R v Price; R v Rahim; R v Taufahema

R v Price; R v Rahim; R v Taufahema - [2024] NSWSC 1419 - NSWSC 2024 case summary — Zoe

[2]

JUDGMENT

In the early hours of 7 December 2019, at Condell Park, New South Wales, Luke Lembryk was tragically stabbed to death in his home following a break-in by two men unknown to him. He died shortly after the stabbing in the arms of his mother, Ms Bradley, with whom he lived. Ms Bradley was also assaulted by the men. Mr Lembryk was 29 years old at the time of his death and was a much loved man. I will have more to say about Mr Lembryk and the devastatingly sad loss suffered by his family later in my remarks. These remarks must now focus, however, on the events of 7 December 2019, the circumstances leading up to those events, and on the offenders' circumstances.
The two men who broke into the home of Mr Lembryk and his mother were Viliami Bui Taufahema and Joseph Nehme. During the course of the break-in, Mr Lembryk had clearly confronted one or both of the men, and one of them responded by violently attacking him with a knife five times. The cause of death was a stab wound to the lower left-hand side of Mr Lembryk's chest which penetrated his heart.
Mr Taufahema had been recruited by Mr Nehme and had been driven to Mr Lembryk's premises by Bilal Rahim, also recruited by Mr Nehme, who waited outside during the attack. The plan to rob Mr Lembryk had come into being earlier that evening when Mr Nehme had heard from Lisa Anne Price, an acquaintance, that Mr Lembryk was a worthwhile target. Another woman, Sherene Rizk, was with Ms Price and Mr Nehme during some of the evening, prior to Mr Nehme leaving for Condell Park.
On 8 November 2023, Ms Price, Mr Rahim, Ms Rizk and Mr Taufahema were arraigned before a jury panel at Darlinghurst on an indictment as follows: 1. Count 1: On 7 December 2019, at Condell Park in the State of New South Wales, Lisa Anne Price, Bilal Rahim, Sherene Rizk and Viliami Bui Taufahema, did murder Luke Lembryk (s 18(1)(a), Crimes Act 1900 (NSW)); 2. Count 2: On 7 December 2019, at Condell Park in the State of New South Wales, Lisa Anne Price, Bilal Rahim, Sherene Rizk and Viliami Bui Taufahema, did assault Luke Lembryk with intent to rob him whilst being in company (s 97(1), Crimes Act).
Each accused pleaded not guilty to these first two counts.
Ms Price, Mr Rahim, and Mr Taufahema were also arraigned on two further counts, as follows: 1. Count 3: On 7 December 2019, at Condell Park in the State of New South Wales, Lisa Anne Price, Bilal Rahim, and Viliami Bui Taufahema, did break and enter the dwelling house situated at an address at William Street, with intent to commit a serious indictable offence therein, namely, stealing, in circumstances of aggravation, namely, being in company (s 113(2), Crimes Act); 2. Count 4: On 7 December 2019, at Condell Park in the State of New South Wales, Lisa Anne Price, Bilal Rahim, and Viliami Bui Taufahema, did break and enter the dwelling house situated at an address at William Street, and committed a serious indictable offence therein, namely, assaulted Robyn Bradley thereby occasioning actual bodily harm, in circumstances of aggravation, namely, being in company (s 112(2), Crimes Act).
Mr Rahim pleaded not guilty to Counts 3 and 4. Ms Price pleaded not guilty to Count 3 but guilty to the alternative charge of break and enter with intent to steal, and not guilty to Count 4. The Crown did not accept Ms Price's plea of guilty to the alternative charge. Mr Taufahema pleaded guilty to Counts 3 and 4.
A trial by judge and jury commenced on 8 November 2023. The jury retired to consider its verdicts on 11 December 2023, and delivered its verdicts on 21 December 2023. The verdicts were as follows: 1. Ms Price was found not guilty of murder, but guilty of the alternative charge of manslaughter by unlawful and dangerous act, and guilty of Counts 2, 3 and 4. 2. Mr Rahim was found not guilty of murder, but guilty of the alternative charge of manslaughter by unlawful and dangerous act, and guilty of Counts 2, 3 and 4. 3. Ms Rizk was found not guilty of Counts 1 and 2. 4. Mr Taufahema was found guilty of Counts 1 and 2, and as stated above, he had pleaded guilty to Counts 3 and 4.
Mr Nehme was originally to be tried with the others, but his trial was separated on 31 October 2023: see R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 4) [2024] NSWSC 451. His trial took place in early 2024, and he was found guilty of a number of offences, including murder. Mr Nehme is to be sentenced separately.

[4]

General sentencing principles

Any findings of fact I make must be consistent with the jury's verdicts. To the extent that I make findings of fact adverse to any offender, I must be satisfied of the relevant fact beyond reasonable doubt. To the extent that I make findings of fact favourable to any offender, I must be satisfied of the relevant fact on the balance of probabilities: see The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ). In sentencing each offender, I must apply the purposes of punishment established at common law and set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act").
The conduct must be denounced. The offenders must be held to account and must be punished appropriately for their offending. The Court must recognise the harm done to the victims and the community. The sentence must deter these offenders, as well as others, from engaging in this conduct. The protection of the community is an important consideration. It is also important, both for the community and for the offenders, that the sentence should aim to promote the rehabilitation of the offenders to the extent that is appropriate.
The weight to be given to these various factors varies between the three cases. I have had regard to the principle of parity: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, but although the offenders were all involved in the same criminal enterprise, clearly, their roles, and indeed the most important charge for which they are to be sentenced, mean that parity will have more of an effect so far as Ms Price and Mr Rahim are concerned, and less so in Mr Taufahema's sentencing exercise: Tasdik v R [2024] NSWCCA 195 at [66].
I note, of course, that I am also to sentence Mr Nehme, who was also found guilty of murder in a separate trial. Parity is also relevant so far as Mr Taufahema and Mr Nehme are concerned. I note, however, that the evidence in the two trials whilst largely consistent, was not the same.

[5]

Offence provisions, maximum penalties, and standard non-parole periods

Count 1, murder, carries a maximum penalty of life imprisonment (s 19A of the Crimes Act). A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence (Sentencing Act, s 61(1)). The Crown Prosecutor did not submit that a life sentence should be imposed. I am not satisfied that a life sentence is appropriate.
A standard non‑parole period of 20 years for the offence of murder has been specified by the legislature (Sentencing Act, s 54A).
The alternative charge to Count 1, manslaughter (ss 18(1)(b) and 24 of the Crimes Act) carries a maximum penalty of 25 years' imprisonment, with no standard non-parole period.
Count 2, assault with intent to rob, whilst in company (s 97(1) of the Crimes Act), carries a maximum penalty of 20 years' imprisonment with no standard non-parole period.
Count 3, break and enter with intent to commit serious indictable offence of stealing in circumstances of aggravation, being in company (s 113(2) of the Crimes Act) carries a maximum penalty of 14 years' imprisonment, with no standard non-parole period.
Count 4, break and enter, and commit serious indictable offence of assault of Robyn Bradley occasioning actual bodily harm, in circumstances of aggravation, being in company (s 112(2) of the Crimes Act) carries a maximum penalty of 20 years' imprisonment with a standard non-parole period of 5 years (Sentencing Act, s 54A).
Both the maximum penalty and the standard non-parole period are important statutory guideposts which need to be kept in mind when I consider each of the factors relevant to the sentencing task, assess their significance and then determine the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (per McHugh J).
Both murder and manslaughter involve the taking of human life and any sentence must reflect the profound seriousness of such offences in light of the maximum penalties prescribed by our parliament on behalf of our community. In this case, the life of Luke Lembryk was taken. The value the community places upon the preservation of human life is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case and the particular circumstances of each offender.
As to sentences for manslaughter, as Spigelman CJ stated in R v Forbes [2005] NSWCCA 377 at [133]-[134]: "[M]anslaughter is almost unique in its protean character as an offence."
It is also important to note that although manslaughter offences can be characterised in different ways, the degree of variation within any such category is generally also over a very wide range. Matters of fact and degree are of great significance in relation to manslaughter offences.
As a preliminary matter, I note that in the course of this judgment, there is necessarily some repetition as the judgment deals with three offenders.

[8]

Factual findings - Ms Price

In 2019, Ms Price was aged 33, single, and living in Sydney with her daughter. She was friends with Ms Rizk. She did not know Mr Rahim or Mr Taufahema. Whilst she knew Mr Nehme, they were not close friends. Rather, Mr Nehme and Ms Rizk were closer friends.
Ms Price met Mr Lembryk via a dating application in late August 2019. She was with her friend SG. The two women spent some time with Mr Lembryk at his home on the night of 24-25 August 2019. Ms Price observed Mr Lembryk to have a significant sum of money in his bedroom as well as a substantial quantity of cocaine. SG estimated the cash to be between $10,000 and $20,000, and the cocaine to be about a golf ball size (the biggest amount SG had ever seen in her recreational use over that year). I accept the evidence of SG and find that on 25 August 2019, Ms Price observed that Mr Lembryk had up to $20,000 of cash and a large amount of cocaine.
Ms Price was desperate for money, especially in the days leading up to 7 December 2019. Her finances were so poor she was about to be evicted and debtor action was about to be taken in relation to other outstanding bills. I accept the evidence of SG that Ms Price said to her that she wanted to "do [the deceased] over" following her observations of the cash and drugs in August. I also find that Ms Price had mentioned this idea to others on a subsequent occasion in SG's presence at Ms Rizk's house. I am unable to determine when this occasion occurred, but I accept that it was at the latest, early November. Further, whilst I accept the evidence of SG that she regarded these comments as banter, I also accept that Ms Price proposed to SG that she could be used as "bait" in the context of her idea of "doing over" the deceased. Whilst it was submitted on Ms Price's behalf that the "bait" idea was rather in the context of obtaining cocaine, I reject that submission in light of a close analysis of the evidence of SG in the context of other evidence.
I have had regard to my assessment of the way in which SG gave evidence. SG spoke in a calm and credible manner, and readily acknowledged when she could not remember certain things. Even though she had undertaken electro-convulsive therapy in 2016 or 2017 and stated that her memory was "vague at the best of times", it is clear that she remembered verifiable details about the deceased's house, an incident involving Ms Price's car side mirror, and her evidence was largely consistent with the objective telephone download evidence. Even if her recollection as to the timing of certain events was not precise, I am satisfied beyond reasonable doubt that her evidence was reliable as to the substance of what occurred and what was said.
Even if, up to early November, the idea of "doing [the deceased] over" was regarded as "banter" by SG, in the context of the evidence as a whole, I find that this idea had developed into a potentially viable idea in Ms Price's mind to obtain money by criminal means prior to December 2019. However, I am not of the view that Ms Price was the "instigator" of the offending that night - the position is more nuanced. The notion of instigation implies some form of initiation. This does not quite capture Ms Price's role.
Ms Price is a person without criminal convictions, who has never been involved in an offence of violence. Prior to Ms Price and Mr Nehme meeting on 6 December 2019, it is apparent that Mr Nehme was already planning to conduct some criminal activity, the details of which had not been finally determined. As early as 7:21pm, Mr Nehme indicated he was prepared to be involved in some criminal activity associated with Marrickville, and at 9:12pm he texted Mr Taufahema to come to the city, again apparently in relation to some criminal activity, but Mr Taufahema had no transport. By 10:39pm, Mr Nehme was at Ms Rizk's house. His attendance at Ms Rizk's house had nothing to do with Ms Price. By 11:38pm, Ms Price had arrived at Ms Rizk's house. I accept it is around that point that Ms Price revealed the idea and information involving the deceased to Mr Nehme. In other words, whilst the Condell Park job was Ms Price's idea, Mr Nehme was already looking for a job that night. I agree that it was this chance encounter that led to the joint criminal enterprise.
From that point, I find that Ms Price was invested in the plan proceeding. She was present when Mr Nehme recruited men by telephone to assist in the job and offered to assist by driving to pick up Mr Taufahema.
She was aware that the robbery was going to be committed in the very early hours of the morning, given the time she made the proposal to Mr Nehme and his clear urgency in proceeding to make arrangements to carry it out.
Ms Price provided Mr Nehme with essential information to assist him in carrying out the robbery, including the address at Condell Park, the likely persons in the house (the deceased and, who she believed to be, his father), the amount of money likely to be in the house, the layout of the house and the likely location of the money.
Given that Ms Price had a clear interest in how her proposal would be carried out, and that she can be heard in the background of calls around the time, I accept that Ms Price was in close proximity to Mr Nehme when he made his call to Mr Rahim and said: "I've got my thing taped to me so I'm ready". Her ongoing close interest is also shown by Mr Nehme dialling Ms Price's number at 22 minutes past midnight while they were still together at Rockdale, in order that they could have each other's number should they need to contact each other about the job. Further, Ms Price continued to be available to Mr Nehme after he left to travel to Condell Park to carry out the planned robbery. Indeed, she initiated a phone call prior to the co-offenders' entry to the residence to enquire about how the offending was progressing. During this call, she provided assistance to Mr Nehme as to which particular villa was the deceased's and how to enter it.
She knew Mr Nehme was not acting alone. Further, she initiated a further phone call after the commission of the offences to enquire as to the success of the job.
The Crown pointed to her "complete absence of any surprise" expressed by her in that subsequent call in response to Mr Nehme's statements that "we thinged him" and that "my mate […] stabbed him". It is submitted by the Crown that the combination of the evidence of Ms Price being in close proximity to the phone calls between Mr Nehme and Mr Rahim (which included: "I can't take my shit in, on the bike" and "I've already got my thing taped to me so I'm ready"), the overwhelming inference that Ms Price would have heard those representations by Mr Nehme, combined with her lack of reaction as indicated above, is such that the Court would be well satisfied to the requisite degree that she was aware a bladed weapon was being taken into the premises.
I put little weight on Ms Price's lack of reaction in the phone call with Mr Nehme. This is because, importantly, and as highlighted on her behalf, Ms Price initiated two further phone calls later on 7 December 2019, at 2:41pm and 6:34pm. It is clear from those two phone calls that Ms Price did not advert to any concern about any violent crime. I infer from all the circumstances that she did not appreciate at this point that anyone had been seriously hurt. The 2:41pm call concerned Ms Price trying to locate a SIM card and a phone belonging to Ms Rizk. The focus of the 6.34pm call was again attempting to locate this phone and SIM card, and commenced as follows: "[Ms] Price (Background), 'With that other cunt.' [Mr] Nehme, 'Yes?' [Ms] Price, 'Joey?' [Mr] Nehme, 'Yes.' [Ms] Price, 'Where are you?' [Mr] Nehme, 'You know you caused me a lot of shit?' [Ms] Price, 'Caused you a lot of shit?' [Mr] Nehme, 'Yea.' [Ms] Price, 'How have I?' [Mr] Nehme, 'I'll speak to you when I see you.' [Ms] Price, 'Listen.' [Mr] Nehme, 'Yea.' [Ms] Price, 'Linda needs that phone.' [Mr] Nehme, 'What fuckin' phone? The phone's gone, bro. She's got another one.' [etc]"
Even though very little weight can be given to a self-serving statement made to a third party, my conclusion accords with what was said in the psychological report prepared by Dr Gumbert, where it was recorded that Ms Price did not believe Mr Nehme's account in relation to stabbing someone, and thought he was joking as he seemed to be laughing while discussing it.
However, leaving to one side the lack of reaction as detailed above, I am nevertheless satisfied, beyond reasonable doubt, especially taking into account the matters in [39] above, that Ms Price was aware Mr Nehme took a bladed weapon into the premises.

[9]

Count 1 - Manslaughter

My assessment as to Ms Price's contemplation or foresight that an objectively unlawful and dangerous act, which might cause serious injury to Mr Lembryk and/or any other occupant, is informed by the jury's verdict of guilty to Count 2 (party to a joint criminal enterprise to assault the deceased with an intention of robbing him in company), such that she necessarily contemplated the use of the threat of force. It is also informed by the following: 1. Ms Price provided the plan which underpinned the joint criminal enterprise, and she was aware the agreed robbery would be undertaken in the early hours of the morning. She was therefore aware of the likelihood of one or more people being present at the house (including, who she believed to be, the deceased's father), and that the co-offenders would likely meet resistance and, thus, there was a possibility of engaging in actual force or violence to carry out the enterprise; 2. she was aware of the amount of money the deceased was likely to have, as well as cocaine, and she must have contemplated there may be significant resistance if they were at home and woken; 3. she was aware that Mr Nehme was recruiting others from the calls he made, including the call to Mr Rahim where he spoke of Mr Taufahema and his need for him in case "he's got boys or something and we get fucked up", and later from Mr Nehme whispering to others prior to entering the house; and 4. she provided further information to Mr Nehme about the relevant premises at about 2:35am, shortly before the stabbing occurred.
I accept that although Ms Price participated in the joint criminal enterprise whilst contemplating the possibility of the unlawful and dangerous act, she neither intended nor desired such an outcome, nor did she advocate for such an outcome.
I also note the last-minute nature of the venture is shown by the joint criminal enterprise being formed at some point between 11:38pm and 12:08am, with Mr Nehme leaving the premises at Rockdale by about 12:47am.
The violence ultimately engaged in involved the infliction of five stab wounds, one of which led to the deceased's death, and an incised wound. The violence was such that one of the stab wounds was likely inflicted during the deceased's attempts to protect his face or trunk.
The wounds were inflicted in the deceased's home, in the early hours of the morning and in limited light. These factors, together with the declaration to his mother, "I'm going to die mum. I'm going to die", would have been terrifying for the deceased.
Ms Price expressed disappointment in her call to Mr Nehme at 4:23am that no money was obtained. It can also be noted, however, that all calls made by Ms Price were made using her own telephone, registered with her personal details.
I note that whilst there was some limited level of planning for the robbery (engagement by Mr Nehme of a number of men, ongoing information provided by Ms Price, and Mr Nehme attending the premises armed with a bladed weapon), this does not constitute a statutory matter of aggravation under s 21A(2)(n) of the Sentencing Act for the offence of manslaughter: see R v Tabbah [2019] NSWCCA 324 at [83].
In relation to the count of manslaughter, the following statutory aggravating factors apply, albeit, given this particular sentencing exercise, including the other charges for which Ms Price is to be sentenced, the impact on the final sentence will be slight. The factors are: the use of a weapon, namely a knife (s 21A(2)(c)); and that the offences were committed in the home of the victim (s 21A(2)(eb)). I further note the need to be careful not to double count any of these factors in relation to the ultimate sentencing exercise.

[13]

Subjective and other matters - Ms Price

Ms Price has no previous criminal convictions, and this can properly be taken into account as a mitigating factor (Sentencing Act, s 21A(3)(e)) in the sentencing exercise. Given the serious nature of this offending, whilst this factor will attract some leniency, it will not be substantial.
From material tendered on her behalf, including Dr Gumbert's report, and a statement from Ms Price's mother, it can be seen that her background involved the following: 1. both of Ms Price's parents are of Gamilaraay Aboriginal ancestry. She was raised in the small Aboriginal community of Walhallow, outside Quirindi; 2. her mother was 15 years old when she became pregnant with Ms Price; 3. she stated she grew up feeling rejected by her father who favoured her brothers. He was violent to her and her mother. He left the family home when Ms Price was 17 years old. By contrast, Ms Price described a "great" relationship with her mother, who was like a "big sister". Given her age, her mother needed quite a lot of help and support from her own parents in raising her children. Ms Price reported that she had close relationships with her maternal grandparents and had spent around half of her childhood staying with them; 4. Ms Price left school in Year 11 in order to assist her mother, who did not cope well after Ms Price's father left, to care for her younger brothers. Her mother, while loving, was young and inexperienced. She said she regretted not taking Ms Price away from her father sooner than she did; 5. Ms Price was sexually assaulted during primary school by two men several times over a period of several months; and 6. she endured domestic violence as an adult.
Despite reporting mental health difficulties arising from her experiences of physical and sexual abuse, Ms Price has had very limited treatment concerning her mental health. She has recently been approved for the NSW Victims Services counselling scheme (which she indicated in her letter to the Court she has commenced) and has placed herself on a waitlist to see a Justice Health psychologist. She reported to Dr Gumbert that she would like to address her trauma and learn skills to better manage her emotions, as well as her panic attacks.
Ms Price reported to Dr Gumbert a history of drug and alcohol use, including a pattern of weekend binge-drinking and social cocaine use, but denied any dependency. Dr Gumbert opined that she doubted Ms Price's drug use was as unproblematic as she asserts, but even if true, her drug use was a significant contributor to the index offences because it "promote[d] antisocial associations for her, and undermined her judgment".
Dr Gumbert is of the view that this background significantly increased Ms Price's vulnerability to various adverse outcomes.
Ms Price submits, and I accept (to a point - which I clarify further below) that this background is relevant to her moral blameworthiness and reduces her moral culpability. As Simpson J stated (Bathurst CJ and Adamson J agreeing) in Millwood v R [2012] NSWCCA 2 at [69]: "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions."
Ms Price has also pointed to the following factors as an explanation for her offending: 1. her need for funds; 2. her poor "frame of mind" and her desire to "fit in" and "feel accepted"; 3. her mental health conditions. Dr Gumbert opines that Ms Price meets the criteria for diagnosis with Post-Traumatic Stress Disorder ("PTSD"), and also reports clinically significant symptoms of Major Depressive Disorder (recurrent) and Panic Disorder.
In my view, however, Ms Price's moral culpability is reduced only to a limited degree. It is apparent that whilst Ms Price had obvious difficulties in her childhood, including violence from her father and sexual abuse, she also had stable positive influences in her maternal grandparents and a loving mother.
I also accept, again only to a limited degree, that Ms Price's background and mental health conditions make her a less appropriate medium for general deterrence. In other words, these issues reduce the weight, albeit only to a limited degree, to be afforded to general deterrence in this case: Ryan v Regina [2017] NSWCCA 209 at [19].
My assessment of Ms Price's moral culpability takes into account that the basis for her liability is as a result of extended joint criminal enterprise and, as stated above, whilst she contemplated the possibility of the unlawful and dangerous act, she did not intend or desire such an outcome, nor did she advocate for such an outcome.

[17]

Onerous bail conditions and delay - Ms Price

Ms Price points to the onerous nature of her bail conditions which lasted for a period of about one year including, at various points (although not necessarily the whole time) not being able to leave her premises without her mother or stepfather, drink alcohol, or use certain social media applications, being subject to a curfew, and daily police reporting. Whilst this did result in some curtailment of her liberty, whether this amounts to a period of "quasi-custody" to be taken into account by way of backdating, is a matter for my discretion. Even though the conditions in this case would not inevitably be regarded as constituting quasi-custody, I am of the view that some limited backdating should occur because of the length of time Ms Price was subject to some of these conditions, in circumstances where that delay was not of Ms Price's making: R v Quinlan [2021] NSWCCA 284 at [87]-[100].
I also take into account the delay in the trial being heard to finality as a separate factor (causing Ms Price to be "in a state of uncertain suspense": R v Todd [1982] 2 NSWLR 517 at [519]-[520]) given most of the delay was caused by factors well outside Ms Price's control. It can be noted that the trial commenced originally before Bellew J and a jury on 21 February 2022, but the jury was discharged due to COVID issues on 10 March 2022. The trial then commenced before Button J and a jury on 20 February 2023, but the jury was discharged on 10 March 2023 due to the handing down of the High Court decision in Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5. The trial was then to start on 23 October 2023 with Mr Nehme, Mr Rahim, Ms Rizk and Mr Taufahema but problems outlined in R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 4) meant that the trial did not start. The trial eventually commenced, without Mr Nehme, on 8 November 2023. Finally, Ms Price's sentence proceedings, originally listed in April 2024, were vacated due to the Crown's unavailability.

