Solicitors:
Director of Public Prosecutions (Crown)
Trans Solicitors & Attorneys (Popovic)
William O'Brien & Ross Hudson (Hristovski)
Wollongong Legal (Bubanja)
Katsoolis & Co (Koloamatangi)
File Number(s): 2012/232565: 2012/3544352012/362499: 2012/370471
[2]
Judgment
RS HULME AJ: Very shortly after 3am on 8 September 2007, Dragan Sekuljica was shot at and very probably wounded as he went to enter a taxi at the east side of Cliff Street, opposite, but somewhat to the south of the entrance of Splashes nightclub, in the Novotel in Wollongong.
Mr Sekuljica ran back into the nightclub pursued by the gunman. In the bar of the club, the gunman fired further shots at Mr Sekuljica, one at close range to the back of his head. On post-mortem, Mr Sekuljica was found to have suffered the following bullet wounds:-
One to the back of his head.
One to the right side of his back.
One to the back of his right arm; and
One to the front right shoulder.
During the course of his approach to Mr Sekuljica in the bar, the gunman also discharged a shot which wounded an unarmed security guard, Mr Gyles, in the left arm.
Commencing on 2 April 2014, the four prisoners stood trial for the murder of Mr Sekuljica and on a charge of shooting Mr Gyles with intent to murder. On 29 May 2014, a jury returned a verdict of guilty of murder against the four prisoners and on 30 May, a verdict of not guilty on the second charge.
It falls to me to sentence the prisoners. I instruct myself that any conclusions at which I arrive in the process must be consistent with the verdict of the jury, that insofar as I make findings adverse to the prisoners and not necessarily inherent in the verdict, I must be satisfied of them beyond reasonable doubt, but that I am only required to be satisfied of matters in mitigation on the balance of probabilities.
There were three main aspects of the Crown case. One was a witness, referred to by the pseudonym Peter Taylor, who conceded to having driven the gunman for much of the night of 7 and 8 September including to and from the vicinity of Splashes nightclub and who gave evidence after receiving an indemnity in respect of his involvement in Mr Sekuljica's murder. The indemnity was conditioned in the usual way upon him co-operating with the Crown in the prosecution of the prisoners. Mr Taylor was also aware that as of July 2008, police had offered a reward of some $200,000 for information in respect of the death of Mr Sekuljica. The evidence showed that Mr Taylor had, in one of his police statements, described himself as a drug addict and that in January 2012, he was caught with about 200 grams of marijuana and 7 grams of amphetamines, both packaged in smaller quantities in the car he was using. He denied that he knew of the drugs, but in due course pleaded guilty in relation to them. In the trial of these prisoners, he admitted he had lied to protect someone else.
He acknowledged also that for some time, he had couriered drugs from Sydney for another drug dealer and in May 2012, police spoke to him about troubles he was having with and threats he was receiving from that drug dealer. At the time of giving evidence he had not been charged with his drug couriering activities.
The second main aspect was Exhibit G, a chronological record of phone calls made and/or received by particular phones during 7 and 8 September 2007 and compiled from the records of telephone service providers. A number of the phones may have been registered in false names, but most of the "owners" were identified by police and it was accepted that these were correctly named in Exhibit G. In the case of the vast majority of calls, the exhibit also identified the mobile phone towers through which calls first passed and were received. There was other evidence dealing with the significance of tower references, but it is not necessary that I refer to that further evidence at this stage.
Exhibit G does not of itself establish that a particular call was made or received by the person whose phone was used. It does not, for example, preclude the possibility that a phone was borrowed. However, when regard is had to the pattern of use and that each of the persons of significance in the case, seem to have had and been using their own phone, I am satisfied that, apart from a very few exceptions that were the subject of specific evidence, each of the calls recorded was made and received by the person whose phone was used, as the case may be, to make or receive the call. Hence in these remarks I feel free to refer to a call from or to someone's phone as made or received by that person.
The third main aspect of the Crown case was the evidence of a person referred to the pseudonym Johnny Radz. Mr Radz was not involved in Mr Sekuljica's death and his evidence against Messrs Popovic, Koloamatangi and Bubanja consisted of statements he asserted they had made. The substance of the evidence Mr Radz gave against Mr Hristovski, was that he had supplied the latter with a firearm. Mr Radz also gave evidence after receiving an indemnity in respect of a number of offences he was said to have committed. In his case also I will later refer to matters bearing on his credibility.
The terms of the indemnities given to Messrs Taylor and Radz, the fact that both have a prospect of participating in the reward which has been offered, and the fact that the evidence of both of them include inconsistencies and statements difficult or impossible to reconcile with other statements and evidence, means that the evidence of each of them must be approached with very considerable caution. Their pasts also provide grounds for such caution.
That said, there was no dispute about, and clear support for, a deal of what Mr Taylor said. Included in that category was evidence that he and Mr Popovic had known one another for a number of years, that for some time Mr Taylor had been employed by Mr Popovic's mother in delivering pizzas and that he and Mr Popovic would visit each other 2 to 3 times a week. It is clear that Messrs Taylor and Popovic knew one another well.
I also accept Mr Taylor's evidence that on the evening of 7 September he, Mr Popovic, Mr Popovic's future wife Emily, Mr Koloamatangi and his girlfriend Emma, had dinner together at Kings Chinese Restaurant. There were others in the party including a Mr Zelko Bjelicic who gave evidence. Mr Taylor said that at this dinner, there was merely general conversation. Not in dispute, and I accept it also, is evidence that Mr Taylor visited Mr Koloamatangi at a motel where the latter was staying in the days leading up to 7 September.
Mr Taylor gave evidence that on the night of 7-8 September 2007 after the dinner at Kings Chinese Restaurant, he drove Mr Koloamatangi and Emma from Wollongong to Sydney and then returned with Mr Koloamatangi to Wollongong and again drove Mr Koloamatangi to Sydney commencing soon after Mr Sekuljica was shot. That evidence is strongly supported by Exhibit G.
That exhibit shows that Mr Koloamatangi's phone was in the vicinity of Brokers Point (just north of Wollongong) at 2105 on 7 September and making calls from the vicinity of Engadine, Kirrawee, Mascot, Alexandria and Newtown phone towers between 2143 hours and 2348 hours on that day, that Mr Taylor was receiving calls from towers near Rockdale and Loftus between 2358 hours on that day and 0014 hours on 8 September and that both were back in the vicinity of Wollongong towers by about 0049 hours on 8 September, when Mr Koloamatangi made a 27 second call to Mr Popovic.
On 8 September calls were made on Mr Koloamatangi's phone from the vicinity of Brokers Point at 0311 and then from the vicinity of Mascot, Rosebery and Randwick North towers between about 0415 and 0529. The last two calls were to Mr Taylor's phone that was then in the vicinity of the Blakehurst and Garrawarra Ridge (near Helensburgh) towers respectively.
There is no evidence suggesting any reason for Mr Koloamatangi to return to Wollongong between these trips other than to shoot the deceased. I accept, as the jury must have, the evidence of Mr Taylor that in between these journeys he drove Mr Koloamatangi to the vicinity of Splashes and waited nearby for him.
A call from Mr Koloamatangi's phone at 0311 was to Mr Popovic as was another at 0431. I accept Mr Taylor's evidence that, during the second trip to Sydney, Mr Koloamatangi asked Mr Taylor to then speak to Mr Popovic and request money and that Mr Taylor did so. I also accept Mr Taylor's evidence that subsequently he carried a number of parcels of money from Mr Popovic to Mr Koloamatangi.
