R v Panetta

The offender's admissions 8At the Dee Why Police Station on 12 November 2010 the offender was arrested and placed into custody. He was provided the opportunity to contact a solicitor but declined. He was then cautioned and voluntarily took part in a recorded interview with police where he made the following admissions. 9During late 2007 or early 2008, he commenced a relationship with a woman known to him as 'Nadia' who resided at 11/1-3 Linsley Street, Gladesville NSW. During the course of the relationship, 'Nadia' gave him certain information about the deceased, claiming that he was a bad person associated with the Taliban, and was involved in fraud and criminal activity. The offender said that 'Nadia' claimed that the Police had not been able to find any evidence against the deceased. The offender said that he then set about following the deceased in an attempt to gather evidence against him to give to the Police. 10He purchased an electronic tracking device in early June 2008, which he attached to the deceased's vehicle. He was able to track the position and movement of the vehicle via the tracking device using his computer. 11On 18 September 2008, as a result of information obtained from following the deceased and as a consequence of the computer information from the tracking device, the offender drove his vehicle, a white Mitsubishi van, to the underground car park of a residential unit block at 22-26 Herbert Street, West Ryde NSW. He then waited for the deceased to arrive. He was aware the deceased had a "business office" in that unit block. 12Between 2.00pm and 3.00pm that afternoon the deceased drove his vehicle into the car park, parked alongside the offender's vehicle and got out of the car. 13At that time the offender intended to abduct and rob the deceased. He had cable ties with him to be utilised during the offence. He grabbed the deceased and attempted to put him into the rear of his van. He told police: Q32 I don't know if I was tricked or I'm not sure. Um, I got told this person who was dealing with illegal, bringing people into the country and was a bad person and all this and I sort of took advantage of the situation and I, I, my anger got the better of me and um, I took care of this person...' Q33 ....the police wanted evidence to arrest this man. Q34 ....so I was trying to get evidence but I took it too far and didn't go the way of the plan and I killed him. Q113 She said there's this bad person bringing illegal people from overseas and myself being a gambler I thought he had money so I went to follow him for the reason that she wanted to get him into trouble with the police but the police didn't have enough evidence on him because he was too tricky, too many different identities so I tried to get evidence, it didn't quite work out that way and got myself in a big problem now. Q 35 '... Well I was trying to tie him up in my van but he reached and got my hammer out of my van, struck me in the head once so I took the hammer off him and repeatedly hit him in the head...' Q 161 (I followed him that day)(t)o try and catch him getting fraudulent mail from the post office which he had multiple keys to post office boxes. Q249 '... I tried to tie him up. There was a hammer there which I use for work, he grabbed it, struck me in the head with it. Q252 '...As a soon as that happened I grabbed the hammer off him and I repeatedly hit him in the head...' Q 253 '...Probably about fifteen times...' Q 256 'I just went into a rage. Q 585 Well it was drummed into my head that this guy's got to go down, he's in they've got to get him in trouble with the cops because of what he's doing so I thought it would be a good idea. Q 601 I was meant to do one thing but it led to another. 14He then picked up the body of the deceased and placed it into the back of his van. He took a fire hose from the car park and washed down blood from the ground where the attack took place. He then took a briefcase from the deceased's vehicle before leaving the area in his Mitsubishi van. 15He panicked and then drove his van with the body of the deceased to a location near Campbelltown where he waited until dark before removing the body and burying it in bush land. He disposed of the deceased's briefcase and contents and also stole $1,400.00 cash from the deceased's wallet, before discarding the wallet. He then burnt the documents contained in the briefcase. He smashed the deceased's mobile phone at Campbelltown and disposed of it in a rubbish bin before he buried the deceased because he was worried about the phone being traced. 16At the time of the offence the offender said he had alcohol in his system having had two cans of Johnnie Walker and Coke. 17The offender told investigating police that he had broken up with 'Nadia' in the months following this incident but still remained in frequent contact with her. 18The offender told police that he had come forward due to the overwhelming stress and anxiety that the matter had caused him. He told Police, "I couldn't live with this anymore". When speaking with police and being interviewed the offender appeared to be highly distressed. 19The police investigated the admissions made by the offender.

