R v NK - [2015] NSWSC 1257 - NSWSC 2015 case summary — Zoe

NSWNSWSC

R v NK

[2015] NSWSC 1257

Supreme Court of NSW|2015-08-21|Before: Hamill J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2015-08-21

Before

Hamill J

Catchwords

(2002) 56 NSWLR 146 Brown v R [2012] NSWCCA 199 Bugmy v The Queen [2013] HCA 37
252 CLR 601 Markarian v The Queen [2005] HCA 25
228 CLR McIntosh v R [2015] NSWCCA 184 Muldrock v The Queen [2011] HCA 39
244 CLR 120 Munda v Western Australia [2013] HCA 38

Source

Original judgment source is linked above.

Catchwords

(2002) 56 NSWLR 146 Brown v R [2012] NSWCCA 199 Bugmy v The Queen [2013] HCA 37252 CLR 601 Markarian v The Queen [2005] HCA 25228 CLR McIntosh v R [2015] NSWCCA 184 Muldrock v The Queen [2011] HCA 39244 CLR 120 Munda v Western Australia [2013] HCA 38168 A Crim R 249 The Queen v De Simoni [1981] HCA 31147 CLR 383 Versluys v R [2014] NSWCCA 98 Wong v The Queen [2001] HCA 64

Judgment (27 paragraphs)

[1]

R v Pang [1999] NSWCCA 4; 105 A Crim R 474 R v RD [2014] NSWCCA 103 R v SAE (Court of Criminal Appeal (NSW), 3 April 1997, unrep) R v Sharply [2014] NSWDC 253 R v Sumpton (No 4) [2015] NSWSC 684 Ruge and Cormack v R [2015] NSWCCA 153 SHR v R [2014] NSWCCA 94 SZ v R [2007] NSWCCA 19; 168 A Crim R 249 The Queen v De Simoni [1981] HCA 31; 147 CLR 383 Versluys v R [2014] NSWCCA 98 Wong v The Queen [2001] HCA 64; 207 CLR 584 Texts Cited: Legislative Assembly Legal Affairs Committee Report 'Law Reform Issues Regarding Synthetic Drugs', Report 1/55 - May 2013 Category: Sentence Parties: NK (Offender) Crown Representation: Counsel: J Crespo (Crown) E Ozen (Offender)

[3]

Judgment

At about 9:30 on the evening of 16 December 2013 Joseph Antoun was shot dead in his home in front of the woman he planned to marry and in close proximity to the couple's twin 6 year old daughters. This tragic and despicable event was the execution of a contract which had been taken out on the life of Mr Antoun. The motivation of the person who took out the contract is not known to me but that person agreed to pay the sum of $200,000 to Farhad and Mumtaz Qaumi who were, at the time, the leaders of a criminal group known as the Brothers for Life Blacktown Chapter (BFL Blacktown).
Neither Farhad nor Mumtaz Qaumi were present at the time of the shooting. Rather, they arranged for one of the members of BFL Blacktown to carry out the execution. That member was the offender, NK. He was not to share in the profits of the contract and was threatened that if he did not perform the heinous task he and his partner's young child would be killed.
NK has now pleaded guilty to the murder of Mr Antoun and he stands before me to be sentenced for that crime. He is also to be sentenced for two other shooting incidents, one of which involved a home invasion and the other caused the wounding of two men. A fifth offence involved him knowingly taking part in the supply of a large commercial quantity of a prohibited drug called N-(2-methoxylbenzl)-2,5-dimethoxy-4-iodophenethylamine.
In addition to the 5 offences to which he has pleaded guilty, NK also asks that I take into account a number of other offences in relation to which he admits his guilt. [1] In relation to the first charge on the indictment, he asks that I take into account an offence of causing suffering to an animal, demanding property with menaces and using an unauthorised pistol. That first count is an allegation of breaking and entering a dwelling house in circumstances of special aggravation, that is being armed with a dangerous weapon. That is an offence contrary to s 113 (3) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 20 years. In sentencing for that offence I will take the three other offences into account and will increase the weight that would otherwise be given to sentencing principles of specific deterrence and retribution. [2]
In respect of the fourth count on the indictment (which is the drug offence) NK asks that I take into account his admission to the commission of offences of possession of an unauthorised prohibited firearm, possession of an unauthorised pistol, possession of a restricted substance, possession of ammunition and participating in a criminal group. Once again, in sentencing for count 4, I take those other offences into account and, in doing so, increase the weight which I would otherwise give to specific deterrence and retribution. The drug offence carries a maximum penalty of life imprisonment [3] and a standard non-parole period of 15 years. [4]
Counts 2 and 3 are each charged under s 33(1)(a) of the Crimes Act 1900 (NSW) and carry a maximum penalty of 25 years and a standard non-parole period of 7 years. [5]
By far the most serious offence, in an indictment alleging five very serious crimes, is the murder of Mr Antoun (count 5). It carries a maximum penalty of life imprisonment [6] and a standard non-parole period of 20 years. [7]

[4]

The case viewed from various perspectives.

Judges and lawyers like to say that particular cases represent "difficult sentencing exercises". It is a much overused expression, although in most sentencing cases Judges are confronted with factors and principles that are apparently contradictory. However, the expression is particularly apt in the present case. As the evidence unfolded before me I was confronted with the tragedy that the case represents from every conceivable viewpoint. As I considered the submissions of counsel, I found that the sentencing principles that must be applied pulled in opposite directions. There are at least three perspectives from which one might view the sentencing exercise in the present case.
From the perspective of the family of Joseph Antoun, it is difficult to imagine that any sentence that I impose (even life without parole) would satisfy their need or desire for a just and retributive response to a premeditated, callous and senseless act of violence. I have not lost sight of their suffering and the impact that the murder of Mr Antoun has had upon his family, friends and loved ones.
From the perspective of the offender and those who care about him, it might be considered that his present predicament is the result of a life of tragedy, dislocation and alienation. This culminated in his membership of the Brothers for Life in circumstances where he seemed to have nowhere else to turn. He was then exposed, not for the first time in his life, to acts of violence which led to him involving himself in a series of serious criminal offences and being subject to threats and duress which led him to commit the murder of Mr Antoun. From that perspective, the sentencing exercise should be moderated with a significant degree of compassion and mercy.
From the perspective of the average member of the community and the police officers charged with the responsibility of protecting them, there are matters which pull in two directions. On the one hand, the community is entitled to expect that those who involve themselves in the kinds of systematic and brutal crimes committed by the present offender should be met with extremely severe punishment. The community would be entitled to think that any other response would bring the system of justice into disrepute. On the other hand, the community is entitled to expect that the courts will act in a way that is designed to bring the activities of gangs such as the BFL Blacktown to an end. To achieve this, it is necessary to encourage offenders to take the courageous and dangerous step of assisting police in the investigation and prosecution of those involved in, and at the head of, such criminal organisations. There is a particularly stark example of that consideration present in NK's case. There is a body of material which satisfies me that his interactions with the police have played a substantial role, and will continue to play a substantial role, in the shutting down of the criminal organisation known as the BFL Blacktown.

[6]

Count 1

Count 1 had its inception in an attempt by a witness (referred to as "E") to sell a Range Rover motor car to the victim Christopher Muscat. The car belonged to E's father. E told Mumtaz Quami that he wanted to sell the vehicle for $50,000. What followed appears to have been an attempt to rob Mr Muscat of that $50,000. Mumtaz Qaumi told E to tell Mr Muscat to have the money ready. There was then a meeting of the group during which Farhad Quami pointed an unloaded .38 calibre 5 shot Smith & Wesson pistol at E and pulled the trigger a number of times. He then gave orders to the offender and others to go to the home of Mr Muscat and "shoot him in the legs, get the money and tie him up". The group went in two cars to Mr Muscat's address. They entered the premises and a confrontation ensued. By that stage the offender was in possession of the (now loaded) pistol. [9] In carrying out the threats and in the course of the confrontation, the offender discharged three shots from the weapon, one of which struck Mr Muscat's dog. One of the other men involved attempted to stab Mr Muscat in the chest. Mr Muscat told the group of offenders that he had money buried in the backyard. When they allowed him to go outside to locate the money he ran from the scene and into nearby bushland. The offenders did not obtain any money but took a trail bike.
When the group returned to the BFL clubhouse and explained what had happened, Farhad Qaumi became enraged at the failure of the plan. He shouted at E, blaming him for what had occurred. E was then assaulted by Mumtaz Qaumi who slapped him in the back of the head. Farhad Qaumi then directed other members of the group to hit E. He was assaulted by a number of men in turn. E was then told "well get me the car then" (being a reference to his father's Range Roger). Farhad also pointed a weapon at E's leg and threatened to shoot him. He told E that "I've killed people for less than this".
Attempts by the group to obtain the Range Rover were unsuccessful due to concerns that E's father would call the police.

