R v Saeb RAAD [2009] NSWSC 830 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: At about 12.45pm on 3 September 2001, Saeb Raad robbed an armed security guard and, in the process, killed him. The armed security guard was Mr Ahmed Rashid, who worked for All Time Security, a sub-contractor to Chubb Security. Mr Raad has been indicted for both the murder and the armed robbery and pleaded guilty to each. 2 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 2001, Mr Raad 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. 3 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. 4 Even within the crime of murder, a crime perceived as the most serious because of society's understandable and correct 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 Raad 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 5 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 of the offender 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 the Offences 6 On 3 September 2001, as already noted, Mr Raad shot and killed Mr Rashid. Mr Rashid was a security guard who had, shortly after 12.30pm on that day, arrived at Punchbowl Ex-Services Club in Punchbowl and collected cash and cheques totalling approximately $55,000. Mr Rashid returned to his vehicle. Mr Raad approached Mr Rashid, informed him that he was armed and told him to get out of the vehicle. On the evidence before the Court, I am satisfied that Mr Raad's weapon was still tucked into his belt. It seems that Mr Rashid disputed that Mr Raad was armed and Mr Raad took the weapon from his belt and a struggle ensued. 7 That struggle involved Mr Raad pulling Mr Rashid from the vehicle and Mr Rashid holding on to the hand or arm of Mr Raad. During the course of that initial struggle, a number of bullets were fired which were later recovered from the vehicle. 8 After Mr Rashid had been forced from the vehicle and the initial struggle had occurred, Mr Raad and Mr Rashid wrestled and, it seems, that Mr Raad at one stage had Mr Rashid in a headlock. I am not satisfied beyond a reasonable doubt that Mr Raad deliberately, presumably in order to escape detection, shot Mr Rashid. I am satisfied that Mr Raad shot Mr Rashid during the course of the struggle. 9 There were independent persons who witnessed the struggle. Each of the witnesses attest to hearing two sets of gunshots, consistent with the foregoing. Each of them also attests to the struggle between the offender, Mr Raad and the deceased, Mr Rashid. One of the witnesses did not see the second round of shots, which included the ultimately fatal wound. One of the witnesses saw the struggle and the weapon against the deceased's chest, but none of that evidence is inconsistent with a struggle. A third witness also heard the shots and saw the offender holding the weapon and saw him fire at the deceased who was struggling with him. At the time, Mr Raad and Mr Rashid were in a struggle and, it seemed, according to that witness, Mr Raad had Mr Rashid in a headlock. The last of the witnesses in effect was unable to add to what had already been put, except that he confirmed the nature of the struggle, and that the deceased continued to hold on to the hand which was holding the gun, or the gun itself. 10 The medical evidence establishes that Mr Rashid died from a gunshot wound, the fatal wound being a wound over the left upper back, centred approximately 200mm to the left of the posterior midline and approximately 1.28metres above the level of the left heel. The wound is consistent, equally, with a deliberate shot fired down the body while the deceased was in a headlock and also with the gun having discharged during the course of a struggle while the deceased was in a similar position. There was a second gunshot wound that, of itself, may not have been fatal. That second gunshot wound perforated the skin of the left lower back and passed through the muscle fracturing the vertebrae. That wound also is consistent with both a deliberate shot and also consistent with the result of a struggle. As already stated, I am not persuaded beyond a reasonable doubt that the killing was deliberate. There is no dispute that there was a struggle between the two men and medical evidence of laceration and bruising is consistent with that fact. 11 After shooting the guard, Mr Raad took the money and escaped in the guard's car. He drove a short distance and abandoned the vehicle. He transferred to his own vehicle and went to his mother's house which was nearby. 12 Mr Raad, during the armed robbery and shooting, wore an "afro style" wig and none of the witnesses were able to identify him. Further, Mr Raad had been wearing gloves, left no fingerprints on the vehicle or at the crime scene, and no traceable DNA was available. As a consequence, the Police and law enforcement authorities had no idea as to the perpetrator of the armed robbery and murder. Mr Raad was not apprehended and was not even questioned in relation to these offences. 