R v Lambroglou

Supreme Court of NSW|2024-06-06|Before: Davies J

Background to the offending

The parties have agreed a statement of facts from which I draw this summary.
About 9:30pm on 27 April 2022, Mahmoud "Brownie" Ahmad, who was a senior member of the Ahmad family Organised Crime Network, was fatally shot at Greenacre.
About 8:05pm on 10 May 2022, brothers Tarek and Omar Zahed were both shot at the Bodyfit Gym in Auburn. Omar Zahed was fatally wounded, and Tarek Zahed suffered serious injuries from multiple gunshots. At the time of the shooting, Tarek Zahed was the National Sergeant at Arms of the Comanchero Outlaw Motorcycle Gang (OMCG). One of the known links between the offender and the Comanchero OMCG is the offender's wife's cousin, George Lergou, a senior member of the OMCG for whom the offender did informal "work".

Participate in a criminal group

The Audi, used by the shooters, had been stolen from its owner on 7 or 8 November 2021. At the time of the shooting it had cloned number plates. A subsequent examination of the vehicle recovered a DNA profile of the offender from the rear cloned number plate. He was responsible for the placing of the cloned number plates on the vehicle. At the time he did so, he was participating in a criminal group, namely, an OMCG, knowing that it was a criminal group and knowing that his placing of the cloned number plates on the vehicle contributed to the occurrence of criminal activity. However, at the time he placed the cloned number plates on the vehicle he did not know that the shooters were going to murder Rami Iskandar.
Following the shooting, the shooters got into the Audi, drove a short distance and then used an ignitable liquid to destroy the Audi by fire. They then got into a silver Toyota RAV4 bearing cloned number plate DFG35A which had been parked in Tavistock Street by the offender about 42 hours earlier.
The offender had collected the Toyota RAV4 from the Lidcombe West/Berala area and driven it to where it was left parked in Tavistock Street, Croydon Park on the morning of 12 May 2022. In doing so, the offender was participating in a criminal group knowing that it was a criminal group and knowing that his positioning of that Toyota RAV4 contributed to the occurrence of the criminal activity. However, at the time he did not know that such criminal activity involved the murder of Rami Iskandar.
The shooters then drove the Toyota RAV4 to Coveney Street, Bexley North. They got out of the vehicle and used an ignitable liquid to destroy it by fire. They then entered a blue Hyundai i30 wagon that the offender had parked at Coveney Street about 31 hours earlier.
The offender had collected the blue Hyundai i30 wagon from Marrickville at about 8:45pm on 12 May 2022. The vehicle was left in Coveney Street for the shooters to use as a getaway car. In driving the vehicle and leaving it there, the offender was participating in a criminal group knowing that it was a criminal group, and knowing that his positioning of the vehicle for the shooters contributed to the occurrence of criminal activity. However, at the time he positioned the Hyundai i30 he did not know that the shooters were going to murder Rami Iskandar.
On 16 June 2022, a little over a month after the murder of Mr Iskandar, police found a stolen Holden Commodore in Adderley Street West, Auburn. It had been stolen from Winston Hills in November 2019 and it had cloned number plates. A DNA profile recovered from the cloned plates was consistent with the DNA of the offender. There is no evidence to suggest that the affixing of the cloned plates on the Holden Commodore was connected with the murder of Mr Iskandar.
These actions involving the black Audi SQ5, Toyota RAV4, the Hyundai i30 and the Holden Commodore constituted count 3 on the amended indictment of participating in a criminal group.

Accessory after the fact to murder

The shooters drove the blue Hyundai i30 wagon to XXX Railway Parade, Allawah at about 4:05am on 14 May 2022. In the meantime, the offender had a telephone conversation with his brother Lee which lasted almost two minutes. He rang Lee to obtain the key to the underground carpark of the unit complex where his brother Lee, and his mother were living at XXX Railway Parade, Allawah. He did so because he intended to provide access to the underground carpark for the blue Hyundai i30 wagon. By this time (4:06am), the offender had become aware that the shooters had shot and murdered Rami Iskandar.
By the time the offender arrived at that apartment block, the shooters were already waiting on the street in the blue Hyundai i30. Lee borrowed his mother's keys to the underground carpark and gave them to the offender. The offender then assisted the shooters by taking possession of the blue Hyundai i30 wagon and hiding it with a cover in the secured underground carpark of the apartment block. The shooters were then able to escape on foot and avoid detection after the murder.
Sometime later, and prior to September 2022, the offender allowed the blue Hyundai i30 wagon to be removed from the underground carpark of the unit block. The offender knew that it was being removed and believed it was to be destroyed. It was in fact destroyed subsequently, and that was done to destroy evidence and to help the shooters evade apprehension by preventing police identifying them. The police have not been able to recover the blue Hyundai.
On 29 September 2022, the offender's brother Lee went to Kogarah Police Station to attend a pre-arranged meeting with the police in relation to their investigation of the murder of Rami Iskandar. After the meeting, he returned to his home address in Oatley where he had a conversation with the offender about his meeting with the police. That conversation was lawfully recorded and included the offender saying that it was clear the police knew about the car that he had parked in the unit block because they were asking Lee about the garage. The offender also said, "Why are they putting so much money into it but, this is what's killing me. I don't know who the bloke was, I got no idea, I know sort of, but yeah, couldn't give a fuck".

