SENTENCE
1 HIS HONOUR: Shortly after midnight, in the early hours of Friday 13 December 2002, Raymon Youmaran shot and killed Mr Dimitri Debaz. For that act, Mr Youmaran has been charged with murder and has pleaded guilty.
2 Mr Debaz, the victim, was 28 at the time of his death. Mr Youmaran was 24 at the time that he shot Mr Debaz.
3 The crime of murder is regarded as the most serious of crimes because it involves the felonious taking of human life. The maximum sentence for the crime is life imprisonment, which penalty is imposed in the worst category of murder. Because the offence occurred in 2002, Mr Youmaran is required to be sentenced in accordance with the law as it then existed and there is no standard non-parole period for the offence.
4 The introduction of a standard non-parole period for the crime of murder had a significant effect in increasing the range of sentences generally imposed for the crime of murder and it is necessary to bear in mind the range of sentences that were imposed at the time that the conduct occurred, rather than at present.
5 Even within the crime of murder, a crime perceived as the most serious because of society's view of the sanctity of human life, there is a range of culpability associated with the crime. In order to determine the objective features, which measure the culpability of Mr Youmaran and deal with his subjective circumstances, it is necessary to set out the circumstances of the offence. Before doing so, I briefly set out the purpose of sentencing in a case such as this.
Sentencing Principles
6 The purpose in sentencing any offender, even those charged with murder, seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. Each of these factors, particularly the protective nature of sentencing, personal and public deterrence, and punishment, must have regard to the gravity of the circumstances viewed objectively within the range of crimes that may fall within the offence charged. These point most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution. Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. There is no single correct sentence and the often complicated interplay of considerations point in different directions.
Circumstances of this Offence
7 On 13 December 2002, Mr Youmaran shot Mr Debaz. It occurred in the following circumstances, which are taken largely from the agreed statement of facts tendered in the sentence proceedings.
8 At about 10.40pm on Thursday 12 December 2002, Mr Debaz, in the company of two friends, arrived at the Sefton "Playhouse" Hotel. On arrival, Mr Debaz met his brother Aleck and approximately 15-20 other friends, all of whom were there to celebrate Aleck's birthday.
9 As one would expect, the group of people, of which Mr Debaz and his brother Aleck formed part, drank at the Hotel. They also watched a regular show performed by exotic dancers.
10 At about 12.25am on Friday 13 December 2002, Mr Youmaran arrived in the car park of the Hotel. He was with co-offenders Mr Rafael Joseph, Mr Sandro Mirad, Mr Sahir Marcus and Mr Samir Tiyadors. They arrived in a motor vehicle.
11 In the motor vehicle were two loaded firearms. Mr Youmaran was aware of at least one of them, being a Glock pistol. An inference is available that he had relevant possession of the pistol at this time, and perhaps exclusive possession. All five men, including Mr Youmaran, alighted the vehicle and walked towards the main entrance of the Hotel. They were filmed on a closed circuit television camera at the front door of the Hotel.
12 Within a matter of seconds after the five persons (hereinafter called "the second group"), including Mr Youmaran, entered the Hotel, they were involved in a fight with Mr Debaz, his brother Aleck and their large party of male friends (hereinafter called "the first group"). The fight was observed by a number of patrons inside the Hotel.
13 It is accepted that the second group, including Mr Youmaran, were not aware that the first group of men (including the victim, Mr Debaz) were inside the Hotel at the time that they planned to go there, parked there, or went inside. The first time, it seems, that they were aware of the first group being in the Hotel was on their entry. Likewise, it seems clear that the first group, including Mr Debaz, were not aware that the second group would be attending the Hotel later that night.
14 As is probably obvious from the short time between the second group entering the Hotel and the commencement of the altercation, there was some history of dispute between one or more of the second group and one or more of the first group. In particular, it seems that there was a history of dispute between Mr Rafael Joseph and Mr Sandro Mirad and members of the Debaz family. This history led to the fight, almost instantaneously, between them. It is not suggested (and there is no evidence that could be accepted) that Mr Youmaran had a history of animosity towards the victim, Mr Debaz, or his brother. The history with Mr Joseph and Mr Mirad related to an incident at a nightclub in October of 2002.
15 During the fight, Mr Tiyadors, a member of the second group, was being assaulted by the first group. When he was on the ground, it seems being punched and kicked, Mr Youmaran, together with Messrs Joseph, Mirad and Marcus ran from the Hotel. The fight inside the Hotel did not involve the use of weapons, except that a chair and a bottle were seen to have been picked-up and used during the fight.
16 The closed circuit television cameras captured the four persons running from the Hotel front door and heading back towards their car. Shortly thereafter, the victim, Mr Dimitri Debaz, is seen on the cameras to walk from the Hotel and into the car park.
17 The four men, including Mr Youmaran, ran from the Hotel towards the car and once there Mr Youmaran and his co-offender Mr Joseph have each obtained a nine-millimetre Glock handgun (from a position in the back of the seat) and started to walk back through the car park towards the front door of the Hotel.
18 Mr Marcus and Mr Mirad had entered the car, Mr Mirad in the driver's seat, and slowly driven through the car park towards its exit, stopping just before the driveway.
19 In the meantime, Mr Youmaran and Mr Joseph, having walked towards the Hotel, fired 15 rounds of ammunition towards the Hotel. Ballistics evidence, together with the admissions of Mr Youmaran, establish that the gun he was firing was responsible for 10 bullets and Mr Joseph was responsible for 5 bullets.
