R v Natuba; R v Tamapua

5Tamapua (who was 20 years of age at the time of the offences) pleaded guilty to the following offences: (a) An offence of specially aggravated break, enter and steal contrary to s.112(3) Crimes Act 1900 - on 29 June 2010 at Ashcroft, breaking and entering a dwelling house and committing a serious indictable offence therein, namely larceny, knowing that a person was in the place where the offence was committed and at the time of committing the offence, inflicting grievous bodily harm upon James Stiff ("the Ashcroft offence"). (b) An offence of murder contrary to s.18(1)(a) Crimes Act 1900 - on 1 July 2010 at Lurnea, the murder of Kesley Burgess. (c) An offence between 3 and 4 July 2010 at Miller, of possession of a firearm, a shortened .22 calibre rifle, without being authorised contrary to s.7(1) Firearms Act 1996. (d) An offence, between 3 and 4 July 2010 at Miller, of possession of an offensive weapon, a shortened .22 calibre rifle, with intent to commit an indictable offence, affray, whilst in company of Mohammad Karimi ("Karimi"), Ray Tuki ("Tuki") and Richard Vergara ("Vergara"), contrary to s.33B(2) Crimes Act 1900. 6Tamapua asked the Court to take into account on sentence for murder, on a Form 1, the following offences: (a) Conspiracy to carry out a robbery whilst armed with a dangerous weapon at Villawood on 29 June 2010. (b) Robbery of Maxine Rogers whilst armed with an offensive weapon at Warwick Farm on 1 July 2010 ("the Warwick Farm offence"). (c) Robbery of Tracey Burgess whilst armed with an offensive weapon at Lurnea on 1 July 2010. Natuba 7Natuba (who was aged 19 years and five months at the time of the offences) has pleaded guilty to the following offences: (a) The Warwick Farm offence - robbery whilst armed with an offensive weapon contrary to s.97(1) Crimes Act 1900 - committed on 1 July 2010 against Maxine Rogers. (b) The murder of Kesley Burgess on 1 July 2010 at Lurnea. 8Natuba asks the Court to take into account on sentence for murder, on a Form 1, an offence of robbery of Tracey Burgess whilst armed with an offensive weapon at Lurnea on 1 July 2010. Maximum Penalties and Standard Non-Parole Periods 9The maximum penalty for murder is life imprisonment and a standard non-parole period of 20 years applies. 10The maximum penalty for an offence under s.112(3) Crimes Act 1900 is imprisonment for 25 years, with a standard non-parole period of seven years. 11The maximum penalty for an offence under s.97(1) Crimes Act 1900 is imprisonment for 20 years, with no standard non-parole period applying to that offence. 12The maximum penalty for an offence under s.7(1) Firearms Act 1996 is imprisonment for 14 years, with a standard non-parole period of three years. 13The maximum penalty for an offence under s.33B(2) Crimes Act 1900 is imprisonment for 15 years, with no standard non-parole period applying to that offence.

14In the case of each Offender, an Agreed Statement of Facts was tendered by the Crown. These statements were detailed, with identical core features, and with differences reflecting the roles of the Offenders in the various crimes. 15In addition, both Natuba and Tamapua gave evidence at the sentencing hearings. 16What follows constitutes findings of fact drawn largely from the Agreed Statements of Facts. 17A large number of persons are referred to in this factual recital. A number of these persons have already pleaded guilty and been sentenced in the District Court for their involvement in the offences, being persons who were not charged with murder, Richard Vergara ("Vergara"), John Bautista ("Bautista") and CB. In addition, a number of persons (John Khoury ("Khoury"), Mohammed Karimi ("Karimi") and Mahdi Mir ("Mir") are to stand trial in this Court for murder and other matters in 2013. 18MA, Thomas Byquar ("Byquar") and David Ramos ("Ramos") pleaded guilty and were sentenced by me on 11 December 2012: R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527. 19Tuki was, on 23 November 2012, found unfit to be tried for the offences with which he is charged: R v Tuki [2012] NSWSC 1436. Background to Offences 20In February 2010, Shane Kraak ("Kraak") moved into a house at Claymore where he met Tamapua and his partner, Witness C. 21In May 2010, Vergara was associating with Tamapua. Vergara was friends with Ramos, MA, CB and Bautista. 22In mid-to-late June 2010, Tamapua met Khoury, Tuki and Karimi - Tamapua knew Tuki from a time when they played football together. 23Khoury invited Tamapua, Vergara and Kraak to his home in Villawood (referred to as "the compound"). Khoury then invited Tamapua to join his group, called the "United Brotherhood". Tamapua accepted. 24Tuki and Karimi were already members of the United Brotherhood and were Khoury's left and right-hand men. 25Tamapua stated that he was answerable to Tuki so that "if Ray wants one of my boys, he comes to me and says I want to take him with me this and that, and I say Alright, go with him". 26A couple of days later Khoury began telling Tamapua, Vergara and Kraak about his plan to shut down all the drug dealers within the Liverpool, Warwick Farm and Villawood areas by committing home invasions to take their drugs. 27On Tuesday, 29 June 2010, Tamapua and Vergara met in the Glenfield area. Tamapua stated that they caught a train to Villawood to meet Khoury, who had "jobs" for them to do that night. A number of people were in telephone contact with each other leading to a meeting at the compound. Ramos had access to his father's Toyota Tarago van, which came to be used in the offences. Vergara contacted Ramos concerning the use of the Tarago. 28At the meeting at the compound on the evening of 29 June 2010, those gathered discussed offences to be committed that night. Those present at the meeting were: (a) Khoury (29 years' old); (b) Karimi (22 years' old); (c) Bautista (21 years' old); (d) Tamapua (20 years' old); (e) Tuki (20 years' old); (f) Vergara (19 years' old); (g) Ramos (18 years' old); (h) Aimee Walsh ("Walsh"), Khoury's girlfriend (18 years' old); (i) MA (17 years, eight months' old); (h) CB (17 years, five months' old). 29Khoury gave the group instructions to commit a home invasion on the premises of Khoury's ex-girlfriend's uncle at Lakemba. Khoury wanted the group to steal firearms from a safe in the house that included a Desert Eagle .357 pistol, two Beretta pistols and a Glock pistol. Khoury told the group that they would be paid from the proceeds obtained from the guns. 30Khoury emphasised his particular desire that the Desert Eagle pistol be obtained. It was planned that four males would go inside the house, whilst Karimi and Tamapua stayed in the car in case something went wrong. 31Khoury gave the group weapons, including a large serrated machete and a sawn-off .22 calibre rifle, which were otherwise kept at the compound. Tamapua stated that the machete was his. Conspiracy to Commit Robbery Whilst Armed with a Dangerous Weapon on 29 June 2010 (Form 1 Offence for Tamapua) 32Khoury and Walsh drove to the Lakemba address in a vehicle with Tamapua, whilst MA, CB, Karimi, Vergara and Bautista were driven by Ramos in the Tarago van. Khoury pointed out the address and then departed. 33Karimi loaded the .22 sawn-off rifle and then gave it to Vergara. Vergara checked out the property and returned to the vehicle, with MA, CB and Bautista following Vergara into the house. Karimi, Tamapua and Ramos remained in the Tarago van. One of the men accompanying Vergara was armed with a large machete, whilst another had a bag to collect the intended proceeds. 34Soon after, the group returned empty handed to the Tarago van. Vergara told Karimi that they had not done the job because there were three boys and two girls in the house, and they thought they were outnumbered. Karimi became upset because Khoury had given directions that he wanted the Desert Eagle pistol from the house. Karimi instructed them to return to the house and complete the job. 35The group of young men then returned to the house. Once again, they returned empty handed to the vehicle a couple of minutes later. Vergara said that the people had now left the house so they could not carry out a home invasion. Karimi became extremely angry, and took the rifle from Vergara and told them to return to the compound saying, words to the effect, "We are going to get shot when we get back to the compound". Tamapua stated that this was a reference to Khoury becoming very angry when they went back empty handed. The Ashcroft Offence - Specially Aggravated Break, Enter and Steal Offence on 29 June 2010 Involving Serious Injury to James Stiff (Offence of Tamapua) 36After the failed home invasion on the evening of 29 June 2010, the group returned to the compound where Khoury was informed as to what had happened. On hearing this account, Khoury told the group that they would do a job at Ashcroft. 37Khoury directed Tamapua that MA, CB, Vergara and Bautista were to go with Tamapua to do the Ashcroft job. Vergara was given a large machete for that purpose. The plan was that four males would enter the Ashcroft address, which was believed to be occupied by a known drug supplier, with Tamapua and Karimi remaining outside. The purpose of this raid was to steal drugs and money at the house, and return them to Khoury. Tamapua stated that the Ashcroft offence was to be an initiation for Vergara, who had failed with the Lakemba job. 38Tamapua, MA, Vergara, Karimi, CB and Bautista travelled in the Tarago van, which was driven by Ramos to Ashcroft. Ramos drove past the nominated address in Ashcroft and Tamapua pointed out the house. According to Tamapua, it had been intended that the job be done the previous night, "but the bloke wasn't home". 39MA, Vergara, CB and Bautista got out of the Tarago van and walked towards the Ashcroft house. Vergara was armed with a large machete. CB carried a bag to collect the stolen property. Tamapua, Karimi and Ramos remained in the Tarago van. Karimi had the shortened .22 rifle with him although it remained with him in the Tarago van. 40James Stiff (39 years' old) lived at the Ashcroft property with his wife and three teenage children. At about 10.40 pm, one of the Offenders knocked on the front door of the property. All members of the Stiff family were asleep at that time. Mr Stiff walked to the front door and asked "Who is it?". He heard a voice say "It's Damo" and he thought it was a person that he knew. After opening the front door, Mr Stiff observed Bautista holding the screen door open with his back. At this point, Vergara stepped up to the front door and swung the machete at Mr Stiff, who put his left arm up to protect himself. The machete hit his forearm causing a deep cut down to the bone. The wound bled profusely. 