Deal with property suspected of being proceeds of crime

On 22 August 2022, police were granted a surveillance device warrant to use surveillance devices in respect of the offender. A surveillance device was used at a property in Frederick Street, Oatley where the offender lived part-time.
The surveillance device recorded on 2, 9, 10 and 11 September 2022 conversations between the offender and his wife Maria while money was being counted using a money counter. The device recorded that Maria was assisting the offender to count the money.
At about 8:27am on Saturday, 8 October 2022 the police attended the Frederick Street property where they arrested and cautioned the offender. He was taken to Kogarah Police Station. He declined to participate in an electronically recorded interview.
A search warrant was executed at the Frederick Street property and the following were found by the police: 1. a Nike bag containing $490,000 (49 bundles of $10,000) in cash in a cabinet in the living room; 2. $6,650 cash above the desk in the living room; 3. 3 sachets containing white powder subsequently identified as being 1.42 grams of cocaine on the book shelf in the lounge room; 4. 1 sachet containing white powder later identified to be 0.11 grams of cocaine on the coffee table in the lounge room; 5. a box containing a money counter with the offender's fingerprints on it; 6. a hydraulic jack (block pressing) machine commonly used for compressing large blocks of prohibited drugs. The offender's fingerprints were found on the side frame of the machine, and a swab of the machine identified that it contained cocaine, procaine and methylamphetamine; 7. a Daily Telegraph newspaper dated 11 May 2022 with the front page headline "Bikie Boss Shot" accompanied by a photo of Tarek Zahed. A fingerprint on the newspaper was that of the offender.
A search warrant executed at the family home of Maria Lambroglou in Boronia Street, Kyle Bay resulted in $64,800 in cash being found in a bedroom shared by the offender.

Form 1 offence

The two amounts of cocaine found at the execution of the search warrant constitute the offence on the Form 1 of possession of prohibited drugs.

Subjective factors

The offender did not give evidence at the sentence proceedings. However, there was a lengthy and detailed report from the psychologist, Alison Cullen dated 26 May 2024 and a lengthy affidavit from the offender's older sister, Tina Gilliard. That affidavit largely corroborated a number of matters told to the psychologist by the offender. The offender also wrote a letter to the Court apologising to the victim's family, to the Court and the community, and to his family, for what he did.
The offender was the second of four children born to his parents' union. The eldest child was his sister Tina, with whom he has always had a close relationship. The offender's father was an alcoholic who physically abused the offender's mother and the four children, particularly the offender. From time to time the offender and Tina would be cared for by their maternal grandparents. Unfortunately, both children were sexually abused by their grandfather. Neither of them disclosed this until recently, and the offender has only disclosed it otherwise to his wife Maria.
In addition to being sexually abused by his grandfather, the offender was sexually abused by two male teachers at South Hurstville Primary School. For that reason he did not enjoy his time at primary school. His experience at high school was much better with him performing above average academically and playing high level sport. However, he felt unable to undress and change in front of his peers by reason of marks and bruises on his body inflicted by his father. The offender told Ms Cullen that he lived in such fear of his father, that the anticipation of his father's return home each day resulted in the onset of anxiety attacks from which he still suffers.
The offender's father suffered a stroke at the age of 55 years and died six months later. The offender was only aged 21 years at the time, but the father's death resulted in considerable responsibility being imposed on the offender to care for his mother and his brothers, Bill (10 years younger) and Lee (13 years younger).
Shortly after the father's death, the offender's mother started seeing another person and ultimately sold the family home. That resulted in 18 months of instability in the offender's life where he was moving between various homes of friends and family. He and his brothers ultimately moved in to live with their sister and her husband.
The offender completed his Higher School Certificate and then completed an electrical engineering certificate at TAFE. He commenced working with his father as an electrician, but two years later his father had the stroke, and the offender then took over his father's position in the company. Some years later, after an industrial accident where he broke his hand, he established his own company which he operated from 2008 to 2015. In 2015, he lost his most significant contract and then began working for his parents-in-law in their takeaway shop. He subsequently resumed his electrical business in 2019 but it was then hit hard by the COVID-19 pandemic.
The offender first commenced smoking both cigarettes and marijuana at the age of 13 years. His use of cannabis became a habit from the age of about 17 or 18 when it escalated to daily use. His drug use increased after his best friend committed suicide when the offender was aged 21. That coupled with the death of his father and his feeling of financial responsibility for his family led to him smoking a quarter of an ounce of cannabis every day. He only ceased smoking cannabis at the age of 33 when his wife gave him an ultimatum.
From the age of 17, he began using cocaine occasionally. By the time he was 21, it had gone from weekend use to every two to three days and thereafter daily. That appears to have continued up to the present offending because he told Ms Cullen that in the six months preceding the offences he felt unable to get out of bed without snorting a line of cocaine. He was using about 3.5 grams of cocaine "easily" each day.
He also trialled other substances including Xanax (unprescribed) and anti-depressants. He also commenced using "G" (GHB) in the three months prior to the offences in order to come down from the cocaine. He never misused alcohol, however, because of his father's abuse of alcohol.
Ms Cullen assessed the offender on a number of protocols and profiles. On the Depression Anxiety and Stress Scale, his classification was extremely severe for both depression and anxiety, and moderate for stress. Ms Cullen diagnosed him as suffering from post-traumatic stress disorder, persistent depressive disorder, severe amphetamine-type stimulant use disorder and moderate sedative-hypnotic or anxiolytic-related disorder.
The offender has a limited criminal record consisting of offences of a low order which have all been punished by fines, a bond and s 10 dismissals. He does not have any significant record of offending.