[7]

Count 1: assessment of objective seriousness

By the time of the commission of this particular offence, the offender had been a member of the Brothers for Life for some period of time. The evidence establishes that the nature of the group changed when the Quami brothers took control. As a result, the offender was under the impression that he would be punished in some way if he failed to carry out the orders of Farhad Quami. That provides a degree of mitigation in an assessment of his objective criminality. However, at the time of the offence charged in count 1 (that is, 14 October 2013), I am unable to accept that there was any significant duress operating on the offender's mind. He joined the group voluntarily and did not make any serious attempt to leave when its nature changed and the group was carrying out criminal activities.
The offence is a very serious one, carrying a maximum penalty of twenty years. It was part of a pre-meditated plan to stand over the victim by means of violence in an attempt to obtain $50,000. The offence was carried out in the company of a number of men and involved the use of a loaded firearm. The gun was discharged in the course of the dispute. The offence was committed in the victim's home and must have been a frightening experience for him. The offence was committed when the offender was on parole for a similar offence (robbery in company) committed in 2010.
Taking all of those matters into account, the criminality in relation to count 1 is high. However, the definition of "circumstances of special aggravation" includes cases where an offender intentionally or recklessly wounds or inflicts grievous bodily harm upon a victim. [10] As a general, although not universal, rule those aggravating features are more serious than that which applies here. In the present case, perhaps fortuitously, the only injury was to the dog who mercifully survived. In spite of its obvious seriousness, and even taking into account the matters on the Form 1 and the breach of parole, the case falls well below the higher end of offences contemplated by the section.

[8]

Counts 2 and 3

Counts 2 and 3 are offences involving the unlawful wounding of two men who were members or associates of the Brothers for Life Bankstown Chapter.
There are a number of offences allegedly committed by various members of the BFL Blacktown which arose as a result of a "turf war" between the Blacktown and Bankstown chapters of the Brothers for Life. It is not necessary for me to go into great detail of the splintering of the Brothers for Life, or to analyse the inception of the conflict which arose between members of the group. It seems that there may have been a split between the chapters based on ethnic or national lines but the conflict was about money and the profits to be made by the commission of criminal offences such as drug trafficking. These organisations were not about culture, ethnicity or religion. They were certainly not about Islam. They were about greed. One way or another, the Qaumi brothers were concerned that the Bankstown chapter was coming after them and decided to strike first.
As a result, Mahmoud Hamzy was shot and killed at his cousin's home in Revesby Heights. A number of people have been charged with his murder and are due to stand trial later this year and early next year. In the same incident, Omar Ajaj was shot at least three times. He had two wounds to his leg and one to his abdomen.
The statement of facts asserts that the plan was to execute Mohammed Hamzy. It appears that his cousin Mahmoud (who was killed) and Mr Ajaj were in the wrong place at the wrong time. On the facts presented, the offender might properly be convicted of the murder of Mahmoud Hamzy. However, those facts are derived from an interview with the offender in relation to which he was provided a certain inducement to speak. [11] The inducement was that nothing he said would be used in evidence against him in a prosecution for homicide arising out of the incident at Revesby Heights. The prosecutor acknowledges that the offender cannot be sentenced on the basis that he is complicit in or guilty of the homicide of Mahmoud Hamzy. This gives rise to a particularly artificial exercise in approaching the facts upon which the offender is to be sentenced. [12]
After setting out the background to the dispute between the two chapters of the Brothers for Life, the agreed facts go on to outline events resulting in the unlawful wounding:
"The shootings at 28 Bardo Circuit, Revesby Heights: 96. At about 11:30pm on 28 October 2013 Mahmoud HAMZY and Omar AJAJ visited their cousin Mohammed 'Hamoudie' HAMZY at his residence at 28 Bardo Circuit, Revesby Heights. They socialised inside the garage area of the residence with Mehmet YARAR Ahmed ALI, Ziad HIJAZI and Khaled SOUEID. 97. At about 12.30am on 29 October 2013, Witness M drove the white Nissan Tiida into Bardo Circuit. HIJAZI, SOUEID & ALI left number 28 in a white Kia Cerato near the same time. A CCTV camera located at the front of 46 Bardo Circuit captured the white Kia Cerato driving out of Bardo Circuit after leaving number 28. As the Kia Cerato rounded the corner at the bottom end of Bardo Circuit, they swerved to miss the white Nissan Tiida which was being driven up the 'one way' street in the wrong direction. That vehicle still contained Witness M, Jamil QAUMI, ZARSHOY and the offender. 98. The Nissan Tiida then waited near Mohammed 'Hamoudie' HAMZY's house at 28 Bardo Circuit. CCTV captured the Nissan Tiida stopping in a turning area at the front of number 46 before three people dressed in dark clothing and wearing balaclavas, alighted from the vehicle and started walking up the street towards number 28. These three people were Jamil QAUMI, ZARSHOY and the offender. As they walked up Bardo Circuit, they were followed by the Nissan Tiida which was being driven with its lights off by Witness M. 99.Mohammed 'Hamoudie' HAMZY, Mahmoud HAMZY, Omar AJAJ and Mehmet YARAR were still socialising in the garage of number 28 at this time. Mahmoud HAMZY and Mohammed 'Hamoudie' HAMZY are similar in appearance and Mahmoud HAMZY was wearing a black baseball cap at that time. 100.When Jamil QAUMI, ZARSHOY and the offender reached the front of number 28, they ran into the garage and began firing their firearms. As they did this, Mohammed 'Hamoudie' HAMZY and Mehmet YARAR ran for a door leading into the house and they escaped unscathed. 101. Both Mahmoud HAMZY and Omar AJAJ both fell to the ground after being wounded by bullets. 102. Jamil QAUMI then approached Mahmoud HAMZY and fired at least one bullet into his head from close range. 103. Jamil QAUMI, the offender and ZARSHOY then ran back out to the white Nissan Tiida which was waiting at the front of the house. Jamil QAUMI got back into the front passenger seat, the offender got into the rear left hand seat and ZARSHOY into the rear right hand seat. Witness M then sped off in the vehicle. As the vehicle was driving off, ZARSHOY fired at least one further shot from the vehicle in the direction of the house as they left. 104. Witness M drove the white Nissan Tiida to the Penshurst Railway Station. As they were driving away, the group removed their gloves and balaclavas and placed them into a plastic bag and handed it to the offender. They wiped their fingerprints off the firearms and placed them in another bag that was given to Witness M. At the Penshurst Railway Station, Witness M stopped the vehicle and got out. As she walked off, Jamil QAUMI instructed the offender to follow her to see where she was going. The offender tried to do so, but lost sight of her. When he returned to where the white Nissan Tiida had been parked, it was gone. 105. The offender then walked into the train station and got onto the next train. He quickly discovered that this train was heading in the wrong direction. He was captured on CCTV at this location. He got off at the Hurstville Railway Station and received some assistance from a station staff member to catch a taxi to the Coolabah Hotel at Merrylands. The purpose of this journey was to meet up with Farhad and Mumtaz QAUMI, as they had indicated earlier that was where they would be. 106.When the offender arrived at the Coolabah Hotel, he spoke with Mohammed ATAI and was informed that Farhad and Mumtaz QAUMI had left. After unsuccessfully trying to locate them by borrowing ATAI's mobile telephone and making a phone call, he got back into the waiting taxi and went home. 107. During this period, Jamil QAUMI and ZARSHOY drove the white Nissan Tiida to the Jamieson Reserve at Penrith where they set fire it causing it to be completely destroyed. 108. Not long after arriving home, Farhad and Mumtaz QAUMI drove to the offender's home in a white Range Rover belonging to Farhad. The offender went outside and briefly advised them of what had occurred in Bardo Circuit. 109. All three males then left that location, meeting up with Witness M, Jamil QAUMI and ZARSHOY at the park in Auburn where they had met earlier. They then travelled back to Granville Park and ate McDonalds takeaways, while discussing what had occurred. 110. The offender was then dropped off at his house by Jamil QAUMI. He later burnt the bag containing the balaclavas and gloves, along with his own clothing and the clothing worn by Jamil QAUMI at the time of the incident."

