Offender: Unless you were gunna pay for it. And after I saw the fuckin' Australia's Most Wanted his wife's crying, I really fuckin' felt bad. Fuckin' human nature but still a job's a job, someone's gotta do it.
34 I conclude from the circumstances I have summarised that when he went to the Crime Commission in October 1999 the offender expected, whether he pleaded guilty or not, that he would be convicted of the offences with which he had been charged and very probably receive the maximum prescribed sentences and that he reasoned that the only way in which he might receive lesser sentences was to offer and give such assistance as he could to the investigating and prosecuting authorities. I do not intend by putting the matter in this way to suggest that the offers of assistance were less than genuine, but simply that for the offender they represented a calculated attempt to do whatever he could to improve his position. The arrangements into which he entered required him to plead guilty, of course.
35 On 21 October 1999 the offender provided a statement which dealt in detail with his work and criminal history, with particular reference to his dealing in drugs and his relations with those who wanted Mr Brikha and Bessounian killed and about the detail of the arrangements made for the murder of Mr Brikha. On 8 November 1999 he made a further statement setting out the detail of the arrangements made to lure Bessounian to his death. He identified records of calls between mobile telephones and told the Crime Commission investigators as much as he knew about the owners and users of the several telephones involved. Altogether he attended the Crime Commission four times. He gave sworn evidence at a Crime Commission hearing.
36 On 8 November 1999 he was interviewed by officers of the New South Wales Police Service and made an induced statement setting out the detail of the part he had played in the attempt to lure Bessounian to his death.
37 Zreika had been arrested on 5 June 1999 and made an induced statement at the New South Wales Crime Commission on 24 November 1999, giving details about the Brikha murder and the parts played by himself, the offender and others. However, there is no evidence that he made any statement about the plan to murder Bessounian.
38 As a result of evidence provided by the offender and others Colin Kaddour and Bassam Turkmani were arrested and charged with soliciting to the murder of Mr Brikha. Their committal hearings are part heard in the Local Court. The offender has given or will give evidence at that hearing and will give evidence at the trial if Kaddour and Turkmani are committed for trial.
39 Zreika was charged with wounding Bessounian with intent to murder on 30 July 1996, with wounding him with intent to murder on 25 March 1998 and with threatening a witness. The offender gave evidence at Zreika's trial in the District Court, limited, of course, to the events of 25 March 1998. Zreika was found guilty and sentenced to a series of long periods of imprisonment.
40 Hesham Turkmani was charged with soliciting to the murder of Bessounian and with being an accessory before a shooting with intent to murder Bessounian. He was discharged by a Local Court magistrate on 26 May 2000 and the Director of Public Prosecutions is considering whether to file an ex officio indictment. If he is tried it is expected that the offender will give evidence.
41 S 23 Crimes (Sentencing Procedure) Act 1999 provides that a court may impose a lesser penalty than it would otherwise impose having regard to the degree to which the offender has assisted or undertaken to assist law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to the offence concerned or any other offence. Subs (2) requires the Court to consider a number of matters in deciding whether to impose a lesser penalty and, if so, the nature and extent of the penalty it imposes. Subs (3) provides that a lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence.
42 I will deal only with those considerations required by subs (2) which appear to have particular relevance to this case. Two such matters appear to favour the Crown in its argument that no lesser penalty than the maximum should be imposed. They are the effect of the offence on the victim or victims and on the family of the victim or victims and whether the assistance relates to the offence for which the offender is to be sentenced or for some other offence.
43 Although the effect of a murder upon the family of the murdered person may not be taken into account in fixing the sentence, it may be given weight in the consideration of and may possibly stand in the way of a lesser penalty for assistance to the authorities. That is the combined effect of R v Previtera (1997) 94 A Crim R 76 and s 23(2)(a) Crimes (Sentencing Procedure) Act.
44 These offences had a very serious effect upon the partner and children of Mr Brikha and upon Bessounian. A victim impact statement was tendered on behalf of Ms Michelle Louise Escott, the partner of Mr Brikha. She was at home with her children when the offender killed Mr Brikha. She heard the shots and ran outside. He died in her arms. She went into shock and could not stop screaming. She cannot forget what happened. She is being treated for depression and post-traumatic stress syndrome has been diagnosed. The couple had three children. The two eldest, a girl and boy, miss their father and are very distressed at what has happened. The youngest child was only little when Mr Brikha was killed and has been diagnosed with autism spectrum disorder. He has communication and behavioural problems which require close and special attention.
45 The family have lost the financial support that Mr Brikha provided and live on income from Social Security. Life is consequently very difficult in view of the special needs of the youngest child. Ms Escott has sold the house where she, Mr Brikha and the children lived because she could not face bringing up the children in that place.
