R v Rajab; R v El Chami; R v B Allouche; R v E Allouche

Supreme Court of NSW|2017-05-30|Before: Fullerton J

Solicitors: Director of Public Prosecutions (Crown) Lawyers Corp (Rajab) Criminal Defence Group (El Chami) Pope & Spinks (B Allouche) Zahr Partners (E Allouche) File Number(s): 2015/2360632015/3167562015/3120112015/318012

The sentence proceedings

With the consent of all parties, the sentence proceedings were convened as a joint hearing. Although there is a body of evidence, comprised largely of the CCTV footage and the evidence of those people in neighbouring properties who heard the gunshots (evidence which was reproduced in each of the four statements of agreed facts tendered by the Crown and summarised in paragraphs [1] to [15] above), the use that the Crown makes of that evidence differs significantly between Mr Rajab's sentence proceedings and of of Mr B Allouche, Mr E Allouche and Mr El Chami sentence proceedings.
As the Crown made clear when the statements of facts specific to those three offenders were tendered, their presence at Salmon Park when the deceased was murdered (including the fact that the deceased arrived there in Mr E Allouche's car) was only relied upon by the Crown to prove their knowledge of the fact that the deceased was murdered by Mr Rajab, that fact being an element of the offences for which they were to be sentenced.
Although the evidence establishes that Mr Rajab arrived at Salmon Park armed with a loaded firearm which he discharged within seconds of his arrival first to shoot at the deceased wounding him in the leg and which he used again on following him further into the park before fatally shooting him in the neck as the sentence proceedings unfolded, the Crown did not invite a finding that Mr Rajab arrived armed with a loaded firearm with the intention of killing the deceased or inflicting grievous bodily harm. Neither did the Crown invite a finding that Mr Rajab arrived at Salmon Park armed with a loaded firearm with the intention of using it to shoot the deceased to wound him or that the other three offenders had any knowledge or expectation that Mr Rajab would be armed at all.
To ensure against the risk of the evidence in one sentence proceeding becoming evidence in any other proceeding in which that evidence is not tendered, I will deal first with the evidence and submissions about the evidence in the sentence proceedings as they relate to Mr Rajab.

The evidence relied upon by Mr Rajab

The evidence in Mr Rajab's case on sentence was voluminous. It comprised his affidavit dated 28 June 2017 (to which he exhibited an unsworn statement dated 24 May 2017) detailing his involvement in the murder.
Mr Rajab tendered testimonials from four of his close friends, being Bilal Baghdadi, Ghena Deeb, Omar ChouckChouck and Marwa Bechara, and testimonials from his older sister, Assama Skaf, and his brother, Mouhamed Rajab, and his cousins, Sarah Massoud, Linda Chami and Saja Rajab. A testimonial from his employer, Mouemin Nasser, dated 26 June 2017 was also tendered.
A reports from Mr John Machlin, clinical psychologist, dated 15 June 2017 and a report from Dr Antony Henderson, consultant forensic psychiatrist, dated 27 June 2017 were also tendered.
The Crown did not object to the tender of any of this material and did not cross-examine Mr Rajab on his affidavit.

Mr Rajab's evidence

In his evidence Mr Rajab said the deceased was well known in southwest Sydney as a "standover man / strongman" for the Hawchar family, extracting protection money from local businesses and other vulnerable people. He also said that he knew that the deceased had shot a person and that he was well known to possess firearms. He did not identify the source of this information or the identity of the person who was said to be shot.
Mr Rajab also said that some months prior to the events of 29 June 2015, the deceased had demanded money from his friend (Mohamad Aria) for drugs that the deceased had supplied. He said that when the drug debt was not paid the deceased arrived at his friend's house and made a further demand for payment. Mr Rajab said that when he intervened on his friend's behalf he became involved in a physical fight with the deceased. He said that the deceased eventually left his friend's house threatening that he would return. Fifteen minutes later he said that the deceased returned and discharged gunshots (in the air) from a car outside his friend's house. He said that police arrived 20 minutes later, and a few days later his friend's car was destroyed by fire.
Mr Rajab went on to say that from this time various people told him that the deceased was threatening retaliation because he had intervened on his friend's behalf, and that the deceased was also looking to him to repay the drug debt. The source of that information was not identified. He said that this made him fearful and anxious and that he felt even more vulnerable after he broke his leg at work.
Mr Rajab said that in the days prior to the shooting he was told that the deceased had demanded that he come to a park and meet him, failing which the deceased would come to his home and "hurt anyone that got in his way". The source of that information was not identified.
Given the deceased's reputation for violence and what he had been directly exposed to some weeks earlier when the deceased came to his friend's house, Mr Rajab said that he believed that the deceased would carry out those threats.
He said that he purchased a gun at about this time because he genuinely feared for his life. He did not identify the type of weapon he purchased and was not prepared to identify the person he purchased it from for fear of reprisals. No ballistics evidence was led on sentence identifying the weapon from the spent projectiles which were recovered from the body of the deceased and from the crime scene.
Mr Rajab said that he discussed his fears with Mr B Allouche, Mr E Allouche and Mr El Chami and that they offered to help him. He said that the meeting at Salmon Park was arranged for that purpose. He said that his friends agreed to meet with the deceased and to try to convince him to leave Mr Rajab alone and to look elsewhere for the money to meet the drug debt. He said that he agreed with them that he would not enter the park, but would watch their meeting with the deceased from a distance. He said that when he arrived at Salmon Park, it seemed to him that the deceased was being aggressive and shouting at his friends so he asked the driver of the Rav 4 to stop so that he could fire a shot in the direction of the deceased to scare him.
Mr Rajab went on to say: … I understand this was the wrong thing to do but I was in a bad way mentally. The situation was taking over my life. Plus, I felt uncomfortable about bringing my friends into it. I was concerned for their safety considering Mr Ayoub's prior violent behaviour and the way it seemed he was speaking to my friends. … As I approached the park, my heart was racing. I had seen Mr Ayoub who was standing some 25 metres away. I fired a shot from that distance. The shot was intended to be a warning shot. I was shocked that it hit him. We started to drive off but heard him continue shouting what sounded like more threats. I then exited the car with my intention of approaching Mr Ayoub to warn him to stay away from me, my family and my friends and that I wasn't going to put up with his threats. Mr Ayoub was moving away continuing to shout out threats. I fired some more shots to try and scare him into stop threatening us. He went towards a tree in the park and sat behind the tree. I approached him pointed the gun in his direction. I then walked around the tree to confront him. As I came face to face with him, he started screaming at me things like: "You fucking dog, I'm going to kill you. Watch and see." "Wallah I'm going to kill ya." "You're a kelb. You're a kelb. Watch and see." I'm going to get you and [your] family ya kelb." ["kelb" translates as "dog" in Lebanese] While he was screaming out the threats, I seen Ayoub go for his man-bag. This made me very nervous. I feared that he may have been reaching for a gun as he is well known to carry guns. I panicked and shot him again. I don't remember how many shots. I then turned around and took off. The whole incident was surreal. I remember the look of shock on the faces of my co-accused. I remember one of them screaming out to me not to shoot him. I remember crying as I pulled the trigger. I was genuinely scared to death of Mr Ayoub and what he could do to me and my family. I wanted the threats to stop. I wanted to stop living in fear. I did not want to get shot myself. I still can't believe I shot him. I wish I could have my time all over again. I am shattered and shocked that I am responsible for taking someone's life. And very shocked and sorry that I have taken Mr Ayoub's life and for loss to his family.