[9]

Counts 2 and 3: assessment of objective seriousness

By the time that these offences were committed the offender had seen how E was treated when he failed in the attempt to rob Mr Muscat of the $50,000 on 14 October 2013. The Crown Prosecutor submitted that there was no real evidence of duress in relation to counts 2 and 3 because nothing happened in the aftermath of the failure to rob Mr Muscat of the $50,000. I am unable to accept that submission. E was assaulted by the Qaumis and also by a group of men on Farhad Qaumi's instruction. He was also threatened with being shot in the leg, a threat which he took seriously enough to return to attempt to steal his father's car. He was told - and it was generally known or accepted, including by the applicant - that Qaumi had "killed people for less than this". In all of the circumstances I am satisfied that the offender was affected to a degree by the duress that he was under to take part in this crime. However, unlike count 5 to which I will presently refer, there was no direct threat made against him or his family. Duress is a factor in an assessment of counts 2 and 3, but it is not one which greatly mitigates the objective criminality of those counts.
These offences were extremely serious. They involved a well planned and executed (if, to a degree, bungled) application of terror inflicted on a rival criminal gang. The motive was profit and greed. It was committed in the company of a group of like-minded people, who were armed and dangerous. The incident demonstrates a degree of lawlessness and violence against which the community is entitled to be protected. Like the other offences, it was committed when the offender was at liberty on parole.
Because these offences carry a standard non-parole period, I should indicate that I consider the offences to fit comfortably within the mid-range of objective seriousness, if not a little above it. That is a difficult assessment to make in view of the actual injuries inflicted on Mr Hamzy and the position of the Crown that it "does not seek to rely on either constructive murder, or extended joint criminal enterprise". [13] It seems that the offender is to be sentenced on the basis that he discharged the firearm at the lower body of Mr Hamzy. [14]
Even though the matter falls in or above the mid-range of objective seriousness, I do not intend to impose the standard non-parole period. The standard non-parole period does not apply to a case in which an offender has pleaded guilty, although it remains a significant legal guidepost in a consideration of an appropriate sentence. Further, the personal circumstances of the offender, including the assistance he has provided, satisfies me that the standard non-parole period ought not to be imposed.

[12]

THE MURDER OF JOSEPH ANTOUN (COUNT 5)

Farhad, and Mumtaz Quami accepted a contract in the amount of $200,000 to arrange for the murder of Joseph Antoun. They approached the offender at his home and told him that "his number had come up" and that they had a job for him to do. He was told that if he did not do the job they would come back and kill both him and his partner's daughter. They provided him with a .38 calibre revolver.
On 16 December 2013 arrangements were made for another member of the BFL Blacktown (a man called Witness C) to drive the offender to the home of Mr Antoun. They were instructed to pretend that they were visiting the premises to drop off a package. The offender was told to pretend that he was "Adam", a known associate of the victim. When the pair first arrived outside the home the offender approached the house and returned to the vehicle saying that he did not think Mr Antoun was at home.
However, 10 minutes later he returned to the house and the murder was committed. The offender was carrying a small service manual in his left hand which had been obtained from Witness C's car. Mr Anotun's partner (Teagan Mullins) called out "Who is it?" and the offender told her "It's Adam; I've got a package for Joe". Teagan Mullins got Joseph Antoun and he opened the door. The offender opened fire almost immediately. He discharged the gun 5 times in the direction of the deceased and, according to the agreed facts, "four shots struck him in the upper body". Mr Antoun was killed almost instantly.
I have heard from Teagan Mullins the devastating impact that this offence has had on her and her 6-year-old twin girls. I have heard from Mr Nemer Antoun about the loss and grief that he and his mother have suffered.
The offender fled the scene and the next day was directed to hide the firearm. Sometime later the police located the gun in a car being driven by another man.
The murder of Joseph Antoun represents criminality at or towards the highest level contemplated by the law. It involved an organised criminal enterprise whereby a person's life was taken for no motive better than money. It involved the use of a handgun and took place in the victim's own home. It was committed in the presence of the victim's wife and in the proximity of his small children. [20] It was a callous and brutal execution carried out with ruthless efficiency. The community is entitled to be protected from people capable of committing such crimes.
The offender told police and gave evidence before me that he did not want to kill Mr Antoun. He also claimed that when he discharged the firearm, he did not intend to kill Mr Antoun. Both in his interviews with the police, and in evidence before me, he said that if he had wanted to kill Mr Antoun - and if he intended to kill him - he would have shot him in the head.
The Crown prosecutor contends that NK should be sentenced on the basis that he formed an intention to kill. Mr Ozen says that he should be sentenced on the basis of an intention to inflict grievous bodily harm and that his evidence would lead me to have a doubt as to whether he had an intention to kill. Although not universally true, cases of murder involving an intention to kill are generally considered to be more serious than those involving an intention to do grievous bodily harm. [21]
There are two different factual questions involved in this area of controversy and both are important to a proper assessment of the offender's objective criminality. The first concerns the elements of murder and what NK's intention was when he pulled the trigger. In relation to that question, the onus is on the prosecution to establish the intention to kill beyond a reasonable doubt. Having considered all alternative inferences consistent with some other intention, I am satisfied beyond reasonable doubt that at the time NK shot Mr Antoun he intended to kill him. In reaching this conclusion, I note that five shots were fired from very close range and that Mr Antoun suffered four bullet wounds to the upper body. I reject the offender's evidence that he did not intend to kill Mr Antoun and that, if he had formed that intention, he would have shot Mr Antoun in the head.
The second question arises from NK's assertion that he did not "want" to kill Mr Antoun. This question is relevant to the issue of duress. Having heard the offender give evidence and having considered his interviews with the police, I am satisfied that he did not want to commit this crime. I am satisfied that he acted as he did as a result of the direct and serious threat to his own life and to that of the young child that he treated and raised as his own daughter.
This finding on the balance of probabilities that the offender was acting under duress is an important factor in a comparative and relative assessment of the objective criminality in the present case.

[13]

Count 4: objective seriousness and whether the maximum penalty is appropriate

The killing was premeditated and undertaken with an intention to kill. It was carried out in pursuit of a contract killing and was part of a planned and organised criminal enterprise. It involved the use of a weapon and executed in the victim's own home while the offender was on parole. Those findings mean that the murder of Mr Antoun is a matter that falls at the high end of the factual scenarios that might constitute the offence of murder. In those circumstances the imposition of the maximum penalty (that is, life without parole) must be considered in the proper exercise of the sentencing discretion. The imposition of such a sentence is governed by the provision in s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW): "Section 61 - Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."
The learned Crown Prosecutor submitted that the maximum penalty is not appropriate in all of the circumstances of this case. First, he says that the degree of assistance to authorities is such that a significant reduction in what would otherwise be an appropriate penalty is necessary. The Crown also accepts that the degree of duress under which the crime was committed is a mitigating feature of such significance that the level of culpability is not "so extreme" that the only way to meet the community interest is by the imposition of a sentence of imprisonment for life without parole.
Ultimately, it is not for the Crown Prosecutor or the Director of Public Prosecutions to make that determination. The burden of that responsibility is cast upon the Court and in particular upon me as the sentencing Judge. However, I am satisfied that the Crown's submission is well founded and I accept the concession that the maximum penalty should not be imposed in this case. Further, I accept the Crown's submission that the starting point (that is, the sentence before the reduction for the plea of guilty and assistance to authorities) should be a determinate sentence.
While I consider that the offence is well above the mid-range of objective seriousness, I do not consider that it falls at the top of the range. Mr Ozen referred me to the observations of Fullerton J in the case of R v Burnes. [22] Her Honour was sentencing in a case where the offender carried out an execution style killing on behalf of a man (May) who was in the business of supplying heroin. Her Honour accepted that the offender simply accepted that May wanted the victim killed because he posed a threat to May's heroin business. He accepted that May was justified in wanting the deceased killed and "agreed, without hesitation, to play the role of the killer". [23] Her Honour found an assertion that the offender was paid $40,000 to carry out the crime was most likely a means of aggrandizing his own importance. [24] In assessing the objective criminality Fullerton J said: [25] "In light of the findings of fact that I have made, when viewed objectively, the murder is in my opinion just outside the worst category of case. It was a murder planned by one and executed by another in cold blood and in a milieu of drug dealing where financial motivations dominated. However, the fact that this offender killed at the request of and ultimately on the command of the person who had the primary motive to kill, operates to distinguish his criminality from that of his co-offender. That offender is in the worst category of case."
I agree with those remarks and accept that the present case falls below the "worst case". When one considers the element of duress which is particularly significant in relation to this count, the offending falls well outside of the worst case when viewed objectively and dispassionately. That finding should not be interpreted to suggest that the offending is not extremely serious and approaching the top end of the range of offences encompassed by the crime of murder. The offence was committed on parole as part of a well-executed and chilling criminal plot which involved the taking of human life for profit. For the purpose of a consideration of the standard non-parole period, the offence falls above the mid-range of objective seriousness.