There is no evidence of any relationship or animosity between Mr Koloamatangi and the deceased and, though the absence of such evidence cannot be taken too far, the conclusion at which I have arrived is that Mr Koloamatangi shot the deceased in return for money. So far as Mr Koloamatangi is concerned, it was a contract killing.
It should however also be noted that Mr Koloamatangi showed great determination when, not having succeeded in killing the deceased outside the nightclub, he pursued the deceased inside administering the fatal shot(s) in the presence of a number of patrons.
There was evidence from the deceased's wife. She said that her husband and Zoran Bubanja, Dalibor (or Daki) Bubanja's father had worked together in the building industry and that the deceased was godfather to one of Zoran's children. There had however been a falling out over money owing and in May 2006, Zoran and Daki Bubanja and others came to the block of units in which the deceased lived, demanding with some persistence that the deceased come outside. The deceased chose not to and after a time, Zoran and his group left.
Mrs Sekuljica also said that about a week before 7 September, she overheard a phone conversation between the deceased and Mr Popovic. The deceased called Mr Popovic a traitor and said that he was like a particular Serbian leader who had been a traitor to the Serbian people. (In her police statement, and repeated in the witness box, Mrs Sekuljica used the term "trader". English is not her native language and is clear what she, and if one accepts the substance of her evidence meant, was that the deceased meant Mr Popovic was a "traitor".)
Another witness Mrs Djuraki gave evidence that shortly before 7 September and some months earlier, the deceased had also said to her words to the effect that "Zlatan (Popovic) was the biggest traitor in Serbian history."
Mr Taylor gave evidence that some short time - he said roughly a week or two - before 7 September, Mr Popovic said to him "It is war. Are you with me" and that Mr Taylor said "yes". Despite this agreement, Mr Taylor said that he did not understand what Mr Popovic was referring to.
Mr Taylor said also that shortly before 7 September 2007, there had been a meeting in a Woolworths car-park near Mr Popovic's home at which the prisoners other than Mr Koloamatangi were present. The tenor of Mr Taylor's evidence was that he was on the fringe of the conversation. During the course of that meeting, Mr Bubanja said words to the effect that "Dusan and Dragan were dogs and speaking to police". Apart from an account that someone said that Dusan was wanting to kill Victor, Mr Taylor gave no other evidence of what was said.
Mr Taylor gave evidence that he knew someone named Dusan Krystic and that Dusan and Dragan were friends and in that latter answer, I understand him to have been talking of the deceased. There was no evidence of who Victor was or where he fitted into the picture. Dusan was the husband of Mrs Djuraki to whom reference has been made.
Mr Taylor was questioned as to the identity of "Dragan". He said that Dragan is not an uncommon Christian name among Serbs and that he knew more than one person with that name. He said that it was not until the day after the shooting that he actually knew that it was Dragan Sekuljica who was shot. However he also said that it was in the Woolworths car-park that he became aware of a falling out between Mr Popovic and the deceased.
Relevant also is further evidence from Mr Taylor to the effect that a few days or a week after 8 September, Mr Popovic told him to obtain the gun and toss it into a pond at Dusan's house. Mr Taylor said he had previously been there with Mr Popovic. In fact, Mr Taylor did not follow these instructions because when he approached Mr Koloamatangi to obtain the gun, the latter told him in effect that the gun had already been dumped or destroyed.
When the totality of this evidence is considered, and it was Dragan Sekuljica who was killed shortly after the Woolworth's car-park conversation, I am satisfied that the Dragan then spoken about, was the deceased.
I accept the evidence of Mr Taylor, Mrs Sekuljica and Mrs Djuraki to which I have just referred. I draw the inference from it, that Mr Popovic had in some activity in which he and the deceased were involved, changed sides and that the competition or disagreement between them that followed was, and was regarded by both the deceased and Mr Popovic as, at least, substantial.
The extent of the relationship between the prisoners was not fully explored. Ms Ewen said that Messrs Popovic, Bubanja and Taylor were friends of Mr Hristovski. Mr Bubanja often rang Mr Hristovski asking to be picked up. There was the meeting in the Woolworths car-park to which I have referred. There was a social meeting between Mr Popovic, Emily, Mr Koloamatangi, his girlfriend Emma, Mr Bubanja and Ali and another Emma at Collegians RSL or Rugby Club a few days before 7 September and about which Mr Taylor gave evidence. (Although in his first statement Mr Taylor did not mention Mr Bubanja as present at this meeting, in Mr Taylor's second statement Mr Bubanja was mentioned and I accept Mr Taylor's evidence that Mr Bubanja was there.) There were the extensive number of successful and unsuccessful calls between the prisoners on 7 and 8 September.
[3]
Participation
The extent of participation of each of the prisoners in the death of Mr Sekuljica is also a matter I must address. It seems clear that after the dinner at the Chinese Restaurant, Mr Popovic spent the evening at home. Exhibit G so suggests and in a statement to police, Exhibit MM, he said he spent the evening at home with his future wife, at some stage watching a video. However, as the extracts from Exhibit G referred to below show, up until shortly after the deceased was shot, Mr Popovic was very - one might say surprisingly - active on the phone.
I return to Mr Taylor. He gave evidence that after he and Mr Koloamatangi returned from their first trip to Sydney on 7 September, they went to Mr Popovic's house. There was some conversation between Messrs Popovic and Koloamatangi which Mr Taylor said he did not hear, but at some stage while he was there, Mr Popovic asked Mr Taylor to go to Mr Hristovski's place to pick up "something". There was then some conversation in which Mr Popovic said that "we", i.e. Mr Taylor and Mr Koloamatangi, were going to see "Dragan" who Mr Popovic said was at the North "Gong" Hotel.
Mr Taylor said that he and Mr Koloamatangi then drove to Mr Hristovski's. After a short wait, Mr Hristovski came out and handed to Mr Koloamatangi a short revolver. On sighting the weapon the latter remarked, "What the fuck is this? What am I going to fuckin do with this?" Mr Hristovski responded, "That's all I have". Mr Taylor said that after a detour to his own house to pick up some clothes for Mr Koloamatangi, including a beanie that was adapted to a balaclava, he and Mr Koloamatangi drove to near Splashes. Mr Taylor said they knew to go there and not the North Wollongong Hotel because in a phone call after they had picked up the clothes, Mr Popovic had told them.
Somewhat inconsistently, Mr Taylor also said in a police statement and in evidence that between the time he left Mr Popovic's house to collect the gun and after the murder, he did not have any conversation with Pops about the murder. It does not seem to me that that can be right. It is clear that he knew to go to Splashes. There is no logical reason for making up his account of having been told to go the North Wollongong Hotel. Nor do I accept that the phone call telling Messrs Taylor and Koloamatangi to go to Splashes occurred after picking up the clothes. There were no successful calls between Mr Popovic and Mr Taylor or Mr Koloamatangi at that time.
Splashes was in fact where the deceased was after 12.30 in the morning of 8 September and although there were a few other calls in which such information could have been imparted, the pattern of phone calls to which I am about to refer provides support for Mr Taylor's evidence that his and Mr Koloamatangi's knowledge that the deceased was at Splashes came from Mr Popovic.
There were apparently successful calls between Mr Popovic and Mr Koloamatangi at 2139, 2143, and 2151 hours on the night of 7 September. There were then no calls between these two until the call at 0049 to which reference has been made, when Mr Koloamatangi called Mr Popovic. Mr Popovic then made calls to Mr Koloamatangi at 0052 that lasted for 49 seconds, at 0103 (72 seconds), and 0109 (25 seconds). Mr Koloamatangi called Mr Popovic at 0115 (9 seconds).