The balance of evidence in the offender's case

Mr Rajab's subjective circumstances, as detailed in the testimonials from his family, can be summarised as follows.
He was aged 22 at the time of the murder and 24 at the time of sentence. He was born in Sydney as the youngest of six children. His parents migrated to Australia from Lebanon before their first child was born.
The only entries on his criminal record are for a number of driving offences which were dealt with by way of a fine. Significantly, Mr Rajab has no antecedent criminal record for violence or for offending of any relevant kind.
In the testimonials from his older sister and older brother and in the history given to Mr Machlin and Dr Henderson it would appear that Mr Rajab had a happy and stable upbringing within a close immediate and extended family. He was described by his family members as a warm and family minded man.
He has a particularly close relationship with his parents being the last of his siblings to live at the family home. His parents do not enjoy good health. Mr Rajab has provided care for them and, until his remand, had responsibility for ensuring their attendance at medical appointments.
He reported to Mr Machlin that he performed badly throughout his schooling. Mr Machlin reported that the offender's self-assessment was that he was "slow". It would appear that he did not achieve even average standards of literacy or numeracy despite assistance from his siblings and remedial classes.
After some deferral of his schooling in Year 9, Mr Rajab completed Year 10 and commenced work in an excavation business. He was in Mr Nasser's employ at the time of his arrest. He described Mr Rajab as keen and eager to learn, reliable, punctual and a valuable member of a working team. In addressing Mr Rajab's character Mr Nasser said: Not once did he display any violent tendencies … I am quite shocked at the severity of this crime, however having known Mr Rajab and the person he truly is, I know the crime committed does not reflect on who he is as a person.
When viewed as a composite, the testimonials from his friends and family members attest to Mr Rajab's behaviour in being armed with a loaded gun as entirely out of character. They all treated the news of his involvement in the murder of the deceased with shock and disbelief. They also attest to Mr Rajab's expressed remorse and regret at having killed the deceased and their commitment to assist him on his ultimate release from custody.

