Victim impact statement
38 A victim impact statement was tendered and, indeed, read by Mrs Kaye Cole, the mother of the deceased. That reading has afforded the opportunity to express the deep loss Mrs Cole and other members of the family of the deceased have suffered and hopefully may help to ease the grief those relatives have been experiencing. However, whilst I am mindful of what Mrs Cole had to say, it is not appropriate that I should have regard to the content of the statement in determining what sentences to pass upon the prisoners for the crime of murder: see R v Previtera (1997) 94 A Crim R 76; R v Bollen (1998) 99 A Crim R 510; and R v O'Hare [2003] NSWSC 652, and see also s 28(4) of the Crimes (Sentencing Procedure) Act 1999.
39 I now consider the subjective features concerning the prisoners.
40 Mazin Mehajer was born on 21 November 1976, so that when he committed this crime he was twenty-three years of age and he is presently twenty-six years old.
41 Mehajer gave no evidence on the hearing as to sentence but a pre-sentence report was introduced and the author, Ms Comely, interviewed the prisoner, the prisoner's parents and siblings for the purposes of the preparation of the report. From that report it emerges that the prisoner is the second youngest of eight children in a close and supportive Lebanese Muslim family. The family emigrated from Lebanon in 1977 and prior to going into custody the prisoner was living at home out of concern for his diabetic father's health problems.
42 Ms Comely reported on the prisoner's employment record, which appears to have been a good one. The prisoner left school, having attained the Higher School Certificate, and did work in the building trade before becoming a site security officer. Subsequently he worked as a kitchen builder and a forklift driver, and most recently he worked for a meat wholesaler. I note amongst references that Mr Pike tendered, there is a reference from a director of the employer company by which the prisoner was most recently engaged. This is a most favourable reference and refers to the position of trust and responsibility Mehajer was recently given as a warehouse/load-out supervisor. The referee refers to Mehajer's exceptional team leader skills.
43 Ms Comely, in concluding her report, wrote:
"Mr Mehajer comes from a close and supportive family background, so much so that the deepest regret he expressed over the offence was in facing his parents and not being in the community to assist them with their health problems. He has no history of violence and appears to have been well regarded in the community as a loyal son and a quiet and reliable employee with good leadership skills. He has been heavily involved in rugby union, bodybuilding and other sporting pursuits. Despite his commitment to sport and fitness he was involved in the use of cocaine and anabolic steroids, but there appears to be nothing in his background that would predict an offence of this nature. He claims he was unaware of the intentions of his associate, but this is open to interpretation as minimizing his responsibility for his involvement in the offence. Given the gravity of the offence it must be noted that he failed to express regret in relation to the death of the victim but rather protested his innocence and insisted that he did not administer the fatal punch."
44 Mehajer had not been in trouble before 3 March 2000. His only conviction is a conviction at Penrith Local Court recorded on 19 June 2003 for an assault occasioning actual bodily harm. That assault, his record discloses, was committed on 24 May 2001 and the prisoner was punished by way of a fine of $1500.
45 In R v Hutchins (1958) 75 WN 75 at 76, Street CJ said:
"I think it is clear that in sentencing the applicant in June 1957 for a crime committed in September 1954, his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates, and he was entitled to take them into account for the purpose of considering whether he should reduce what he would otherwise have regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth."
46 The above remarks were cited with approval in the Court of Criminal Appeal in R v Boney (unreported, 22 July 1991), and having cited them Grove J went on to say:
"It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence."
47 With Grove J's decision the other members of the court agreed.
48 It is appropriate then that a sentencing court pay regard to a subsequent offence to see whether any claim for leniency is affected by that offence, but it is not appropriate to increase the punishment for the offence committed earlier in point of time by reason of the later conviction.
49 In the present case, I have no evidence about the later offence for which the prisoner was fined in the Local Court. It was a category of offence of a serious nature but the court did not see fit to impose any term of imprisonment, and I do not approach my sentencing task on the basis that any leniency to which the prisoner would otherwise have been entitled by reason of his earlier good record would be forfeited because of the later offence.
50 The prisoner's earlier good record stands to his credit.
51 As I have already remarked, Mr Pike tendered a number of references (Exhibit 3). Apart from references from his employer, there are other people who have written in a laudatory way of the prisoner and of their association with him.
52 The subjective features I have reviewed are favourable and whilst the prisoner has not acknowledged his guilt for these grave crimes, nor has he expressed or manifested contrition, I nevertheless regard his prospects of rehabilitation as being reasonably good.
53 The much cited decision in R v Dodd (1991) 57 A Crim R 349 draws attention to the important principle that the subjective features of the case, however favourable, must not be allowed to produce a sentence which fails to pay due regard to the objective seriousness of the crimes. I must bear this in mind in my present task.
54 In considering the criminality of Mehajer, I am mindful that he provided the transport, he was armed with a knife and he used that knife to restrain Phillips. I also find that whilst he was so equipped he was the person who said what Phillips heard said and to which I referred earlier in these remarks on sentence, namely: "Where is it, where's the cash, where's the stash. I am cutting your friend's throat here." Mehajer did not use the knife to injure Phillips but nonetheless there was the threat of use intended no doubt to influence the deceased. I add that it was Mehajer that led the intruders into the café.