[14]

THE SUFFERING OF THE FAMILY OF JOSEPH ANTOUN

On the first day of the sentencing proceedings Teagan Mullins and Nemer Antoun read victim impact statements. Ms Mullins was the partner of the deceased and the mother of his children. Mr Nemer Antoun was his brother. The statements were read to the Court with great dignity and it took real courage for each of them to read the statements in the daunting and public setting of the courtroom. To say that it was a moving and emotional experience to listen to Ms Mullins and Mr Antoun speak about the impact of this crime on them and their families is to be guilty of a gross understatement.
Ms Mullins explained the impact of Joe's death upon her. She told me that her life and the life of her twin daughters changed forever on 16 December 2013. Joe was the love of her life, her soul mate and her best friend. The biggest part of his life was being the father to the couple's two little girls. No matter how busy he was at work he always came home in the evening in order to say goodnight to his daughters. In turn, they always waited up for him. She told me: "A 6-year-old should be thinking about Barbies and riding bikes, not thinking about her father being murdered and taken away from us. Joe will never stand at another school assembly to see our daughters get awards with pride in his eyes."
Instead, Ms Mullins stands at those assemblies by herself with tears in her eyes.
Apart from the emotional impact, Joe's death has left the family with significant financial burdens. He was the sole income earner and Ms Mullins can no longer take the twins somewhere special to treat them or buy them the kinds of shoes and clothes that they want. She has trouble hiding her pain from the children but she tries to live a normal life; she tries to dust herself off and show them strength but sometimes she just needs to cry until there is nothing left.
Teagan Mullins also spoke about the horrendous experience of watching her partner get shot and holding him as he took his last breaths. She still has nightmares of the sound of guns; she wakes at night and thinks of places where she and the children could hide if their family home is attacked again. She shook like a leaf for hours after she heard an electrical box explode in the streets near her home. She is sad, she is angry and she is confused all at once. She is scared to leave the house alone.
Joe and Teagan planned to marry the year after he was killed. It was to be a surprise wedding at the childrens' christening and the twins were very excited at the prospect. All of that ended at the hands of the offender and his criminal associates on 16 December 2013.
Joseph's brother Nemer also read a moving statement. He confirmed that the most important thing in Joe's life was Teagan and his two twin girls. The day that the twins were born was the turning point in Joe's life. He was a great father - "his whole life was his girls". Nemer Antoun also explained the impact that Joe's murder has had on the rest of the family. Their mother, who was 85, lost her son and has not slept one night since the murder without crying and making an offer to God to bring him back, whatever the costs may be to her. He told a story which said a great deal about the victim of this homicide. The story arose when he spoke to an old homeless woman who recognised Joe's business partner and was told what had happened to Joe. Her reaction was as follows: "The lady started to cry, she came to me, hugged me and gave me her condolences. She asked how it happened and why. She asked if he left loved ones behind. Then she wiped her face and looked in my eye and said; 'Whenever I would see Joe he would always greet me with a smile and a joke, he would always leave me some money and always treated me like a human being. My family has abandoned me but you brother respected me. I used to look forward to seeing him, he would make me promise to eat and I had to hang around to tell him a funny joke. I had no family but I had Joe and I lived to see him smile. I will miss my friend.' She made the sign of the cross, said a prayer, gave me her blessing and walked away. This is Joe as I remember him."
Once again, I say thank you to Teagan and to Nemer for the courage that each of you displayed in reading your statements to the Court and for explaining your grief and the love that you had for Joseph. I know that nothing that I say today, and nothing that I do in sentencing the offender, will help you in dealing with your grief or make amends for the tragic loss that you and your family have suffered. I hope that time will heal the wounds and I hope that in time you come to have some peace.
But the circumstances are such that your suffering will continue for a long time and you may never completely get over the loss that you have suffered. I wish that there was something that I could do, or that the Court could do, or that the system of justice could do that will bring Joseph back. But there isn't.
To the entire Antoun family, and particularly to those of his family and friends who have attended the sentencing hearing, I again thank you for the dignity with which you have held vigil over these proceedings. I repeat that nothing that I do today will seem sufficient punishment for you. How could it possibly seem to be enough when a loved one's life was so ruthlessly taken away?

[16]