The call at 0115 was the last successful call between Mr Popovic on the one hand and Mr Taylor or Mr Koloamatangi on the other, before the deceased was shot. The only calls Mr Popovic made to Mr Koloamatangi in the period between 0115am and 3am were unsuccessful ones at 0229, 0230 and 0259 and Mr Popovic was not called by Mr Koloamatangi during this period. At no time during the night of 7-8 September did Mr Taylor call Mr Popovic and the only call from Mr Popovic to Mr Taylor was an unsuccessful one at 0229.
Mr Bubanja arrived at Splashes at 2333 on 7 September and for all practical purposes remained there until after the deceased was shot.
The deceased's presence at Splashes on 8 September seems to have been a late decision by him or in which he joined.
Exhibit G also shows that Mr Popovic had rung and spoken to Mr Bubanja on 7 September at 2058 hours and tried unsuccessfully to phone Mr Bubanja at 2114 hours but indicates there had been no calls, successful or merely attempted, between these two persons between 2114 hours on 7 September and 0050am on 8 September.
At 0050 Mr Popovic rang Mr Bubanja and they spoke for 18 seconds. Mr Popovic then made further calls to Mr Bubanja at 0054, 0055, 0059, 0100 (2 calls), 0106, 0119, 0136 and 0202. All were unsuccessful except the call at 0106 which lasted for 58 seconds. Mr Bubanja did not call Mr Popovic during this period.
There is no express evidence as to the content of any of the calls to which I have referred. However, it is possible to draw inferences. The matters to which I have referred including the trips between Wollongong and Sydney, the request for and making of payment to Mr Koloamatangi, Mr Popovic's instructions to obtain a firearm from Mr Hristovski and then see the deceased, lead to the conclusion that sometime before the first trip to Sydney on 7 September, there was an arrangement between Mr Popovic and Mr Koloamatangi for the latter to do the killing.
During the trial, Ms Davenport submitted that such an arrangement was unlikely given that the firearm and clothing was only obtained by Mr Koloamatangi after he returned to Wollongong. I accept that there is some force in this argument but, with his record, Mr Koloamatangi may not have wished to be in possession of a firearm for any lengthy period and Mr Popovic may well have known that, when needed, one was available from Mr Hristovski. There was, of course, no evidence to this latter effect. I wish merely to indicate that I am unpersuaded by Ms Davenport's argument. Mr Koloamatangi's presence in Wollongong for some days prior to 7 September, may also have been with a view to killing Mr Sekuljica when a convenient opportunity presented itself.
Furthermore, if as I have concluded, there was an arrangement for Mr Koloamatangi to kill the deceased and for Mr Popovic to pay Mr Koloamatangi for doing so and Mr Koloamatangi returned to Wollongong in order to effect that killing, it is at least likely that the calls between them from 0049 were in furtherance of that arrangement. That at 0049 may well have been to apprise Mr Popovic of Mr Koloamatangi's return to Wollongong.
Given the absence of calls between Mr Popovic and Mr Bubanja between 2114 on 7 September and 1250 am on 8 September, and having regard to Mr Popovic's calls at 0049 from Mr Koloamatangi and 0052 to Mr Koloamatangi it is at least likely that Mr Popovic's call at 0050 to Mr Bubanja - one minute or less after the call from Mr Koloamatangi - was also made in furtherance of the killing of the deceased. The same may be said of the call from Mr Popovic to Mr Bubanja at 0106. Given the enterprise on which Mr Popovic was then engaged and his relationship with Mr Bubanja, it is virtually certain that in both of these calls, Mr Popovic sought and Mr Bubanja informed him of the deceased's presence at Splashes.
It must be acknowledged that during the period between when the deceased arrived at Splashes and 0216, in addition to the two calls with Mr Bubanja, Mr Popovic also spoke to 2 other persons there. He had a 10 second call with a Micky Milisic at 0201 and a 30 second call at 0206 with an Ali Nemr. However both of these were after the last of Mr Popovic's successful calls with Mr Koloamatangi or Mr Taylor.
In the immediately preceding paragraph, I have referred to a time of 0216. Mr Taylor gave evidence that after arriving at the vicinity of Splashes, Mr Koloamatangi left the car and Mr Taylor parked in a car-park nearby for 1½ hours. Exhibit G shows a call at 0216 from Mr Koloamatangi to Mr Taylor that lasted 29 seconds. That call leads to the inference that Mr Koloamatangi and Mr Taylor had separated by that time.
In the immediately preceding paragraphs, I have been drawing inferences and using the expressions "likely" and "virtually certain". Given the subject matter, I have taken the view that I should not draw the inferences I have if there is any other conclusion reasonably open and I am satisfied there is not. I am also satisfied beyond reasonable doubt, of the conclusions that I have said seem likely or probable or virtually certain.
The fact and timings of the calls to which I have just referred, do not of themselves establish that Mr Bubanja, in informing Mr Popovic that the deceased was at Splashes, did so in furtherance of any joint criminal enterprise. In that connection I should refer to other evidence upon which the Crown relied.
There was a meeting involving the deceased, Mr Bubanja and the latter's father at the North Wollongong Hotel on 31 August which was the subject of a CCTV recording and which the Crown submitted showed antipathy between at least one of the Bubanjas and the deceased. For much of the time, events that were recorded happened a considerable distance from the camera and I derived nothing of significance from that record.
There was also evidence of disagreement or argument between Mr Bubanja and the deceased at Splashes during the night of 7 and 8 September but the totality of the evidence of their interaction was by no means unequivocal and I do not feel able to rely on it as showing significant antipathy. But nor does this evidence persuade me there was none.
Also to be noted are some 16 unsuccessful calls from Mr Hristovski to Mr Bubanja between 0128 and 0207. These ceased after a successful call from Mr Hristovski to Mr Popovic at 0208.
Mr Taylor gave evidence that a week or two after 8 September, he was in a car with Messrs Popovic and Bubanja. Mr Popovic said words to the effect: "Taylor did it" and Mr Bubanja responded "you are a sick fuck" or "you are a sick cunt" - words Mr Taylor took as "good on you" - and shook Mr Taylor's hand.
The jury's verdict carries with it the conclusion that Mr Bubanja was party to a joint criminal enterprise to murder the deceased. Based on the evidence of what he said in the Woolworths car-park, the incident at the deceased's home, the pattern of phone calls involving him and his remarks to Mr Taylor that I have just recounted, I am satisfied that Mr Bubanja's informing Mr Popovic of the deceased's whereabouts was pursuant to an agreement to kill the deceased.
It is appropriate also to record that I am satisfied that at least part of Mr Bubanja's motivation for involvement in the killing of the deceased was his belief that the deceased was a dog and talking to police. One cannot spend long in the criminal courts without it becoming apparent that criminals disapprove of such conduct and retaliation or fear of retaliation is commonplace. It is important to the community that people do talk to the police and accordingly that any retaliation for people doing so be actively discouraged. I propose to increase the sentence I would otherwise have imposed on Mr Bubanja because of this motivation.
The Crown case against Mr Hristovski was that he provided the gun used to kill the deceased and acted somehow as a lookout on the night in question. The first part of this depended largely on the evidence of Mr Taylor and the second almost exclusively on Exhibit G.
So far as Mr Hristovski's provision of a gun is concerned, some support for the Crown case is to be found in evidence from Ms Amy Ewen, a former girlfriend of Mr Taylor and from Mr Radz. Ms Ewen's evidence was to the effect that she was living with Mr Hristovski from August 2007 until early 2008. She said that in and after August, she saw a silver revolver on numerous occasions when it was being put away by Mr Hristovski who often went out in the evening without her. Her evidence permits of the possibility that in the time she was living with Mr Hristovski, what she saw was more than one, albeit similar, gun.