Location of the deceased 20On 17 November 2010, the offender directed investigators to the place where he said he had buried the deceased on Swaffham Road, Minto NSW. The area was excavated and skeletal remains were located. The skeletal remains were face down and the hands were cable-tied to the rear. 21These remains have been identified from dental records as being the deceased.

Injuries to the deceased 22Dr Issabella Brouwer, forensic pathologist, conducted an autopsy report on the deceased's remains. Due to the decomposition of the body the cause of death was unable to be determined. According to the autopsy report two large fractures were located on the right side of the head consistent with the offender's admissions. The number of blows to the deceased's head could not be accurately determined.

Movements of the deceased's car 23Some objective evidence uncovered by investigating police in relation to movements of the deceased's car on 18 September 2008 cannot be precisely reconciled with some details of the offender's admissions as to the timing of the killing of the deceased and the disposal of his body. However, it is possible, due to the lapse of time and the offender's distressed state when being interviewed, that some details of the admissions are not completely reliable. 24Analysis of the tracking device the offender placed on the deceased's vehicle shows that the vehicle drove to West Ryde at 1.49pm on 18 September and remained there until shortly before 3 am on 19 September 2008. The vehicle then travelled to the Campbelltown area where it remained until the last recorded transmission of the device at 3.27pm that day. At 4.30pm that day the deceased's vehicle was photographed travelling north on the Eastern Distributor at Woolloomooloo. 25The deceased's vehicle has not been recovered.

Alleged criminal activities of the deceased 26Police confirmed that the deceased's wife had previously claimed that the deceased was involved in criminal activities. On 24 January 2007 Sharon Shafique provided information to the Australian Federal Police alleging that the deceased was involved in fraud and possible terrorist activities. 27Subsequent to the deceased's murder, on 24 October 2008 the NSW Police Fraud Control and Investigations "dob in line" received a call from a female describing herself as "Claudia" suggesting that the deceased was a member of the Taliban and was involved in people smuggling. The information was consistent with that previously provided by the deceased's wife and is believed to have been provided by her. 28Police investigations have not found support for the recorded claims made by the deceased's wife.

Importance of the offender's disclosure 29Prior to the offender handing himself in to police there was no suspicion held by police that the deceased's disappearance was suspicious or that he had been murdered. The offender was not a suspect in any way in relation to the disappearance of the deceased. 30In the absence of the offender's admissions to police there was no prospect of the deceased's murder coming to light nor of the offender's involvement in it. 31In the absence of the offender leading police to the burial site of the deceased's body there was no prospect of the deceased's body being located.