The offender's account of the offending to the psychologist

The offender told Ms Cullen that his only link to the OMCG was through his wife's cousin, George. He had not spoken to George for over 20 years, but reconnected around the time that his cocaine use escalated in early 2022. He denied being otherwise associated with any OMCG. He said he had no idea who the victim of the shooting was. This was somewhat at variance with what he was recorded as telling his brother, that he "sort of" knew who the victim was.
The offender told Ms Cullen that he had accumulated a drug debt of $22,000 as well as business debts following the pandemic in an amount of approximately $75,000. He said he was offered an opportunity to pay back his debts through the collection and counting of money. There was no discussion about how many collections would need to be made for his debt to be cleared but he said he was told he could stop at any time. He said he was being paid in drugs as they knew that he was going to keep coming back if he remained drug dependent. When Ms Cullen challenged him about why he would be receiving anything if the participation was to repay a drug debt, the offender explained that he repaid his initial drug debt through the collection and counting of money, and thereafter continued to get himself out of his business debt. I interpolate to comment that his explanation did not and does not provide an answer to the question why he was being paid at all, whether in cash or drugs, if he was working for these people to pay drug debts and business debts.
However, he said that his drug use increased which resulted in the accumulation of an additional drug debt of around $40,000. He said that the amounts totalling $561,450 found in his possession were related to collections he was tasked with.
With respect to the cloned number plates and the transportation of two vehicles, the offender maintained that this was an isolated request tasked to him. He maintained that he was not responsible for the cloning process per se. That, of course, is inconsistent with the agreed facts, and inconsistent with his DNA being found on the cloned plates. He said at the time he was taking a lot of drugs and he thought that they were stolen cars needing to be dumped rather than cars being used for something.
He told Ms Cullen again that he did not know the victim. He said that when he was first taken into custody, inmates had access to the Daily Telegraph and he searched for information relating to the victim. He said that he was haunted by thoughts of the victim and that if he had known that someone was going to die he would never have got involved. He added that inmates had informed him that requests had been made to harm him whilst he was in gaol.
This account in two respects does not sit easily with the Agreed Facts. First, as I have noted, the offender's DNA was found on the cloned plates. Secondly, a copy of the Daily Telegraph dated 11 May 2022 reporting on the death of Tarek Zahed was found on the execution of the search warrant (on 8 October 2022) with the offender's fingerprint on the newspaper. That was the newspaper for the day before the offender started to move any of the motor vehicles into their positions. While it seems odd that the offender would have retained that newspaper for some five months, I cannot draw any inference adverse to the offender in terms of what he knew about the murder of Mr Iskandar prior to 4:06am on 14 May 2022.
The account given by the offender to Ms Cullen is also obviously incomplete because it does not say how the offender was to be rewarded for the transportation of the vehicles, nor what the offender was to do to pay off the additional drug debt of $40,000. In that regard, it should be noted that the offender claims to have been assaulted at various times by prison guards, and his sister said that he has not had phone privileges for some 14 to 15 months after detectives visited him in prison. The conclusion I reach is that not all relevant information has been provided to the Court concerning the offender's involvement in the offences and with those for whom he was carrying out the money counting and the transportation of vehicles. Nevertheless, I must sentence him on the evidence which is available to the Court.