20 Six bullets have struck and killed Mr Debaz who was, at that time, seeking to take cover behind other vehicles in the car park. The bullets that struck Mr Debaz came from the pistol used by Mr Youmaran.
21 Mr Youmaran's co-offender, Mr Joseph, fired towards the front door of the Hotel from which, it seems, Mr Aleck Debaz and a Mr Mohammed Khalil were wounded in the leg. A number of bullets went into the front of the Hotel, striking targets, and these were predominantly, but not solely, fired from the gun of Mr Joseph. Mr Aleck Debaz and Mr Mohammed Khalil have, it seems, refused to assist police with the investigation of their shootings.
22 After the shooting, Mr Youmaran and Mr Joseph ran towards the waiting car, the near side doors of which were open, which was then driven from the Hotel.
23 Mr Tiyadors gave statements to the police and identified his companions on the evening. There were a number of meetings between members of the second group, at which the events of the night were discussed and at which some admissions were made.
24 On 11 March 2003, Mr Mirad was arrested. He subsequently pleaded guilty to the offence of accessory after the fact to murder, for which he was sentenced by his Honour Justice Barr on 6 August 2004 to two years and six months with a non-parole period of one year and six months: R v Mirad [2004] NSWSC 701.
25 Mr Marcus was interviewed by police and confirmed much that Mr Tiyadors had said. He has not been charged with any offence. Nor, as might be obvious from the above, was Mr Tiyadors. Mr Youmaran became aware that he was required by the police for questioning and/or would be subject to charge. On 16 April 2003 a warrant was issued for both him and Mr Joseph in relation to the charge of murder of Mr Debaz. Mr Joseph fled overseas and remained overseas for a significant period. While there is no suggestion that Mr Youmaran fled overseas, it is accepted that, while fully aware that he was wanted by police for his involvement in the murder of Mr Debaz, Mr Youmaran had continually avoided detection by police.
26 On the evening of Wednesday 31 May 2006, the police arrested Mr Youmaran. The information as to his whereabouts was obtained through police intelligence. The police, including a Tactical Operations Unit, went to his premises. Mr Youmaran came out of the premises and was arrested. He was taken to Fairfield Police Station and charged.
27 Mr Youmaran was interviewed by the police and made substantial admissions involving all of the matters relating to his direct involvement in the murder of Mr Debaz. It is accepted that the statement made by Mr Youmaran, in that interview, was a full and complete statement of his involvement in the offence. The interview given by Mr Youmaran included his cooperation in drawing a basic sketch of the crime scene and indicating relevant matters on that plan. He also identified a number of people in the CCTV footage and admitted that he was of the belief that the firearm was loaded at the time of the shooting and that the shooting would result in Mr Debaz's demise.
28 Mr Joseph, the co-offender, had sought to evade detection by travelling overseas and was recently extradited from the United States of America. He is currently awaiting committal proceedings.
29 Notwithstanding the full and complete admission as to the events in the early morning of 13 December 2002, Mr Youmaran initially pleaded not guilty. It seems, and I accept, that the plea of not guilty was a result of acceptance of advice given to him by his then legal advisers that he had available to him issues associated with either or both self defence and provocation.
30 The previous advice relating to the availability of self defence and provocation has been seen by the Crown, but is not in evidence before the Court. It is not unreasonable for Mr Youmaran to rely upon an advice of legal practitioners as to the availability of a defence. It is, however, important, that Mr Youmaran, at no stage, resiled from the admissions of fact that give rise to the offence before the Court. When legal advice was given, which advice reflected the true state of the law on the facts, there was a change in plea, which Mr Youmaran, through his legal advisers, indicated to the Crown, a couple of weeks prior to the trial date.
31 The plea was entered (with an earlier indication to the Court) on the day first set down for the trial. The discount for a plea of guilty for which the Crimes (Sentencing Procedure) Act 1999 provides is an assessment of the utilitarian value of the plea. I have recited the circumstances of his prior legal advice solely for the purpose of its effect, if any, on the decision to plead not guilty and, as a consequence, on what otherwise may be classified as remorse on Mr Youmaran's part.
Subjective Circumstances
32 It is clear that Mr Youmaran did not instigate the altercation in the Hotel. It is also clear that the attack on the deceased was not premeditated in the sense of the implementation of a premeditated and calculated plan to kill either Mr Debaz or anyone on that night. However, what is admitted by Mr Youmaran, in his record of interview, but is not clear on the agreed facts, is that three shots were fired into Mr Debaz, at close range, while he was on the ground. Even allowing for the degree of panic that, at that stage, may have engulfed Mr Youmaran, at least at or immediately before those shots, Mr Youmaran intended to kill this member of the group, which was fighting his friends.
33 However, it is also clear from the evidence before the Court that Mr Youmaran was not in any way the instigator of, or the cause of, the initial altercation in the Hotel. It was not Mr Youmaran who had a history of animosity, or feelings of animosity, towards anyone in the first group in the Hotel, including the deceased, Mr Debaz.
34 There is also evidence that Mr Youmaran did not fire shots until he had heard other shots fired. It is not clear whether Mr Youmaran had a view that these shots were from anyone other than Mr Joseph who was his co-offender.
35 Mr Youmaran has one prior offence for possession of a prohibited drug. The offence is neither an offence of violence nor an offence involving organised criminal activity and is wholly irrelevant to the murder charge for which he must now be sentenced. Mr Youmaran received a fine for his earlier drug offence and his arrest on this murder charge and his current imprisonment, since 31 May 2006, is the first time that he has been in gaol.
36 He was held in segregation for approximately 23 months until about 20 April 2007 due to fears for his safety. During that time, he experienced the following: