uncle was killed shortly afterwards. The death of his uncle was the first traumatic grief experience for him.
He was involved in a serious car accident in 1990 in which he suffered a severe head injury that left him with some neurological impairment affecting concentration. Consequently, Mr Popovic left high school and had no further education after that. His primary form of employment was self-employment.
Mr Popovic did not report alcohol use issues, commenting that the history of alcoholism on the part of his father and extended family made him careful about his own alcohol use. He reported a history of substance use that involved smoking cannabis at the age of 25, with heavy use confined to 2012 when he had difficulties in his relationship with his second wife. He also reported some use of amphetamines beginning in 1998 that ceased once he went to gaol in 1999 and cocaine use up until 2012. He denied the use of narcotics, abuse of benzodiazepines, any drug induced psychoses or substance use in a manner that may cause psychological harm.
Mr Popovic reported a problematic gambling habit beginning around 1990 that continued for much of his life. His lack of control in that regard at times contributed to difficulties in his relationships.
Mr Popovic has been married on two occasions and has three children. His first relationship ended over his gambling issues. He has one son from that marriage.
He married Emily Popovic shortly after the murder and they had two children together before separating in 2012. After they separated in 2012, Emily Popovic provided some statements to police in relation to this matter and then committed suicide a few days later. Mr Popovic blames police for her death. He believes that she died as a result of pressure being exerted upon her by the police. Her death has been a traumatic experience for him. Dr Lennings noted that Mr Popovic was unable to process that event and that his bereavement reaction appeared unresolved.
I was required to consider the circumstances of Emily Popovic's death during the trial because application was unsuccessfully made by the Crown Prosecutor to admit her statements into evidence pursuant to s 65 of the Evidence Act 1995: R v Popovic; R v Koloamatangi (No 4) [2017] NSWSC 1137. Emily Popovic cut her own throat at home with her mother and young children close by. The circumstances of her death are indeed tragic and I am satisfied that her death would have had a significant impact on Mr Popovic.
Dr Lennings did not find that he exhibited symptoms of vegetative depression or post-traumatic stress disorder, only that he experienced a depressive disorder in the context of his bereavement reaction that had an impact on his ongoing emotional regulation. He suspected that Mr Popovic would benefit from some psychological input not only in relation to unresolved grief in relation to his wife but also his uncle.
He also found that Mr Popovic had good average cognitive ability and no impairments of function despite some weaknesses in memory and executive function. Dr Lennings recommended undertaking treatment for his grief and courses aimed at emotional regulation.

[14]

Criminal history

Mr Popovic has a criminal history that commences in the Children's Court. In 1986, whilst still a juvenile, he received a 12-month good behaviour bond for offences including possession of a prohibited weapon and possession of a shortened firearm. In 1993, he was convicted of driving offences and a common assault and received a Community Service Order for goods in custody.
The most significant matter on Mr Popovic's criminal history is his conviction in 2001 for manslaughter and nine counts of malicious wounding committed in 1999. These offences occurred in 1999 when Mr Popovic discharged a double-barrel shotgun in a shopping mall in Wollongong and killed a man with whom he had an acrimonious relationship. He also wounded nine people in the vicinity. He was found guilty of each malicious wounding charge and his plea to the manslaughter charge was accepted by the Crown after a jury was unable to agree on the murder charge: R v Popovic [2001] NSWSC 1118. His appeal against sentence was dismissed: R v Popovic [2003] NSWCCA 103.
The facts in support of those convictions were that Mr Popovic and the deceased developed an acrimonious relationship based on false information concerning Mr Popovic. Mr Popovic was exposed to harassment and frequent threatening phone calls by the deceased over a long period of time. After receiving threats that involved killing his mother and son, Mr Popovic began to carry a sawn-off shotgun and also purchased a Magnum pistol.
On the day of the shooting, Mr Popovic saw the deceased in a public street and obtained his backpack containing the shotgun and ammunition. He initiated a verbal exchange with the deceased and, as a result, took the shotgun out of the bag and loaded it while the deceased was watching. The deceased was unarmed. Mr Popovic swung the gun at the deceased and hit him with it. At that time, the first shot was discharged. That shot caused injury to nine bystanders along the street. Mr Popovic discharged the gun again within seconds and that shot killed the deceased. His Honour found that Mr Popovic was not in fear for his own life at that time, but that he was provoked to do what he did because of the threats made to his mother and son.
Mr Popovic was sentenced to a total term of imprisonment of 12 years, with a non-parole period of six years. He was released from custody on 25 February 2007 and was thus on parole for manslaughter at the time of the commission of this offence.
It is an aggravating factor that at the time of the murder Mr Popovic was on parole for a serious offence for shooting and killing someone during an argument.
It was not submitted on behalf of Mr Popovic that any of the mitigating factors in s 21A(3) of the Sentencing Act arose in this case. I am satisfied that the death of Emily Popovic was a traumatic experience for him and there is no doubt he is saddened by the fact that his sons are growing up without a mother whilst he is in custody. His childhood was not without its difficulties. He does not suffer from any physical or mental illnesses, although he would benefit from grief counselling. He has expressed no remorse in that he continues to deny the offence. I am unable to find that he is unlikely to re-offend or that he has good prospects of rehabilitation.