Participate in a criminal group

The Crown submitted that this offence fell within the mid-range of objective seriousness. The offender submitted that it fell towards the lower end of the spectrum.
I accept that the offender was unaware of the type of criminal activity he was contributing to, that is the murder of Mr Iskandar, but he was part of the group because of his link to his wife's cousin who was a senior member of the Comancheros OMCG. He knew, therefore that it was a serious criminal group.
Although the offender submitted that his involvement essentially consisted of the movement of vehicles and the affixing of cloned number plates over a confined period between 8:00am and 9:12pm on 12 May 2022, his participation is not so limited. The offender also knew that the Hyundai which he had left in Coveney St, Bexley North was to be driven to the unit complex where his mother and brother lived. That did not occur until 14 May 2022. That knowledge makes his explanation to Ms Cullen that he "thought they were stolen cars (needing to be dumped) rather than cars being used for something", unlikely to be truthful.
The agreed facts record that the offender was also involved in affixing cloned number plates to a Holden motor vehicle found on 16 June 2022. That coupled with his plea to the offence of participating in a criminal group "between about May 2022 and June 2022" means that his involvement is considerably longer than the events of 12 May 2022. Further, since the Holden was not used as part of the getaway plan from the murder of Mr Iskandar, the offender was clearly participating in a criminal group on a wider basis than the murder event and its preparation, albeit, the murder was unknown to him at the time.
There was certainly a considerable degree of planning by the group by stealing cars, affixing cloned number plates, and placing the Toyota and the Hyundai in particular places. There is no evidence, however, that the offender was part of the planning. The impression I have is that he was directed to carry out a number of tasks without being made aware of the bigger picture. The fact that he did not know until after the killing of Mr Iskandar that that was why he was affixing false plates and placing cars in strategic locations makes that clear.
In my opinion, the objective seriousness falls just within the mid-range.

Accessory after the fact to murder

The Crown submitted that this offending falls just into the mid-range of objective seriousness. The offender did not suggest where in the range the offence might fall, but submitted that his actions constituting the offence were of limited scope.
The matters to be considered were identified by Hamill J in R v Johnson [2014] NSWSC 1254 at [13] and approved in TT v R [2014] NSWCCA 206 at [15] non-exhaustively: (1) The circumstances of the homicide itself. (2) The extent of the knowledge in the accessory of those circumstances. (3) The precise act, or acts, which constitutes the offence of being an accessory after the fact. (4) The length of time over which the offender assisted the principal offender in escaping justice. (5) The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender. (6) The motivation of the offender in committing the crime. (7) The offender's conduct in being motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender. (8) The disposal or destruction of a corpse. These cases generally fall at the upper end of the range of criminality for the offence.
Assistance that significantly helps the perpetrator to escape justice is objectively more serious than assistance that is ineffectual.
The act carried out by the offender to constitute this offence was participating in the hiding of the Hyundai in the apartment complex in Allawah where his mother lived. It may be accepted that the Hyundai was not "the" get-away vehicle; that was the Audi. Nevertheless, the hiding of the Hyundai made the apprehension of the shooters difficult, and more difficult than if it had, like the other two cars, been destroyed and left in the street. The hiding of the Hyundai meant, in a sense, that the trail went cold.
The offender's act was not confined to the initial hiding of the vehicle because the car remained hidden for an uncertain period of time before it was removed and then destroyed to the knowledge of the offender. The recorded conversation between the offender and his brother on 21 September 2022 makes that clear.
It must be accepted that the offender became aware of the murder at 4:06am on 14 May 2022. He made the arrangements with his brother to obtain the keys to the underground car park with that knowledge. He was not at Allawah at that time. He then travelled to Allawah where the shooters were waiting with the Hyundai. As noted earlier, he knew the previous day that they would be driving that car to Allawah, but he did not then know that Mr Iskandar was to be murdered. While his offending cannot be considered to be "spur of the moment" such as a person who immediately cleans or destroys a weapon after a killing, it cannot be concluded that there was any real planning on the offender's part with knowledge of the murder. However, the offender had time to reflect on what was asked of him, namely, to conceal the car in the carpark to the mother's residence.
Further, he maintained the concealment for some time, and did nothing to alert the police to its concealment nor to its subsequent destruction. In Ah Keni v R [2021] NSWCCA 263; (2021) 292 A Crim R 311 Bathurst CJ (Simpson AJA and Bellew J agreeing) discussed the difference between the offence of accessory after the fact to murder and an offence under s 316 of the Crimes Act of concealing a serious offence. However, his Honour went on to say at [86]: That is not to say that silence, when associated with acts of active assistance, could never be taken into account in assessing the objective seriousness of the offence. I consider that the offender's ongoing silence while the car was being concealed by him is a matter inextricably linked to that concealment, and constitutes active assistance. Accordingly, it should be taken into account when assessing the objective seriousness of the offending.
The offender's motivation was not out of any sense of misguided loyalty or emotional attachment to the principal offenders, as in a family situation. He knew the people he was assisting were involved in criminal activity. There is no suggestion that he was acting under any form of pressure, coercion or non-exculpatory duress in agreeing to conceal the car.
The concealment of the Hyundai enabled the shooters to escape on foot and avoid detection after the murder. They have never been apprehended.
I consider that the objective seriousness is at the low end of the mid-range of offences of this nature.