41MA, Vergara and Bautista forced their way through the front door heading to the lounge room. MA was wearing a "hoodie" pulled over his head. MA moved towards Mr Stiff and pointed at him, what appeared to be a rifle covered with a red cloth. MA said "Don't move or I'll blow your fucking head off". 42Mr Stiff retreated to a corner of the lounge room, still in the presence of MA. Mr Stiff was going into shock as he saw a large flap of skin and muscle hanging off his arm and the bone below. 43Bautista and Vergara walked to the hallway adjoining the lounge room. Mr Stiff's 17-year old daughter awoke at this point and went to the bathroom. As she walked into the hallway, she saw two men, Bautista and Vergara. Vergara was holding a machete, and wore black gloves and a black-hooded jumper with the hood pulled over his head. He held the machete out in front of him and was waving it in a threatening manner. 44Mr Stiff's 18-year old son heard a male voice say "Get back in your room". He could hear his sister commencing to cry, so he opened his bedroom door. He observed a male (Bautista) who demanded "Where's all the money?". At the same time, he observed Vergara with a machete. 45The 17-year old daughter returned to her bedroom and closed the door. At this point, her mother, who had fallen asleep in her daughter's bedroom, woke up and tried to go out of the bedroom. Another 12-year old daughter remained asleep in the same bedroom. The 17-year old daughter stopped her mother from leaving the room. 46Vergara asked the 18-year old son for money and also enquired "Where's the stuff?", whilst holding the machete upright at head height. The son felt threatened by the machete and went to his father's bedroom and obtained a clear plastic lunchbox containing two or three bags of cannabis (about seven grams) which he gave to Vergara. 47Vergara then ran down the hallway with the drugs, hitting the hallway wall with the machete. 48The 18-year old son observed MA pointing what he believed to be a firearm at his father's head. MA picked up the 17-year old daughter's school laptop computer and, at this point, all the Offenders decamped through the front door. 49Family members then attended to Mr Stiff. He was bleeding heavily and was taken by his son to Liverpool Hospital. I will recount the injuries sustained by Mr Stiff later in these remarks. It is sufficient to observe at this point that he suffered very severe injuries. 50After fleeing the Ashcroft address, MA, Vergara, CB and Bautista ran back to the Tarago van, where Ramos, Tamapua and Karimi were waiting. As they drove back to the compound, Vergara smiled and laughed when he told the others in the Tarago van how he "chopped" the male victim in the arm. 51Karimi grabbed the proceeds of the offence (the container of cannabis and the laptop computer) and placed them into one bag. Karimi said "Is this all?". 52Whilst Mr Stiff was at Liverpool Hospital with his son after 10.47 pm, Tuki was observed on CCTV in the waiting area of the hospital. Tuki used his mobile phone to contact Khoury. 53When the group returned to the compound, Karimi patted the others down to make sure that they were not hiding any proceeds of the offence. Karimi gave the stolen items to Khoury, who counted the cannabis sticks in the container and handed them out to the group over a number of days. 54In response to an enquiry from Khoury as to what had happened at the Ashcroft address, Vergara boasted in detail about how he chopped the victim, and how he had bounced the machete off the walls as he was slicing. Khoury told the group that Tuki had seen the victim at hospital. Meetings, Events and Planning on 1 July 2010 for Further Home Invasions and the Recruitment of Natuba 55During the afternoon of 1 July 2010, as a result of a conversation with Tamapua, Byquar made some telephone calls in an attempt to recruit other young men to engage in these activities. Khoury asked Byquar to recruit other young men, indicating that Byquar had "a test tonight". 56Byquar sent a SMS message in the early evening of 1 July 2010 to his cousin, Natuba. It said "U want 2 recruit 2 united! Don't call txt me!". Two minutes later, Natuba replied "Wats dat", and Byquar replied "New game cumin up! Connected 2 benditoz n that!". By a process of SMS message and telephone calls, Byquar told Natuba to come to Chester Hill to do some "jobs" to make money. 57As a result of these calls, at about 8.25 pm on 1 July 2010, Natuba joined Byquar and others at the Chester Hill Hotel. Tamapua told Natuba that the group committed home invasions on drug dealers, and asked if he knew anyone interested in joining them. 58Soon after 9.30 pm, Vergara contacted Ramos, requesting that they meet at Chester Hill. The group met back at Khoury's shop where Tamapua introduced Natuba to Khoury. In the course of discussion about events planned for that night, Khoury produced a large Elephant-brand meat cleaver. The group discussed the use of meat cleavers in the events being planned. Tamapua felt the weight of the meat cleaver which he described as being "very heavy". 59A plan was hatched to invade the home of a drug dealer known as "Beanie Boy" at Warwick Farm. Tamapua had some knowledge of the activities of "Beanie Boy" and Khoury instructed Tamapua to "shut him down" as part of Khoury's plan to shut down businesses in Liverpool and Warwick Farm so that he could carry on in their place. 60During this discussion, plans were also made for what was described as the "Jacob job". This involved a plan to raid the home of Jacob Burgess, the brother of Kesley Burgess. Karimi was placed in charge of the "Jacob job". 61It was decided that the next job would be the raid on "Beanie Boy". Tamapua and Khoury decided that the job would be done by MA, Byquar, Natuba and Mir with Ramos as the driver. Tamapua and Karimi were to accompany the group to oversee the job and point out relevant addresses. 62Khoury obtained four Elephant-brand meat cleavers and handed them out to members of the group. Each of MA, Byquar, Natuba and Mir were handed a meat cleaver. Khoury instructed the group that the meat cleavers were for doing the jobs that night. In addition, each of these four men was given a pair of white gardening-type gloves with green dots for grip. 63Soon after 10.20 pm, MA, Byquar, Natuba, Mir, Tamapua and Karimi entered the Tarago vehicle driven by Ramos which headed in the direction of Warwick Farm. Ramos parked the vehicle at a location indicated by Tamapua. Tamapua then sent Byquar, Natuba, MA and Mir to what was thought to be "Beanie Boy's" address to scare him and take his "stuff". Tamapua, Karimi and Ramos remained in the Tarago. The Warwick Farm Offence - Armed Robbery of Maxine Rogers on 1 July 2010 (Offence of Natuba; Form 1 for Tamapua) 64At about 10.45 pm, Byquar, Natuba, MA and Mir approached premises at Hume Highway, Warwick Farm each armed with a meat cleaver and wearing gloves. Byquar went to the front door and knocked. 65Maxine Rogers (41 years' old) was present in her unit with her daughters aged nine and 10 years. She looked out the window and saw a boy wearing a hooded jacket, whom she thought mistakenly was her son. She opened the front door. The four men then rushed inside, pushing Ms Rogers and causing her to scream. Natuba held his meat cleaver up to Ms Roger's face and told her to "shut up". Ms Rogers picked up her mobile phone and Natuba took it from her. He held his meat cleaver to her face and asked "Where are the drugs?". Ms Rogers replied "We don't have any drugs, it's just me and my girls. Don't hurt us, we don't have any drugs". 66Byquar, MA and Mir unsuccessfully searched the unit for money and drugs whilst Natuba kept asking Ms Rogers "Where's the drugs?", with Ms Rogers responding in the negative. Ms Rogers' daughters sat close to their mother, witnessing events. 67Natuba retained Ms Rogers' mobile phone and one of the other men grabbed a laptop computer belonging to Ms Rogers' son, before the men ran out of the unit. 68The group ran back to the Tarago vehicle and told Tamapua what had happened. He realised that they had entered the wrong unit. Tamapua rang "Beanie Boy" and the two persons made several threats to each other. Tamapua was angry so the group spent some time in Warwick Farm, unsuccessfully looking for "Beanie Boy". As it happened, he lived in another unit in the block where Maxine Rogers lived. The Murder of Kesley Burgess and the Form 1 Offence of Armed Robbery of Tracey Burgess on 1 July 2010 (Offences of Natuba and Tamapua)