[22]

Factual findings - Mr Rahim

Around 6 December 2019, Mr Rahim was desperate for money. When Mr Nehme contacted him at 12:17am on 7 December 2019, he agreed without hesitation to join the joint criminal enterprise, despite being at Penrith at the time of the call: "[Mr] Nehme: Listen, you wanna make money? I've got a job; let's go. Quick. [Mr] Rahim: Where is it? Where is it? [Mr] Nehme: Condell Park. [Mr] Rahim: Yea."
I find that his motive for being involved in the offence was largely motivated by his need for money. It is also apparent, however, that Mr Nehme and Mr Rahim had a pre-existing relationship and no doubt personal dynamics also had a part to play in explaining Mr Rahim's involvement in Mr Nehme's venture.
I accept that because of the hour the robbery was to take place and that it was at a home, Mr Rahim was aware of the likelihood that one or more persons would be present in the house. I further note that Mr Rahim clearly contemplated that someone was likely to be at the home at Condell Park, when he said to Mr Nehme at 1:07am: "If he's not home, well me and you will do it".
I accept that Mr Rahim learnt of the potential money involved as he was in a vehicle with Mr Taufahema, on the way to Condell Park, when Mr Nehme told Mr Taufahema: "[…] this guy; a girl told me a week ago, alright? […] she was at his house, yea […], listen; fifty grand in bundles of cash." There was also a period of approximately 42 minutes after Mr Rahim and Mr Taufahema arrived at Condell Park and joined Mr Nehme, prior to the entry to the residence, where I infer that details of the job were communicated by Mr Nehme in more detail. I find that Mr Rahim therefore appreciated the scale of the planned robbery and the possible resistance.
This is further reinforced by Mr Nehme's statements in the phone call with Mr Rahim, when he was persuading him to pick up Mr Taufahema despite the distance he had to travel, including: "I need him bro" and "what if he's got boys or something there and we get fucked up". This clearly shows that Mr Rahim was aware that Mr Nehme considered this to be a job which required numbers and, in particular, Mr Taufahema. Even though Mr Rahim had not met Mr Taufahema before this night, when he picked him up, he would have been able to see Mr Taufahema was a fit man of obvious physical strength. Further, Mr Rahim told police in his recorded interview that Mr Nehme had warned him about Mr Taufahema - "Joe told me […] to watch out for Bui […] Like, be careful".
An important contested factual matter is whether or not Mr Rahim was aware that Mr Nehme was taking a weapon into the planned robbery. I first note that I accept there is no evidence that Mr Rahim was aware that Mr Taufahema was armed. However, I am satisfied beyond reasonable doubt that Mr Rahim was aware that Mr Nehme was armed. I make this finding on the basis of the following circumstances in combination: 1. Mr Nehme told Mr Rahim: "I've already got my thing taped to me so I'm ready", having earlier told him: "I can't take my shit in, on the bike". Further, Mr Rahim said, in the recorded interview with police, that first statement was said in the context of Mr Nehme being taped "to do a deal. In case shit fucks up and in case, like, you know, a deal goes sour"; 2. in an earlier call, when discussing a different potential job, Mr Rahim and Mr Nehme discussed whether they "need anything" in addition to whether "boys" were needed; and 3. during his recorded interview with police, Mr Rahim was asked if there was any "reference to weapons being used" prior to the arrival at Condell Park, and his initial response was "Well, I guess, um, that it's taped to me but I don't know what was taped to him". Mr Rahim knew "he doesn't have a gun" and "I know he, I know he, he likes knives and whatnot but […]." Whilst Mr Rahim went on to state that he didn't think something like that would be taped to him, Mr Rahim also said that he had forgotten Mr Nehme had even said that and "even after hearing it, it was probably one of those comments where I just sort of, let slide". In light of all of the evidence, I regard Mr Rahim's initial response, relating to his knowledge of Mr Nehme's fondness for knives, a more accurate reflection of his understanding.
I further find that Mr Rahim was aware that Mr Taufahema disguised his face with a black covering and sunglasses prior to getting out of the vehicle. Not only did he tell police this, a pair of sunglasses were found at the crime scene which did not belong to the occupants.
Mr Rahim was clearly at the scene (albeit not inside the house), given the footage capture by the CCTV camera from the neighbouring property, which showed three people running away from the general vicinity of the address (one first then two together) and then Mr Rahim driving off in his vehicle with his headlights off. I accept that the first man seen running was Mr Rahim, which indicates he was positioned somewhere between the exterior of the residence and outside his vehicle.

[24]

Count 1 - Manslaughter

As with Ms Price, my assessment as to Mr Rahim's foresight that an objectively unlawful and dangerous act, which might cause serious injury to the deceased, is informed by the jury's verdict of guilty to Count 2 (party to a joint criminal enterprise to assault the deceased with the intention of robbing him in company), such that he necessarily contemplated the use of the threat of force. It is also informed by the following: 1. Mr Rahim was aware that Mr Nehme was carrying a weapon (as set out above at [96]); 2. Mr Rahim was aware that Mr Nehme was recruiting Mr Taufahema and was insistent upon him being collected from a very inconvenient location and brought to the job. He thus became aware of the need for not only an extra man, but a man of particular strength and build (as set out above).
Mr Rahim played a critical role in the execution of the agreed enterprise. He transported Mr Taufahema to and from the scene. At the scene, he acted as a lookout, and stood outside ready and willing to assist as required. In his recorded interview with the police, Mr Rahim stated he was there to "make sure everyone … does their part […] in the deal" and "just to oversee things".
The violence ultimately engaged in involved the infliction of five stab wounds, one of which led to the deceased's death, and an incised wound. The violence was such that one of the stab wounds was likely inflicted during the deceased's attempts to protect his face or trunk.
The wounds were inflicted in the deceased's home, in the early hours of the morning and in limited light. These factors, together with the declaration to his mother "I'm going to die Mum. I'm going to die", would have been terrifying for the deceased.
There was some level of planning involved, albeit Mr Rahim's role in this criminal venture only commenced at 17 minutes past midnight. On the other hand, his willingness to be involved was unconditional and immediate.
The statutory aggravating factors set out for Ms Price also apply in relation to Mr Rahim. In addition, the offences were committed while Mr Rahim was on conditional liberty in relation to an offence: Sentencing Act, s 21A(2)(j). He was subject to both good behaviour bonds and Community Correction Orders for offences of drive vehicle with illicit drug and contravene prohibition/restriction in apprehended domestic violence orders.
I note that Mr Rahim has a record of previous convictions dating back to 2009, and the offences include driving offences, drug and property offences, goods in custody, as well as contravention of apprehended violence order offences. This is not the first time he has been in custody. I note that he has committed a number of custodial infractions. His criminal record disentitles him to leniency. I also give slightly more weight to considerations of personal deterrence and the protection of the community than would otherwise be the case.

[27]

Count 4 - break and enter and commit serious indictable offence of assault of Robyn Bradley occasioning actual bodily harm circumstances of aggravation being in company

The Crown submitted that Counts 3 and 4 share the offence of aggravated break and enter (with different elements in relation to the intent/offence committed). The commission of a break and enter offence during which the manslaughter offence was committed is relevant to totality. The intention to steal of Count 3 is reflected in Counts 1 and 2.
As to Count 3, the serious indictable offence of stealing is less serious than many such offences encompassed by the provision. Apart from the use of gloves, the offence involved limited planning and was executed in an unsophisticated manner.
Mr Rahim's role was limited as noted above, albeit unlike Ms Price, he was at the scene, having transported Mr Taufahema, and was a critical resource for the enterprise, standing outside as a resource as required.
It is submitted by the Crown, and I accept, that there needs to be some partial accumulation in relation to Count 4. It is an objectively serious offence and committed during the course of a robbery. Ms Bradley was a separate victim to the deceased and was in a weakened state.
It can again be observed that the serious indictable offence in this count (of assault occasioning actual bodily harm) is less serious than many such offences encompassed by this provision. Again, the offence involved limited planning and was executed in unsophisticated circumstances. Ms Bradley, the victim, was not the target of the offenders, but the assault was an incident of them leaving the scene.
Whilst the assault had a serious effect on Ms Bradley, and would have been terrifying and painful given her weakened state, the actual bodily harm fell at the bottom end of the spectrum for such an offence. The hospital records note that there were no cuts or bleeding. She sustained several minor scratches to her chest and arms, with mild left shoulder pain and lower limb pain. She was able to walk normally pain free, and could move her arms with minimal pain.