The expert evidence

On assessment by Mr Machlin on 8 June 2017, Mr Rajab's reading was only partly functional with little fluency in even moderately complex language exercises.
Mr Machlin administered the Wechsler Adult Intelligence Scale - a clinical instrument used for assessing intelligence by providing a composite score for general intellectual ability across a range of testing domains. Mr Rajab's intellectual functioning was assessed by Mr Machlin to be in the extremely low range, and in the lowest two per cent of the population for his age group. Mr Machlin reported that Mr Rajab demonstrated a particular weakness in cognitive processing and that he returned very low scores in abstract reasoning skills in both verbal and non-verbal domains.
Dr Henderson described the results of a brief cognitive assessment of Mr Rajab which he performed on 19 June 2017 as including impaired attention and short-term memory with limited functional ability, suggesting that he suffered significant executive dysfunction. Dr Henderson was of the view that Mr Rajab had an intellectual disability which would satisfy a diagnosis for a neurodevelopmental disorder. Dr Henderson was provided with the results of Mr Machlin's testing which he regarded as consistent with his diagnosis.
Dr Henderson also diagnosed Mr Rajab as suffering from a post-traumatic stress disorder which, in his opinion, was the result of trauma sourced in events approximately one month prior to the murder where Mr Rajab was shot at and his family threatened.
Dr Henderson also reported that Mr Rajab demonstrated dissociative symptoms in the context of what Dr Henderson described as "overwhelming stress associated with the offending behaviour". He noted that individuals who suffer from an intellectual disability are more at risk of developing a post-traumatic stress disorder and of developing a dissociative disorder during repeated stressful episodes.
Although Dr Henderson was of the view that Mr Rajab's mental condition and disability supported a defence of substantial impairment to the murder charge, by his plea of guilty, self-evidently Mr Rajab did not seek to avail himself of that defence.
Consonant with Dr Henderson's analysis, Mr Machlin was also of the opinion that Mr Rajab's intellectual impairment compromised his ability to exercise sound judgment and to appropriately contemplate alternate actions. Dr Henderson considered that this contributed significantly to Mr Rajab's offending behaviour.
Both Mr Machlin and Dr Henderson were invited to express their opinion as to the extent of the offender's insights into his behaviour and, as a separate question, to express an opinion as to his prospects for rehabilitation.
Both experts report that Mr Rajab spontaneously expressed what they considered to be genuine remorse and regret for his actions and a recognition of the impact of his actions on the victim's family. Both experts also reported that the offender was at a loss to explain his offending behaviour (other than as the result of fear caused by what he perceived to be threats to his life and the life of his family) and that he had difficulty processing what he has done.
By application of different analyses, including Dr Henderson's assessment of Mr Rajab's risk of future violence utilising risk management tools, both experts concluded Mr Rajab to be at a low risk of future violence and that he had good rehabilitation prospects. Dr Henderson made that assessment on the basis that Mr Rajab does not have a history of violence or maladaptive behaviour, he has no substance abuse history or major mental illness and he continues to have the support of his family and friends.

The Crown's attitude to the material bearing upon Mr Rajab's mental state

There was no submission from the Crown that Mr Rajab should not be permitted, in accordance with settled authority, to rely upon his cognitive impairment and dissociative state in the assessment of his moral culpability for the deceased's murder. By its silence the Crown should also be taken to have accepted that Mr Rajab's intellectual disability and post-traumatic stress disorder would weigh more heavily upon him in a custodial setting and that I would give appropriate weight to Dr Henderson's opinion that prisoners in Mr Rajab's situation are at greater risk of ongoing mental health problems including, in his case, a significant deterioration in Mr Rajab's current mental health because of his incarceration.