[15]

Life sentence for murder

Section 61(1) provides that I would impose a sentence of imprisonment for life if I was satisfied that the level of culpability in the commission of the murder of Mr Sekuljica is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.
The predecessor to s 61 (s 431B(1) of the Crimes Act), which took effect from 30 June 1996, was modelled on the decision of the CCA in R v Garforth (NSWCCA, 23 May 1994, unreported) in which the Court, constituted by Gleeson CJ, McInerney and Mathews JJ, said that, "[T]here are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty." The additional factors of "community protection and deterrence" were included in the statutory test when the principle in R v Garforth was enacted as s 431B(1).
The CCA observed in R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 that the extreme culpability contemplated by s 61(1) has been held to be in accordance with the approach taken at common law: R v Merritt at [51] per Wood CJ at CL (Tobias JA and Hidden J agreeing). That Court observed (at [54]) that it is the combined effect of the four indicia in s 61(1) which is critical. Similarly, in R v Harris (2000) 50 NSWLR 409, Wood CJ at CL, with whom Giles JA and James J agreed, observed at [87], "It is not at all clear to me that the assessment whether a case falls within the 'worst case category' at common law is any different from that postulated under s 61(1)."
The consideration of whether a particular murder offence falls within the "worst case" category is a matter properly within the exercise of a sentencing judge's discretion. In making that finding, a court will have regard to common law principles such as are found in R v Twala (NSWCCA, 4 November 1994, unreported), the following passage of which was cited with approval by Wood CJ at CL in both R v Harris and R v Merritt: "…in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty imposed)." [emphasis in original]
It is to be noted that in The Queen v Kilic [2016] HCA 48 (at [20]) the High Court criticised the use of phrases such as "worst category" in this context and held that the better approach is for the court to clearly record whether the offence is, or is not, so grave as to warrant the imposition of the maximum penalty.
Section 61(1) is subject to s 21(1) of the Sentencing Act: s 61(3). As Wood CJ at CL observed in R v Merritt at [36], the "obvious tension" between sub-ss 61(1) and s 61(3) of the Sentencing Act has been resolved in favour of recognising the continued existence of the discretion to impose a specified term, notwithstanding the fact that the s 61(1) criteria are met, where the offender's subjective circumstances justify a lesser sentence than one of life imprisonment.
It has been held that a two-stage process is required in determining whether a life sentence is mandated under s 61: see R v Harris at [60]. The CCA also observed in R v Miles [2002] NSWCCA 276 at [204]: "The court must first determine whether on the objective facts the level of culpability is so extreme that it warrants a maximum penalty. The Court must then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty."
The question of whether this two-stage process is contrary to the instinctive synthesis required by Markarian v The Queen is the subject of some recent controversy. In R v Dean [2013] NSWSC 1027 at [104], Latham J described the approach in the CCA judgment in R v Harris at [60] as a "two step" process, but went on to observe that her Honour did not need to determine whether the approach in Harris was a legitimate approach under s 61(1) since Muldrock v The Queen because "…the imposition of a life sentence for a worst case under the common law is still the product of an instinctive synthesis of all the relevant sentencing factors."