[28]

Subjective and other matters

Details of Mr Rahim's background have been provided in Dr Furst's report and also in an affidavit prepared by his mother.
Mr Rahim was born in Turkey in March 1990, where his family had settled as refugees. His family are of Kurdish descent. He has two older brothers and a younger sister. His father was enlisted in the Iraq armed forces during the Iran-Iraq war. His father went AWOL (absent without leave) to avoid being killed in the conflict, but he was subsequently captured and imprisoned. His father escaped custody where he fled to Turkey with his wife and Mr Rahim's two older brothers.
They moved to Australia in 1992, settling in Auburn. He was a troublesome student and often disruptive in class. He attended a number of different schools. He was referred to a number of counsellors including one from Mission Australia, who allegedly sexually assaulted Mr Rahim.
His father was very strict and because of the offender's continued disruptive behaviour in school and other family matters the family relocated to Iraq in 2004. This was during the early stages of the Iraq War. The family remained in Iraq until 2008. The offender attended some schooling in Iraq but only up to Year 8 equivalent. He otherwise worked in family businesses.
Mr Rahim recounted exposure to significant violence and disruption in this period and in particular witnessing a suicide bombing as a result of which he was hit by shrapnel and suffered a burst eardrum. He saw others with gruesome injuries when he attended hospital.
The family moved back to Australia on learning of Mr Rahim's intense longing to return. Upon his return, he failed to gain entry to the Australian Armed Forces because of his lack of educational attainment. This demoralised Mr Rahim.
He turned to drug use and supply, initially cannabis then cocaine, and also ice and heroin. He had started to used cannabis from around 13 years old as well as ecstasy and hashish in the year before returning from Iraq. He continued to use drugs on his return to Australia and started to come into contact with the criminal justice system.
He claims to have been shot in the leg in 2011 as a result of his drug dealing. He had surgery on his leg to repair the damage. Between 2014 and 2018, he was in lawful employment, but took up drugs again towards the end of 2017. By the time of offending, he was using between 1.5 and 2 grams of methylamphetamine ("ice") per day.
Whilst Dr Furst records that Mr Rahim states he was diagnosed with schizophrenia or bipolar disorder around 2012 for which he allegedly received antipsychotic medication, he stopped using that medication because of side effects. I do not accept this was an accurate diagnosis. Indeed, Dr Furst opines: "His psychological/psychiatric symptoms in 2012, and thereafter, were probably mood-related and/or trauma-related anxiety and re-experiencing phenomena, with associated affective/mood dysregulation and associated drug use, which is unsurprising given the apparent severe trauma he experienced in 2003 when purportedly sexually abused; his life-threatening traumatic experiences in Iraq between 2004 and 2008; and his life-threatening trauma of being shot in 2011 at Lansvale."
Dr Furst further reports that Mr Rahim was admitted to a psychiatric hospital in 2009 or 2010 as a consequence of his mental health problems at the time.
In 2019, he was living with his partner in Auburn. He claims they had a disagreement in which she said he was not coming home, and at that time he was called by Mr Nehme with the job proposal.
Dr Furst opines that Mr Rahim meets the criteria for diagnoses of PTSD and Substance Use Disorder (cocaine, cannabis, methylamphetamine). Dr Furst further claims that there is a causative link between his PTSD, his addictive disorder and the offending, the substance use disorder being a maladaptive means of coping with his anxiety, stress, trauma, negative life events and residual symptoms of PTSD. He stated: "That pattern of drug use, anxiety and mood instability continued over the following years, including the period of his offending in December 2019."
I accept that Mr Rahim had a drug addiction. I accept that this, in itself, cannot be regarded as a matter of mitigation: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [273]-[274] (per Wood CJ at CL). However, I can (and have) taken his addiction into account in relation to the objective criminality of the offence, in that his need for money to fund the addiction underpins, at least, in part, the alacrity with which Mr Rahim accepted Mr Nehme's offer of the job. Further, it is also relevant to his subjective circumstances. I accept the opinion of Dr Furst that his drug addiction was a maladaptive means of coping with mental health issues, as well as negative life events and residual symptoms of PTSD.
It is apparent that Mr Rahim's behavioural difficulties started young, despite having a functional family unit with his siblings going on to succeed in life. This is not a situation as identified by Simpson J in Millwood, or more recently in R v MJ [2023] NSWCCA 306 at [5], where her Honour acknowledged the significance of a childhood or adolescence of profound disadvantage which may have had an inhibitory effect on the development of values or the acquisition of a moral compass.
However, I accept that, as well as mental health difficulties, he also suffered incidents of trauma such that he developed PTSD. This arose from the experience of being near a suicide bomber and its aftermath, as well as being sexually assaulted which are matters identified by Dr Furst. He also has underlying behavioural and mental health difficulties. His education was disrupted. In Mr Rahim's case, it is this combination of factors which have underpinned, in part, this serious offending.
I find that these factors, in combination, reduce his moral culpability to a limited extent. I make this limited finding noting his proven ability to hold down legitimate employment between 2014 and 2018, and lack of any offending between 2014 and 2017, which indicates he has had an ability to live lawfully and without serious drug problems for a significant time. I also take into account that the basis for Mr Rahim's liability is as a result of extended joint criminal enterprise. Further, that whilst he contemplated the possibility of the lawful and dangerous act, he did not intend or desire such an outcome and nor did he advocate for such an outcome.
I note, too, that his parents and siblings remain supportive, and his family has arranged employment on his release. Mr Rahim acknowledges he requires treatment if he is to live a crime free life in the future. These issues clearly have implications for his rehabilitation prospects which I will consider further below.

[34]

Discount

Mr Rahim argues that he is entitled to a 25% discount on sentence in relation to the offence of manslaughter given an offer to plead to manslaughter was recorded on a Case Conference Certificate on 22 October 2020 as part of the Early Appropriate Guilty Plea scheme.
The Crown states that no such discount is available because the offer was made before the Crown case was recast in relation to the count of murder (that is, recast as based on joint criminal enterprise or extended joint criminal enterprise, rather than constructive murder) following the High Court decision of Mitchell. The Crown contends that the offer by Mr Rahim should have been renewed following the change in accordance with an email inviting the then accused to make any further submissions before the finalisation of the indictment.
Section 25E(1) of the Sentencing Act provides that: 25E Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made (1) Discount where offer not accepted In determining the sentence for an offence, the court is to apply a sentencing discount in accordance with this section if - (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and (c) the offer was not accepted by the prosecutor, and (d) the offer was not subsequently withdrawn, and (e) the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence. For the purposes of this subsection, an offence is reasonably equivalent to a different offence if - (a) the facts of the offence are capable of constituting the different offence, and (b) the maximum penalty for the offence is the same or less than the different offence. […]
It is conceded by the Crown that all the requirements of that section are satisfied except subs (1)(d) - in that they argue that the failure to renew or confirm the offer means the offer made on 22 October 2020 should be regarded as having been "withdrawn".
I do not agree that a failure to confirm an earlier offer amounts to a withdrawal of the offer. In my view, such an interpretation does not accord with the words of the section, nor does it promote the purpose or object underlying the introduction of these measures: Interpretation Act 1987 (NSW), s 33.
Whilst under the common law it appears that an offer which was not accepted by the Crown was deemed to have been withdrawn: see, for example, the discussion of authorities in R v Tailford [2021] NSWSC 248, I am not of the view that the words of s 25E(1)(d), "the offer was not subsequently withdrawn", naturally accommodate a "deemed withdrawal".
Even though there is no direct authority on this point I note the following authorities provide some assistance. First, it is of course now clear from Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [36] that manslaughter is a "different offence" to that of murder (the charge on the indictment) within the meaning of s 25E(1)(b).
Although Black did not deal with the current issue, there are some illuminating statements in relation to s 25E. At [38], Simpson JA stated: "[…] An early offer of the plea of guilty to the very charge for which the offender ultimately stands to be sentenced merits reduction as prescribed by subs (3) of s 25E (depending on the timing of the offer of the plea)."
As further stated by Simpson JA at [41]; "The discounts prescribed in s 25E(3) operate and are intended to operate as an incentive to offenders to offer realistic pleas of guilty. […]"
Further, I respectfully agree with Davies J in R v Steele [2024] NSWSC 214 at [45], that s 25E is concerned with the "offence" and not its basis. In my view, it makes no difference that the murder count had been put on a different basis when the offer to plead to manslaughter was made.
I find that Mr Rahim is entitled to a notional discount of 25% on the indicative sentence for manslaughter on the basis of his earlier offer to plead to manslaughter.