13 Shortly after 5.00pm on 7 February 2008, Mr Raad, of his own volition, went to the Green Valley Police Station and informed Police that he had committed a murder and robbery at the front of the Punchbowl RSL Club. He said that he could not live with it anymore. Police, who were unaware of the offence, made a number of enquiries, determined that a robbery had been committed and a security guard shot. Mr Raad was arrested and has remained in custody since that date. The information in relation to the offence comes almost entirely from Mr Raad. It is absolutely clear that, but for Mr Raad's confession and attendance at the Police Station, he would never have been apprehended. 14 There were some aspects of the offence which involved planning, but predominantly, that planning related to the armed robbery, rather than the murder. Those aspects are the use of a disguise, and the fact that Mr Raad had obtained a radio scanner and was listening to the Police radio network before, during and after the robbery. 15 Much debate occurred during the sentence hearing as to whether there was an intention to kill (or at least an intention to cause grievous bodily harm), submitted by the Crown, while counsel for Mr Raad contended for a finding of felony murder. The Crown has failed to satisfy me of an intention to kill or cause grievous bodily harm. However, that failure does not necessarily mean that the crime is not a relatively serious one, even within the category of murder. 16 The relative seriousness of any crime depends on its own facts and does not depend on some general categorisation. While it is difficult to imagine a murder that involves the requisite intention, being less serious than the least serious felony murder, this is not in the category of least serious felony murder. Mr Raad intended to commit an armed robbery. He did so with a loaded gun. He had loaded the gun shortly before the robbery and had his finger on the trigger when he pulled the gun out from his belt. 17 Even though I am not satisfied that he intended to kill or cause grievous bodily harm, he must have understood that committing an armed robbery with a loaded gun, having the safety catch off the weapon and having his finger on the trigger could foreseeably result in serious injury, if not death. The seriousness of the offence, including the armed robbery, must be measured against the regime that existed at the time of the commission of the offence, namely, in 2001. 18 As the Crown, most properly, concedes, Mr Raad is entitled to the highest level of discount for a plea of guilty for the utilitarian value of the plea. Further, Mr Raad is entitled to a significant added element of leniency for making the voluntary disclosures of involvement in a serious crime in respect of which the Police had no knowledge: R v Ellis (1986) 6 NSWLR 603 at 604. In R v Bell [2005] NSWCCA 81, Grove J, with whom Spigelman CJ and Bell J agreed, referred to Ellis and cited the following well-known passage from the judgment of McHugh J in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at [12]: "Thus, according to Ellis , the degree of leniency to be shown for the disclosure of unknown offences will vary according to (1) the likelihood that the offences would have been discovered by the authorities; and (2) the likelihood that the offences could have been proven beyond reasonable doubt in a court without the disclosure." 19 In this case, each of the factors to which McHugh J referred, in determining the degree of leniency to be shown, are relevant in assessing the significance of the discount. As already made clear, the offences, by this offender, would not have been discovered by the authorities and it is and would have been impossible for the authorities to have proved these offences, beyond a reasonable doubt, without Mr Raad's disclosure. Indeed, without Mr Raad's disclosure, Mr Raad would not have been charged. 20 Nevertheless, however significant the Ellis factors ought to be, the sentence imposed cannot fall below that which is appropriate for the seriousness of the crime. Subjective Circumstances 21 No account of the history of Mr Raad can adequately describe the transformation that has occurred in him. The person to be sentenced is a very different person to the one who committed the offences. Nevertheless, and taking into account his subjective circumstances, Mr Raad must be sentenced to a term of imprisonment that reflects the seriousness of the offences with which he is charged and to which he has pleaded. His history is a sorry one and unfortunately not an unusual one. 22 He had an early dysfunctional family environment, his parents having separated when he was 7 years' of age. He came to Australia at the age of 10 and did not see his mother again until he was about 18 years' of age. He did not have a good relationship with his stepmother and was not particularly close to his father. This early environment, according to Mr Taylor, Clinical Forensic Psychologist, in his report of 3 April 2009, impacted on his social and emotional development. From about the age of 13 years, he was having significant behavioural problems and ran away from home at the age of 15. He lived on the streets with his friends and as a consequence engaged in substance abuse and criminal behaviour. 