Subjective features 32The offender was born on 27 November 1978 and is now aged 35 years. He is one of four sons of Italian parents. He has two older brothers and a non-identical twin brother. He was living at home with his parents until his incarceration. He told Ms Anita Duffy, who assessed him in August 2012, that his parents were "very excitable and negative people". He could recall fights and arguments between them since he was young. He was not physically abused by them but he continually felt on edge by the fighting. In addition his father would often scream at him. 33He completed Year 10 and left school at the age of 16. He then worked in a factory and later in a fruit market. He has also worked as a builders' labourer before becoming self employed as a handyman. He has always been employed since leaving school. 34He told Dr Stephen Allnutt, Dr Wayne Reid and Dr Susan Pulman that he had been taking smoking marijuana and using amphetamines since either 14 or 16. However, he told Ms Duffy, that he had never used illicit drugs. 35He told all of the professionals who examined him that he started drinking at about 14 or 16 and would often drink to intoxication. He told Ms Duffy that he began gambling when he was about 16 but did not mention this to the others who examined him. It is consistent with what he told the police. 36The relationship he had with Sharon Shafique was his first serious relationship. He was with her for two to three years and lived with her for about 12 months. 37When Ms Duffy assessed the offender she administered a number of tests. The offender's assessment on the Weschler Abbreviated Scale of Intelligence placed him in the Low Average range at 85. Ms Duffy said that his scores in the Vocabulary and the Similarities subtests indicated relatively limited word knowledge, verbal expression and a tendency to think in rather concrete terms. 38Ms Duffy administered the Millon Clinical Multiaxial Inventory III. This is a comprehensive personality questionnaire comprising the measure of basic personality characteristics, more severe personality pathology as well as a number of clinical symptoms more transient and reactive to current circumstances. 39Across the basic personality scales the offender revealed a strong Depressive feature as well as Dependent, Passive/Aggressive and Self-Defeating traits. Ms Duffy said: Mr Panetta's profile indicates an enduring pattern of thoughts, attitudes, behaviours and self-concepts related to depression. He may perceive himself as worthless, vulnerable, inadequate, unsuccessful and guilty and may frequently engage in self-criticism. He tends to view events in his life in a defeatist or fatalistic manner, expecting the worst. The Negativistic or Passive/Aggressive elevation flavours his depression with some resentment. He may vacillate between being bitter and resentful towards others versus being intropunitive and self-deprecatory. The Dependent elevation indicates a strong need for affection and support by others, and therefore, to gain approval, [he] tends to be submissive and conciliatory rather than assertive or argumentative. He looks to others to lead and care for him and in this way gives up responsibility for making decisions. Underlying his insecurity are feelings of low self-esteem. In his eagerness for acceptance and approval, he can be extremely agreeable and submissive, subjugating his own needs to those of others. He may be perceived as gullible, humble, docile and passive, and therefore more vulnerable to manipulation or domination by others. Internally, he may have a limited range of competencies in reducing tension and stressors. 40Ms Duffy said that on scales measuring more serious clinical symptomatology the offender's results lay just below significance on measures of Thought Disorder and Major Depression. 41Dr Stephen Allnutt examined the offender on 19 April 2013. In his report of 24 April 2013 he noted that at the time the Defendant had confessed to the police he was demonstrating significant symptoms of depression. Dr Allnutt said that the symptoms were characterised by poor sleep, reduced appetite, reduced energy levels, reduced motivation, impaired concentration, loss of interest in usual activities, anhedonia; these symptoms had occurred in the wake of the index injury and according to him as a consequence of unresolved feelings of guilt in regard to his behaviour at the material time. 42By the time Dr Allnutt examined him the offender had experienced an amelioration of those symptoms but was manifesting residual symptoms of a resolving depressive disorder. He was taking the anti-depressant Zoloft on a daily basis. He was also continuing to experience mild panic attacks that had their onset at the time of his incarceration. 43The offender was assessed by Dr Susan Pulman, a clinical neuro-psychologist and forensic psychologist, on 16 and 28 October 2013. Dr Pulman administered a number of tests to the offender. 44That testing showed that his pre-morbid intellectual functioning was estimated to fall within the low average to average range. His current intellectual functioning fell within the low average range and at the fourth percentile. His General Ability Index fell in the low average range at the tenth percentile. There was some variability in the sub-test scores with his performance varying from Borderline on the task of non-verbal conceptual reasoning to Superior in the task of immediate attention span. 45Dr Pulman administered the self report Depression, Anxiety and Stress Scales (DASS-21). The offender's scores on each of those scales were in the Extremely Severe range. However, she said that those scores were inconsistent with his presentation during interview. She did not find, having administered the Test of Memory Malingering, that he was not endeavouring to do his best in the tests administered, unlike Dr Reid who found that the scores achieved by the offender when he had administered that test showed that he was not performing to the best of his ability. The scores in that test raised concerns about the reliability of the scores in the memory tests. 46In his assessment of the offender on 16 October 2013 Dr Reid found that the offender scored in the extremely low range for non-verbal intellectual functions (63) placing him at the first percentile for persons of a similar age. Dr Reid also noted that the offender presented with depressed mood, was slow in his responses, his affect was flat and he offered little in the way of spontaneous speech. Dr Reid thought, from the history he had obtained both from the offender and from reading earlier reports, that the offender appeared to have longstanding problems with attention, low self esteem and a past history of drug and alcohol abuse. Dr Reid was of the opinion that his level of depression was having a significant impact on his cognitive abilities. 47Some care must be taken in relation to all of the reports because, with the exception of the assessment by Ms Duffy, those reports were prepared after assessments designed to see whether the offender was fit to stand trial. Nevertheless, in general terms, they disclose a fairly similar picture of the offender being of low-average intelligence, with personality problems related to self-esteem, drug and alcohol issues, and suffering from depression. 48Ms Duffy noted that the offender expressed remorse and regret over his actions which she said appeared to have arisen from a series of errors in his judgment fuelled by misinformation from the woman Nadia. Although the offender did not give evidence before me, and I note the care that needs to be taken in such circumstances in accepting expressions of remorse given to psychologists and psychiatrists, the expressions of remorse to Ms Duffy are entirely consistent with all that has happened in the matter since the offender confessed to his crime. I refer again also to what Dr Allnutt reported that I have set out above. My observations of him during the sentencing hearing served to confirm that he was extremely remorseful for what he had done. 49The offender has a minor criminal history involving some property and driving offences. Some of these were committed whilst he was a minor and the last offences were in 2000. The Crown concedes that these do not disentitle him from being considered as a person of prior good character.