Proceeds of crime

The Crown submitted that the offending fell within the high range of objective seriousness chiefly because of the amount of the money and the time over which it could be inferred the offending went on. The offender submitted that it fell towards the lower end of the range.
It may be accepted that the amount involved was more than five times the threshold for the offence, but there was no upper limit provided for the offence at the time it was committed. It has been said in cases involving the supply of a large commercial quantity of a prohibited drug that the absence of an upper limit is pertinent to the assessment of objective gravity: Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 at [148]. In that case, although the amount of the drug was 17 times the large commercial quantity threshold, the Court of Criminal Appeal held that it was not open to the sentencing judge to find that the offence lay in the upper range of seriousness.
I note with care what was said by the Court of Criminal Appeal in Shi v R [2014] NSWCCA 276; (2014) 246 A Crim R 273 at [45] to [48] concerning the risk of breaching the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 in relation to sentencing for offences like those contained in s 193C. The offender is here to be sentenced for dealing with the cash where there are reasonable grounds to suspect that the property is the proceeds of crime, and not because he had knowledge or was reckless. Those were offences under s 193B.
The two most significant matters are the amounts of cash and the period of the offending. Even though there was no upper limit to the amount in the offence, the total of the cash being dealt with was significant. The offending occurred over a five week period from 2 September 2022 until 8 October 2022 when the search warrant was executed.
The context in which the offence was committed is also a relevant consideration. In LN v R [2020] NSWCCA 131 Basten JA (R A Hulme J agreeing) said at [54]: So long as it is legitimate to view an offence in context, which may include other activities of the offender, it is apparent that context may either render the objective seriousness of the offending greater than would otherwise have appeared or, depending on the extent to which different criteria are involved, may increase the moral culpability of the offender. In either case, the result may be to increase the sentence beyond that which might have been imposed had the surrounding events not been examined. There is no reason in principle to conclude that conduct which may involve criminality should be excluded, whereas conduct not itself criminal could be examined. On any view, conduct adverse to the offender's interests must be established beyond reasonable doubt.
In Yacoub v R [2021] NSWCCA 166 Basten JA, having quoted the preceding passage from LN went on to say in a case concerning s 193C: [41] LN was an unusual case: the offender having been convicted of murder of her child, the question was whether the sentencing judge erred in taking into account a course of conduct leading to the fatal infliction of injury, involving consistent and escalating forms of assault, which could, perhaps, have been the subject of further charges but was not. The Court accepted that such conduct could be relied upon contextually in determining the moral culpability attaching to the charged offence of murder. [42] The present case does not fall into that category, but into the more usual category where the sentencing judge has regard to the circumstances in which the offending occurred and the proven motive of the offender. Drug supply cases frequently, if not usually, involve such factors. That one particular motivation may render the conduct more morally culpable than another, and thus lead to a higher sentence than might otherwise be the case does not render that matter something which cannot be taken into account. A finding that the applicant had the money in his possession for the purpose of money laundering does not mean he was being punished for one of the offences which involved a variety of mental elements beyond the mere existence of reasonable grounds to suspect.
The significant contextual matter in the present case is, as the Agreed Facts make clear, that the offender possessed and counted the cash for an OMCG. He also told Ms Cullen that he was being paid in drugs to perform the money counting so he knew that the OMCG for whom he was collecting and counting money dealt in drugs, although that is not to conclude that he knew the money he was collecting and counting derived from drugs or, indeed, from other crime. Collecting and counting money for the OMCG demonstrates that he was still participating in the same criminal group in September and October 2022, four and five months after the other offences were committed. I do not rely on that fact in assessing the objective seriousness of the offence of participating in a criminal group, but the fact that the proceeds of crime offence was carried out for the OMCG that dealt in drugs means that the offending was of greater seriousness.
In my opinion, the objective seriousness is high in the mid-range.