THE PERSONAL CIRCUMSTANCES OF NK

I turn to consider the personal circumstances of NK. I received a psychological report under the hand of Sam Borenstein, clinical psychologist, dated 20 August 2015 and the offender gave evidence over 2 days in the course of the sentencing hearing.
I have already made it clear that I did not accept that part of NK's evidence when he claimed that he did not intend to kill Mr Antoun at the moment when he fired the gun. However, for the most part, I accepted NK as an honest, forthright and sincere witness. While there are a number of inconsistencies between the offender's account of his personal history and that provided in Mr Borenstein's report, I accept that those inconsistencies are not the result of the offender providing inconsistent accounts but rather have arisen from the way the history was taken and the manner in which the evidence was adduced. In any event, the histories are largely consistent.
NK was born in Afghanistan in July 1988. It was a time of great turmoil in that country. NK said that the family left because it was a "war-torn country" and that the family was "escaping the Taliban". NK's family was forced, or chose to flee Afghanistan. It emerged in evidence that NK is Tajik. The Taliban is predominantly Pashtun and, at various times, the Tajiks and other ethnic minorities have been subject to significant discrimination and oppression by the Taliban. While there was no specific evidence of this, it is likely that the offender's family fled Afghanistan to avoid such oppression. In any event, that is not something that would have been known to NK who was only one year of age when the family fled to become refugees in Iran.
In Iran, the family was subject to discrimination as a result of their nationality, ethnicity and religion. Iran is a predominantly Shi'ite (or Shia) country whereas NK's family were Sunni Muslims. This created difficulties for the family. In addition, the family, and specifically the offender, was subject to discrimination based on racial or political grounds. Because the family did not have the necessary permits ("green cards") they were subject to deportation back to Afghanistan at any time. This happened to Afghan friends of the offender's family. This caused the offender to be fearful and mistrustful of police. The offender gave evidence of being assaulted and abused. People threw rocks through the windows of the family's home. They were called "Sunni dogs" and "Afghan dogs".
Life in Iran was terrible for the offender and his family, although the offender used understated language ("it wasn't an easy life there"). They were denied access to many services although, it seems, his father was able to obtain employment and they had some access to education and medical services provided to the community.
In his younger years the offender was particularly close to his paternal grandmother. However, she passed away leaving the offender somewhat traumatised by her loss. Further, the offender was very close to a younger brother, Hamed. Hamed had a medical condition and went to hospital and was provided with an injection containing the wrong medication. As a result the younger brother died. The evidence suggested that the two family members to whom the offender was closest (his grandmother and his brother) both died when the offender was a teenager. I accept that this had a significant effect on the offender's personal development.
When the family was living in Iran, the offender also had a good relationship with one of his aunts. When he was around 16 years of age, the aunt, her sister and the offender's paternal grandfather had the opportunity to move to Australia (presumably as refugees). They took that opportunity and the family arranged for the offender to go to Australia with them.
So it was that at the age of around 16 years the offender arrived in Australia. He did not speak English and was enrolled in a school where he received intensive English lessons. While he was at school he was subject to bullying and racism from other students. He had a very limited number of friends. He managed to learn English and he gave evidence in a manner that suggests that he is a reasonably intelligent and resourceful man.
His life at home was fraught with difficulties and ultimately with trauma. The aunt (or aunts) with whom he was living, and who had previously been very kind to him, changed when they arrived in Australia. When exposed to the freedom that Australian society provided, the aunt began (to adopt the language employed by Mr Borenstein) to "act out". The result was that her 16-year-old nephew was left at home largely to fend for himself. He had no guidance from adult relatives. He was lonely and alone. He cooked his meals for himself. It seems he was given no real moral compass. There were arguments during which the offender was slapped and hit by his aunt.
Things then got worse. At some stage, the aunt brought home with her a male companion. The offender gave evidence of being sexually assaulted by this man. It was obvious that the offender had real difficulty in relaying this incident in the public forum of the court. It also appeared, from my observations of the court room at the time and from the offender's demeanour, that he was affected in giving his evidence by the presence in the public gallery of a number of men who seemed to wish him ill. In any event, the evidence that he gave on the subject of the sexual assault was convincing. I believed it as it was given and I accept it now. While it was not said explicitly, I infer that the offender was anally raped.
The offender said that he became "angry at everyone" after this incident. He started to keep a knife under his pillow. He became involved in fights. When he tried to complain about the incident to his aunt, rather than taking his side and attempting to comfort her young nephew, she instead berated him, assaulted him and "kicked [him] out of the house". At that stage, the offender felt that there was nowhere to which he could turn for help. His experience of police and authorities in Iran made him distrustful of people in authority. It seems that it did not occur to him to turn to the police for help. This was a recurring theme over the following years.
The offender was kicked out of home. He was allowed to stay with the family of a friend. At one stage he attempted to return but his aunt turned him away. He was alone. It was in that context that he fell in with a group of young men who were committing crimes. There is nothing that can excuse the choices that the offender went on to make but the background that I have just recounted places those choices in a proper context.
Over the next several years the offender committed a number of serious criminal offences and was sent to gaol three times.
In 2006, he committed offences of robbery in company for which he was ultimately sentenced to imprisonment for 5 years with a non-parole period of 3 years. In 2007 he committed offences of armed robbery for which he received sentences of 30 months and 2 years respectively. In 2010 he committed an offence of robbery in company for which he was sentenced (in 2012) to a sentence of 3 years and 9 months with a non-parole period of one year and 11 months. As I have said in assessing the objective criminality of the present offending, the offender was on parole for the last offence of robbery when he committed the series of offences which for which he stands to be sentenced today. That breach of parole is an aggravating feature of all of the offences.
After his release from prison, the offender had a limited group of friends. Some of them had become involved in the organisation known as the Brothers for Life. His evidence is that at that time the group was not (to his knowledge) involved in criminal offending. I have some trouble accepting that proposition and it has been challenged to a degree by the Crown. However, I do accept that over time the seriousness of the offending in which group was involved escalated markedly.
On 10 June 2015 the offender provided a detailed account of his involvement with the Brothers for Life in a lengthy recorded interview with police. That interview took place over many hours and consisted of in excess of 1600 questions and answers. The offender told police that when he joined the group initially he saw it as a kind of family or social group where mates could "have a laugh, kick back - that's about it". At that stage according to the offender's interview there were no issues between the various chapters of the Brothers for Life. He was associated with a group based around Parramatta. At some stage a man called Basim Hamzy created (or took over) what became known as the Bankstown Chapter of the Brothers for Life. The membership of the Bankstown chapter was predominantly Lebanese. It was shortly after this that the Qaumi brothers became involved in the formation of what was to become the BFL Blacktown. The Blacktown Chapter was predominantly, although not exclusively, made up of Afghanis.
It was at that stage that the offender joined the Blacktown group and also when the group started to commit criminal offences such as robbery, drug supply and drug "rip-offs". The offender was exposed to significant violence perpetrated by members of the group, both on others within the group and on the victims of crimes that the group committed. There is significant detail of this within the lengthy interview of 10 June 2015 and in the Crown case statement relating to nine offenders who are later to stand trial.
The offender says that he wanted to leave the group and made some attempts to do so but was told that: "[I]t's not a soccer field, youse can't just come into the crew and just walk away like normal. He goes mate, everything has got consequences in life you know what I mean, he goes to me, don't think boys for a second youse can just walk away, no one walks away without a bang. I said what do you mean without a bang? He goes, mate I want to shoot youse, he goes, simple as that. No one goes out of here without a bang, it's not a soccer team youse come in off tomorrow or youse don't want to do it … youse committed, youse committed … and youse can't just walk away now."
The offender took the reference to "not leaving without a bang" to be a reference to somebody getting shot.
An example of a member of the group being bashed was when the man called Witness C stopped answering his telephone when Farhad Qaumi was calling him. The group was directed or ordered to bash the man and ultimately his motor car was confiscated from him. Another example involved the shooting of a man near the Wentworthville swimming pool.
The offender also told the police (and confirmed in evidence) that Farhad would speak about previous offences of violence, including murders, in which he was involved.
I accept that by October 2013 the offender felt trapped and unable to leave the BFL Blacktown. He was alone and intimidated and felt that he had nowhere to turn. Because of his experiences in Iran, he did not feel that he could turn to the authorities for help. Over the next several months the offender committed the offences with which he is now charged.
After his arrest, the offender was incarcerated at the Lithgow gaol. Rumours had circulated that he may be intending to provide some assistance to investigating police. Further, the gaol at which he was located also housed a group of people associated with the Bankstown chapter of the Brothers for Life. The Bankstown chapter had been subject to a number of acts of violence perpetrated by the Blacktown Chapter including the killing of Mahmoud Hamzy and the plot to kill Mohammed Hamzy.
One day when he was in the exercise yard, the offender was called over to a group of people associated with the Blacktown Chapter [sic]. [27] He was asked whether he was involved in the Hamzy murder but by the time he said "no" he was struck. He was then hit from behind and fell to the ground. A group of three men then started stomping him. The bashing left him unconscious and he was admitted to the gaol hospital where he remained for 3 days. I gather since that time he has been in some form of protective custody.

[17]