Objective seriousness 50The maximum penalty for murder is life imprisonment. There is a standard non-parole period relevant to the present case of 20 years. Both matters are guideposts. 51The Crown submitted that the Court could conclude that the intention at the time of striking the blows was to kill the victim and that the intent arose when the victim resisted the offender. 52The offender's counsel submitted that there was no planning by the offender in relation to the murder and no premeditation. He submitted that the answers given in the offender's record of interview show that he neither intended to kill nor inflict grievous bodily harm on the deceased. Rather it was submitted that the offender's state of mind was reckless indifference with the result that the murder was in the lowest category for the offence: Apps v R [2006] NSWCCA 290 at [49]. 53In my opinion the Agreed Statement of Facts indicate that the offender did not set out with the intention of killing the deceased. The intention was to abduct and rob the deceased. It was whilst the offender was trying to restrain the deceased that the deceased obtained a hammer and struck the offender. At that point the offender grabbed the hammer and hit the deceased repeatedly in the head perhaps about 15 times. I note again that the autopsy showed two large fractures consistent with the offender's admissions. 54A person who uses a hammer to strike another person in the head with any force, even just with one blow, must have intended to cause grievous bodily harm to that person. To strike them on and around the head a number of times with a hammer evinces a clear intention to commit grievous bodily harm. I cannot be satisfied, however, beyond reasonable doubt that, even at that point, the offender intended to kill the deceased. Rather, he was trying to subdue him to further his purpose of abducting and robbing him. 55However, the striking of the deceased with the hammer took place in the context of an attempt by the offender to commit a serious crime. It was not simply an excessive application of force in self-defence in an unprovoked attack by the deceased where it might be inferred that there was no intention to inflict grievous bodily harm. 56The offender submitted that I could take into account, when assessing objective seriousness, his low intelligence and his gullible personality because they are relevant to the actual offending. I do not consider that such a submission is consistent with what was said in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]. Nothing said subsequently by the Court of Criminal Appeal in R v Muldrock [2012] NSWCCA 108 at [8(b)] provides any support for the offender's submission in this regard. The matters identified by the offender are relevant to his moral culpability and not to the objective gravity of the crime: see R v Lawson Donald [2013] NSWCCA 238 at [82]. 57Despite the savagery of the assault on the deceased, it arose spontaneously without planning or pre-meditation. In all the circumstances I consider the offence falls a little below the mid range of objective seriousness.