Mr Taylor's evidence that he and Mr Koloamatangi had picked up a gun from Mr Hristovski and his evidence of his movements and activities on the night of 7-8 September was the subject of considerable challenge. Undoubtedly there are at least difficulties in accepting all that he said.
He said that on return from the first Sydney trip which he placed variously at about 10.30pm or 11pm or around midnight or later he and Mr Koloamatangi went to Mr Popovic's home for about an hour. There Mr Popovic told them to go to Mr Hristovski's home to pick up "something". There was also vague conversation about them then going to see Dragan who was said to be at the North Gong Hotel. Mr Taylor said that he and Mr Koloamatangi then drove to Mr Hristovski's home, parked out the front and waited for Mr Hristovski to come out, which he did about 10 minutes later and handed over a firearm.
Mr Taylor said that prior to Mr Hristovski coming out of his house with a gun, and while he and Mr Koloamatangi were parked outside Mr Hristovski's residence, one of them made a phone call to Mr Hristovski. Later when he could see no such call on Exhibit G, Mr Taylor suggested that the call might have gone to Mr Popovic and the latter might have called Mr Hristovski.
Mr Taylor said that after receiving the gun, he and Mr Koloamatangi then drove some 25-35 kilometres to Mr Taylor's house at Corrimal and there spent some 20 minutes looking for dark clothes, including a beanie and gloves for Mr Koloamatangi. They then drove to near Splashes. They drove around and then Mr Koloamatangi got out of the car and Mr Taylor went and parked in a car-park nearby. After an hour to an hour and a half Mr Taylor heard a number of shots, Mr Koloamatangi re-joined him and the two then drove to Sydney.
Exhibit G indicates that Mr Koloamatangi's and Mr Taylor's return to Wollongong after their first Sydney trip was not until sometime after 1214 and possibly about 1246. Calls between 0103 and 0115 between Mr Popovic and Mr Koloamatangi are inconsistent with Mr Taylor and Mr Koloamatangi being with Mr Popovic for any significant period, even if one regards Mr Taylor's evidence of an hour as an estimate.
Exhibit G contradicts Mr Taylor's evidence of he or Mr Koloamatangi making a call from near Mr Hristovski's home during the period when according to the above account they must have been at or near Mr Hristovski's home which was near Warrawong, south of Wollongong. There are other calls between 0049 and 0108 involving Mr Popovic, Mr Koloamatangi and Mr Hristovski but they are inconsistent with Mr Koloamatangi and Mr Taylor being near Warrawong at the time either of them called.
A further criticism was made of Mr Taylor's evidence upon the basis that there simply was not time for Mr Koloamatangi and himself to have done the things he said he did particularly if one accepts that Mr Taylor and Mr Koloamatangi had separated by 0216. The criticism has validity if one accepts Mr Taylor's time estimates but as will appear, I am not satisfied that everything occurred as the above summary of Mr Taylor's evidence indicates.
Before I address these matters further, there are some other matters to which I should refer. Firstly, I am persuaded that the full picture of Mr Taylor's relationship with Mr Popovic was not revealed in evidence. He was not asked how he came to be driving Mr Koloamatangi on the night of 7 and 8 September or how he came to be running errands of taking money to Mr Koloamatangi. At one stage Mr Taylor suggested that he learnt where Mr Hristovski lived because Mr Popovic showed him the relevant cul-de-sac. Later there was the following evidence:-
Q. Did it come to you as a surprise that you were being driven to the end of a cul-de-sac?
A. No, we would often make, drive to people where I didn't know who they were.
Q. Sorry?
A. We often drove to places where I didn't know whose house they were.
Q. Random visits to cul-de-sacs and things like that?
A. No, to people's places.
No one pursued the topic.
In July 2009 Mr Taylor had been asked by police if he had any knowledge of Mr Sekuljica's murder, but made no comment.
In 2012 he had further interaction with police as I have referred to at the beginning of these remarks. Some 3 days before 4 June 2012 he was again contacted by police on the topic of the murder and first indicated a willingness to provide information. On that day police interviewed him with a view to laying the foundation for obtaining permission to obtain an induced statement. What Mr Taylor said on that occasion was not recorded at the time, but police subsequently made notes of what was said.
A note by Detective Ritchie who had interviewed Mr Taylor on I June, was to the effect that on that occasion, Mr Taylor had said that the picking up of the gun from Mr Hristovski had occurred between dinner at Kings Chinese Restaurant and driving to Mascot. In cross examination, Detective Ritchie said that the note to that effect was "interpretation of the sequence of events, whether it's reversed or whether it's - that's what I recall", and at the time of giving this answer, turned his left hand from more or less the palm down position to a more or less palm up position. Detective Ritchie also said that on 1 June, Mr Taylor had said that on their return from the first trip to Sydney, he and Mr Koloamatangi had driven around for a time.
Mr Taylor's first formal statement was made on 4 June 2012 and it was followed by a number of others. Mr Taylor also gave evidence, the tenor of which I accept, that for 5 years he had tried to forget the events of the night in question. And if a regular activity was driving to sundry peoples' places, it would not be surprising if timing or some details of one such call, even of the significance of the one picking up a firearm, were not remembered.
I have referred to the need to scrutinise Mr Taylor's evidence with great care particularly in light of his past, his possible entitlement to a reward and the obvious advantage to him in 2012 and since in inculpating the prisoners. The difficulties with and inconsistencies involving Mr Taylor's evidence as to his movements and activities during the night of 7 and 8 September, mean that his evidence on these topics must be scrutinised with additional care. And Exhibit G does not support the evidence of any call even earlier in the evening (but after dinner) having been made by Mr Koloamatangi or Mr Taylor requesting that Mr Hristovski come out of his residence. Nevertheless I am persuaded by Mr Taylor's evidence that at some relevant time - possibly even earlier in the day - Mr Hristovski did provide the murder weapon to Mr Koloamatangi. Despite the successful challenges to his evidence of the associated details on the central issue of the supply, I was persuaded that Mr Taylor was telling the truth.
As has been said, the second part of the case against Mr Hristovski was that he had acted as some sort of lookout on the night of 7-8 September. There was evidence from persons who were near Splashes to the effect that there was no one hanging around outside who could have been a lookout, but certainly Exhibit G shows an extraordinary number of calls or attempted calls during the evening that involved Mr Hristovski's phone.
At 0017 hours, he received a 24 second call from Mr Bubanja. Between 0123 and 0131 hours, Mr Hristovski made 7 calls to Mr Bubanja which were either of a few seconds duration or diverted to voicemail. Between 0150 and 0202 hours, Mr Hristovski made another 8 such calls to Mr Bubanja.
Ms Ewen gave evidence that not infrequently Mr Bubanja called on Mr Hristovski to drive him around, but it does not seem to me that the pattern of calls can be explained on that basis.
At 0055 hours, Mr Popovic called unsuccessfully. At 0108 Mr Hristovski received a call of 26 seconds from Mr Popovic and at 0120 hours he received a call of 13 seconds from Mr Popovic's wife's phone.
Mr Hristovski made calls to Mr Popovic at 0159 hours (107 seconds), at 0208 hours (45 seconds), at 0228 (13 seconds) and at 0257 (71 seconds).
At 0230 hours he received a 24 second call and at 0313 hours a 51 second call from Mr Popovic.