69After the Warwick Farm offence, Tamapua turned to the others and said "What do we do now?". Karimi advised that they needed to drive to Merrylands to meet his cousin who knew the address of Jacob. They travelled to Granville and, shortly after, Karimi, Tamapua and an associate of Karimi got into a white car. 70It was decided to commit the "Jacob job" at Lurnea. Karimi directed Ramos where to drive. 71With the guidance of Karimi in the white vehicle (with Tamapua and another person), the occupants of the Tarago travelled to the vicinity of the Burgess home at Lurnea. The intended purpose of the offence was to target Jacob Burgess, and to forcefully steal drugs and money from him using weapons. 72As they approached Lurnea, Karimi and his associate spoke to each other. Karimi's associate said he knew Jacob had a shotgun. 73Karimi's associate pointed out Jacob Burgess' home. Karimi told his associate not to park in front of the Burgess house, and the white car parked in a nearby street. Ramos parked the Tarago behind the white car. 74Karimi got out and spoke to the occupants of the Tarago. He indicated the Burgess house, before returning to the white car where he remained with Tamapua and his associate. 75At some time after 11.15 pm, Byquar, Natuba, MA and Mir got out of the Tarago and approached the Burgess home, each armed with a meat cleaver. Ramos remained in the Tarago. According to Natuba, the plan was that he and Byquar would go to the house first, followed by the two other men. 76Byquar knocked on the front door of the Burgess home whilst Natuba waited at the side. Present in the house at that time were Tracey Burgess (47 years' old), her son Kesley Burgess (25 years' old), his girlfriend, Kristal McLachlan (24 years' old) and a family friend, Gary Venus (56 years' old). All the occupants were asleep or preparing to go to sleep, except for Mr Venus who was watching television in the lounge room. 77On hearing a knock on the door, Mr Venus thought it was Jacob Burgess (20 years' old), as he had recently left the house to see friends. As Mr Venus commenced to open the door, it flung open and struck him on the head and he fell backwards on the floor. 78Byquar, Natuba, MA and Mir then entered the front door and moved to the lounge room. 79As Mr Venus opened the front door, Tracey Burgess came out of her bedroom and observed a number of men enter the house armed with what she described as machetes. She immediately ran to Kesley Burgess' bedroom, screaming to him to open the bedroom door. Tracey Burgess looked back and saw a tall dark male close by with a meat cleaver. He was dressed in black clothing with a black cover on his face, so that only his eyes were visible. This was Natuba, who headed for the bedroom as Karimi had told him earlier that a male in the house may have a shotgun, so he went straight for the bedrooms to try to get to him first. 80Natuba said to Tracey Burgess "Where is the drugs and the cash?". Tracey Burgess was crying and replied "There are no drugs or cash". Natuba grabbed Tracey Burgess by her nightie and pushed her whilst demanding money. Natuba then smashed a number of items and yelled "I want the money". He said words similar to "I will kill you" and swung the meat cleaver towards Tracey Burgess. The meat cleaver missed her face, but the tip of the blade glanced the palm of her left hand, before impacting heavily and wedging into the laundry door. Natuba pulled the meat cleaver from the laundry door and commenced to hit items on the bookshelf in the hallway. 81Each of the males made demands for cash and drugs. 82Kesley Burgess armed himself with a weapon similar to a machete before telling Ms McLachlan to stay in the room. She did so, shaking and looking for her mobile phone. She could hear smashing and banging, as well as Kesley Burgess saying "Get out. Get out. Get out". 83Tracey Burgess observed Kesley Burgess lunge at Natuba using what she described as a sword, and push him back into the lounge room. 84Meanwhile, Ms McLachlan had located Kesley Burgess' mobile phone and used it to ring "000". As Ms McLachlan commenced to speak to the "000" operator, she saw one of the four men open the bedroom door. This man, who was wearing a black beanie and was armed with a meat cleaver, told her to get off the phone. Terrified, Ms McLachlan threw the mobile phone at the person who put it into his trouser pocket. 85Meanwhile, Kesley Burgess struck Natuba with his weapon in the lounge room, causing a stab wound to Natuba's shoulder. Byquar then hit Kesley Burgess from the back, before Kesley Burgess grabbed Mir and the two men fought each other. According to Natuba, Mir slashed Kesley Burgess' hand during this exchange. At one point, Byquar swung his meat cleaver at Kesley Burgess, but missed and struck his own foot, causing a deep cut which bled freely. 86According to Natuba, Kesley Burgess had said earlier "I've got nothing. I've got an ounce in the kitchen, that's it". Natuba described Kesley Burgess as "pleading" with the men, stating that that was all that he had. 87Kesley Burgess fell to the ground. 88Natuba examined the injury to his own shoulder and then, whilst in a rage, picked up a coffee table and flipped it, demanding to know where the drugs and money were and then slashing at Kesley Burgess while he lay on the ground, striking him once to his lower leg. 89Tracey Burgess looked into the lounge room and observed Kesley Burgess lying on his back on the floor with his head under a glass coffee table. She saw three men, including Natuba, crowded around Kesley Burgess, using their weapons to hit him. At this point of the attack, Tracey Burgess fell to her knees and repeatedly screamed "Kill me, please kill me!". 90Kesley Burgess was struck a number of blows, sustaining eight incised wounds to various parts of his body. 91Forensic examination revealed that the characteristics of the wounds indicated infliction by a sharp-edged implement or implements in a chopping or slashing motion, applied with severe force. The wounds to the upper limbs were defensive in nature. The wounds to the left and right buttocks were aligned, indicating that it was caused by the same action. 92Tracey Burgess went into the kitchen and grabbed a tin in the shape of a Jim Beam racing car which contained some cannabis. One of the armed men came to the kitchen door, and Tracey Burgess threw the tin at him and he put it under his arm. As this man walked out of the kitchen, he grabbed Tracey Burgess' beach bag and a handbag that was on a chair. Tracey Burgess' handbag contained a wallet in which there was $420.00 in cash, her driver's licence and Medicare card, keycards and other personal cards together with Mr Venus' wallet and Jacob Burgess' wallet. These acts give rise to the armed robbery offence to be taken into account, on a Form 1, on sentence of the Offenders for murder. 93At this time, Mr Venus was attempting to assist Kesley Burgess on the floor of the lounge room. Kesley Burgess was bleeding heavily and there was a large amount of blood on the floor. Tracey Burgess phoned "000" and reported that four people with machetes were fighting and her son was injured and was going to pass out. 94Police arrived shortly afterwards and attended to Kesley Burgess before the arrival of ambulance officers who treated Kesley Burgess and then conveyed him to Liverpool Hospital. 95Kesley Burgess died at about 9.15 pm on 2 July 2010 whilst in hospital. The post-mortem report stated that the direct cause of death was multiple incised wounds, with the combination of injuries resulting in blood loss, hypotension and ultimately cardiac arrest. The Offenders Flee the Scene and Return to Khoury's Shop 96Byquar, MA, Mir and Natuba fled the house and ran back to the vehicle. 97A neighbour had heard crashing and banging sounds from the Burgess house, and went to the lounge room window and saw four men, all wearing dark clothing with hoods, run down the front stairs of the Burgess house and run down the street. 98The men had with them Tracey Burgess' beach bag and handbag, the Jim Beam tin and Kesley Burgess' mobile phone. 99Tamapua saw that Mir was covered with blood. 100Tamapua, Karimi and Mir left the area in the white vehicle. Ramos left the area with the others in the Tarago. Tamapua told Ramos by telephone to return to Khoury's shop. 101When Tamapua came to Khoury's shop, Khoury, Walsh, Tuki, Vergara, Kraak and Witness C were there. Karimi, Mir and Karimi's associate were also there. Tamapua saw Mir go to the back of Khoury's shop, where he threw his meat cleaver away and started to take his clothes off. The phone was given to Kraak and Tamapua told him to "keep it, hide it, whatever". 102Soon after, the group in the Tarago arrived at the shop. It was observed that both Byquar and Natuba were injured. Discussion ensued as to what had happened in the Burgess house. According to Tamapua, those who had struck Kesley Burgess were laughing, with Mir saying "I got him good on the wrist" and mentioning how many times he had struck Kesley Burgess. 103Natuba was heard to say "A big bloke ran up behind me and chopped me! I dropped to the ground and spun around and hit the bloke in the ankle with the meat cleaver. Old mate [Mir] ran over with Sonny and we all started to chop into him". Mir was heard to say "Yeah I chopped the cunt" in a bragging tone. According to Kraak, Mir said "I chopped him good". As they were describing the attack, Khoury and Walsh laughed. 104Byquar also detailed to the group how he missed the victim and chopped his own toe. The group then made efforts to clean themselves and dispose of the weapons. Bloodstained clothing was collected and placed into a plastic bag. 105Tamapua and Khoury then looked through the wallets and handbags which had been stolen. Khoury expressed disappointment to the group that there was only a small amount of money. 106Three bloodstained meat cleavers were placed on a towel at the back of Khoury's shop. 107It became apparent that Natuba required medical attention. Khoury instructed Vergara and Ramos to drive him to Bankstown Hospital, as it would be too suspicious to take him to Liverpool Hospital. A story was devised, in case of any police enquiry, that Natuba would say that he had been "jumped" in Bankstown. 108Before the others left Khoury's shop, Khoury told the group to keep their mouths shut and that if anyone said anything, they would be shot. After efforts were made to clean up Khoury's shop and the persons involved, the group left and went their separate ways. 109Later that morning, Ramos drove Tamapua and Witness C back to their premises, where Byquar, Kraak and Vergara were present. Tamapua saw that Byquar was playing with the mobile phone of Kesley Burgess, which was handed to Tamapua, who had a look and then returned it to Byquar. Police Interviews with Natuba at Bankstown Hospital on 2 July 2010 and Subsequent Events Involving Tamapua and Others 110At about 1.15 am on 2 July 2010, police attended Bankstown Hospital to allow a prisoner in an unrelated matter to receive medical attention. 111During this time, police were informed of the presence of an injured man (Natuba) in the Emergency Department. Police spoke to Natuba, who gave a false account as to how he had come to be injured. 112At about 3.45 am, police again spoke to Natuba, who continued to give a false account. 