23 Mr Raad has a criminal history of some length, which reflects his street life and substance abuse. His first offence was for stealing a motor vehicle, when he was approximately 15 years' of age. Most of the offences with which he has been charged, and for which he has been convicted, have been property offences such as stealing, break, enter and steal, and the like, and drug offences including supply of hemp, possession and supply of heroin and related offences such as goods in custody. Mr Raad continued over a 10-year period with these kinds of offences and received more and more serious punishment. In 1985 he escaped from lawful custody and in 1988 and 1992 committed armed robberies. These were the last offences before the offences for which he now stands to be sentenced. The gap in offending between 1992 and 2001 related to various issues associated with his attempts to cease his drug abuse and with his custody. 24 He had tried, partly successfully, on a number of occasions to cease using drugs, but relapsed shortly before the date of the offence. He has been in his current relationship for approximately 10 years and that relationship has provided some significant stability. His relapse on drugs was the cause of this offence and the armed robbery was committed for the purpose of obtaining money to pay a bill from prior drug purchases. The $55,000 (or as much of it as could be used) was spent on that drug bill and on the purchase of other drugs. 25 The effect of his relationship has been, both literally and figuratively, sobering. His partner's devotion to him and her religion have had an enormous impact on his life. He assists in rearing his stepchildren and has an extremely close relationship with them. He cares deeply for his family and they care for him. This was the subject of oral evidence, and obvious from the reaction of those of his stepchildren who attended during his sentencing hearing. It was that relationship, both with his wife and her children, that brought about his stability and change in attitude. Mr Taylor's report, and the evidence of Mr Raad was that Mr Raad got to the stage of his life when he couldn't handle his crime anymore. Mr Raad, one day, looked at his own stepchildren and realised that the man he had killed had children too and would never see his children grow up. It was this that led to Mr Raad's voluntary admissions. His remorse is profound. Conclusion 26 Murder is the most serious of offences and causes the most serious of consequences. This particular crime is objectively serious. It involves Mr Raad intending to rob an armed guard and killing that guard. 27 The circumstances were not only dangerous to Mr Rashid, but there were bystanders, people in the street and it was a threat to public safety. The Court takes this into account in dealing with the seriousness of the offence. It is an aggravating feature under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 28 The armed robbery of itself would be a serious offence and warrants condign punishment. However, the culpability in relation to that offence is wholly overtaken by the murder with which I now deal. The murder was not itself planned or part of a plan or organised criminal activity, but did form part or was a result of the robbery. I have already mentioned that I do not consider that it has been proved to the requisite standard that there was an intention to kill or cause grievous bodily harm. The offender has a significant record, which I take into account. 29 Mr Raad not only has prospects of rehabilitation, he has, it seems, wholly rehabilitated himself. He has been clean from alcohol and drugs for a significant period of time and for almost all of the time since the commission of the offence in question. I have no doubt that, subject to the effect of prison itself, Mr Raad would not re-offend. Even in relation to the incarceration and association with other offenders and association with criminal elements in prison, this would be more than matched by the positive effect of his family. Indeed, one of the most troubling features of the sentence is the effect that prison, itself, will have on the rehabilitation of Mr Raad. 30 I deal firstly with the calculation of the armed robbery count. The guideline in R v Henry (1999) 46 NSWLR 346 is relevant to the assessment of the seriousness of the offence. While armed robbery offences escalate according to how weapons are used and which weapons are used, it is important not to double-count the effect of the use of the firearm