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.