Discount for plea

The original charge certificate dated 10 May 2023 had six offences: (1) participate in a criminal group; (2) possess prohibited drug (on a s 166 certificate); (3) murder; (4), (5) and (6) three offences of deal with property reasonably suspected of being proceeds of crime - the amounts involved being respectively $490,000, $6,650 and $64,800. On 24 July 2023, the offender offered to plead guilty to what are now counts 2, 3 and 4 before he was committed for trial. The Crown rejected that offer, seemingly because it wished to pursue what is now count 1, being the offence of murder. When the offender was arraigned in this Court on counts 1, 2 and 4 (count 3 was a back-up offence on a s 166 certificate) he pleaded not guilty. The matter was fixed for trial on 29 April 2024.
On 25 March 2024 the offender offered to plead guilty to counts 2, 3 and 4. On 19 April 2024 that offer was accepted. What flows from that is a little complicated.
In relation to the accessory after the fact offence, s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") relevantly provides: (2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if - (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and (c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and (d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender. (3) Discount variation - offer to plead guilty to different offence The discount to be applied by the court is as follows - (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made before the offender was committed for trial, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offer was made after the offender was committed for trial and at least 14 days before the first day of the trial of the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if the offer was made less than 14 days before or on or after the first day of the trial of the offender.
The offender had offered to plead guilty to being an accessory after the fact ("the different offence") before he was committed for trial. The offence charged was murder. Thereafter, the prosecutor accepted the offender's plea at what is accepted as the first available opportunity, when the indictment was amended to charge the offence of accessory after the fact, after the offender had been committed for trial. Accordingly, he is entitled to a discount of 25% by virtue of satisfying s 25E(2) and (3).
In relation to count 3 (participate in a criminal group), although the offender had offered to plead guilty to this offence before he was committed for trial, the plea was not then accepted. The offence was originally certified as an alternative to murder. From the time of the amended charge certificate it was only a back-up offence on a s 166 certificate. Hence it did not appear on the indictment to which the offender pleaded when first in this Court. Its inclusion on the indictment of 29 April 2024 means that it is on that indictment ex-officio as the Crown accepts.
Section 25D(3) deals with new counts added to an indictment ex-officio. Ordinarily if an offender offers to plead guilty to the new count as soon as practicable after the ex-officio indictment was filed the offender would be entitled to a 25% discount, but subs (4) provides: (4) However, the discount in subsection (3) (a) does not apply if - (a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or (b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document.
Although this offence (the new count) was only put into the indictment on 29 April 2024, the facts and evidence that establish its elements are the same as those contained in the brief of evidence. The offender's submission, arguing for a 25% discount on the basis that it is a new offence on the indictment, does not grapple with the exception to s 25D(3)(a) where subs (4) applies. The result is that the offender is only entitled to a 10% discount for having pleaded guilty at least 14 days before the first day of the trial in accordance with s 25D(3)(b).
In relation to count 4 (proceeds of crime), there was no offence charged of dealing with property suspected of being the proceeds of crime in the sum of $561,450. Rather, there were three offences contrary to s 193C, involving $490,000, $6,650 and $64,800 respectively. Nevertheless, the offence contrary to s 193C was charged. All that occurred in the indictment of 29 April 2024 was that the particulars of the amount changed. I accept the Crown's submission that Division 1A is concerned with offences and not particulars. The matter is governed by s 25D(2)(b) as the offender accepts, and the offender is entitled only to a discount of 10%.
Section 25A(2) provides: A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division.
No provision is made in the Division for the situation where an offender offers to plead to an offence charged before committal, the offer is rejected but after committal the prosecutor accepts the plea, as happened in the present case with the proceeds of crime offence and the criminal group offence. In those circumstances, s 25D(2)(b)(i) applies, and the offender is entitled only to a discount of 10%. This situation is entirely unfair to an offender and appears to be inconsistent with the intent of the EAPG system. It means that the discount an offender receives is under the control of the prosecutor in that circumstance, although I certainly do not suggest any lack of good faith by the Crown in the present case. I respectfully suggest that this is a lacuna in Division 1A which requires the attention of the legislature.
Counsel for the offender drew attention to s 22A of the Sentencing Act which provides: 22A Power to reduce penalties for facilitating the administration of justice (1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). (2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
Counsel submitted that the offer of the offender to plead to counts 3 and 4 prior to committal demonstrated his willingness to facilitate the course of justice and that, accordingly, a lesser penalty should be imposed.
I reject the Crown's submission that s 22A only applies where there has been a trial on indictment. When regard is had to the whole of Division 1 of the Sentencing Act and particularly the juxtaposition of s 22, the reference in s 22A to being "tried on indictment" is a reference to the manner the charges come before the court. Further what was said by the Court of Criminal Appeal in Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81 and Dukagjini v R [2023] NSWCCA 210 at [18] assumes that s 22A applies to a consideration of what flows from a plea of guilty as well as the way a trial has been conducted by an accused.
I consider that the offender's offer of pleas to counts 3 and 4 at the pre-committal stage demonstrated a willingness to facilitate the course of justice. So too does the offender's agreement to the fact that from 4:06am on 14 May 2022, he was aware that the shooters had shot and killed Mr Iskandar. The Crown accepted that there was no such direct evidence in the Crown brief. A finding that the offender sought by his pleas to facilitate the course of justice does not result in a quantified discount but forms part of the process of the instinctive synthesis: Doyle at [19].