and the murder with which Mr Raad is charged and to which he has pleaded. As earlier stated, the robbery was planned, although not as planned as many, and is aggravated by the firing of the gun. By firing of the gun I do not refer to those shots that ultimately shot and/or killed the deceased, but, as earlier stated, the weapon to be used for the robbery was discharged some little time before the murder occurred. On the charge of armed robbery, Mr Raad is entitled, once more, to a discount for a plea of guilty at the highest level and for a significant added element of leniency on account of the factors in R v Ellis, supra. All of the issues already discussed as to the confession to Police and the fact that the crime would have otherwise gone undetected are relevant to this charge as well as the charge of murder. Mr Raad's criminal history is more relevant to the armed robbery count than it is to the murder charge. The offence to which Mr Raad has pleaded guilty, in this respect, is an aggravated offence under s 97(2) of the Crimes Act 1900, the aggravation being that Mr Raad was armed with a dangerous weapon. The maximum sentence is imprisonment for 25 years, which is the main guidepost to the fixing of a sentence. Further, generally heavy sentences are appropriate for persons who commit armed robbery in order to feed a drug habit, as was the case for Mr Raad: R v Ellis (1993) 68 A Crim R 449. 31 Mr Raad was not a young offender. At the time of the offences, he had just turned 41 years' of age and he is now about to turn 49. In 1988, when Mr Raad was last before the courts for an armed robbery offence, Judge Herron sentenced Mr Raad to 8 years' imprisonment, with a 5-year non-parole period. As earlier stated, Mr Raad is a very different person from that person, who was before Judge Herron; his remorse is profound and his rehabilitation almost complete. I would expect that he would not re-offend. 32 I turn then to the question of the murder offence. Most of the aspects of this offence I have already discussed or are covered in the subjective matters that I have dealt with in relation to the armed robbery. I bear in mind that the sentence must be imposed under the regime that existed prior to the institution of a standard non-parole period and in accordance with the range of sentences that would have applied at the time of the offence. The statistics, from the Judicial Commission of New South Wales, provided by counsel, are of some assistance, but not overly helpful. The statistics provided disclose the term of the sentence, i.e. the head sentence, imposed for murder in circumstances where there was no standard non-parole period that applied. It shows that the top third of the sentences imposed were for 22 years and above. Of course these statistics take into account sentences imposed on persons who had pleaded guilty and were the subject of significant discount. Nevertheless, to the extent that they disclose a range of sentences, it is appropriate that the commencement point for the sentence to be imposed for this murder ought be at the bottom of the top-third of that range, namely, 22 years. That is the commencement point suggested by the Crown and, in this case, I accept that it is an appropriate point. 33 As already stated, I apply the highest level of discount for the plea of guilty and a significant discount for the factors associated with the voluntary disclosure and those factors associated therewith. But I fix a sentence, which I consider to be appropriate in all the circumstances. 34 I do not find special circumstances. The sentence that I will impose will have a sufficient non-parole period to allow for his supervision and to ensure that he returns to a life without crime, without drugs and alcohol, and with the kind of stability that has earned him a leniency that, for such a serious offence, would not otherwise be given. Conviction and Sentence 35 Saeb Raad, you are convicted of armed robbery with a dangerous weapon, namely, a self loading pistol, in that on 3 September 2001 at Punchbowl in the State of New South Wales you did rob Ahmed Rashid of approximately $50,000 in cash and cheques, the property of the Punchbowl Ex-Services Club Limited. 36 Saeb Raad, you are also convicted of murder in that on 3 September 2001 at Punchbowl in the State of New South Wales you did murder the aforesaid Ahmed Rashid. 37 Mr Raad, for the offence of armed robbery, I sentence you to a fixed term of imprisonment of 5 years commencing 7 February 2008 and expiring on 6 February 2013. Further, Mr Raad, for the offence of murder, I sentence you to a term of imprisonment of 14 years commencing 7 February 2008 and expiring on 6 February 2022, with a non-parole period of 10 years and 6 months expiring on 6 August 2018. 6 August 2018 will be the first date upon which you will be eligible for release on parole.

R v Saeb RAAD

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