Mr Dean sought leave to appeal to the CCA on the basis, inter alia, that Latham J had erred in adopting a two-stage approach to sentencing him. The CCA endorsed the approach taken by Latham J: Dean v R [2015] NSWCCA 307. The CCA (Ward JA, with whom Adams and RA Hulme JJ agreed) made a number of observations on this issue at [92] - [93] and [95] - [97]. In short, their Honours noted that "…the tension recognised in the authorities as existing between s 61(1) and s 61(3) can only readily be reconciled by assuming that there has been a determination that a life sentence is required to be imposed and then asking whether, in the circumstances, nevertheless a lesser (fixed term) sentence is appropriate. In other words, there must first be an assessment that the level of culpability is such that a life sentence is required, having regard to the four indicia in s 61(1), before one can sensibly apply s 21(1)."
The Court went on to observe that this process: "…involves no departure from the conventional approach to instinctive synthesis sentencing where an assessment is made as to the objective seriousness or gravity of the offence, taking into account all relevant factors that inform that assessment, and then there is a consideration (having regard to subjective factors) as to what sentence is appropriate."
As Hamill J noted recently in R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774, the decision of the CCA in Dean v R was the subject of an application for special leave to appeal to the High Court. Although special leave was not granted on the basis that there were no reasonable prospects that the appeal would succeed, the High Court expressed disquiet as to the approach endorsed by the CCA. Justice Bell noted in refusing leave, "We would not wish to be taken to be endorsing everything stated by the Court of Criminal Appeal in determining this matter." It is to be accepted that these comments have no precedential value.
I note that RS Hulme AJ imposed a sentence of life imprisonment on Mr Koloamatangi, he expressed it in terms "without recourse to the terms of s 61(1)". I propose to proceed by examining the objective gravity of the offence and then considering the subjective factors to determine the appropriate sentences in this matter.
It is well established that one category of murder in relation to which a sentence of life imprisonment can be warranted is a contract killing. In R v Crofts (NSWSC, 6 December 1996, unreported), Grove J said, "A deliberate killing for payment would prima facie find its place in the worst category of case with a potential for imposition of the maximum penalty of penal servitude for life." In R v Kalajzich (1997) 94 A Crim R 41, Hunt CJ at CL endorsed this statement, but added (at 52) (footnotes omitted): "The word "potential" is important, for not every case of a contract killing would attract the maximum penalty. There will sometimes be a distinction to be drawn between the person who pays and the person who kills. Facts mitigating the objective seriousness of the crime may well eliminate that potential, at least so far as the person who pays."
In King v R (1998) 99 A Crim R 288, it was held that a deliberate killing for payment is prima facie in the worst category. It was also held in King v R (at 292) that the facts may mitigate the objective seriousness of the crime, and may eliminate the potential for the imposition of penal servitude for life, "at least for the person who pays."
More recently Fullerton J observed in R v Brooks [2012] NSWSC 505 at [29]: "While premeditation alone, even coupled with financial motives for a killing, does not necessarily place a case in the worst category (see R v Willard [2005] NSWSC 402), contract killings are frequently referred to in the authorities as prima facie in the worst category and have been found to fall in the worst category of case attracting a life sentence (see the cases cited in R v Lewis [2001] NSWCCA 448 at [60]), although as Hunt CJ at CL in R v Kalajzich (1997) 94 A Crim R 41 recognised at [52], there may be contract killings which do not attract the maximum penalty."

[16]

Submissions as to the gravity of Mr Koloamatangi's offending

The Crown's submission was that I would impose a sentence of life imprisonment on Mr Koloamatangi because he carried out a cold-blooded execution of a man whom he either hardly knew or did not know at all as a hired killer for reward.
It was submitted that there are four indicia in s 21A(2) relevant to the question of whether a life sentence should be imposed on Mr Koloamatangi: (c) the offence involved the actual or threatened use of a weapon; (d) the offender has a record of previous convictions; (i) the offence was committed without regard for public safety and (j) the offence was committed by the offender whilst on conditional liberty in relation to an offence. I note that not all of these factors are relevant to the question of the objective gravity of the offence.
It was submitted that although his subsequent offending does not aggravate the offence, it is significant to the question of prospects of rehabilitation and his level of dangerousness: Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14.
Ms Davenport SC made a number of submissions as to why I would not impose a life sentence in this matter. With regard to the objective gravity of the murder itself, she submitted that there was not any significant element of planning. The planning was described as "disorganised". Mr Koloamatangi returned to Wollongong on the night of the killing without any appropriate clothing, disguise or a weapon. Although there had been some talk of a killing in the previous days, he did not travel from Sydney to Wollongong with an "assassin's kit." I note that the Crown did not seek to rely upon the degree of planning as an aggravating feature in this matter. Rather, the relevance of the planning was that Mr Popovic was involved in it rather than simply paying for the killing from afar. Ms Davenport did not suggest that the four aggravating factors relied upon by the Crown did not apply to Mr Koloamatangi.
Ms Davenport conceded that the element of dangerousness was relevant in this matter given Mr Koloamatangi's record, but that the need to protect the community could be met by a determinate sentence, given his age. It was submitted that the only relevance of the sentence that Mr Koloamatangi is currently serving is to the question of future dangerousness, given that the offences were committed after the murder of Mr Sekuljica. She submitted that it is difficult to assess future dangerousness now when a lengthy sentence is to be imposed. Mr Koloamatangi will be an elderly man whatever sentence for murder is imposed on him. If a determinate sentence were imposed, then the question of dangerousness would be one for the State Parole Authority.
It was further submitted that Mr Koloamatangi has only been out of custody for short periods of his adult life. A prisoner who receives a life sentence with no prospect of release has no incentive to improve himself. For this reason, a determinate sentence would assist in his rehabilitation.

[17]

Finding as to gravity of Mr Koloamatangi's role

There are a number of aspects of this murder relevant to the assessment of whether Mr Koloamatangi's level of culpability was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. I am satisfied beyond reasonable doubt that Mr Koloamatangi waited for Mr Sekuljica outside Splashes Nightclub and shot at him as he was about to enter a taxi outside the club. Mr Sekuljica was shot twice and wounded before he fled into the nightclub to get away from Mr Koloamatangi. The CCTV footage played at the trial depicts Mr Koloamatangi pursuing Mr Sekuljica into the nightclub. Onlookers described Mr Sekuljica collapsing to the floor in the bar area of the nightclub and then being shot again at least once to the back of the head at close range as he lay wounded on the floor. Mr Koloamatangi then fled the scene.
Mr Koloamatangi was prepared to carry out the execution of a man in cold blood whom he did not know for money. The shooting was brazenly committed in public without any regard to the safety of others. Although I am not bound by what RS Hulme AJ found in relation to Mr Koloamatangi, I have had regard to his Honour's observations regarding Mr Koloamatangi's criminality at [147]-[149] as follows: "I am not unconscious of decisions to the effect that all contract killings do not fall into the category of a worse case. However, I see nothing in the circumstances here which would provide any ground for not so regarding the objective features of Mr Koloamatangi's involvement and in my view it is appropriate to regard his offence as in a worst-case category. The nature of a contract killing is such as to create strong demand for retribution. One can accept, and to an extent understand, that human frailty sometimes leads to murder. However there is something entirely alien to the most basic standards of humanity when murder is premeditated and committed just for monetary award. And in the circumstances of Mr Sekuljica's murder there were no redeeming or mitigating features that could operate in Mr Koloamatangi's favour. Such an offence also requires that considerable weight be given to general deterrence. In their very nature contract killings must involve some consideration by the killers of the rewards, risks and consequences. It behoves the courts to ensure that, if such a killer is caught, those consequences are very high."
I respectfully adopt these observations by his Honour regarding the objective gravity of Mr Koloamatangi's offending and contract killings generally.
There is nothing about the circumstances of this murder alone which would mean that the community's need for retribution, punishment, community protection and deterrence do not warrant a sentence of life imprisonment. The need for retribution and punishment is always high in murders involving cold-blooded contract killings. The community has a legitimate expectation that the punishment for such offending will properly reflect the high level of criminality that has been displayed. There is also a strong need for the community to be protected against planned and violent offending such as this. Both general and specific deterrence are of particular significance in this case.
Mr Koloamatangi was on parole at the time of the offence and has a lengthy criminal history. It was also submitted that I would have regard to the future dangerousness of the offender as a relevant factor on sentence. I accept that the sentence that I impose must be proportionate in all of the circumstances, but as the CCA observed in R v Garforth: "..in the case of homicides involving a high degree of culpability, the fact that the offender will be likely to remain a danger to the community for the rest of his or her life might justify the imposition of life imprisonment."