The plea 58As noted earlier the offender's plea of guilty came on the second business day before the trial was due to begin. He had been committed to this Court for sentence only on 12 March 2012. The matter was adjourned a number of times until 7 September 2012 where the offender indicated that the charge was to be defended. Some of the delay in that period related to issues with Legal Aid and the offender's legal representation. 59On 7 September 2012 the matter was set down for trial on 2 April 2013. It was only on 15 March 2013 that the legal representative of the offender indicated that fitness to plead and diminished responsibility might be the issue. That resulted in an application on 20 March 2013 to vacate the trial date so that the offender could be submitted to psychiatric assessment in relation to the possibility of diminished responsibility. The trial date was vacated. 60Reports were then obtained from Dr Westmore on behalf of the offender and Dr Allnutt on behalf of the Crown, both of whom were of the opinion that the offender was fit to stand trial. As a consequence of those reports, on 14 May 2013 a new trial date was fixed of 18 November 2013. It was not until 28 October 2013 that the offender obtained a report from Dr Wayne Reid who did not provide any support for a defence of diminished responsibility. The Crown obtained a report from Dr Susan Pulman on 7 November 2013. She also did not consider that the offender had sustained any significant brain injury in a motor vehicle accident in which the offender had been involved in 2000 that was thought to provide the basis for a defence of diminished responsibility. 61It may be accepted that some of the delays from March 2012 to 14 November 2013 were occasioned by the difficulties in obtaining medical reports. However, the primary consideration for determining the appropriate discount for a plea is the timing of the plea: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]. In my opinion the appropriate discount for the plea is ten per cent.

The Ellis discount 62It is also necessary to give consideration to the events that led to the disclosure of this murder and the offender's role in it. If it had not been for the voluntary disclosure of the offender no one but the offender would have known that the deceased had been murdered. Further, no one would have known that the offender was responsible for the deceased's death. Finally, the whereabouts of the deceased's remains would not have been known. Leniency, even considerable leniency, should be extended to the offender for those matters: R v Ellis (1986) 6 NSWLR 603 at 604. 63The voluntary disclosure by the offender brought an end to uncertainty for the deceased's family and enabled some resolution of their grief. I note in this regard the Victim's Impact Statement of the deceased's daughter Maliha Shafique, but I bear in mind what was said in R v Previtera (1997) 94 A Crim R 76 at 86-87 with respect to that Statement. The Court again extends its sympathy to Ms Shafique and the other members of the deceased's family. 64In Ellis Street CJ said at (604): Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. 65There is some disagreement in the authorities about whether the precise discount given should be specified. In Raad v R [2011] NSWCCA 138 Adams J said at [51]: There is much to be said for adopting in Ellis cases the approach used for pleas of guilty and in the other assistance cases, namely to specify the utilitarian discount given, not only in the interests of transparency, but to further the policy objective of the discount. 66Although Buddin J (with whom McClellan CJ at CL agreed) did not make specific reference to these remarks of Adams J, Buddin J's reference at [83] to Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at [37] about the difficulties to which "an arithmetical approach" to sentencing may give rise suggests that he did not agree with the approach of specifying a particular discount. 67Adams J's approach was endorsed by the Court of Criminal Appeal of the Northern Territory in Nona v The Queen [2012] NTCCA 03 at [36] after discussion of the cases supporting one or other approach to the issue. 68In R v Borkowski [2009] NSWCCA 102 at [32] Howie J said there should be no separate quantified discount in respect of Ellis. Similarly, in R v Windle [2012] NSWCCA 222 Basten JA (with whom Price and SG Campbell JJ agreed on this aspect) made reference to Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at [15] to suggest that it was not appropriate to give any numerical indication as to the degree of leniency which should be accorded. 69Recently, in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 the plurality judgment said at [34]: ... Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, "[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform" (original emphasis). 70I consider, therefore, with all due respect to Adams J, that the weight of authority suggests that any Ellis discount should not be specified .