46 I have already summarised the injuries received by Bessounian and their effect. He was badly hurt and his life was threatened. Fortunately there is no evidence of any serious permanent incapacity.
47 These consequences are all very serious.
48 Sometimes offenders assist investigating and prosecuting authorities not only in relation to matter with which they have been charged but with unrelated matters as well. The preparedness of an offender to do so is capable, generally speaking, of leading to very high rates of reduction from the sentence that would otherwise be imposed. Here, one need say no more than that the assistance related only to the offences with which the offender himself was charged. That is not to play down the value of it, however.
49 So far as is relevant to this case, the remaining matters to be taken into account appear to favour the offender. The first three may be considered together. They are the significance and usefulness of the assistance, taking into account any evaluation by the authorities, the truthfulness, completeness and reliability of information given or evidence provided and the nature and extent of the assistance or promise of assistance. A letter was received from P Bradley, Commissioner, New South Wales Crime Commission dealing with the assistance given by the offender. It shows that the arrest of Colin Kaddour and Hesham Turkmani resulted directly from the information provided by the offender. It shows that the Crime Commission has assessed as truthful the information the offender has provided. The letter also shows that the offender was largely responsible for the successful prosecution of Zreika. That statement, of course, must be taken as being confined to the shooting of Bessounian on 25 March 1998. The several accounts he has given appear to be complete.
50 The Court must consider whether the offender will suffer harsher custodial conditions as a consequence of his assistance and any injury or danger to him or his family. He had a partner at the time of these events. The Court was informed that the relationship is not likely to subsist for long in view of the substantial custodial sentence the offender is facing. There appears to be no danger to the offender's partner. However, it is quite apparent that, having thrown in his lot with criminals and having informed upon them, he will face danger of injury or death for the duration of his time in custody and perhaps afterwards as well. He will need to take advantage of any protection which may be afforded him in the correctional system, but that will make his service of his sentences harder because it will deny to him the full run of work and other opportunities within the correctional system.
51 The final matter for consideration is any likelihood that the offender will commit further offences after being released from custody. All that it is necessary to say about that is that the offender will have to spend such a long time in custody that it is impossible to predict how he might behave on his release.
52 It seems to me that notwithstanding the serious effect upon the persons affected by these offences, particularly upon the family of the late Mr Brikha, the offender's assistance and promise of further assistance must be given very great weight in view of their obvious completeness and of the positive results they have already yielded and perhaps will yield, especially in view of the danger the offender will be in for the rest of his life and the harsher sentence he will serve as a result.
53 It was submitted on behalf of the Crown, relying on s 23(3) Crimes (Sentencing Procedure) Act, that any penalty less than the maximum prescribed for each of these offences would be unreasonably disproportionate to the nature and circumstances of the offences. I am unable to accept that submission. The general availability of lesser sentences for offenders who give valuable assistance and thereby place themselves in significant personal danger is an important feature of the administration of criminal justice and results in substantial benefit to the community in the solution of crime and the successful prosecution of offenders who would otherwise go free. Notwithstanding the very serious nature of the offences, it seems to me that the assistance given and offered, and the quality of it, are enough to entitle the offender to sentences less than the maximum prescribed. The reduction which I shall apply to the sentences will be tempered by the serious effect of the offences on those concerned.
54 Although the two principal offences resulted from independent arrangements, they were temporally close and were intimately connected with the offender's criminal enterprises. It is therefore appropriate to impose substantially concurrent sentences. However, it is necessary to make them partly cumulative in order to reflect the totality of the offender's criminality.
55 The partial accumulation of the sentences makes it necessary to impose a non-parole period for the murder sentence which is less than three-quarters of the sentence. The adjustment I have made produces a total sentence for both offences the non-parole period of which is three-quarters. There is no other circumstance that requires the shortening of the non-parole period of the murder sentence. It is not appropriate to set a non-parole period for the conspiracy sentence because it will be served wholly within the non-parole period of the murder sentence.
56 Wai Hung Anthony Lo, for conspiring to murder Raphael Bessounian I sentence you to imprisonment for eighteen years commencing on 7 April 1999 and expiring on 6 April 2017. I decline to fix a non-parole period.
57 For the murder of Albert Brikha I sentence you to imprisonment for thirty-two years commencing on 7 April 2003 and expiring on 6 April 2035. I fix a non-parole period of twenty-three years which will expire on 6 April 2026. You will then be eligible for release on parole. In sentencing you I take into account under the provisions of s 32 Crimes (Sentencing Procedure) Act 1999 the charges listed in the Schedule provided under that section.
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