113At about 4.00 pm on 2 July 2010, a video interview of Natuba was conducted by police at Bankstown Hospital, at the commencement of which Natuba was told he was under arrest for the Warwick Farm offence and offences arising from the home invasion at the Burgess house. Natuba then told police that his earlier account was false and that he had been involved in the home invasion offences committed on 1 July 2010. Natuba initially detailed his involvement and the involvement of others, however he said he was unaware of the identity of any of the co-offenders. 114During the afternoon of 2 July 2010, police searched the Burgess house and found a Winchester .22 long rifle in one of the bedrooms and four cannabis plants, a transformer and high-powered lamp in the back shed. 115During 2 July 2010, police initiated telephone intercepts with respect to the telephones of Tamapua, Vergara, Natuba and Kraak. 116At 11.04 pm on 2 July 2010, Tamapua called a male who asked him if he has "pumped anything lately". Tamapua replied "just a couple of dealers and shit man". Tamapua then stated "The Lakemba one is still on hold". He went on to say "there's registered fummers [or similar] in the safe". The male asked if he was going to do that one and Tamapua replied not yet. 117At 11.20 pm, Karimi rang Tamapua and they spoke briefly. Karimi then asked to speak to Khoury. During this conversation, Khoury said "Did you get rid of everything" and Karimi said "Not yet". Khoury said "Why, it should be very quick", and discussion continued on the topic. 118At 3.44 am on 3 July 2010, Tamapua called an associate and told him to become part of the group as of tomorrow, as he has something to do tomorrow. Tamapua then put Byquar on the phone, who told the male to make sure he came the next day. 119On the morning of 3 July 2010, major media outlets reported that Kesley Burgess had died. 120At 8.54 am on 3 July 2010, Natuba rang an associate using his intercepted phone whilst in hospital, and told the associate that he slashed a guy's legs in a home invasion. Natuba later called another associate and said that he had stabbed a male who died and he was going to be charged. In a later call, he told an associate that he was going to tell the police the truth. 121Later on the morning of 3 July 2010, detectives informed Natuba that Kesley Burgess had died. Natuba then disclosed that his cousin, Byquar, had been involved in the offence. 122After being interviewed at Bankstown Police Station, Natuba took part in a drive around with police on the evening of 3 July 2010, during which he pointed out various locations, including Khoury's shop. 123After 2.30 pm on 3 July 2010, Khoury and Karimi picked up Tamapua in a vehicle. Khoury asked Tamapua if he had heard the good news before saying that Kesley Burgess was dead. Khoury told them to ring everyone who was involved and tell them not to say anything. Tamapua's Firearm Offences at Miller Between 3 and 4 July 2010 124During the afternoon of 3 July 2010, Byquar met John Unasa ("Unasa") (19 years' old) and took him to the compound, where he introduced him to a number of persons, including Tamapua, Khoury and Vergara. Khoury was introduced to Unasa as the ringleader. Tamapua and Khoury explained that the group made money by doing home invasions and that Unasa would have to do a "test" that night to prove himself first. It was said that as they were already "red hot" from the murder at Lurnea, they had decided not to do anything that night. 125On the evening of 3 July 2010, Unasa and Byquar attended the Michael Wenden Aquatic Centre at Miller where there was a Polynesian night to raise funds. About 350-400 people of Polynesian descent, including families and children, attended the event where food and alcohol were being consumed and six security guards were providing security. 126A confrontation is said to have occurred between Unasa, Byquar and others and Daryl Pologa ("Pologa"), who was allegedly part of a group called the "Miller Boys". A confrontation between two groups of young men was developing, when Pologa noticed some police cars arrive and they decided to leave. 127As Unasa was being told to go inside by security guards, he allegedly told Byquar to make a call summoning members of the United Brotherhood to help them. 128Telephone contact was recorded between a number of persons, including Karimi, Tamapua and Khoury. 129At 11.38 pm, Tamapua spoke to Unasa on an intercepted phone and enquired as to where "Sonny" was. Unasa told him "Sonny" was outside. Further conversations by telephone took place between Tamapua, Vergara and Unasa. During one call, Vergara told Tamapua "I am just going to pick up something from Bishop [Khoury], you know what I mean?", the something being a reference to a firearm. 130Further telephone conversations took place including calls between Byquar and Tamapua. 131Tamapua stated that when he and the others were travelling to the Miller pools, Karimi said that as soon as they got there, Tamapua would go and see where they are. If Tamapua didn't come back in five minutes, Karimi was "going to come up and just start popping everyone". They also discussed that Vergara was there to chop with the machete that he had, Tamapua was the puncher whilst Tuki was the driver. 132About 1.15 am on 4 July 2010, police stopped a vehicle in Miller on the basis of these telephone intercepts between several members of the United Brotherhood, arranging guns and knives to be brought to assist in a confrontation with other males at Miller. Police removed Tuki, Tamapua, Karimi and Vergara from the vehicle. 133Located in the vehicle were a machete in a sheath, a shortened .22 calibre long rifle and a knife. Tamapua stated that the machete was the one used by Vergara during the Ashcroft offence. 134Subsequent analysis of a stained area on the tip of the machete blade identified a partial DNA profile matching the DNA profile of Mr Stiff. The shortened .22 calibre long rifle had been stored at the compound. Khoury's DNA was located on the rifle. Vergara's shoes were seized and the DNA of Mr Stiff was detected on one of them. 135Tamapua participated in an interview where he initially stated that he was being dropped at his cousin's house and had no idea about the weapons in the vehicle, or what they were going to be used for. Police obtained an extension-of-time warrant. After the warrant was granted, and the interview resumed, Tamapua said "Listen, you know what, fuck this. All right. I'm going to say everything ... but I need you to protect my family". Tamapua then gave detailed information about the United Brotherhood and the offences they had committed including the murder of Kesley Burgess. He also made admissions regarding his involvement in the offences. 136At about 1.30 am on 4 July 2010, police approached Byquar in Cabramatta Avenue, Miller and placed him under arrest. Searches and Forensic Examination of Various Premises and the Location of Evidence 137On 4 July 2010, police executed a crime scene warrant at Khoury's shop and forensic examination of the premises proceeded over the next three days. This examination found several sources of human blood and extensive evidence of blood clean up. Subsequent analysis identified the blood as being that of Natuba and Byquar. 138The Jim Beam tin taken from the Burgess home was found inside Khoury's shop with blood smears on it. Fingerprints belonging to Karimi, Khoury and Walsh were identified on the tin, as well as the DNA and fingerprints of Kesley Burgess. 139Fingerprints belonging to Khoury, Tuki, Vergara, Karimi, Walsh and MA were found at different areas in Khoury's shop. The fingerprints of Khoury were found on a mop that appeared to have been used to clean up blood. 140The search of Khoury's shop revealed a large number of meat cleavers identical to the ones used in offences on 1 July 2010. It appeared that the meat cleavers and other knives were intended to be put on sale at Khoury's shop. 141Forensic examination of the Burgess home found the blood of Natuba on a coffee table in the lounge room where Kesley Burgess had been attacked. 142Tamapua told police that he had taken Kesley Burgess' mobile phone with blood on it. After Tamapua's arrest, Kraak placed the mobile phone inside a sock and secreted it at the rear of a neighbour's property in Claymore. Police attended that location and found the mobile phone, with subsequent analysis identifying Kraak's DNA and Byquar's blood on the mobile phone. Police Seizure of the Ramos Tarago on 6 July 2010 and Subsequent Forensic Testing 143On 6 July 2010, police observed the Ramos Tarago in Macquarie Fields. The vehicle was stopped. Ramos, MA and others were in the vehicle. Police seized the Tarago, informing Ramos it was being taken in connection with the murder of Kesley Burgess. 144Initial forensic testing of the Tarago found visible blood staining on the seat and the foot well in the first row of seats behind the driver. Further examination revealed that the Tarago had been cleaned. Subsequent analysis revealed the DNA of Natuba, the blood of Byquar and the blood of Kesley Burgess inside the Tarago, with the fingerprints of MA and Ramos also being located in the vehicle. Arrest of MA, Byquar, Ramos and Others on 22 July 2010 145On 22 July 2010, police mounted a large-scale operation where Ramos, MA, Mir, Tamapua and Byquar were arrested and charged with the murder of Kesley Burgess. These arrests received wide media coverage. 146Tamapua participated in a further recorded interview where he provided more detail about the Lakemba conspiracy offence and the Ashcroft offence. 147On 6 September 2010, police located a white Toyota Echo at Granville. The registered owner was Sadiqa Karimi, the cousin of Karimi. That vehicle is said to be the white vehicle in which Karimi, Tamapua and Karimi's associate travelled to the Burgess home on 1 July 2010. Arrest of Khoury and Walsh on 29 September 2010 and Forensic Examination of Meat Cleavers 148On 29 September 2010, police arrested Khoury and Walsh. A search warrant was executed, and a bag was located which contained three Elephant brand meat cleavers wrapped in a towel. 149Forensic analysis of the meat cleavers identified Tuki's fingerprint on the blade of one of the meat cleavers, Tuki's DNA on the handle of a meat cleaver and Kesley Burgess' blood on the blade of one of the meat cleavers.