The sentence 71The starting point is that the death of a human being by any unlawful killing is one of the gravest offences against an ordered society: R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284 at 293. It is the responsibility of the Courts to protect and preserve human life and to punish those who unlawfully take it: R v Dawes [2004] NSWCCA 363 at [31]. 72The present is a very unusual case. The actions that led up to the murder were unlikely to have occurred had it not been for the low intelligence and personality problems suffered by the offender. He was obviously a vulnerable and suggestible person. The woman who provided the false information to him concerning the deceased was his first and only serious relationship. It appears that in addition to his gullibility he was endeavouring to please her, bearing in mind that he had no prior knowledge of the deceased. 73That does not mean, however, that general deterrence is not of any significance in the present matter. The offender took the law into his own hands because he had come to believe that the police had not done, or were not willing to do, what the offender believed they ought to have done to bring the deceased to justice. In fact when the police investigated they found nothing to support the allegations. That highlights one of the dangers of persons taking the law into their own hands. They are likely to have inadequate or one-sided information or even, as here, entirely false information. 74Further, it needs to be acknowledged that the murder was a brutal one although, until the offender's plan went wrong in the sense that the deceased managed to grab a hammer and attack the offender, the most harm that was intended to the deceased was that he should be abducted and robbed. Nevertheless, the deceased was an entirely innocent man who had become the victim of his ex-wife's obsession or vindictiveness or both, and the stupidity and criminality of the offender. 75I have already made reference to certain mitigating factors being that the offender may be regarded as of prior good character and that the remorse he has shown is genuine. I consider that he has good prospects of rehabilitation. 76Counsel for the offender submitted that there should be a finding of special circumstances. He pointed to the following matters. First, it would be the offender's first time in full time custody. Secondly, his assistance in coming forward and admitting the offence as well as taking the police to the place of burial should be recognised. Thirdly, the offender will require an extended period of supervision when returned to live in the community. 77I do not consider that there are special circumstances. The fact that it will be an offender's first time in custody will not, without anything more, justify a finding of special circumstances. The majority in Raad did not consider that an Ellis discount justified a finding of special circumstances. Further, nothing in the psychological and psychiatric reports suggests that the offender will need an extended period under supervision in the community for rehabilitation. I do not consider there is a great risk that the offender will ever re-offend. The matters which brought about his offending in the present case are so unusual that I do not consider, even having regard to his vulnerable personality, that he is likely to re-offend or will need more than the usual period on parole. 78The most significant matter affecting the sentence is the discount for the principle derived from Ellis. It should be noted that the offender's disclosure to the police informs the assessment of his remorse and contrition whilst reducing, potentially to insignificance, the requirement for personal deterrence: Raad at [20]. 79There are not a lot of cases where the Ellis principle has been applied in relation to a charge of murder. I have had regard to such cases as there are (those referred to in Raad as well as Nona), but I bear in mind that all of these cases pre-date the introduction of the standard non-parole period. The sentences in those cases are not, therefore, of much assistance in this case. 80The offender is entitled to considerable leniency for his reporting of the murder including his involvement and for providing the location of the deceased's body. Taking that and all other matters into consideration and with a ten per cent discount for the plea I consider that the appropriate overall sentence is a period of 17 years with a non-parole period of 12 years and 9 months. 81The offender has been in custody since 12 November 2010 and the sentence should be backdated to start on that day. 82Adam Panneta, for the crime of murdering Muhammed Shafique on 18 September 2008, I sentence you to a non-parole period of 12 years and nine months commencing 12 November 2010 and expiring 11 August 2023 with an additional term of 4 years and 3 months expiring 11 November 2027. The first day that you will be eligible for parole is 12 August 2023.

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: 07 March 2014