At the time of the 0128 - 0150 hours calls, Mr Hristovski was near the Berkley tower. Between then and 0228 hours, his calls are recorded as going through consecutively the Dapto, Wollongong CBD, Thirroul, Brokers Point, Thirroul, Brokers Point, Thirroul, the Crown Street Mall and Brokers Point towers. Between 0257 and 0331 hours his calls are recorded as going through consecutively the Brokers Point, Thirroul and Berkley towers.
The extent of the spread of these towers argues against Mr Hristovski having been a lookout during at least most of the night. Given his contact with Mr Popovic it is surprising that if he wanted to contact Mr Bubanja as strongly as the number of Mr Hristovski's calls would suggest he did not simply go into Splashes but, that said, I am unable to deduce from the extraordinary number of calls in which Mr Hristovski was engaged any particular pattern. There is, as I have said, the ceasing of calls to Mr Bubanja after a call to Mr Popovic at 0208
However, a pattern does become apparent at some stage. Exhibit HH shows that the deceased emerged from the club at 0228.26. At 0228.50 Mr Hristovski called Mr Popovic. At 0229 and 0230, Mr Popovic made 3 unsuccessful calls to Mr Koloamatangi and Mr Taylor and then a successful call to Mr Hristovski. At 0231 the deceased went back inside the night club.
At 0256.47 the deceased again emerged from the night club. At 0257.59 Mr Hristovski had a 71 second call with Mr Popovic. At 0259.28 Mr Popovic made an unsuccessful call to Mr Koloamatangi.
Despite the evidence to the effect that there seemed to be no one hanging around and observing the front of the night club, the close correlation in times between the deceased emerging from the nightclub and Mr Hristovski ringing Mr Popovic and then the latter seeking to contact Mr Koloamatangi, leads me to the conclusion that Mr Hristovski was watching and reporting on the deceased's movements at least in the 0228 to 0257 period.
In the result, I shall sentence Mr Hristovski on the basis that, in addition to being a party to the joint criminal enterprise, his personal actions were the supply of the firearm, watching to observe the deceased's movements and reporting them to Mr Popovic.
I return to Mr Popovic. In that he was the person to whom Mr Koloamatangi reported and looked for payment, he gave instructions where the gun was to be obtained, was the conduit through whom the deceased's whereabouts were communicated and was the most active participant in successful phone calls he seems clearly to have been the ringleader or at least the organiser of Mr Sekuljica's murder.
[4]
Mr Radz
The evidence of Mr Radz cannot be unhesitatingly accepted. The reasons which inspired warnings to the jury are justified by his past, his history of offending, charged and uncharged, his time in gaol, his membership of gangs, and the incentives he had to give evidence adverse to the prisoners.
On the other hand, there are other factors to which regard must be had. As brought out by Mr Ramage, Mr Radz had acquired a name for himself, apparently for shooting people. None the less, when released from gaol in 2006, Mr Bubanja was apparently content to have Mr Radz live with him, a matter which derives support from Exhibit 3 on sentence. Mr Radz's visit to Mr Popovic 3 days after his release from gaol in October 2007 and the terms of the conversations recorded in Exhibits NN and OO with Mr Popovic and Mr Hristovski, indicate a friendly relationship with these two. As a confirmed criminal or gunman, Mr Radz may well have been regarded as someone to whom admissions could be made with safety.
I also formed the impression, based not just on the terms of what Mr Radz said, but also on his apparent spontaneity and his manner of saying it, that Mr Radz genuinely wished to put his criminal past and its associated activities behind him.
Such a conclusion of course goes only so far in any assessment of Mr Radz's credibility. He might well think that such an aim could well be best achieved by incriminating one or more of the prisoners, whatever the truth may have been. One of the strongest arguments against accepting Mr Radz's evidence to the effect that the prisoners, or at least some of them, were involved in the murder of Mr Sekuljica, lies in evidence of what he told Messrs Tuckerman and Durrant of the Crime Commission when they interviewed him in July 2013 and which Mr Radz acknowledged contained lies. Of course, on any view, there is an extraordinary degree of inconsistency between these two persons, but it is impossible not to accept, as evidence of what was then said, Mr Tuckerman's contemporaneous note and the evidence on which they were agreed.
Also surprising, and arguing strongly against the reliability of evidence he gave in the prisoners' trial, is that Mr Radz seems not to have then mentioned a number of statements, which he now says were made by Messrs Popovic, Bubanja and Koloamatangi prior to his discussions with Messrs Tuckerman and Durrant. At the time, Messrs Tuckerman and Durrant were not investigating the Splashes murder and spent little time on it. However, Mr Radz's omissions are still surprising.
I am not conscious of any areas where Mr Radz's evidence of admissions by the prisoners is the subject of significant corroboration so far as matters of detail are concerned. In the result I do not feel confident enough of Mr Radz's credibility to place reliance on his evidence. I make it clear that I am not rejecting all he said, but I am not confident enough to be satisfied of what he says beyond reasonable doubt.
[5]
Statutory Provisions
I turn to other matters. Section 19A(1) of the Crimes Act 1900 provides that a person who commits the crime of murder is liable to imprisonment for life.
Section 21 of the Crimes (Sentencing Procedure) Act 1999 provides that nevertheless a court may impose a sentence for a specified term, Section 61(1) of that Act requires a court to impose a sentence of inprisonment for life if an offender's level of culpability in the commision of the offence is so extreme that the community interest in retribution, punishment, communicty protection and deterence can only be met through the imposition of that sentence.
A court may impose a life sentence if general sentencing principles lead to the conclusion that life imprisonment is the appropriate punishment - R v Harris(2000) 50 NSWLR 409 at [87-88], [90]; Adanguidi v R [2006] NSWCCA 404 167 A Crim R 295. Those sentencing principles include the considerations referred to in s 3A, 21, and s21A of the Crimes (Sentencing Procedure) Act 1999.
Pursuant to s 54A et seq. of the Crimes (Sentencing Procedure) Act 1999, a standard non-parole period of 20 years has been prescribed for an offence of murder. That and the maximum penalty are guideposts a court should take into account in determining the appropriate sentence in a particular case -Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Of course, also relevant are sentences in prior cases, particularly insofar as they reveal any general pattern. In the circumstances of this case, I do not regard it as necessary to refer to any specific cases.
S 3A of Crimes (Sentencing Procedure) Act 1999 sets out the purposes of sentencing. S 5 of that Act provides that a court must not sentence an offender to imprisonment if there is any other alternative. Obviously in this case there is not.
S 21A sets out some 35 aggravating and mitigating factors to which, subject to the terms of the section the Court must have regard. I do not regard it as necessary to identify seriatim all of the matters relevant here. Most, e.g. the actual use of a weapon are obvious or an incident of the offence as committed and do not justify an increase in the sentence that would otherwise be appropriate. However, although I do not find that the offence was committed without regard for public safety, it did involve a grave risk of death to another person or persons. It was pure chance that Mr Gyles was only injured. Insofar as some of the matters referred to in the section, e.g. a prisoner's prior record may do so, they are referred to below. I do not increase the sentence because of any planning in it. That is was premeditated is however of significance.
All of the prisoners have criminal records and of a nature such that those records are relevant to my determination of the appropriate sentence for their offence of murder. However, I make it clear that in no way am I intending to punish them again for offences for which they have been punished in the past or for which they remain to be sentenced by other judges.
A number of the prisoners were on parole on 8 September 2007. The law is clear that the commission of an offence while on conditional liberty is an aggravating feature.
Some of the prisoners are currently serving sentences for other offences. I intend to impose the sentences that I regard as merited by their participation in Mr Sekuljica's death but considerations of totality mean that those sentences should not simply be added to their existing non-parole periods. Accordingly I intend to backdate the commencing points to an extent that seems to me appropriate.