Effects of Offences Upon the Surviving Victims James Stiff and his Family 150Mr Stiff was taken to hospital on the evening of the Ashcroft offence. He was operated upon to repair damage to tendons, nerves and muscles. Mr Stiff also received a blood transfusion due to the amount of blood lost. 151Mr Stiff's injuries included: (a) a compound division of the ulnar artery and nerve; (b) division of the flexor tendon muscle to the fingers (used to flex the fingers); (c) division of the flexor tendon muscle to the wrist (used to flex the wrist); and (d) irregularity of the surface of the ulnar bone (one of the two forearm bones) indicating that the machete had impacted with the bone. 152Mr Stiff was discharged on 3 July 2010. Whilst the outcome was expected to be good, Mr Stiff required hand therapy to regain strength and movement of the wrist and fingers. Nerve recovery to the hand is variable and may take some time to occur. Despite good nerve recovery, it may never reach pre-injury state. 153A victim impact statement was made by Mr Stiff on 24 February 2012, some 18 months after the offence. It is apparent that Mr Stiff continues to experience the damaging physical and emotional consequences resulting from the invasion of his home. 154Mr Stiff described the serious and long-lasting psychological effects resulting from the invasion of his home and the attack upon him. He referred, as well, to the detrimental effects of the offence upon his children, who were present at the time of these terrible events. The family could not remain at the house and have been living elsewhere. Mr Stiff and his family were understandably fearful about returning to the house. 155Mr Stiff referred, as well, to financial and other difficulties flowing from his inability to use his hand and the scarring on his arm. 156A report of Lubica Vracar, psychologist, dated 22 December 2010 confirmed that Mr Stiff was suffering from post-traumatic stress disorder with severe features of anxiety and depression. Tracey Burgess and the Burgess Family 157Tracey Burgess made a victim impact statement, which she read to the Court during the Natuba sentencing hearing. 158It is appropriate that I state, in these remarks on sentence, a number of matters mentioned by me in the course of sentencing MA, Byquar and Ramos. 159In the eyes of the law, Mrs Burgess is a victim in at least two ways. She is a direct victim of the armed robbery offence, to be taken into account on sentence for murder on a Form 1. In addition, Mrs Burgess was a family victim of the murder of her son, Kesley. 160This is not a case where a member of the family of a deceased person learns of the event indirectly and after it has occurred. Rather, Tracey Burgess was present and observed the horrifying events which took place in her house, culminating in the brutal killing of her son. 161Mrs Burgess gave a harrowing account of this dreadful night and its effects upon her family. The recital, earlier in these remarks, of the events which took place in the Burgess home on this night, and of the direct involvement of Mrs Burgess, allows some understanding of the devastating effect of these experiences upon Mrs Burgess. It is difficult to imagine a worse experience that a mother could be called upon to endure. 162A report dated 19 September 2012 of Dr Sidney Lo confirms the understandable position that, as a result of the offences, Mrs Burgess experiences a high degree of stress, which has had a detrimental effect upon her physical health in a number of ways. 163The substantial personal harm suffered by Mrs Burgess as the victim of an armed robbery is to be taken into account as a relevant factor in determining the objective gravity of that Form 1 offence. 164I acknowledge the dreadful loss suffered by Mrs Burgess and the Burgess family, as a result of the death of Kesley and the impact of that loss, which will undoubtedly be life long. 165During the Natuba sentencing hearing, after Mrs Burgess had made the victim impact statement, I expressed the condolences of the Court and the community for the family's great loss. In these formal remarks on sentence, I once again express condolences on behalf of the community to the Burgess family. 166In passing sentence on the murder counts, I keep in mind the principles in R v Previtera (1997) 94 A Crim R 76 at 84-87 and R v Bollen (1998) 99 A Crim 501 at 529-520. Maxine Rogers and her Children 167Although no victim impact statement was made by or on behalf of Maxine Rogers, an irresistible inference is available, and should be drawn, that the invasion of her home by armed men brandishing machetes would have been a terrifying experience for her and her two young daughters. 168No medical evidence or victim impact statement is required before a sentencing court can draw obvious inferences from facts such as those giving rise to the Warwick Farm offence.

Sentences Imposed Upon Co-Offenders in the Supreme Court and the District Court 169On 11 December 2012, I sentenced MA, Byquar and Ramos for a series of offences in which Natuba and Tamapua were co-offenders. It is not necessary to recite the circumstances of those offences and those Offenders, and the sentences imposed upon them, in these remarks. What was said in that separate judgment ought be read in conjunction with these remarks on sentence. I will refer to matters relevant to issues of parity and proportionality later in these remarks. 170Likewise, it is not necessary to recite the detailed account provided in those remarks (at [149]-[172]) of the sentences imposed upon Vergara, Bautista and CB in the District Court. It is sufficient to observe that the firearm offences for which Vergara was sentenced (see 149 and (d)) are the same offences for which Tamapua is to be sentenced arising from events at Miller on 3-4 July 2010.