[38]

Factual Findings - Mr Taufahema

At trial, the Crown case was that either, or both, of Mr Taufahema and/or Mr Nehme were directly responsible for causing the wounds including the fatal wound to the deceased (that is, physically thrusting the knife that caused the fatal wound).
I cannot be satisfied, beyond reasonable doubt, that Mr Taufahema was the person who inflicted the wounds including the fatal stab wound.
The Crown contends, in these circumstances, I would at least be satisfied that at the point where the two males were inside the dwelling, the joint criminal enterprise had crystallised into an agreement to inflict grievous bodily harm upon the resistant Mr Lembryk in order to carry out the enterprise of robbing him of money. In the alternative, the basis for liability by virtue of the verdict is that Mr Taufahema contemplated or foresaw the possibility that in carrying out the joint criminal enterprise a party might intentionally inflict grievous bodily harm and he continued to participate with that foresight.
On any view of the evidence, the two offenders, Mr Nehme and Mr Taufahema, were inside the dwelling for a period of only about 60 to 90 seconds, Mr Taufahema having entered via the living room window. A bloodied knife blade, missing its handle, was found in the living room. They ran out together. Mr Lembryk's dying utterance to Constable Bonorchris was: "I'm dying. They've stabbed me", from which the compelling inference flows that he was aware of two people at the time he was stabbed. Mr Lembryk's blood was found on Mr Taufahema's shoes. After Mr Lembryk was stabbed, both offenders assaulted Ms Bradley. In these circumstances, whilst it seems likely that there was a crystallised agreement to inflict grievous bodily harm at the point they came across Mr Lembryk, I cannot make that finding beyond reasonable doubt. In accordance with the jury verdict, however, it is clear that Mr Taufahema contemplated or foresaw the possibility that in carrying out the joint criminal enterprise a party might intentionally inflict grievous bodily harm and continued to participate with that foresight. I note at this point, in the particular circumstances of this case, given the short length of the incident, whether or not there was a crystallised agreement makes little difference to the overall assessment of culpability.
I find that Mr Taufahema would have anticipated resistance from the occupants of the home and, therefore, the possibility that grievous bodily harm might be intentionally inflicted, given:

the hour of the early morning;
the limited lighting;
they were entering an unknown man's home, with the information that there was a second man living there;
there was a period of about 42 minutes after Mr Rahim and Mr Taufahema joined Mr Nehme at Condell Park, and before entering the home, during which time I infer that details given to Mr Nehme by Ms Price were passed on to the two men, especially given when the plan was first discussed on the intercepted phone call Mr Taufahema stated: "[…] I'll talk to you when I get there";
I further find that Mr Taufahema came to learn that Mr Nehme was armed with a bladed weapon prior to entering the house. My finding is based on a combination of factors: 1. the matters set out above in relation to Ms Price and Mr Rahim, in relation to Mr Nehme being armed with a bladed weapon; 2. the 42 minute period where details would have been exchanged; 3. Mr Taufahema had been brought into the enterprise specifically by Mr Nehme; and 4. Mr Nehme had waited for Mr Taufahema to arrive. In all the circumstances, it is not reasonable to find that Mr Taufahema would have been left in the dark as to this aspect of the venture;
the plan was to steal a large amount of money. Mr Taufahema was told by Mr Nehme that he had been told by a "girl […] a week ago" that there was "[…] fifty grand in bundles of cash";
Mr Taufahema would have observed from outside the premises that people were inside, given the televisions were on in both bedrooms (emanating both light and sound), there was a car parked in the driveway of the villa, and the bedroom facing onto the main driveway had an open window; and
Mr Taufahema was also aware that Mr Nehme had recruited himself and Mr Rahim to carry out the enterprise, and that Mr Nehme waited for them, indicating that this was a multi-person undertaking.

As with the other offenders, Mr Taufahema was motivated by the need for money. This is evidenced by the phone call at 6:07pm on 6 December 2019 in which he said to Mr Nehme "Let's go bro, where the fuck have you been bro", and when Mr Nehme said: "I need money bro; I'm broke", Mr Taufahema agrees, saying "Yes man. Fuck".
Mr Taufahema was clearly a ready resource for Mr Nehme, given the proposal was communicated to him by Mr Nehme, texting him: "Job answer now", and all he needed was transport. It is also clear that Mr Nehme and Mr Taufahema had been looking for a criminal opportunity earlier that night, with Mr Nehme as the organiser.

[40]

Count 1 - Murder

It is clear that Mr Taufahema played a very significant role in the murder of Mr Lembryk, albeit that the venture which ultimately led to the murder was organised by Mr Nehme. Mr Nehme did not embark upon entry to the house until Mr Taufahema arrived. Mr Taufahema was a major participant in the enterprise. Given the blood on his shoes and the sunglasses found in the living room where the stabbing occurred, if not directly responsible for the stabbing, Mr Taufahema was certainly very close to the deceased and the injuries being inflicted upon him, and he and Mr Nehme left together.
Mr Taufahema broke into and entered the home of a complete stranger in the early hours of the morning for the purposes of robbery, contemplating there would be people present, and contemplating, at the time of entry, that grievous bodily harm might intentionally be inflicted. He knew, prior to entry, that Mr Nehme had a bladed weapon. When confronted by the tall athletic Mr Lembryk, one of the men fatally stabbed him, and both men left together. After leaving, Mr Taufahema was taken by Mr Rahim to two separate locations where the three men met again.
As noted above, the assault upon Mr Lembryk was extremely violent. It involved the infliction of five stab wounds, one of which caused the deceased's death, and an incised wound. The violence was such that one of the stab wounds was likely inflicted during the deceased's attempts to protect his face or trunk.
I also note, however, that the incident involving the fatal wounding occurred within a period of about 60 to 90 seconds, and criminal liability has arisen because of the involvement in criminal activity in the home with the contemplation or foresight of (rather than intention or prior agreement of) someone being intentionally very seriously harmed. As dreadful and grave as it is, this does not fall into the most serious category of murder.
In relation to the count of murder, the statutory aggravating factors of the use of a weapon, namely a knife (s 21A(2)(c) of the Sentencing Act), and the offence was committed in the home of the victim (s 21A(2)(eb)), apply, albeit, given this particular sentencing exercise, including the other charges for which Mr Taufahema is to be sentenced, the impact on the final sentence will be moderate. In addition, the offender has a record of previous convictions, including serious personal violence offences (s 21A(2)(d)). Further, the offence was committed while the offender was on conditional liberty (s 21A(2)(j)) in that, he was subject to bail for a driving offence committed on 5 December 2019. I further note the need to be careful not to double count any of these factors in relation to the ultimate sentencing exercise.