Consistent with their pleas of not guilty, none of the prisoners has expressed any remorse for the killing of the deceased. None but Mr Popovic gave evidence on sentence and though reports of what they had said to psychologists were in evidence, not all of that hearsay evidence is persuasive.
One feature of the case worthy of remark is the willingness of all of the prisoners, with the possible exception of Mr Bubanja, to arm themselves with firearms. In so remarking, I do not suggest that the sentence to be imposed on any one of them should reflect conduct of the others that was not part of the joint enterprise. However it does provide an illustration of the increasing problem that firearms are to the community.
[6]
Subjective Circumstances
I have dealt with the role of the prisoners in Mr Sekuljica's murder. I now turn to the evidence of their subjective features.
[7]
Mr Bubanja
Mr Bubanja was born in February or March 1986. His criminal record commenced in 2005 and has continued with regularity since. His antecedents include:
Driving a vehicle recklessly, furiously or at a speed or manner dangerous in 2005.
Driving while his licence was suspended or disqualified (5 offences) in 2003, 2005, 2006 & 2012.
Driving a vehicle with illicit drug present in his blood in 2012
Causing a police pursuit (2 offences) in 2012.
Assault police officer in 2005
Common assault (3 counts) in 2005.
Assault occasioning actual bodily harm in company in 2009.
Recklessly wound whilst in company in 2007.
Possessing a prohibited drug (2 offences) in 2005.
Supplying a prohibited drug other than cannabis (2 offences) in 2006, 2010.
Supply prohibited drug - large commercial quantity (2 counts) in 2013 (to be sentenced at Sutherland District Court on 16 December 2014)
Possessing/using a prohibited weapon without a permit in 2006.
Possess unauthorised pistol in 2006.
Possessing ammunition without authority in 2006.
It should be mentioned that his offence of possessing a prohibited weapon arose pursuant to s4A of the Firearms Act, the police conceding they could not prove that Mr Bubanja was the owner or the usual possessor of the weapon, a loaded .22 handgun, found in premises of which he was the occupier.
Mr Bubanja has been fined, placed on 5 bonds and sentenced to imprisonment on two occasions prior to the murder of Mr Sekuljica and about five times since. Mr Bubanja's last sentence prior to Mr Sekuljica's murder involved a full term of 30 months and a non-parole period of 12 months both such periods commencing on 15 June 2006. He was thus on parole at the time of the murder. (His custodial record that was tendered did not include the last page so I do not know when in fact he was released.) That parole was revoked on 25 October 2007 but for reasons unconnected with the murder offence.
It is not often that traffic offences figure as significant in sentencing for murder but his four convictions for driving whilst his licence was suspended, one for driving whilst he was disqualified and two for being involved in a police pursuit speak volumes. The assault and other offences of violence in his record demonstrate an unhealthy disposition to resort to self-help or thuggery, a disposition to which he gave full vent in the murder of Mr Sekuljica.
Mr Bubanja was arrested on 21 November 2012 but has been in custody since 27 April 2012 for offences of supplying drugs, 2 charges of driving whilst his licence was suspended, and 2 counts of involvement in a police pursuit. The last of the non-parole periods imposed in connection with those offences expires on 31 January 2015.
These offences are all of a different character than the one for which he presently stands for sentence. It seems to me that the requirements of totality are adequately met if the sentence I impose is directed to commence on 1 February 2014, about two-thirds of the way through his present imprisonment. To create a longer period of concurrency would not see him adequately punished for these other offences.
The repetition and escalation in the seriousness of Mr Bubanja's drug dealing and indeed his criminal antecedents generally demonstrate an attitude of wholesale disregard for the law and unwillingness to learn from convictions and punishments that have been imposed on him in the past. His record also provides confirmation for a statement Mr Radz made which I accept that "Daki thought I was a dream come true because he always wanted to meet me because I had a big name in Wollongong."
There was tendered on Mr Bubanja's behalf a psychological report. It recorded reports by Mr Bubanja of a happy home life, that he commenced consumption of marijuana when aged 21 and crystal methamphetamine when aged 22 - times which seem at odds with his criminal history - and that the use of drugs had had many negative consequences on his life. He reported having been stabbed thirteen times in August 2007 and his godfather - presumably the deceased - see T245 - being shot and dying in his presence in October 2007.
The psychologist who prepared the report remarked: Mr Bubanja's responses to testing "reveal that he is likely to display significant symptoms related to traumatic stress" and that "he has likely experienced a disturbing traumatic event in the past - an event that continues to distress him and produce recurrent episodes of anxiety" and diagnosed Mr Bubanja as suffering from clinically severe depression and post-traumatic-stress-disorder for which he is said to have been receiving psychological treatment while incarcerated.
Severe depression at the prospect of spending many years in prison is to be expected. Given the jury's decision that Mr Bubanja was responsible for the death of the deceased I do not regard any PTSD Mr Bubanja may suffer in consequence as a reason for mitigating his punishment. The psychologist's report did not say that Mr Bubanja's PTSD was related to his being himself stabbed and nor has any significant evidence of the circumstances of that incident been placed before me. In that situation I am not persuaded that any PTSD Mr Bubanja may suffer from argues for significant leniency.
Mr Bubanja's record leads me to the view that his prospects of rehabilitation are remote and theoretical at best and that appreciably more weight than usual should be afforded to considerations of personal deterrence and the protection of the community.
[8]
Mr Hristovski
Mr Hristovski was born in July 1985. His antecedents include:-
Possession of a motor vehicle suspected of having been stolen in 2006.
Possession of an unauthorised prohibited firearm in 2008.
Possession of ammunition without authority in 2008.
Supplying a commercial quantity of a prohibited drug in 2008
Supplying a large commercial quantity of a prohibited drug (2 counts) in 2008.
With the exception of the offence of being in possession of a motor vehicle suspected of having been stolen, these offences occurred in January 2008 and thus all post-date the killing of Mr Sekuljica. However, it is to be noted that, having on or about 7 or 8 September 2007, provided the firearm used to kill Mr Sekuljica, Mr Hristovski was in possession of another firearm shortly thereafter.
Mr Hristovski's actions, including those described by Mr Ewen, seem to suggest that to him, a firearm was but a tool of trade and providing one used to kill a human being was not a reason why he should not acquire another such weapon. Accordingly, though I make it clear I do not punish him again for the offence of possession of an unauthorised prohibited firearm, the actions to which I have just referred argue that personal deterrence and the protection of the community should receive some more weight than in many cases of murder.
With the exception of the motor vehicle offence, Mr Hristovski was sentenced for the other offences on 23 April 2009. Sentences of 3 years for possessing the firearm, 7 years for one of the commercial drug supply offences and 14 years for each of the large commercial quantity drug supply offences were made concurrent, all commencing on 25 January 2014. The non-parole periods in respect of these last mentioned sentences were of 10 years commencing on 25 January 2008 and thus expiring on 24 January 2018.
Mr Hristovski was arrested on 25 January 2008 and the sentences imposed on him for drug offences having commenced on that date, he has served no time in custody referable to the killing of Mr Sekuljica.
I have indicated that considerations of totality mean that the sentence I impose should commence earlier than the end of his current non-parole period. However, in the determination of how much earlier, it is relevant to bear in mind that his offences of murder and supplying commercial and large commercial quantities of drugs are inherently different and in fact have no common features. All were very serious offences, committed deliberately, and in the case of the drug supply offences, with knowledge of his involvement in the killing of Mr Sekuljica.
The factors to which I have referred, argue in favour of any reduction in the sentence to be imposed on Mr Hristovski on account of totality being less than it might otherwise have been. In the result, the sentence I impose on Mr Hristovski will commence on 25 July 2014, 3½ years before the conclusion of the non-parole period he is presently serving.