Subjective Circumstances of Natuba and Tamapua Natuba 171Natuba was 19 years and five months' old at the time of the offences and is now 21 years' old. 172Natuba has a prior criminal history. On 7 August 2008, he received a suspended four months' control order in the Parramatta Children's Court for an offence of aggravated robbery. 173On 1 June 2009, he was called up in relation to the aggravated robbery offence, with the four-month control order being imposed commencing 1 June 2009. On the same day, he was granted probation for 16 months, subject to supervision of the Department of Juvenile Justice, for assault occasioning actual bodily harm. 174On 21 December 2009, Natuba was fined $500.00 and placed on an 18-month good behaviour bond, with supervision by the Probation and Parole Service, for damaging property. 175Accordingly, Natuba was subject to conditional liberty at the time of the present offences by way of the probation order made on 1 June 2009 and the bond granted on 21 December 2009. 176Ms Loukas SC, for Natuba, tendered a number of documents on sentence. These included a report of Mr Taylor, forensic psychologist, dated 15 December 2011, together with a number of references from members of Natuba's family, friends and associates who speak favourably of him generally in the experience of the authors. 177Ms Loukas SC tendered, as well, a number of documents from the Department of Corrective Services describing aspects of Natuba's conduct in custody. A letter dated 21 August 2012, from Martin Sinclair of the Special Purpose Centre, describes the restrictions upon Natuba as a result of him being held in that facility, given his assistance to the authorities and preparedness to give evidence for the Crown against alleged co-offenders. 178Natuba gave evidence at the sentencing hearing which touched upon, amongst other things, the restrictions upon him as a result of his custody in the Special Purpose Centre. 179Natuba is the oldest of three children born in Australia of Melanesian/Fijian parents. He was raised in the Blacktown area of Sydney. 180He was living at home before entering custody in July 2010. 181Natuba left school at the age of 17, early in his Year 12 studies. After leaving school, the only qualification he obtained was the Responsible Service of Alcohol Certificate. He had significant disciplinary issues at school. 182At the age of 17 years, Natuba was employed unloading containers for about half a year, until he was placed in juvenile detention. He was next employed as a storeman at the same place where his father worked. He worked there for about a year until his arrest for these offences in July 2010. 183Mr Taylor recited Natuba's history of abuse of alcohol and his use of cannabis, ecstasy and ice. 184Natuba told Mr Taylor that his motive for becoming involved in the activities of the United Brotherhood was, in part, to gain money so that he could consume alcohol. 185Mr Taylor observed that relevant testing indicated that Natuba was inclined toward sensation-seeking and risk-taking behaviour. He considered that he had moderate anger pathology. Mr Taylor expressed the opinion that the results of actuarial analyses indicated that Natuba had a moderate risk of recidivism in general, with a low-moderate risk of violent recidivism. 186Mr Taylor considered that Natuba presented as a person of about average intellectual ability and there were no indications of him having significant cognitive impairment. His level of intellectual ability was not considered to be a relevant factor with respect to his offending behaviour and, accordingly, it was not considered necessary to administer tests of his cognitive abilities. 187Mr Taylor noted that Natuba provided a history of having been raised in a close early family environment. There was some history of aggressive behaviour from about the age of 11 years. 188Mr Taylor observed that the results of tests indicated that he has an above-average predisposition to engage in substance abuse and that when he has been affected by alcohol or drugs, his controls become impaired and he is then prone to behaving in an impulsive manner. With respect to the present offences, Mr Taylor considered that factors of impairment in his impulse control due to consumption of alcohol, his above-average tolerance for aggressive behaviour and his inclination towards risk-taking behaviour had contributed significantly to his offending behaviour. 189Natuba had expressed regret and remorse for what he had done and Mr Taylor reported that he appeared genuine in this regard, with Natuba accepting responsibility for his offences. Tamapua 190Tamapua was aged 20 years at the time of the offences and is now 22 years old. 191He has a prior criminal history. On 24 July 2006, he was granted nine months' probation in the Campbelltown Children's Court for an offence of robbery in company. 192On 21 November 2006, a period of 12 months' probation was ordered in the Campbelltown Children's Court for an offence of robbery in company. 193On 10 March 2008, a period of two years' probation was ordered in the Campbelltown Children's Court for offences of assault with intent to rob, common assault and take and drive a vehicle without consent. 194On 16 March 2009, a 12-month good behaviour bond was granted in the Liverpool Local Court for common assault. 195On 16 December 2009, a suspended sentence of 15 months' imprisonment was imposed in the Liverpool Local Court for an offence of having sexual intercourse with a person under the age of 14 years. 196Accordingly, Tamapua was subject to conditional liberty at the time of these offences by way of the suspended sentence imposed on 16 December 2009. 197Since his arrest on the present matters in July 2010, Tamapua has been dealt with by way of call-up for the offence of sexual intercourse with a person under the age of 14 years with the Parramatta District Court, on appeal from the Local Court, on 3 June 2011, sentencing him to imprisonment for 15 months commencing on 26 June 2010 with a non-parole period of nine months expiring on 25 March 2011. 198In addition, Tamapua was sentenced at the Liverpool Local Court on 9 March 2011 for an offence of contravening an apprehended domestic violence order (an offence committed on 31 December 2009) for which a term of imprisonment of three months was imposed, commencing 14 July 2010. 199As a result of these sentences, I accept that Tamapua's sentences for the present offences should commence on 26 March 2011. 200Mr Pontello, counsel for Tamapua, tendered a report of Dr Katie Seidler, clinical and forensic psychologist, dated 26 October 2012 and a report of Mary Jelen, social worker, dated 16 October 2012. In addition, Tamapua gave evidence at the sentencing hearing, as did his partner, Witness C. 201Tamapua was born in Samoa and is one of five children. He spent the first nine years of his life in the care of his maternal great grandmother, following the death of his mother. It appears that he experienced limited contact with his father, who withdrew himself physically and emotionally from the family. His father died when Tamapua was 17 years' old. 202Tamapua lived in Samoa until the death of his great grandmother when he was nine years' old. Following this, arrangements were made for Tamapua and his sister to be cared for by his maternal aunt who lived in Australia. Tamapua found life in Australia difficult. 203His living siblings all reside in New Zealand and he has no consistent contact with them. 204He has a somewhat chequered educational history which saw him voluntarily discontinue during Year 9. 205Tamapua and Witness C commenced living together in 2006, and four children have been born of the relationship, of whom two have died as a result of a rare genetic condition. 206For about two years leading up to his arrest in July 2010, he was working for the father of Witness C packing meat. However, about six months prior to his arrest, Tamapua left this position after a disagreement with his partner's father. He was unemployed at the time of the offences. 207Tamapua told Dr Seidler that he became involved in the offences to make money. 208Dr Seidler considered that Tamapua has suffered from long-standing depressed mood that is consistent with dysthymia and it is likely that, at times, this had deteriorated into episodes of major depression. He has a history of both cannabis and alcohol abuse. Dr Seidler recommended, amongst other things, that Tamapua participate in the Violent Offender Treatment Program, but noted that this was unlikely to occur given his placement in the Special Purpose Centre. 209Tamapua gave evidence of the restrictions upon him as a result of his detention in the Special Purpose Centre. It was clear, as well, that the pressures upon Witness C have been significant given her assistance to the authorities, and that concern for her has contributed to the difficulties of custody for Tamapua.

Assistance to the Authorities and Pleas of Guilty 210Natuba has assisted the authorities and is to give evidence for the Crown at the trial of alleged co-offenders in 2013. A confidential exhibit was tendered concerning his assistance to the authorities. 211Both the Crown and senior counsel for Natuba submitted that the Court should extend a discount of 25% to Natuba for his assistance to authorities, divided into 10% for past assistance and 15% for future assistance for the purposes of s.23(4) Crimes (Sentencing Procedure) Act 1999. Having considered the evidence tendered with respect to the assistance provided by Natuba and having regard to his intention to provide future assistance, I am satisfied that a discount of this magnitude ought be granted. 212Tendered at the Tamapua sentencing hearing was evidence concerning his past assistance to authorities and his undertaking to give evidence for the Crown at the trial of alleged co-offenders. Both the Crown and Mr Pontello submit that a discount of 25% should be extended to him, divided into 10% for past assistance and 15% for future assistance, for the purposes of s.23(4) Crimes (Sentencing Procedure) Act 1999. 213Having regard to the evidence tendered with respect to Tamapua's past and future assistance, I am satisfied that a discount of this magnitude is appropriate in this case. 214The discounts to be extended to Natuba and Tamapua for the past and future assistance to authorities will be taken into account, in addition to discounts for their pleas of guilty. 215In the case of each Offender, the Crown submits that a 25% discount for the utilitarian value of their pleas of guilty ought be extended given the entry of pleas of guilty at the earliest possible time. Both Ms Loukas SC and Mr Pontello asked me to extend a discount of this order to their clients for their pleas of guilty. 216I am satisfied that a 25% discount, for the utilitarian value of their pleas, should be extended to each of Natuba and Tamapua. 217The combination of the 25% discount for assistance to authorities and the 25% discount for pleas of guilty will lead to a combined 50% discount on sentences to be imposed upon each of Natuba and Tamapua.