55 I remind myself of all the purposes of sentencing which are now of course stated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I also remind myself that s 21A requires that I have regard to aggravating and mitigating factors as identified in that section and to which I have already adverted in these sentencing remarks. I also have regard to the vulnerability of the deceased as a shopkeeper conducting a small business.
56 Mehajer was arrested on 15 October 2001 but was later released on bail on 5 February 2002, having spent sixteen weeks in custody. He was returned to custody after the verdict of the jury on 22 May 2003 and has remained in custody ever since. I propose therefore to backdate his sentence to allow credit for time already served.
57 John Jacobs was born 8 October 1978. He is thus somewhat younger than Mehajer. He was twenty-one years of age when these crimes were committed and he is presently twenty-four years old.
58 This prisoner had an extremely harsh upbringing and evidence was given concerning this by his grandmother and by his aunt. With each of these witnesses I accept that Jacobs formed a very close relationship. His parents had separated when he was very young and the prisoner stayed with his mother who abused drugs. I accept that the prisoner was badly neglected by his mother, although I am sure his grandmother, Mrs Betty Sharp, and his aunt, Ms Wendy Sharp, did what they could for him. Eventually, after his father had remarried, the prisoner went to live with his father and stepmother for a time; this was from about the age of thirteen. However, by the time he was fourteen or fifteen Jacobs went to live with his paternal grandparents.
59 After achieving the School Certificate, the prisoner left school and became apprenticed to a boilermaker. He changed employers after twelve months and remained with a welding and fabrication company until he completed his apprenticeship. In 1999 his employer went into liquidation and after that Jacobs worked as a steel fixer. At the time of his arrest Jacobs was a foreman with a company known as Superior Welding and Fabrications.
60 The prisoner's grandmother gave evidence of her belief that her grandson seemed to have overcome the difficulties of his early life pursuing his regular employment. Her assessment of her grandson was that he is a very gentle person, and Mrs Sharp was unable to understand how he became involved in this criminal activity. To the like effect, the prisoner's aunt gave evidence that she found her nephew to be a loving and gentle person who was never involved in drugs, and the prisoner's aunt said that she had never known him to be violent or aggressive. Steadfast loyalty to his mates was a characteristic of the prisoner and, as I understand her evidence, it is the belief of this witness that this was his undoing because he is easily influenced by others.
61 Ms Duffy carried out a psychological appraisal of the prisoner on 7 July 2003. To that psychologist the prisoner gave an account similar to the account given to the jury at the trial. Ms Duffy, in the conclusion to her report, wrote:
"John's presentation at our interview and the results of objective personality assessment show him to be currently anxious and depressed in response to his circumstances as he awaits sentence for a most serious charge. He continues to assert that his role was peripheral in the matter and is obviously very upset at himself for having become involved, even to the degree that he did.
John's background reveals some instability in his early family life, where he particularly felt unwanted and unloved by his mother, whom he continues to regard as selfish, putting her own needs before his own. Her involvement with abusive and aggressive partners following his parents' separation only served to make John's life more miserable as he was continually beaten. This disconsolate family life would certainly have contributed to his depressive personality and underlying feelings of inadequacy and vulnerability. To John's credit, he had the strength to persevere in his desire to remove himself from his mother and her partners to live with his grandparents and later his father and stepmother, Sue.
Despite these disadvantages early in his life, John has achieved a trade and had no significant contacts with the law until this charge. The circumstances around his offence arose from his being caught up in a situation 'at the wrong time at the wrong place'. After finding out about the death of the victim, his anxiety levels have been extremely high. He generally tended to keep these emotions to himself and could not confide his problems to his erstwhile girlfriend. John has learnt to distance himself from his feelings, possibly as a result of his abusive background. Now that he has been convicted, he is extremely anxious and devastated as well as depressed and may have to be monitored for self-harming attempts. Although he is trying to keep as busy as possible, the prospect of an extensive period of time in gaol understandably is very distressing for him…"
62 Mr Hoenig tendered a number of references (Exhibit 2). These include references from the grandmother and the aunt who gave evidence. They also include a reference from the prisoner's grandfather. There is also a favourable letter from the Anglican Chaplain, who has had contact with the prisoner during his time in prison. There is a reference too from the managing director of the employer company who has commended the prisoner's work behaviour.
63 The prisoner has one conviction, which was for common assault. The offence was committed in 1999 and the prisoner was fined $400. The prisoner's aunt gave some evidence as to her understanding of what led up to this offence, namely that somebody stoned the prisoner's car. This led to an altercation. I observe that the prisoner was dealt with by way of a monetary penalty only.
64 Until the events of 3 March 2000 this prisoner appeared to be leading a very useful life and to have overcome the very real handicap of his harsh upbringing in tender years. I consider that this prisoner's prospects of rehabilitation are favourable, although, like Mehajer, he has neither expressed nor manifested his contrition for this crime.
65 Once again, I have regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act. Unlike Mehajer, this prisoner was not armed but, of course, I have found that he entered the café knowing Mehajer was carrying a knife. I remarked earlier on the vulnerability of the deceased.
66 Consistently with the evidence Jacobs gave before the jury, this prisoner asserted to Ms Duffy that his role in the commission of these offences was peripheral. As earlier stated, I do not accept this. As I recorded earlier, I reject his evidence as to why he entered the café and find that all three offenders went to Leumeah for the very purpose of targeting Colie's Café and of robbing its occupants.