The assessment of objective seriousness

At one stage in the sentencing proceedings the Crown submitted that the objective evidence, summarised in the statement of agreed facts, in particular the fact that Mr Rajab arrived at the park armed with a loaded firearm which he used within seconds of his arrival, supported a finding that it was Mr Rajab's intention to execute "a cold blooded and calculated murder". The Crown submitted that, I would be satisfied that Mr Rajab commenced to carry out the murder by first discharging a shot from the passenger side of the Rav 4 as it was idling in the middle of the road, a murder which was then carried out after he relentlessly pursued the deceased into the park before fatally shooting him in the neck.
On the other hand, the Crown also accepted Mr Rajab's evidence that he took the loaded firearm with him to Salmon Park only in the event that he needed to produce it to underscore the warning his friends were to communicate on his behalf that the deceased should stay away from his family, and that he only fired the gun because of a concern for the safety of his friends, as a possible version of events. In circumstances where Mr Rajab's account of events was sworn and not challenged in cross-examination, the Crown Prosecutor did not seem to appreciate that his characterisation of the murder as cold blooded and calculated could not be sustained. That was so not only because the Crown has the onus of proving matters of aggravation beyond reasonable doubt, including in this instance the premeditation and pre-planning inherent in a cold blooded and calculated murder, but also to seek to maintain that characterisation without cross-examining the offender was a fundamental breach of the Crown's obligation to afford the offender procedural fairness.
An offender's entitlement to procedural fairness in sentencing proceedings is fundamental to the disposition of criminal justice (see Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18 at 472 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ). While it is for the Court to ensure that the dictates of procedural fairness are not breached and that no injustice that results from the way that the proceedings are conducted, the obligation of the Crown Prosecutor as a representative of the Crown is integral to the process. The Crown Prosecutor's election not to cross-examine Mr Rajab deprived the Crown of any reliance on the Crown Prosecutor's characterisation of the murder as cold blooded and calculated.
That being the case, I do not, because I cannot, proceed to sentence on the basis that the murder was premeditated. Neither is it open to me to find (to the criminal standard) that Mr Rajab agreed with his co-offenders that he would bring a loaded firearm to the prearranged meeting at the park to threaten the deceased or even that he intended to shoot and wound the deceased to warn him against any reprisals he might visit upon the offender or his family. While the objective evidence might be thought to support either scenario as a possible version (or even the more likely explanation for Mr Rajab's actions), because the Crown elected not to challenge Mr Rajab's sworn account, or put alternate scenarios to him referable to the objective evidence and give him the opportunity to address them, I propose to treat his evidence (which is not emphatically contradicted by the evidence) as reasonably possible. The situation might have been different if I considered that Mr Rajab's account contradicted the agreed facts in some material respect. Were that the case, after raising the matter with counsel, it would have been open to me to reject the offender's account in that respect (see Zammit v R [2010] NSWCCA 29 at [27]). That is not the case here.
Even accepting the version of events deposed to by Mr Rajab as a possible version of events, an assessment of the objective seriousness of shooting the deceased to the neck at close range, and whilst he was on the ground disabled from the gunshot wound to his leg, might nonetheless attract a finding of high range offending were it not for the fact that the assessment of objective seriousness must be undertaken in light of all of the evidence bearing upon that question and the inferences legitimately drawn from it.
In this sentence proceeding, Mr Rajab's evidence addressed in detail his exposure to the deceased in the days and weeks preceding the shooting. He also explained that he shot the deceased from the car and then followed him into Salmon Park where further shots were fired before he shot him in the neck, because of his concern at what he perceived as fresh threats from the deceased that his family would be harmed. When this evidence was adduced, the Crown Prosecutor expressly conceded that Mr Rajab's explanation was not able to be contradicted by the Crown.
Without further elaboration from the Crown, I assume that it was for this reason that the Crown Prosecutor did not seek to cross-examine Mr Rajab on any aspect of his sworn account or advance any reasoned submission that would serve to qualify its weight in the sentencing exercise. In addition, the Crown did not submit that the evidence from the officer in charge who was called in the Crown case, and whose evidence was relied upon by Mr Rajab as providing some objective support for the legitimate fears he said he held for the safety of himself and his family, was incapable of bearing that forensic significance.
The Crown did maintain the submission however that the fatal shot was fired by Mr Rajab with the intention of killing the deceased (an issue of fact that the Crown must prove beyond reasonable doubt).
I am satisfied that shooting the deceased to the neck at close range supports a finding (and to the criminal standard) that the offender formed an intention to kill the deceased, even if, as I am prepared to find, it was an intention formed in the moment and responsive to Mr Rajab's unsettled mental state. I reject the submission of Mr Dalton SC, counsel for Mr Rajab, that the probabilities favour Mr Rajab only forming an intention to inflict very serious harm when he discharged the fourth and fatal shot, reckless as to whether death would result.
Were I to find that the fatal shot was discharged with an intention to kill, Mr Dalton submitted that I would also be satisfied that he was acting under a degree of provocation, as provided for in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would serve to further mitigate the objective seriousness of his offending.
Mr Rajab has the onus of establishing, on the balance of probabilities, that the deceased's conduct in issuing threats against him and his family in the past, threats which he says were repeated in Salmon Park (albeit only after the deceased had been repeatedly shot by him) operated on his mind at the time he fired the fatal shot so as to constitute a fundamental feature of the offending (see Connolly v R [2009] NSWCCA 293) or affecting its fundamental quality (see Williams v R [2012] NSWCCA 172; (2012) 203 A Crim R 172). I accept as a matter of principle that where provocation is relied upon in a sentence proceeding for murder that what is said to be the provocative conduct of the deceased does not have to be contemporaneous with the killing for it to be an available factor relevant to an assessment of objective seriousness. However, an effluxion of time between the provocative conduct and the shooting is relevant to that question.
On one view of Mr Rajab's evidence, the deceased's threats were not only delivered in the months and weeks prior to the shooting but they were delivered second hand and none had materialised. On the other hand, I accept that the fragility of Mr Rajab's mental state, and what he said were his added feelings of vulnerability because of his injured leg, might also have had an impact on his reaction to the threats he said the deceased made in Salmon Park.
In the absence of any submission from the Crown as to what I should make of the evidence said by Mr Dalton to constitute the provocative conduct of the deceased, and again with the Crown electing not to cross-examine Mr Rajab as to what his actual state of mind was when he discharged the fatal shot, I accept that there is at least the reasonable possibility that some degree of provocation, however minimal, impacted on Mr Rajab when he made the decision to discharge the fatal shot into the deceased's neck.
Finally, the expert evidence tendered on Mr Rajab's behalf concerning his mental state generally and at the time of the murder was not challenged by the Crown. Mr Dalton placed very considerable reliance upon this evidence in support of the submission that his client's moral culpability for the murder should be reduced because of his poor mental health and his compromised intellectual functioning (see Elturk v R [2014] NSWCCA 6; (2014) 239 A Crim R 584 at [31] - [33] applying Muldrock v The Queen (2012) 244 CLR 120; [2011] HCA 39; at [27] and [54]). That evidence was also relied upon as a feature of Mr Rajab's general subjective circumstances which, in Mr Dalton's submission, rendered considerations of general and specific deterrence of less weight in the exercise of the sentencing discretion in this case (see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177]).
The Crown made no submission at all as to the weight that might be given to Mr Rajab's mental health on any aspect of the sentencing exercise or the weight that might be given to the opinions of either of the experts concerning Mr Rajab's prospects of rehabilitation generally or the risk of him reoffending, a factor relevant to the assessment of his prospects of rehabilitation.
Irrespective of the interplay of a number of factors that I am satisfied are available to be considered in assessing and ultimately reducing Mr Rajab's moral culpability for the murder of the deceased, I also find that Mr Rajab must be taken to have known that the deceased was wounded and therefore defenceless when he discharged the fatal shot. This conduct, viewed objectively, is callous in the extreme. Although Mr Rajab gave evidence that he saw or thought he saw the deceased reach for his bum bag, I do not regard that (even if true) as diminishing the callousness of his conduct in discharging a shot at close range to the neck of a wounded man who was on the ground. However, given the weight of the expert evidence concerning Mr Rajab's mental health and psychosocial functioning at the time of the murder, and the attitude of the Crown to this evidence and to the balance of the evidence relied upon by Mr Rajab, all of which was unchallenged, the Crown's submission that the objective seriousness of offending should be assessed as above mid range is unsustainable as is the Crown's further submission that the non-parole period should exceed the standard non-parole period of 20 years.
After taking into account Mr Rajab's use of the firearm and his obvious disregard for public safety in discharging it multiple times in a public park, both factors which Mr Dalton conceded operate to aggravate the seriousness of the murder as provided for in ss 21A(2)(c) and (i) of the Crimes (Sentencing Procedure) Act, but also taking into account the evidence concerning Mr Rajab's mental functioning coupled with there having been some provocative conduct of the deceased in the weeks before and at the time of the shooting, I am of the view that the objective seriousness of the offending, Mr Rajab's moral culpability for the murder of the deceased is reduced.
I am conscious of the need to afford the standard non-parole period of 20 years continuing significance as a legislative guidepost to an appropriate sentence. However, when Mr Rajab's reduced moral culpability for murder is coupled with his plea of guilty and his compelling subjective circumstances, including his very favourable prospects of rehabilitation, I do not regard a sentence which comprises a non-parole period of 20 years as the period he must spend in custody before he is eligible for release to parole as warranted in this case.
The sentence to be imposed at the conclusion of these sentencing remarks will also reflect the need to denounce in the strongest terms the community's legitimate abhorrence of the use of firearms to settle disputes of any kind and to deter others from taking the steps that this offender took to protect himself from what he perceived, rightly or wrongly, to be the threat of harm to himself or his family. What cannot be overlooked is that because of his actions a young man's life has been taken.
A Victim Impact Statement by the deceased's mother, Alein Ayoub, was tendered by the Crown and read by her. She attested to her son being a good man who was loved by many and was not violent.
Mrs Ayoub also spoke of the effect that her son's murder has had on her daughters and their inability to complete their education because of their grief.
Mrs Ayoub said, "This was the biggest loss for all of us, he was only 22 years old and I did not get to see him live a life, I did not get to see his children. His wife Jessica was only 22 when he died, to lose her husband at such a young age has traumatised her. Everyone in the family is in pain. Hedi was ripped out of our hearts".
On behalf of the Court, and on my own bealf, I extend my sympathies to Mrs Ayoub and her family.
Before I deal with the sentence proceedings of Mr B Allouche, Mr E Allouche and Mr El Chami, I wish to record the fact that the Crown's attitude generally to the sentence proceedings of all four offenders has been of little assistance in the assessment I must make of the objective seriousness of their offending or the appointment of an appropriate sentence. Apart from uncontroversial statements of sentencing principle supported by seminal authorities (including the unsurprising proposition that the Crown was not asking that a life sentence be imposed on Mr Rajab) neither the authorities cited in the Crown's written submissions nor the Crown's oral submissions were of any assistance in the appointment of an appropriate sentence for murder in this case.
Given the extent of the evidence relied upon by Mr Rajab in mitigation of sentence, all of which was served on the Crown and none of which was challenged, the Court would have been assisted by relevant authorities, or at least some submission from the Crown as to the principled approach to sentencing for murder after taking that evidence into account.
There is a positive obligation imposed on the Crown to assist the Court in the exercise of the sentencing discretion that should not need to be restated (see Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2 at [38]). In some cases that obligation might be discharged by the Crown indicating no dissent from a submission advanced by defence counsel that a particular sentence or range of sentences is an available sentencing outcome, or no dissent from a finding that one or more features of mitigation are present and worthy of weight in the exercise of the sentencing discretion. However the obligation is not discharged by a simple adoption of the submissions of defence counsel or, worse still, as was the case here, a muted silence from the Crown Prosecutor on a range of issues of fact and law that were engaged in the sentencing exercise of all offenders.