The relevance of this evidence to the sentencing discretion

In comprehensive and extremely helpful written submissions, Mr Ozen submitted that the offender's subjective case meant that "the offender is not a suitable vehicle for general deterrence, nor does this case exhibit hallmarks indicating a need for particular weight to be given to specific deterrence". In response, the learned Crown Prosecutor submitted: "General deterrence applies in this case. These are offences that can be described as offences of violence committed in the community. The question of general deterrence usually flows from the fact that the individual is compromised by some deficit or some intellectual, or lacking of intellectual capacity, or a youth where their capacity to consider the consequences of their act is compromised to the extent that it does not become an appropriate avenue for general deterrence."
The parties provided notes on the issue after the conclusion of the sentencing hearing. Mr Ozen submits that the reduced significance of general deterrence flows from the history of social deprivation and the consequent reduction in the offender's moral culpability for the offence. He submits that while youth, intellectual disability and psychiatric illness are specific examples where it has been held that general deterrence should be afforded less (or in an extreme case, no) weight, the categories of cases to which this principle applies are not closed. He submits that it applies to a case where an offender has been raised in circumstances of great deprivation and has been exposed to violence and relies on cases such as Bugmy v The Queen [28] and Kentwell v The Queen, [29] as well as the judgments of the Court of Criminal Appeal when those matters were remitted by the High Court. [30] Mr Ozen also referred me to two cases in which I made comments in relation to the interaction of a history of social deprivation and the role of general deterrence in the sentencing exercise [31] and to the sentencing remarks of Judge Yehia SC in R v Sharply. [32]
The Crown responded by submitting that "the evidence of deprivation/disadvantage does not operate to diminish the weight afforded general deterrence". The Crown acknowledges that the evidence may mitigate the sentence if I find that it reduces the offender's moral culpability. The Crown relies on the decisions that emphasise the importance of deterrence in cases involving home invasions, firearms, breach of parole, crimes of violence and serious drug offences. The Crown refers to the observations of Hunt CJ at CL in R v Alexander [33] where his Honour said: "Except in well-defined circumstances such as youth and mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duties of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospects that only light punishment will be imposed."
It is often the case that the extent to which an offender's moral culpability is diminished by reference to matters personal to him (for example, intellectual disability or social deprivation) is closely related the discretionary judgment as to the weight to be afforded to general deterrence. [34] However, while often closely connected factually, the issues are separate and involve different considerations. In assessing an offender's moral culpability, one consideration is whether the relevant personal circumstance explains or is causally connected to the commission of the offence, whereas an offender may be an inappropriate vehicle for general deterrence in spite of the absence of such a causal connection. [35] Conversely, while an offender's moral culpability might be diminished in a particular case, the circumstances of that case may be such that general deterrence maintains its significance.
An example of the latter case is where the crimes are premeditated or part of a systematic criminal enterprise. In Munda v Western Australia it was said: [36] "It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion."
That was the situation in R v Hines (No 3) where the offender's sudden and unpremeditated recourse to violence in the face of provocation and abuse by the victim was explained by his history of social deprivation and exposure to violence as a child. Not only was his moral culpability reduced, it was accepted that that he was "not an ideal vehicle through whom to send messages of general deterrence". Having made that remark, I noted the passage from Munda to which I have just referred.
In many cases, there exists both a history of social deprivation and an intellectual disability. An example was R v Booth where the offender suffered an intellectual disability of a similar severity to that described in Muldrock v The Queen. [37] There were also psychiatric factors at play in Bugmy v The Queen.
In Kentwell (No 2) Rothman J said: "92. Thus, a person, such as the appellant, who has suffered extreme social exclusion on account of his race, even from the family who had adopted him, is likely to engage in self-defeating behaviours and suffer the effects to which earlier reference has been made. This is how the appellant has been affected. 93. Circumstances such as that are akin to a systemic background of deprivation and are a background of a kind that may compromise the person's capacity to mature and to learn from experience: Bugmy at [41] and [43]. As a consequence, this background of social exclusion will, on the studies to which detailed reference has been made in Lewis, explain an "offender's recourse to violence…such that the offender's moral culpability for the inability to control that impulse may be substantially reduced": Bugmy at [44]"
In the circumstances of the present case, the offender's personal history of deprivation and alienation explains to a significant degree how he came to be involved in criminal activities and with the Brothers for Life. I readily come to that conclusion on the evidence and circumstances of the case. There is no need for expert opinion establishing that finding. It is a rational and logical conclusion to draw from the evidence before the Court. Having been dislocated, dispossessed and subject to discrimination in Afghanistan and Iran, he was then treated badly by his Aunt and sexually abused by one of her partners. Rather than comforting him, the aunt disbelieved him and turned him out of the house. He found himself with nowhere to turn. He had been marginalised and subject to racist taunts in Australia and one of his very few friends took him in. When that friend became associated with the Brothers for Life, so did the offender. When the group's involvement in violent crime escalated, the offender's early and adverse fear of police and authority figures explains his failure to turn to the police to try to escape. He remained alone in Australia with no adult relatives to turn to.
Mr Borenstein says: "[NK]'s background history indicates displacement and marginalisation. [NK]'s history confirms difficulties forming significant attachments. Having served two sentences in gaol, and upon release in 2013, [NK] was ripe to accept the invitation to join the BFL which represented an alternative family in which he felt valued and affirmed. Up to that time, [NK]'s life story was defined by alienation, marginalisation and isolation in Iran and later in Australia when rejected by his paternal grandfather and aunts. When invited to join the BFL he perceived it to be an alternative, caring, protective family at a time when [NK] had nowhere to go upon release from prison."
These matters reduce the offender's moral culpability for the crimes for which he is to be sentenced.
However, I am not persuaded that those same considerations lead to the conclusion that the offender is an inappropriate vehicle for general deterrence. While the psychological testing demonstrates some areas of concern (depression, anxiety, impulsivity, social detachment etc) there is no evidence of any significant disorder and nothing to gainsay my assessment that the offender is a reasonably intelligent man. Further, the offences for which he is to be sentenced were not impulsive, spontaneous or crimes of passion. They were well organised and premeditated offences committed by a lawless organisation determined to gain ascendancy in the criminal underworld. Those involved in such organisations who participate in crimes as serious as these must know that their actions will be met with severe punishment. Any other approach would fail to fulfil the purposes of punishment, would be contrary to relevant principles of sentencing and would neglect the need to protect the community.
I do accept Mr Ozen's submission that the categories of factors in relation to which the weight of general deterrence is diminished is not closed and is not limited to cases of young offenders and those with intellectual or psychiatric disabilities. This is consistent with the use of the phrase "such as" in the passage from R v Alexander upon which the prosecution relies. In many cases of significant social deprivation, the circumstances will lead a sentencing court to conclude that the role of general deterrence is reduced. However, each case must turn on the particular factual circumstances of the case. The present case is one that requires deterrence, denunciation and retribution to play significant roles in the sentencing exercise.

[18]

ASSISTANCE TO AUTHORITIES

The most significant feature of the offender's subjective case concerns his assistance to the authorities. Initially, based on the written submissions of counsel for either side, it appeared that the parties were in significant dispute as to the significance of this factor and how it would impact on the sentence to be imposed. However, in the course of argument it became clear that in terms of the total discount to which the offender is entitled, the parties were not very far apart. However, the Crown Prosecutor maintained a submission that the assistance provided to the authorities to this point (i.e. past or actual assistance) "is not such that it would support anything other than a small reduction in the sentence to be imposed."
In the course of argument the Crown Prosecutor drew my attention to the fact that the driver of the vehicle involved in the murder of Mr Antoun (Witness C) was sentenced in the District Court and provided with a discount of 55% for his plea and assistance. This discount encompassed a discount of 25% for his plea of guilty, 15% for past assistance and 15% for future. The precise details of Witness C's assistance are not known to me and the remarks on sentence are not yet available. However, the learned Crown Prosecutor fairly acknowledged that "the value and nature and extent of the assistance and undertaking [provided by the present offender] exceeded that of Witness C."
In its written submissions the prosecution referred to the case of SZ v R as authority for the proposition that "a combined discount exceeding 50% should be reserved for exceptional cases". [38] While Buddin J made that observation (at [53]), his Honour also (at [52]) acknowledged that there will be cases in which a combined or composite discount of more than 50% is called for. His Honour noted that "composite discounts in excess 50% have been allowed on several occasions when this court has proceeded to re-sentence following a successful appeal by an offender" and referred to the cases of R v NP, R v OPA [39] and R v AMT. [40] A discount of 60% was provided on appeal by the Court of Criminal Appeal (Allsop P, Davies J and Schmidt J) in OS1 v R. [41] That case had a number of similarities with the present case, including the nature of the applicant's incarceration, the danger that he was in as a result of the provision of assistance and the extent of assistance that he had provided. In OS1 the Court divided the total discount into 25% for the early plea, 15% for past assistance and 20% for future assistance.
Mr Ozen submitted correctly that I am not bound by the numerical discounts which have been provided in past cases. I accept that submission. Ultimately the restraint that must be shown in reducing a sentence for assistance is based in the statute. Section 23 (3) provides: "A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence."
There is no doubt that if a sentence is reduced by as much as 50% or 60% the resulting sentence will be disproportionate to the nature and circumstances of the offence. The statute allows a sentencing judge to impose a sentence that is disproportionate but prohibits a sentence which is unreasonably disproportionate. [42]
In the present case both the offender and one of the lead detectives in the case gave evidence in closed court in relation to the nature of the offender's assistance. Further, I received a confidential affidavit from the officer in charge, [43] as well as six recorded interviews in which the offender outlined details of the information that he has provided to police and in relation to which he has undertaken to give evidence. [44] The offender is also to be interviewed in relation to a number of other incidents and offences which are already subject to legal proceedings against the group of nine alleged offenders who are due to be tried later this year and early next year.
The Crown informed me that the nine accused in the trial are already aware of the details of some, if not most, of the evidence that the offender will give or proposes to give at their trial. However, it remains appropriate to exercise a degree of caution in articulating precisely the nature of the offender's assistance and the material in the confidential exhibits.
What I can say is that the assistance is very close to the highest level of assistance that a person could possibly provide in a case such as the present. Perhaps the only form of assistance that might be seen as more valuable and dangerous would be where an informant wore a listening device into a meeting with a group of dangerous criminals. However, even allowing for such a case, I am firmly convinced by the material that I have read that the offender's assistance has been, to date, of an extremely high order. This accords with what the detective has said and is confirmed by the lengthy interviews provided by the offender.
Another relevant factor is that the offender disclosed his involvement in the offences in counts 2 and 3 at a time when police were unaware or merely suspicious of his involvement. [45]
The evidence establishes that the offender and his family are in grave danger as a result of his assistance. Even in the course of giving evidence at the hearing, and in the presence of a number sheriff's officers, police and corrective service officers, somebody in the public gallery yelled out "you are going to die dog". [46]
While most of the members of the BFL Blacktown against whom the offender is to give evidence had been arrested for various offences prior to the offender giving assistance, it is inescapable but to conclude that the fact of his assistance has made their continuing incarceration whilst on remand almost inevitable. The result is that the BFL Blacktown no longer poses a threat to the community. This conclusion accords with the statement of assistance in confidential exhibit B. In those circumstances, I am unable to accept the Crown Prosecutor's submission that the past assistance in the present case is worthy of little more than "a small reduction in the sentence to be imposed". With great respect to that submission, I was reminded of the observation made by Hunt and Badgery-Parker JJ in R v Cartwright [47] when their Honours said: "Although there is no onus upon the Crown as asserted by the applicant in the present case, there is nevertheless a clear obligation placed upon the Crown to lend every assistance to the prisoner in establishing that material. Having received the benefit of the information provided by the prisoner, the public interest demands that the prisoner's reward should not be blocked by pettifogging opposition - as seems to have occurred to some extent in the present case, in which the Crown Prosecutor apparently saw his main task as being to cut down as far as possible the effect of the police officers' evidence given in favour of the applicant."
That is not what has occurred here. The Crown Prosecutor has placed all relevant material before the court. However, I am unable to understand the basis upon which it can properly be asserted by the prosecuting authority that the past or actual assistance provided by NK is worthy of no more than a "small reduction" in his sentence.
The exercise of discretion under s 23 is guided by the mandatory (but non-exhaustive) criteria contained in s 23(2) of the Sentencing Act. I have considered those factors and outline my findings by reference to the section's paragraph numbers:
The offender's assistance is significant and useful. In reaching that conclusion I have taken into account the thoughtful evaluation provided in Detective Browne's affidavit. The assistance provided seems to be complete and appears to be truthful and reliable. However, I should note that the truthfulness and reliability of the evidence is yet to be tested as it will be in the forthcoming trial proceedings. The nature and extent of the offender's assistance and promised assistance is substantial. While the assistance was not offered immediately upon the offender's arrest, and came after Witness C had provided assistance (a matter upon which the offender asserts that he was not aware), the assistance came relatively early in the criminal process and I consider it to be timely. The offender has not gained any other benefit as a result of the assistance that he has provided or has promised to provide. The offender has suffered and is likely to continue to suffer harsher custodial conditions as a consequence of the assistance that he has provided. The offender and his family are at serious risk of danger. This may continue for the rest of the offender's life. The threat is taken so seriously that the offender's partner and child have been relocated and provided with assumed identities to protect them from the possibility or likelihood of reprisal. The assistance is concerned both with the offences for which the offender is to be sentenced as well as a number of other offences.
Taking all of the relevant considerations into account, this offender is entitled to a reduction in his sentence at the very top of the range contemplated in other cases and lawfully available to him. The only limit on the reduction is that the ultimate sentence must not constitute "an affront to community standards". [48] To put that constraint correctly and in accordance with the terms of the statute, I am unable to impose a sentence which is "unreasonably disproportionate to the nature and seriousness of the offences". But for the provision in sub-s (3), I would have been inclined to provide the offender with a total discount in the vicinity of 65-70% per cent. That would have comprised a discount of 25% for his early plea 15% for past assistance and 25-30% for future assistance. However, reducing the total effective sentence by such an amount would result in a sentence that is unreasonably disproportionate to the grave criminality for which the offender is to be sentenced.
Accordingly, I have come to the conclusion that a total discount of 60% is appropriate. In accordance with s 23(4) I indicate that the discount is made up of a discount of 25% for the early plea of guilty, 15% for past assistance and 20% for future assistance.