[45]

Offences committed on 5 December 2019, 9 December 2019 and 10 February 2021

As noted, included amongst the material tendered by the Crown were sentencing remarks in relation to driving offences on 5 December 2019 (never licensed person drive vehicle on road, prior offence, and another driving offence later discontinued) and 9 December 2019 (exceed speed limit more than 45 km/h; never licensed person drive vehicle on road, prior offence; and police pursuit - not stop, drive recklessly). The latter offences were committed two days after the murder. In addition, material was tendered including remarks on sentence in relation to an offence committed in custody of assault law officer (not police officer) on 10 February 2021.
He has been in custody, bail refused since 9 December 2020. He had been given bail for the 5 December 2019 offences. He was bail refused on 9 December 2019 for the driving offences committed on that day, along with the 5 December 2019 driving offences, and the murder and related offences. He committed the 7 and 9 December 2019 offences whilst on bail for the 5 December 2019 driving offences.
On 30 January 2020, Mr Taufahema was sentenced for the 9 December 2019 driving offences to an aggregate sentence of 10 months, with a non-parole period of 7 months. In the course of sentencing him for this offending, the magistrate stated: "What we are left is a person who is not trained in the use of a motorcycle, riding that motorcycle in a pursuit situation, in a manner dangerous at speeds, at least on occasion, double the applicable speed limit in a residential zone at about 9am on a Monday morning in December. The objective seriousness was set as about mid-range. There is actual danger. There is potential danger. There is a record of someone who is a risk taker through his previous significant amount of driving matters on the record. There is a very strong need for general and specific deterrence and to protect the community, and I will proceed on that basis."
On 11 June 2020, he was sentenced for the 5 December 2019 offence. The court was informed he was already serving a sentence until July. In the course of being sentenced for this offence, the magistrate noted: "You have one of the worst records I have ever seen in my entire time on the bench. […] The law does apply to you, Mr Taufahema, be it driving or otherwise, and you need to understand if you do not have a driver's licence, that is it; you do not drive. […] You have been in custody on this matter since 9 December 2019, that will be taken into account. But, there is for me to send you and the rest of the community, this behaviour is not acceptable. You are sentenced to 9 months' imprisonment. It does carry with it a maximum penalty of 12 months. You are entitled to the full discount of 25 percent because of your early plea of guilty. The term commences on 9 December, ending on 8 July 2020. A non-parole period is set of six months and two days, making you eligible for release on parole subject to supervision today, 11 June 2020." (Emphasis Omitted.)
There was also a period of 12 months disqualification imposed.
It can be observed that the sentence for the 5 December 2019 driving offence was fully concurrent with the sentence for the 9 December 2019 driving offences.
The assault law officer offence was committed on 10 February 2021 following being told he was moving cells. Although he had been handcuffed, he swung punches at an officer, punching him in the left side of his jaw, and the officer sustained red marks to his face. After a severity appeal to the District Court heard on 14 July 2022 (having initially been sentenced in the Burwood Local Court on 6 May 2022 to 9 months' imprisonment commencing 6 May 2022 following a late plea of guilty to amended facts), Mr Taufahema's sentence was backdated to take into account the delay caused by COVID-19 from February 2022.

[47]

Dr Furst's report - 3 April 2024

Dr Furst provided a report, dated 3 April 2024. Dr Furst was provided with several documents relating to Mr Taufahema and his family, and he interviewed him by way of audio-visual link on 13 February 2024 for about one hour.
I accept the following from that report. Mr Taufahema is a 38 year old man who had been in an on-again, off-again relationship with Ms Tarrant. He had been living with his parents in Lidcombe in the earlier months of 2019 but ended up living "on the streets" for about six months preceding his arrest in December 2019. His mother still lives in Lidcombe. His father died about 2 years ago whilst Mr Taufahema was on remand.
Mr Taufahema was born in Tonga, and is one of 11 children, with 7 brothers and 3 sisters. One of his older brothers, Tevita, is deceased. Mr Taufahema was three years of age when he and his family migrated to Australia. He attended local public schools. He was expelled from one high school in Year 7, and after he moved to a different high school, he was expelled in Year 8. He was then sent to a behavioural school where he completed Years 9 and 10, gaining his School Certificate.
He came into contact with the criminal justice system a number of times as a juvenile for offences including assaults, robbery and violent offences. Dr Furst opines this is consistent with Mr Taufahema being conduct disordered. Dr Furst records that his siblings were also conduct disordered and prone to persistent criminal offending, and also had drug addiction issues.
His brother Tevita was fatally shot by police as a 17 year old when robbing a bar in Canley Heights, whilst armed, in September 2009. His oldest brothers, now around 47 and 44 years of age, served sentences with 7 year minimum terms between 2002 and 2009 for the manslaughter of Constable Glen McNally after a high-speed police pursuit in 2002.
One of his sisters served a prison sentence for robbery in company in the 2000s and went on to commit a number of further offences in the 2010s, most recently pleading guilty to assault with intent to rob and inflicting grievous bodily harm on a female victim whilst being armed with a brick, committed in 2017. She was sentenced for this offence in 2019.
Another brother was also arrested for armed robbery. A further brother pleaded guilty to three offences of armed robbery with a dangerous weapon, for which he was arrested in 2007.
Dr Furst stated: "His parents […] were not drug addicted or alcoholics and there was no apparent parental abuse or neglect in the family home. Nonetheless, the criminality and drug use of his older siblings undoubtedly exerted a negative influence on [Mr Taufahema] in his formative years, and he acknowledged aspiring to be like his older brothers. He said he was exposed to drugs in the family home from an early age, his older brothers and sisters also using drugs on a daily basis."
Dr Furst detailed how Mr Taufahema began to use drugs at an early age, including smoking cannabis from the age of 12, and regular use of heroin and "ice" (methylamphetamines) from the age of 14. He would use drugs in fairly large amounts (2 grams of each drug per day). Dr Furst stated that a number of his past offences as a teenager and as an adult, outlined in his criminal history, have been drug-related.
He has spent most of the last 20 years in custody, with ongoing drug use and conduct issues in custody, resulting in his management and segregation, currently in the High Risk Management Correctional Centre at Goulburn.
Dr Furst records that Mr Taufahema stated he "couldn't face a day straight" and described "needing drugs", consistent with dependence on both heroin and methylamphetamines.
He told Dr Furst he was seeking help and was considering entering a drug and alcohol rehabilitation centre in 2019, but that never eventuated.
Dr Furst stated that he was treated with methadone in his early 30s, continuing methadone when released from custody in the mid to late 2010s. He was prescribed Buprenorphine in 2017 and/or 2018 for his opiate dependence, being dosed on that medication at the Mt Druitt Polyclinic for a period and then at a chemist in St Mary's in 2018. He discontinued his Buprenorphine opiate substitution therapy around the latter months of 2018 and relapsed into using "ice" and heroin again daily, a pattern that continued throughout 2019, up to and including the time of the index offending.
He has been prescribed antidepressants in recent times in custody. He has completed the EQUIPS (Addiction) program on two or three occasions, both in this current period on remand and during prior periods of incarceration.
He has previously completed the Violent Offenders Treatment Program (VOTP) for 12 months, between 2017 and 2018, but told Dr Furst that he did not believe it helped him much. He would prefer to have individual counselling.
Dr Furst records that Mr Taufahema stated he had used both heroin and "ice" prior to the index offending, believing the victim to be a drug dealer with money in his house. He said it was a "robbery gone wrong". He maintained that he did not stab/kill the victim.
Dr Furst stated the following: "Mr Taufahema said he felt guilty about the victim's mother, Robyn Bradley […] as she died from cancer not long after the offending in question. He thinks he 'sped up her cancer' and contributed to her demise because of the offending actions of himself and his co-offenders. He said, 'I can't really sleep… [because of] what happened. I was there. I didn't try to stop anyone from doing it. I participated.'"
Dr Furst stated that Mr Taufahema has a lengthy history of conduct problems, emotional instability, low self-esteem, drug addiction, tendencies towards aggression and criminal offending, and long-standing emotional and interpersonal difficulties indicative of Anti-Social Personality Disorder. He also has substance use disorder (opiates, methylamphetamines).
Dr Furst noted the atypical aspect of his family of origin was the "apparent absence of severe childhood abuse or neglect". Whilst Dr Furst opined that this strongly suggested "a genetic basis for both his drug addiction and criminality/aggressive tendencies", this was not relied on by Mr Taufahema's counsel. On behalf of Mr Taufahema, the following was put: "[…] I think it is academic, even on Dr Furst's report in relation to those the activating factor is the exposure to traumatic events in childhood. It is quite clear that Mr Taufahema from a very young age was exposed to very serious criminality that is his older brother is engaging in criminality activity, his older brother is engaging in drug use, indeed his sister as well. In other words, there is this clear situation where drug use, violence, criminality was normalised for this young man. Indeed it was seen as a way of supporting the family and that was from a very early age. Then having commenced down that path Mr Taufahema was then placed in juvenile detention and subject to multiple sexual assaults."