[18]

Submissions regarding the gravity of Mr Popovic's offending

The position of the Crown was that I would impose a sentence of life imprisonment on Mr Popovic, despite the fact that RS Hulme AJ did not. It was not submitted that I would impose a higher determinate sentence on Mr Popovic than his Honour did. Rather, the Crown Prosecutor submitted that the sentence imposed on Mr Popovic ought to be increased to one of life imprisonment if I took the view that it was more serious than what RS Hulme AJ viewed it as. It was submitted that Mr Popovic was clearly prepared to be involved in lethal violence, that he has a predisposition to lethal violence and that the question of dangerousness is relevant to his sentencing. It was submitted that there was no room for any distinction as between the two offenders. In all of the circumstances, it was submitted that the only proper sentence would be that of life imprisonment.
This submission by the Crown must be considered in the context of the principles governing the sentencing of offenders following a re-trial and subsequent conviction. It is necessary for me to consider these authorities in some detail given their significance to the potential sentence that I am urged by the Crown to impose on Mr Popovic.
In R H McL v The Queen (2000) 203 CLR 452; [2000] HCA 46, the Victorian Court of Appeal had quashed two of the applicant's convictions and increased the sentence on two remaining counts such that the applicant received the same sentence that he had at first instance. Gleeson CJ, Gaudron and Callinan JJ observed, obiter, (at [23]) that, "…in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial…" The rationale for this principle was described as being that otherwise "…an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction." Their Honours went on to observe that, "The weight to be given to that consideration depends, of course, upon the circumstances of the individual case."
Similarly McHugh, Gummow and Hayne JJ observed In R H McL v The Queen (at [72]) that, "Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial." Their Honours went on to observe: "If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials."
Justice Kirby adopted, at [142], what was said by the Queensland Court of Appeal in R v Petersen [1999] 2 Qd R 85 (at 87): "Only if the second sentencing judge concludes that the earlier sentence was outside the appropriate range, or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based, should he or she impose a heavier sentence."
This issue was considered in R v Hannes (2002) 173 FLR 1; [2002] NSWSC 1182. The background to this decision is that the appellant was first convicted in the District Court of insider trading and reporting offences. He appealed against his conviction and the Crown appealed against the inadequacy of his sentence. The CCA upheld the appeal against conviction and did not deal with the Crown inadequacy appeal. The offender was tried again for substantially the same offences in the Supreme Court. In sentencing him for the second time, James J noted at [84] that there was a "division of judicial opinion" on this issue. His Honour considered that it would be open to a judge to impose a heavier sentence if he or she considered that the previous sentence was "so manifestly inadequate that it would be set aside on a Crown appeal on the ground of its manifest inadequacy" or if there were "new, significantly different facts before him which were not before the original sentencing judge." His Honour also considered that it would be open to him to impose a heavier sentence if he considered that the original sentencing judge made a "significant specific error" in sentencing the offender.
The same issue arose in Tarrant v R (2007) 171 A Crim R 425; [2007] NSWCCA 124. The applicant had been re-tried for the offence of murder before Latham J following a successful conviction appeal. She received a heavier sentence than that passed by Hulme J after the first trial, although her two co-offenders received lesser sentences. She appealed to the CCA on this basis. The CCA was satisfied that the trial before Latham J differed from that presented before Hulme J. It was noted at [13] that Hulme J had explained the disparate sentences imposed at the first trial on the basis that there was no evidence showing that the applicant's role was more than the "…lowest level of participation." By contrast, aiding and abetting as a basis for liability was not left to the jury in the trial before Latham J. That trial was one based solely on joint criminal enterprise. Accordingly, her Honour was unable to distinguish the roles played by each of the co-offenders. Her Honour also found that each offender had made a more favourable subjective case than they had previously.
The CCA dismissed the appeal on the basis that findings of fact bearing upon the offender's criminality were significantly different from those made by the judge at the first trial.
These authorities were conveniently summarised by the CCA in Giotas v Regina [2008] NSWCCA 287 at [49]-[51]. In that case, the second sentencing judge had formed a different view regarding a number of the applicant's objective and subjective features. The CCA allowed the appeal on the basis that there was nothing in the material before the second sentencing judge that was so "different, special or significant" as to overcome the prima facie presumption that the original sentence should not be increased. Nor was it considered to be a case where the first sentence was so manifestly inadequate that it would be set aside on a Crown appeal on the ground of its manifest inadequacy.
It was submitted by the Crown that I would impose a sentence of life imprisonment on Mr Popovic on one of two bases: if I were to find that the sentence imposed on him by RS Hulme AJ was "plainly unjust or unreasonable" within the meaning of House v The King (1936) 55 CLR 499 because a life sentence was not imposed, or if I were to make a different finding on the relevant facts on sentence.
In response to these two propositions, Mr Brasch observed that no Crown appeal against inadequacy of the sentence imposed by RS Hulme AJ was ever filed. It was submitted that the CCA would have been the appropriate forum in which to ventilate the question of whether Mr Popovic's sentence was manifestly inadequate. Second, it was submitted that the second trial was a re-run of the first trial so there are no significantly different facts to find on sentence. Mr Brasch submitted that in these circumstances I would not impose a life sentence.