There were tendered on Mr Hristovski's behalf a number of documents. Some were references and the transcript of evidence his father gave in April 2009 during Mr Hristovski's sentencing for, inter alia, the drug charges. Mr Hristovski senior said that his son had completed year 12 and then gone to TAFE obtaining a welding certificate but not completing an engineering course. In 2004 he commenced a business involving the use of a Dyno machine for which his father borrowed something of the order $100,000. Initially he worked hard and long hours but then started gambling, not paying his bills and associating with drug dealers. Despite his father's efforts to dissuade him, the gambling continued. Further borrowings by his father were not enough to prevent Mr Hristovski becoming bankrupt in early 2006 or 2007.
Another group of documents consisted of certificates for courses done whilst in gaol. They reveal creditable efforts to improve himself and include records of successful participation in a bachelor of engineering degree.
There was also tendered a psychologist's report. To a large degree the history recorded in it echoed what Mr Hristovski's father had said although it indicated Mr Hristovski's upbringing and familial circumstances as positive and supportive. The report also provided the detail that Mr Hristovski's gambling had cost $3000 to $4000 a day at times, also recording that Mr Hristovski had expressed a strong willingness to remain disconnected from his former peer culture. The author suggested Mr Hristovski would benefit from counselling to address issues of stress management, problem solving, communication skills and relapse prevention.
In substance, this material argues in a direction contrary to the additional weight to personal deterrence and the protection of the community to which I have referred. However a difficulty with it, is that it was clearly in Mr Hristovski's interests at the time he was talking to the psychologist to promise or give the impression of reform and I have no way of ascertaining how genuine he was or as to the likelihood of him, for example disconnecting with his peer culture. His father's efforts were unsuccessful.
A urinalysis in April 2008 shows no drugs were detected. Mr Hristovski's custodial record shows no failure to be tested or failed tests.
[9]
Mr Popovic
Mr Popovic was born in February 1972. His antecedents include:-
Unlawful use of conveyance in 1986.
Possess prohibited weapon in 1993.
Possess shortened firearm in 1993.
Drive whilst disqualified in 1995.
Goods in custody in 1997.
Common assault in 1998.
Maliciously inflict GBH with intent to do serious injury (2 counts) in 1999.
Maliciously wound (7 counts) in 1999.
Manslaughter in 1999.
In the above list I have chosen the description of the malicious wounding offences used in R v Popovic [2003] NSWCCA 103 rather than the description in the Mr Popovic's antecedent report that was tendered. For present purposes the difference is immaterial.
I should say a little more about his record. The malicious wounding and manslaughter offences occurred after the victim of the manslaughter had, over a period of 6 weeks or so made threats of killing Mr Popovic, his mother and son. Some months earlier, Mr Popovic had purchased a sawn-off shotgun and shortly before the manslaughter, a pistol. After the threats commenced, Mr Popovic became accustomed to carry the shotgun with him. On the day of the offences, Mr Popovic accosted the victim in a public street and when the latter approached, loaded the weapon and discharged it. The first shot injured members of public in the street. The second killed the victim. The malicious wounding convictions reflected verdicts of a jury. The manslaughter conviction followed an agreement of the Crown to accept that verdict on the basis of provocation.
The sentences imposed on the malicious wounding charges were concurrent terms of 3 years commencing on 26 February 1999. The sentence imposed for manslaughter was of 10 years including a non-parole period of 6 years both such periods commencing on 26 February 2001. Mr Popovic was released to parole on 25 February 2007 and thus on conditional liberty at the time of the killing of Mr Sekuljica. He was arrested on the charge of murder on 21 September 2012 and his sentence should date from that day.
His record means that in the sentencing of Mr Popovic, personal deterrence and the protection of the community should be given more than usual weight. Having been convicted of possessing a prohibited weapon and shortened firearm in 1993, an event which cannot but have brought home to Mr Popovic the illegality of his actions, he again armed himself - with 2 weapons - and resorted to violent and illegal self-help in 1999 and thereabouts and has done so again.
Mr Popovic gave evidence during the sentencing hearing. Most was irrelevant to any issue I have to decide. However he did say that the weapon in respect of which he was convicted in 1993, was a shortened .22 and his purpose of having it was to hunt. Successful hunting with a firearm normally requires a reasonable degree of accuracy at a long or at least moderate distance. A shortened firearm is not calculated to facilitate accurate aiming and I was not persuaded by Mr Popovic's evidence in this connection. Of course, the evidence is not such as to justify positively the opposite inference, viz. that he had it for the purposes of use against persons.
Nor, given the circumstances and absence of supporting material, was I persuaded that Mr Popovic knew Mr Bubanja for only the short period he indicated.
Tendered on Mr Popovic's behalf was a letter from his mother describing some aspects of Mr Popovic's upbringing and family situation, the suicide of his wife in 2012, and Mr Popovic's kindness to a number of people.
In evidence also was a lengthy psychologist's report that is not quite as glowing. I do not think it necessary to refer to many aspects of the report. Mr Popovic is referred to as having been wilful and difficult to control as a child and someone who received some Juvenile Justice interventions. The psychologist records that primarily Mr Popovic had been self-employed, with substantial trading on the internet. He was a sometimes user of cannabis, amphetamines and cocaine and had a problematic gambling habit from about 1990 although both the substance abuse and gambling problems had been brought under control prior to Mr Popovic's present incarceration. According to the psychologist, Mr Popovic reported symptoms of depression, including consequent on the death of his wife and lack of stability in his mood control. He is said to need treatment for his grief and would benefit by programs including drug and alcohol ones.
I see nothing in what his mother or the psychologist said that argues significantly for a more lenient sentence. The matters referred to pale almost into insignificance compared with the enormity of Mr Popovic's crime and his disregard of the law.
[10]
Mr Koloamatangi
He was born in November 1969. His antecedents include:-
Assault occasioning actual bodily harm (2 offences) in 1989 and 2004.
Inpersonating a police officer in 2001.
Assault officer in execution of duty in 2004.
Possess housebreaking implements in 2000.
Aggravated break and enter knowing person there in 2001.
Aggravated break and enter and commit serious indictable offence armed in 2009.
Wound person with intent to resist/prevent arrest in 2009.
Possession of a prohibited drug between 1990 and 2002 (5 offences).
Armed robbery in 1993 (2 offences).
Possess shortened firearm in 1993.
Possess unauthorised firearm/pistol in 2000.
Robbery with wounding in 1993
Robbery armed with a dangerous weapon in 2009.
Detaining someone for advantage in 2009 (2 counts).
Shoot with intent to murder in 2009.
On 19 December 1991, he committed armed robbery whilst armed with a sawn-off .22 calibre rifle. On 10 April 1992, he committed armed robbery armed with a shortened .22 calibre rifle containing a loaded magazine. On 20 February 1993, armed with a loaded revolver, Mr Kolomatangi robbed a victim of cannabis and cash and in the course of resistance by the victim, accidentally shot him in the stomach.
He was dealt with for the three matters on 20 August 1993 by Phelan DCJ and sentenced to an effective term of 8 years including a non-parole period of 5 years. Evidence presented during the sentencing procceedings, led his Honour to remark that Mr Koloamatangi had involved himself while in custody in a very dedicated way in overcoming any drug or alcohol dependence and in other ways had shown a desire to educate and otherwise improve himself.
On 3 May 2002, he was convicted of aggravated breaking and entering, possessing car breaking implements and possession of an unauthorised firearm, offences committed in 2000 and 2001. The firearm was a loaded revolver.