The Roles of the Offenders in the Offences A Broad Hierarchy 218The Crown submitted, and counsel for each of the Offenders accepted, that a broad hierarchy of those involved in these activities was as follows. Khoury was the head of the group. Below Khoury was a second tier of command, comprising Tuki and Karimi. Below this, at the next tier, was Tamapua. Below Tamapua were MA, Byquar, Ramos and Natuba. 219Although care must be taken in attaching labels to persons engaged in criminal activity, this general hierarchy appears to be consistent with the factual narrative set out earlier in these remarks on sentence. Joint Criminal Enterprise 220It was common ground that the Offenders are to be sentenced upon the basis that they are participants in a joint criminal enterprise with respect to each offence before the Court. The joint criminal enterprise was to commit an armed robbery. Participants in a joint criminal enterprise are equally responsible for all the acts in the course of carrying out the enterprise, regardless of who commits them. However, it is plainly desirable, if the evidence allows, to identify acts carried out by an offender as part of the joint criminal enterprise. An assessment of a particular participant's level of moral culpability may be assisted by reference to that person's conduct disclosed in the evidence: R v Wright [2009] NSWCCA 3 at [28]-[30]; R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 34-35 [160]-[162]; KR v R [2012] NSWCCA 32 at [19]. 221The facts in the present case do allow some identification of what each Offender did (and did not do) with respect to each offence. One entered the premises armed with a meat cleaver and, in the course of the offence, struck a person with the meat cleaver. Tamapua did not enter any premises, but he played an important organisational role in the group undertaking these offences. 222With respect to the charge of murder, the facts reveal that a number of persons struck Kesley Burgess with meat cleavers. The evidence does not suggest that any single blow was fatal. Rather, the cumulative effect of the blows and injuries led to severe blood loss and, ultimately, death. 223Concerning the murder charge, the present Offenders include one who was in the house and who struck Kesley Burgess with a meat cleaver (Natuba) and a person outside who was criminally responsible by application of the doctrine of extended joint criminal enterprise (Tamapua). 224Although it cannot be said that any person intended to inflict grievous bodily harm or death to Kesley Burgess until he armed himself to challenge the intruders, events that followed saw persons striking Kesley Burgess in a manner demonstrative at least of an intention to inflict grievous bodily harm, if not death. 225To the extent that those who actually struck Kesley Burgess with meat cleavers, including Natuba, had at least an intention to inflict grievous bodily harm, it seems to me that this is a case where there is little difference objectively between the striking of blows with meat cleavers with intent to cause grievous bodily harm or intent to kill. To my mind, this case falls within that class of case where an intention to inflict grievous bodily harm can reflect similar criminality to cases involving an intention to kill: R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 at 258 [16]. Natuba 226Natuba only joined the enterprise after being recruited by his cousin, Byquar, on 1 July 2010. 227He entered the home of Maxine Rogers during the Warwick Farm offence armed with a meat cleaver. He was actively involved in the offence, threatening Maxine Rogers with the meat cleaver and grabbing her mobile phone. He was a significant and active participant in the Warwick Farm offence. 228Natuba entered the Burgess house, armed with a meat cleaver, and immediately became actively involved in demands for money and cash. In the course of this, he grabbed Tracey Burgess and pushed her. 229It is the case that Kesley Burgess struck Natuba with a weapon, causing a significant injury to Natuba's shoulder. This action led to Natuba becoming enraged and turning over furniture, as well as slashing towards Kesley Burgess who was lying on the ground. 230Natuba was a significant and active participant in events in the Burgess house and, although the injuries sustained by him may serve to explain his subsequent rage and actions, it was a predictable state of affairs given the nature of the home invasion. Tamapua 231Tamapua was present, in a form of organisational capacity, at each of the Lakemba conspiracy, the Ashcroft offence, the Warwick Farm offence and the offences committed in the Burgess house. 232Although he did not enter any of the houses, he was well aware of the nature of the activities being undertaken by those entering the premises, and of their armed state for the purpose of achieving those ends. His position may be regarded as less significant than that of Khoury and Karimi. However, he played an important organisational role, including the provision of information concerning the location of premises. 233I do not consider that Tamapua can be regarded as displaying significantly lesser criminality than those who entered the premises armed with meat cleavers. The nature of his role is such that, in my view, he is about at the same level of moral culpability as those persons for the purpose of sentence. 234Tamapua's position is clearly more culpable than that of Ramos, who did not enter the house and whose role was as the driver, with no supervisory or directive function.

Home Invasion Offences Committed by Young Persons 235Submissions were made for Natuba concerning the relevance of youth on sentence. It is appropriate to repeat observations which I made in the course of sentencing MA, Byquar and Ramos. 236Courts in this State have observed that home invasion offences are frequently committed by young men. In R v Pham and Ly (1991) 55 A Crim R 128, Lee CJ at CL (Gleeson CJ and Hunt J agreeing) observed at 135 that home invasion offences were crimes of great gravity, which were "becoming all too frequent". His Honour continued at 135: "Day and night people live in fear and terror of being assaulted and robbed in their own homes. Frequently this class of offence along with robberies of commercial premises are committed by persons who have barely entered upon manhood. Whilst the early background of each respondent merits sympathy and understanding it can not be used to cloak or disguise the fact that the actions of the respondents and the other men involved can only properly be described as the actions of a gang of thugs and armed thugs at that, violently invading the home of the victims and rendering them helpless. It is true that Courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal Court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes." 237The Court of Criminal Appeal has emphasised more recently the need for an appropriate level of punishment in the case of the forced invasion of a home by armed men, in the middle of the night, with terror being inflicted on the occupants, even allowing for the offender's youth and troubled adolescence: R v Murrell [2012] NSWCCA 90 at [55]. Offending of this type involves, amongst other things, an invasion of the privacy of the victims: Haines v R [2012] NSWCCA 238 at [62]. 238A further factor which bears upon the gravity of home invasion offences is their unpredictable and chaotic nature, exemplified by the observations of Evans J (Tennent and Wood JJ agreeing) in Wahl v State of Tasmania [2012] TASCCA 5 at [30]: "Whilst the actual harm caused by a crime is most important in the sentencing process, in my view one of the reasons why home invasions are considered to be particularly serious is the wide and unpredictable range of significant harm they can precipitate and cause. Not uncommonly the outcome of a home invasion is quite different from that intended by the intruder or intruders. The occupants, who not infrequently include children, can be terrified, and the intrusion can provoke a response that results in serious injuries and damage." 239The offences committed by the present Offenders provide vivid illustrations of the circumstances described by Lee CJ at CL in R v Pham and Ly and by Evans J in Wahl v State of Tasmania. Young men engaged in brutal and frightening activities, whilst armed with meat cleavers, in circumstances which were likely (at the least) to instil great fear in those whose homes are invaded, with the distinct prospect that an occupant would (on the spur of the moment) decide to resist, even though outnumbered by the armed invaders. 240The tragic events which occurred in the Burgess house, not long after the frightening circumstances of the Ashcroft offence and the Warwick Farm offence, illustrate the nature and risks of offending of this type. 241I have taken into account the principles recited by McClellan CJ at CL in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 577-578 [22]-[26], which are capable of some extended application to young adult offenders. 242Given the gravity of the offences, general deterrence and the need for punishment remain most important factors on sentence. 243It is necessary to take into account, to the extent that the evidence indicates, the immaturity of a young offender. At the same time, it is not unimportant to note that the Offenders (including Natuba) appear to have been selected because of their size and age, no doubt to heighten the level of intimidation to be used in the home invasions. The addition of meat cleavers to this scenario added further to the level of intimidation, as well as increasing the likelihood that serious harm or death would occur. 244Further, there was an element of planning surrounding the offences. Although it was persons further up the hierarchy than Natuba who were making the decisions concerning the target premises and the times when forced entry would occur, Natuba was a willing and active participant in this repeated criminal conduct. He carried out the plans of others. 245The offences were not spontaneous. These were not cases of hasty decision making, influenced significantly by immaturity. The bravado and aggression of youth may reflect a level of immaturity. However, as Lee CJ at CL observed in R v Pham and Ly, young, aggressive men are frequent offenders in this class of crime. 246The youth of Natuba is of less assistance to him on sentence in these circumstances.

Tamapua's Role in the Firearm Offences 247Tamapua's role in the offences committed on 3-4 July 2010, involving possession of a firearm and possession of that weapon in company with intent to commit affray was significant. The evidence indicates a hectic period of communication between Tamapua and others as part of the planning for the anticipated violent confrontation which was to follow he was not a minor participant in those offences.

Application of Parity and Proportionality Principles to these Cases 248In approaching the question of sentence of these two Offenders, I have kept in mind the sentences imposed in the District Court with respect to Vergara, Bautista and CB, as well as the sentences imposed by me earlier this week upon MA, Byquar and Ramos. 249The District Court sentences related essentially to the Ashcroft offence, with Vergara sentenced, as well, for the firearm offences at Miller for which Tamapua is also to be sentenced. 250In my view, with respect to the Ashcroft offence, application of the principles of parity and proportionality ought see the appropriate reference point for Tamapua as being the sentence imposed upon Bautista. 251With respect to the murder of Kesley Burgess, in my view, the appropriate reference point for the purpose of application of the principles of parity and proportionality, would be the sentence imposed upon Byquar. Natuba's role is of a similar order to that of Byquar. Although Tamapua did not enter the house, his supervisory role places him, in my view, in a similar range. 252Natuba is to be sentenced, as well, for the Warwick Farm offence, as to which I consider Byquar's sentence is the appropriate reference point for the purpose of parity and proportionality. 253With respect to Tamapua's firearm offences, I accept that the sentences imposed upon Vergara are helpful reference points for the purpose of Tamapua's sentencing. 254There are a number of clear differences between the various Offenders as well, so that these indications are a general guide to sentence only.