[20]

particular findings relevant to section 21A.

While I will not treat sub-ss 21A(2) and (3) as "some sort of check-list, [51] I should indicate my findings in relation to particular matters where controversy might attend my remarks.
Based on his evidence and actions I am satisfied that the offender is remorseful for his actions. He has accepted responsibility and his actions in assisting the authorities suggest that he is doing what he can to make amends. In relation to count 5, the offender has acknowledged the injury, loss and damage caused by his actions. He has done this in giving evidence and in the moving letter he wrote to Mr Antoun's family. In relation to that count, the provisions of s 21A(3)(i) are satisfied. The evidence is less convincing in relation to the other counts. The offender has not acknowledged the "injury, loss or damage" caused to the victims of counts 1, 2 and 3 or the general danger of the distribution of drugs in relation to count 4. I will treat remorse as a mitigating factor under s 21A(3) in relation to count 5 only.
As to his criminal history and the interaction of sub-ss 21A(2)(d) and 21A(3)(e), I accept the joint position of the parties that the criminal history disentitles the offender to leniency. However, it does not aggravate a proper assessment of the objective criminality of the offences and I am unable to form any adverse conclusion as to the offender's future dangerousness. That will be a matter for the parole authorities to consider many years down the track.
While I am guarded as to the offender's prospects of rehabilitation, and cannot find a mitigating feature under s 21A(3)(g) or (h), I am optimistic as a result of the degree of his contrition and his decision to assist the authorities.
While all of the offences were part of a planned or organised criminal activity, I have not treated that as an aggravating feature under s 21A(2)(n). I was inclined to do so but the learned Crown Prosecutor very fairly pointed out that one of the matters on the second Form 1 is an offence of participating in a criminal group. By increasing the weight to be given to personal deterrence and retribution in relation to count 4, I will indicate a sentence that is longer than would otherwise be the case in relation to that count by reference to the offender's admission of the offence of participating in a criminal group.
In relation to counts 1 and 5, it is an aggravating feature that the offences were in the victims' homes. While I have taken into account the presence of the children in the home in assessing the objective facts, I am unable to find that the offence was literally committed in their presence. [52]
Otherwise, I trust that these remarks are sufficiently transparent to indicate the aggravating and mitigating features that exist in relation to the various counts.

[24]

Commencement date

After the hearing of oral submissions, an issue arose as to the appropriate starting date for the sentence. Counsel for both parties filed submissions. The agreed factual position is that on 19 December 2013 the offender's parole in relation to the 2010 robbery was revoked. He was returned to custody on 24 December 2013 and has remained in custody ever since. The balance of parole expired on 14 February 2015. He was charged with Mr Antoun's murder on 16 January 2014 and bail was refused. It is a matter of speculation whether the offender would have been released again on parole had he not been charged with the murder offence although, based on my experience, I believe that it is likely that he would have been.
The prosecution initially submitted that the sentence should commence on 15 February 2015. This was based on the fact that the only period of pre-sentence custody that is solely referable to the current offences is the period since 14 February 2015. However, the Crown Prosecutor acknowledged that there is discretion to back-date the sentence to allow for a period of concurrence between the sentence I impose and the period the offender has served as a result of a revocation of parole.
The offender submits that the sentence should commence on 16 January 2014, that is, the day he was charged with the murder of Mr Antoun. Fundamental to this submission is that the breach of parole was constituted by the offender's association with the members of the BFL Blacktown and that this is an inherent part of his current charges and his association forms the allegation of the offence on the Form 1 of participating in a criminal group.
Section 47 of the Sentencing Act provides that a sentence is to commence on the day it is imposed but that the court may direct that it commence on an earlier day. In deciding whether to make such a direction, "the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates".
In Callaghan v R, [58] Simpson J (as her Honour then was) reviewed two lines of authorities and considered a statement of principle in a case of R v SAE [59] where Gleeson CJ said:
"The usual principle is that allowance is made for pre-sentence custody but only in circumstances where such pre-sentence custody is exclusively referable to the crime for which the offender has been sentenced."
Simpson J (with James and Hall JJ agreeing) held at [20] that there was no "absolute rule that, where pre-sentence custody is referable partly to the crime for which an offender is being sentenced, and partly to some other circumstance, such as revocation of parole, that pre-sentence custody may never be taken into account". At [24] her Honour indicated that in some cases, where the breach occurred soon after release and the balance of parole was quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is referable to the earlier offences and not to the subsequent offences. However, her Honour observed at [23]:
"It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole."
Accordingly, it was open to the Judge in that case to have specified the commencement date to be any time during the period since the offender was taken into custody. The same applies in the present case.
I have determined that the sentence will commence on 1 March 2014. While that may appear to be a somewhat arbitrary determination, it is a discretionary judgment based on my assessment that most, but not all, of the period of custody since 16 January 2014 should be considered to be referable to current charges. That assessment, in turn, is based on the likelihood that the offender would have received a second chance of parole at some stage but that was unlikely to have happened before March 2014. It also takes into account the nature of the breach (i.e. associating with members of the BFL Blacktown) and the fact that this is the factual basis of the charge on the Form 1 of participating in a criminal group.