The Crown case on the sentences of Mr B Allouche and Mr E Allouche

The particulars of the charge laid under s 349 of the Crimes Act to which both Mr B Allouche and Mr E Allouche pleaded guilty was, knowing that Mr Rajab had murdered the deceased, they assisted him (to evade justice).
Upon being pressed to articulate with precision the conduct the Crown relied upon to support proof of the elements of the offence of accessory after the fact to murder (neither the agreed facts nor the Crown's written submissions having addressed how disposing of the deceased's phone in or around Leichardt within hours of the murder was said to have assisted Mr Rajab to escape justice) in the course of the sentence proceedings the Crown Prosecutor provided the following submission in writing: The offender Rajab is assisted by the disposal of Ayoub's phone as police were not able to retrieve electronic evidence from the phone such as Facebook messages, Whatsapp messages and text messages between Rajab and Ayoub that could show the relationship between them, if a meeting had been arranged at the park. In relation to text messages, the physical handset is required to recover SMS messages for the life time of the phone. Police recovered the stored information on Ayoub's phone through the carrier but it only pre-dated the murder by a few days, so any stored information prior to that time was not available. [Emphasis added.]
Mr Brasch, counsel for Mr B Allouche, and Ms Davenport SC, counsel for Mr E Allouche, confirmed that their clients accepted the Crown's further submission as the basis upon which they were to be sentenced.
In the assessment of the criminality of both offenders I am obliged to only take into account that which actually assisted Mr Rajab to evade justice, up to the date of his arrest on 12 August 2015.
The Crown advanced no submission (whether in writing or orally) as to how the Court might make that assessment. In circumstances where the Crown did not invite a finding that either Mr B Allouche or Mr E Allouche knew of any arrangements between the deceased and Mr Rajab that they were to meet at Salmon Park, as distinct from them fearing that the phone might reveal those arrangements and in that way might incriminate Mr Rajab in a pre-planned murder of which they were unaware, and in circumstances where it must be assumed that their joint decision to dispose of the phone was only made because the deceased inadvertently left his phone in Mr E Allouche's car, such assistance as may actually have assisted Mr Rajab to evade justice is speculative at best.
There being no other finding reasonably open on the evidence and no contrary submission put by the Crown, I regard their offending in the low range of objective seriousness.