Assessment of the subjective case

There can be no doubt that the offender's childhood was not an easy one because of the violence inflicted upon him by his father and the sexual assaults he sustained as a child. However, as his counsel accepts, it is not such that principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 are relevant. Ms Cullen explains, by reason of the personality the offender developed, why he may ultimately have turned to drugs and engaged in the criminality that he did. There is nothing in his background which does other than explain why he might have acted as he did in committing the offences. His financial misfortunes contributed to his offending too, but there is nothing to conclude that his moral culpability for his offending is thereby reduced.
However, Ms Cullen concludes, and I accept, that his complex PTSD places him at increased vulnerability compared to other inmates, and in that way a custodial sentence is more onerous for him.

Remorse

Despite the fact that the offender did not give evidence of his remorse, I am satisfied on the basis of what he said in his letter to the Court, what he said to Ms Cullen, and what appears in his sister's affidavit from her discussions with the offender, that he is remorseful for his involvement in the murder of Mr Iskandar. Although, as will be discussed below, there are some difficulties accepting everything the offender has said to Ms Cullen and to his sister, I am satisfied from the way he has expressed his feelings over Mr Iskandar's death, that he is remorseful. That remorse seem to be related to his realisation in custody of the way that his use of drugs affected his behaviour. He said that going to gaol has had a positive outcome in helping him to overcome his drug addiction and to deal with his emotional issues.
The only matter of qualification is that it could be inferred from the recorded phone conversation of 29 June 2022 where he said he "couldn't give a fuck" about the bloke he "sort of" knew (that is, Mr Iskandar), that the offender was not remorseful in the weeks following his offending. However, even if such an inference could be drawn, my assessment is that the offender no longer feels that way. It seems likely that his time in prison and being drug-free has given him time to reflect on his offending.

Rehabilitation and reoffending

Ms Cullen assessed the offender's risk of reoffending using the Level of Service Inventory - Revised as being at a low risk of reoffending. The indications are that the offender has remained drug-free in custody. The case notes from Corrective Services speak very positively of his work and behaviour in custody. He has ongoing family support as the affidavit from his sister, and the letters from other relatives attest.
In all the circumstances, I consider that his prospects of rehabilitation are good and his risk of reoffending is low.