[19]

Was the sentence imposed by RS Hulme AJ manifestly inadequate?

I turn first to consider the Crown submission regarding manifest inadequacy.
The primary difficulty with the position taken by the Crown in these proceedings on sentence is that no appeal was lodged by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the manifest inadequacy of the sentence imposed on Mr Popovic following the first trial. It is somewhat anomalous for the Crown to take such a position now. Although it is to be accepted that I would not impose a sentence that I believe to be manifestly inadequate, the CCA is usually considered to be the appropriate forum to make a submission that the failure to impose a sentence of life imprisonment was "unreasonable or plainly unjust" so that error must have occurred.
I have been unable to find any previous decision in which the Crown elected not to file an appeal against the failure of a sentencing judge to impose a sentence of life imprisonment for murder and then required a second sentencing court to make a finding of error in this regard. I accept the principles stated in the decisions that I have summarised herein, but in R v Hannes, for example, a Crown appeal against inadequacy had been filed but not considered by the CCA given the successful conviction appeals. Although I accept that the authorities state that a sentencing court could find itself in the position of performing the function of an appellate court, I am doubtful as to whether such a consideration would be appropriate on the sole question of whether a life sentence should have been imposed.
The Crown's position was RS Hulme AJ erred in not imposing a life sentence on Mr Popovic because there was so little to distinguish his case from that of Mr Koloamatangi. I have had regard to what RS Hulme AJ said about the relative criminality of the two offenders. His reasons for imposing a lesser sentence on Mr Popovic were that he found Mr Koloamatangi's criminality to far exceed that of Mr Popovic (and the other two co-offenders) for the reasons that I have already extracted. His Honour also found that there was a difference in their subjective factors.
The Crown's submission is, in effect, two-fold. I am invited to find patent as well as latent error in his Honour's approach. That is, I was asked to conclude not only that a life sentence was warranted in relation to Mr Popovic but also that his Honour erred in his finding regarding the relative criminality between the two offenders in the sense that the finding made by his Honour in this regard was not open to his Honour.
I have read the transcript of the proceedings on sentence before RS Hulme AJ and had regard to the submissions made by the Crown Prosecutor at that time as to why Mr Popovic should receive a life sentence. They were the same submissions advanced before me. I can detect no change in approach in this regard.
Nothing was put before me to explain why no Crown appeal was ever lodged against the sentence imposed on Mr Popovic. I accept that as a matter of principle there may be occasions where no Crown appeal against inadequacy is filed, yet a second sentencing judge nonetheless imposes a higher sentence to avoid imposing a sentence which is manifestly inadequate. The difficulty is that in Mr Popovic's matter the specific error relied upon was not that a higher determinate sentence should have been imposed by RS Hulme J, but that his Honour erred in not imposing a sentence of life imprisonment.
I accept that a further basis upon which a judge sentencing an offender following a second trial may pass a heavier sentence is if the judge finds facts that are "significantly different" from those previously found. There were no different facts before me from those which were before RS Hulme AJ. The case was run in the same way on the second occasion. It seems to me that there is a difference between finding different facts and making different findings of relative criminality based on the same facts as were before the first judge. That is what occurred in R v Giotas and the CCA was critical of it.