The subjective cases of Bilal Allouche and Ebrahim Allouche

Bilal Allouche

Mr B Allouche tendered two testimonials, one from his brother, Sam Allouche, and one from his sister-in-law, Teresa Allouche.
Mr B Allouche was born on 17 May 1993. Accordingly, he was 22 years old at the time of the murder and is now aged 24. He has a criminal record which records a number of driving offences, two of which relate to driving whilst disqualified, each of which attracted sentences of imprisonment and one of which was served during the course of his remand on the murder charge.
Both of his family members speak of him as an outgoing young man, somewhat favoured as the youngest son in a large family (including, his brother Mr E Allouche) and that he always mixed with a wide peer group. He was described as very social and popular. His social interactions, however, were said to be at the expense of his school work.
In the view of his sister-in-law, the cultural expectation that the older siblings would socialise the younger siblings did not occur in Mr B Allouche's upbringing as his older siblings left the family home to undertake their own familial responsibilities whilst he was very young. In her view, he was the subject of some adverse influences at an impressionable age for that reason. As an extended family member, however, she regards the Allouche family as industrious and loving and in which Mr B Allouche is a valuable family member.
Teresa Allouche also reports that she has spoken to Mr B Allouche on numerous occasions, albeit briefly due to his continuing remand until recent weeks, and that he has repeatedly shown remorse for his involvement in deceased's the murder.
Sam Allouche acknowledged that his youngest brother has made some poor life choices, and regrets not intervening earlier to ensure that he was provided with stronger family guidance. In his testimonial, he asked me to accept that Mr B Allouche is not a member of a dysfunctional family unit. I accept that is the case. I accept also that the Allouche family was thrown into chaos by the charging of two family members initially with murder, and then in sentence proceedings where they have both acknowledged their responsibility for being accessories after the fact to murder. I also accept that despite that state of affairs the family are ready and equipped to support both young men at the conclusion of these proceedings.

Ebrahim Allouche

Mr E Allouche relied upon a psychological report from Mr Michael Vanderhaven dated 27 June 2017, and testimonials from his father, his four brothers, his sister-in-law, his wife, a close friend and an employer. He also relied upon a testimonial from the Centre Manager of the United Muslims of Australia Church.
Mr E Allouche was born on 23 May 1987 in Melbourne, Victoria. His family moved to Sydney when he was about four years old. He was aged 28 at the time of the murder and 30 at the time of the sentence. He has a criminal record which was limited to driving offences, none of which attracted sentences of imprisonment.
Mr E Allouche is one of eleven children, he is the third youngest. He told Mr Vanderhaven that whilst the family was not materially wealthy there was stability within the family home as he was growing up. He reported that his school experience was "not easy" and that he found school work difficult. He said that he did not mix easily in the schoolyard peer group. Although it is not described in express terms, it would appear that Mr E Allouche was the victim of bullying before he left school at age 15.
Upon leaving school he commenced working in an assortment of labouring jobs to assist in financially supporting his family. The longest period of continued employment was for two to three years. His relationship history is uneven, with his most recent relationship fractured as a result of his arrest, and the consequent uncertainty for his future. The testimonial from Mr E Allouche's wife attests to the difficulties in the relationship, but that she will stand by her husband whatever comes of these sentence proceedings.
The results of a variety of psychometric tests administered by Mr Vanderhaven to assess Mr E Allouche's cognitive functioning against a range of domains were strongly suggestive of him having significant cognitive deficits, further suggestive of impaired intellectual functioning including, so far as is relevant to the sentencing proceedings, limited foresight and planning.
Although Mr Vanderhaven took into account that Mr E Allouche reported broken or little sleep before the consultation (sleep deprivation being recognised as reducing cognitive speed), after taking into account the effects of elevated levels of stress and anxiety associated with the interview process, Mr E Allouche's overall assessed intelligence in neuropsychological terms was extremely low. His overall score indicating that less than 0.4 per cent of people within his age range would score less than him (or, conversely, 99.6 per cent of his peer group would be expected to score better than him).
After considering dynamic and static risk factors it was Mr Vanderhaven's view that Mr E Allouche was in the low risk category of future offending.
Significantly Mr Vanderhaven said as follows: [Mr E Allouche] described no thought or mood related concerns immediately prior to witnessing murder on the day of his index offence. However, considering the [offender's] impaired cognitive functioning, in particular his limited capacity to hold and manipulate new information, problem solve, and plan, it is likely the [offender] acted impulsively when faced with the unexpected witnessing of murder. This was likely exacerbated by his coping strategy of avoidance, seeking to avoid stress and fear, restricting his capacity to take the time to plan and consider the consequences of his actions. The [offender] did indeed report confusion and fear after witnessing the murder and during the commission of his index offence, and he likely acted in a way that best served to reduce his emotional distress (avoidance).
From differing perspectives, each of his family members offer insights into Mr E Allouche's offending behaviour. As a family they undertake to continue to offer him support as he seeks to move forward with his future plans. They also each attest to him having acknowledged responsibility for his actions. They also report that since being released to bail, he has adhered strictly to his obligations to the Court whilst endeavouring to stabilise his social and family life. His wife is confident that he will not reoffend and, with ongoing psychiatric treatment, that he will treat his work and family life as a priority.