Extra-curial punishment and custody more onerous

In his letter to the Court, the offender says that he has been the object of verbal and physical abuse from other inmates and that he has been brutally beaten by correctional officers. He told Ms Cullen about the assaults from prison officers but, in relation to other prisoners, he told Ms Cullen only that inmates had informed him that "requests have been made to harm him in gaol". The offender's sister recorded in her affidavit that the offender had told her that he had been assaulted by prison officers for a year, but she does not say anything about him being assaulted by other prisoners. Ms Cullen says in her report that the offender's sister said that the offender was assaulted after detectives visited him and he wasn't able to give them information they wanted. He said he was assaulted by prison staff twice a month until August 2023, and thereafter once a month until the end of the year.
Counsel for the offender submitted that the assaults from other inmates amounted to extra-curial punishment and that the offender's time in custody was thereby made more onerous. Counsel also pointed to the fact that, at least for some of his time in custody, the offender was a Special Manager Area Placement (SMAP) prisoner. That was borne out by the prison records.
The difficulty is, first, that the evidence about assaults by other prisoners is scant and inconsistent and, secondly, there is no evidence about why the offender was being assaulted and if the assaults were connected at all to the offending. What is clear from his sister's evidence and what she said to Ms Cullen, is that the offender had substantial drug debts, something which might provide an explanation for assaults from other inmates.
Counsel for the offender submitted that if the offender believes the assaults from other inmates are related to the offending, even if misconceived, that makes his time in custody more onerous. However, the offender does not say that he believes he has been assaulted because of his role in the offending or for any reason at all. The absence of any explanation for the assaults by other prisoners means that no finding can be made that, by reason of those assaults, the offender's incarceration is more onerous than would otherwise be the case, nor that the assaults constitute extra-curial punishment. The only objective evidence touching the matter is that the offender is or has been a SMAP prisoner. That would ordinarily mean that his time in custody was more onerous, and I have taken that into account.
If the offender is being gratuitously assaulted by prison staff, as his allegations suggest, that is disgraceful, and needs investigation, but since there is no evidence of its connection with the offending, no allowance can be made for it as constituting extra-curial punishment.
There is another problem about these accounts which ultimately all come from the offender. Some of his complaints do not seem to be consistent with the contemporaneous records. I do not doubt that he has been assaulted - his sister refers to seeing his injuries and to his wincing in pain when she went to hug him on one occasion. The difficulty, as I have said, is not knowing what the cause of the assaults are or who the perpetrators were. The offender's sister told Ms Cullen that he had not had access to phone privileges "for the last 14-15 months" which would mean February 2023 to May 2024 (Ms Cullen interviewed him on 21 and 23 May 2024). Nothing in the prison records discloses or suggests any such loss of privileges. The offender has no punishments on his Corrective Services records. The Case Notes for the period do not indicate any such issue. The records of Visits both Contact and Video show no limitations.
In his letter to the Court, the offender says: "I have had no physical contact with my children and have rarely spoken to them in the last 20 months since I have been incarcerated". Yet the Visit records show Video contact with his children on a monthly basis (except April and August 2023), often more than once a month, and the last such interaction was only 5 days before he wrote his letter to the Court.
These inconsistencies cause me to scrutinise the evidence sourced from the offender with care and a degree of scepticism.

Deterrence

General deterrence and retribution are substantial considerations when sentencing an offender for being an accessory after the fact: R v Ward [2004] NSWSC 420 at [51]. General deterrence is also of some significance for participating in a criminal group and for the proceeds of crime offence, especially where the group concerned was an OMCG and the motivation for the offences was drug-related.

Special circumstances

I consider that special circumstances are demonstrated. I have concluded that the offender's prospects of rehabilitation are good, but because of his pre-custody drug issues, the real test will be on his return to the community. Noting what Ms Cullen has said about his psychological and personality issues in terms of how he reacts and responds to stresses, including financial stresses, I consider that he will need additional time under parole supervision to be eased back into being a productive member of the community.

Sentence

The offences are sufficiently linked to make an aggregate sentence appropriate. None of the offences comprehends either of the others with the result that there will be some notional accumulation. The sentence for count 4 is not increased by the offence on the Form 1. As a result of the s 193C offences being rolled into one, all of the offences on the s 166 certificate should be dismissed.
The offender went into custody on 8 October 2022 and the sentence will commence on that day.
In relation to the accessory after the fact offence, I have had regard to a number of cases which have provided a useful range of sentences, particularly R v McCloskey (No 5) [2020] NSWSC 1087, R v Hamalainen [2020] NSWSC 1705, Doudar v R [2021] NSWCCA 37 and R v Struik [2023] NSWSC 1548. Were it not for the discount for the early plea I would have indicated a sentence of 3 years 6 months. The indicative sentence is (slightly rounded down) 2 years 7 months.
In relation to the offence of participating in a criminal group, but for the plea to the ex-officio count, I would have indicated a sentence of 2 years. The indicative sentence, as a result of the discount of 10% is, (slightly rounded down) imprisonment for 1 year 9 months.
In relation to the proceeds of crime offence, I have had particular regard to the decision of the Court of Criminal Appeal in Yacoub. Without the plea entitling the offender to a 10% discount, I would have indicated a sentence of 3 years. The indicative sentence is, therefore, (slightly rounded down) 2 years 8 months' imprisonment. VINCENT BILL LAMBROGLOU - I sentence you to an aggregate sentence of 4 years 6 months commencing 8 October 2022 and expiring 7 April 2027 with a non-parole period of 3 years expiring 7 October 2025. You are first eligible for parole on 7 October 2025. The offences on the s 166 Certificate are dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2024

Crimes Act 1900(NSW)ss 18, 93T, 193C, 316, 349

14] NSWSC 1254 R v McCloskey (No 5) [2020] NSWSC 1087 R v Struik [2023] NSWSC 1548 R v Ward [2004] NSWSC 420 Shi v R [2014] NSWCCA 276; (2014) 246 A Crim R 273 TT v R [2014] NSWCCA 206 Yacoub v R [2021] NSWCCA 166 Texts Cited: Nil Category: Principal judgment Parties: Crown Vincent Bill Lambroglou (Offender) Representation: Counsel: C Taylor (Crown) P Lange (Offender)

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