Mr Popovic appealed against his first conviction and was successful. The CCA held that Mr Popovic did not receive a fair trial. Mr Popovic properly exercised his appeal rights and was vindicated in that regard. Although there was no evidence before me on this issue, the possibility exists that he may not have exercised that right of appeal if he knew, in the absence of any Crown appeal, that he was at risk of receiving a life sentence if he were convicted a second time notwithstanding that he received a determinate sentence on the first occasion. Although the comments of the various judges of the High Court in R H McL v The Queen are strictly obiter, I am concerned that Mr Popovic not be seen to be being punished for successfully appealing against his conviction.
In relation to Mr Popovic, I am unable to accept the Crown submission that the only sentence available to RS Hulme AJ to impose on him in the exercise of his sentencing discretion was one of life imprisonment. That is, I am not prepared to find that it was not open to his Honour in the exercise of his sentencing discretion to impose a determinate sentence on Mr Popovic. Beyond this, and in light of the way in which this matter was put to me by the Crown, I do not consider it necessary to consider the question of manifest inadequacy any further. Accordingly, I propose to use the sentence imposed on Mr Popovic by RS Hulme AJ as a guidepost to the determinate sentence that I would impose on him consistent with the authorities.
I should note that on the facts before me, which were the same as those before RS Hulme AJ, it would have been open for me to have made different findings regarding the relative seriousness of the offending as between the two offenders had I been sentencing Mr Popovic for the first time. Although they played different roles in the murder of Mr Sekuljica, both were involved in the planning of it and both were part of an agreement that involved the execution of Mr Sekuljica for money. Mr Popovic's role was to organise and plan the killing. In doing so, he arranged for Mr Koloamatangi as a hired gunman to carry out the murder. The motive for the murder was a relatively minor dispute between the deceased and Mr Popovic. There was no evidence put before the Court to suggest that Mr Popovic's culpability could be mitigated in any way with respect to the apparent motive for the crime.
The aggravating features relied upon by the Crown in relation to the sentencing of Mr Koloamatangi were also relied upon in relation to Mr Popovic: the offence involved the actual use of a weapon, Mr Popovic has a record of previous convictions, the offence was committed without regard for public safety, and the offence was committed while the offender was on conditional liberty in relation to another offence. It was suggested that the decision of the High Court in Veen v The Queen (No. 2) was relevant to the sentencing exercise of Mr Popovic because his previous conviction shows that he has a predisposition to resort to lethal violence to deal with persons against whom he has some minor falling out or whom he dislikes.
I have had regard to the findings that I have made concerning the seriousness of Mr Popovic's role in the murder. I have also had regard to the fact that he was on parole at the time of the murder for the killing of a man and the wounding of nine others in a public place. I have had regard to the tragedy of the death of his ex-wife, leaving his young children without a mother, and the anguish that he must feel in not being able to care for them himself. I have also had regard to his dysfunctional childhood. There is otherwise little in his case by way of mitigation.
I have also had regard to the standard non-parole period in this matter.
Having regard to these matters, and subject to the remaining issue of parity which I will turn to shortly, in the exercise of my independent sentencing discretion I would have imposed a sentence at least as high as that imposed on him by RS Hulme AJ. I do not propose to vary the ratio between the non-parole period of 26 years and a head sentence of 34 years such that it reflects the statutory ratio in s 44(2) of the Sentencing Act. The non-parole period reflects the minimum time to be spent in custody: Power v The Queen (1974) 131 CLR 623 (at 628-629); Bugmy v The Queen (1990) 169 CLR 525 (at 538). I am not satisfied that a non-parole period any lower would reflect this. Although there is no requirement to provide reasons for making this slight adjustment, I simply can find no reason to extend the parole period beyond eight years.