Parity considerations

There is nothing in the actual conduct of Mr B Allouche and Mr E Allouche that serves to differentiate their criminality for sentencing purposes. Ms Davenport did submit, however, that Mr E Allouche's mental state, and in particular what was identified by Mr Vanderhaven as his tendency to impulsivity and avoidance (which was likely to have been active when the decision was made to dispose of the phone) should be taken into account as reducing his blameworthiness relative to that of his brother. Despite there being no evidence as to who found the deceased's phone, what was said in forming the joint decision to dispose of it, and how and where it was disposed of, Mr E Allouche's compromised mental state (which I accept is amply supported by the expert evidence) does diminish his moral culpability relative to his brother for sentencing purposes, albeit to a modest degree.
The legislature has signalled the seriousness of accessorial offending after a murder by providing for a maximum of 25 years imprisonment, in recognition of the need to criminalise the conduct of those who deliberately compromise or put at risk the investigative process into a murder by those who know that crime has been committed, even if they are not legally liable for its commission. The authorities also recognise that the infinite range and variety of conduct constituting a breach of s 349 of the Crimes Act necessarily attracts very different sentences, including non-custodial sentencing options, depending, in large measure, on the extent to which the administration of justice was thwarted or the investigation into the murder and the arrest of the murderer hampered; the nature of the assistance that was given to the murderer; and, in some cases, the relationship between the murderer and the accessory.
The offending in this case is in the low range of objective seriousness, in part because there is no evidence that the deceased's missing phone delayed Mr Rajab's arrest. The officer in charge confirmed that Mr Rajab was positively identified as the likely murderer in the very early stages of the investigation, even if he was not formally arrested for some weeks. The contingent nature of the adverse impact on the investigation by the disposal of the deceased's phone is another factor which operates to reduce the objective seriousness of the offending. While in this case the phone might have revealed information about the fact or extent of contact between the deceased and Mr Rajab, equally it might have shown there was no contact between them at all.
There is little that operates to differentiate the subjective circumstances of Mr B Allouche and Mr E Allouche, in part because they share family ties and ongoing family support and because they both have wider community support. I am also satisfied that they are both genuinely contrite and despite Mr B Allouche being charged on his arrest in 23 October 2015 with a firearms offence as to which he has since pleaded guilty, in the years that have elapsed since their offending there has been no repetition of criminal conduct of any kind. In the case of Mr E Allouche, I further note and take into account in the calculation of sentence that he has been on stringent bail conditions since 3 March 2016, including daily reporting and a curfew until those conditions were varied by me when the Crown indicated its intention to discontinue the case against him on the charge of murder.
Finally, in the absence of any relevant criminal record at the time of the offending and without being informed of the outcome of the sentence proceedings involving Mr B Allouche that were pending in the District Court at time of the sentencing proceedings in this Court, I am satisfied they both have favourable prospects of rehabilitation with Mr E Allouche's prospects being more favourable given his lack of any relevant criminal antecedents.
The only point of difference, of some materiality on sentence, is the fact that Mr B Allouche has served two distinct terms of imprisonment for conduct showing a defiance of the law by driving whilst disqualified, in contrast to his brother who has not. Were I to impose a sentence that would require Mr E Allouche to serve an additional period in custody (that is, in addition to the time he has already served on remand) his compromised intellectual functioning might have attracted some additional measure of leniency. However, because that is not the effect of the sentencing order I propose to make it does not have that additional weight in the sentencing exercise.
In short, while I am of the view that the marginally different subjective circumstances of the offenders and the impact of Mr E Allouche's mental functioning on the assessment of his culpability result in different sentences of imprisonment, the measure of difference between them does not, in my view, offend principles of parity.
The Court was provided by the Crown with a schedule of authorities to guide the Court to an appropriate sentence to be imposed in this case. The Crown made no submission addressing the particular features of the offending in this case that might assist in that process. The Crown did not submit that a fixed term of imprisonment backdated to account for time served would be productive of a sentencing error.