[48]

Mr Taufahema's signed statements

Mr Taufahema elaborated on the harsh and onerous conditions of the Supermax prison at Goulburn. He stated: "Supermax is pure solitary confinement. […] Lock-ins are part and parcel of life in supermax. The main would be locked in possibly twice a month. In 2023, there were 161 lock-ins alone, nearly half of the year. […] There have been an additional 69 lock ins this year. […] I get access to an extremely small outdoor space for a couple of hours a day (if it is not a lock in), otherwise I am confined to my cell. The outdoor space is so small [-] If I put my arms out wide, I can touch the side walls. All my visits and phone contacts are subject to heavy scrutiny, many were refused even though I had good contact with them in the main prison. Property and buy-up items are restricted severely. I am not allowed any tinned food. I have no i[P]ad tablet access, unlike the main prison. There is a severe shortage of visit slots, which forces my family to book every few weeks via AVL. In a unit that fits almost 30 inmates, there is only 1 available sports yard. I can barely get a booking and even if I do, I only have one other person I can mix with. The yard session goes for an hour only. I am searched and wanded, forced to wear orange overalls, searched and wanded again. Every time I leave my cell, I am handcuffed and escorted by four officers. Phone calls are extremely limited. I get barely a few calls a week. Each call goes for 6 minutes. I cannot get original mail. All mail is photocopied and the original is shredded. Ther[e] are no proper educational courses, since supermax will not allow proper courses."
In a further statement, Mr Taufahema elaborated on his experiences of sexual abuse and sexual assault whilst in Juvenile Detention when he was 15 or 16 years old, in around 2000, at Cobham Youth Justice Centre.
He states that he was abused mainly by two people, a man and a woman, who were both social workers and not correctional officers. There were others, but those two people were the main ones. Mr Taufahema set out the details of the abuse he endured from each person in some detail, which included penetrative sexual acts. The sexual abuse and assault by the man occurred over a five month period, and by the woman, over the period of a month.
He indicated that both of these people were intimidating, told him what to do and he was scared of what they would to him if he did not. He still has flashbacks and nightmares about what happened to him at Cobham. He stated: "Reflecting on what happened to me, this is why I always get into fights, why I am here in supermax. I keep getting into fights. When I am in my cell I refuse to consent to strip searches where correctional officers [can insist on certain procedures]; I am not doing that. I understand they are doing their job and looking for drugs, but every time it happens it triggers something in me and I get flashback[s] of what happened to me. When I am [in] my cell, I find it difficult to follow instructions, because in my head I worry that someone is going to do something to me. I have been in other Juvenile Detention facilities. I was in Minda for a few overnight stays. There I was subjected to awful experiences where we were treated like we were worthless. The Officers were mean, and would swear at you, even though you were a little kid. Despite these experiences, I never experienced sexual abuse at Minda. Because of my experiences in Cobham, I have misused drugs as a way of coping. I did not want to be in a sober state because my mind would draw me back and it would remind me of what happened. Because of my experiences in Cobham, I would take any drug I could get my hands on to block out the memories of what happened to me. It also led to me being confused about my sexuality for a long period of time thereafter. As a result of these experiences, I have lodged a compensation claim with the assistance of [a firm of solicitors]. I initiated this claim 3-4 years ago and it is ongoing."

[49]

Ms Tarrant's statement of 15 June 2024

Ms Tarrant describes Mr Taufahema as her long term on and off partner, and friend, for 15 years. She has no criminal background, has worked all her life and comes from a middle-class working family.
She stated that Mr Taufahema was roughly in the middle out of the eleven children.
She described that when Mr Taufahema was off drugs, he was kind and sweet. He had worked as a labourer for a period of time. However, she had to leave him, in early 2019, after multiple failed attempts of him trying to quit drugs. She described that he was hearing voices, having psychotic episodes and wasn't sleeping for days. She remained in close contact with him right up until the day of the stabbing. She stated: "[…] On Friday 7/12/2019 I b[r]ought [Mr Taufahema] into my work at the Greater Western Aboriginal Health Service. We decided between each other he needed to go to rehab as his drug addiction was becoming dangerous and [his] mental health and physical health was deteriorating. He did a consult with [a particular named doctor] where we discussed trying to get him into a rehab ASAP. He organised some bloods and asked that I bring him back in on the Monday to see what we could organise for him. I then had to leave work that day because he was in no state to leave by himself. He was homeless at this time so I took him to housing at Mount Druitt. I [pleaded] that they get him urgent housing as he was homeless and in danger with his drug addiction that if he was left [out] on the street he might do something dangerous to get money to be able to get a hotel. She noted he kept falling over and that he was not [sic] in a bad state but she couldn't help right now even though he had been on the wait list for over 11 years. From there I took him to a friend's house and he begged me to stay with him that night but I had other commitments and assured him I would be back to take him back into the health facility on Monday. I never made it to the Monday to retrieve him as this happened. Since his incarceration, this is the first time since he was 12 he has been clean of drugs. […]"
Ms Tarrant continued to note that the "sweet, kind and caring" Mr Taufahema has returned since he has been (what she believes) drug free in custody.

[60]

Victim impact statement - relating to all offenders

In the course of the sentencing proceedings, the Court received a victim impact statement from the deceased's father, John Lembryk, who read his statement in court on behalf of the family.
Pursuant to s 30E(3) of the Sentencing Act, I consider that it is appropriate to take this statement into account in connection with the determination of punishment. I do so on the basis that the harmful impact on the family of Mr Lembryk is an aspect of the harm done to the community as a whole by the actions of the offenders.
John Lembryk stated how it was an impossible task to adequately describe the profound impact his son's death has had. He said that Luke was well known for his large frame and outgoing personality, but renowned for his incredible generosity and loyalty. He had very close friends with whom he shared life's triumphs and disappointments. His passing has left a gaping hole in their lives and a void never to be filled.
Luke was a lifeforce in his family, which was incredibly important to him. It would hurt him to know of the immense pain, sleepless nights and anxiety ridden days each of the family members have lived with for years since the murder. It would hurt him more that his mother would have spent her last days mourning the loss of her youngest son. Robyn battled her terminal illness for many years and deserved to be surrounded at the end by peace and love. Instead, her life ended consumed with grief.
John Lembryk outlined the harrowing nature of the drawn-out court process which has not allowed the family to put Luke's death into the recesses of their minds, only to be brought out on family gatherings. Rather, his senseless passing, and the attitudes of the offenders to his death, has been at the forefront of their minds each day.
John Lembryk's words were powerful and provided the Court with insight into who Luke was and the impact of his death on his family and friends. I am acutely conscious of the fact that neither words nor the imposition of a sentence can restore the loss of a loved one or assuage the grief caused to this family. But it is important that the impact of offenders' actions upon the victim's loved ones be recognised and never forgotten. On behalf of this Court, I extend my sympathies and sincere condolences to Luke's family.

At a glance

Court

Decision date

Before

Catchwords

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Catchwords

Judgment (64 paragraphs)

Legislation Cited (3)

Cases Cited (29)

Cited By (1)