[20]

Parity

That leaves the last matter for my consideration: the question of parity in sentencing between the two offenders. Central to Mr Koloamatangi's submission as to why a life sentence should not be imposed on him was that he would have a justifiable sense of grievance if he were to receive a life sentence and Mr Popovic were to receive a sentence no greater than that imposed on him by RS Hulme AJ.
It was submitted on behalf of Mr Koloamatangi that there was an imbalance in the way that RS Hulme AJ sentenced the two offenders such that Mr Koloamatangi has a justifiable sense of grievance because the criminality of the two offenders is equal. Reliance was placed on the fact that Mr Popovic did not contract out the killing from some distance away; he organised the gun and the driver and obtained information as to where the deceased was. Mr Koloamatangi's position was not that Mr Popovic should receive a higher sentence, but, rather, that principles of parity require that if I were to impose a similar sentence on Mr Popovic as RS Hulme AJ did, I would not impose a life sentence on Mr Koloamatangi based on principles of parity.
This difficulty with the submission advanced on behalf of Mr Koloamatangi is that I would impose a sentence of imprisonment for life on him if I am satisfied that "the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." If I were so to find, then there is no room for me to decline to impose a sentence of life imprisonment on the sole basis of potential disparity with the sentence imposed on his co-offender. To put this another way, principles of parity could not prevail over principles concerning the circumstances in which a sentence of life imprisonment for murder is warranted.
The parity principle is a reflection of the notion of equal justice and is a fundamental element in any rational and fair system of criminal justice (Lowe v The Queen (1984) 154 CLR 606 (at 610) per Mason J). However, as Gibbs CJ observed in Lowe v The Queen (at 609): "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."
It could not be said that RS Hulme AJ was not mindful of the issue of parity. His Honour noted at [153]-[154]: "I have decided that the sentence to be imposed on Mr Koloamatangi should be substantially in excess of the sentences imposed on the other offenders. In so deciding I have not ignored considerations of parity. However - at least partly because of lack of evidence - I am not able to put the motivation of the other offenders in the same venal category is that of Mr Koloamatangi. I am conscious of the principle of parity but in light of the different roles of the prisoners and their different subjective circumstances, I do not regard that principle as requiring that the sentences I impose be of the same length."
I have already addressed the questions of the objective gravity of Mr Koloamatangi's offending as well as the other relevant subjective features of his case. In assessing whether his level of culpability in the commission of the offence warrants a sentence of life imprisonment, I have confined myself to the objective circumstances of the commission of the offence. In deciding whether the community interest in the four identified purposes of punishment can only be met by the imposition of a life sentence, I have taken into account other matters, such as the fact that Mr Koloamatangi was on parole at the time of the offence, his criminal history and his other subjective features. Having regard to all of these matters I am satisfied that a sentence of life imprisonment should be imposed on Mr Koloamatangi.

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