The Crown case on the sentence of Mr El Chami

Mr El Chami's offending is constituted in his failure, without reasonable excuse, to inform police that he was present when Mr Rajab murdered the deceased knowing that with that information the police would have been assisted in arresting and prosecuting Mr Rajab. That offending is said to have occurred on a continuing basis from the date of the murder to the date of Mr El Chami's arrest on 28 October 2015.
In Wilson v Director of Public Prosecutions (NSW) [2017] NSWCA 128 at [45] the Court observed that the legislative objective in providing criminal sanctions for those who "conceal" a serious indictable offence is as follows: … By punishing the withholding of information, believed to be material in securing a conviction, by someone who knows or believes such an offence has been committed, the provision operates as a deterrent to people who might otherwise withhold information from the police. In doing so it furthers the more general objective that members of the public report information and beliefs about serious offences to the police so as to assist in the apprehension, prosecution and conviction of offenders.
Mr Lloyd QC, counsel for Mr El Chami, emphasised that the officer in charge conceded in his evidence that the utility of the information that Mr El Chami could give was limited, given that Mr Rajab's identity as the shooter was not seriously in any doubt, from an investigator's point of view, from very early in the course of the investigation. Mr Lloyd submitted, that being the case, the objective seriousness of Mr El Chami's offending is at the lower end of the scale. The Crown advanced no submission to the contrary.
Mr Lloyd also invited me to find that Mr El Chami's self-assessed feelings of compromise because of his friendship with Mr Rajab and his friendship with the deceased was what, motivated him to withhold his eyewitness account of the killing. I am unable to see how that diminishes the objective seriousness of the offending. In many, if not most, of the cases to which Mr Lloyd referred, it is a friend, family member or associate of a person who has killed another who conceals knowledge of a fact to avoid the arrest and charge of that person.

Mr El Chami's subjective circumstances

Mr El Chami was born on 7 December 1990. Accordingly, he was aged 24 at the time of the murder and 26 at the time of sentence. He was born in Australia of Lebanese descent.
He has no criminal record in New South Wales and only a minor drug offence in Queensland as to which no conviction was recorded.
He reported to Ms Anne Marie De Santa Brigida, counselling psychologist, that he had a close relationship with his family. He is one of five siblings, each of whom is in stable employment or undertaking university studies or, in the case of his sisters, married with domestic commitments. Mr El Chami is married with a young child. His wife is pregnant with his second child.
He completed Year 11 after which he took up a position as an apprentice cabinet maker for two years whilst undertaking trade studies. He left that position to pursue a career in boxing which he eventually left of his own volition. He was in secure employment at the time of his arrest. On his release to bail on 28 January 2016 he took up a position as a welder in a business owned and operated by a close friend. He was working in that capacity at the time of sentence. He is guaranteed continuing employment by his employer.
The psychometric testing employed by Ms De Santa Brigida did not reveal Mr El Chami to have any underlying psychopathology. Whilst his overall score upon intelligence testing positioned him in the low average range, there was no submission from Mr Lloyd that his assessed intelligence had any bearing upon his offending. In the absence of any congenital history of depression or any treatment for the same, Ms De Santa Brigida considered him on testing to be in the moderate range for depression, most likely attributable to these court proceedings. In the absence of any history of psychological or psychiatric problems, and no underlying psychopathology, Ms De Santa Brigida regarded Mr El Chami in a low to moderate range of risk of further offending.
Mr El Chami tendered testimonials from his father, his wife and his brother-in-law. He also wrote a letter addressed to "the Presiding Judge", to which there was no objection, in which he said that he did not inform the police about what he had witnessed of the events of the 29 June 2015 because he had a fear of being labelled "a dog" and that he would be "banished" by members of his cultural group. He went on in his written statement to say that: [The deceased] was not an enemy, he was in fact a well known friend of mine and we had a well built relationship as good friends. His passing has affected me in many ways, seeing him pass in front of me has completely shocked and psychologically drained me the past two years. I have had many sleepless nights thinking about the incident and most days I feel worthless because of what happened to him.
Again, there being no submission to the contrary by the Crown, I accept that Mr El Chami is genuinely remorseful for failing to go to the police after the incident and inform them of what he knew.
Each of the family members who provided a testimonial describe the offender as a supportive and respectful family member, and a loving and dutiful husband.
Of additional significance is what his father and brother describe as an observable change in Mr El Chami's general demeanour at a time proximate to the killing and before he was arrested on 28 October 2015. Neither his father nor his brother were able to understand why he became distant, emotional and seemingly frightened since it would appear that it was not until he was arrested that his family members, including his wife, had any reason to suspect his involvement in the killing of the deceased. His father, said that it was only when his son was arrested that he was able to "put the pieces together" and indicated why his son was behaving in such a changed and inexplicable way.
The Crown accepted the weight of Mr El Chami's subjective circumstances.
Without in any way diminishing the need for the sentence to reflect the sentencing objective of general deterrence, the sentence to be imposed is reflective of the weight of Mr El Chami's subjective circumstances and the Crown's apparent acceptance of his offending being in the low range, there being no submission orally or in writing to the contrary.

Sentences

Accordingly, I sentence each of the offenders as follows: Omar Rajab, for the offence of murder I impose a sentence of imprisonment for 21 years comprising a non-parole period of 15 years and 6 months commencing on 12 August 2015 and expiring on 11 February 2031, with a balance of term of 5 years and 6 months to expire on 10 August 2036. You will be eligible to be considered for release to parole on 11 February 2031. Bilal Allouche, for the offence of accessory after the fact to murder I impose a fixed term of imprisonment of 6 months commencing on 21 December 2016. Since this sentence expired on 20 June 2017, you will not return to custody. Ebrahim Allouche, for the offence of accessory after the fact to murder I impose a fixed term of imprisonment of 4 months commencing on 29 October 2015. Since this sentence expired on 28 February 2016, you will not return to custody. Mohammed El Chami, for the offence of concealing a serious indictable offence, namely murder, I impose a fixed term of imprisonment of 3 months commencing on 28 October 2015. Since this sentence expired on 27 January 2016, you will not return to custody.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2017

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