[25]

Indicative sentences for the individual counts

I will now indicate the indicative sentences for the individual counts for the purpose of s 53A(2)(b) and the individual non-parole periods in relation to counts 2, 3, 4 and 5 for the purpose of s 54B(4).
The starting point to which I will refer is the starting point taking into account all relevant matters except for the reduction for the plea and assistance. Where necessary I have rounded the numbers.
Taking into account all of the matters to which I have previously referred I indicate the following for the purpose of s 53A(2)(b):

Count 1: I would have commenced with a starting point of 6 years which would be reduced by 60%. The individual sentence for count 1 would have been imprisonment for 2 years and 5 months.
Count 2: The appropriate starting point is 12 years reduced by 60% so that I indicate a total sentence after discount of 4 years and 10 months. The non-parole period would have been around 3 years and 7½ months. I would have imposed a sentence less than the standard non-parole period on account of the offender's plea of guilty and assistance and the compelling nature of his personal case.
Count 3: The appropriate starting point is 12 years reduced by 60% so that I indicate a total sentence after discount of 4 years and 10 months. The non-parole period would have been 3 years and 7½ months. I would have imposed a sentence less than the standard non-parole period on account of the offender's plea of guilty, assistance to the authorities and the compelling nature of his personal case.
Count 4: the appropriate starting point would be 4 years, discounted by 60% and rounded down would result in an indicative sentence of around 19 months imprisonment. There would have been a non-parole period of around 14 months. I would not have imposed the standard non-parole period in view of the very limited role played by the offender in this offence, the compelling nature of his personal case and the reduction in the sentence for his plea of guilty and assistance.
In relation to count 5, the appropriate starting point would be a total sentence of 35 years, reduced by 60% resulting in a total sentence after discount of 14 years. There would have been a non-parole period of 10½ years. I would not have imposed the standard non-parole period in view of the discount for the plea and assistance, the significant duress relevant to this count and the offender's personal case.

The total aggregate sentence (after the 60% discount and consideration of the totality of the criminality) will be one of 21 years.
I have considered Mr Ozen's submission that there are special circumstances and that the aggregate non-parole period should be adjusted downwards pursuant to the provision in s 44(2B). I am unable to find "special circumstances". While I accept that the offender will need considerable assistance in re-entering the community after such a long sentence and given the likelihood that he will still require protection from the threat of reprisal, a period of 5 years and 3 months should be ample to serve this purpose. I have also taken into account the more onerous conditions of incarceration in relation to which the offender will serve his sentence. However, that is a matter that has been integral to my determination that he should receive a discount as high as 60% for his plea and assistance and my decision that the sentence is not unreasonably disproportionate to the nature and circumstances of the offences. I am concerned that any further reduction in the non-parole period would result in a sentence that would offend s 23(3).
I am conscious of the fact that the accumulation on top of the period served as part of the balance of parole for the robbery offence means that the continuous period of custody is slightly more than 75% of the total aggregate sentence. [60] I remain of the opinion that a balance of term of 5 years and 3 months is appropriate.
Accordingly, the aggregate non-parole period will be 15 years and 9 months.

[27]

Endnotes

Section 32 Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act").
Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42], Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [22].
Sections 25(2) and 33(3) Drug Misuse and Trafficking Act 1985 (NSW) ("Drug Act").
Section 54A and 54D, item 19 Sentencing Act.
Section 54D, item 4 Sentencing Act.
Section 19A(1) Crimes Act.
Section 54D, item 1 Sentencing Act.
I act upon the agreed facts in these sentencing proceedings although I note that much of what is written will be hotly disputed in trial proceedings relating to other accused persons later this year and in 2016. Everything that is written in this judgment must be considered in that context. There is no "contradictor" in these proceedings and the offender's version of events has not been challenged.
He was not licensed to carry such a gun and this is the subject of the third charge on the Form 1 attached to count 1.
Section 105A Crimes Act 1900 (NSW).
Part of confidential Exhibit C.
See The Queen v De Simoni [1981] HCA 31; 147 CLR 383 at 392 (Gibbs CJ); cf Ruge and Cormack v R [2015] NSWCCA 153 at [40]
Exhibit A, agreed facts, paragraph 68.
Ibid.
Legislative Assembly Legal Affairs Committee Report 'Law Reform Issues Regarding Synthetic Drugs', Report 1/55 - May 2013, para [4.69], [4.86]; Drugs and Poisons Legislation Amendment (New Psychoactive & Other Substances) Bill 2013 (NSW).
Wong v The Queen [2001] HCA 64; 207 CLR 584 at [64], [69] (Gaudron, Gummow and Hayne JJ).
Confidential Exhibit C, Tab 4, Q 1335-1337.
R v Lin (No 4) [2014] NSWSC 1801 at [49].
Confidential Exhibit C, Tab 4 QQ 1337-1347.
This is not clear from the statement of facts but is implicit in the Victims Impact Statement.
See for example R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at [34], Apps v R [2006] NSWCCA 290 at [49] and Versluys v R [2014] NSWCCA 98 at [21].
[2007] NSWSC 298.
Ibid, at [31].
Ibid, at [33].
Ibid, at [34].
R v Hines (No 3) [2014] NSWSC 1273 at [77]-[85] (Hamill J); R v Halloun [2014] NSWSC 1705 at [46] (McCallum J); R v Do (No. 4) [2015] NSWSC 512 at [50] (Davies J); R v Johnson [2015] NSWSC 31 at [54]-[55] (Hamill J); R v Sumpton (No 4) [2015] NSWSC 684 at [40]-[43] (Hamill J).
T 97, 99. The content of this conversation ("were you involved with Hamzy's murder?") and its timing (before the offender assisted police) suggests that the assailants may have been associated with the Bankstown, not Blacktown, Chapter.
[2013] HCA 37; 249 CLR 571.
[2014] HCA 37; 252 CLR 601.
R v Bugmy (No 2) [2014] NSWCCA322; Kentwell v R (No 2) [2015] NSWCCA 96.
R v Booth [2014] NSWCCA 156, R v Hines (No 3) [2014] NSWSC 1273.
[2014] NSWDC 253.
(1994) 78 A Crim R 141 at 143.
See Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [53]-[55].
Cf R v Israil [2002] NSWCCA 255 at [21]-[26] (Spigelman CJ); contra Kentwell (No 2) at [44].
[2013] HCA 38; (2013) 249 CLR 600 at [55].
R v Booth at [28], [47]-[51].
SZ v R [2007] NSWCCA 19; 168 A Crim R 249.
[2004] NSWCCA 464.
[2005] NSWCCA 151.
[2012] NSWCCA 102.
CMB v Attorney General for New South Wales [2015] HCA 9 AT [78]-[79] (Kieffel, Bell and Keane JJ).
Exhibit B.
Exhibit C.
Cf R v Ellis (1986) 6 NSWLR 603.
T 82-83.
(1989) 17 NSWLR 243 at 254.
R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at [15] citing R v Gallagher (1991) 23 NSWLR 220 at 232-233 and 260.
Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]-[31].
Muldrock v The Queen [2011] HCA 39; 244 CLR 120.
Cf Ghamraoui v R [2009] NSWCCA 111 at [23] and R v Sumpton (No. 4) [2015] NSWSC 684 at [10].
Section 21A(2)(ea).
R v Burnes [2007] NSWSC 298; R v Offer [2002] NSWCCA 341; R v LO [2003] NSWCCA 313.
See, for example, Brown v R [2012] NSWCCA 199 at [17], [51] (Grove J), R v Nykolyn [2012] NSWCCA 219 at [56]-[60] (RA Hulme J), SHR v R [2014] NSWCCA 94 (Fullerton J), R v RD [2014] NSWCCA 103, R v MJB [2014] NSWCCA 195, JM v R [2014] NSWCCA 297 at [34]-[40] (R.A Hulme J), R v Cahill [2015] NSWCCA 53, McIntosh v R [2015] NSWCCA 184 at [135]-[142] (Basten JA) and [172]-[179] and Glare v R [2015] NSWCCA 194.
JM v R at [37].
See McIntosh at [136]-[137] where Basten JA indicated that to do so is "inconsistent with the underlying purpose of an aggregate sentence."
R v MJB [2014] NSWCCA 195 at [58]-[60].
[2006] NSWCCA 58.
(Court of Criminal Appeal (NSW), 3 April 1997, unrep).
cf R v Bolamatu [2002] NSWCCA 545 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: 22 November 2016

R v NK

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (49)

Cited By (7)