Determining the Appropriate Sentences 255Having identified factors relevant to sentence, and discussed the significance of a number of them, it is now necessary to determine the appropriate sentence to be passed for each offence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 375 [39], 378 [51]. 256It is necessary to keep in mind, as statutory guideposts, the maximum penalty for each offence and the applicable standard non-parole periods: Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 257It is necessary that the Court determine an appropriate sentence for each offence and then consider issues of accumulation, concurrency and totality. Natuba 258I take into account the assessment which I have made of the role of Natuba in the commission of the offences for which he is to be sentenced. With respect to the Warwick Farm offence, Natuba entered the unit whilst armed with a meat cleaver, with the consequence that Ms Rogers and her children were terrified. He brandished the weapon at Ms Rogers whilst demanding money and drugs from her. He was a direct participant in this offence, a serious example of an armed robbery. 259The invasion of the Burgess home involved Natuba entering whilst armed with a meat cleaver, as were others, and becoming directly involved in the physical confrontation with Kesley Burgess, leading to a number of the home invaders striking Kesley Burgess, thereby causing his death. I accept that the injury sustained by Natuba no doubt contributed to the state of anger which manifested itself in him. However, Natuba was already acting in a highly aggressive way, and the response of Kesley Burgess to attempt a form of defence against the odds was completely predictable. Even though Natuba did not enter the house intending, at that time to kill or cause grievous bodily harm, he was part of an extremely violent joint criminal enterprise where resort to violence, and fatal violence, was made by the invaders upon the sign of serious resistance. This was a most serious offence, as was the Form 1 offence of robbery of Tracey Burgess in the course of the home invasion. 260Natuba's offences were committed whilst he was subject to conditional liberty. His criminal history does not assist him on sentence. 261Natuba has strong family support which will no doubt play an important part in the future in assisting his return to the community when he is released. 262I accept that Natuba, at an early point, showed signs of contrition and remorse in his decision to commence to assist the authorities. I accept that his contrition and remorse is genuine. 263I have regard to the restrictions upon him in custody, a consequence of his decision to assist authorities and give evidence for the Crown against alleged co-offenders. The evidence demonstrates that his period in custody is likely to be more onerous as a result. 264I consider that there are reasonable prospects of rehabilitation in his case. I have reached this conclusion having regard to the psychological evidence and the strong body of evidence concerning support available to him in the community upon release. His continuing maturity in custody supports this conclusion as well. 265It is appropriate that Natuba's sentences commence on 2 July 2010, the date of his arrest. 266Given the separate crimes for which he is to be sentenced, with different victims, partial accumulation of sentences is appropriate. I have had regard to totality. 267A combined discount of 50% is to be applied by reference to Natuba's pleas of guilty and his past and future assistance to authorities. 268A finding of special circumstances has been made to give effect only to the effect of accumulation upon sentences. 269Having regard to the objective circumstances of the offences and the subjective circumstances of Natuba, and taking into account all of the purposes of sentencing, I am satisfied that the starting point sentences, before application of the 50% discount, should be in his case: (a) for the murder of Kesley Burgess, taking into account the Form 1 offence, a head sentence of 28 years' imprisonment; (b) for the Warwick Farm offence, a head sentence of 10 years' imprisonment. 270After application of the 50% discount, and allowing for some measure of accumulation, the following sentences should be imposed upon Natuba: (a) for the Warwick Farm offence, imprisonment comprising a non-parole period of three years and nine months, commencing on 2 July 2010 and expiring on 1 April 2014 with a balance of term of one year and three months commencing on 2 April 2014 and expiring on 1 July 2015; (b) for the murder of Kesley Burgess, taking into account the matter on the Form 1, imprisonment comprising a non-parole period of 10 years commencing on 2 July 2011 and expiring on 1 July 2021 with a balance of term of four years commencing on 2 July 2021 and expiring on 1 July 2025. 271The total effective sentence for Natuba will involve imprisonment for 15 years with a non-parole period of 11 years and a balance of term of four years. Tamapua 272I have made a number of findings concerning the objective gravity of Tamapua's offences. Although he did not enter any of the premises, his role in planning and management is such that, in my view, his crimes are of a broadly similar level of seriousness to those of Natuba and Byquar. 273Of course, Tamapua was involved from 29 June 2010 until 1 July 2010 in the home invasion offences. His type of middle-management role extended over a not-insignificant period of time, given the frequency of the offences. 274The firearm offences committed at Miller were serious with the likelihood of significant violence if the police had not intervened. 275Tamapua's offences were committed whilst he was subject to conditional liberty. His criminal history does not assist him. 276I have mentioned Tamapua's subjective circumstances earlier in these remarks. I take them into account. 277I accept that Tamapua has demonstrated a measure of contrition and remorse, illustrated best by his willingness to assist the authorities from a relatively early stage. His prospects of rehabilitation are difficult to assess, but I consider them to be fair. 278I take into account the evidence of the restrictions upon Tamapua in custody having regard to his present and likely long-term custodial status. His imprisonment will be more onerous as a result. 279It is necessary to keep in mind, in his case, that there are three offences to be taken into account on a Form 1 when he is sentenced for murder. 280I am satisfied that a measure of accumulation is appropriate as between the sentences and I have kept in mind the totality principle in approaching his sentence. The sentences for the Miller offences on 3-4 July 2010 ought be concurrent as they embrace a single course of criminality. 281I have found special circumstances by reason of the accumulation of sentences only. 282Tamapua is entitled to have brought to bear the combined 50% discount for his pleas of guilty and his assistance to the authorities, past and future. 283As stated earlier, the sentences should date from 26 March 2011. 284Having regard to the objective circumstances of his crimes, his subjective circumstances and the purposes of sentencing, and before applying the 50% discount, I am satisfied that the following sentences should be imposed upon Tamapua: (a) for the Ashcroft offence, imprisonment comprising a head sentence of eight years; (b) for the offence of possession of an unauthorised firearm, imprisonment comprising a head sentence of six years; (c) for the offence of possession of an offensive weapon in company with intent to commit an indictable offence, a fixed term of imprisonment for four years; (b) for the murder of Kesley Burgess, taking into account the matters on the Form 1, imprisonment comprising a head sentence of 28 years. 285After application of the 50% discount, and allowing for some measure of accumulation, the following sentences should be imposed upon Tamapua: (a) for the offence of specially aggravated break, enter and steal committed at Ashcroft on 29 June 2010, imprisonment comprising a non-parole period of three years commencing on 26 March 2011 and expiring on 25 March 2014 with a balance of term of one year commencing on 26 March 2014 and expiring on 25 March 2015; (b) for the offence of possession of an unauthorised firearm, imprisonment comprising a non-parole period of two years commencing on 26 September 2011 and expiring on 25 September 2013, with a balance of term of one year commencing on 26 September 2013 and expiring on 25 September 2014; (c) for the offence of possession of an offensive weapon in company with intent to commit an indictable offence, imprisonment comprising a fixed term of imprisonment for two years commencing on 26 September 2011 and expiring on 25 September 2013; (d) for the murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offences on the Form 1, imprisonment comprising a non-parole period of 10 years, commencing on 26 September 2012 and expiring on 25 September 2022 with a balance of term of four years commencing on 26 September 2022 and expiring on 25 September 2026. 286The total effective sentence for Tamapua will involve imprisonment for 15 years and six months, with a non-parole period of 11 years and six months and a balance of term of four years.

Sentences and Orders 287Tomasi Natuba, would you please stand. 288For the offence of robbery whilst armed with an offensive weapon committed at Warwick Farm on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of three years and nine months commencing on 2 July 2010 and expiring on 1 April 2014, with a balance of term of one year and three months commencing on 2 April 2014 and expiring on 1 July 2015. 289For the offence of murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offence on the Form 1, I sentence you to imprisonment comprising a non-parole period of 10 years commencing on 2 July 2011 and expiring on 1 July 2021, with a balance of term of four years commencing on 2 July 2021 and expiring on 1 July 2025. 290The earliest date on which you will be eligible for release on parole is 1 July 2021. 291Anaterea Tamapua, would you please stand. 292For the offence of specially aggravated break, enter and steal committed at Ashcroft on 29 June 2010, I sentence you to imprisonment comprising a non-parole period of three years commencing on 26 March 2011 and expiring on 25 March 2014 with a balance of term of one year commencing on 26 March 2014 and expiring on 25 March 2015. 293For the offence of possession of an unauthorised firearm, I sentence you to imprisonment comprising a non-parole period of two years commencing on 26 September 2011 and expiring on 25 September 2013, with a balance of term of one year commencing on 26 September 2013 and expiring on 25 September 2014. 294For the offence of possession of an offensive weapon in company with intent to commit an indictable offence, I sentence you to imprisonment comprising a fixed term of imprisonment for two years commencing on 26 September 2011 and expiring on 25 September 2013. 295For the murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offences on the Form 1, I sentence you to imprisonment comprising a non-parole period of 10 years, commencing on 26 September 2012 and expiring on 25 September 2022 with a balance of term of four years commencing on 26 September 2022 and expiring on 25 September 2026. 296The earliest date on which you will be eligible for release on parole is 25 September 2022.

Amendments 10 October 2013 - Publication restriction removed. Amended paragraphs: Coversheet 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: 10 October 2013