In March 2005, he was convicted of assaulting an officer in the execution of his duty and of assault occasiong actual bodily harm. For these offences, he received effective sentences of 4 years concluding on 28 May 2008 and including a fixed term and nonparole period ending on 28 February 2007. He was thus on parole at the time of the murder of Mr Sekuljica in September 2007.
On 29 May 2009, he was involved in a home invasion leading to charges of aggravated breaking, entering and stealing and robbery whilst armed. On 31 May 2009 he committed a number of offences in the course of a robbery of an hotel.
Using a gun he had loaded on the way to the hotel, he was involved in two separate instances of shooting at one of the police officers who had been called to the scene and who was attempting to apprehend Mr Koloamatangi.
In R v Koloamatangi [2011] NSWCCA 288 the Court of Criminal Appeal allowed Crown appeals in respect of the offences of aggravated breaking, entering and stealing and shooting with intent to murder and imposed sentences of, respectively 5 years 9 months including a non-parole period of 4 years 4 months both such periods commencing on 31 May 2009 and 13 years 4 months including a non-parole period of 10 years both such periods commencing on 31 May 2013. The sentences that had been imposed on the other charges arising out of events on 29 and 31 May, imposed by Judge Sweeney in May 2011, were all subsumed in those imposed by the Court of Criminal Appeal. The effective non-parole period Mr Koloamatangi is presentely serving is thus one of 14 years expiring on 30 May 2023.
Mr Koloamatangi did not given evidence but there was tendered on his behalf, a report by a psychologist, Danielle Hopkins. The report was written in May 2011 in connection with the sentencing of Mr Koloamatangi in respect of his May 2009 offences. The report records:-
His father died when he was 1 and he was brought up by his grandparents until aged 7. His mother, though not identified as such, lived in the household and was married to an alcoholic who was physically abusive towards her. His grandmother was a strict disciplinarian and would beat Mr Koloamatangi for reasons he did not understand.
When aged 7, he and his brother were sent to Australia to reside with an uncle and aunt. Mr Koloamatangi felt a sense of abandonment and his uncle and aunt seemed to resent him. His uncle was physically abusive and expected Mr Koloamatangi to partly support himself by stealing.
Though never expelled from school, his behaviour and academic results there were poor. Mr Koloamatangi has been in regular employment for only 1 year of his life.
Mr Koloamatangi and his brother left their uncle's residence at aged 13 and were homeless for about 5 years. He met criminals and felt he "didn't fit in anywhere else." His brother was deported back to Tonga in 1997 following an armed robbery.
Mr Koloamatangi began substance abuse at aged 12 with alcohol and from aged 16 until his early 20's he would consume alcohol every day until he passed out. He began using cannabis at aged 14 and graduated to amphetamines, cocaine, heroin and other drugs.
The psychologist's opinion was that "it seems currently he is not capable of resisting urges to engage in illicit substance use. ... and lacks insight into how destructive substance abuse is for him and the skills to refrain from substance abuse." He has poor impulse control and behavioural dyregulation problems.
Mr Koloamatangi has been diagnosed with depression, anti social personality disorder and having a borderline personality.
The psychologist opined that his substance abuse "is now so entrenched that I doubt he has the capacity to withstand withdrawal from these substances without significant disruption of his already precarious psychological state, unless he has signficiant support."
In its detail the report indicates a candour such that I am disposed to accept what it says. In consequence one cannot but be sympathetic to the disastrous life Mr Koloamatangi has had. However, his are not the only interests to which I must have regard.
I am not unconscious of decisions to the effect that all contract killings do not fall into the category of a worse case. However, I see nothing in the circumstances here which would provide any ground for not so regarding the objective features of Mr Koloamatangi's involvement and in my view it is appropriate to regard his offence as in a worst case category.
The nature of a contract killing is such as to create strong demand for retribution. One can accept, and to an extent understand, that human frailty sometimes leads to murder. However there is something entirely alien to the most basic standards of humanity when murder is premeditated and committed just for monetary reward. And in the circumstances of Mr Sekuljica's murder there were no redeeming or mitigating features that could operate in Mr Koloamatangi's favour.
Such an offence also requires that considerable weight be given to general deterrence. In their very nature contract killings must involve some consideration by the killers of the rewards, risks and consequences. It behoves the courts to ensure that, if such a killer is caught, those consequences are very high.
Furthermore, Mr Koloamatangi's killing of Mr Sekuljica for reward leads, in the absence of some convincing evidence that his conduct is unlikely to be repeated - and there is none - inevitably to the conclusion that the community is at grave risk whenever Mr Koloamatangi is at liberty, especially given his apparent need for illegal drugs. That view is reinforced when one has regard to Mr Koloamatangi's 2009 offending. I do not forget that in any sentencing there are limits to the weight that can be given to the protection of the community but it is one factor to be taken into account - see Veen v The Queen (No 2) [1987 - 1988] 164 CLR 465 at p473 et seq.
Given his past, and not forgetting the contents of the psychologist's report, I regard Mr Koloamatangi's prospects of rehabilitation as zero. Prison seems to have no significant effect by way of personal deterrence.
I accept that the circumstances of Mr Koloamatangi's growing up do, to some extent, ameliorate his criminality but the difficulty is to accommodate them with the other factors relevant in the determination of a proper sentence.
In the result, and without recourse to the terms of s 61(1) of the Crimes (Sentencing Procedure) Act 1999. I have decided that the sentence to be imposed on Mr Koloamatangi should be substantially in excess of the sentences imposed on the other offenders. In so deciding I have not ignored considerations of parity. However - at least partly because of lack of evidence - I am not able to put the motivation of the other offenders in the same venal category as that of Mr Koloamatangi. Nor do I see in their case that the protection of the community is entitled to as much weight.
[11]
Sentences
I have identified what I see as the signficant features of the offence, the prisoners' involvement in it and their individual subjective circumstances. I am conscious of the principle of parity but in light of the different roles of the prisoners and their different subjective circumstances, I do not regard that principle as requiring that the sentences I impose be of the same length.
Mr Hristovski, for the murder of Dragan Sekuljica, I sentence you to imprisonment for a non-parole period of 22 years commencing on 25 July 2014, together with a further term of 7 years. Although that balance of term is signficantly less than one third of the totality of your non-parole periods, it is adequate to serve the purposes of balances of terms and I see no need to increase it or reduce the non-parole period.
I record as the date upon which it appears to the Court that you will become eligible for parole, 25 July 2036.
Mr Bubanja, for the murder of Dragan Sekuljica, I sentence you to imprisonment for a non-parole period of 26 years commencing on 1 February 2014, together with a further term of 8 years. Although that balance of term is also signficantly less than one third of the totality of your non-parole periods, it is adequate to serve the purposes of balances of terms and I see no need to increase it or reduce the non-parole period which I regard as the minimum you should serve for your offence of murder.
I record as the date upon which it appears to the Court that you will become eligible for parole, 1 February 2040.
Mr Popovic, for the murder of Dragan Sekuljica, I sentence you to imprisonment for a non-parole period of 26 years commencing on 21 September 2012, together with a further term of 8 years.
I record as the date upon which it appears to the Court that you will become eligible for parole, 21 September 2038.
Mr Koloamatangi, for the murder of Dragan Sekuljica, I sentence you to imprisonment for life commencing on 1 June 2023. Given the nature of that sentence, there is no occasion to commence it prior to the expiration of your existing sentence.
[12]
Amendments
03 September 2018 - publication restriction removed - judgment published
10 February 2021 - Pseudonyms inserted
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Decision last updated: 10 February 2021